3rd-full-text.docx

G.R. No. L-21438

September 28, 1966

AIR FRANCE, petitioner, vs. RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents. Lichauco, Picazo and Agcaoili for petitioner. Bengzon Villegas and Zarraga for respondent R. Carrascoso.

SANCHEZ, J.: The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare between first class and tourist class for the portion of the trip Bangkok-Rome, these various amounts with interest at the legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit. On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs against petitioner. The case is now before us for review on certiorari. The facts declared by the Court of Appeals as " fully supported by the evidence of record", are: Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March 30, 1958. On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the "first class" seat that he was occupying because, in the words of the witness Ernesto G. Cuento, there was a "white man", who, the Manager alleged, had a "better right" to the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused, and told defendant's Manager that his seat would be taken over his dead body; a commotion ensued, and, according to said Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class; when they found out that Mr. Carrascoso was having a hot discussion with the white man [manager], they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the plane.3 1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all the issues properly laid before it. We are asked to consider facts favorable to petitioner, and then, to overturn the appellate court's decision. Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record without expressing therein clearly and distinctly the facts and the law on which it is based". 5 This is echoed in the statutory demand that a judgment determining the merits of the case shall state "clearly and distinctly the facts and the law on which it is based"; 6 and that "Every decision of the Court of Appeals shall contain complete findings of fact on all issues properly raised before it". 7

A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however, solely insists that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn. 9 A court of justice is not hidebound to write in its decision every bit and piece of evidence 10 presented by one party and the other upon the issues raised. Neither is it to be burdened with the obligation "to specify in the sentence the facts" which a party "considered as proved". 11 This is but a part of the mental process from which the Court draws the essential ultimate facts. A decision is not to be so clogged with details such that prolixity, if not confusion, may result. So long as the decision of the Court of Appeals contains the necessary facts to warrant its conclusions, it is no error for said court to withhold therefrom "any specific finding of facts with respect to the evidence for the defense". Because as this Court well observed, "There is no law that so requires". 12 Indeed, "the mere failure to specify (in the decision) the contentions of the appellant and the reasons for refusing to believe them is not sufficient to hold the same contrary to the requirements of the provisions of law and the Constitution". It is in this setting that in Manigque, it was held that the mere fact that the findings "were based entirely on the evidence for the prosecution without taking into consideration or even mentioning the appellant's side in the controversy as shown by his own testimony", would not vitiate the judgment. 13 If the court did not recite in the decision the testimony of each witness for, or each item of evidence presented by, the defeated party, it does not mean that the court has overlooked such testimony or such item of evidence. 14 At any rate, the legal presumptions are that official duty has been regularly performed, and that all the matters within an issue in a case were laid before the court and passed upon by it. 15 Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of the ultimate facts as found by the court ... and essential to support the decision and judgment rendered thereon". 16They consist of the court's "conclusions" with respect to the determinative facts in issue". 17 A question of law, upon the other hand, has been declared as "one which does not call for an examination of the probative value of the evidence presented by the parties." 18 2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter the facts or to review the questions of fact. 20 With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support its judgment. 3. Was Carrascoso entitled to the first class seat he claims? It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket. But petitioner asserts that said ticket did not represent the true and complete intent and agreement of the parties; that said respondent knew that he did not have confirmed reservations for first class on any specific flight, although he had tourist class protection; that, accordingly, the issuance of a first class ticket was no guarantee that he would have a first class ride, but that such would depend upon the availability of first class seats. These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of Appeals under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had confirmed reservations for, and a right to, first class seats on the "definite" segments of his journey, particularly that from Saigon to Beirut". 21 And, the Court of Appeals disposed of this contention thus: Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee that the passenger to whom the same had been issued, would be accommodated in the first-class compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival at every station for the necessary first-class reservation. We are not impressed by such a reasoning. We cannot understand how a reputable firm like defendant airplane company could

have the indiscretion to give out tickets it never meant to honor at all. It received the corresponding amount in payment of first-class tickets and yet it allowed the passenger to be at the mercy of its employees. It is more in keeping with the ordinary course of business that the company should know whether or riot the tickets it issues are to be honored or not. 22 Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus: On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as follows: Q. In these tickets there are marks "O.K." From what you know, what does this OK mean? A. That the space is confirmed. Q. Confirmed for first class? A. Yes, "first class". (Transcript, p. 169) xxx

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Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for, a first class ticket without any reservation whatever. Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot believe that after such confirmation defendant had a verbal understanding with plaintiff that the "first class" ticket issued to him by defendant would be subject to confirmation in Hongkong. 23 We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the judgment of the lower court. 24Implicit in that affirmance is a determination by the Court of Appeals that the proceeding in the Court of First Instance was free from prejudicial error and "all questions raised by the assignments of error and all questions that might have been raised are to be regarded as finally adjudicated against the appellant". So also, the judgment affirmed "must be regarded as free from all error". 25 We reached this policy construction because nothing in the decision of the Court of Appeals on this point would suggest that its findings of fact are in any way at war with those of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or grounds different from those which were made the basis of the conclusions of the trial court. 26 If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of the hands of an airline. What security then can a passenger have? It will always be an easy matter for an airline aided by its employees, to strike out the very stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the passenger had a schedule to fulfill? We have long learned that, as a rule, a written document speaks a uniform language; that spoken word could be notoriously unreliable. If only to achieve stability in the relations between passenger and air carrier,

adherence to the ticket so issued is desirable. Such is the case here. The lower courts refused to believe the oral evidence intended to defeat the covenants in the ticket. The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of distortions by the Court of Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to provoke an issue". 29And this because, as petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat and because from Saigon I was told again to see the Manager". 30 Why, then, was he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to the seat? 4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that Carrascoso's action is planted upon breach of contract; that to authorize an award for moral damages there must be an averment of fraud or bad faith;31 and that the decision of the Court of Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint bearing on this issue are: 3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable consideration, the latter acting as general agents for and in behalf of the defendant, under which said contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on defendant's plane during the entire duration of plaintiff's tour of Europe with Hongkong as starting point up to and until plaintiff's return trip to Manila, ... . 4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok, defendant furnished to the plaintiff First Class accommodation but only after protestations, arguments and/or insistence were made by the plaintiff with defendant's employees. 5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff only Tourist Class accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has been compelled by defendant's employees to leave the First Class accommodation berths at Bangkok after he was already seated. 6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments brought by defendant's breach of contract was forced to take a Pan American World Airways plane on his return trip from Madrid to Manila.32 xxx

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2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral damages in the amount of P30,000.00. 33 xxx

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The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when petitioner failed to furnish first class transportation at Bangkok; and Third, that there was bad faith when petitioner's employee compelled Carrascoso to leave his first class accommodation berth "after he was already, seated" and to take a seat in the tourist class, by reason of which he suffered inconvenience, embarrassments and humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad faith in the complaint. But, the inference of bad faith is there, it may be drawn

from the facts and circumstances set forth therein. 34 The contract was averred to establish the relation between the parties. But the stress of the action is put on wrongful expulsion. Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso was ousted by petitioner's manager who gave his seat to a white man; 35 and (b) evidence of bad faith in the fulfillment of the contract was presented without objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to whether or not there is sufficient averment in the complaint to justify an award for moral damages. Deficiency in the complaint, if any, was cured by the evidence. An amendment thereof to conform to the evidence is not even required. 36 On the question of bad faith, the Court of Appeals declared: That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the defendant Air France while at Bangkok, and was transferred to the tourist class not only without his consent but against his will, has been sufficiently established by plaintiff in his testimony before the court, corroborated by the corresponding entry made by the purser of the plane in his notebook which notation reads as follows: "First-class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene", and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of the plane who was asked by the manager of defendant company at Bangkok to intervene even refused to do so. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the plaintiff. It could have been easy for defendant to present its manager at Bangkok to testify at the trial of the case, or yet to secure his disposition; but defendant did neither. 37 The Court of appeals further stated — Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if the employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had already been taken, surely the plaintiff should not have been picked out as the one to suffer the consequences and to be subjected to the humiliation and indignity of being ejected from his seat in the presence of others. Instead of explaining to the white man the improvidence committed by defendant's employees, the manager adopted the more drastic step of ousting the plaintiff who was then safely ensconsced in his rightful seat. We are strengthened in our belief that this probably was what happened there, by the testimony of defendant's witness Rafael Altonaga who, when asked to explain the meaning of the letters "O.K." appearing on the tickets of plaintiff, said "that the space is confirmed for first class. Likewise, Zenaida Faustino, another witness for defendant, who was the chief of the Reservation Office of defendant, testified as follows: "Q How does the person in the ticket-issuing office know what reservation the passenger has arranged with you? A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959) In this connection, we quote with approval what the trial Judge has said on this point: Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to the seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove "any better", nay, any right on the part of the "white man" to the "First class"

seat that the plaintiff was occupying and for which he paid and was issued a corresponding "first class" ticket. If there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant could have easily proven it by having taken the testimony of the said Manager by deposition, but defendant did not do so; the presumption is that evidence willfully suppressed would be adverse if produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances, the Court is constrained to find, as it does find, that the Manager of the defendant airline in Bangkok not merely asked but threatened the plaintiff to throw him out of the plane if he did not give up his "first class" seat because the said Manager wanted to accommodate, using the words of the witness Ernesto G. Cuento, the "white man".38 It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the term "bad faith". But can it be doubted that the recital of facts therein points to bad faith? The manager not only prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his arbitrary will; he forcibly ejected him from his seat, made him suffer the humiliation of having to go to the tourist class compartment - just to give way to another passenger whose right thereto has not been established. Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different from what is understood in law. For, "bad faith" contemplates a "state of mind affirmatively operating with furtive design or with some motive of self-interest or will or for ulterior purpose." 39 And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of the Court of First Instance, thus: The evidence shows that the defendant violated its contract of transportation with plaintiff in bad faith, with the aggravating circumstances that defendant's Manager in Bangkok went to the extent of threatening the plaintiff in the presence of many passengers to have him thrown out of the airplane to give the "first class" seat that he was occupying to, again using the words of the witness Ernesto G. Cuento, a "white man" whom he (defendant's Manager) wished to accommodate, and the defendant has not proven that this "white man" had any "better right" to occupy the "first class" seat that the plaintiff was occupying, duly paid for, and for which the corresponding "first class" ticket was issued by the defendant to him.40 5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21 of the Civil Code says: ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42 6. A contract to transport passengers is quite different in kind and degree from any other contractual relation. 43 And this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give ground for an action for damages. Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees with kindness, respect, courtesy and due consideration. They are entitled to be protected

against personal misconduct, injurious language, indignities and abuses from such employees. So it is, that any rule or discourteous conduct on the part of employees towards a passenger gives the latter an action for damages against the carrier. 44 Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a tort, giving a right of action for its agent in the presence of third persons to falsely notify her that the check was worthless and demand payment under threat of ejection, though the language used was not insulting and she was not ejected." 46 And this, because, although the relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the act that breaks the contract may be also a tort". 47 And in another case, "Where a passenger on a railroad train, when the conductor came to collect his fare tendered him the cash fare to a point where the train was scheduled not to stop, and told him that as soon as the train reached such point he would pay the cash fare from that point to destination, there was nothing in the conduct of the passenger which justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and the Supreme Court of South Carolina there held the carrier liable for the mental suffering of said passenger.1awphîl.nèt Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier — a case of quasi-delict. Damages are proper. 7. Petitioner draws our attention to respondent Carrascoso's testimony, thus — Q You mentioned about an attendant. Who is that attendant and purser? A When we left already — that was already in the trip — I could not help it. So one of the flight attendants approached me and requested from me my ticket and I said, What for? and she said, "We will note that you transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to accepting my transfer." And I also said, "You are not going to note anything there because I am protesting to this transfer". Q Was she able to note it? A No, because I did not give my ticket. Q About that purser? A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I stood up and I went to the pantry that was next to me and the purser was there. He told me, "I have recorded the incident in my notebook." He read it and translated it to me — because it was recorded in French — "First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene." Mr. VALTE — I move to strike out the last part of the testimony of the witness because the best evidence would be the notes. Your Honor. COURT — I will allow that as part of his testimony. 49 Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook reading "First class passenger was forced to go to the tourist class against his will, and that the captain

refused to intervene" is predicated upon evidence [Carrascoso's testimony above] which is incompetent. We do not think so. The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry does not come within the proscription of the best evidence rule. Such testimony is admissible. 49a Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements then, in this environment, are admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement and mental and physical condition of the declarant". 51 The utterance of the purser regarding his entry in the notebook was spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes the operation of the hearsay rule. It forms part of the res gestae. At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no such entry was made, the deposition of the purser could have cleared up the matter. We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence. 8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary damages — in contracts and quasi- contracts. The only condition is that defendant should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of ejectment of respondent Carrascoso from his first class seat fits into this legal precept. And this, in addition to moral damages.54 9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment for attorneys' fees. The least that can be said is that the courts below felt that it is but just and equitable that attorneys' fees be given. 55 We do not intend to break faith with the tradition that discretion well exercised — as it was here — should not be disturbed. 10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial court. 56 The Court of Appeals did not interfere with the same. The dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and circumstances point to the reasonableness thereof. 57 On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We accordingly vote to affirm the same. Costs against petitioner. So ordered.

[G.R. Nos. 146710-15. April 3, 2001]

JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondents. [G.R. No. 146738. April 3, 2001]

JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, respondent.

RESOLUTION PUNO, J.: For resolution are petitioners Motion for Reconsideration in G.R. Nos. 146710-15 and Omnibus Motion in G.R. No. 146738 of the Courts Decision of March 2, 2001. In G.R. Nos. 146710-15, petitioner raises the following grounds: I. IT DISREGARDED THE CLEAR AND EXPLICIT PROVISIONS OF ART. XI, SECTION 3 (7) OF THE CONSTITUTION AND THE SETTLED JURISPRUDENCE THEREON. II. IT HELD THAT PETITIONER CAN BE PROSECUTED NOW, FOR THIS RULING WOULD VIOLATE THE DOUBLE JEOPARDY CLAUSE OF THE CONSTITUTION, CONSIDERING THAT PETITIONER WAS ACQUITTED IN THE IMPEACHMENT PROCEEDINGS. III. IT HELD THAT PETITIONER IS NO LONGER ENTITLED TO ABSOLUTE IMMUNITY FROM SUIT. IV. IT HELD THAT PETITIONERS DUE PROCESS RIGHTS TO A FAIR TRIAL HAVE NOT BEEN PREJUDICED BY PRE-TRIAL PUBLICITY. V. IT HELD THAT THERE IS NOT ENOUGH EVIDENCE TO WARRANT THE COURT TO ENJOIN THE PRELIMINARY INVESTIGATION OF THE INCUMBENT OMBUDSMAN, PETITIONER HAVING FAILED TO PROVE THE IMPAIRED CAPACITY OF THE OMBUDSMAN TO RENDER A BIASED FREE DECISION. In G.R. No. 146738, petitioner raises and argues the following issues: 1. WHETHER PETITIONER RESIGNED OR SHOULD BE CONSIDERED RESIGNED AS OF JANUARY 20, 2001; 2. WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR BEING VIOLATIVE OF THE FOLLOWING RULES ON EVIDENCE: HEARSAY, BEST EVIDENCE, AUTHENTICATION, ADMISSIONS AND RES INTER ALIOS ACTA; 3. WHETHER RELIANCE ON NEWSPAPER ACOUNTS IS VIOLATIVE OF THE HEARSAY RULE; 4. WHETHER CONGRESS POST FACTO CAN DECIDE PETITIONERS INABILITY TO GOVERN CONSIDERING SECTION 11, ARTICLE VII OF THE CONSTITUTION; and 5. WHETHER PREJUDICIAL PUBLICITY HAS AFFECTED PETITIONERS RIGHT TO FAIR TRIAL. We find the contentions of petitioner bereft of merit. I Prejudicial Publicity on the Court

Petitioner insists he is the victim of prejudicial publicity. Among others, he assails the Decision for adverting to newspaper accounts of the events and occurrences to reach the conclusion that he has resigned. In our Decision, we used the totality test to arrive at the conclusion that petitioner has resigned. We referred to and analyzed events that were prior, contemporaneous and posterior to the oath-taking of respondent Arroyo as president. All these events are facts which are well-established and cannot be refuted. Thus, we adverted to prior events that built up the irresistible pressure for the petitioner to resign.These are: (1) the expose of Governor Luis Chavit Singson on October 4, 2000; (2) the I accuse speech of then Senator Teofisto Guingona in the Senate; (3) the joint investigation of the speech of Senator Guingona by the Blue Ribbon Committee and the Committee on Justice; (4) the investigation of the Singson expose by the House Committee on Public Order and Security; (5) the move to impeach the petitioner in the House of Representatives; (6) the Pastoral Letter of Archbishop Jaime Cardinal Sin demanding

petitioners resignation; (7) a similar demand by the Catholic Bishops conference; (8) the similar demands for petitioners resignation by former Presidents Corazon C. Aquino and Fidel V. Ramos; (9) the resignation of respondent Arroyo as Secretary of the DSWD and her call for petitioner to resign; (10) the resignation of the members of petitioners Council of Senior Economic Advisers and of Secretary Mar Roxas III from the Department of Trade and Industry; (11) the defection of then Senate President Franklin Drilon and then Speaker of the House of Representatives Manuel Villar and forty seven (47) representatives from petitioners Lapiang Masang Pilipino; (12) the transmission of the Articles of Impeachment by Speaker Villar to the Senate; (13) the unseating of Senator Drilon as Senate President and of Representative Villar as Speaker of the House; (14) the impeachment trial of the petitioner; (15) the testimonies of Clarissa Ocampo and former Finance Secretary Edgardo Espiritu in the impeachment trial; (16) the 11-10 vote of the senator-judges denying the prosecutors motion to open the 2nd envelope which allegedly contained evidence showing that petitioner held a P3.3 billion deposit in a secret bank account under the name of Jose Velarde; (17) the prosecutors walkout and resignation; (18) the indefinite postponement of the impeachment proceedings to give a chance to the House of Representatives to resolve the issue of resignation of their prosecutors; (19) the rally in the EDSA Shrine and its intensification in various parts of the country; (20) the withdrawal of support of then Secretary of National Defense Orlando Mercado and the then Chief of Staff, General Angelo Reyes, together with the chiefs of all the armed services; (21) the same withdrawal of support made by the then Director General of the PNP, General Panfilo Lacson, and the major service commanders; (22) the stream of resignations by Cabinet secretaries, undersecretaries, assistant secretaries and bureau chiefs; (23) petitioners agreement to hold a snap election and opening of the controversial second envelope. All these prior events are facts which are within judicial notice by this Court. There was no need to cite their news accounts. The reference by the Court to certain newspapers reporting them as they happened does not make them inadmissible evidence for being hearsay. The news account only buttressed these facts as facts. For all his loud protestations, petitioner has not singled out any of these facts as false. We now come to some events of January 20, 2001 contemporaneous to the oath taking of respondent Arroyo. We used the Angara Diary to decipher the intent to resign on the part of the petitioner. Let it be emphasized that it is not unusual for courts to distill a persons subjective intent from the evidence before them. Everyday, courts ascertain intent in criminal cases, in civil law cases involving last wills and testaments, in commercial cases involving contracts and in other similar cases. As will be discussed below, the use of the Angara Diary is not prohibited by the hearsay rule. Petitioner may disagree with some of the inferences arrived at by the Court from the facts narrated in the Diary but that does not make the Diary inadmissible as evidence. We did not stop with the contemporaneous events but proceeded to examine some events posterior to the oathtaking of respondent Arroyo. Specifically, we analyzed the all important press release of the petitioner containing his final statement which was issued after the oath-taking of respondent Arroyo as president. After analyzing its content, we ruled that petitioners issuance of the press release and his abandonemnt of Malacaang Palace confirmed his resignation.[1] These are overt acts which leave no doubt to the Court that the petitioner has resigned. In light of this finding that petitioner has resigned before 12 oclock noon of Janaury 20, 2001, the claim that the office of the President was not vacant when respondent Arroyo took her oath of office at half past noon of the same day has no leg to stand on. We also reject the contention that petitioners resignation was due to duress and an involuntary resignation is no resignation at all. x x x [I]t has been said that, in determining whether a given resignation is voluntarily tendered, the element of voluntariness is vitiated only when the resignation is submitted under duress brought on by government action. The three-part test for such duress has been stated as involving the following elements: (1) whether one side involuntarily accepted the others terms; (2) whether circumstances permitted no other alternative; and (3) whether such circumstances were the result of coercive acts of the opposite side. The view has also been expressed that a resignation may be found involuntary if on the totality of the circumstances it appears that the employers conduct in requesting resignation effectively deprived the employer of free choice in the matter. Factors to be considered, under this test, are: (1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the choice he or she was given; (3) whether the employewe was given a reasonable time in which to choose; and (4) whether he or she was permitted to select the effective date of resignation. In applying this totality of the circumstances test, the assessment whether real alternatives were offered must be gauged by an objective standard rather than by the employees purely subjective evaluation; that the employee may perceive his or her only option to be resignation for example, because of concerns about his or her reputation is

irrelevant. Similarly, the mere fact that the choice is between comparably unpleasant alternatives for example, resignation or facing disciplinary charges does not of itself establish that a resignation was induced by duress or coercion, and was therefore involuntary. This is so even where the only alternative to resignation is facing possible termination for cause, unless the employer actually lacked good cause to believe that grounds for termination existed. In this regard it has also been said that a resignation resulting from a choice between resigning or facing proceedings for dismissal is not tantamount to discharge by coercion without procedural view if the employee is given sufficient time and opportunity for deliberation of the choice posed. Futhermore, a resignation by an officer charged with misconduct is not given under duress, though the appropriate authority has already determined that the officers alternative is termination, where such authority has the legal authority to terminate the officers employment under the particular circumstances, since it is not duress to threaten to do what one has the legal right to do, or to threaten to take any measure authorized by law and the circumstances of the case.[2] In the cases at bar, petitioner had several options available to him other than resignation. He proposed to the holding of snap elections. He transmitted to the Congress a written declaration of temporary inability. He could not claim he was forced to resign because immediately before he left Malacaang, he asked Secretary Angara: Ed, aalis na ba ako? which implies that he still had a choice of whether or not to leave. To be sure, pressure was exerted for the petitioner to resign. But it is difficult to believe that the pressure completely vitiated the voluntariness of the petitioners resignation. The Malacaang ground was then fully protected by the Presidential Security Guard armed with tanks and high-powered weapons. The then Chief of Staff, General Angelo Reyes, and other military officers were in Malacaang to assure that no harm would befall the petitioner as he left the Palace. Indeed, no harm, not even a scratch, was suffered by the petitioner, the members of his family and his Cabinet who stuck it out with him in his last hours. Petitioners entourage was even able to detour safely to the Municipal Hall of San Juan and bade goodbye to his followers before finally going to his residence in Polk Street, Greenhills. The only incident before the petitioner left the Palace was the stone throwing between a small group of pro and anti Erap rallyists which resulted in minor injuries to a few of them. Certainly, there were no tanks that rumbled through the Palace, no attack planes that flew over the presidential residence, no shooting, no large scale violence, except verbal violence, to justify the conclusion that petitioner was coerced to resign. II Evidentiary Issues

Petitioner devotes a large part of his arguments on the alleged improper use by this Court of the Angara Diary. It is urged that the use of the Angara Diary to determine the state of mind of the petitioner on the issue of his resignation violates the rule against the admission of hearsay evidence. We are unpersuaded. To begin with, the Angara diary is not an out of court statement. The Angara Diary is part of the pleadings in the cases at bar. Petitioner cannot complain he was not furnished a copy of the Angara Diary. Nor can he feign surprise on its use. To be sure, the said Diary was frequently referred to by the parties in their pleadings.[3] The three parts of the Diary published in the PDI from February 4-6, 2001 were attached as Annexes A-C, respectively, of the Memorandum of private respondents Romeo T. Capulong, et al., dated February 20, 2001. The second and third parts of the Diary were earlier also attached as Annexes 12 and 13 of the Comment of private respondents Capulong, et al., dated February 12, 2001. In fact, petitioner even cited in his Second Supplemental Reply Memorandum both the second part of the diary, published on February 5, 2001, [4] and the third part, published on February 6, 2001.[5] It was also extensively used by Secretary of Justice Hernando Perez in his oral arguments. Thus, petitioner had all the opportunity to contest the use of the Diary but unfortunately failed to do so. Even assuming arguendo that the Angara Diary was an out of court statement, still its use is not covered bythe hearsay rule.[6] Evidence is called hearsay when its probative force depends, in whole or in part, on the competency and credibility of some persons other than the witness by whom it is sought to produce it. [7] There are three reasons for excluding hearsay evidence: (1) absence of cross examination; (2) absence of demeanor evidence, and (3) absence of the oath.[8] Not at all hearsay evidence, however, is inadmissible as evidence. Over the years, a huge body of hearsay evidence has been admitted by courts due to their relevance, trustworthiness and necessity. [9] The emergence of these exceptions and their wide spread acceptance is well-explained by Weinstein, Mansfield, Abrams and Berger as follows:

xxx On the other hand, we all make decisions in our everyday lives on the basis of other persons accounts of what happened, and verdicts are usually sustained and affirmed even if they are based on hearsay erroneously admitted, or admitted because no objection was made. See Shepp v. Uehlinger, 775 F 2d 452, 454-455 (1st Cir. 1985) (hearsay evidence alone can support a verdict). Although volumes have been written suggesting ways to revise the hearsay rule, no one advocates a rule that would bar all hearsay evidence. Indeed, the decided historical trend has been to exclude categories of highly probative statements from the definition of hearsay (sections 2 and 3, infra), and to develop more class exceptions to the hearsay rule (sections 4-11, infra). Furthermore, many states have added to their rules the residual, or catch-all, exceptions first pioneered by the Federal Rules which authorize the admission of hearsay that does not satisfy a class exception, provided it is adequately trustworthy and probative (section 12, infra). Moreover, some commentators believe that the hearsay rule should be abolished altogether instead of being loosened. See, e.g., Note, The Theoretical Foundation of the Hearsay Rules, 93 Harv.L.Rev. 1786, 1804-1805, 1815 (1980) (footnotes omitted): The Federal Rules of Evidence provide that [a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Under this structure, exclusion is justified by fears of how the jury will be influenced by the evidence. However, it is not traditional to think of hearsay as merely a subdivision of this structure, and the Federal Rules do not conceive of hearsay in that manner. Prejudice refers to the jurys use of evidence for inferences other than those for which the evidence is legally relevant; by contrast, the rule against hearsay questions the jurys ability to evaluate the strength of a legitimate inference to be drawn from the evidence. For example, were a judge to exclude testimony because a witness was particularly smooth or convincing, there would be no doubt as to the usurpation of the jurys function. Thus, unlike prejudices recognized by the evidence rules, such as those stemming from racial or religious biases or from the introduction of photographs of a victims final state, the exclusion of hearsay on the basis of misperception strikes at the root of the jurys function by usurping its power to process quite ordinary evidence, the type of information routinely encountered by jurors in their everyday lives. Since virtually all criteria seeking to distinguish between good and bad hearsay are either incoherent, inconsistent, or indeterminate, the only altenative to a general rule of admission would be an absolute rule of exclusion, which is surely inferior. More important, the assumptions necessary to justify a rule against hearsay seem insupportable and, in any event, are inconsistent with accepted notions of the function of the jury. Therefore, the hearsay rules should be abolished. Some support for this view can be found in the limited empirical research now available which is, however, derived from simulations that suggests that admitting hearsay has little effect on trial outcomes because jurors discount the value of hearsay evidence. See Rakos & Landsman, Researching the Hearsay Rule: Emerging Findings, General Issues, and Future Directions, 76 Minn.L.Rev. 655 (1992); Miene, Park, & Borgidas, Jury Decision Making and the Evaluation of Hearsay Evidence, 76 Minn.L.Rev. 683 (1992); Kovera, Park, & Penrod, Jurors Perceptions of Eyewitness and Hearsay Evidence, 76 Minn.L.Rev. 703 (1992); Landsman & Rakos, Research Essay: A Preliminary Empirical Enquiry Concerning the prohibition of Hearsay Evidence in American Courts, 15 Law & Psychol. Rev. 65 (1991). Others, even if they concede that restrictions on hearsay have some utility, question whether the benefits outweigh the cost: The cost of maintaining the rule is not just a function of its contribution to justice. It also includes the time spent on litigating the rule. And of course this is not just a cost voluntarily borne by the parties, for in our system virtually all the cost of the court salaries, administrative costs, and capital costs are borne by the public. As expensive as litigation is for the parties, it is supported by an enormous public subsidy. Each time a hearsay question is litigated, the public pays. The rule imposes other costs as well. Enormous time is spent teaching and writing about the hearsay rule, which are both costly enterprises. In some law schools, students spend over half their time in

evidence classes learning the intricacies of the hearsay rule, and enormous academic resources are expended on the rule. Allen, Commentary on Professor Friendmans Article: The Evolution of the Hearsay Rule to a Rule of Admission, 76 Minn.L.Rev. 797, 800 [1992] (but would abolish rule only in civil cases). See also Friedman, Toward a Partial Economic, Game-Theoretic Analysis of Hearsay, 76 Minn. L. Rev. 723 (1992). [10] A complete analysis of any hearsay problem requires that we further determine whether the hearsay evidence is one exempted from the rules of exclusion. A more circumspect examination of our rules of exclusion will show that they do not cover admissions of a party and the Angara Diary belongs to this class. Section 26 of Rule 130 provides that the act, declaration or omission of a party as to a relevant fact may be given in evidence against him.[11] It has long been settled that these admissions are admissible even if they are hearsay. Retired Justice Oscar Herrera of the Court of Appeals cites the various authorities who explain why admissions are not covered by the hearsay rule:[12] Wigmore, after pointing out that the partys declaration has generally the probative value of any other persons asssertion, argued that it had a special value when offered against the party. In that circumstance, the admission discredits the partys statement with the present claim asserted in pleadings and testimony, much like a witness impeached by contradictory statements. Moreover, he continued, admissions pass the gauntlet of the hearsay rule, which requires that extrajudicial assertions be excluded if there was no opportunity for the opponent to crossexamine because it is the opponents own declaration, and he does not need to cross examine himself. Wigmore then added that the Hearsay Rule is satisfied since the party now as opponent has the full opportunity to put himself on the stand and explain his former assertion. (Wigmore on evidence, Sec. 1048 (Chadbourn Rev. 1972), cited in Sec. 154, McCormick) According to Morgan: The admissibility of an admission made by the party himself rests not upon any notion that the circumstances in which it was made furnish the trier means of evaluating it fairly, but upon the adversary theory of litigation. A party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath. A mans acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not. (U.S. vs. Ching Po, 23 Phil. 578, 583). The Angara Diary contains direct statements of petitioner which can be categorized as admissions of a party: his proposal for a snap presidential election where he would not be a candidate; his statement that he only wanted the five-day period promised by Chief of Staff Angelo Reyes; his statements that he would leave by Monday if the second envelope would be opened by Monday and Pagod na pagod na ako. Ayoko na, masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I dont want any more of this its too painful. Im tired of the red tape, the bureaucracy, the intrigue). I just want to clear my name, then I will go. We noted that days before, petitioner had repeatedly declared that he would not resign despite the growing clamor for his resignation. The reason for the meltdown is obvious - - - his will not to resign has wilted. It is, however, argued that the Angara Diary is not the diary of the petitioner, hence, non-binding on him. The argument overlooks the doctrine of adoptive admission. An adoptive admission is a partys reaction to a statement or action by another person when it is reasonable to treat the partys reaction as an admission of something stated or implied by the other person.[13] Jones explains that the basis for admissibility of admissions made vicariously is that arising from the ratification or adoption by the party of the statements which the other person had made.[14] To use the blunt language of Mueller and Kirkpatrick, this process of attribution is not mumbo jumbo but common sense.[15] In the Angara Diary, the options of the petitioner started to dwindle when the armed forces withdrew its support from him as President and commander-in-chief. Thus, Executive Secretary Angara had to ask Senate President Pimentel to advise petitioner to consider the option of dignified exit or resignation. Petitioner did not object to the suggested option but simply said he could never leave the country. Petitioners silence on this and other related suggestions can be taken as an admission by him.[16]

Petitioner further contends that the use of the Angara diary against him violated the rule on res inter alios acta. The rule is expressed in section 28 of Rule 130 of the Rules of Court, viz: The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. Again, petitioner errs in his contention. The res inter alios acta rule has several exceptions. One of them is provided in section 29 of Rule 130 with respect to admissions by a co-partner or agent. Executive Secretary Angara as such was an alter ego of the petitioner. He was the Little President. Indeed, he was authorized by the petitioner to act for him in the critical hours and days before he abandoned Malacaang Palace. Thus, according to the Angara Diary, the petitioner told Secretary Angara: Mula umpisa pa lang ng kampanya, Ed, ikaw na lang pinakikinggan ko. At hanggang sa huli, ikaw pa rin. (Since the start of the campaign, Ed, you have been the only one Ive listened to. And now at the end, you still are.)[17] This statement of full trust was made by the petitioner after Secretary Angara briefed him about the progress of the first negotiation. True to this trust, the petitioner had to ask Secretary Angara if he would already leave Malacaang after taking their final lunch on January 20, 2001 at about 1:00 p.m. The Angara Diary quotes the petitioner as saying to Secretary Angara: ed, kailangan ko na bang umalis? (Do I have to leave now?) [18] Secretary Angara told him to go and he did. Petitioner cannot deny that Secretary Angara headed his team of negotiators that met with the team of the respondent Arroyo to discuss the peaceful and orderly transfer of power after his relinquishment of the powers of the presidency. The Diaryshows that petitioner was always briefed by Secretary Angara on the progress of their negotiations. Secretary Angara acted for and in behalf of the petitioner in the crucial days before respondent Arroyo took her oath as President. Consequently, petitioner is bound by the acts and declarations of Secretary Angara. Under our rules of evidence, admissions of an agent (Secretary Angara) are binding on the principal (petitioner).[19] Jones very well explains the reasons for the rule, viz: What is done, by agent, is done by the principal through him, as through a mere instrument. So, whatever is said by an agent, either in making a contract for his principal, or at the time and accompanying the performance of any act within the scope of his authority, having relation to, and connected with, and in the course of the particular contract or transaction in which he is then engaged, or in the language of the old writers, dum fervet opus is, in legal effect, said by his principal and admissible in evidence against such principal.[20] Moreover, the ban on hearsay evidence does not cover independently relevant statements. These are statements which are relevant independently of whether they are true or not. They belong to two (2) classes: (1) those statements which are the very facts in issue, and (2) those statements which are circumstantial evidence of the facts in issue. The second class includes the following:[21] a. Statement of a person showing his state of mind, that is, his mental condition, knowledge, belief, intention, ill will and other emotions; b. Statements of a person which show his physical condition, as illness and the like; c. Statements of a person from which an inference may be made as to the state of mind of another, that is, the knowledge, belief, motive, good or bad faith, etc. of the latter; d. Statements which may identify the date, place and person in question; and e. Statements showing the lack of credibility of a witness. Again, Jones tells us why these independently relevant statements are not covered by the prohibition against hearsay evidence:[22] 1088. Mental State or Condition Proof of Knowledge.- There are a number of comon issues, forming a general class, in proof of which hearsay is so obviously necessary that it is not customary to refer to its admissibility as by virtue of any exception to the general exclusionary rule. Admissibility, in such cases, is as of course. For example, where any mental state or condition is in issue, such as motive, malice, knowledge, intent, assent or dissent, unless direct testimony of the particular person is to be taken as conclusive of his state of mind, the only method of proof available is testimony of others to the acts or statements of such person. Where his acts or statements are against his interest, they are plainly admissible within the rules hereinabove announced as to admissions against interest. And even where not against interest, if they are so closely connected with the event or transaction in issue as to constitute one of the very facts in controversy, they become admissible of necessity.

As aforediscussed, The Angara Diary contains statements of the petitioner which reflect his state of mind and are circumstantial evidence of his intent to resign. It also contains statements of Secretary Angara from which we can reasonably deduce petitioners intent to resign. They are admissible and they are not covered by the rule on hearsay. This has long been a quiet area of our law on evidence and petitioners attempt to foment a belated tempest cannot receive our imprimatur. Petitioner also contends that the rules on authentication of private writings and best evidence were violated in our Decision, viz: The use of the Angara diary palpably breached several hornbook rules of evidence, such as the rule on authentication of private writings xxx A. Rule on Proof of Private Writings Violated The rule governing private documents as evidence was violated. The law provides that before any private writing offered as authentic is received in evidence, its due execution and authenticity must be proved either: a) by anyone who saw the document executed or written, or b) by evidence of the genuineness of the signature or handwriting of the maker. xxx B. Best Evidence Rule Infringed Clearly, the newspaper reproduction is not the best evidence of the Angara diary. It is secondary evidence, of dubious authenticity. It was however used by this Honorable Court without proof of the unavailability of the original or duplicate original of the diary. The Best Evidence Rule should have been applied since the contents of the diary are the subject of inquiry. The rule is that, except in four (4) specific instances, [w]hen the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself.[23] Petitioners contention is without merit. In regard to the Best Evidence rule, the Rules of Court provides in sections 2 to 4 of Rule 130, as follows: Sec. 2. Documentary evidence. Documents as evidence consist of writings or any material containing letters, words, numbers, figures or other modes of written expressions offered as proof of their contents. Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office. Sec. 4. Original of document. (a) The original of a document is one the contents of which are the subject of inquiry.

(b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. (c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. It is true that the Court relied not upon the original but only copy of the Angara Diary as published in the Philippine Daily Inquirer on February 4-6, 2001. In doing so, the Court, did not, however, violate the best evidence rule. Wigmore, in his book on evidence, states that: Production of the original may be dispensed with, in the trial courts discretion, whenever in the case in hand the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production.[24] xxx In several Canadian provinces, the principle of unavailability has been abandoned, for certain documents in which ordinarily no real dispute arised. This measure is a sensible and progressive one and deserves universal adoption (post, sec. 1233). Its essential feature is that a copy may be used unconditionally, if the opponent has been given an opportunity to inspect it. (empahsis supplied) Franciscos opinion is of the same tenor, viz: Generally speaking, an objection by the party against whom secondary evidence is sought to be introduced is essential to bring the best evidence rule into application; and frequently, where secondary evidence has been admitted, the rule of exclusion might have successfully been invoked if proper and timely objection had been taken. No general rule as to the form or mode of objecting to the admission of secondary evidence is set forth. Suffice it to say here that the objection should be made in proper season that is, whenever it appears that there is better evidence than that which is offered and before the secondary evidence has been admitted. The objection itself should be sufficiently definite to present a tangible question for the courts consideration. [25] He adds: Secondary evidence of the content of the writing will be received in evidence if no objection is made to its reception.[26] In regard to the authentication of private writings, the Rules of Court provides in section 20 of Rule 132, viz: Sec. 20. Proof of private document. Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be. On the rule of authentication of private writings, Francisco states that: A proper foundation must be laid for the admission of documentary evidence; that is, the identity and authenticity of the document must be reasonably established as a pre-requisite to its admission. (Rouw v. Arts, 174 Ark. 79, 294 S.W. 993, 52 A.L.R. 1263, and others) However, a party who does not deny the genuineness of a proffered instrument may not object that it was not properly identified before it was admitted in evidence. (Strand v. Halverson, 220 Iowa 1276, 264 N.W. 266, 103 A.L.R. 835). [27]

Petitioner cites the case of State prosecutors v. Muro,[28] which frowned on reliance by courts on newspaper accounts. In that case, Judge Muro was dismissed from the service for relying on a newspaper account in dismissing eleven (11) cases against Mrs. Imelda Romualdez Marcos. There is a significant difference, however, between the Muro case and the cases at bar. In the Muro case, Judge Muro dismissed the cases against Mrs. Marcos on the basis of a newspaper account without affording the prosecution the basic opportunity to be heard on the matter by way of a written comment or on oral argument. . .(this is) not only a blatant denial of elementary due process to the Government but is palpably indicative of bad faith and partiality. In the instant cases, however, the petitioner had an opportunity to object to the admissibility of the Angara Diary when he filed his Memorandum dated February 20, 2001, Reply Memorandum dated February 22, 2001, Supplemental Memorandum dated February 23, 2001, and Second Supplemental memorandum dated February 24, 2001. He was therefore not denied due process. In the words of Wigmore, supra, petitioner had been given an opportunity to inspect the Angara Diary but did not object to its admissibility. It is already too late in the day to raise his objections in an Omnibus Motion, after the Angara Diary has been used as evidence and a decision rendered partly on the basis thereof. III Temporary Inability

Petitioner argues that the Court misinterpreted the meaning of section 11, Article VII, of the Constitution in that congress can only decide the issue of inability when there is a variance of opinion between a majority of the Cabinet and the President. The situation presents itself when majority of the Cabinet determines that the President is unable to govern; later, the President informs Congress that his inability has ceased but is contradicted by a majority of the members of the Cabinet. It is also urged that the presidents judgment that he is unable to govern temporarily which is thereafter communicated to the Speaker of the House and the President of the Senate is the political question which this Court cannot review. We cannot sustain the petitioner. Lest petitioner forgets, he himself made the submission in G.R. No. 146738 that Congress has the ultimate authority under the Constitution to determine whether the President is incapable of performing his functions in the manner provided for in section 11 of Article VII.[29] We sustained this submission and held that by its many acts, Congress has already determined and dismissed the claim of alleged temporary inability to govern proffered by petitioner. If petitioner now feels aggrieved by the manner Congress exercised its power, it is incumbent upon him to seek redress from Congress itself. The power is conceded by the petitioner to be with Congress and its alleged erroneous exercise cannot be corrected by this Court. The recognition of respondent Arroyo as our de jure president made by Congress is unquestionably a political judgment. It is significant that House Resolution No. 176 cited as the bases of its judgment such factors as the peoples loss of confidence on the ability of former President Joseph Ejercito Estrada to effectively govern and the members of the international community had extended their recognition of Her Excellency, Gloria MacapagalArroyo as President of the Republic of the Philippines and it has a constitutional duty of fealty to the supreme will of the people x x x. This political judgment may be right or wrong but Congress is answerable only to the people for its judgment. Its wisdom is fit to be debated before the tribunal of the people and not before a court of justice. Needles to state, the doctrine of separation of power constitutes an inseparable bar against this courts interposition of its power of judicial review to review the judgment of Congress rejecting petitioners claim that he is still the President, albeit on leave and that respondent Arroyo is merely an acting President. Petitioner attempts to extricate himself from his submission that Congress has the ultimate authority to determine his inability to govern, and whose determination is a political question by now arguing that whether one is a de jure or de facto President is a judicial question. Petitioners change of theory, ill disguised as it is, does not at all impress. The cases at bar do not present the general issue of whether the respondent Arroyo is the de jure or a de facto President. Specific issues were raised to the Court for resolution and we ruled on an issue by issue basis. On the issue of resignation under section 8, Article VII of the Constitution, we held that the issue is legal and ruled that petitioner has resigned from office before respondent Arroyo took her oath as President. On the issue of inability to govern under section 11, Article VII of the Constitution, we held that the Congress has the ultimate authority to determine the question as opined by the petitioner himself and that the determination of Congress is a political judgment which this Court cannot review. Petitioner cannot blur these specific rulings by the generalization that whether one is a de jure or de facto President is a judicial question.

Petitioner now appears to fault Congress for its various acts expressed thru resolutions which brushed off his temporary inability to govern and President-on-leave argument. He asserts that these acts of Congress should not be accorded any legal significance because: (1) they are post facto and (2) a declaration of presidential incapacity cannot be implied. We disagree. There is nothing in section 11 of Article VII of the Constitution which states that the declaration by Congress of the Presidents inability must always be a priori or before the Vice-President assumes the presidency. In the cases at bar, special consideration should be given to the fact that the events which led to the resignation of the petitioner happened at express speed and culminated on a Saturday. Congress was then not in session and had no reasonable opportunity to act a priori on petitioners letter claiming inability to govern. To be sure, however, the petitioner cannot strictly maintain that the President of the Senate, the Honorable Aquilino Pimentel, Jr. and the then Speaker of the House of Representatives, the Honorable Arnulfo P. Fuentebella, recognized respondent Arroyo as the constitutional successor to the presidency post facto. Petitioner himself states that his letter alleging his inability to govern was received by the Office of the Speaker on January 20, 2001 at 8:30 A.M. and the Office of the Senate at 9 P.M. of the same day. [30] Respondent took her oath of office a few minutes past 12 oclock in the afternoon of January 20. Before the oath-taking, Senate President Pimentel, Jr. and Speaker Fuentebella had prepared a Joint Statement which states:[31] Joint Statement of Support and Recognition from the Senate President and the Speaker Of the House of Representatives We, the elected leaders of the Senate and the House of Representatives, are called upon to address the constitutional crisis affecting the authority of the President to effectively govern our distressed nation. We understand that the Supreme Court at that time is issuing an en banc resolution recognizing this political reality. While we may differ on the means to effect a change of leadership, we however, cannot be indifferent and must act resolutely. Thus, in line with our sworn duty to represent our people and in pursuit of our goals for peace and prosperity to all, we, the Senate President and the Speaker of the House of Representatives, hereby declare our support and recognition to the constitutional successor to the Presidency. We similarly call on all sectors to close ranks despite our political differences. May God bless our nation in this period of new beginnings. Mabuhay and Pilipinas at ang mamamayang Pilipino. (Sgd.) AQUILINO PIMENTEL, JR. Senate President (Sgd.) ARNULFO P. FUENTEBELLA Speaker of the House of Representatives This a priori recognition by the President of the Senate and the Speaker of the House of Representatives of respondent Arroyo as the constitutional successor to the presidency was followed post facto by various resolutions of the Senate and the House, in effect, confirming this recognition. Thus, Resolution No. 176 expressed x x x the support of the House of Representatives to the assumption into office by Vice-President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its congratulations and expressing its support for her administration as a partner in the attainment of the nations goal under the Constitution. [32] Resolution No. 82 of the Senate and Resolution No. 178 of the House of Representatives both confirmed the nomination of then Senator Teofisto Guingona, Jr., as Vice-President.[33] It also passed Resolution No. 83 declaring the impeachment court functus officio.[34] Both Houses sent bills to respondent Arroyo to be signed by her into law as President of the Philippines.[35] These acts of Congress, a priori and post facto, cannot be dismissed as merely implied recognitions of respondent Arroyo, as the President of the Republic. Petitioners insistence that respondent Arroyo is just a de facto President because said acts of Congress x x x are mere circumstances of acquiescence calculated to induce people to submit to respondents exercise of the powers of the presidency[36] is a guesswork far divorced from reality to deserve further discussion. Similarly way off the mark is petitioners point that while the Constitution has made Congress the national board of canvassers for presidential and vice-presidential elections, this Honorable Court nonetheless remains the sole judge in presidential and vice presidential contests.[37] He thus postulates that such constitutional provision[38] is indicative of the desire of the sovereign people to keep out of the hands of Congress questions as to the legality of a persons claim to the presidential office. [39] Suffice to state that the inference is illogical. Indeed,

there is no room to resort to inference. The Constitution clearly sets out the structure on how vacancies and election contest in the office of the President shall be decided. Thus, section 7 of Article VII covers the instance when (a) the President-elect fails to qualify, (b) if a President shall not have been chosen and (c) if at the beginning of the term of the President, the President-elect shall have died or shall have become permanently disabled. Section 8 of Article VII covers the situation of the death, permanent disability, removal from office or resignation of the President. Section 11 of Article VII covers the case where the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office. In each case, the Constitution specifies the body that will resolve the issues that may arise from the contingency. In case of election contest, section 4, Article VII provides that the contests shall be resolved by this Court sitting en banc. In case of resignation of the President, it is not disputed that this Court has jurisdiction to decide the issue. In case of inability to govern, section 11 of Article VII gives the Congress the power to adjudge the issue and petitioner himself submitted this thesis which was shared by this Court. In light of these clear provisions of the Constitution, it is inappropriate, to say the least, for petitioner to make inferences that simply distort their meanings. IV

Impeachment and Absolute Immunity

Petitioner contends that this Court disregarded section 3 (7) of Article XI of the Constitution which provides: (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted should nevertheless be liable and subject to prosecution, trial and punishment according to law. Petitioner reiterates the argument that he must be first convicted in the impeachment proceedings before he could be criminally prosecuted. A plain reading of the provision will not yield this conclusion. The provision conveys two uncomplicated ideas: first, it tells us that judgment in impeachment cases has a limited reach. . .i.e., it cannot extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, and second, it tells us the consequence of the limited reach of a judgment in impeachment proceedings considering its nature, i.e., that the party convicted shall still be liable and subject to prosecution, trial and punishment according to law. No amount of manipulation will justify petitioners non sequitur submission that the provision requires that his conviction in the impeachment proceedings is a condition sine qua non to his prosecution, trial and punishment for the offenses he is now facing before the respondent Ombudsman. Petitioner contends that the private and public prosecutors walk out from the impeachment proceedings should be considered failure to prosecute on the part of the public and private prosecutors, and the termination of the case by the Senate is equivalent to acquittal.[40] He explains failure to prosecute as the failure of the prosecution to prove the case, hence dismissal on such grounds is a dismissal on the merits.[41] He then concludes that dismissal of a case for failure to prosecute amounts to an acquittal for purposes of applying the rule against double jeopardy.[42] Without ruling on the nature of impeachment proceedings, we reject petitioners submission. The records will show that the prosecutors walked out in the January 16, 2001 hearing of the impeachment cases when by a vote of 11-10, the Senator-judges refused to open the second envelope allegedly containing the P3.3 billion deposit of the petitioner in a secret bank account under the name Jose Velarde. The next day, January 17, the public prosecutors submitted a letter to the Speaker of the House tendering their resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment tribunal. Senator Raul Roco immediately moved for the indefinite suspension of the impeachment proceedings until the House of Representatives shall have resolved the resignation of the public prosecutors. The Roco motion was then granted by Chief Justice Davide, Jr. Before the House could resolve the issue of resignation of its prosecutors or on January 20, 2001, petitioner relinquished the presidency and respondent Arroyo took her oath as President of the Republic. Thus, on February 7, 2001, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio.

Prescinding from these facts, petitioner cannot invoke double jeopardy. Double jeopardy attaches only: (1) upon a valid complaint; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5) when the defendant was acquitted or convicted or the case was dismissed or otherwise terminated without the express consent of the accused.[43] Assuming arguendo that the first four requisites of double jeopardy were complied with, petitioner failed to satisfy the fifth requisite for he was not acquitted nor was the impeachment proceeding dismissed without his express consent.Petitioners claim of double jeopardy cannot be predicated on prior conviction for he was not convicted by the impeachment court. At best, his claim of previous acquittal may be scrutinized in light of a violation of his right to speedy trial, which amounts to a failure to prosecute. As Bernas points out, a failure to prosecute, which is what happens when the accused is not given a speedy trial, means failure of the prosecution to prove the case. Hence, dismissal on such grounds is a dismissal on the merits.[44] This Court held in Esmea v. Pogoy[45], viz: If the defendant wants to exercise his constitutional right to a speedy trial, he should ask, not for the dismissal, but for the trial of the case. After the prosecutions motion for postponement of the trial is denied and upon order of the court the fiscal does not or cannot produce his evidence and, consequently fails to prove the defendants guilt, the court upon defendants motion shall dismiss the case, such dismissall amounting to an acquittal of the defendant. In a more recent case, this Court held: It is true that in an unbroken line of cases, we have held that the dismissal of cases on the ground of failure to prosecute is equivalent to an acquittal that would bar further prosecution of the accused for the same offense. It must be stressed, however, that these dismissals were predicated on the clear right of the accused to speedy trial. These cases are not applicable to the petition at bench considering that the right of the private respondents to speedy trial has not been violated by the State. For this reason, private respondents cannot invoke their right against double jeopardy.[46] Petitioner did not move for the dismissal of the impeachment case against him. Even assuming arguendo that there was a move for its dismissal, not every invocation of an accuseds right to speedy trial is meritorious. While the Court accords due importance to an accuseds right to a speedy trial and adheres to a policy of speedy administration of justice, this right cannot be invoked loosely. Unjustified postponements which prolong the trial for an unreasonable length of time are what offend the right of the accused to speedy trial. [47] The following provisions of the Revised Rules of Criminal Procedure are apropos: Rule 115, Section 1(h). Rights of accused at the trial. -- In all criminal prosecutions, the accused shall be entitled to the following rights: (h) To have speedy, impartial and public trial. Rule 119, Section 2. Continuous trial until terminated; postponements.-- Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable length of time for good cause. The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court. Petitioner therefore failed to show that the postponement of the impeachment proceedings was unjustified, much less that it was for an unreasonable length of time. Recalling the facts, on January 17, 2001, the impeachment proceeding was suspended until the House of Representatives shall have resolved the issue on the resignation of the public prosecutors. This was justified and understandable for an impeachment proceeding without a panel of prosecutors is a mockery of the impeachment process. However, three (3) days from the suspension or January 20, 2001, petitioners resignation supervened.With the sudden turn of events, the impeachment court became functus officio and the proceedings were therefore terminated. By no stretch of the imagination can the four-day period from the time the impeachment proceeding was suspended to the day petitioner resigned, constitute an unreasonable period of delay violative of the right of the accused to speedy trial.

Nor can the claim of double jeopardy be grounded on the dismissal or termination of the case without the express consent of the accused. We reiterate that the impeachment proceeding was closed only after the petitioner had resigned from the presidency, thereby rendering the impeachment court functus officio. By resigning from the presidency, petitioner more than consented to the termination of the impeachmment case against him, for he brought about the termination of the impeachment proceedings. We have consistently ruled that when the dismissal or termination of the case is made at the instance of the accused, there is no double jeopardy.[48] Petitioner stubbornly clings to the contention that he is entitled to absolute immunity from suit. His arguments are merely recycled and we need not prolong the longevity of the debate on the subject. In our Decision, we exhaustively traced the origin of executive immunity in our jurisdiction and its bends and turns up to the present time. We held that given the intent of the 1987 Constitution to breathe life to the policy that a public office is a public trust, the petitioner, as a non-sitting President, cannot claim executive immunity for his alleged criminal acts committed while a sitting President. Petitioners rehashed arguments including their thinly disguised new spins are based on the rejected contention that he is still President, albeit, a President on leave. His stance that his immunity covers his entire term of office or until June 30, 2004 disregards the reality that he has relinquished the presidency and there is now a new de jure President. Petitioner goes a step further and avers that even a non-sitting President enjoys immunity from suit during his term of office. He buttresses his position with the deliberations of the Constitutional Commission, viz: Mr. Suarez. Thank you. The last question is with reference to the Committees omitting in the draft proposal the immunity provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out this second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the President shall be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing litigations, as the President-in-exile in Hawaii is now facing litigations almost daily? Fr. Bernas: The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit. Mr. Suarez: So there is no need to express it here. Fr. Bernas: There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and to add other things. Mr. Suarez; On the understanding, I will not press for any more query, madam President. I thank the Commissioner for the clarification.[49] Petitioner, however, fails to distinguish between term and tenure. The term means the time during which the officer may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds office. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. [50] From the deliberations, the intent of the framers is clear that the immunity of the president from suit is concurrent only with his tenure and not his term. Indeed, petitioners stubborn stance cannot but bolster the belief that the cases at bar were filed not really for petitioner to reclaim the presidency but just to take advantage of the immunity attached to the presidency and thus, derail the investigation of the criminal cases pending against him in the Office of the Ombudsman. V

Prejudicial Publicity on the Ombudsman

Petitioner hangs tough on his submission that his due process rights to a fair trial have been prejudiced by pretrial publicity. In our Decision, we held that there is not enough evidence to sustain petitioners claim of prejudicial publicity. Unconvinced, petitioner alleges that the vivid narration of events in our Decision itself proves the pervasiveness of the prejudicial publicity. He then posits the thesis that doubtless, the national fixation with the probable guilt of petitioner fueled by the hate campaign launched by some high circulation newspaper and by the bully pulpit of priests and bishops left indelible impression on all sectors of the citizenry and all regions, so harsh and so pervasive that the prosecution and the judiciary can no longer assure petitioner a sporting chance.[51] To be sure, petitioner engages in exageration when he alleges that all sectors of the citizenry and all regions have been irrevocably influenced by this barrage of prejudicial publicity. This exaggeration collides with petitioners claim that he still enjoys the support of the majority of our people, especially the masses. Petitioner pleads that we apply the doctrine of res ipsa loquitur (the thing or the transaction speaks for itself) to support his argument. Under the res ipsa loquitur rule in its broad sense, the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, and present a question of fact for defendant to meet with an explanation. [52] It is not a rule of substantive law but more a procedural rule. Its mere invocation does not exempt the plaintiff with the requirement of proof to prove negligence. It merely allows the plaintiff to present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence and to thereby place on the defendant the burden of going forward with the proof. [53] We hold that it is inappropriate to apply the rule on res ipsa loquitur, a rule usually applied only in tort cases, to the cases at bar. Indeed, there is no court in the whole world that has applied the res ipsa loquitur rule to resolve the issue of prejudicial publicity. We again stress that the issue before us is whether the alleged pervasive publicity of the cases against the petitioner has prejudiced the minds of the members of the panel of investigators. We reiterate the test we laid down in People v. Teehankee,[54] to resolve this issue, viz: We cannot sustain appellants claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accuseds right to a fair trial for, as well pointed out , a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field x x x. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as hey happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lost their impartiality. x x x x x x x x x. Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality. At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden.

Petitioner keeps on pounding on the adverse publicity against him but fails to prove how the impartiality of the panel of investigators from the Office of the Ombudsman has been infected by it. As we held before and we hold it again, petitioner has completely failed to adduce any proof of actual prejudice developed by the members of the Panel of Investigators. This fact must be established by clear and convincing evidence and cannot be left to loose surmises and conjectures. In fact, petitioner did not even identify the members of the Panel of Investigators. We cannot replace this test of actual prejudice with the rule of res ipsa loquitur as suggested by the petitioner. The latter rule assumes that an injury (i.e., prejudicial publicity) has been suffered and then shifts the burden to the panel of investigators to prove that the impartiality of its members has been affected by said publicity. Such a rule will overturn our case law that pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The cases are not wanting where an accused has been acquitted despite pervasive publicity.[55] For this reason, we continue to hold that it is not enough for petitioner to conjure possibility of prejudice but must prove actual prejudice on the part of his investigators for the Court to sustain his plea. It is plain that petitioner has failed to do so. Petitioner agains suggests that the Court should order a 2-month cooling off period to allow passions to subside and hopefully the alleged prejudicial publicity against him would die down. We regret not to acquiesce to the proposal. There is no assurance that the so called 2-month cooling off period will achieve its purpose. The investigation of the petitioner is a natural media event. It is the first time in our history that a President will be investigated by the Office of the Ombudsman for alleged commission of heinous crimes while a sitting President. His investigation will even be monitored by the foreign press all over the world in view of its legal and historic significance. In other words, petitioner cannot avoid the kleiglight of publicity. But what is important for the petitioner is that his constitutional rights are not violated in the process of investigation. For this reason, we have warned the respondent Ombudsman in our Decision to conduct petitioners preliminary investigation in a circus-free atmosphere. Petitioner is represented by brilliant legal minds who can protect his right as an accused. VI

Recusation

Finally, petitioner prays that the members of this Honorable Court who went to EDSA put on record who they were and consider recusing or inhibiting themselves, particularly those who had ex-parte contacts with those exerting pressure on this Honorable Court, as mentioned in our Motion of March 9, 2001, given the need for the cold neutrality of impartial judges.[56] We hold that the prayer lacks merit. There is no ground to inhibit the twelve (12) members of the Court who merely accepted the invitation of the respondent Arroyo to attend her oath taking. As mere spectators of a historic event, said members of the Court did not prejudge the legal basis of the claim of respondent Arroyo to the presidency at the time she took her oath. Indeed, the Court in its en banc resolution on January 22, 2001, the first working day after respondent Arroyo took her oath as President, held in Administrative Matter No. 01-1-05 SC, to wit: A.M. No. 01-1-05-SC In re: Request for Vice President Gloria Macapagal-Arroyo to Take Her Oath of Office as President of the Republic of the Philippines before the Chief Justice Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which request was treated as an administrative matter, the court Resolved unanimously to confirm the authority given by the twelve (12) members of the Court then present to the Chief Justice on January 20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001. This resolution is without prejudice to the disposition of any justiciable case that may be filed by a proper party. The above resolution was unanimously passed by the 15 members of the Court. It should be clear from the resolution that the Court did not treat the letter of respondent Arroyo to be administered the oath by Chief Justice Davide, Jr., as a case but as an administrative matter. If it were considered as a case, then petitioner has reason to fear that the Court has predetermined the legitimacy of the claim of respondent Arroyo to the presidency. To

dispel the erroneous notion, the Court precisely treated the letter as an administrative matter and emphasized that it was without prejudice to the disposition of any justiciable case that may be filed by a proper party. In further clarification, the Court on February 20, 2001 issued another resolution to inform the parties and the public that it xxx did not issue a resolution on January 20, 2001 declaring the office of the President vacant and that neither did the Chief Justice issue a press statement justifying the alleged resolution. Thus, there is no reason for petitioner to request for the said twelve (12) justices to recuse themselves. To be sure, a motion to inhibit filed by a party after losing his case is suspect and is regarded with general disfavor. Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to the deprivation of the judicial power of the court itself. It affects the very heart of judicial independence.[57] The proposed mass disqualification, if sanctioned and ordered, would leave the Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the participation of its entire membership of Justices.[58] IN VIEW WHEREOF, petitioners Motion for Reconsideration in G.R. Nos. 146710-15 and his Omnibus Motion in G.R. No. 146738 are DENIED for lack of merit. SO ORDERED.

[G.R. No. 122290. April 6, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. REYNALDO BAGO y MADRID, accusedappellant, ARMANDO CAPARAS y CUENCO and RODOLFO ONGSECO y VEGO, accused. DECISION PUNO, J.: Appellant REYNALDO BAGO was charged with qualified theft, while his co-accused ARMANDO CAPARAS and RODOLFO ONGSECO were charged with simple theft, in an Information[1] which reads: "That sometime during the period from January 1992 to March 23, 1992, in Quezon City, Philippines, REYNALDO BAGO y MADRID, being then employed as factory worker of the Azkcon Metal Industries detailed with the Power Construction Supply Company located at No. 130 Judge Juan Luna Street, San Francisco del Monte, this City, and as such has free access to the different departments of the company, with grave abuse of confidence, in conspiracy with his co-accused ARMANDO CAPARAS and RODOLFO ONGSECO y VEGO, conspiring together, confederating with and mutually helping one another, with intent to gain and without the knowledge and consent of the owner thereof, did then and there wilfully, unlawfully and feloniously take, steal and carry away assorted cold rolled sheets and scraps valued in the total amount of P194,865.00, Philippine Currency, belonging to Power Construction Supply Company, represented by WILLIAM HILO, to the damage and prejudice of the owner thereof in the aforementioned amount. "CONTRARY TO LAW." Appellant and his co-accused pled not guilty. Trial ensued.

Appellant was an employee of Azkcon Metal Industries (Azkcon for brevity) from 1988 to 1992. He started working as a factory worker and later became a machine operator and a truck helper. From 1991 to 1992, he served as team leader at the cutting department under the supervision of Material Comptroller WILLIAM HILO who kept track of all the materials coming in and going out of the companys plant in Kalookan City.[2] Azkcon has a business arrangement with Power Construction Supply Company (Power Construction) whereby Azkcon buys cold rolled sheets from the latter. These cold rolled sheets are also cut by Power Construction for a fee and Azkcon converts them into drums or containers. Appellants job was to go to Power Constructions establishment in Quezon City to oversee the cutting of the cold rolled sheets and ensure their delivery to Azkcon using the trucks sent by Hilo. [3] On April 21, 1992, appellant and his co-workers[4] went to Power Construction and loaded two cold rolled sheets in a truck owned by Azkcon.[5] Before entering the premises of Azkcon, appellant presented to security guard RUBEN DE LA CRUZ MANANGAN two receipts,[6] both dated April 21, 1992, covering the cold rolled sheets from Power Construction. Manangan inspected the contents of the truck. As everything was accounted for, Manangan stamped on the two receipts covering the materials. Appellant then presented a third receipt,[7] with Invoice No. 51111, dated March 23, 1992, for stamping. Manangan likewise stamped the third receipt. As the third receipt bore a different date, Manangan asked appellant if the materials covered by said receipt were in the truck. Appellant replied that the materials had long been delivered. Manangan did not investigate further but later reported the incident to the Chief of Security Department, AFLOR ONG. Ong checked the third receipt and when he failed to find the materials listed thereon, he reported to Hilo.[8] Upon receipt of the report, Hilo discreetly conducted a more in-depth investigation. He found out that the materials covered by the third receipt, worth P192,000.00, were not delivered to Azkcon. He checked the third receipt and the gate pass of Power Construction for March 23, 1992 - the date of the questioned transaction - and discovered that the truck used by appellant on said date did not belong to Azkcon. It also turned out that the subject materials had already been paid for by Azkcon.[9] Power Constructions security guard, JUN GAVARAN, confirmed that on March 23, 1992, appellant and his companions picked up cold rolled sheets from Power Construction and loaded them in a truck. The truck did not bear the logo of Azkcon. Gavaran noted on a ledger that the truck came at 2:15 p.m. and left at 3:35 p.m. Hilo did not immediately report the matter to his superior. He chose to wait for appellant to commit a similar misdemeanor and catch him red-handed. He waited in vain. He then decided to inform his superiors about the theft in May 1992. Hilo was directed to report the theft and file a complaint with the police authorities. A police team, led by SPO3 ALFREDO ALFARO, investigated appellant at Azkcon. Appellant insisted that the materials covered by the third receipt had been delivered to Azkcon. The investigation of appellant continued at the police station. PO3 Andres Balod interrogated appellant. Appellant asked for a lawyer and was brought to the Integrated Bar of the Philippines (IBP) where he was assisted by Atty. Florimond C. Rous. Atty. Rous talked to him and inquired if he was willing to give a statement to the police. The interrogation then proceeded and appellant admitted his participation in the theft. He disclosed that his cohorts on May 23, 1992 were ARMANDO CAPARAS and RODOLFO ONGSECO, former employees of Azkcon. He revealed that they usually loaded the stolen materials in a truck rented by Caparas and Ongseco. He received P10,000 to P35,000[10] for his participation in the different thefts.[11] Appellant affixed his signature on the written statement.[12] After the investigation, PO3 Balod referred the case to Fiscal Paragua. h Y The next day, the police went to Malinta, Valenzuela and apprehended accused Caparas and Ongseco. It was appellant who pointed out the residence of Caparas and Ongseco to the police. The two identified a

certain Chua as the alleged buyer of the stolen goods. The police invited Chua for investigation. Inexplicably, the investigation of Chua was not reduced to writing. [13] Appellant denied participation in the crime charged. He described his job as team leader at the cutting department of Azkcon. He said that Hilo would order him to proceed to Power Construction Supply to oversee the cutting and procurement of the materials needed by Azkcon. Hilo would then instruct him to wait for his call and the arrival of their truck at Power Construction Supply. They would usually use Azkcons trucks, but at other times, Hilo would rent trucks from others. [14] As soon as the truck would arrive at the premises of the supplier, the driver would ask for appellant. He would then load the materials in the truck and would show the receipts covering the materials to the security guard of Power Construction Supply for stamping. The materials inside the truck would be counterchecked against the quantity and quality stated in the receipts. Appellant would then return to Azkcon usually at about 4:00 p.m. Thus, he would mainly stay at the suppliers premises to oversee the cutting of the cold rolled sheets.[15] Appellant claimed he does not know prosecution witness Jun Gavaran, the security guard of Philippine Construction Supply. He also denied knowing accused Caparas and Ongseco. Allegedly, he saw them for the first time at the police station. He admitted knowing prosecution witnesses Manangan and Ong. He acknowledged that he had no quarrel with Gavaran, Manangan and Ong.[16] On May 21, 1992, four (4) policemen in civilian clothes arrested him without a warrant while working in Azkcon. They told him that Hilo filed a complaint against him. He was detained at the La Loma police station. Hilo came and pointed him as the one responsible for the theft but without informing him what he stole. Upon orders of Hilo, the policemen started to beat him. They forced him to admit the crime. They also compelled him to give a statement but he refused. [17] The next day, the policemen and Hilo brought him to Valenzuela. Hilo indicated to the policemen the residence of accused Caparas and Ongseco. That was the first time he saw his co-accused.[18] Then, the policemen forced appellant to go to the IBP office in Quezon City. They gave him Atty. Rous as counsel although he insisted on hiring his own counsel. Atty. Rous never conferred with him. No investigation was conducted at the IBP. The police did not ask him a single question. Without reading his prepared statement, he signed it as the police threatened to harm him. He acknowledged his signatures on the invoices marked as Exhibits "A" to "D",[19] but claimed he could not recall the circumstances under which he signed them.[20] After seven (7) days at the La Loma police station, he was taken to the Fiscals Office in Quezon City. The inquest fiscal did not talk to him. He was asked about the voluntariness of his signature in his extrajudicial confession.[21] Thereafter, he was brought back to the station.[22] Appellants father, PABLO BAGO, testified that on June 15, 1992, he went to the NBI to seek protection for his son as they were receiving threats from Hilo and police officers Balod and Alfaro. Days later, Hilo, Alfaro and Balod went to his house in Quezon City looking for appellant. Hilo warned that appellant should admit the crime lest something untoward would happen to him.[23] Again, after his sons arraignment, a certain Col. Hernandez visited their house and insisted on taking appellant to Azkcon. Pablo refused, arguing that the case had already been filed in court. [24] On another occasion, Col. Hernandez and his lady friend dropped by his house and convinced him and his son to talk to Mr. King, the owner of Azkcon. During their meeting, Mr. King allegedly told Pablo that he knew that appellant was innocent but asked him to testify against the persons responsible for the crime. Pablo replied that they would think about the proposal.[25] Mr. Kings lawyer, Atty. Capistrano, also gave him the same advice.

Atty. Capistrano requested them to go to his office where appellant could execute a statement. Instead of going there, Pablo and the appellant proceeded to the office of appellants lawyer. [26] Allegedly, appellant was maltreated while in the custody of the police. Pablo claimed that he reported the physical abuse to the NBI.[27] Prosecutions rebuttal witness ATTY. FLORIMUND C. ROUS, free legal aid counsel of IBP, testified that on May 22, 1992, appellant was brought to their office for the execution of his extra-judicial confession. As a matter of procedure, he first examined the body of appellant to determine any sign of physical abuse or maltreatment while the latter was in police custody. Finding none, he inquired from appellant whether he was willing to confess to the commission of the theft. Beforehand, he already informed appellant of the consequence of his confession, i.e., that it could be used against him. Nonetheless, appellant affirmed his willingness to execute a written confession. Thus, the policeman proceeded to take the statement of appellant. Appellant signed his extrajudicial confession [28] in his (Atty. Rous) presence. Rebuttal witness ATTY. MELANIO CAPISTRANO testified that he was Azkcons legal counsel. He confirmed that a conference was held at Azkcon premises in connection with the theft. Present were appellant, Pablo Bago, Mr. King and a former employee of Azkcon. Due to the complexity of the modus operandi, Mr. King suspected that appellant had other companions in committing the theft. Mr. King then informed him that appellant had agreed to turn state witness. Appellant confessed that his supervisor William Hilo, a certain Severino Encarnacion and his co-accused Ongseco and Caparas took part in the heist. Allegedly, Encarnacion was the brains behind the theft; Hilo took care of the operations on the Azkcon side, while Ongseco and Caparas took care of the procurement of the stolen goods. Atty. Capistrano expressed reservations about the involvement of Hilo as he was the one who reported the theft to the management. After the conference, he advised appellant to consult his own lawyer and execute a statement so he could determine if they would use appellant as a state witness. Prior to his arraignment, appellant was told that he should decide whether he wanted to be a state witness. In their next scheduled meeting, appellant and his lawyer, Atty. Jambora, failed to appear. [29] On sur-rebuttal, Pablo Bago insisted that on July 1992, Col. Hernandez went to Pearanda, Nueva Ecija and took pictures of his house. Col. Hernandez invited him and appellant to go to Azkcon. They refused as appellant had already posted bail at that time. Atty. Capistrano, on the other hand, insisted that appellant should name the other employees involved in the theft so that they could be dismissed from the company.[30] On April 26, 1995, the Regional Trial Court of Quezon City[31] convicted appellant of qualified theft. Accused Caparas and Ongseco were acquitted for insufficiency of evidence. The dispositive portion of the decision[32] reads: "WHEREFORE, in view of all the foregoing, the Court finds accused REYNALDO BAGO y MADRID guilty beyond reasonable doubt as principal of the crime of Qualified Theft as defined and penalized under Article 308, in relation to Article 309, paragraph 1 and Article 310 of the Revised Penal Code, and hereby sentences said accused to an indeterminate penalty of imprisonment ranging from Twenty (20) years and One (1) day of Reclusion Perpetua as minimum to Twenty-Eight (28) years, Ten (10) months and One (1) day of Reclusion Perpetua as maximum, with the accessory penalties of the law and to indemnify the complainant in the sum of P194,865.00, representing the value of the stolen cold rolled sheets, without subsidiary imprisonment in case of insolvency, and to pay the costs. "Accused ARMANDO CAPARAS Y CUENCO and RODOLFO ONGSECO Y VEGO are hereby ACQUITTED for insufficiency of evidence. "SO ORDERED."

Appellant moved for reconsideration of the trial courts decision. The motion was denied for lack of merit,[33] although the dispositive portion of the trial courts decision was amended, thus: "WHEREFORE, in view of all the foregoing reasons, the Motion for Reconsideration is hereby DENIED for lack of merit. "Pursuant to People vs. Conrado Lucas (240 SCRA 66), [the] dispositive portion of the decision is hereby modified but only insofar as accused Reynaldo Bago is concerned to read as follows: "WHEREFORE, in view of all the foregoing, the Court finds accused Reynaldo Bago y Madrid GUILTY beyond reasonable doubt as principal in the crime of Qualified Theft as defined and penalized under Article 309, paragraph 1 and Article 310 of the Revised Penal Code, and hereby sentences said accused to the penalty of reclusion perpetua, with the accessory penalties of the law, and to indemnify the complainant in the sum of P194,865.00, representing the value of the stolen cold rolled sheets, without subsidiary imprisonment in case of insolvency, with costs. "SO ORDERED." The Appellants Brief raises two issues, to wit: Misoedp I. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF QUALIFIED THEFT BASED ON CIRCUMSTANTIAL EVIDENCE PRESENTED BY THE PROSECUTION. II. THE TRIAL COURT ERRED IN CONCLUDING THAT THE PROSECUTION HAS PROVEN THE GUILT OF THE ACCUSED, REYNALDO BAGO, BEYOND REASONABLE DOUBT. We affirm with modification. Appellant contends that the prosecution failed to prove even by circumstantial evidence that he asported the cold rolled sheets in question. He asserts that these materials were delivered to Azkcon as evidenced by the receipt[34] duly stamped by the guard on duty. He states: "x x x [T]he best evidence that the materials were actually delivered at Azkcon Metal Industries is the receipt duly stamped by the guard on duty. Res ipsa loquitor. To receive the testimony of the security guard, that he stamped the receipt even without the goods because he trusted the accused, would set a precedent that will eventually convict an innocent person. After duly stamping the receipt, it is very easy for the security guard to claim otherwise to avoid liability."[35] Appellant also contends that his task was to oversee the delivery of the materials from their supplier to Azkcon. Allegedly, it was erroneous to conclude that he stole the materials just because they could not be found in its premises as he was not responsible for any material lost therein.

Lastly, appellant belittles the documents showing that the truck he used in taking out the materials from Power Construction on March 23, 1992 did not belong to Azkcon. He claims that said documents had no bearing on his culpability. Scjuris We reject these contentions. Mis-edp First. Appellant, in effect, assails the testimony of Ruben Manangan, the security guard who stamped the receipt marked as Exhibit "C", on the ground that the receipt itself shows that the materials were delivered to Azkcon. Appellant argues that the receipt is the best evidence and should be given more credence than Manangans testimony. Appellants argument is bereft of merit for Manangans testimony is corroborated by another witness, William Hilo, Material Comptroller of Azkcon who kept track of all materials coming in and going out of Azkcons plant. He testified that on April 21, 1992, he received three (3) receipts but only two (2) materials were delivered to Azkcons premises. The receipt marked as Exhibit "C" covered the missing materials. Manangans testimony is further corroborated by two (2) pieces of documentary evidence: first, by Power Construction Supply Co. Gatepass Invoice No. 51111 dated March 22, 1992[36] which shows that the materials covered by Exhibit "C" were taken out by appellant from the premises of Power Construction Supply on March 23, 1992, about a month before the receipt was stamped; and second, by a document from Power Construction Supply dated March 23, 1992 containing information about the truck used in pulling out the materials from Power Construction Supply on said date. The truck bore license plate no. PRC-513 and was not owned by Azkcon. The truck belonged to a certain Ruel Fernando who had no contractual relation with Azkcon and said vehicle was not to be used to take out materials from Power Construction Supply. In view of these corroborations, we hold that the trial court did not err in giving credence to Manangans testimony despite the receipt. Es m Appellant can not rely on the best evidence rule which states: Msesm "SEC. 3. Original document must be produced; exceptions. - When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and Exsm (d) When the original is a public record in the custody of a public officer or is recorded in a public office."[37] The rule cannot be invoked unless the content of a writing is the subject of judicial inquiry, in which case, the best evidence is the original writing itself. The rule pertains to the admissibility of secondary evidence to prove the contents of a document. In the case at bar, no secondary evidence is offered to prove the content of a document. What is being questioned by appellant is the weight given by the trial court to the testimony of Manangan over the receipt which on its face shows that the materials in question were delivered to Azkcons premises. Clearly, the best evidence rule finds no application on this issue. Es msc Second. It is well settled that before conviction can be based on circumstantial evidence, the circumstances proved should constitute an unbroken chain of events which leads to one fair and reasonable conclusion pointing to the defendant, to the exclusion of others, as the author of the

crime.[38] Thus, the following requisites must be met: 1) there must be more than one circumstance; 2) the facts from which the inferences are derived are proven; 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[39] In the case at bar, the trial court convicted the appellant based on this chain of events: Court "1. Azkcon Metal Industries is engaged in metal business and for this purpose contracted a business arrangement with Power Construction Supply whereby Azkcon purchases the cold rolled sheets from the latter and the cold rolled sheets are cut by Power Construction Supply; "2. Accused Bago is a trusted employee of Azkcon and detailed with Power Construction Supply Company in charge of the Cutting Department; and that as such he was authorized by Mr. William Hilo, Controller Manager of Azkcon, to pull out from the Power Construction Supply the cut materials and to deliver the same to Azkcon; "3. On April 21, 1992, accused Bago, together with his co-employees, Danilo Baylosis and Candido Querobin entered the Azkcon premises with deliveries of two cold rolled sheets loaded in the truck. Security Guard Manangan inspected the materials in the truck and after confirming that the materials were loaded in the truck, he stamped the receipts upon request of accused Bago. Thereafter, accused Bago brought out another receipt and requested Security Guard Manangan to likewise stamp the same. Security Guard Manangan checked the goods covered by the third receipt and found there were no cold rolled sheets for the third receipt. The third receipt carried a different date. Security Guard Manangan asked accused Bago as to the whereabouts of the materials covered by the third receipt and the latter replied that they had long been delivered. Nevertheless, Security Guard Manangan stamped this last receipt because he trusted that accused would not do anything bad; "4. On April 21, 1992, William Hilo, the material controller of Azkcon, discovered that there were three (3) receipts which came in, but only two materials were delivered inside the company compound. The materials covered by the two (2) receipts were delivered but the materials covered by the third receipt were not. Hilo conducted an inventory and asked accused Bago the whereabouts of the materials in question. Accused Bago insisted that the materials had long been delivered. Hilo proceeded with his investigation and was able to secure from the Power Construction Supply Company Gatepass Invoice No. 51111 dated March 22, 1992 (Exh. "D") which shows that the materials covered by the third receipt were taken out by accused Bago from the premises of Power Construction Supply on March 23, 1992; J lexj "5. Hilo was able to secure from Power Construction Supply a document dated March 23, 1992 (Exh. "E") which contained information on the truck used in pulling out the materials from Power Construction Supply on March 22, 1992 (sic). The truck bears Plate No. PRC-513 and is not owned by Azkcon. As per copy of the certificate of registration secured from the Land Transportation Office, the truck is owned by a certain Ruel Fernando who has no contractual relations with Azkcon. Said vehicle is likewise not authorized to pull out materials from the Power Construction Supply." The trial court concluded that the foregoing circumstances lead to a reasonable conclusion that appellant asported the materials covered by Exhibit "C". We agree. Misact

Appellant cannot rely on the fact that the third receipt was duly stamped by security guard Ruben Manangan on April 21, 1992. Manangan explained well why he stamped the receipt. He said: [40] "Q: On April 21, 1992, did you report for work as security guard at AZKCON Metal Industries? A: Yes, sir. Q: And was there any unusual incident that transpired on that day, if you recall? A: There was a truck which was carrying two (2) cold rolled sheets. xxxxxxxxx Q: By the way, who were with (sic) the truck which carried the (2) cold rolled sheets which you mentioned? A: Bago sir. Esmm is xxxxxxxxx Q: Now, when this truck came [in], with Reynaldo Bago with Bailosis and Querubin, carrying deliveries of two (2) cold rolled sheets, what happened after that, if anything happened? A: After I inspected the two (2) cold rolled sheets, I stamped the receipts for them. Q: Before you stamped the receipts for these two (2) cold rolled sheets, did you make sure that the goods were there? A: Yes sir. Q: What happened after that? A: After I stamped the two (2) receipts, he brought out another receipt which they asked me to stamp also. Q: By the way, who asked you to stamp the two (2) receipts covering the two (2) cold rolled sheets loaded in the truck? A: Bago sir. xxxxxxxxx COURT xxxxxxxxx Q: And who was the one who brought out this other receipt for stamping? A: Bago sir.

Q: And what did he tell you, if he told you anything about this receipt? A: He said "please put a stamp on this receipt". Q: Did you? A: Yes, because I trusted him. Lexj uris Q: And did you also check whether the goods covered by this 3rd receipt was (sic) in the truck unloaded? A: Sir there was no cold rolled sheet for that receipt. Q: And why did you stamp this receipt for cold rolled sheets for that receipt? (sic) A: Because I trusted him that he would not do anything bad. xxxxxxxxx Q: Now, in spite of the fact that your personal knowledge of the person Reynaldo Bago was in the course of your performance of your duty, including Reynaldo Bago (sic), you would like to impress upon us that in spite of that you trusted him? ATTY. CAPISTRANO: Argumentative, your Honor. Kyle COURT: Witness may answer. A: Yes sir. Q: In spite of the fact that the 3rd receipt according to you, when you inspected it, there was no cold rolled sheets covering "Exhibit "C"? A: No material sir. Mis-oedp Q: In spite of the fact that you did not find any Cold Rolled Sheets material you still honored the receipt by affixing you signature after you stamped it, correct? A: Yes sir, but when I saw the receipt it had a different date. Q: xxx [D]id you ask Reynaldo Bago "why is it a different date" and "why are there no Cold Rolled Sheets is (sic) the 3rd receipt"? A: I asked him "where these materials are" and he told me that it has (sic) long been delivered. Q: Now did you ask him where it was (sic) delivered and what place of AZKCON did he deposit these Cold Rolled Sheets which are (sic) covered by this 3rd receipt?

A: No, sir. Q: Now with regards (sic) to your duty as security guard, did you call the attention of the management about this 3rd receipt with no Cold Rolled Sheets and you stamped the receipt knowing that there was (sic) no materials inside. Did you ask the management, the president, the manager, the foreman or whoever it is (sic) on duty at the time? A: I reported it to our chief Aflor Ong. Ed-pm-is Q: Who is this Aflor Ong? A: Chief."[41] The fact of non-delivery of the subject materials to Azkcon was established through the testimony of two other witnesses, namely, William Hilo and the Chief Security Officer Aflor Ong. Hilo declared:[42] "ATTY. CAPISTRANO Q: On April 21 (1992), would you please tell us what happened on that date? A: On April 21, the materials arrived and the guard checked it (sic) and I checked it (sic) also. We found out that there were three (3) receipts but there were only two (2) materials inside the company. Q: How did you come to know this, Mr. Witness? Calrsc A: It was reported by the OIC of the Security Guard, sir. Q: You spoke of three (3) receipts, did you come to see these receipts? A: Yes, sir. Q: If I will show you them again (sic), will you be able to identify the same? A: Yes, sir. Q: I am showing to you these receipts which was (sic) previously marked as Exhibits "A", "B" and "C", are these the three (3) receipts which you mentioned a while ago? A: Yes, sir. Q: Would you kindly take a look at these receipts and tell the Honorable Court, which particular receipt is controversial in the sense that the goods described therein did not enter your company premises? ATTY. HAMBON: (sic) I will object to that, Your Honor, incompetent. COURT:

The witness may answer. (The witness is examining the document) INTERPRETER: Witness is pointing to Exhibits "A" and "B", as the one with the materials arrived (sic) and pointed to Exhibit "C" as the controversial receipt. ATTY. CAPISTRANO: xxxxxxxxx Q: For how long have you known Reynaldo Bago? A: Since (sic) two (2) years, sir. Q: What is the specific function of Reynaldo Bago in your company? A: Reynaldo Bago is in charge of Cutting Department. Q: As a Material Controller, do you have any supervision of (sic) Reynaldo Bago? A: Yes, sir. Q: By the way, at the bottom portion of Exhibits "A", "B" and "C", there appears a signature, can you go over this (sic) and tell the Honorable Court, whose signatures stated (sic) therein? A: This is a signature of Reynaldo Bago. INTERPRETER: Witness is pointing to a signature on Exhibit "A". Jle-xj ATTY. CAPISTRANO: Which I request, You Honor, to be marked as Exhibit "A-2". COURT: Mark it. Esmsc ATTY. CAPISTRANO: Q: How about in Exhibit "B"? A: The same it was the signature of Reynaldo Bago. ATTY. CAPISTRANO:

At this juncture, Your Honor, may I request that this portion be marked as Exhibit "B-2". Q: How about Exhibit "C"? A: The same Mr. Reynaldo Bagos signature. ATTY. CAPISTRANO: May I request, Your Honor, that the pointed portion of Exhibit "C", be marked in evidence as Exhibit "C-2". Q: Why do you know that these are the signature (sic) of Reynaldo Bago? A: Because I am in charge of Reynaldo Bago, and I know his signature. Q: If Reynaldo Bago is in Court, can you point to him? INTERPRETER: Calrky Witness is pointing to a person who identified himself as Reynaldo Madrid Bago. ATTY. CAPISTRANO: Q: You said that this matter was reported to you by the OIC of the Security Guard, (sic) when this matter was reported to you, what step or steps did you take, if any? A: I conducted an actual inventory and confronted Reynaldo Bago and asked him where are (sic) the materials which is (sic) in question. Q: You said that your (sic) conducted an actual inventory what was your findings in your inventory? A: According to my findings the materials did not reach the company. ATTY. HAMBON: (sic) Your Honor, may I request that [that] portion be stricken-off the record. COURT: The witness may answer, place that on record. ATTY. CAPISTRANO: When you said that according to your findings that (sic) the materials did not arrive, to what particular receipt are (sic) you referring to? Misedp This one, sir. INTERPRETER:

Witness is pointing to Exhibit "C". Q: You said that you confronted Reynaldo Bago, what transpired during your confrontation? A: He told me that the material arrived long before but when I checked it out, I found out that it didnt arrived" (sic). Prosecution witness Aflor Ong testified as follows:[43] "Q: And would you kindly inform this Honorable Court whether there is any unusual incident that transpired on April 21, 1992 as you were then performing your duty as chief security guard. A: About the receipts of materials delivered, Sir. Q: Would you kindly elaborate on that? A: There were 3 receipts but only two (2) items were delivered. Q: And how did you come to know this? A: It was reported to me by the security guard on duty. Q: And who was this security guard who reported the matter to you? A: Security guard Ruben Manangan, Sir. Q: And when this matter was reported to you, what did you do, if you did anything? A: I checked it also and after I checked, I reported it to William Hilo. Q: What precisely did you check? A: The items. Q: Did you find these items for the 3rd receipt? A: None, Sir. xxxxxxxxx Q: Now according to you, on April 21, 1992 you were at AZKCON Metal Industries? A: Yes Sir. Q: And your attention was invited on the first two receipts, containing the Cold Rolled Materials? ATTY. CAPISTRANO:

Misleading your Honor. COURT: Three (3) Receipts. Q: Your attention was invited by 3 receipts. A: After the guard reported it to me, Sir. Q: Who was this guard who reports (sic) to you? ATTY. CAPISTRANO: Already answered your Honor. COURT: Witness may answer. A: Ruben Manangan. Q: What time did he make the report? A: Four to Five in the afternoon Sir. Q: And what was the report all about? A: About two (2) cold rolled sheets, Sir. Q: What is it? A: Only two (2) cold rolled sheets were delivered, one is (sic) missing. Q: And, of course, the security guard showed to you the 3rd receipt which did not cover the materials in the cargo truck? ATTY. CAPISTRANO: Misleading again, your Honor. COURT: Witness may answer. A: Witness may answer (sic). Q: You are, of course, referring to Exhibit "C"? A: Yes, Sir.

Q: At the time the report was shown to you, did you inspect the truck? A: Yes, Sir. Scslx Q: And you did not find actually the materials? A: I did not find the material covering this Exhibit "C". Q: Covering the 3rd receipt? A: Yes, Sir. Q: After you inspected, what action did you take, because it was reported to you by the security guard? A: I reported it to Mr. William Hilo, the one in-charge of the materials."[44] The trial court correctly found that appellant was a trusted employee of Azkcon. He was in-charge of overseeing the cutting of the materials at Power Construction and ensuring their delivery to Azkcon. Due to this trust, he succeeded in withdrawing from the said supplier the cold rolled sheets covered by Exhibits "A" and "B" dated April 21, 1992 and Exhibit "C" (Invoice No. 51111), dated March 23, 1992. Appellant signed these receipts to signify that he obtained the materials from the supplier. However, only the materials covered by Exhibits "A" and "B" were delivered to Azkcon on April 21, 1992. Those covered by Exhibit "C" were not delivered. Significantly, the materials procured on April 21, 1992 were delivered that same day, as shown by the stamp marks on Exhibits "A" and "B". In contrast, the materials he took from the supplier on March 23, 1992 could not be found in the premises of Azkcon and there was no evidence that he delivered them on said date or on any other day thereafter. Inexplicably, appellant presented the third receipt (Invoice No. 51111) dated March 23, 1992 for stamping only on April 21, 1992. The reasonable conclusion is that he asported the materials covered by Exhibit "C". Clearly, all the elements of theft were established, to wit: (1) there was a taking of personal property; (2) the property belongs to another; (3) the taking was without the consent of the owner; (4) the taking was done with intent to gain; and (5) the taking was accomplished without violence or intimidation against the person or force upon things.[45] As the theft was committed with grave abuse of confidence, appellant is guilty of qualified theft. Third. We now come to the correctness of the penalty imposed on appellant. The trial court sentenced the appellant to suffer the penalty of reclusion perpetua. In its Comment, the Office of the Solicitor General opined that the penalty was erroneous. It noted that: "The present case falls under Article 308, in relation to Article 309, paragraph one (1) and Article 310 of the Revised Penal Code, for the purpose of determining the penalty to be imposed on appellant. x x x. "Since the lower court found that the value of the thing stolen was P194,865.00, the penalty prescribed in this case, had it been a case of simple theft, is imprisonment of 20 years corresponding to reclusion temporal. Since the offense was committed with grave abuse of confidence, then the prescribed penalty for qualified theft proven in this case is death, which is the penalty next higher by two degrees than the given penalty for simple theft above mentioned. In which event, this case is subject further to the rules provided in Article 74, in relation to Article 40 of the Revised Penal Code. They provide:

ART. 74. Penalty higher than reclusion perpetua in certain cases In cases in which the law prescribes a penalty higher than another given penalty, without specifically designating the name of the former, if such higher penalty should be that of death, the same penalty and the accessory penalties of article 40, shall be considered as the next higher penalty. xxxxxxxxx ART. 40. Death Its accessory penalties The death penalty, when it is not executed by reason of commutation or pardon, shall carry with it that of perpetual absolute disqualification and that of civil interdiction during the thirty years following the date of the sentence, unless such accessory penalties have been expressly remitted in the pardon.' Consequently, the penalty actually prescribed in this case for the crime of qualified theft is twenty (20) years of reclusion temporal, together with the accessory penalties of perpetual absolute disqualification and that of civil interdiction during thirty (30) years following the date of the sentence. "Since this case is subject to the Indeterminate Sentence Law, the determination of the maximum and minimum ranges of the sentence is governed by rules contained in the analogous case of People v. Pabalan, to wit: Applying the mandate of the Indeterminate Sentence Law, the maximum penalty shall therefore be taken from the maximum period of said basic penalty in Article 315 as augmented by the additional years of imprisonment, while the minimum term of the indeterminate sentence shall be within the range of the penalty next lower in degree to that provided by law, without considering the incremental penalty for the amounts in excess of P22,000.00. xxx' Based on the foregoing considerations, the penalty imposed on appellant should fall within the minimum range of prision correccional in its medium and maximum periods, with a duration of two (2) years, four (4) months and (1) day to six (6) years, and twenty (20) years of reclusion temporal with the accessory penalties of death, as maximum. It is respectfully recommended that appellant be sentenced to the penalty of six (6) years of prision correccional as minimum, to twenty (20) years of reclusion temporal with the accessory penalties of death as maximum." We disagree. Article 309 of the Revised Penal Code provides the penalty for simple theft. It reads: "1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing stolen exceed the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be." The value of the property stolen by appellant was P194,448.00. Under Article 309, the basic penalty is prision mayor in its minimum and medium periods to be imposed in the maximum period since the value of the stolen goods exceeded P22,000.00. To determine the additional years of imprisonment

prescribed in Article 309 (1), we have to deduct the amount of P22,000.00, thus leaving the amount of P172,448.00. Next, the net amount should be divided by P10,000.00, disregarding any amount below P10,000.00. Thus, seventeen (17) years must be added to the basic penalty of the maximum period of prision mayor minimum and medium periods.[46] The penalty of prision mayor in its minimum and medium periods has a range of six years (6) and one (1) day to ten (10) years. Its maximum period is eight (8) years, eight (8) months and one (1) day to ten (10) years, and the incremental penalty is seventeen (17) years. Had appellant committed simple theft, the penalty should have been twenty years of reclusion temporal, the maximum penalty allowable under Article 309, subject to the Indeterminate Sentence Law. Slxmis Considering that the theft is qualified by grave abuse of confidence, the penalty is two degrees higher than that specified under Article 309.[47] In the case of People vs. Caales,[48] we were confronted with the same issue of determining how the penalty under Article 309 should be increased by two degrees. In said case, we adopted the disquisition of the appellate court, thus: Slxsc "x x x. Under Article 25 of the Revised Penal Code, two degrees higher than reclusion temporal is death. This is likewise conformable with Article 74 of the Revised Penal Code, which provides that: ART. 74. Penalty higher than reclusion perpetua in certain cases.In cases in which the law prescribes a penalty higher than another given penalty, without specifically designating the name of the former, if such higher penalty should be that of death, the same penalty and the accessory penalties of Article 40, shall be considered as the next higher penalty. x x x. "The provision however, proscribes the imposition of the death penalty resulting from the graduation of the penalty. It bears stressing that Article 74 of the Revised Penal Code was based on Article 93 of the old Penal Code which provided that if the penalty is reclusion perpetua, the next higher penalty would be the same penalty but the convict in such cases cannot be pardoned until forty years had elapsed (Aquino, Comments on the Revised Penal Code, 1987 ed., Volume 1, page 709). But there is a pervading divergence of opinion among commentators of the Revised Penal Code as to what the higher penalty referred to in Article 74 of the Revised Penal Code should be. Some authors are of the view that the higher penalty would be reclusion perpetua with the accessory penalties for the said penalty. But then, under Article 74 of the Revised Penal Code, the accessory penalties under Article 40 of the Revised Penal Code should be imposed. Still others, like former Senator Ambrosio Padilla, are of the view that the higher penalty is reclusion perpetua with the accessory penalties of death under Article 40 of the Revised Penal Code if the death penalty is commuted. But then, the accessory penalty under Article 40 of the Revised Penal Code is perpetual absolute disqualification and civil interdiction during thirty (30) years following the date of sentence, whereas, the accessory penalty of reclusion perpetua under Article 41 of the Revised Penal Code is civil interdiction for life and perpetual absolute disqualification. As aptly observed by former Chief Justice Ramon C. Aquino, there seems to be an absurdity under the latter view (Aquino, Comments on the Revised Penal Code, supra). On the other hand, Justice Albert is of the firm view that: Esmmis The Code meant to say here that the judgment should provide that the convict should not be given the benefit of the provisions of Article 27 until forty years should have elapsed; otherwise, there could be no difference at all between reclusion perpetua when imposed as a penalty next higher in degree and when it is imposed as the penalty fixed by law. (Albert, Comments on the Revised Penal Code, 1932 edition, page 240).

to which Justice Luis Reyes subscribes (Reyes, Comments on the Revised Penal Code, 1981 ed., Vol. 1, page 746). Former Chief Justice Ramon C. Aquino likewise is in accord with the opinion of Justice Albert. x x x. Justice Albert believes that the penalty higher than reclusion perpetua is reclusion perpetua for forty years with the accessory penalties of death under Art. 40. Otherwise, as he said there could be no difference at all between reclusion perpetua, when imposed as the penalty next higher in degree and when it is imposed as the penalty fixed by law. This opinion is supported by Art. 93 of the old Penal Code from which Art. 74 was taken. Art. 93 provides that if the given penalty is cadena perpetua or reclusion perpetua, the next higher penalty shall be these same penalties but the convict in such case cannot be pardoned until forty years have elapsed. (Aquino, Comments on the Revised Penal Code, 1987 ed., Volume 1, pages 708-709).' "We are likewise in accord with the opinion of Justice Albert as a logical explanation of Article 74 of the Revised Penal Code. Consequently, Caales should be meted the penalty of Reclusion Perpetua for Forty Years with the accessory penalties of death under Article 40 of the Revised Penal Code. In fine, Caales is not entitled to pardon before the lapse of the forty-year period (Reyes, Comments on the Revised Penal Code, 1977 ed., Volume 1, page 747)." This reiterated our ruling in People vs. Reyes,[49] where we held: Mesm "In the crime of theft, if the value of the thing stolen exceeds P22,000.00, the penalty shall be prision mayor in its maximum period and one year for each additional P10,000.00, but the total penalty shall not exceed twenty years or reclusion temporal. However, if that crime of theft is attended by any of the qualifying circumstances which convert the taking into qualified theft, the penalty next higher by two degrees shall be imposed, that is, at least, reclusion perpetua."[50] In accord with the foregoing, we hold that appellant was correctly meted the penalty of reclusion perpetua, with the accessory penalties of death under Article 40 of the Revised Penal Code. Missdaa Fourth. As regards the grant of actual damages, the rule is that actual damages cannot be allowed unless supported by evidence in the record.[51] William Hilo testified that the value of the missing cold rolled sheets was P192,000.00 and the incurred cutting cost was P2,448.00, for a total value of P194,448.00.[52] Thus, the award for actual damages must be reduced by P417.00. IN VIEW WHEREOF, the April 26, 1995 Decision of the Regional Trial Court of Quezon City (Branch 92), in Criminal Case No. Q-92-30833, as amended by the Order dated August 15, 1995, is AFFIRMED subject to the modification that the actual damages is reduced to P194,448.00.Kycalr SO ORDERED. [G.R. No. 2696. May 5, 1906. ] SIXTO TIMBOL Y MANALO, Plaintiff-Appellee, v. JANUARIA MANALO, ET AL., Defendants-Appellants. Gregorio Pineda, for Appellants.

Gabriel & Borbon, for Appellee. SYLLABUS 1. WILLS, PROBATE OF. — A will executed under the provisions of the Civil Code before the new Code of Civil Procedure went into effect must be probated in accordance with the provisions of the latter relating to the administration and settlement of the estate of deceased persons, if at the time the will was presented for probate the provisions thereof had not been complied with. 2. ID.; EVIDENCE. — Where the loss of the protocols and records of a notary public has been proved beyond doubt, a copy of the original will, issued by the same notary before whom it was executed, bearing his official seal, although such copy may not appear to be 30 or more years old, may be admitted as written evidence; which together with the testimony of the three attesting witnesses as to the authenticity of such a copy and of the notary’s signature, is the most complete and conclusive proof of the genuineness of the will. 3. ID.; LOSS; EVIDENCE. — The loss or disappearance of an original will having been duly proved, section 321 of the Code of Civil Procedure authorizes the proving of its contents by a copy of the same and by the recollection of those who witnessed and signed the original will. DECISION TORRES, J. : On the 17th of May, 1898, and at about 10 o’clock a. m., Adolfo Garcia Feijoo, a resident attorney and notary public of the town of San Fernando, Province of Pampanga, by request of the party interested was called to the house of Sixto Timbol, in the barrio of Santo Rosario of the town of Angeles, Pampanga, for the purpose of taking the acknowledgment of Cesarea Manalo y Manalo, a resident of Angeles, and the mother of the plaintiff, Sixto Timbol, to her last will and testament which contained an inventory of that, property belonging to the testatrix and wherein she named the said Sixto Timbol as one of her heirs. Timbol was also appointed as executor of the said will, without bond, and given full power to do all things necessary in connection with the execution of its provisions, the testatrix declaring that any prior or subsequent will executed by her which did not comply with the legal requirements should be considered null and void. The will in question was attested by the witnesses Eugenio Ayuyao, Ignacio Sugay, and Pablo Torres. Sugay interpreted the will into Pampango and Torres signed the will at the request of the testatrix who could not write. A copy of the aforesaid will bearing the seal and signature of the notary public of the Province of Pampanga was presented to the Court of First Instance of said province for probate. Counsel for Januaria, Alejandra, Lino Lacson, and Sinforoso Manalo objected to its being admitted to probate. The witnesses to the said will were duly examined; the evidence was taken in the presence of the appellants and the court rendered its decision April 4, 1905, declaring that the will in question had been duly executed in accordance with the law which was in force in these Islands prior to the enactment of the Code of Civil Procedure

and admitted the same to probate as the last will and testament of the deceased, Cesarea Manalo y Manalo and issued letters of administration to Sixto Timbol, executor under the will. The contestants were ordered to pay the costs. One of them, Lino Lacson, appealed from the said judgment to this court. This case relates, as is seen, to probate of a certain will executed by Cesarea Manalo y Manalo, now deceased, on the 17th of May, 1898, before a notary public for the Province of Pampanga during the Spanish regime in these Islands in the presence of three attesting witnesses, the original of which said will should have been in the protocol of the said notary public from whom the aforesaid executor, Sixto Timbol, obtained the copy bearing his signature and official seal and which copy follows page 52 of the record of the Supreme Court, in this case. According to the assignment of errors attached to the special proceedings in the matter of the probate of the will herein referred to, two questions are raised by this appeal, to wit : Whether the said will inserted in pages 2 to 7 of the record, was executed in accordance with the provisions of the Civil Code, and whether, under the provisions of the Code of Civil Procedure, the will alleged to have been left by the deceased Cesarea Manalo y Manalo can be admitted to probate. The will referred to was executed three years before the new Code of Civil Procedure went into effect. There is nothing in the said code which makes it retroactive and, therefore, in order to determine whether the will is valid we must inquire whether the same was executed in accordance with the law in force at the time of its execution, and in order to enforce its provisions it is necessary to comply with the provisions of section 617 of the Code of Civil Procedure, since the new law requires that a will must be admitted to probate before the estate can be administered and settled. The will in question, as will be noted, is a nuncupative or open will and seems to have been executed in accordance with the provisions of articles 694, 695, and 699 of the Civil Code — that is, in the presence of a notary public duly authorized by law such as Adolfo Garcia Feijoo, who was then a notary public of that province, and in the presence of three competent witnesses, residents of the same place, who saw the testatrix, witnessed the execution of the will, and understood everything she said to the notary public in regard to her last will. The will further contains the place, year, month, day, and hour of its execution and it recited therein that after being drawn up it was read to the testatrix in the presence of the witnesses, by one of whom it was interpreted to her; that one of the witnesses signed for the testatrix because she was unable to sign her name; that the will was executed at one time, without interruption; that the notary was acquainted with the testatrix; that she has legal capacity to execute the same, she being in the full enjoyment of her mental faculties, and that all the other solemnities required by law in the execution of wills were complied with. It was also proved that the notary in question went to the house of the testatrix in the barrio of Rosario, town of Angeles, Pampanga, at about 10 o’clock in the morning of the 17th of May, 1898, at the request of Eleuterio Paras by order of the testatrix; that the witnesses, Eugenio Ayuyao, Pablo Torres, and Ignacio Sugay, also called at the request of the testratrix, arrived shortly afterwards; that half an hour after dinner they began to draw up the will and finished its execution at half past 3 in the afternoon; that according to the witnesses the testatrix stated to the notary what her last will was through the witness Eugenio Ayuyao, who acted as interpreter, and that after the will was completed it was read in the presence of all and it was signed by all the witnesses, one of whom signed for the testatrix, the will being thereafter signed by all who were present as well as by the notary,

who signed in the presence of the others, all of whom then left the house of the testatrix. Article 1221 of the Civil Code provides:jgc:chanrobles.com.ph "Should the original instrument, the protocol, and the original record have disappeared, the following shall constitute evidence:jgc:chanrobles.com.ph "1. First copies made by the public official who authenticated them. "2. Subsequent copies issued by virtue of a judicial mandate, after citing the persons interested. "3. Those which, without a judicial mandate, may have been taken in the presence of the persons interested and with their consent. "In the absence of the said copies, any other copies, thirty or more years old, shall be the evidence, provided they have been taken from the original by the official who authenticated them or by the other in charge of their custody. "Copies less than thirty years old, or which may be authenticated by a public official, in which the circumstances mentioned in the proceeding paragraph do not concur, shall serve only as a basis of written evidence. . . ."cralaw virtua1aw library The value of a copy of an instrument as evidence depends upon whether the original instrument have been lost or not, whatever the cause of the loss might have been. It will be sufficient to show either by a statement or a certificate to the effect from official who had the custody of the protocol or by any other accepted means of proof that the original was lost. In the case at bar, it was proved that the protocols and archives of the notary of Pampanga were lost. We must, therefore, given legal force to the copy of the said will presented by the executor which although not as old as that contemplated in paragraph 5 article 1221 of the Civil Code, appears to be, however, an authenticated copy of its original, certified to by the sale notary before whom the will was executed, the said copy bearing the notary’s official seal. It has not been shown that the copy in question is inexact or not authentic, and, as written evidence, corroborated as it is by the uniform testimony the attesting witnesses who testified as to the correctness ad authenticity of the said copy and of the notary’s signature, it furnishes the most complete proof of the fact that Cesarea Manalo executed the will in the terms set forth in the said copy, those who opposed the probate the will having failed to show that the testatrix was unable to execute the same or that the copy submitted to the court as aforesaid was not authentic. As to the objections urged by the appellant in this court in regard to the said will, it will be noted that the notary certifies therein that all the formalities required for the execution of an open will were complied with. As a matter of fact, it appears at the bottom of the will that, the testatrix being unable to sign, the witness, Pablo Torres, signed the same for her and in her name. Assuming that the testatrix could not understand or speak the Spanish Language, and that in expressing her last will to the notary she had to do so in the Pampanga dialect through the witness, Ayuyao, who acted as interpreter, and that the statements made by the notary in the Spanish language were interpreted to her in the Pampanga dialect and it being an undisputed fact that the three attesting witnesses to the will were "Pampangas" and

residents of that place who were naturally acquainted with their own dialect there is no doubt that the intervention of an interpreter was not necessary; since the three witnesses in question understood the dialect and must have known what the testatrix wished stated in the will, the contents of which were subsequently ratified in their presence they were able to judge then whether the provisions of the will were correct or not. (Art. 68l of the Civil Code.) The hour at which the execution of the will was commenced is of little or no importance. It is immaterial that it was commenced at 10 or half past 10 o’clock in the morning since it has been proved that it was completed at half past 3 in the afternoon — that is to say, that the will was executed, including the preparatory work, between 10 o’clock in the morning and half past 3 in the afternoon of the 17th of May, 1898. It appears from the testimony of the witnesses for both parties that Cesarea Manalo died some time after the execution of her will and there is nothing in the record to the contrary. There being no legal ground upon which to disallow the said will, it becomes necessary to affirm the judgment of the trial court allowing the same to probate. Section 617 of the Code of Civil Procedure provides:jgc:chanrobles.com.ph "A will executed by a Spaniard, or a resident of the Philippine Islands, before the date on which this act shall come into force shall be valid and allowed, if duly executed in accordance with the laws before that date prevailing in the Philippine Islands relating to the execution of wills, whether such will be an open will or a sealed will, or one termed a verbal will under that law, but such will must be established and the estate administered in accordance with the provisions of this code."cralaw virtua1aw library It having been conclusively shown that the will in question was duly executed in accordance with the provisions of the Civil Code, and it not appearing that the same has been revoked in any manner authorized by article 737 et seq. of the Civil Code, or by the provisions of section 623 of the Code of Civil Procedure, it should be admitted to probate in accordance with the provisions of the latter code. Aside from the fact that the due execution of the will in question was proved fully and satisfactorily, the copy thereof herein presented is the best evidence of its existence. The law does not require a certified copy. The copy in question contains a literal recital of the original which was lost. It bears every evidence of authenticity and legitimacy. Its execution has been further confirmed by the testimony of the three attesting witnesses who were present at the time the will was being drawn and who signed the same. (Secs. 321 and 324 of the Code of Civil Procedure.) For the foregoing reasons we are of the opinion that the Judgment of the trial court, dated April 4, 1905, should be and is hereby affirmed, with costs against the appellant after the expiration of twenty days let final judgment be entered accordingly and the case be remanded to the trial court for proper action. So ordered. G.R. No. L-30528 October 25, 1929 MODESTO LIMJOCO and TEODORA HONSAYCO, applicants- appellees, vs. DIRECTOR OF LANDS, DIRECTOR OF FORESTRY, SANTIAGO QUIJANO, and RAFAEL VILLAROMAN, opponents. DIRECTOR OF LANDS, Appellant.

Attorney-General Jaranilla for appellant. Marcelino Aguas for appellees. VILLAMOR, J.: The application for registration filed by the spouses Modesto Limjoco and Teodora Honsayco was opposed by the Director of Lands, the Director of Forestry, Santiago Quijano, and Rafael Villaroman. After legal notice and entry of an order of general default, the application was set for the taking of evidence; and the evidence having been adduced by the parties, the judge then presiding over the Court of First Instance of Pampanga rendered judgment denying the application and ordering the dismissal of this proceeding for insufficiency of evidence.chanroblesvirtualawlibrary chanrobles virtual law library The applicants filed a motion for reconsideration praying the court to set aside the dismissal of this proceeding and to order the opponents to present their evidence. Later, said applicants filed an exception and motion for a new trial, praying the court to declare the case reopened for further evidence.chanroblesvirtualawlibrary chanrobles virtual law library By its order on February 6, 1928, the court granted the motion of new trial giving the applicants an opportunity to adduce further evidence, on condition that the portions claimed by Santiago Quijano and Rafael Villaroman be excluded, to which the applicants agreed. Then, with Judge Hermogenes Reyes presiding, the court overruled the oppositions filed by the Director of Lands and the Director of Forestry, and after entering the general default decreed the registration and adjudication of the land in question in favor of the spouses Modesto Limjoco and Teodora Honsayco. The court also ordered the presentation of an amended plan excluding the lands involved in the oppositions of Santiago Quijano and Rafael Villaroman.chanroblesvirtualawlibrary chanrobles virtual law library The provincial fiscal of Pampanga, in behalf of the Director of Lands, appealed from the judgment of the court below the Supreme Court through the proper bill of exceptions, and now alleges that the trial court erred: (a) In failing to hold that the applicants have not proved the identity of the land they allege belongs to them and which they seek to register; (b) in holding that the applicants have sufficient right to warrant the registration and adjudication of the land described in their application in their favor; (c) in holding that the applicants are entitled to the benefits of paragraph 4, section 54 of Chapter VI, Act No. 926; and (d) in overruling the oppositions filed by the Director of Lands; in decreeing the registration and adjudication of the parcel of land in question in favor of the applicants, and in denying the motion for a new trial filed by the opponent.chanroblesvirtualawlibrary chanrobles virtual law library As to the identity of the land in question, the court below held: "The applicant and his witness Benito Pangan and Fidel Sanguyo explained the difference in the eastern and southern boundaries, and therefore the boundaries to the north and west being creeks and rivers of the same name, that is, natural boundaries, except for the certain parts thereof, the identity of the estate may be deemed proved." We have gone over the record and find that the evidence supports this conclusion of the trial court. The land in question is described in plan Exhibit A, and represents the eastern part of the land described in Exhibit C, which we shall discuss later on. A creek runs through the land from north to south, thus dividing it into two portions, one to the east of the "Pamicatigan," and the other to the west of said creek. It is the registration of the portion to the east of the "Pamicatigan" that we are concerned with in this proceeding. The witness for the applicant identified the land in question, and the difference in the western boundary is due to the fact that the application

is confined to the portion of land to the east of the Pamicatigan creek. The difference in area between the land described as the second parcel in Exhibit C, containing some 800 hectares, and the land, the registration of which is here sought, containing about 400 hectares, is explained by the fact that the application for registration refers only to the eastern portion which is approximately one-half of the land described as the second parcel in the document Exhibit C.chanroblesvirtualawlibrary chanrobles virtual law library The applicant's claim is based on a purchase of the land from Meliton Limjoco on May 12, 1926 for P5,400. according to the document of Exhibit B. On September 12, 1911, Meliton Limjoco acquired the land from Raymundo Pangan for P3,100, as per Exhibit H. In 1906 Raymundo Pangan brought said land from the heirs of Isabel Gatbonton for 2,500 (Exhibit G). On July 12, 1906 Isabel Gatbonton's heirs acquired the land in question by repurchase from Adriano Samson for P1,066.45 (Exhibit F). On May 15 of the same year, Adriano Samson acquired the land in question, together with other lots at a public auction for P1,000 (Exhibit E). The lands sold at public auction were mortgaged by the original owner, Isabel Gatbonton, to the sons of Jose Ma. Venegas, and for default in payment of the debt, were attached and sold at public auction in pursuance of a writ of execution of the Court of First Instance of Pampanga.chanroblesvirtualawlibrary chanrobles virtual law library Exhibit C is a public document, executed before the notary public, D. Pedro Garcia Enrico, and noted in the book called " Libro de Anotaciones de Hipoteca de la Ciudad de Manila," on December 10, 18186. By virtue of said deed, Isabel Gatbonton, it maker, mortgaged eight parcels of land described therein. It must be noted that the notary who authorized it states the following: "Which parcels of land are her (Isabel Gatbonton's) exclusive property, as proved by her composition titles issued by the 'Direccion General de Administracion Civil' on the nineteenth of last July, which, together with other documents dealing with said estates, consisting of sixteen pages in all, were exhibited to me, and, upon being read and signed by me, shall be attached to a copy hereof."chanrobles virtual law library Counsel for the appellant contends that the trial court erred in holding the applicants sufficiently entitled to the registration and adjudication of the land described in the application. In our opinion this contention is groundless. The composition title to buy the notary who certified Exhibit C has not been produced for the reason that said document was lost during the confusion which followed the change of sovereignty. But we believe that said title of composition with the State was doubtless issued to Isabel Gatbonton, not only on the authority of Notary Pedro Garcia Enrico's assurance, but also because of Exhibit D. Exhibit D is certainly not the composition title issued to Isabel Gatbonton. The applicant do not allege it, nor the trial court so held. It is simply the true copy of the record of the composition of lands in the barrio of Calauitan, within the jurisdiction of the town of Candaba, Province of Pampanga, initiated by Dona Isabel Gatbonton on April 17, 1884, which record is in the files of the Bureau of Lands, being certified by the Director of Lands. Said Exhibit D narrates the steps taken in that proceeding, and shows: (a) That on October 31, 1884, the "Direccion General de Administracion Civil" had decreed to Isabel Gatbonton the composition with the State of the land she owned in the barrio of Calauitan, within the jurisdiction of Candaba, Province of Pampanga, in accordance with article 5 of the "Regulations on Composition" of June 25, 1880; (b) that Isabel Gatbonton had paid the P432.45 which was 10 per cent of the "assessed value of the land, which had been measured and surveyed by an employee of the Forestry Department," as required by the decree of the Governor-General of December 12, 1882; (c) that she had obtained and deliver to the "Hacienda Publica" the piece of paper with the 3d seal of the Ilustres for the issuance of the proper title; and that Isabel Gatbonton therefore closed the proceeding as far as she was concerned; and (d) that the receipt and the Ilustres sealed paper having been sent to the Director General of Civil

Administration on April 29, 1886, the latter issued the "proper title" on July 19, 1886.chanroblesvirtualawlibrary chanrobles virtual law library Thus it is seen that the original owner of the land in question had a composition title with the State obtained from the Spanish Government, having paid P432.45 therefor, being 10 per cent of the reglementary assessment of said land. As stated, the ownership of this land was successively transmitted to several persons until it came to the applicant, Modesto Limjoco. And these persons as successive owners held possession of the land from 1886, using the lowlands as fishery, and the elevated portions for the cultivation of rice, corn and vegetables. In referring to the cultivation of the land, it should be noted that the talajalgrowing thereon which appears to have been abandoned, was left for the purpose of shading and keeping the water of the fishery cool. It would not be superfluous to add that the applicant has been paying the land tax thereon, and that the land is at present assessed at P13,000.chanroblesvirtualawlibrary chanrobles virtual law library In view of the evidence adduced by the applicants, we are of opinion that the lower court was correct in holding that they are entitled to the registration and adjudication of the land described in the application.chanroblesvirtualawlibrary chanrobles virtual law library Failure to present the composition title with the State cannot prejudice the applicant's right, for, its lost having been proved, its contents could be proved by a copy or a recital of its contents in some authentic document, or by the collection of a witness. (Sec. 321, Code of Civil Procedure.) And in the instant case it is evident that the recital of its contents was made in the authentic document, Exhibit C.chanroblesvirtualawlibrary chanrobles virtual law library Inasmuch as it has been proved in the record that the applicants have been in possession of the land the registration of which is sought, as well as their predecessors in interest, Meliton Limjoco, Raymundo Pangan, the heirs of Isabel Gatbonton, the purchaser at public auction, Adriano Samson, and the original owner, Isabel Gatbonton, there is no need to discuss the third assignment of error made by the appellant, inasmuch as the land in question is not public land, but private land granted by the Spanish Government by means of a composition with the State, to the original owner, Isabel Gatbonton.chanroblesvirtualawlibrary chanrobles virtual law library Therefore, the judgment appealed from should be, as it is hereby, affirmed, without special pronouncement as to costs. So ordered.

G.R. No. 204894

March 10, 2014

PEOPLE OF THE PHILIPPINES, Appellee, vs. NOEL ENOJAS y HINGPIT, ARNOLD GOMEZ y FABREGAS, FERNANDO SANTOS y DELANTAR, and ROGER JALANDONI y ARI, Appellants. DECISION ABAD, J.:

On September 4, 2006 the City Prosecutor of Las Piñas charged appellants Noel Enojas y Hingpit (Enojas), Arnold Gomez y Fabregas (Gomez), Fernando Santos y Delantar (Santos), and Roger Jalandoni y Ari (Jalandoni) with murder before the Las Pifias Regional Trial Court (RTC) in Criminal Case 06-0854.1 PO2 Eduardo Gregorio, Jr. (P02 Gregorio) testified that at around 10:30 in the evening of August 29, 2006, he and P02 Francisco Pangilinan (PO2 Pangilinan) were patrolling the vicinity of Toyota Alabang and SM Southmall when they spotted a taxi that was suspiciously parked in front of the Aguila Auto Glass shop near the intersection of BF Almanza and Alabang-Zapote Roads. The officers approached the taxi and asked the driver, later identified as accused Enojas, for his documents. The latter complied but, having entertained doubts regarding the veracity of documents shown them, they asked him to come with them to the police station in their mobile car for further questioning. 2 Accused Enojas voluntarily went with the police officers and left his taxi behind. On reaching the 7-11 convenience store on the Zapote-Alabang Road, however, they stopped and PO2 Pangilinan went down to relieve himself there. As he approached the store’s door, however, he came upon two suspected robbers and shot it out with them. PO2 Pangilinan shot one suspect dead and hit the other who still managed to escape. But someone fired at PO2 Pangilinan causing his death. On hearing the shots, PO2 Gregorio came around and fired at an armed man whom he saw running towards Pilar Village. He saw another man, who came from the Jollibbee outlet, run towards AlabangZapote Road while firing his gun at PO2 Gregorio. The latter returned fire but the men were able to take a taxi and escape. PO2 Gregorio radioed for help and for an ambulance. On returning to his mobile car, he realized that accused Enojas, the taxi driver they had with them had fled. P/Insp. Ferjen Torred (Torred), the Chief of Investigation Division of the Las Piñas Police, testified that he and PO2 Teoson Rosarito (PO2 Rosarito) immediately responded to PO2 Gregorio’s urgent call. Suspecting that accused Enojas, the taxi driver who fled, was involved in the attempted robbery, they searched the abandoned taxi and found a mobile phone that Enojas apparently left behind. P/Ins. Torred instructed PO3 Joel Cambi (PO3 Cambi) to monitor its incoming messages.3 The police later ascertained that the suspect whom PO2 Pangilinan had killed was someone named Reynaldo Mendoza who was armed with a .38 caliber revolver. The police found spent 9 mm and M-16 rifle shells at the crime scene. Follow-up operations at nearby provinces resulted in finding the dead body of one of the suspects, Alex Angeles, at the Metro South Medical Center along Molino, Bacoor, Cavite. 4 PO3 Cambi and PO2 Rosarito testified that they monitored the messages in accused Enojas’ mobile phone and, posing as Enojas, communicated with the other accused. The police then conducted an entrapment operation that resulted in the arrest of accused Santos and Jalandoni. Subsequently, the police were also able to capture accused Enojas and Gomez. The prosecution presented the transcripts of the mobile phone text messages between Enojas and some of his co-accused.5 The victim’s father, Ricardo Pangilinan, testified that his son was at the time of his death 28 years old, unmarried, and was receiving police pay of ₱8,000.00 to ₱10,000.00 per month. Ricardo spent ₱99,999 for burial expense, ₱16,000.00 for the interment services, and ₱50,000.00 for purchase of the cemetery lot.6 Manifesting in open court that they did not want to adduce any evidence or testify in the case,7 the accused opted to instead file a trial memorandum on March 10, 2008 for their defense. They pointed out that they were entitled to an acquittal since they were all illegally arrested and since the evidence of the text messages were inadmissible, not having been properly identified. On June 2, 2008 the RTC rendered judgment,8 finding all the accused guilty of murder qualified by evident premeditation and use of armed men with the special aggravating circumstance of use of

unlicensed firearms. It thus sentenced them to suffer the penalty of reclusion perpetua, without the possibility of parole and to indemnify the heirs of PO2 Pangilinan with ₱165,999.00 as actual damages, ₱50,000.00 as moral damages, ₱25,000.00 as exemplary damages, and ₱2,080,000.00 as compensation for loss of earning capacity. Upon review in CA-G.R. CR-H.C. 03377, on June 14, 2012 the Court of Appeals (CA) dismissed the appeal and affirmed in toto the conviction of the accused.9 The CA, however, found the absence of evident premeditation since the prosecution failed to prove that the several accused planned the crime before committing it. The accused appealed from the CA to this Court. 10 The defense points out that the prosecution failed to present direct evidence that the accused Enojas, Gomez, Santos, or Jalandoni took part in shooting PO2 Pangilinan dead. 11 This may be true but the prosecution could prove their liability by circumstantial evidence that meets the evidentiary standard of proof beyond reasonable doubt. It has been held that circumstantial evidence is sufficient for conviction if: 1) there is 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.12 Here the totality of the circumstantial evidence the prosecution presented sufficiently provides basis for the conviction of all the accused. Thus: 1. PO2 Gregorio positively identified accused Enojas as the driver of the taxicab suspiciously parked in front of the Aguila Auto Glass shop. The officers were bringing him with them to the police station because of the questionable documents he showed upon query. Subsequent inspection of the taxicab yielded Enojas’ mobile phone that contained messages which led to the entrapment and capture of the other accused who were also taxicab drivers. 2. Enojas fled during the commotion rather than remain in the cab to go to the police station where he was about to be taken for questioning, tending to show that he had something to hide. He certainly did not go to the police afterwards to clear up the matter and claim his taxi. 3. PO2 Gregorio positively identified accused Gomez as one of the men he saw running away from the scene of the shooting. 4. The text messages identified "Kua Justin" as one of those who engaged PO2 Pangilinan in the shootout; the messages also referred to "Kua Justin" as the one who was hit in such shootout and later died in a hospital in Bacoor, Cavite. These messages linked the other accused. 5. During the follow-up operations, the police investigators succeeded in entrapping accused Santos, Jalandoni, Enojas, and Gomez, who were all named in the text messages. 6. The text messages sent to the phone recovered from the taxi driven by Enojas clearly made references to the 7-11 shootout and to the wounding of "Kua Justin," one of the gunmen, and his subsequent death. 7. The context of the messages showed that the accused were members of an organized group of taxicab drivers engaged in illegal activities. 8. Upon the arrest of the accused, they were found in possession of mobile phones with call numbers that corresponded to the senders of the messages received on the mobile phone that accused Enojas left in his taxicab.13

The Court must, however, disagree with the CA’s ruling that the aggravating circumstances of a) aid of armed men and b) use of unlicensed firearms qualified the killing of PO2 Pangilinan to murder. In "aid of armed men," the men act as accomplices only. They must not be acting in the commission of the crime under the same purpose as the principal accused, otherwise they are to be regarded as co-principals or co-conspirators. The use of unlicensed firearm, on the other hand, is a special aggravating circumstance that is not among the circumstances mentioned in Article 248 of the Revised Penal Code as qualifying a homicide to murder.14 Consequently, the accused in this case may be held liable only for homicide, aggravated by the use of unlicensed firearms, a circumstance alleged in the information. As to the admissibility of the text messages, the RTC admitted them in conformity with the Court’s earlier Resolution applying the Rules on Electronic Evidence to criminal actions. 15 Text messages are to be proved by the testimony of a person who was a party to the same or has personal knowledge of them.16 Here, PO3 Cambi, posing as the accused Enojas, exchanged text messages with the other accused in order to identify and entrap them. As the recipient of those messages sent from and to the mobile phone in his possession, PO3 Cambi had personal knowledge of such messages and was competent to testify on them. The accused lament that they were arrested without a valid warrant of arrest.1âwphi1 But, assuming that this was so, it cannot be a ground for acquitting them of the crime charged but for rejecting any evidence that may have been taken from them after an unauthorized search as an incident of an unlawful arrest, a point that is not in issue here. At any rate, a crime had been committed—the killing of PO2 Pangilinan— and the investigating police officers had personal knowledge of facts indicating that the persons they were to arrest had committed it.17 The text messages to and from the mobile phone left at the scene by accused Enojas provided strong leads on the participation and identities of the accused. Indeed, the police caught them in an entrapment using this knowledge. The award of damages by the courts below has to be modified to conform to current jurisprudence. 18 WHEREFORE, the Court MODIFIES the Court of Appeals Decision of June 14, 2012 in CA-G.R. CR-HC 03377. The Court instead FINDS accused-appellants Noel Enojas y Hingpit, Arnold Gomez y Fabregas, Fernando Santos y Delantar, and Roger Jalandoni y Ari GUILTY of the lesser crime of HOMICIDE with the special aggravating circumstance of use of unlicensed firearms. Applying the Indeterminate Sentence Law, the Court SENTENCES each of them to 12 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum. The Court also MODIFIES the award of exemplary damages by increasing it to ₱30,000.00, with an additional ₱50,000.00 for civil indemnity. SO ORDERED.

[G.R. No. 117221. April 13, 1999]

IBM PHILIPPINES, INC., VIRGILIO L. PEA, and VICTOR V. REYES, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and ANGEL D. ISRAEL, respondents. DECISION MENDOZA, J.: This is a petition for certiorari to set aside the decision,[1] dated April 15, 1994, of the National Labor Relations Commission (NLRC) finding private respondent to have been illegally dismissed and ordering his reinstatement and the payment of his wages from August 1991 until he is reinstated.

Petitioner IBM Philippines, Inc. (IBM) is a domestic corporation engaged in the business of selling computers and computer services. Petitioners Virgilio L. Pea and Victor V. Reyes were ranking officers of IBM during the period pertinent to this case. On April 1, 1975, private respondent Angel D. Israel commenced employment with IBM as Office Products Customer Engineer. For the next sixteen (16) years, he occupied two other positions in the company,[2] received numerous awards,[3] and represented the company in various seminars and conferences in and out of the country.[4] On February 1, 1990, private respondent was assigned to the team supervised by petitioner Reyes. On June 27, 1991, petitioner Reyes handed a letter to private respondent informing the latter that his employment in the company was to be terminated effective July 31, 1991 on the ground of habitual tardiness and absenteeism. The letter states, thus: June 27, 1991 Mr. Angel D. Israel Present Dear Angel, This refers to our previous discussion regarding your habitual absences and tardiness the last of which was on June 26, 1991. Your records will attest to the fact that on several occasions, your attention has been called to your habitual tardiness and non-observance of standing office procedures regarding attendance. Despite several opportunities given to you, you cannot seem to reform your ways and attitude on the matter of attendance. Considering that we are a service-oriented company, you can appreciate that we cannot allow such a situation to continue lest we put the best interest of the Company in jeopardy. Much to our regret, therefore, pleased (sic) be advised that the Company is terminating your employment effective July 31, 1991. You are requested to report to Personnel Department at your earliest convenience for the settlement of any money or benefits due you. Very truly yours, (Sgd) V.V. REYES Business Manager cc: L.L. Abano Alleging that his dismissal was without just cause and due process, private respondent filed a complaint with the Arbitration Branch of the Department of Labor and Employment (DOLE) on July 18, 1991. In his position paper filed on September 6, 1991, he claimed that he was not given the opportunity to be heard and that he was summarily dismissed from employment based on charges which had not been duly proven.[5] Petitioners denied private respondents claims. It was alleged that several conferences were held by the management with private respondent because of the latters unsatisfactory performance in the company and he was given sufficient warning and opportunity to reform and improve his attitude toward attendance,[6] but to their regret, he never did. It was alleged that private respondent was constantly told

of his poor attendance record and inefficiency through the companys internal electronic mail (e-mail) system. According to petitioners, this system allows paperless or telematic[7] communication among IBM personnel in the company offices here and abroad. An employee is assigned a User ID and the corresponding password is provided by the employee himself and, theoretically, known only to him. Employees are then expected to turn on their computers everyday, log in to the system by keying in their respective IDs and passwords in order to access and read the messages sent to and stored in the computer system. To reply, an employee types in or encodes his message-response and sends the same to the intended recipient, also via the computer system. The system automatically records the time and date each message was sent and received, including the identification of the sender and receiver thereof. All messages are recorded and stored in computer disks.[8] Attached to petitioners position paper were copies of print-outs of alleged computer entries/messages sent by petitioner Reyes to private respondent through IBMs internal computer system. The following is a summary of the contents of the print-outs which mostly came from petitioner Reyes computer: (a) Private respondent was admonished when he would miss out on meetings with clients and failed to attend to important accounts, such as that of Hella Philippines; [9] (b) Petitioner Reyes conducted consultations with private respondent concerning the latters work habits;[10] (c) A new policy of requiring employees to be at the office at 8:30 a.m. every morning was adopted and employees were no longer allowed to sign out of the office by phone; [11] (d) Petitioner Reyes would type into his computer the records of the security guard which reflect private respondents daily tardiness and frequent absences; [12] (e) Private respondent was admonished when he failed to respond to instructions from his superiors;[13] (f) IBM Australia, contacted by Hella Australia, once asked about the reported lack of attention given to Hella Philippines.[14] Private respondent directly answered IBM Australia, through telematic memo, and reported that Hella Philippines was deferring its computer plan and decided to use micros in the meantime;[15] (g) The said response was denied by Hella Australia which later made it clear that it would be buying anything but IBM;[16] and (h) While private respondent showed some improvement after consultations where he allegedly admitted his shortcomings, petitioner Reyes reported that he (private respondent) would eventually slide back to his old ways despite constant counselling and repeated warnings that he would be terminated if he would not improve his work habits.[17] Through these computer print-outs calling private respondents attention to his alleged tardiness and absenteeism, petitioner sought to prove that private respondent was sufficiently notified of the charges against him and was guilty thereof because of his failure to deny the said charges. On March 13, 1992, the labor arbiter rendered a terminated for cause and accordingly dismissing the termination as well as private respondents long record award of separation pay at the rate equivalent to service. The dispositive portion of the decision reads

decision finding private respondent to have been complaint. Considering, however, the ground for of service to the company, the arbiter ordered the one-half (1/2) month salary for every year of

WHEREFORE, judgment is hereby rendered in this case declaring respondent IBM Phils., Inc. not guilty of the charge of illegal dismissal. However, respondent company is directed to pay complainant Israel the sum of Two Hundred Forty Eight Thousand (P248,000.00) as separation pay. All other claims are denied for lack of merit.

It appears, however, that prior to the release of the labor arbiters decision at 11:21 a.m. on March 26, 1992, private respondent had filed a Manifestation And Motion To Admit Attached New Evidence For The Complainant which was received by the Arbitration Branch at 10:58 a.m. of the same day. The evidence consisted of private respondents Daily Time Records (DTRs) for the period June 1, 1990 to August 31, 1990 and pay slips for the period January 1990 to June 1991 showing that private respondent did not incur any unexcused absences, that he was not late on any day within the period and that no deduction was made from his salary on account of tardiness or absences. Private respondent appealed to the NLRC which, on April 15, 1994, reversed the labor arbiters decision and found private respondents dismissal illegal. The NLRC ruled: (1) that the computer print-outs which petitioners presented in evidence to prove that private respondents office attendance was poor were insufficient to show that the latter was guilty of habitual absences and tardiness; and (2) that private respondent was not heard in his defense before the issuance of the final notice of dismissal. [18] The dispositive portion of the NLRCs decision reads: WHEREFORE, the Decision dated March 13, 1992 is hereby SET ASIDE and a new one entered declaring the dismissal of the complainant as illegal. Respondent (sic) are hereby ordered to reinstate complainant to his former position without loss of his seniority rights and to pay backwages starting August 1991 until reinstated at the rate of P40,516.65 a month including all its benefits and bonuses. Presiding Commissioner Edna Bonto-Perez dissented on the ground she found that petitioners have presented strong and convincing documentary evidence that private respondent was guilty of habitual tardiness and absences. She was also of the opinion that private respondent was sufficiently warned before he was actually dismissed.[19] Petitioners moved for a reconsideration, but their motion was denied in a resolution, dated July 20, 1994. Hence, this petition for certiorari. Petitioners contend that 1. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OF JURISDICTION IN HOLDING THAT NO JUST CAUSE EXISTS NOR WAS THERE DUE PROCESS OBSERVED IN THE DISMISSAL OF THE PRIVATE RESPONDENT BECAUSE THE COMPUTER PRINTOUTS WHICH PROVE JUST CAUSE AND DUE PROCESS ARE NOT ADMISSIBLE IN EVIDENCE. 2. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OR EXCESS OF ITS JURISDICTION IN HOLDING THAT EVEN IF THE COMPUTER PRINTOUTS WERE ADMISSIBLE, PETITIONER FAILED TO SATISFY DUE PROCESS. We find petitioners contention to be without merit. First. Petitioners argue that the computer print-outs submitted by them need not be identified or authenticated according to the rules of procedure in regular courts in order for the same to be admissible in evidence. They contend that technical rules of evidence do not apply to administrative/labor cases[20] and because of a relaxation of the rules of evidence, private respondent was in fact allowed by the labor arbiter to adduce additional evidence even after a decision had been rendered.[21] It is indeed true that administrative agencies, such as the NLRC, are not bound by the technical rules of procedure and evidence in the adjudication of cases.[22] This was the reason private respondent was allowed to submit additional evidence even after the case was deemed submitted for resolution by the labor arbiter. The practice of admitting additional evidence on appeal in labor cases has been sanctioned by this Court.[23] However, the liberality of procedure in administrative actions is subject to limitations imposed by basic requirements of due process. As this Court said in Ang Tibay v. CIR,[24] the provision for flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative value. More specifically, as held in Uichico v. NLRC:[25]

It is true that administrative and quasi-judicial bodies like the NLRC are not bound by the technical rules of procedure in the adjudication of cases. However, this procedural rule should not be construed as a license to disregard certain fundamental evidentiary rules. While the rules of evidence prevailing in the courts of law or equity are not controlling in proceedings before the NLRC, the evidence presented before it must at least have a modicum of admissibility for it to be given some probative value. The Statement of Profit and Losses submitted by Crispa, Inc. to prove its alleged losses, without the accompanying signature of a certified public accountant or audited by an independent auditor, are nothing but selfserving documents which ought to be treated as a mere scrap of paper devoid of any probative value. The computer print-outs, which constitute the only evidence of petitioners, afford no assurance of their authenticity because they are unsigned. The decisions of this Court, while adhering to a liberal view in the conduct of proceedings before administrative agencies, have nonetheless consistently required some proof of authenticity or reliability as condition for the admission of documents. In Rizal Workers Union v. Ferrer-Calleja,[26] this Court struck down the decision of the Director of Labor Relations which was based on an unsigned and unidentified manifesto. It was held: From even a perfunctory assessment, it becomes apparent that the evidence upon which said decision is professedly based does not come up to that standard of substantiality. It is of course also a sound and settled rule that administrative agencies performing quasi-judicial functions are unfettered by the rigid technicalities of procedure observed in the courts of law, and this so that disputes brought before such bodies may be resolved in the most expeditious and inexpensive manner possible. But what is involved here transcends mere procedural technicality and concerns the more paramount principles and requirements of due process, which may not be sacrificed to speed or expediency...The clear message of [Article 221 of the Labor Code] is that even in the disposition of labor cases, due process must never be subordinated to expediency or dispatch. Upon this principle, the unidentified documents relied upon by respondent Director must be seen and taken for what they are, mere inadmissible hearsay. They cannot, by any stretch of reasoning, be deemed substantial evidence of the election frauds complained of. Likewise, in the case of EMS Manpower & Placement Services v. NLRC,[27] the employer submitted a photocopy of a telex which supposedly shows that the employee was guilty of serious misconduct and which became the basis of her dismissal. This Court ruled that the telex, a single document, totally uncorroborated and easily concocted or fabricated to suit ones personal interest and purpose,[28] was insufficient to uphold the employers defense. In Jarcia Machine Shop and Auto Supply, Inc. v. NLRC, this Court held as incompetent unsigned daily time records presented to prove that the employee was neglectful of his duties: Indeed, the [DTRs] annexed to the present petition would tend to establish private respondents neglectful attitude towards his work duties as shown by repeated and habitual absences and tardiness and propensity for working undertime for the year 1992. But the problem with these DTRs is that they are neither originals nor certified true copies. They are plain photocopies of the originals, if the latter do exist. More importantly, they are not even signed by private respondent nor by any of the employers representatives...[29] In the case at bar, a specimen of the computer print-out submitted by petitioners reads: Date and time 10/12/90 09:23:1 From: REYESVV -- MNLVM1 To: ISRAEL -- MNLRVM Israel, A.D. SEC: I IBM INTERNAL USE ONLY Subject:

Angel, have been trying to pin you down for a talk the past couple of days. Whatever happened to our good discussion 2 weeks ago? I thought you would make an effort to come in on time from then on? If you have problems which prevent you from coming in on time, let me know because I would really like to help if I can. The sum of all your quotas is less than mine so I really need all of you pitching in. Kindly take a look at your proofs in-tray as there are some to dos which are pending. Acts such as St. Louis U. and NEECO should be worth looking into as theyve been inquiring about upgrading their very old boxes. If you are too tied up for these accounts do let me know so I can reassign. By Monday morning please. Lets give it that final push for the branch! ============================================================= Regards from the APPLICATION MNLVM 1 (REYESVV) SYSTEMS MARKETING group T (832)8192-279 Victor V. Reyes - Marketing Manager ============================================================= Not one of the 18 print-out copies submitted by petitioners was ever signed, either by the sender or the receiver. There is thus no guarantee that the message sent was the same message received. As the Solicitor General pointed out, the messages were transmitted to and received not by private respondent himself but his computer.[30] Neither were the print-outs certified or authenticated by any company official who could properly attest that these came from IBMs computer system or that the data stored in the system were not and/or could not have been tampered with before the same were printed out. It is noteworthy that the computer unit and system in which the contents of the print-outs were stored were in the exclusive possession and control of petitioners since after private respondent was served his termination letter, he had no more access to his computer.[31] Second. Even if the computer print-outs were admissible, they would not suffice to show that private respondents dismissal was justified. Petitioners contention is that private respondent was repeatedly warned through computer messages for coming in late or not reporting at all to the office during the period May 1990 -- June 1991 but he never denied the allegations. Therefore, he must be deemed to have admitted these allegations. [32] But the burden of proving that the dismissal was for just cause is on petitioners. They cannot simply rely on any admission by private respondent implied from his failure to deny the alleged computer messages to him which he denied he had ever received. On the other hand, private respondents additional evidence, consisting of DTRs and pay slips, show that he did not incur unexcused absences or tardiness or that he suffered deduction in pay on account of such absences or tardiness. Indeed, petitioners could have easily proven their allegations by presenting private respondents DTRs. Since these were in petitioners possession, their non-production thereof raises the presumption that if presented they would be adverse to petitioners. This is precisely what the best evidence rule guards against. The purpose of the rule requiring the production of the best evidence is the prevention of fraud, because if a party is in possession of such evidence and withholds it, and seeks to substitute inferior evidence in its place, the presumption naturally arises that the better evidence is withheld for fraudulent purposes which its production would expose and defeat. [33] Private respondents DTRs for the period June 1, 1990 -- August 30, 1990[34] show that while his attendance record may not have been perfect, it was at least satisfactory. The days when private respondent did not report to the office were credited either as vacation or as sick leaves. On days when he was away on business trips, his destination was shown. The DTRs were signed by petitioner Victor Reyes. It is said that the DTRs presented were only for the period when private respondents attendance was excellent; he took care not to submit his DTRs for other months during which he was often late in coming

to office.[35] As the Solicitor General has pointed out, however, it was precisely during that period of June 1, 1990 --August 30, 1990 when, according to the print-outs submitted by petitioners, private respondent was often late or absent. Nor is there proof to support petitioners allegation that it was private respondents secretary and not him who often signed the attendance sheet.[36] Indeed, petitioners did not present private respondents secretary or, at the very least, attach an affidavit sworn to by her to prove their allegations and thus dispute the DTRs presented by private respondent. This, notwithstanding ample opportunity to do so. On the other hand, as already stated, the DTRs, showing private respondents good attendance, were signed by petitioner Victor Reyes himself, and no good reason has been shown why they cannot be relied upon in determining private respondents attendance. Third. Even assuming the charges of habitual tardiness and absenteeism were true, such offenses do not warrant private respondents dismissal. He has not been shown to have ever committed any infraction of company rules during his sixteen-year stint in the company. Although it is alleged that he failed to attend important client meetings and gave false representations to a valued client to cover his tracks, there is no record finding him guilty of such offenses. Dismissal has always been regarded as the ultimate penalty.[37] The fact that lapses in private respondents attendance record may have occurred only during his final year in the company, after a long period of exemplary performance, makes petitioners contention dubious. While it is true that long years of service is no guarantee against dismissal for wrongdoing,[38] at least the employees record does provide an index to his work. In case doubt exists between the evidence presented by the employer and that presented by the employee, the scales of justice must be tilted in favor of the latter.[39] Fourth. The print-outs likewise failed to show that private respondent was allowed due process before his dismissal. The law requires an employer to furnish the employee two written notices before termination of his employment may be ordered. The first notice must inform him of the particular acts or omissions for which his dismissal is sought, the second of the employers decision to dismiss the employee after he has been given the opportunity to be heard and defend himself.[40] These requirements were not observed in this case. As noted earlier, there is no evidence that there was an exchange of communication between petitioners and private respondent regarding the latters supposed substandard performance. Private respondent has consistently denied, however, that he was ever advised of the charges hurled against him. The so-called one-on-one consultations or personal counsellings mentioned in the print-outs between petitioner Reyes and private respondent concerning the latters work habits do not satisfy the requirements of due process, as we had occasion to say in Pono v. NLRC.[41] Consultations or conferences may not be a substitute for the actual holding of a hearing. Every opportunity and assistance must be accorded to the employee by the management to enable him to prepare adequately for his defense, including legal representation. [42] In Ruffy v. NLRC,[43] this Court held that what would qualify as sufficient or ample opportunity, as required by law, would be every kind of assistance that management must accord to the employee to enable him to prepare adequately for his defense. No such opportunity was given to private respondent in this case. He was simply served his termination notice without being heard in his defense. Fifth. Petitioners allege that the NLRC, after concluding that the evidence submitted by them were not properly identified or authenticated, should have remanded the case to the arbiter for clarificatory hearing. A formal hearing was not de rigueur. The 1994 Rules of Procedure of the NLRC, 4 provides: Immediately after the submission by the parties of their position papers/memorandum, the Labor Arbiter shall, motu proprio, determine whether there is a need for a formal trial or hearing. At this stage, he may, at his discretion and for the purpose of making such determination, ask clarificatory questions to further

elicit facts or information, including but not limited to the subpoena of relevant documentary evidence, if any, from any party or witness. As held by the NLRC: Aside from these computer print-outs, respondents have not presented any other evidence to prove that complainant was ever called for investigation nor his side heard prior to receipt of the termination letter dated June 27, 1991. In fact, even if we consider these computer print-outs, respondents still failed to satisfy the requirements of procedural due process. . . . In this particular case, we observe that there is failure on the part of respondents to prove the existence of a legal cause. The evidence presented before the Labor Arbiter did not sufficiently and clearly support the allegation of respondents that complainant committed habitual absences and tardiness resulting into inefficiency.[44] In spite of this finding, petitioners failed to adduce additional evidence when they moved for a reconsideration of the NLRC decision or when they filed the instant petition. Despite the opportunities afforded them, petitioners failed to substantiate their allegations. Neither have they shown sufficient reasons to convince this Court that, if the case were to be remanded to the arbiter for a formal hearing, they would be able to present evidence which they could not have presented during the initial stages of this case. As we held in Megascope General Services v. NLRC:[45] As regards petitioners contention that a hearing has to be conducted to fully ventilate the issues in the case, . . . [s]uffice it to state that nonverbal devices such as written explanations, affidavits, position papers or other pleadings can establish just as clearly and concisely an aggrieved partys defenses. Petitioner was amply provided with the opportunity to present evidence that private respondents were not its employees. Indeed, it was petitioners failure to present substantial evidence to buttress its claims that worked to its disadvantage and not the absence of a full-blown hearing before the public respondent. WHEREFORE, the petition is DISMISSED and the decision of the NLRC, dated April 15, 1994, is hereby AFFIRMED. SO ORDERED.

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

ZALDY NUEZ, complainant, vs. ELVIRA CRUZ-APAO, respondent. DECISION PER CURIAM: What brings our judicial system into disrepute are often the actuations of a few erring court personnel peddling influence to party-litigants, creating the impression that decisions can be bought and sold, ultimately resulting in the disillusionment of the public. This Court has never wavered in its vigilance in eradicating the so-called bad eggs in the judiciary. And whenever warranted by the gravity of the offense, the supreme penalty of dismissal in an administrative case is meted to erring personnel.[1] The above pronouncement of this Court in the case of Mendoza vs. Tiongson[2] is applicable to the case at bar. This is an administrative case for Dishonesty and Grave Misconduct [3] against Elvira Cruz-Apao (Respondent), Executive Assistant II of the Acting Division Clerk of Court of the Fifteenth (15 th) Division,

Court of Appeals (CA). The complaint arose out of respondents solicitation of One Million Pesos (P1,000,000.00) from Zaldy Nuez (Complainant) in exchange for a speedy and favorable decision of the latters pending case in the CA,[4] more particularly, CA-G.R. SP No. 73460 entitled PAGCOR vs. Zaldy Nuez.[5] Complainant initially lodged a complaint with the Action Center of the Television program Imbestigador of GMA Network,[6] the crew of which had accompanied him to the Presidential Anti-Organized Crime CommissionSpecial Projects Group (PAOCC-SPG) in Malacaang where he filed a complaint for extortion[7] against respondent. This led to the conduct of an entrapment operation by elements of the Presidential Anti-Organized Crime Task Force (PAOCTF) on 28 September 2004 at the Jollibee Restaurant, 2nd Floor, Times Plaza Bldg., corner Taft and United Nations Avenue, Manila, [8] the place where the supposed hand-over of the money was going to take place. Respondents apprehension by agents of the PAOCTF in the course of the entrapment operation prompted then CA Presiding Justice (PJ) Cancio C. Garcia (now Supreme Court Justice) to issue Office Order No. 297-04-CG[9] (Order) which created an ad-hoc investigating committee (Committee).[10] The Committee was specifically tasked among others to conduct a thorough and exhaustive investigation of respondents case and to recommend the proper administrative sanctions against her as the evidence may warrant.[11] In accordance with the mandate of the Order, the Committee conducted an investigation of the case and issued a Resolution[12] dated 18 October 2004 where it concluded that a prima facie case of Dishonesty and Serious Misconduct against respondent existed. The Committee thus recommended respondents preventive suspension for ninety (90) days pending formal investigation of the charges against her.[13] On 28 January 2005, the Committee submitted a Report[14] to the new CA Presiding Justice Romeo A. Brawner with its recommendation that respondent be dismissed from service. Based on the hearings conducted and the evidence received by the Committee, the antecedent facts are as follows: Complainants case referred to above had been pending with the CA for more than two years.[15] Complainant filed an illegal dismissal case against PAGCOR before the Civil Service Commission (CSC). The CSC ordered complainants reinstatement but a writ of preliminary injunction and a temporary restraining order was issued by the CA in favor of PAGCOR, thus complainant was not reinstated to his former job pending adjudication of the case.[16] Desiring an expeditious decision of his case, complainant sought the assistance of respondent sometime in July 2004 after learning of the latters employment with the CA from her sister, Magdalena David. During their first telephone conversation[17] and thereafter through a series of messages they exchanged via SMS, [18] complainant informed respondent of the particulars of his pending case. Allegedly, complainant thought that respondent would be able to advise him on how to achieve an early resolution of his case. However, a week after their first telephone conversation, respondent allegedly told complainant that a favorable and speedy decision of his case was attainable but the person who was to draft the decision was in return asking for One Million Pesos (P1,000,000.00).[19] Complainant expostulated that he did not have that kind of money since he had been jobless for a long time, to which respondent replied, Eh, ganoon talaga ang lakaran dito, eh. Kung wala kang pera, pasensiya na.[20] Complainant then tried to ask for a reduction of the amount but respondent held firm asserting that the price had been set, not by her but by the person who was going to make the decision.[21] Respondent even admonished complainant with the words Wala tayo sa palengke iho![22] when the latter bargained for a lower amount.[23] Complainant then asked for time to determine whether or not to pay the money in exchange for the decision. Instead, in August of 2004, he sought the assistance of Imbestigador.[24] The crew of the TV program accompanied him to PAOCCF-SPG where he lodged a complaint against respondent for extortion.[25] Thereafter, he communicated with respondent again to verify if the latter was still asking for the money[26] and to set up a meeting with her.[27] Upon learning that respondents offer of a favorable decision in exchange for One Million Pesos (P1,000,000.00) was still standing, the plan for the entrapment operation was formulated by Imbestigador in cooperation with the PAOCC.

On 24 September 2004, complainant and respondent met for the first time in person at the 2nd Floor of Jollibee, Times Plaza Bldg.,[28] the place where the entrapment operation was later conducted. Patricia Siringan (Siringan), a researcher of Imbestigador, accompanied complainant and posed as his sister-inlaw.[29] During the meeting, complainant clarified from respondent that if he gave the amount of One Million Pesos (P1,000,000.00), he would get a favorable decision. This was confirmed by the latter together with the assurance that it would take about a month for the decision to come out. [30] Respondent also explained that the amount of One Million Pesos (P1,000,000.00) guaranteed a favorable decision only in the CA but did not extend to the Supreme Court should the case be appealed later.[31] When respondent was asked where the money will go, she claimed that it will go to a male researcher whose name she refused to divulge. The researcher was allegedly a lawyer in the CA Fifth (5th) Division where complainant case was pending.[32] She also claimed that she will not get any part of the money unless the researcher decides to give her some.[33] Complainant tried once again to bargain for a lower amount during the meeting but respondent asserted that the amount was fixed. She even explained that this was their second transaction and the reason why the amount was closed at One Million Pesos (P1,000,000.00) was because on a previous occasion, only Eight Hundred Thousand Pesos (P800,000.00) was paid by the client despite the fact that the amount had been pegged at One Million Three Hundred Thousand Pesos (P1,300,000.00).[34] Complainant then proposed that he pay a down payment of Seven Hundred Thousand Pesos (P700,000.00) while the balance of Three Hundred Thousand Pesos (P300,000.00) will be paid once the decision had been released.[35] However, respondent refused to entertain the offer, she and the researcher having learned their lesson from their previous experience for as then, the client no longer paid the balance of Five Hundred Thousand Pesos (P500,000.00) after the decision had come out.[36] Complainant brought along copies of the documents pertinent to his case during the first meeting. After reading through them, respondent allegedly uttered, Ah, panalo ka.[37] The parties set the next meeting date at lunchtime on 28 September 2004 and it was understood that the money would be handed over by complainant to respondent then.[38] On the pre-arranged meeting date, five (5) PAOCTF agents, namely: Capt. Reynaldo Maclang (Maclang) as team leader, SPO1 Renato Banay (Banay), PO1 Bernard Villena (Villena), PO1 Danny Feliciano, and PO2 Edgar delos Reyes[39] arrived at around 11:30 in the morning at Jollibee. [40] Nuez and Siringan arrived at past noon and seated themselves at the table beside the one occupied by the two (2) agents, Banay and Villena. Complainant had with him an unsealed long brown envelope containing ten (10) bundles of marked money and paper money which was to be given to respondent. [41] The envelope did not actually contain the One Million Pesos (P1,000,000.00) demanded by respondent, but instead contained paper money in denominations of One Hundred Pesos (P100.00), Five Hundred Pesos (P500.00) and One Thousand Pesos (P1,000.00), as well as newspaper cut-outs.[42] There were also ten (10) authentic One Hundred Peso (P100.00) bills which had been previously dusted with ultra-violet powder by the PAOCTF.[43] The three other PAOCTF agents were seated a few tables away[44] and there were also three (3) crew members from Imbestigador at another table operating a mini DV camera that was secretly recording the whole transaction.[45] Respondent arrived at around 1:00 p.m.[46] She appeared very nervous and suspicious during the meeting.[47] Ironically, she repeatedly said that complainant might entrap her, precisely like those that were shown on Imbestigador.[48] She thus refused to receive the money then and there. What she proposed was for complainant and Siringan to travel with her in a taxi and drop her off at the CA where she would receive the money.[49] More irony ensued. Respondent actually said that she felt there were policemen around and she was afraid that once she took hold of the envelope complainant proffered, she would suddenly be arrested and handcuffed.[50] At one point, she even said, Ayan o, tapos na silang kumain, bakit hindi pa sila umaalis?,[51] referring to Banay and Villena at the next table. To allay respondents suspicion, the two agents stood up after a few minutes and went near the staircase where they could still see what was going on.[52]

Complainant, respondent and Siringan negotiated for almost one hour.[53] Complainant and Siringan bargained for a lower price but respondent refused to accede. When respondent finally touched the unsealed envelope to look at the money inside, the PAOCTF agents converged on her and invited her to the Western Police District (WPD) Headquarters at United Nations Avenue for questioning.[54] Respondent became hysterical as a commotion ensued inside the restaurant. [55] On the way to the WPD on board the PAOCTF vehicle, Banay asked respondent why she went to the restaurant. The latter replied that she went there to get the One Million Pesos (P1,000,000.00).[56] Respondent was brought to the PNP Crime Laboratory at the WPD where she was tested and found positive for ultra-violet powder that was previously dusted on the money.[57] She was later detained at the WPD Headquarters. At seven oclock in the evening of 28 September 2004, respondent called Atty. Lilia Mercedes Encarnacion Gepty (Atty. Gepty), her immediate superior in the CA at the latters house.[58] She tearfully confessed to Atty. Gepty that she asked for money for a case and was entrapped by police officers and the media.[59] Enraged at the news, Atty. Gepty asked why she had done such a thing to which respondent replied, Wala lang maam, sinubukan ko lang baka makalusot.[60] Respondent claimed that she was ashamed of what she did and repented the same. She also asked for Atty. Geptys forgiveness and help. The latter instead reminded respondent of the instances when she and her co-employees at the CA were exhorted during office meetings never to commit such offenses. [61] Atty. Gepty rendered a verbal report[62] of her conversation with their divisions chairman, Justice Martin S. Villarama. She reduced the report into writing and submitted the same to then PJ Cancio Garcia on 29 September 2004.[63] She also later testified as to the contents of her report to the Committee. During the hearing of this case, respondent maintained that what happened was a case of instigation and not an entrapment. She asserted that the offer of money in exchange for a favorable decision came not from her but from complainant. To support her contention, she presented witnesses who testified that it was complainant who allegedly offered money to anyone who could help him with his pending case. She likewise claimed that she never touched the money on 28 September 2004, rather it was Capt. Maclang who forcibly held her hands and pressed it to the envelope containing the money. She thus asked that the administrative case against her be dismissed. This Court is not persuaded by respondents version. Based on the evidence on record, what happened was a clear case of entrapment, and not instigation as respondent would like to claim. In entrapment, ways and means are resorted to for the purpose of ensnaring and capturing the lawbreakers in the execution of their criminal plan. On the other hand, in instigation, the instigator practically induces the would-be defendant into the commission of the offense, and he himself becomes a coprincipal.[64] In this case, complainant and the law enforcers resorted to entrapment precisely because respondent demanded the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable decision of the latters pending case. Complainants narration of the incidents which led to the entrapment operation are more in accord with the circumstances that actually transpired and are more credible than respondents version. Complainant was able to prove by his testimony in conjunction with the text messages from respondent duly presented before the Committee that the latter asked for One Million Pesos (P1,000,000.00) in exchange for a favorable decision of the formers pending case with the CA. The text messages were properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence[65] which provides: Ephemeral electronic communication refers to telephone conversations, text messages . . . and other electronic forms of communication the evidence of which is not recorded or retained. Under Section 2, Rule 11 of the Rules on Electronic Evidence, Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has

personal knowledge thereof . . . . In this case, complainant who was the recipient of said messages and therefore had personal knowledge thereof testified on their contents and import. Respondent herself admitted that the cellphone number reflected in complainants cellphone from which the messages originated was hers.[66] Moreover, any doubt respondent may have had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and attested to the veracity of the text messages between her and complainant.[67] It is also well to remember that in administrative cases, technical rules of procedure and evidence are not strictly applied. [68] We have no doubt as to the probative value of the text messages as evidence in determining the guilt or lack thereof of respondent in this case. Complainants testimony as to the discussion between him and respondent on the latters demand for One Million Pesos (P1,000,000.00) was corroborated by the testimony of a disinterested witness, Siringan, the reporter of Imbestigador who was present when the parties met in person. Siringan was privy to the parties actual conversation since she accompanied complainant on both meetings held on 24 and 28 of September 2004 at Jollibee. Respondents evidence was comprised by the testimony of her daughter and sister as well as an acquaintance who merely testified on how respondent and complainant first met. Respondents own testimony consisted of bare denials and self-serving claims that she did not remember either the statements she herself made or the contents of the messages she sent. Respondent had a very selective memory made apparent when clarificatory questions were propounded by the Committee. When she was asked if she had sent the text messages contained in complainants cellphone and which reflected her cellphone number, respondent admitted those that were not incriminating but claimed she did not remember those that clearly showed she was transacting with complainant. Thus, during the 17 November 2004 hearing, where respondent was questioned by Justice Salazar-Fernando, the following transpired: Q: After reading those text messages, do you remember having made those text messages? (Respondent) A: Only some of these, your honors. Justice Salazar-Fernando: Which one? A: Sabi ko po magpunta na lang sila sa office. Yung nasa bandang unahan po, your Honors. Q: What else? A: Tapos yung sabi ko pong pagpunta niya magdala siya ng I.D. or isama niya sa kanya si Len David. Q: Okay, You remember having texted Zaldy Nuez on September 23, 2004 at 1309 which was around 1:09 in the afternoon and you said di me pwede punta na lang kayo dito sa office Thursday 4:45 p.m. Room 107 Centennial Building. A: Yes, your Honors. Q: And on September 23, 2004 at 1731 which was around 5:31 in the afternoon you again texted Zaldy Nuez and you said Sige bukas nang tanghali sa Times Plaza, Taft Avenue, corner U.N. Avenue. Magdala ka ng I.D. para makilala kita o isama mo si Len David. A: Opo, your Honors. Q: How about on September 23 at 5:05 in the afternoon when you said Di pwede kelan mo gusto fixed price na iyon.

A: I dont remember that, your Honors. Q: Again on September 23 at 5:14 p.m. you said Alam mo di ko iyon price and nagbigay noon yung gagawa. Wala ako doon. You dont also remember this? A: Yes, your Honors. Q: September 27 at 1:42 p.m. Oo naman ayusin nyo yung hindi halatang pera. You also dont remember that? A: Yes Your Honors. Q: September 27 at 1:30 in the afternoon, Di na pwede sabi sa akin. Pinakaiusapan ko na nga ulit iyon. You dont remember that? A: No, your Honors.[69] Respondent would like this Court to believe that she never had any intention of committing a crime, that the offer of a million pesos for a favorable decision came from complainant and that it was complainant and the law enforcers who instigated the whole incident. Respondent thus stated that she met with complainant only to tell the latter to stop calling and texting her, not to get the One Million Pesos (P1,000,000.00) as pre-arranged. This claim of respondent is preposterous to say the least. Had the offer of a million pesos really come from complainant and had she really intended to stop the latter from corrupting her, she could have simply refused to answer the latters messages and calls. This she did not do. She answered those calls and messages though she later claimed she did not remember having sent the same messages to complainant. She could also have reported the matter to the CA Presiding Justice, an action which respondent admitted during the hearing was the proper thing to do under the circumstances.[70] But this course of action she did not resort to either, allegedly because she never expected things to end this way.[71] While claiming that she was not interested in complainants offer of a million pesos, she met with him not only once but twice, ostensibly, to tell the latter to stop pestering her. If respondent felt that telling complainant to stop pestering her would be more effective if she did it in person, the same would have been accomplished with a single meeting. There was no reason for her to meet with complainant again on 28 September 2004 unless there was really an understanding between them that the One Million Pesos (P1,000,000.00) will be handed over to her then. Respondent even claimed that she became afraid of complainant when she learned that the latter had been dismissed by PAGCOR for using illegal drugs.[72] This notwithstanding, she still met with him on 28 September 2004. Anent complainants narration of respondents refusal to reduce the amount of One Million Pesos (P1,000.000.00) based on the lesson learned from a previous transaction, while admitting that she actually said the same, respondent wants this Court to believe that she said it merely to have something to talk about.[73] If indeed, respondent had no intention of committing any wrongdoing, it escapes the Court why she had to make up stories merely to test if complainant could make good on his alleged boast that he could come up with a million pesos. It is not in accord with ordinary human experience for an honest government employee to make up stories that would make party-litigants believe that court decisions may be bought and sold. Time and again this Court has declared, thus: Everyone in the judiciary bears a heavy burden of responsibility for the proper discharge of his duty and it behooves everyone to steer clear of any situations in which the slightest suspicion might be cast on his conduct. Any misbehavior on his part, whether true or only perceived, is likely to reflect adversely on the administration of justice.[74]

Respondent having worked for the government for twenty four (24) years, nineteen (19) of which have been in the CA,[75] should have known very well that court employees are held to the strictest standards of honesty and integrity. Their conduct should at all times be above suspicion. As held by this Court in a number of cases, The conduct or behavior of all officials of an agency involved in the administration of justice, from the Presiding Judge to the most junior clerk, should be circumscribed with the heavy burden of responsibility.[76] Their conduct must, at all times be characterized by among others, strict propriety and decorum in order to earn and maintain the respect of the public for the judiciary. [77] Respondents actuations from the time she started communicating with complainant in July 2004 until the entrapment operation on 28 September 2004 show a lack of the moral fiber demanded from court employees. Respondents avowals of innocence notwithstanding, the evidence clearly show that she solicited the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable decision. The testimony of Atty. Gepty, the recipient of respondents confession immediately after the entrapment operation, unmistakably supports the finding that respondent did voluntarily engage herself in the activity she is being accused of. Respondents solicitation of money from complainant in exchange for a favorable decision violates Canon I of the Code of Conduct for Court Personnel which took effect on 1 June 2004 pursuant to A.M. No. 03-06-13-SC. Sections 1 and 2, Canon I of the Code of Conduct for Court Personnel expressly provide: SECTION 1. Court personnel shall not use their official position to secure unwarranted benefits, privileges or exemption for themselves or for others. SECTION 2. Court personnel shall not solicit or accept any gift, favor or benefit based on any explicit or implicit understanding that such gift, favor or benefit shall influence their official actions. (Underscoring supplied) It is noteworthy that the penultimate paragraph of the Code of Conduct for Court Personnel specifically provides: INCORPORATION OF OTHER RULES SECTION 1. All provisions of the law, Civil Service rules, and issuances of the Supreme Court governing the conduct of public officers and employees applicable to the judiciary are deemed incorporated into this Code. By soliciting the amount of One Million Pesos (P1,000,000.00) from complainant, respondent committed an act of impropriety which immeasurably affects the honor and dignity of the judiciary and the peoples confidence in it. In the recent case of Aspiras vs. Abalos,[78] complainant charged respondent, an employee of the Records Section, Office of the Court Administrator (OCA), Supreme Court for allegedly deceiving him into giving her money in the total amount of Fifty Two Thousand Pesos (P52,000.00) in exchange for his acquittal in a murder case on appeal before the Supreme Court. It turned out that respondents representation was false because complainant was subsequently convicted of murder and sentenced to suffer the penalty of reclusion perpetua by the Supreme Court.[79] The Supreme Court en banc found Esmeralda Abalos guilty of serious misconduct and ordered her dismissal from the service. This Court aptly held thus: In Mirano vs. Saavedra,[80] this Court emphatically declared that a public servant must exhibit at all times the highest sense of honesty and integrity. The administration of justice is a sacred task, and by the very nature of their duties and responsibilities, all those involved in it must faithfully adhere to, hold inviolate, and invigorate the principle that public office is a public trust, solemnly enshrined in the Constitution. [81] Likewise, in the grave misconduct case against Datu Alykhan T. Amilbangsa of the Sharia Circuit Court, Bengo, Tawi-Tawi,[82] this Court stated:

No position demands greater moral righteousness and uprightness from the occupant than the judicial office. Those connected with the dispensation of justice bear a heavy burden of responsibility. Court employees in particular, must be individuals of competence, honesty and probity charged as they are with safeguarding the integrity of the court . . . . The High Court has consistently held that persons involved in the administration of justice ought to live up to the strictest standards of honesty and integrity in the public service. He should refrain from financial dealings which would interfere with the efficient performance of his duties.[83] The conduct required of court personnel must always be beyond reproach.[84] The following pronouncement of this Court in the case of Yrastorza, Sr. vs. Latiza, Court Aide, RTC Branch 14 Cebu City[85] is also worth remembering: Court employees bear the burden of observing exacting standards of ethics and morality. This is the price one pays for the honor of working in the judiciary. Those who are part of the machinery dispensing justice from the lowliest clerk to the presiding judge must conduct themselves with utmost decorum and propriety to maintain the publics faith and respect for the judiciary. Improper behavior exhibits not only a paucity of professionalism at the workplace but also a great disrespect to the court itself. Such demeanor is a failure of circumspection demanded of every public official and employee.[86] In view of the facts narrated above and taking into account the applicable laws and jurisprudence, the Committee in their Report[87] recommended that respondent be dismissed from government service for GRAVE MISCONDUCT and violation of Sections 1 and 2, Canon 1 of the Code of Conduct for Court Personnel.[88] Finding the Committees recommendation to be supported by more than substantial evidence and in accord with the applicable laws and jurisprudence, the recommendation is well taken. WHEREFORE, premises considered, respondent Elvira Cruz-Apao is found GUILTY of GRAVE MISCONDUCT and violation of SECTIONS 1 and 2 of the CODE OF CONDUCT FOR COURT PERSONNEL and is accordingly DISMISSED from government service, with prejudice to re-employment in any branch, instrumentality or agency of the government, including government-owned and controlled corporations. Her retirement and all benefits except accrued leave credits are hereby FORFEITED. SO ORDERED.

ASSOCIATE JUSTICE DELILAH A.M. No. CA-05-20-P VIDALLON-MAGTOLIS, COURT (Formerly OCA IPI No. 05OF APPEALS, 81-CA-P) Complainant, Present: DAVIDE, JR., C.J., PUNO,* PANGANIBAN,** QUISUMBING,* YNARES-SANTIAGO,* SANDOVAL-GUTIERREZ, - versus - CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES,* CALLEJO, SR., AZCUNA,* TINGA, CHICO-NAZARIO, and GARCIA, JJ.

CIELITO M. SALUD, CLERK IV, COURT OF APPEALS, Promulgated: Respondent. September 9, 2005 x--------------------------------------------------x DECISION

CALLEJO, SR., J.:

Cielito Salud, Clerk IV, Mailing Section of the Judicial Records Division, Court of Appeals (CA) stands charged with the following offenses: 1. 2. 3.

Inefficiency and incompetence in the performance of official duties; Conduct grossly prejudicial to the best interest of the service; and Directly or indirectly having financial and material interest in an official transaction, under Section 22, paragraphs (p), (t) and (u), Rule XIV of the Omnibus Rules Implementing the Civil Service Law.[1]

The Facts

Melchor Lagua was found guilty of homicide in Criminal Case Nos. 118032-H and 118033-H before the Regional Trial Court of Pasig City, Branch 163. [2] On appeal, the case was assigned to the Sixth Division of the Court of Appeals, docketed as CA-G.R. CR No. 27423. Lagua, who was then detained at the Bureau of Prisons National Penitentiary in Muntinlupa City, filed a Very Urgent Petition for Bail. Finding the petition well-taken, the appellate court issued a Resolution on October 9, 2003, directing him to post a P200,000.00 bond. Laguas bond was approved in a Resolution[3] dated November 6, 2003, where the appellate court also directed the issuance of an order of release in favor of Lagua. The resolution was then brought to the Office of the Division Clerk of Court, Atty. Maria Isabel M. Pattugalan-Madarang, for promulgation. Irma Del Rosario, Utility Worker, noticed the respondents unusual interest in the Lagua case. The respondent had apparently been making inquiries whether the appellate court had already directed the issuance of an order of release in the said case and was initially told there was none yet. Due to his persistence, the records of the case were eventually found.[4] Atty. Madarang then directed the typing of the Order of Release Upon Bond, [5] and to notify the mailing section that there were orders requiring personal service. [6] At around 4:00 p.m., the respondent then went to Atty. Madarangs office and assisted in arranging and stapling the papers for release. He brought the said resolutions and other papers himself to the Mailing Section. [7] On November 7, 2003, the respondent went to the National Penitentiary to serve the resolution and order of release in the Lagua case. The respondent left the prison compound at around 2:30 p.m. [8] In the meantime, Atty. Madarang received a telephone call from a certain Melissa Melchor, who introduced herself as Laguas relative. It was about 2:00 p.m. The caller asked her how much more they had to give to facilitate Laguas provisional liberty. The caller also told Atty. Madarang that they had sought the help of a certain Rhodora Valdez of the Regional Trial Court (RTC) of Pasig, where the criminal case originated, but were told that they still had a balance to be given to Justice Magtolis and Atty. Madarang through the respondent. Atty. Madarang then called the said court and asked to speak to Ms. Valdez, pretending to be Laguas relative. What transpired thereafter is contained in Atty. Madarangs Affidavit dated December 8, 2003, as follows: 4.

That upon telephone queries made with the office of the Clerk of Court of RTC Pasig, I learned that Rhodora Valdez is the incumbent Process Server of RTC, [Branch] 163, Pasig

City, from which the original case against accused-appellant Lagua originated. Disguising myself as accused-appellant Laguas relative, I dialed [Branch] 163, RTC, Pasig (6314273) but Rhodora Valdez did not report for work that day, according to Baby (also known as Ester), her officemate (who) answered my call. She added that Rhodora Valdez has been waiting for us (Laguas relatives) to call. Her exact words were these: Wala si Rhodora. Meron lang siyang nilakad. Pero kahapon pa nya hinihintay ang tawag nyo. May kulang pa kayo eh. Kailangan kasing i-en banc sa Court of Appeals ang kaso ni Lagua. 5.

That I coordinated with Ms. Cecil Secarro, the Acting Chief of the Mailing Section, to inquire if it was usual/normal for her to text her process servers on the field for an update of their deliveries, to which she answered in the affirmative. While she was in the office, she texted Salud for his whereabouts and he replied, that he was on his way back to Quezon City. That was before 4 p.m., adding that his deliveries were ok.

6.

That I got Saluds mobile phone number from Ms. Secarro and started texting him at about the same time Ms. Secarro did. I represented myself as Arlyn, Laguas relative. Most of his text messages are still stored in my mobile phone. In fact, I received one text message from him while I was at the office of Justice Magtolis, (the Chairman of the 6 th Division and the ponente of C.R. No. 27423) in the late afternoon of November 7, 2003 while reporting to her this incident. Those stored in my phone are the following: 1. bkit, C rhodora to. 639204439082. Nov. 2003, 15:36:15 2. CNO KAMAGANAK AT ANONG PANGALAN MO 639204439082, 7 Nov 2003 16:14:47 3. SINO K KC NAGHIWALAY N KAMI 639204439082, 7 Nov 2003 16:40:21 4. TAWAG K S AKIN 639204439082 7 Nov 2003 17:18:47 5. NARELEASE N C MR. LAGUA. NAGKITA N B KAYO 639204439082-7 Nov 2003 19:44:52 6. Magkano b and binigay nyo sa middle nyo. Puede bang malaman 639184470111-7 Nov 2003 20:32:05 7. Gud evening. May gusto lng akong malaman. Sana alang makaalam kahit cino. Lito 6391844701117 Nov. 2003 19:54:20 8. Cno ang kausap n Rhodora. Pwede bang malaman 639184470111-7 Nov 2003 20:37:57 9. May landline ka. Tawagan kta bukas nang umaga 639184470111-7 Nov 2003 20:56:31 10. Wag s Court of Appeal. Txt na lang kta kung saan. 639184470111-7 Nov 2003 20:52:58 11. Gusto mo bukas nang umaga magkita tyo. 639184470111 7 Nov 2003 20:57:10 12. D ba pwede bukas tyo kita. May gusto lang ako malaman 639184470111 7 Nov 2003 21:02:41 13. D 2ngkol kay rhodora duon sa kasama ko kaninang lalakeng pinsan 639184470111 7 Nov 2003, 21:04:28

14. Ala po ako sa Lunes sa opis. Sa hapon po puede kyo 639184470111, 7 Nov 2003 21:07:23 15. Kay Melchor Lagua 639184470111 7 Nov 2003 21:08:19 16. Kasama ko cya kanina nang lumabas 639184470111 7 Nov. 2003 21:13:05 17. Ano m ba Melchor Lagua 639184470111 7 Nov 2003 21:15:52 18. Between 5 and 5:30 ng hapon. Bkit. 639184470111 7 Nov. 2003 21:54:24 19. 3 PM PUWEDE KB 639004039082 10 Nov 2003 12:09:32 20. Kilala mo b c rhodora. Nagkita na b kayo. Ala naman problema sa kanya. Ok naman 639184470111 7 Nov 2003, 21:57:13 21. MAGKITA N LANG TAYO 639204439082 10 Nov. 2003, 12:20:16 22. A, OK, NAGKITA N B KAYO NG KAMAGANAK MO 639204439082 10 Nov 2003 15:12:14 23. D TALAGA AKO DARATING DAHIL WALA AKONG KAILANGAN S IYO. 639204439082 10 Nov 2003 18:36:03 7.

That Salud called me up in the morning of November 8, 2003 at around 7:33 but I purposely did not answer him. Why did he need to call me up?

8.

That I personally called up the Bureau of Prisons for the exact time the Order of Release was delivered and when accused appellant Lagua was released. I learned that the Order of Release was received at 9:15 A.M. and that Lagua was released between 5-5:30 P.M. of November 7, 2003.

9.

That I was able to talk to Rhodora Valdez the following Monday, November 10, 2003. Again, I introduced myself as Laguas relative, Arlyn and told her I only wanted to know how much more we had to pay for Laguas release. She refused to entertain me because according to her, Hindi ikaw ang kausap ko. Duda ako sa yo. Kung gusto mo, puntahan mo ako dito bukas, para magkita tayo. Pero lumabas na si Lagua. Itinawag sa akin ni Lito Salud. Then, she [hung] up.

10. That on Tuesday, November 11, 2003, I brought Salud, accompanied by Ms. Secarro to Justice Magtolis. Out of the confrontation, we discovered that Salud did not properly serve the copies of the Resolution and Order of Release upon the accused-appellant and his counsel, Atty. Salvador C. Quimpo of the Quimpo Dingayan-Quimpo and Associates. He gave them to a certain Art, allegedly Laguas relative who he claimed approached him at the Bureau of Prisons in the morning of November 7, 2003. He told Justice Magtolis that he gave these documents to Art, who promised to take care of them, even before he could deliver the copy addressed to the Director of Prisons. He never mentioned that this Art was connected with the office of accused-appellants counsel. Because of this information from Salud himself, I did not sign the Certificate of Service, Annex C. 11. That several days later, Salud accompanied by Ms. Secarro, came to my office to apologize. But before he could even say a word, he broke down in [wails]. In between his loud cries, he uttered, Boss, patawad po, alang-alang sa aking mga anak.[9]

On November 11, 2003, Justice Magtolis called the respondent to her office. When confronted, the respondent denied extorting or receiving money for Laguas release, or in any other case. He, however, admitted serving the copies of resolution and order of release intended for Lagua and his counsel to Art Baluran. [10] Justice Magtolis then called the respondent to a meeting with Clerk of Court Atty. Tessie L. Gatmaitan, who stated that she would transfer the respondent to another office which has nothing to do with cases. Justice Magtolis lodged the complaint against the respondent in a Letter dated November 14, 2003, containing, among others, the following allegations: The delivery of resolutions/orders to unauthorized persons and complete strangers who promised to take care thereof (siya na raw ang bahala) constitutes not only neglect of duty but also conduct prejudicial to the best interest of the service. Staying for the whole day within the vicinity of the National Bilibid Prisons to the point of failing to fulfill his other duties for the day constitutes inefficiency and incompetence in the performance of official duties. On the other hand, the use of my name and that of our Division Clerk of Court to illegally solicit financial or material benefit from parties with pending cases before this Court is illegal per se. In view of the foregoing, it is respectfully requested that Cielito Salud be subjected to an administrative investigation and disciplinary action.[11] Attached to the complaint were the following documents to support the charges: ANNEX A - Record of the cases received by Salud on November 6, 2003 for delivery/service the following day, November 7, 2003. Please note that in each of the 3 cases assigned to him, there are several parties/counsels to be served. ANNEX B - Certificate of Service signed by Salud, attested by the Acting Chief of the Mailing Section and Division Clerk of Court Ma. Ramona L. Ledesma, showing that the parties/counsel in SP-67586 were served only on November 10, 2003 (not on November 7, 2003). ANNEX C - Certificate of Service for CR-27423, and corresponding Delivery Receipts. C-1 - Delivery Receipts for Defense Counsel Salvador Quimpo signed by someone whose signature was identified by Salud [as] Art a cousin of appellant Melchor Lagua. C-2 - Delivery Receipt for the accused-appellant, received by the same Art and not served thru the Director of Prisons. C-3 - Delivery Receipt for the OSG, showing that it was delivered/received by the said office on November 10, 2003, not on November 7, 2003. C-4 - Delivery Receipt for the Director of Prisons showing receipt on November 7, 2003. ANNEX D - Record of Resolutions in 3 other cases (SP-80241, SP-65404 and SP-77957) received for service by Salud on November 10, 2003. The resolutions/processes in these 3 cases were delivered/served to the parties/counsel on November 10, 2003 together with undelivered resolutions left unserved/undelivered on November 7, 2003. ANNEX E - Certification signed by Salud showing service to parties/counsel in SP-65404 (received by Salud on November 10, 2003) on November 10, 2003 (same date) ANNEX F, F-1 & F-2 - Delivery Receipts for parties/counsel in SP-65404, showing service/delivery on November 10, 2003 in contrast to his minimal delivery/services on November 7, 2003 only in Muntinlupa. ANNEX G - Copy of the resolution dated November 6, 2003 of the 6 th Division approving the appellants bond and directing the issuance of an order of release.

ANNEX H - Copy of the Order of Release upon Bond, which Salud was supposed to deliver, among others on November 7, 2003 to the defense counsel, the appellant and the OSG. [12] In his counter-affidavit,[13] the respondent vehemently denied the charges. He never demanded money from Laguas relative; his name had been used by someone and was, thus, a mere victim of the circumstances. Moreover, the fact that he immediately released the CA order in question was clear proof that he had no financial interest in the transaction. His version of the events that occurred that day is as follows: 4.1

That on November 6, 2003 at around 1:38 p.m. the Acting Chief of the Mailing Section gave me an assignment to deliver the Writ of Habeas Corpus (hearing on November 26, 2003 at RTC, Zamboanga) for CA-G.R. SP No. 80238 for delivery to NBI, PAO, Quezon City, Muntinlupa;

4.2

That I delivered a copy of the Writ of Habeas Corpus to [the National] Bureau of Investigation (NBI);

4.3

That while I was at the NBI, I received a text message from my boss, requesting me to return to the office immediately because there is another notice of resolution coming from Atty. Ledesma which I have to serve to Quezon City and Las Pias;

4.4

In compliance with the request, I returned to the Office and arrived at around 3:15 p.m.;

4.5

That when I received the resolution, I read the same and found out that the hearing is still scheduled on December 10, 2003 at 10:30 a.m.;

4.6

That when I was about to leave to deliver the Writ of Habeas Corpus and the Notice of Hearing to the PAO, Quezon City, my officemate Jun Vicencio told me to wait because Irma, the staff of Atty. Madarang requested me to standby because I need to deliver the Order of Release to the New Bilibid Prison, Muntinlupa;

4.7

That because of the request I waited until 4:00 p.m.;

4.8

That because its already late, I decided to go to Atty. Madarangs office to inquire about the Order of Release which I need to deliver to the New Bilibid Prison, Muntinlupa;

4.9

That Atty. Madarang told me to wait a little while because the order is about to be finished. So I waited.

4.10

That Atty. Madarang gave to me the Order of Release at 4:15 p.m.

4.11

That because I am aware that I may not reach [the] New Bilibid Prison on time, I told Atty. Madarang that I can deliver it on November 7, 2003, early in the morning. She agreed and told me THANK YOU Ikaw na ang bahala;

4.12

That I informed my boss about the Order of Release that was assigned to me and she had it listed in our logbook. I asked my boss [Cecil Secarro] if I can deliver the Notice of Hearing for SP 67586 and the others on Monday if I cannot finish delivering them on November 7, 2003. She agreed but told me to be sure that the Order of Release will be served first and the others be served not later than Monday, November 10, 2003. Thereafter, I went home.

4.13

That on November 7, 2003, I went straight to [the] New Bilibid Prison and arrived there before 8:00 [a.m.] Unfortunately, all the staff wearing white uniforms and the security

guards were falling in line in front of the building of the New Bilibid Prison. So I could not enter the administration office. 4.14

That while I was standing in front of the building where the administrative office is located, a certain ART approached me and asked me if I am the personnel of the Court of Appeals who will deliver the Order of Release.

4.15

That I said yes, and he told me his name and said that he is a relative of MELCHOR LAGUA (prisoner) and is connected with the office of Atty. [Quimpo].

4.16

That at around 9:30 [a.m.] I was able to enter the administrative offices but because there was no staff inside I went to the documentation office. The staff in the documentation office told me to submit the Order of Release to the administrative office. He said that they will prepare the documents of MELCHOR LAGUA (prisoner) but also told me that the prisoner might be released on Monday yet because the signatories are busy attending the ongoing 98 anniversary celebration;

4.17

That I returned to the administrative office and was able to find Mr. JUANITO TORRES, Administrative Officer III, who received the copy for the Director but refused to receive the copy of Mr. LAGUA. He told me to wait for his staff to receive the copy of Mr. LAGUA;

4.18

That because the staff were not around, I went to the canteen to buy softdrinks to quench my thirst;

4.19

That Mr. ART followed me in the canteen and told me to assist in the release of Mr. LAGUA because there were no personnel attending to the Order of Release;

4.20

That since my boss told me to insure the release of the prisoner, I waited for my staff to arrive who will attend to the matter;

4.21

That I delivered the copy of Mr. LAGUA to the staff. But ART told them he can receive the copy of Mr. LAGUA because he is his relative so, the staff told me to give the copy to ART.

4.22

That I gave the copy of the Order of Release for the accused to ART. ART also told me that he is authorized to receive the copy for Atty. Quimpo because he is also the representative of the law office. Hence, I also gave the copy for Atty. Quimpo to ART;

4.23

That I was able to finish my duty at the New Bilibid Prison at around 2:30 [p.m.] and I proceeded to Purok I, 6A Bayanan, Muntinlupa to serve the Writ of Habeas Corpus in CA-G.R. SP No. 80238;

4.24

That because of [sic] the address of the addressee was incomplete, I found a hard time locating the address of the addressee and when I found Purok I, 6A, the persons thereat do not know JOEL DE LA PAZ. I asked for their help but nobody in the place knew JOEL DE LA PAZ;

4.25

That I left Muntinlupa late in the afternoon and due to the lack of time I decided to deliver the other documents on the next working day which is Monday, November 10, 2003;

4.26

That I delivered the other documents on Monday, November 10, 2003, without any problem;

4.27

That I was surprised when Atty. Madarang later on accused me that I used her name and the name of Justice Magtolis to demand money from Mr. LAGUAS relative. [14]

Considering the gravity of the charges, then Acting Presiding Justice Cancio C. Garcia [15] referred the matter to Atty. Elisa B. Pilar-Longalong, Assistant Clerk of Court, for investigation, report, and recommendation.

The Investigation The requisite hearings were held from December 12, 2003 to August 4, 2004. Atty. Madarang affirmed the contents of her Affidavit[16] dated December 8, 2003. She testified that the respondent later came to her office along with Ms. Secarro. Amidst his cries, he pleaded, Boss, patawad po, alang-alang sa aking mga anak. She replied, Wait, wala ka namang kasalanan sa akin. Ikaw ang nagpasimuno ng lahat ng ito. The respondent repeated, Boss, patawad po alang alang sa aking mga anak, and Atty. Madarang answered, Okey lang, pinatawad na kita. Hindi naman ako galit sa iyo.[17] Justice Magtolis testified that Atty. Madarang reported having received a telephone call from the alleged relative of Lagua. She narrated that she gave the name Arlyn to the caller, and, thereafter, exchanged text messages with the respondent. Justice Magtolis instructed Atty. Madarang to continue communicating with the respondent and, if possible, to see it through a possible pay-off where a National Bureau of Investigation (NBI) agent would be asked to assist them. However, the entrapment did not materialize. The respondent thereafter came to her office, where he was asked why he was unable to serve all the other papers and documents that day.[18] He also admitted that he served a copy of the resolution to the wrong person (Baluran). Justice Magtolis also stated that she threatened to transfer the respondent, and that the latter vehemently objected, pleaded, and cried saying, Huwag naman pong pa-transfer. When asked why, the respondent said that he has children in school and something like, Dyan po ako kumikita.[19] Another witness was Cristy Flores, convicted of three counts of estafa who served time at the Correctional Institute for Women in Batangas City. She testified that the respondent was introduced to her in December 1998 by a certain Crisanta Gamil.[20] Gamil was also detained at the correctional facility; the respondent had worked on her appeal bond papers and asked for P20,000.00 to facilitate the issuance of the appeal bond. [21] The payment was made right in front of her, and the respondent issued a receipt. [22] The witness also testified that Gamil told her, O, at least dyan mo ipalakad ang papel mo. Okay ′yan, sigurado.[23] The respondent visited her in May 1999, as she had asked him to fix her appeal bond. During the visit, the respondent took the pertinent documents from her.[24] The witness also stated that she gave the respondent a partial payment of P7,000.00[25] on May 16, 1999 and he issued a receipt.[26] They then proceeded to the Documents Section where they secured copies of the court decision, certificate of manifestation and her picture. She made the last payment of P13,000.00 in June 13, 1999, and also issued a receipt. The respondent was also asking for an additional payment of P15,000.00, which she was unable to give. Flores narrated that she introduced another detainee to the respondent, Dalawangbayan, whom the latter was also able to help. She stated that according to Dalawangbayan, the respondent asked for P200,000.00. She further testified that she knew the respondent as Joselito M. Salud, and not Cielito Salud. [27] After the incident, she wrote a letter to Associate Justice Conrado Vasquez, Jr. to ask for assistance regarding her appeal bond. Atty. Salvador Quimpo, Laguas counsel, testified that it was Engineer Art Baluran who hired him as counsel of the said accused. He stated that he gave an oral authorization to Baluran to get the CA resolutions or orders; Baluran was the one who furnished him a copy of the resolution. [28] He called Mr. Baluran to say that an order for Laguas release had already been issued by the appellate court. The witness stated, however, that he had never seen the respondent before.[29] The respondent testified that he has been a CA employee since 1991. He admitted that he knew Flores, and met her in January 1999 when he brought Gamils order of release in the Batangas City Jail. He claimed that he was waiting for the relatives of Gamil as they were the ones who would pay for his fare home, and while waiting, he

talked to the jailguard/warden. Flores then approached him and asked him if he was from the CA. When the respondent answered in the affirmative, Flores replied that Justice Vasquez was her neighbor in Bian, Laguna. The respondent admitted that he was in the Correctional Institute for Women in Mandaluyong City on May 16, 1999, as he was then visiting Vilma Dalawangbayan. He also saw Flores. [30] When asked why he visited Dalawangbayan, the respondent replied that Flores had written a letter to him (which he dubbed as maintrigang sulat)[31] addressed Lito Salud, Mailing Section, Court of Appeals. In the said letter, Flores asked him to help Dalawangbayan, just like he had helped Gamil. The respondent then showed the letter to then Chief of Office Prudencio B. Aguilar, who told him, Puntahan mo yan, Lito at maintriga ′yang sulat na yan, baka tayo mapahamak dyan.[32] Thus, he went to the Correctional Institute in Mandaluyong City to sort things out with Dalawangbayan and Gamil. The respondent, however, stated that he could not find the letter anywhere and had already been lost. [33] During his May 16, 1999 visit to the correctional facility, Flores approached him in the visiting hall, and said suddenly, Sandali lang, Kuya, then left. He then talked to Dalawangbayan about the controversial letter, explaining that his job in the Court of Appeals was only to remand the records and deliver the Orders for release, just like what he did in Gamils case. [34] He again visited Dalawangbayan on June 13, 1999[35] as evidenced by the entries in the visitors logbook. He was no longer able to speak to Flores, but made five other such visits to Dalawangbayan in the correctional facility.

The Findings of the Investigating Officer In her Report dated January 21, 2005, Atty. Longalong found that the respondent was guilty as charged, and made the following recommendation: In view of all the foregoing, there is substantial evidence to hold respondent liable for the offenses charged. He is liable for inefficiency and incompetence in the performance of his official duties and for conduct prejudicial to the best interest of the service when he admittedly served the copies of the resolution and order of release in the Lagua case intended for detained appellant and his counsel on Mr. Baluran whom he admitted to have met only on that day, against the rules and normal office procedure on personal service. His long stay in the Bureau of Prisons also caused the delay in the service of other court processes assigned to him for service on that day. He is also liable for having financial or material interest in an official transaction considering his undue interest in the service of the order of release and actual release of Lagua to the point of staying almost the whole day in the Bureau of Prisons and the aborted deal as can be concluded from the phone call of Melissa Melchor to Atty. Madarang and subsequent exchange of text messages with Atty. Madarang disguising as Laguas relative. RECOMMENDATION: 1. Rule IV, Section 52 of Civil Service Commission Memorandum Circular No. 19, S. 1999, issued pursuant to Book V of the Administrative Code of 1987, provides that the penalty for the first offense of inefficiency and incompetence in the performance of official duties, for conduct prejudicial to the best interest of the service and for directly or indirectly having financial and material interest in any official transaction is suspension for a period of 6 months, 1 day to 1 year. Pursuant to Section 55 of the same Memorandum Circular, if the respondent is found guilty of 2 or more charges, the penalty to be imposed should be that corresponding to the most serious charge and the rest shall be considered as aggravating circumstances. Section 54-c of the same Memorandum Circular provides that the maximum of the penalty shall be imposed where only aggravating and no mitigating circumstances are present. Since in this case, the penalty is the same for all 3 offenses, the maximum of the penalty for the first offense which is suspension for 1 year [may be] imposed on the respondent. 2. Considering that the prescribed penalty for the offense exceeds one month suspension, the case may now be referred to the Supreme Court for appropriate action, pursuant to Circular No. 30-91 of the Office of the Court Administrator. [36]

The Ruling of the Court On the charge of inefficiency, the respondent is clearly administratively liable. After serving Laguas copy of the resolution and order of release to the prison Director, he should have immediately returned to his station or served the other resolutions and documents for personal service. As an officer of the court, the respondent plays an essential part in the administration of justice. He is required to live up to the stringent standards of his office, and his conduct must, at all times, be above reproach and suspicion. He must steer clear of any act which would tend to undermine his integrity, or erode somehow the peoples faith and trust in the courts. [37] As the respondent himself admitted, he stayed on until 2:30 p.m. without any valid reason, despite the fact that he knew he still had to serve several orders and resolutions. As pointed out by the Investigating Officer, inefficiency and incompetence in the performance of official duties is classified as a grave offense, and is punishable by suspension for six months and one day to one year.[38] Indeed, the complainant in administrative proceedings has the burden of proving the allegations in the complaint by substantial evidence. If a court employee is to be disciplined for a grave offense, the evidence against him must be competent and derived from direct knowledge; as such, charges based on mere suspicion and speculation cannot be given credence. Thus, if the complainant fails to substantiate a claim of corruption and bribery, relying on mere conjectures and suppositions, the administrative complaint must be dismissed for lack of merit.[39] However, in administrative proceedings, the quantum of proof required to establish malfeasance is not proof beyond reasonable doubt but substantial evidence, i.e., that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion, is required. [40] The findings of investigating magistrates on the credibility of witnesses are given great weight by reason of their unmatched opportunity to see the deportment of the witnesses as they testified.[41] To determine the credibility and probative weight of the testimony of a witness, such testimony must be considered in its entirety and not in truncated parts. To determine which contradicting statements of a witness is to prevail as to the truth, the other evidence received must be considered. [42] Thus, while it is true that there is no direct evidence that the respondent received any money to facilitate the release of detained Lagua, the following circumstances must be taken as contrary to the respondents plea of innocence: First. The respondent admitted that he was the sender of the first three text messages in Atty. Madarangs cellphone: bkit, C rhodora to; CNO KAMAGANAK AT ANONG PANGALAN MO; and SINO K KC NAGHIWALAY N KAMI. The respondents testimony on the matter is as follows: Q: In the hearing of December 2, 2003, in the TSN on page 32 onwards ATTY. ROSERO: Is that the testimony of Atty. Madarang, Justice? JUSTICE MAGTOLIS: Oo. I will just refer to your admission through your counsel that Cellphone No. 6392044390[8]2 is yours. You admitted that? ATTY. ROSERO: I think we made an admission as to that matter, Justice. Well just check the affidavit of Atty. Madarang. JUSTICE MAGTOLIS: Here, admitted. Basahin mo.

ATTY. ROSERO: Yes, Justice, admitted but not the cellphone number JUSTICE MAGTOLIS: Sige, ulitin natin, 6392044390[9]2. ATTY. ROSERO: Yes, admitted. That is his cellphone. JUSTICE MAGTOLIS: This cellphone is yours. Q: Do you also admit that you called Atty. Madarang several times on November 7, 2003? ATTY. ROSERO: November 7 is a Friday. Tumawag ka daw several times kay Atty. Madarang, November 7? JUSTICE MAGTOLIS: Texted, Im sorry I will correct that, texted. A: Nauna po siyang magtext sa akin, Justice, hindi po ako nagtext sa kanya. Nagtext po siya sa akin sumagot po ako sa kanya. Q: There was an exchange several times? A: Nuong pong text niya sa akin hindi po several times dahil kung makita ′nyo po dyan.

JUSTICE MAGTOLIS: Let me see the affidavit of Atty. Madarang. After this question, may I ask for a continuance? ATTY. ROSERO: No objection, Your Honor. JUSTICE MAGTOLIS: All these text messages were checked by us with your counsel in the cellphone of Atty. Madarang which were preserved until we allowed her to erase these. There are exchanges here: 6392044390[8]2, November 7. When she texted she answered, Bkit c Rhodora 2 and then second was, Cnong kamaganak anong pangalan mo? This is addressed to you, this is your telephone? A: Opo. Q: But the one who answered is Rhodora? A: Ako po ′yun. Q: Ikaw ang sumasagot. Why did you say that you are Rhodora?

A: Justice, nung ma-receive ko po ′yong text niya apat na beses ko pong na-receive ang text ni Arlene. INVESTIGATOR: Who is Arlene? A: Atty. Madarang. Arlene, sa text po niya sa akin, Sir Lito, kamaganak po ito ni Mr. Lagua. Magkano pa po ba ang kakulangang pera para ibigay ko sa inyo. Si Rhodora ba kasama? Hindi ko po sinagot yon. Pangalawa, ′yun din po ang message nya. Ano ito? Sa akin pong kuan, sa pag-iisip ko lang po, bakit dahil si Mr. Art Baluran kamag-anak na, ano ito? Text pa ulit pa sya ng pangatlo. Nang-iintriga na ′to. Pang-apat, intriga ′to. Text ko nga rin ′to, lokohan lang tayo. Bkit si Rhodora ′to yun po ang sagot ko sa kanya. Q: So at that time you already knew about Rhodora? A: Hindi po, dun, duon po sa text niya nakalagay po dun eh, Si Rhodora kasama ba? So ikinuan ko po na si Rhodora ′to, dun po sa text nya. Q: Nakipaglokohan ka? A: Sa text niya nakalagay dun na Si Rhodora ba kasama kaya po ako nakipaglokohan dun. [43] As pointed out by the Investigating Officer, the respondents claim of joking around (nakipaglokohan) with an unknown sender of a text message by replying thereto is contrary to a normal persons reaction. This is made even more apparent by the fact that the respondent even admitted that he called Atty. Madarang twice, and when asked why, gave a vague answer, and, when further questioned, even broke down in tears.[44] The respondents claim that the admission of the text messages as evidence against him constitutes a violation of his right to privacy is unavailing. Text messages have been classified as ephemeral electronic communication under Section 1(k), Rule 2 of the Rules on Electronic Evidence, [45] and shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. Any question as to the admissibility of such messages is now moot and academic, as the respondent himself, as well as his counsel, already admitted that he was the sender of the first three messages on Atty. Madarangs cell phone. This was also the ruling of the Court in the recent case of Zaldy Nuez v. Elvira Cruz-Apao.[46] In that case, the Court, in finding the respondent therein guilty of dishonesty and grave misconduct, considered text messages addressed to the complainant asking for a million pesos in exchange for a favorable decision in a case pending before the CA. The Court had the occasion to state: The text messages were properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence, which provides: Ephemeral electronic communication refers to telephone conversations, text messages and other electronic forms of communication the evidence of which is not recorded or retained. Under Section 2, Rule 11 of the [said rules], Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof . In this case, complainant who was the recipient of the said messages and therefore had personal knowledge thereof testified on their contents and import. Respondent herself admitted that the cellphone number reflected in complainants cellphone from which the messages originated was hers. Moreover, any doubt respondent may have had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and attested to the veracity of the text messages between her and complainant. It is also well to remember that in administrative cases, technical rules of procedure and evidence are not strictly applied. We have no doubt as to the probative value of the text messages as evidence in determining the guilt or lack thereof of respondent in this case.

Second. The respondents testimony during the hearings held before Investigating Officer Atty. Longalong is replete with inconsistencies and loopholes. He claimed that he made inquiries from other CA staff and learned that there was indeed a deal between someone in the criminal section and a certain Rhodora of the RTC, Pasig. He further claimed that the said parties wanted to get back at him for immediately serving the release order which prevented them from demanding the balance of the deal from Laguas relative. However, this bare claim was not corroborated by any witness. Moreover, the respondent alleged that two anonymous callers claimed to know something about the case against him; when asked about it, he stated that he no longer exerted efforts to find out who they were as they did not give out their names: JUSTICE MAGTOLIS: Q: On page 5 of your affidavit, you said in paragraph 8 That I made some inquiry and some personnel of the Court of Appeals told me that there is indeed a deal between a staff in the Criminal Section and Rhodora of RTC, Pasig. Can you tell us who is this staff? A: Ah dito po Justice, hindi po siya nagpakilala, sa telephono po.

INVESTIGATOR: Sino siya? A: Hindi po siya ′yong tawag po niya sa akin sa telepono nang malaman po dito sa CA na ako ay kinasuhan ninyo tumawag po siya sa Personnel. JUSTICE MAGTOLIS: Q: Who is siya? A: Ay hindi po siya nagpakilala. INVESTIGATOR: Lalaki o babae? A: Una po babae tapos ′yong pangalawa po lalaki. INVESTIGATOR: Sinong kinakausap? A: Ako po. INVESTIGATOR: Hinahanap ka? A: Hinahanap po nila ako. JUSTICE MAGTOLIS: Q: What did he tell you? He, lalaki, ano? A: Sa babae muna po? Q: Oo, babaet lalake ba? A: Opo.

Q: Who was the first caller, the lady or the gentleman? A: Babae po. Q: Were you the one who answered the phone? A: Hindi po. INVESTIGATOR: Hinahanap daw siya. JUSTICE MAGTOLIS: Q: Hinahanap ka, okay, when you answered the phone, what did you say? A: Ang sabi ko po sa kanya, pupuwede mo ba akong matulungan sa paggawa ng affidavit dahil kinasuhan nga ako ni Justice Magtolis.

Q: But you do not know who you were talking to? A: Tinanong ko nga po kung sino siya eh tumutulong lang daw siya sa akin dahil ang naririnig niyang tsismis din dyan eh baka po si Rhodora ang may ka-kuan sa Criminal. Q: Saan ′yong ka-kuan? A: Ang may kausap sa Criminal. Q: Who said na baka si Rhodora ang may kausap sa Criminal? A: ′Yon pong kausap ko sa kabilang linya. Q: The name you do not know? A: Eh tinanong ko naman po kung sino siya ayaw naman po niyang magpakilala. Matutulungan mo ba ako, ibinaba na po ang telepono. INVESTIGATOR: Anonymous caller. JUSTICE MAGTOLIS: You are very fond of answering calls. You dont even know the name. Q: That anonymous caller told you that there must be some deals between Rhodora and someone from the Criminal Section? A: ′Yun din daw po ang naririnig niyang tsismis dyan sa labas. Q: Tsismis, that was that the caller told you? A: Opo. Q: And she wanted to help you? A: Kaya po sinabi din sa akin na tsismis eh hindi pa po pwedeng Q: What did you answer her? INVESTIGATOR: Anong sagot mo raw?

JUSTICE MAGTOLIS: Q: Anong sagot niya sa tulungan kasi nakakarinig siyang tsismis? INVESTIGATOR: Q Ano ang sagot mo? A: Eh iyon nga ang gusto kong malaman, ang katotohanan. Baka naman pupuwede mo akong matulungan. Sino ba ′to? JUSTICE MAGTOLIS: Q: Di ba she was the one who offered to help? A: Ay ayaw daw po naman niyang masabit po ang pangalan niya. Q: But she was the one who called you? A: Opo. Q: Okay. How did your talk end with this girl or lady? A: Nung pagsalita ko nga pong baka pupuwede akong tulungan, wala na. Q: How about the man, the gentleman or the boy who called? A: Same kuan din po ang kanilang kuan e. JUSTICE MAGTOLIS: Dont use kuan. ATTY. ROSERO: Sige, Lito, ipaliwanag mo. A: Same kuento rin po, sinabi niya na ganuon din po na narinig din po niya sa labas. JUSTICE MAGTOLIS: Q: Alright, you were not the one who answered the call? A: Hindi po. Q: Somebody called you that theres a phone call? A: Opo. Q: When you answered, what was your first word? A: Hello! Q: What was the answer at the other end of the line? A: Hello rin po. Q: What next? A: Alam mo, ang sabi po niya sa akin ganito po Q: Who was the first one who said something other than hello? A: Siya po ang nauna. Q: What did she say, the exact words?

A: Exact words, sa naalala kong sinabi niya Alam mo, Mr. Salud, Salud po ang kuan niya sa akin, narinig ko sa labas, istoryahan dyan sa labas na baka si Rhodora ang may ka-kuan dito sa Criminal. Ang sabi ko po sa kanya Iyan din ang itinawag sa akin kahapon. Eh dalawa na kayo eh baka naman pupuwede nyo akong matulungan. Puede ko bang malaman ang pangalan mo? Ganun din po, ayaw na pong magsalita ibinaba na [ang] telepono. Q: Do you know Rhodora? A: Hindi po. Q: You never met her? A: Hindi po. Q: You never talked to her? A: Nung pong ipinakiusap nyo sa akin sa telepono po nung tayo poy Q: After the conversation with the lady and that gentleman who called you to offer some help and afterwards did not help at all, what happened? A: Wala na po. Q: Did you not check with Rhodora, What is this they are talking about that it might be between you and someone in the Criminal Section? You never asked her that? A: Hindi ko na rin po Q: You did not. But I thought you wanted help from those people who can help you? A: Eh hindi na nga po sila nagbanggit po ng pangalan dahil po sabi ng unang babae ayaw nga rin po niyang sumabit sa kaso.[47]

This respondents actuation on this matter, if at all true, is again contrary to the normal reaction of one who has been administratively charged, and wants to clear his name of any wrongdoing. The respondent also admitted visiting an inmate (Vilma Dalawangbayan) at the correctional facility eight times for no apparent reason. This admission lends some credence to the testimony of Flores, that she was the one who introduced him to Dalawangbayan, the person he was visiting. When asked why he frequently visited, he stated that he found her beautiful (Maganda po siya, Justice), and was on the verge of courting her (Para na nga po akong nanliligaw). The Court believes that this allegation was concocted by the respondent as a mere afterthought, to cover up for his misdeeds. The Investigating Officer also found that the respondent was high-strung during his testimony, and this finding must be accorded respect. Indeed, when the issue is the credibility of witnesses, the function of evaluating it is primarily lodged in the investigating judge. The rule which concedes due respect, and even finality, to the assessment of the credibility of witnesses by trial judges in civil and criminal cases where preponderance of evidence and proof beyond reasonable doubt, respectively, are required, applies a fortioriin administrative cases where the quantum of proof required is only substantial evidence. The investigating judge is in a better position to pass judgment on the credibility of witnesses, having personally heard them when they testified, and observed their deportment and manner of testifying.[48] Thus, the following findings of Atty. Longalong are well taken: However, respondent denied receiving P20,000 from Gamil and P15,000 from Flores and signing LM Salud on Flores notebooks (Exhibits E-1 and F-1) but admitted visiting Vilma at the Correctional Institute for Women 8 times from May to August 1999. Respondents denial here appears self-serving and incredible considering his admission of going to the Correctional Institute for Women several times for no valid official reason. Moreover, although Flores is a convict for estafa, her testimony on the matter was more consistent and credible. Likewise, respondent admitted seeing Flores at the Correctional Institute for Women and that Flores mailed her letter to him on May 16, 1999 which he called maintriga. He also admitted that he told Flores to seek the help of Justice

Vasquez on her case. The foregoing, plus the fact that Flores eventually wrote Justice Vasquez, confirms the truth of Flores testimony on the matter. With the aforecited admissions by respondent, the substantial evidence presented by the complainant and her witnesses with their positive and forthright testimonies deserve more credence than respondents self-serving denial and inconsistent and vague testimony. Even the demeanor of complainant and her witnesses give credence to their testimonies than the nervous and [high-strung] demeanor of respondent during his testimony. Moreover, complainant and her witnesses, including the superiors of respondent, have no reason or motive whatsoever to testify falsely against him. Respondents defense of denial is inherently a weak defense. It is well settled that denial, to be believed, must be buttressed by strong evidence of non-culpability, otherwise the denial is purely self-serving and with nil evidentiary value (People of the Philippines v. Arlee, 323 SCRA 201). Like the defense of alibi, denial crumbles in the light of positive declarations (People of the Philippines vs. Ricafranca, 323 SCRA 652). Indeed, the Court is looked upon by people with high respect, a sacred place where litigants are heard, rights and conflicts settled and justice solemnly dispensed with. Misbehavior within or around the vicinity diminishes its sanctity and dignity. The conduct and behavior required of every court personnel, from the presiding judge to the lowliest clerk, must always be beyond reproach and circumscribed with the heavy burden of responsibility. Their conduct must, at all times, be characterized by, among other things, propriety and decorum so as to earn and keep the publics respect and confidence in the judicial service. [49] Public service requires the utmost integrity and strictest discipline. Thus, a public servant must exhibit at all times the highest sense of honesty and integrity not only in the performance of his official duties but in his personal and private dealings with other people.[50] While there is no direct evidence to suggest that he actually extorted money to facilitate the issuance of the appeal bond and release order which he himself served, the surrounding circumstances, as well as the inconsistencies in his testimony, point towards administrative culpability. The respondents actuations fall short of the standard required of a public servant. He is guilty of gross or grave misconduct. Misconduct is a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior,[51] while gross, has been defined as out of all measure; beyond allowance; flagrant; shameful; such conduct as is not to be excused.[52] Under the Omnibus Civil Service Rules and Regulations, grave misconduct is punishable by dismissal from the service even for the first offense, as it is classified as a grave offense. However, considering that the respondent has not been previously charged nor administratively sanctioned, the Court finds that a penalty of suspension for one year and six months will serve the purpose of disciplining the respondent. Court personnel, from the lowliest employee to the clerk of court or any position lower than that of a judge or justice, are involved in the dispensation of justice, and parties seeking redress from the courts for grievances look upon them as part of the Judiciary. They serve as sentinels of justice, and any act of impropriety on their part immeasurably affect the honor and dignity of the Judiciary and the peoples confidence in it.[53] Thus, any conduct which tends to diminish the image of the Judiciary cannot be countenanced. IN LIGHT OF ALL THE FOREGOING, respondent Cielito M. Salud is found GUILTY of inefficiency and gross misconduct. He is SUSPENDED for a period of One (1) Year and Six (6) Months, effective immediately. He is further DIRECTED to inform the Court as to the date of his receipt of this Decision to determine when his suspension shall have taken effect. The Office of the Court Administrator is also DIRECTED to conduct a discreet investigation on the possible involvement of Rhodora Valdez (Utility Worker), and other personnel of the Regional Trial Court of Pasig City, Branch 163. SO ORDERED.

G.R. No. 182835

April 20, 2010

RUSTAN ANG y PASCUA, Petitioner, vs. THE HONORABLE COURT OF APPEALS and IRISH SAGUD, Respondents. DECISION ABAD, J.: This case concerns a claim of commission of the crime of violence against women when a former boyfriend sent to the girl the picture of a naked woman, not her, but with her face on it. The Indictment The public prosecutor charged petitioner-accused Rustan Ang (Rustan) before the Regional Trial Court (RTC) of Baler, Aurora, of violation of the Anti-Violence Against Women and Their Children Act or Republic Act (R.A.) 9262 in an information that reads: That on or about June 5, 2005, in the Municipality of Maria Aurora, Province of Aurora, Philippines and within the jurisdiction of this Honorable Court, the said accused willfully, unlawfully and feloniously, in a purposeful and reckless conduct, sent through the Short Messaging Service (SMS) using his mobile phone, a pornographic picture to one Irish Sagud, who was his former girlfriend, whereby the face of the latter was attached to a completely naked body of another woman making it to appear that it was said Irish Sagud who is depicted in the said obscene and pornographic picture thereby causing substantial emotional anguish, psychological distress and humiliation to the said Irish Sagud. 1 The Facts and the Case The evidence for the prosecution shows that complainant Irish Sagud (Irish) and accused Rustan were classmates at Wesleyan University in Aurora Province. Rustan courted Irish and they became "on-andoff" sweethearts towards the end of 2004. When Irish learned afterwards that Rustan had taken a live-in partner (now his wife), whom he had gotten pregnant, Irish broke up with him. Before Rustan got married, however, he got in touch with Irish and tried to convince her to elope with him, saying that he did not love the woman he was about to marry. Irish rejected the proposal and told Rustan to take on his responsibility to the other woman and their child. Irish changed her cellphone number but Rustan somehow managed to get hold of it and sent her text messages. Rustan used two cellphone numbers for sending his messages, namely, 0920-4769301 and 0921-8084768. Irish replied to his text messages but it was to ask him to leave her alone. In the early morning of June 5, 2005, Irish received through multimedia message service (MMS) a picture of a naked woman with spread legs and with Irish’s face superimposed on the figure (Exhibit A). 2 The sender’s cellphone number, stated in the message, was 0921-8084768, one of the numbers that Rustan used. Irish surmised that he copied the picture of her face from a shot he took when they were in Baguio in 2003 (Exhibit B).3 After she got the obscene picture, Irish got other text messages from Rustan. He boasted that it would be easy for him to create similarly scandalous pictures of her. And he threatened to spread the picture he sent through the internet. One of the messages he sent to Irish, written in text messaging shorthand, read: "Madali lang ikalat yun, my chatrum ang tarlac rayt pwede ring send sa lahat ng chatter."4 Irish sought the help of the vice mayor of Maria Aurora who referred her to the police. Under police supervision, Irish contacted Rustan through the cellphone numbers he used in sending the picture and his text messages. Irish asked Rustan to meet her at the Lorentess Resort in Brgy. Ramada, Maria Aurora,

and he did. He came in a motorcycle. After parking it, he walked towards Irish but the waiting police officers intercepted and arrested him. They searched him and seized his Sony Ericsson P900 cellphone and several SIM cards. While Rustan was being questioned at the police station, he shouted at Irish: "Malandi ka kasi!" Joseph Gonzales, an instructor at the Aurora State College of Technology, testified as an expert in information technology and computer graphics. He said that it was very much possible for one to lift the face of a woman from a picture and superimpose it on the body of another woman in another picture. Pictures can be manipulated and enhanced by computer to make it appear that the face and the body belonged to just one person. Gonzales testified that the picture in question (Exhibit A) had two distinct irregularities: the face was not proportionate to the body and the face had a lighter color. In his opinion, the picture was fake and the face on it had been copied from the picture of Irish in Exhibit B. Finally, Gonzales explained how this could be done, transferring a picture from a computer to a cellphone like the Sony Ericsson P900 seized from Rustan. For his part, Rustan admitted having courted Irish. He began visiting her in Tarlac in October 2003 and their relation lasted until December of that year. He claimed that after their relation ended, Irish wanted reconciliation. They met in December 2004 but, after he told her that his girlfriend at that time (later his wife) was already pregnant, Irish walked out on him. Sometime later, Rustan got a text message from Irish, asking him to meet her at Lorentess Resort as she needed his help in selling her cellphone. When he arrived at the place, two police officers approached him, seized his cellphone and the contents of his pockets, and brought him to the police station. Rustan further claims that he also went to Lorentess because Irish asked him to help her identify a prankster who was sending her malicious text messages. Rustan got the sender’s number and, pretending to be Irish, contacted the person. Rustan claims that he got back obscene messages from the prankster, which he forwarded to Irish from his cellphone. This explained, he said, why the obscene messages appeared to have originated from his cellphone number. Rustan claims that it was Irish herself who sent the obscene picture (Exhibit A) to him. He presented six pictures of a woman whom he identified as Irish (Exhibits 2 to 7).5 Michelle Ang (Michelle), Rustan’s wife, testified that she was sure Irish sent the six pictures. Michelle claims that she received the pictures and hid the memory card (Exhibit 8) that contained them because she was jealous and angry. She did not want to see anything of Irish. But, while the woman in the pictures posed in sexy clothing, in none did she appear naked as in Exhibit A. Further, the face of the woman in Exhibits 2, 4, 5 and 6 could not be seen. Irish denied that she was the woman in those four pictures. As for Exhibits 3 and 7, the woman in the picture was fully dressed. After trial, the RTC found Irish’s testimony completely credible, given in an honest and spontaneous manner. The RTC observed that she wept while recounting her experience, prompting the court to comment: "Her tears were tangible expression of pain and anguish for the acts of violence she suffered in the hands of her former sweetheart. The crying of the victim during her testimony is evidence of the credibility of her charges with the verity borne out of human nature and experience." 6 Thus, in its Decision dated August 1, 2001, the RTC found Rustan guilty of the violation of Section 5(h) of R.A. 9262. On Rustan’s appeal to the Court of Appeals (CA),7 the latter rendered a decision dated January 31, 2008,8 affirming the RTC decision. The CA denied Rustan’s motion for reconsideration in a resolution dated April 25, 2008. Thus, Rustan filed the present for review on certiorari. The Issues Presented

The principal issue in this case is whether or not accused Rustan sent Irish by cellphone message the picture with her face pasted on the body of a nude woman, inflicting anguish, psychological distress, and humiliation on her in violation of Section 5(h) of R.A. 9262. The subordinate issues are: 1. Whether or not a "dating relationship" existed between Rustan and Irish as this term is defined in R.A. 9262; 2. Whether or not a single act of harassment, like the sending of the nude picture in this case, already constitutes a violation of Section 5(h) of R.A. 9262; 3. Whether or not the evidence used to convict Rustan was obtained from him in violation of his constitutional rights; and 4. Whether or not the RTC properly admitted in evidence the obscene picture presented in the case. The Court’s Rulings Section 3(a) of R.A. 9262 provides that violence against women includes an act or acts of a person against a woman with whom he has or had a sexual or dating relationship. Thus: SEC. 3. Definition of Terms. – As used in this Act, (a) "Violence against women and their children" refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. xxxx Section 5 identifies the act or acts that constitute violence against women and these include any form of harassment that causes substantial emotional or psychological distress to a woman. Thus: SEC. 5. Acts of Violence Against Women and Their Children. – The crime of violence against women and their children is committed through any of the following acts: xxxx h. Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: xxxx 5. Engaging in any form of harassment or violence;

The above provisions, taken together, indicate that the elements of the crime of violence against women through harassment are: 1. The offender has or had a sexual or dating relationship with the offended woman; 2. The offender, by himself or through another, commits an act or series of acts of harassment against the woman; and 3. The harassment alarms or causes substantial emotional or psychological distress to her. One. The parties to this case agree that the prosecution needed to prove that accused Rustan had a "dating relationship" with Irish. Section 3(e) provides that a "dating relationship" includes a situation where the parties are romantically involved over time and on a continuing basis during the course of the relationship. Thus: (e) "Dating relationship" refers to a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship. (Underscoring supplied.) Here, Rustan claims that, being "romantically involved," implies that the offender and the offended woman have or had sexual relations. According to him, "romance" implies a sexual act. He cites Webster’s Comprehensive Dictionary Encyclopedia Edition which provides a colloquial or informal meaning to the word "romance" used as a verb, i.e., "to make love; to make love to" as in "He romanced her." But it seems clear that the law did not use in its provisions the colloquial verb "romance" that implies a sexual act. It did not say that the offender must have "romanced" the offended woman. Rather, it used the noun "romance" to describe a couple’s relationship, i.e., "a love affair."9 R.A. 9262 provides in Section 3 that "violence against women x x x refers to any act or a series of acts committed by any person against a woman x x x with whom the person has or had a sexual or dating relationship." Clearly, the law itself distinguishes a sexual relationship from a dating relationship. Indeed, Section 3(e) above defines "dating relationship" while Section 3(f) defines "sexual relations." The latter "refers to a single sexual act which may or may not result in the bearing of a common child." The dating relationship that the law contemplates can, therefore, exist even without a sexual intercourse taking place between those involved. Rustan also claims that since the relationship between Irish and him was of the "on-and-off" variety (away-bati), their romance cannot be regarded as having developed "over time and on a continuing basis." But the two of them were romantically involved, as Rustan himself admits, from October to December of 2003. That would be time enough for nurturing a relationship of mutual trust and love. An "away-bati" or a fight-and-kiss thing between two lovers is a common occurrence. Their taking place does not mean that the romantic relation between the two should be deemed broken up during periods of misunderstanding. Explaining what "away-bati" meant, Irish explained that at times, when she could not reply to Rustan’s messages, he would get angry at her. That was all. Indeed, she characterized their three-month romantic relation as continuous.10 Two. Rustan argues that the one act of sending an offensive picture should not be considered a form of harassment. He claims that such would unduly ruin him personally and set a very dangerous precedent. But Section 3(a) of R.A. 9262 punishes "any act or series of acts" that constitutes violence against women. This means that a single act of harassment, which translates into violence, would be enough.

The object of the law is to protect women and children. Punishing only violence that is repeatedly committed would license isolated ones. Rustan alleges that today’s women, like Irish, are so used to obscene communications that her getting one could not possibly have produced alarm in her or caused her substantial emotional or psychological distress. He claims having previously exchanged obscene pictures with Irish such that she was already desensitized by them. But, firstly, the RTC which saw and heard Rustan and his wife give their testimonies was not impressed with their claim that it was Irish who sent the obscene pictures of herself (Exhibits 2-7). It is doubtful if the woman in the picture was Irish since her face did not clearly show on them. Michelle, Rustan’s wife, claimed that she deleted several other pictures that Irish sent, except Exhibits 2 to 7. But her testimony did not make sense. She said that she did not know that Exhibits 2 to 7 had remained saved after she deleted the pictures. Later, however, she said that she did not have time to delete them.11 And, if she thought that she had deleted all the pictures from the memory card, then she had no reason at all to keep and hide such memory card. There would have been nothing to hide. Finally, if she knew that some pictures remained in the card, there was no reason for her to keep it for several years, given that as she said she was too jealous to want to see anything connected to Irish. Thus, the RTC was correct in not giving credence to her testimony.1avvphi1 Secondly, the Court cannot measure the trauma that Irish experienced based on Rustan’s low regard for the alleged moral sensibilities of today’s youth. What is obscene and injurious to an offended woman can of course only be determined based on the circumstances of each case. Here, the naked woman on the picture, her legs spread open and bearing Irish’s head and face, was clearly an obscene picture and, to Irish a revolting and offensive one. Surely, any woman like Irish, who is not in the pornography trade, would be scandalized and pained if she sees herself in such a picture. What makes it further terrifying is that, as Irish testified, Rustan sent the picture with a threat to post it in the internet for all to see. That must have given her a nightmare. Three. Rustan argues that, since he was arrested and certain items were seized from him without any warrant, the evidence presented against him should be deemed inadmissible. But the fact is that the prosecution did not present in evidence either the cellphone or the SIM cards that the police officers seized from him at the time of his arrest. The prosecution did not need such items to prove its case. Exhibit C for the prosecution was but a photograph depicting the Sony Ericsson P900 cellphone that was used, which cellphone Rustan admitted owning during the pre-trial conference. Actually, though, the bulk of the evidence against him consisted in Irish’s testimony that she received the obscene picture and malicious text messages that the sender’s cellphone numbers belonged to Rustan with whom she had been previously in communication. Indeed, to prove that the cellphone numbers belonged to Rustan, Irish and the police used such numbers to summon him to come to Lorentess Resort and he did.12 Consequently, the prosecution did not have to present the confiscated cellphone and SIM cards to prove that Rustan sent those messages. Moreover, Rustan admitted having sent the malicious text messages to Irish.13 His defense was that he himself received those messages from an unidentified person who was harassing Irish and he merely forwarded the same to her, using his cellphone. But Rustan never presented the cellphone number of the unidentified person who sent the messages to him to authenticate the same. The RTC did not give credence to such version and neither will this Court. Besides, it was most unlikely for Irish to pin the things on Rustan if he had merely tried to help her identify the sender. Four. Rustan claims that the obscene picture sent to Irish through a text message constitutes an electronic document. Thus, it should be authenticated by means of an electronic signature, as provided under Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC).

But, firstly, Rustan is raising this objection to the admissibility of the obscene picture, Exhibit A, for the first time before this Court. The objection is too late since he should have objected to the admission of the picture on such ground at the time it was offered in evidence. He should be deemed to have already waived such ground for objection.14 Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings.15 In conclusion, this Court finds that the prosecution has proved each and every element of the crime charged beyond reasonable doubt. WHEREFORE, the Court DENIES the petition and AFFIRMS the decision of the Court of Appeals in CAG.R. CR 30567 dated January 31, 2008 and its resolution dated April 25, 2008. SO ORDERED.

[G.R. No. 126006. January 29, 2004]

LAPULAPU FOUNDATION, INC. and ELIAS Q. TAN, petitioners, vs. COURT OF APPEALS (Seventeenth Division) and ALLIED BANKING CORP., respondents DECISION CALLEJO, SR., J.: Before the Court is the petition for review on certiorari filed by the Lapulapu Foundation, Inc. and Elias Q. Tan seeking to reverse and set aside the Decision [1] dated June 26, 1996 of the Court of Appeals (CA) in CA-G.R. CV No. 37162 ordering the petitioners, jointly and solidarily, to pay the respondent Allied Banking Corporation the amount of P493,566.61 plus interests and other charges. Likewise, sought to be reversed and set aside is the appellate courts Resolution dated August 19, 1996 denying the petitioners motion for reconsideration. The case stemmed from the following facts: Sometime in 1977, petitioner Elias Q. Tan, then President of the co-petitioner Lapulapu Foundation, Inc., obtained four loans from the respondent Allied Banking Corporation covered by four promissory notes in the amounts of P100,000 each. The details of the promissory notes are as follows: P/N No. Date of P/N Maturity Date Amount as of 1/23/79 BD No. 504 Nov. 7, 1977 Feb. 5, 1978 P123,377.76 BD No. 621 Nov. 28, 1977 Mar. 28, 1978 P123,411.10 BD No. 716 Dec. 12, 1977 Apr. 11, 1978 P122,322.21 BD No. 839 Jan. 5, 1978 May 5, 1978 P120,455.54[2] As of January 23, 1979, the entire obligation amounted to P493,566.61 and despite demands made on them by the respondent Bank, the petitioners failed to pay the same. The respondent Bank was constrained to file with the Regional Trial Court of Cebu City, Branch 15, a complaint seeking payment by

the petitioners, jointly and solidarily, of the sum of P493,566.61 representing their loan obligation, exclusive of interests, penalty charges, attorneys fees and costs. In its answer to the complaint, the petitioner Foundation denied incurring indebtedness from the respondent Bank alleging that the loans were obtained by petitioner Tan in his personal capacity, for his own use and benefit and on the strength of the personal information he furnished the respondent Bank. The petitioner Foundation maintained that it never authorized petitioner Tan to co-sign in his capacity as its President any promissory note and that the respondent Bank fully knew that the loans contracted were made in petitioner Tans personal capacity and for his own use and that the petitioner Foundation never benefited, directly or indirectly, therefrom. The petitioner Foundation then interposed a cross-claim against petitioner Tan alleging that he, having exceeded his authority, should be solely liable for said loans, and a counterclaim against the respondent Bank for damages and attorneys fees. For his part, petitioner Tan admitted that he contracted the loans from the respondent Bank in his personal capacity. The parties, however, agreed that the loans were to be paid from the proceeds of petitioner Tans shares of common stocks in the Lapulapu Industries Corporation, a real estate firm. The loans were covered by promissory notes which were automatically renewable (rolled-over) every year at an amount including unpaid interests, until such time as petitioner Tan was able to pay the same from the proceeds of his aforesaid shares. According to petitioner Tan, the respondent Banks employee required him to affix two signatures on every promissory note, assuring him that the loan documents would be filled out in accordance with their agreement. However, after he signed and delivered the loan documents to the respondent Bank, these were filled out in a manner not in accord with their agreement, such that the petitioner Foundation was included as party thereto. Further, prior to its filing of the complaint, the respondent Bank made no demand on him. After due trial, the court a quo rendered judgment the dispositive portion of which reads: WHEREFORE, in view of the foregoing evidences [sic], arguments and considerations, this court hereby finds the preponderance of evidence in favor of the plaintiff and hereby renders judgment as follows: 1. Requiring the defendants Elias Q. Tan and Lapulapu Foundation, Inc. [the petitioners herein] to pay jointly and solidarily to the plaintiff Allied Banking Corporation [the respondent herein] the amount of P493,566.61 as principal obligation for the four promissory notes, including all other charges included in the same, with interest at 14% per annum, computed from January 24, 1979, until the same are fully paid, plus 2% service charges and 1% monthly penalty charges. 2. Requiring the defendants Elias Q. Tan and Lapulapu Foundation, Inc., to pay jointly and solidarily, attorneys fees in the equivalent amount of 25% of the total amount due from the defendants on the promissory notes, including all charges; 3. Requiring the defendants Elias Q. Tan and Lapulapu Foundation, Inc., to pay jointly and solidarily litigation expenses of P1,000.00 plus costs of the suit.[3] On appeal, the CA affirmed with modification the judgment of the court a quo by deleting the award of attorneys fees in favor of the respondent Bank for being without basis. The appellate court disbelieved petitioner Tans claim that the loans were his personal loans as the promissory notes evidencing them showed upon their faces that these were obligations of the petitioner Foundation, as contracted by petitioner Tan himself in his official and personal character. Applying the parol evidence rule, the CA likewise rejected petitioner Tans assertion that there was an unwritten agreement between him and the respondent Bank that he would pay the loans from the proceeds of his shares of stocks in the Lapulapu Industries Corp. Further, the CA found that demand had been made by the respondent Bank on the petitioners prior to the filing of the complaint a quo. It noted that the two letters of demand dated January 3, 1979 [4] and January 30, 1979[5] asking settlement of the obligation were sent by the respondent Bank. These were

received by the petitioners as shown by the registry return cards [6] presented during trial in the court a quo. Finally, like the court a quo, the CA applied the doctrine of piercing the veil of corporate entity in holding the petitioners jointly and solidarily liable. The evidence showed that petitioner Tan had represented himself as the President of the petitioner Foundation, opened savings and current accounts in its behalf, and signed the loan documents for and in behalf of the latter. The CA, likewise, found that the petitioner Foundation had allowed petitioner Tan to act as though he had the authority to contract the loans in its behalf. On the other hand, petitioner Tan could not escape liability as he had used the petitioner Foundation for his benefit. Aggrieved, the petitioners now come to the Court alleging that: I. THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE LOANS SUBJECT MATTER OF THE INSTANT PETITION ARE ALREADY DUE AND DEMANDABLE DESPITE ABSENCE OF PRIOR DEMAND. II. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE PAROL EVIDENCE RULE AND THE DOCTRINE OF PIERCING THE VEIL OF CORPORATE ENTITY AS BASIS FOR ADJUDGING JOINT AND SOLIDARY LIABILITY ON THE PART OF PETITIONERS ELIAS Q. TAN AND LAPULAPU FOUNDATION, INC.[7] The petitioners assail the appellate courts finding that the loans had become due and demandable in view of the two demand letters sent to them by the respondent Bank. The petitioners insist that there was no prior demand as they vigorously deny receiving those letters. According to petitioner Tan, the signatures on the registry return cards were not his. The petitioners denial of receipt of the demand letters was rightfully given scant consideration by the CA as it held: Exhibits R and S are two letters of demand, respectively dated January 3, 1979 and January 30, 1979, asking settlement of the obligations covered by the promissory notes. The first letter was written by Ben Tio Peng Seng, Vice-President of the bank, and addressed to Lapulapu Foundation, Inc., attention of Mr. Elias Q. Tan, President, while the second was a final demand written by the appellees counsel, addressed to both defendants-appellants, and giving them five (5) days from receipt within which to settle or judicial action would be instituted against them. Both letters were duly received by the defendants, as shown by the registry return cards, marked as Exhibits R-2 and S-1, respectively. The allegation of Tan that he does not know who signed the said registry return receipts merits scant consideration, for there is no showing that the addresses thereon were wrong. Hence, the disputable presumption that a letter duly directed and mailed was received in the regular course of mail (per par. V, Section 3, Rule 131 of the Revised Rules on Evidence) still holds.[8] There is no dispute that the promissory notes had already matured. However, the petitioners insist that the loans had not become due and demandable as they deny receipt of the respondent Banks demand letters. When presented the registry return cards during the trial, petitioner Tan claimed that he did not recognize the signatures thereon. The petitioners allegation and denial are self-serving. They cannot prevail over the registry return cards which constitute documentary evidence and which enjoy the presumption that, absent clear and convincing evidence to the contrary, these were regularly issued by the postal officials in the performance of their official duty and that they acted in good faith. [9] Further, as the CA correctly opined, mails are presumed to have been properly delivered and received by the addressee in the regular course of the mail.[10] As the CA noted, there is no showing that the addresses on the registry return cards were wrong. It is the petitioners burden to overcome the presumptions by sufficient evidence, and other than their barefaced denial, the petitioners failed to support their claim that they did not receive the demand letters; therefore, no prior demand was made on them by the respondent Bank. Having established that the loans had become due and demandable, the Court shall now resolve the issue of whether the CA correctly held the petitioners jointly and solidarily liable therefor.

In disclaiming any liability for the loans, the petitioner Foundation maintains that these were contracted by petitioner Tan in his personal capacity and that it did not benefit therefrom. On the other hand, while admitting that the loans were his personal obligation, petitioner Tan avers that he had an unwritten agreement with the respondent Bank that these loans would be renewed on a year-to-year basis and paid from the proceeds of his shares of stock in the Lapulapu Industries Corp. These contentions are untenable. The Court particularly finds as incredulous petitioner Tans allegation that he was made to sign blank loan documents and that the phrase IN MY OFFICIAL/PERSONAL CAPACITY was superimposed by the respondent Banks employee despite petitioner Tans protestation. The Court is hard pressed to believe that a businessman of petitioner Tans stature could have been so careless as to sign blank loan documents. In contrast, as found by the CA, the promissory notes [11] clearly showed upon their faces that they are the obligation of the petitioner Foundation, as contracted by petitioner Tan in his official and personal capacity.[12] Moreover, the application for credit accommodation,[13] the signature cards of the two accounts in the name of petitioner Foundation,[14] as well as New Current Account Record,[15] all accompanying the promissory notes, were signed by petitioner Tan for and in the name of the petitioner Foundation.[16] These documentary evidence unequivocally and categorically establish that the loans were solidarily contracted by the petitioner Foundation and petitioner Tan. As a corollary, the parol evidence rule likewise constrains this Court to reject petitioner Tans claim regarding the purported unwritten agreement between him and the respondent Bank on the payment of the obligation. Section 9, Rule 130 of the of the Revised Rules of Court provides that [w]hen the terms of an agreement have been reduced to writing, it is to be considered as containing all the terms agreed upon and there can be, between the parties and their successors-in-interest, no evidence of such terms other than the contents of the written agreement.[17] In this case, the promissory notes are the law between the petitioners and the respondent Bank. These promissory notes contained maturity dates as follows: February 5, 1978, March 28, 1978, April 11, 1978 and May 5, 1978, respectively. That these notes were to be paid on these dates is clear and explicit. Nowhere was it stated therein that they would be renewed on a year-to-year basis or rolled-over annually until paid from the proceeds of petitioner Tans shares in the Lapulapu Industries Corp. Accordingly, this purported unwritten agreement could not be made to vary or contradict the terms and conditions in the promissory notes. Evidence of a prior or contemporaneous verbal agreement is generally not admissible to vary, contradict or defeat the operation of a valid contract.[18] While parol evidence is admissible to explain the meaning of written contracts, it cannot serve the purpose of incorporating into the contract additional contemporaneous conditions which are not mentioned at all in writing, unless there has been fraud or mistake.[19] No such allegation had been made by the petitioners in this case. Finally, the appellate court did not err in holding the petitioners jointly and solidarily liable as it applied the doctrine of piercing the veil of corporate entity. The petitioner Foundation asserts that it has a personality separate and distinct from that of its President, petitioner Tan, and that it cannot be held solidarily liable for the loans of the latter. The Court agrees with the CA that the petitioners cannot hide behind the corporate veil under the following circumstances: The evidence shows that Tan has been representing himself as the President of Lapulapu Foundation, Inc. He opened a savings account and a current account in the names of the corporation, and signed the application form as well as the necessary specimen signature cards (Exhibits A, B and C) twice, for himself and for the foundation. He submitted a notarized Secretarys Certificate (Exhibit G) from the corporation, attesting that he has been authorized, inter alia, to sign for and in behalf of the Lapulapu Foundation any and all checks, drafts or other orders with respect to the bank; to transact business with the Bank, negotiate loans, agreements, obligations, promissory notes and other commercial documents; and to initially obtain a loan for P100,000.00 from any bank (Exhibits G-1

and G-2). Under these circumstances, the defendant corporation is liable for the transactions entered into by Tan on its behalf.[20] Per its Secretarys Certificate, the petitioner Foundation had given its President, petitioner Tan, ostensible and apparent authority to inter alia deal with the respondent Bank. Accordingly, the petitioner Foundation is estopped from questioning petitioner Tans authority to obtain the subject loans from the respondent Bank. It is a familiar doctrine that if a corporation knowingly permits one of its officers, or any other agent, to act within the scope of an apparent authority, it holds him out to the public as possessing the power to do those acts; and thus, the corporation will, as against anyone who has in good faith dealt with it through such agent, be estopped from denying the agents authority. [21] In fine, there is no cogent reason to deviate from the CAs ruling that the petitioners are jointly and solidarily liable for the loans contracted with the respondent Bank. WHEREFORE, premises considered, the petition is DENIED and the Decision dated June 26, 1996 and Resolution dated August 19, 1996 of the Court of Appeals in CA-G.R. CV No. 37162 are AFFIRMED in toto. SO ORDERED.