Crim Cases Iii-h To N.docx

G.R. No. 133025

February 17, 2000

PEOPLE OF vs. RADEL GALLARDE, accused-appellant.

THE

PHILIPPINES, plaintiff-appellee,

DAVIDE, JR., C.J.: This is an appeal from the judgment of the Regional Trial Court of Tayug, Pangasinan, Branch 51, finding accusedappellant Radel Gallarde1 (hereafter GALLARDE) guilty beyond reasonable doubt of the crime of murder in Criminal Case No. T-1978 and sentencing him to suffer the penalty of reclusion perpetua and to pay the heirs of Editha Talan (hereafter EDITHA) the amount of P70,000 as actual damages.2 On 24 June 1997, GALLARDE was charged with the special complex crime of rape with homicide in an information whose accusatory portion reads as follows:

By 10:00 o'clock that evening, the drinking buddies had dispersed but Jaime, Francisco, Edwin and Rose regrouped at Renato's place where they talked and relaxed. Moments later, Roger arrived and informed them that Editha was missing. Roger asked the group to help look for her (Id., p. 10). Elena Talan informed his uncle, Barangay Ex-kagawad Mario Fernandez, about her daughter's disappearance. The latter, together with his son Edwin, wife Virginia and nephew Freddie Cortez wasted no time in joining their neighbors search the houses, dikes and fields to look for the missing child. The searchers used a lighted rubber tire (TSN dated Sept. 24, 1997, pp. 8-10 and 24). When Jaime mentioned that appellant was the last person he saw talking to Editha, the searchers went back to the house of appellant. About 7 meters away from appellant's house, one of the searchers, Alfredo Cortez, found Editha's left foot slipper (TSN dated October 22, 1997, pp. 4-6). Suddenly, Edwin Fernandez announced: "Tata, Radel is here!" pointing to the toilet about 6 meters away from appellant's house. The searchers found appellant squatting with his short pants. His hands and knees were covered with soil. When confronted by ex-kagawad Hernandez why he was there, appellant answered he was relieving himself (Id., pp. 11-16).

That on or about the 6th day of May 1997, in the evening, amidst the field located at Brgy. Trenchera, [M]unicipality of Tayug, [P]rovince of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, and by means of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously have sexual intercourse with one EDITHA TALAN, a minor10 years of age, against her will and consent, and thereafter, with intent to kill, cover the nose and mouth of the said minor resulting to her death and then bury her in the field, to the damage and prejudice of the heirs of said EDITHA TALAN.3

Asked where Editha was, appellant replied: "I do not know, I did not do anything to her." When told — "according to Jimmy, you were with Editha." appellant responded "I let her go and brought her back to the dike and let her go home." To the next question, "where did you come from since a while a go you were not yet in this toilet?" appellant answered "I was with Kiko, I was asleep in their house. One of the searchers Mario Bado, got angry and countered that appellant's statement was impossible because Kiko was with him drinking (Id., pp. 16-20).

During the arraignment on 1 September 1997, GALLARDE, with the assistance of counsel, entered a plea of not guilty.4 Trial of the case immediately ensued as the defense waived the holding of the pre-trial conference.

After the confrontation at the toilet, Ex-kagawad Fernandez brought appellant to Brgy. Captain Felicisimo Mendoza, informing the latter that appellant was the last person seen talking with the missing child. Fernandez then rejoined the searchers (Id., pp. 21-22).

The witnesses presented by the prosecution were Mario Fernandez, Jaime Cabinta, Rosy Clemente, Felicisimo Mendoza, Alfredo Cortez, Renato Fernandez, SPO4 Oscar B. Lopez, and Dr. Perfecto Tebangin. The relevant and material facts established by their testimonies are faithfully summarized in the Appellee's Brief as follows:

Back in the field, Virginia Fernandez tripped on a wet ground. As she reached for her slipper, she saw Editha's right foot slipper (the other one was earlier found near the house of appellant) (Id., pp. 23-24).

In the evening of May 26, 1997, at the house of spouses Eduardo and Elena Talan in Brgy. Trenchea, Tayug, Pangasinan, their neighbors converged. Among them were appellant Radel Gallarde, Francisco, Renato, Edwin, all surnamed Fernandez, Romel Hernandez, Jaime Cabinta, Rosy Clemente, Jon Talen, Noel Arellaga and Ramil Bargon. Idling by was Editha, 10 year old daughter of spouses Talan. A fluorescent lamp illuminated them as they partook beer (TSN dated October 13, 1997, pp. 3-4). After a while, Roger stood up and invited Jaime and appellant to dine in the kitchen. As they partook of the meal, appellant suddenly left. Jaime, too, stepped out of the kitchen to urinate. Outside the house, he chanced upon appellant and Editha talking to each other. Jaime whistled at appellant but instead of minding him, the latter sprinted towards the road leading to his house (Id., pp. 4-6). Thereafter, Editha entered the kitchen and took hold of a kerosene lamp. Jaime followed her and asked where she was going. Editha answered that she would look for appellant. Soon Editha left enroute to where appellant fled (Id., pp. 7-8).

Around 3 meters farther from Editha's right foot slipper; another slipper was found. It was old, 8 to 9 inches in length and appellant was seen wearing it in the morning of that day (TSN dated Sept. 25, 1997, pp. 25). The searchers, thereafter, noticed disheveled grasses. Along the way, they saw a wide hole among the disheveled grass. Ex-kagawad Fernandez accidentally dropped the lighted rubber tire and as his nephew Freddie picked it up, the latter exclaimed: "Uncle, look at this loose soil!" Ex-kagawad Fernandez forthwith scratched some earth aside and then Editha's hand pitted out. The Fernandez screamed in terror (Id., pp. 5-6). Meantime, Barangay Captain Mendoza heard shouts saying: "She is here, she is now here already dead!" Mindful of appellant's safety, Brgy. Captain Mendoza decided to bring appellant to the municipal building. On their way though, they met policemen on board a vehicle. He flagged them down and turned

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over the person of appellant, saying: "Here is the suspect in the disappearance of the little girl. Since you are already here, I am giving him to you" (TSN dated Oct. 21, 1997, pp. 4-5).

readily conclude that the laceration and rupture resulted from phallic intrusion. Without such observation, however, "carnal knowledge" as element of rape would be an open question.

The policemen together with appellant proceeded to where the people found Editha. One of the policemen shoved more soil aside. The lifeless Editha was completely naked when she was recovered. (Id., pp. 9-10)

The trial court did not appreciate the alternative circumstance of intoxication either as a mitigating or aggravating circumstance pursuant to Article 15 of the Revised Penal Code because GALLARDE's alleged inebriation on the night of 6 May 1997, was not satisfactorily proven.

The cause of Editha's death as revealed in the post-mortem examination showed "suffocation of the lungs as a result from powerful covering of the nose and mouth, associated with laceration of the vagina and raptured hymen (Exh. "T", TSN dated Oct. 23, 1997, pp. 22-23).5

As to the civil aspect of the case, the trial court considered the stipulation of the parties on 27 October 1997 fixing a liquidated amount of P70,000 as actual damages, and leaving the matter of moral damages to the discretion of the court. The trial court was not inclined to award moral damages because the "evidence before it tends to disclose that on the night of 6 May 1997, before she died, Editha was a much-neglected child."

On the other hand, GALLARDE was the lone witness for the defense. He interposed a denial and the alibi that he was at home with his mother and brothers at the time the crime occurred. He declared that he is 18 years old, single, a former construction worker. He knew EDITHA, a neighbor whom he considered as a sister because she used to come to his house. They never had a quarrel or misunderstanding. He neither raped not killed Editha. 6 On cross-examination by the prosecutor and to questions propounded by the court, GALLARDE admitted that he saw Editha on the night of 6 May 1997 in her parent's house, particularly in the kitchen. He was there because he joined a group drinking Colt 45 beer, as he was called by Rudio Fernandez. He drank and had dinner in the kitchen. After dinner he returned to the drinking place and eventually went home because he was then a little drunk. He knows Kgd. Mario Fernandez, but after he left the Talan residence he did not see Kgd. Fernandez anymore. Kgd. Fernandez saw him inside his (Gallarde's) toilet on the night of May 6; thereafter Fernandez took him to the barangay captain and later he was turned over to the PNP at Camp Narciso Ramos. The police informed him that he was a suspect in the rape and killing of Editha Talan, and he told them that he did not commit the crime. At the Talan residence he was wearing short pants and rubber slippers. Fernandez asked him at the police headquarters to pull down his shorts and he complied. He was then wearing briefs with a hemline that was a little loose. He was informed that a cadaver was recovered near his house. When he was asked questions while in police custody, he was not represented by any lawyer.

Accordingly, in its decision8 of 12 February 1998, the trial court decreed: WHEREFORE, his guilt having been established beyond a reasonable doubt, the Court hereby convicts the accused RADEL GALLARDE Y HERMOSA of the crime of MURDER, and sentences him to suffer the penalty of reclusion perpetua and to indemnify the heirs of the late Editha Talan in the negotiated sum of P70,000.00.9 His motion for reconsideration,10 having been denied by the trial court in its Resolution11 of 28 February 1998, GALLARDE seasonably appealed to us. We accepted the appeal on 9 September 1998. In his Appellant's Brief filed on 16 March 1999, GALLARDE alleges that the trial court committed the following errors: 1. In convicting [him] of the crime of murder in an information for rape with homicide.

GALLARDE further declared on cross-examination and on questions by the court that he considered Editha Talan as a sister and her parents also treated him in a friendly manner. When he came to know that Editha's parents suspected him of the crime, he was still on friendly terms with them. However, he did no go to them to tell them he was innocent because they brandished a bolo in anger.

2. In concluding that the prosecution has proven beyond reasonable doubt that [he] was responsible for the death of Editha Talan. 3. In not acquitting [him] on the ground of notches of proof beyond reasonable doubt.12

Finally, he testified that in the evening of May 6 he came to know that Editha died. She was still alive when he was drinking at the back of the Talan house and left for home. From the time he arrived, he never left again that night, and his mother and brothers knew it for a fact.7 On 12 February 1998, the trial court rendered a decision convicting GALLARDE of the crime of murder only, not of the complex crime of rape with homicide because of the lack of proof of carnal knowledge. It observed: Exh. "T" and Dr. Tebangin's testimony thereon show that the late Editha Talan sustained slit wounds inflicted as a means of suffocating her to death, a laceration of the lower portion of her vagina, and a ruptured hymen. What allegedly oozed from her vagina was blood, coupled with dirt. Had then been observed the presence of even just a drop of seminal fluid in or around her vagina, the Court would

We sustain GALLARDE's contention that the trial court erred in convicting him of murder in an information charging him of rape with homicide. A reading of the accusatory portion of the information shows that there was no allegation of any qualifying circumstance. Although it is true that the term "homicide" as used in special complex crime of rape with homicide is to be understood in its generic sense, and includes murder and slight physical injuries committed by reason or on the occasion of rape,13 it is settled in this jurisdiction that where a complex crime is charged and the evidence fails to support the charge as to one of the component offense, the accused can be convicted of the other.14 In rape with homicide, in order to be convicted of murder in case the evidence fails to support the charge of rape, the qualifying circumstance must be sufficiently alleged and proved. Otherwise, it would be a denial of the right of the accused to be informed of the nature of the offense with which he is charged.15 It is fundamental that every element of the offense must be alleged in the complaint or information.

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The main purpose of requiring the various elements of a crime to be set out in an information is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense.16 In the absence then in the information of an allegation of any qualifying circumstance, GALLARDE cannot be convicted of murder. An accused cannot be convicted of an offense higher than that with which he is charged in the complaint or information under which he is tried. It matters not how conclusive and convincing the evidence of guilt may be, but an accused cannot be convicted of any offense, unless it is charged in the complaint or information for which he is tried, or is necessarily included in that which is charged. He has a right to be informed of the nature of the offense with which he is charged before he is put on trial. To convict an accused of a higher offense than that charged in the complaint or information under which he is tried would be an unauthorized denial of that right.17 Nevertheless, we agree with the trial court that the evidence for the prosecution, although circumstantial, was sufficient to establish beyond reasonable doubt the guilt of GALLARDE for the death of EDITHA. Direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt.18 The prosecution is not always tasked to present direct evidence to sustain a judgment of conviction; the absence of direct evidence does not necessarily absolve an accused from any criminal liability.19Even in the absence of direct evidence, conviction can be had on the basis of circumstantial evidence, provided that the established circumstances constitute an unbroken chain which leads one to one fair and reasonable conclusion which points to the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty.20

3. Among said neighbors Cabinta saw them hand in hand by the toilet situated five (5) meters east of the Talan kitchen. 4. After Cabinta whistled he saw Gallarde run home towards north after letting go of Editha's hands. Neighbor Clemente also noticed that Gallarde disappeared, and that Editha returned to the kitchen. 5. Cabinta followed Editha back to the kitchen, and saw her holding a kerosene lamp. She told him that she was going to look for "Dalpac," and off she went in the same direction Gallarde took. 6. Gallarde wore short pants and rubber slippers at the drinking place. Subsequently he was seen wearing shorts in his own toilet. 7. At past 10:00 in the evening during an intensive search for the then missing Editha, her lifeless body was found in a shallow grave situated some distance behind Gallarde's residence. 8. Before Editha's body was discovered, a searcher found a girl's slipper (Exh. "B"), 5-6 inches long, among thickets seven meters away from Gallarde's house. 9. Another searcher saw a second slipper (Exh. B-1), of the same color and size as the first one. Both slippers were Editha's, the searchers recalled. 10. A third rubber slipper (Exh. "C") was thereafter found in the field, near Exh. "B-1." It was an old slipper, 8-9 inches long and with a hole at the rear end.

The rules on evidence and precedents sustain the conviction of an accused through circumstantial evidence, as long as the following requisites are present: (1) there must be more than one circumstance; (2) the inference must be based on proven facts; and (3) the combination of all circumstances produces a conviction beyond doubt of the guilt of the accused.21

11. Soil stuck to each one of the three slippers.

The importance of circumstantial evidence is more apparent in the prosecution of cases of rape, where it is homicide. The nature of the crime of rape, where it is usually only the victim and the rapist who are present at the scene of the crime, makes prosecutions for the complex crime of rape with homicide particularly difficult since the victim can no longer testify against the perpetrator of the crime. In these cases pieces of the evidence against the accused are usually circumstantial.22

13. When Gallarde was discovered squatting in the dark toilet behind his house and beside the thickets, his shorts were up and on. His hands and knees were soiled.

The circumstantial evidence in the case at bar, when analyzed and taken together, leads to no other conclusion than that GALLARDE, and no other else, killed EDITHA and that he is guilty therefor. We quote with approval the lower court's enumeration of the circumstantial evidence in this case: 1. Gallarde, 18, and Editha, 10, were neighbors and friends, even as she used to frequent his place. 2. Both were at the Talan residence on the night of May 6, 1997 while neighbors indulged themselves in beer.

12. Gallarde was not at home when searchers went to look for him there, after Cabinta told them that Editha was last seen with Gallarde.

14. At the toilet he was asked the innocent question of where Editha was and he answered revealingly, thus: "I did not do anything to her" and "I let her go and brought her back to the dike and let her go home." 15. When asked where he had been, as the toilet was first seen empty, Gallarde said he was with Kiko and he slept at the latter's house, which answer Mario Bado promptly refuted saying, "Vulva of your mother. . . Kiko was with me drinking." Bado and Kiko were not at the place of the Talans that night. 16. Yanked out of the dark toilet near his own house, Gallarde joined Kgd. Mario Fernandez sans protest. 17. Dr. Tebangin found on Editha's cheeks two slit wounds, each being an inch away from her nostrils. Both wounds were fresh and reddish.

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From the lower portion of Editha's vagina blood oozed, accompanied by dirt. Her hymen was ruptured and was still bleeding. The medico-legal concluded that there must have been a forceful covering of Editha's nose and mouth because of the presence of the slit wounds on both sides of her face, and that in 30 seconds unconsciousness and weakening resulted, with the vaginal injuries contributing to her death.23 As to the crime of rape, there is much to be desired with respect to the prosecution's evidence therefor, but not for the reason adduced by the trial court, namely, the absence of spermatozoa in EDITHA's private part and thereabout. It is well settled that the absence of spermatozoa in or around the vagina does not negate the commission of rape.24Our doubt on the commission of rape is based on the fact that there is at all no convincing proof that the laceration of the vagina and the rupture of the hymen of EDITHA were caused in the course of coitus or by a male organ. Our meticulous reading of the testimony of Dr. Tebangin disclosed that he was never asked if the laceration and the rupture could have been caused by the penis of a human being. Needless to state, these could have been caused by any object other than the penis of a person. We cannot sustain the contention of GALLARDE that he was not positively identified as the assailant since there was no eyewitness to the actual commission of the crime. It does not follow that although nobody saw GALLARDE in the act of killing EDITHA, nobody can be said to have positively identified him. Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. There are two types of positive identification. A witness may identity a suspect or accused in a criminal case as the perpetrator of the crime as an eyewitness to the very act of the commission of the crime. This constitutes direct evidence. There may, however, be instances where, although a witness may not have actually seen the very act of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime as for instance when the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. This is the second type of positive identification, which forms part of circumstantial evidence, which, when taken together with other pieces of evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is that the accused is the author of the crime to the exclusion of all others. If the actual eyewitnesses are the only ones allowed to possibly positively identify a suspect or accused to the exclusion of others, then nobody can ever be convicted unless there is an eyewitness, because it is basic and elementary that there can be no conviction until and unless an accused is positively identified. Such a proposition is absolutely absurd, because it is settled that direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt.25 If resort to circumstantial evidence would not be allowed to prove identity of the accused on the absence of direct evidence, then felons would go free and the community would be denied proper protection. As discussed above, the circumstantial evidence as established by the prosecution in this case and enumerated by the trial court positively established the identity of GALLARDE, and no one else, as the person who killed EDITHA. We cannot agree with the trial court's rejection of the photographs (Exhibits "I," "J" and "K") taken of GALLARDE immediately after the incident on the ground that "the same were taken while [GALLARDE] was already under the mercy of the police." The taking of pictures of an accused even without the assistance of counsel, being a purely mechanical act, is not a violation of his constitutional right against self-incrimination.

The constitutional right of an accused against self-incrimination26 proscribes the use of physical or moral compulsion to extort communications from the accused and not the inclusion of his body in evidence when it may be material. Purely mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence the assistance and guiding hand of counsel is not required.27 The essence of the right against selfincrimination is testimonial compulsion, that is, the giving of evidence against himself through a testimonial act.28Hence, it has been held that a woman charged with adultery may be compelled to submit to physical examination to determine her pregnancy;29 and an accused may be compelled to submit to physical examination and to have a substance taken from his body for medical determination as to whether he was suffering from gonorrhea which was contracted by his victim;30 to expel morphine from his mouth;31 to have the outline of his foot traced to determine its identity with bloody footprints;32 and to be photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be done.33 There is also no merit in GALLARDE's argument that the failure of the prosecution to prove beyond reasonable doubt the place and time of the commission of the crime is fatal and will justify his acquittal. The place, time and date of the commission of the offense are not essential elements of the crime of rape with homicide. The gravamen of the offense is the carnal knowledge of a woman and that on the occasion of or as a reason thereof, the crime of homicide was committed. Conviction may be had on proof of the commission of the crime provided it appears that the specific crime charged was in fact committed prior to the date of the filing of the complaint or information, within the period of the statute of limitation, and within the jurisdiction of the court.34 The allegation of the place of commission of the crime in the complaint or information is sufficient if it can be understood therefrom that the offense was committed or some of the essential ingredients thereof occurred at some place within the jurisdiction of the court.35 The rule merely requires that the information shows that the crime was committed within the territorial jurisdiction of the court. The Court may even take judicial notice that said place is within its jurisdiction.36 As to the time of the commission of the crime, the phrase "on or about" employed in the information does not require the prosecution "to prove any precise date or time," but may prove any date or time which is not so remote as to surprise and prejudice the defendant."37 Contrary to the claim of GALLARDE, the prosecution was able to establish the proximate time of the commission of the crime, which was sometime between 9:00 p.m., when GALLARDE left the house of Talan followed by EDITHA, and 10:30 p.m., when the body of EDITHA was found. This was further corroborated by the examining physician who testified, on the basis of the degree of rigor mortis, that EDITHA died more or less, at 10:00 p.m. of 6 May 1997.38 Likewise, GALLARDE's alibi and bare denial deserve no consideration. He did not present witnesses who could confirm his presence in his house. No member of his family corroborated him on this matter. The defenses of denial and alibi, if unsubstantiated by clear and convincing evidence, are negative and self-serving, deserve no weight in law, and cannot be given evidentiary value over the testimony of credible witnesses who testify on affirmative matters.39

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Moreover, even assuming that GALLARDE's claim is true, his stay in his house did not preclude his physical presence at the locus criminis or its immediate vicinity. The place where the body of EDITHA was found buried was a few meters from his house, the place pointed to in the alibi and can be reached in a short while. For the defense of alibi to prosper, the requirements of time and place must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed, he must demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission.40

SO ORDERED. Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur.

Besides, no evil motive has been established against the witnesses for the prosecution that might prompt them to incriminate the accused or falsely testify against him. It is settled that when there is no showing that the principal witnesses for the prosecution were actuated by improper motive, the presumption is that the witnesses were not so actuated and their testimonies are thus entitled to full faith and credit.41 Testimonies of witnesses who have no motive or reason to falsify or perjure their testimonies should be given credence.42 With respect to GALLARDE's claim that he was arrested without warrant, suffice it to say that any objection, defect, or irregularity attending an arrest must be made before the accused enters his plea. 43 The records show no objection was ever interposed prior to arraignment and trial.44 GALLARDE's assertion that he was denied due process by virtue of his alleged illegal arrest is negated by his voluntary submission to the jurisdiction of the trial court, as manifested by the voluntary and counsel-assisted plea he entered during arraignment and by his active participation in the trial thereafter.45 It is settled that any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of an accused must be made before he enters his plea, otherwise the objection is deemed waived.46 It is much too late in the day to complain about the warrantless arrest after a valid information had been filed and the accused arraigned and trial commenced and completed and a judgment of conviction rendered against him.47 Verily, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after trial free from error; such arrest does not negate the validity of the conviction of the accused.48 Homicide, which we find to be the only crime committed by GALLARDE, is defined in Article 249 of the Revised Penal Code and is punished with reclusion temporal. In the absence of any modifying circumstance, it shall be imposed in its medium period. GALLARDE is entitled to the benefits of the Indeterminate Sentence Law. Accordingly, he can be sentenced to suffer an indeterminate penalty ranging from ten (10) years of the medium period of prision mayor as minimum to seventeen (17) years and four (4) months of the medium period of reclusion temporal as maximum. As to the civil aspect of the case, the parties agreed on P70,000 as liquidated damages. This should be construed as actual damages. However, as indemnity for death, the additional sum of P50,000, per current case law, should be awarded. WHEREFORE, the assailed decision of the Regional Trial Court, Branch 51, Tayug, Pangasinan, in Criminal Case No. T-1978 finding accused-appellant RADEL GALLARDE guilty of the crime of murder is hereby modified. As modified, RADEL GALLARDE is hereby found guilty beyond reasonable doubt, as principal, of the crime of Homicide, defined under Article 249 of the Revised Penal Code, and is hereby sentenced to suffer an indeterminate penalty ranging from ten (10) years of the medium period of of prision mayor as minimum to seventeen (17) years and four (4) months of the medium period of reclusion temporal as maximum, and to pay the heirs of the victim, Editha Talan, the sum of P70,000 as liquidated actual damages and P50,000 as indemnity for the death of Editha Talan. Costs against accused-appellant RADEL GALLARDE in both instances.1âwphi1.nêt

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G.R. No. 117488 September 5, 1996 SANTIAGO vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

IBASCO, petitioner,

DAVIDE, JR., J.: His motion to reconsider the decision 1 of the Court of Appeals of 11 August 1994 in CA-G.R. CR No. 13300 affirming in toto the decision 2 of 20 November 1991 of the Regional Trial Court (RTC) of Gumaca, Quezon, Branch 62, in Criminal Cases Nos. 2755-G, 2756-G, and 2757-G having been denied, 3 the petitioner filed this petition for review. The trial court found him guilty of the offense punished in B.P. Blg. 22 (Bouncing Checks Law). The accusatory portion of the information in Criminal Case No. 2755-G dated 31 March 1987 reads as follows: That on or about the 18th day of April 1984, at Barangay Camohaguin, Municipality of Gumaca, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there willfully, unlawfully and feloniously issue and make out Check No. DAT 41911, in the amount of EIGHTEEN THOUSAND NINETY PESOS and TEN CENTAVOS (P18,090.10), Philippine currency, drawn against the United Coconut Planters Bank, Daet Branch, and payable to Manuel Trivinio in payment for feeds purchased from the latter; that the accused knew fully well at the time of the issuance of said check that he did not have sufficient funds in or credit with the drawee bank for the payment of said check in full upon presentment; that upon presentation of said check to the bank for payment, the same was dishonored and refused payment for the reason that there was no sufficient funds to cover said check; and that despite notice to the accused by said Manuel Trivinio that said check was dishonored for lack of funds, said accused failed to deposit the necessary amount to cover said check, to the damage and prejudice of Manuel Trivinio, now represented by his heirs, in the aforesaid sum.

The facts are as follows [sic]: The complaining witness Maria Negro Trivinio and her late husband Manuel Trivinio operate an animal feed mill in Gumaca, Quezon while accusedappellant Santiago Ibasco and his wife operate a piggery in Daet, Camarines Norte. On or about October 26, 1983, accused-appellant Santiago Ibasco and his wife, came to the residence of the Trivinios at Sitio Seawall, Bgy. Camohaguin, Gumaca, Quezon and requested credit accommodation for the supply of ingredients in the manufacture of animal feeds (TSN March 15, 1988, p. 7). In accordance with the agreed credit arrangement, the Trivinios made three delivered of darak with a total value of P51,566.49 (Id., p. 9) and in payment, accusedappellant issued three (3) postdated checks, to wit: (1) Check No. 41909, postdated February 24, 1984, for P15,576.30 (Exh. A — Criminal Case No. 2757-G; Id., p. 9); (2) Check No. 41910, postdated March 23, 1984 for P17,900.00 (Exh. A — 2756-G; Id., p. 5) and (3) Check No. 41911, postdated April 18, 1984 for P18,090.10 (Exh. A — Criminal Case No. 2755-G; Id., p. 10). All checks were drawn against United Coconut Planters Bank, Daet Branch. Upon presentment to the Bank for payment of their due dates, the checks bounced for being drawn against insufficient funds (Exh. B-2755-G, B-2756-G and B-2757-G). The Trivinio spouses notified accused-appellant of the dishonor (TSN, March 13, 1988, p. 11). Accused-appellant replied by telegram offering his real property in Daet as security. Accused-appellant invited the Trivinios to come to Daet and inspect the property (Exh. C; Folder of Minutes and Exhibits, p. 13). When the Trivinios arrived in Daet, the accused told them that the property is across the sea, and, not wanting to cross the sea, the couple did not anymore inspect the property (TSN, March 15, 1988, p. 14). For failure of the accused to settle his account with the Trivinios, the instant case was filed. 7 The original records of the aforementioned criminal cases show that after the presentation of the evidence for both parties had been concluded, the trial court required the parties to submit their respective memoranda. However, before submitting his memorandum, the petitioner's new counsel filed a motion to dismiss on the ground of lack of jurisdiction since, it is claimed, the checks were "prepared, issued and delivered to the payee . . . at the office of the accused in Daet, Camarines Norte." 8 In its order 9 of 14 November 1991, the trial court denied the motion to dismiss considering that the informations alleged that the violations were committed in Barangay Camohaguin, Gumaca, Quezon, and that pieces of evidence, viz., the affidavits 10 of Maria Negro, the surviving spouse of Manuel Trivinio who was presented by the defense as a hostile witness, established that the checks were issued in the said place.

Contrary to law. 4 The informations in Criminal Case No. 2756-G and Criminal Case No. 2757-G are similarly worded as in Criminal Case No. 2755-G except as to the date of the violation of B.P. Blg. 22, the number of the checks, and the amounts thereof. In Criminal Case No. 2756-G, the violation was committed on 23 March 1984 and involved Check No. DAT 41910 in the amount of P17,900.00 5 In Criminal Case No. 2757-G, the violation was committed on 24 February 1984 and involved Check No. 41909 in the amount of P15,576.30. 6

On 17 December 1991, the trial court promulgated its decision 11 dated 20 November 1991 convicting the petitioner. The dispositive portion of the decision reads: WHEREFORE, this Court firmly believes and so holds that the prosecution had equitably proved its case by the evidences [sic] presented, finds the accused guilty beyond reasonable doubt in Criminal Cases Nos. 2755-G, 2756-G and 2757-G, and imposes the penalty in each criminal cases [sic]:

The cases were consolidated and jointly tried. Upon arraignment, the petitioner pleaded not guilty to the charges. In Criminal Case No. 2755-G, One (1) Year imprisonment and a fine of P36,180.20. The evidence for the prosecution is summarized in the challenged decision of the Court of Appeals as follows: In Criminal Case No. 2756-G, One (1) Year imprisonment and a fine of P35,800.00.

6

In Criminal Case No. 2757-G, One (1) Year imprisonment and a fine of P31,152.60. 12 The trial court gave full faith and credit to the evidence offered by the prosecution and, disregarding the theory of the defense, it opined and ruled as follows: Batas Pambansa Blg. 22 was purposely enacted to prevent the proliferation of worthless checks in the mainstream of daily business and to avert not only the undermining the Banking System of the country, but also the infliction of damage and injury upon trade and commerce occasioned by the indiscriminate issuance of such checks. By its very nature, the offenses defined BP 22 are against public interest while the crime of Estafa is against property. Since the act and commission specified in BP Blg. 22 are not necessarily evil or wrongful from their nature and neither are they inherently illicit and immoral and considering that the law which penalize [sic] such act or commission is a special statutory law, the offenses are considered mala prohibita and considering the rule in cases of mala prohibita, the only inquiry is whether or not the law has been violated (People vs. KIBLER, 106, NY, 321, cited in U.S. vs. Go Chico, 14 Phil. 132) — criminal intent is not necessary where the acts are prohibited for reasons of public policy (People vs. Conosa, C.A. 45, O.G. 3953). The defense of good faith and absence of criminal intent would not prosper in prosecution for violation (Res. No. 447, S. 1980, Tomayo vs. Desederio, Dec. 8, 1980 & Res. No. 624, S. 1981. ESCOBAR vs. SY, Sept. 1, 1981). xxx xxx xxx It is of no moment that by the evidence presented by the accused that a pre-existing obligation took place and that the products delivered by the deceased husband of complaining witness was [sic] below par; and that his piggery suffered losses. This situation can be a basis for a civil action which accused actually filed against complaining witness, but it cannot divest of the glaring fact that the checks he issued bounced and was [sic] dishonored. 13 As to the issue of jurisdiction, the trial court held: . . . The sworn statement of Maria Negro Trivinio which repudiated the allegation of the accused in questioning the jurisdiction of this Court; between the protestation of the accused that the place of issuance to be at [sic] Daet, Camarines Norte and the positive allegation of witness Maria Negro Trivinio that the checks were delivered at their residence in Gumaca. Quezon by the accused, this Court gives weight and credence to the testimony of said witness and accused is bound by his own evidence. 14 The petitioner seasonably appealed 15 the decision to the Court of Appeals which docketed the case as CA-G.R. CR No. 13300. In his Brief in CA-G.R. CR No. 13300, the petitioner contended that the trial court erred: (a) in not dismissing the cases for lack of jurisdiction; (b) in not dismissing the cases for failure of the prosecution to prove the guilt of the accused beyond reasonable doubt; (c) in not taking into consideration that the liability of the accused should have

been civil in nature and not criminal; and (d) in not disregarding the testimony of Maria Negro vda. de Trivinio since it is not clear and convincing and is incredible. 16 In its challenged decision 17 of 11 August 1994, the Court of Appeals rejected these claims of the petitioner and affirmed in toto the trial court's decision. As to the issue of lack of jurisdiction, the Court of Appeals ruled: We agree with the lower court. The sworn statement, Exhibit 10, of Maria Trivinio who was presented by accused-appellant as his last witness, in the words of the lower court, "repudiated the allegation of the accused in questioning the jurisdiction of this Court; between the protestation of the accused that the place of issuance to be at [sic] Daet, Camarines Norte and the positive allegation of witness Maria Negro Trivinio that the checks were delivered at their residence in Gumaca, Quezon by the accused, this Court gives weight and credence to the testimony of said witness and accused is bound by his own evidence" (Decision, pp. 1617; Rollo, pp. 96-98). At any rate, as held in the case of People vs. Grospe, 157 SCRA 154, a violation of BP 22 is an offense that appears to be continuing in nature. The knowledge on the part of maker or drawer of the check of the insufficiency of his funds, which is an essential ingredient of the offense is by itself a continuing eventuality, whether the accused be within one territory or another. Said the Supreme Court: In respect of the Bouncing checks case, the offense also appears to be continuing in nature. It is true that offense is committed by the very fact of its performance (Colmenares vs. Villar, No. L-27126, May 29, 1970, 33 SCRA 186); and that the Bouncing Checks Law penalizes not only the fact of dishonor of a check but also the act of making or drawing and issuance of a bouncing check (People vs. Hon. Veridiano, II, No. L-62243, 132 SCRA 523). The case, therefore, could have been filed also in Bulacan. As held in Que vs. People of the Philippines, G.R. Nos. 75217-18, September 11, 1987 "the determinative factor (in determining venue) is the place of the issuance of the check". However, it is likewise true that knowledge on the part of the maker or drawer of the check of the insufficiency of his funds, which is an essential ingredient of the offense is by itself a continuing eventuality, whether the accused be within one territory or another (People vs. Hon. Manzanilla, G.R. Nos. 66003-04, December 11, 1987). Accordingly, jurisdiction to take cognizance of the offense also lies in the Regional Trial Court of Pampanga. And, as pointed out in the Manzanilla case, jurisdiction or venue is determined by the allegations in the Information, which are controlling (Arches vs. Bellosillo, 81 Phil. 190, 193, cited in Tuzon vs. Cruz, No. L-27410, August 28, 1975, 66 SCRA 235). The Information filed herein specifically alleges that the crime was committed in San Fernando, Pampanga, and, therefore, within the jurisdiction of the Court below. (at page 164) This ruling was reiterated in the case of Lim vs. Rodrigo, 167 SCRA 487, where it was held:

7

Besides, it was held in People v. Hon. Manzanilla, supra, that as "violation of the bad checks act is committed when one "makes or draws and issues any checks [sic] to apply on account or for value, knowing at the time of issue that he does not have sufficient funds" or having sufficient funds in or credit with the drawee bank . . . shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank," "knowledge" is an essential ingredient of the offense charged. As defined by the statute, knowledge, is, by itself, a continuing eventuality, whether the accused be within one territory or another. This being the case, the Regional Trial Court of Baguio City has jurisdiction to try Criminal Case No. 2089-R (688).

cover a required warranty deposit. He also cites Ministry Circular No. 4 issued by the Department of Justice (DOJ) on 15 December 1981, the pertinent portion of which reads:

Moreover, we ruled in the same case of People v. Hon. Manzanilla, reiterated in People vs. Grospe, supra, that jurisdiction or venue is determined by the allegations in the information. The allegation in the information under consideration that the offense was committed in Baguio City is therefore controlling and sufficient to vest jurisdiction upon the Regional Trial Court of Baguio City. (at pages 492-493)

Henceforth, conforming with the rule that an administrative agency having interpreting authority may reverse its administrative interpretation of a statute, but that its new interpretation applies only prospectively (Waterbury Savings Bank vs. Danaher, 128 Conn. 476; 20 a2d 455 (1941), in all cases involving violation of Batas Pambansa Blg. 22 where the check in question is issued after this date, the claim that the check is issued as a guarantee or part of an arrangement to secure an obligation or to facilitate collection will no longer be considered as a valid defense.

In the case at bench it appears that the three (3) checks were deposited in Lucena City. 18 As to the second error wherein the petitioner asserted that the checks were issued "as a guarantee only for the feeds delivered to him" and that there is no estafa if a check is issued in payment of a pre-existing obligation, the Court of Appeals pointed out that the petitioner obviously failed to distinguish a violation of B.P. Blg. 22 from estafa under Article 315(2)[d] of the Revised Penal Code. 19 It further stressed that B.P. Blg. 22 applies even in cases where dishonored checks were issued as a guarantee or for deposit only, for it makes no distinction as to whether the checks within its contemplation are issued in payment of an obligation or merely to guarantee the said obligation and the history of its enactment evinces the definite legislative intent to make the prohibition allembracing. 20 As to the contention that the prosecution failed to prove that at the time of the drawing and issuance of the checks the petitioner had insufficient funds at the drawee bank to cover the face value of the checks, the Court of Appeals held that the mere issuance of a dishonored check gives rise to the presumption of knowledge on the part of the drawer that he issued the check without sufficient funds. 21 The Court of Appeals also saw no reason to disregard the testimony of Maria Negro. Still unsatisfied with the decision, the petitioner filed this petition for review. In addition to reiterating the arguments he raised before the Court of Appeals, the petitioner asserts that the Court of Appeals erred in applying the doctrine that the mere issuance of a bad check is a crime in itself. The petitioner admits that the checks he issued were dishonored. His main defense as to the dishonored checks is that they were issued not for value but for accommodation or guarantee and invokes our ruling in Magno vs. Court of Appeals, 22 where we held that there was no violation of B.P. Blg. 22 where the bounced check was issued to

2.3.4 Where issuance of bouncing check is neither estafa nor violation of B.P. Blg. 22. Where the check is issued as part of an arrangement to guarantee or secure the payment of the obligation, whether pre-existing or not, the drawer is not criminally liable for either estafa or violation of B.P. Blg. 22. It was subsequently reversed by Ministry Circular No. 12 issued on 8 August 1984, which admitted its misinterpretation of B.P. Blg. 22. The pertinent portion of the latter reads:

The petitioner also argues us to apply our ruling in Co vs. Court of Appeals, 23 where we held that dishonored checks issued prior to 8 August 1984 to guarantee or secure payment of an obligation, whether pre-existing or not, are governed by Circular No. 4 of 15 December 1981 of the DOJ and the drawer thereof cannot be liable for the violation of B.P. Blg. 22. In the resolution of 31 May 1995, 24 we denied the petition for failure of the petitioner to show any reversible error committed by the Court of Appeals. The petitioner sought a reconsideration primarily on the basis of Co vs. Court of Appeals. 25 In our resolution of 7 August 1995, 26 we granted the motion for reconsideration, reinstated the petition and required the respondents to comment on the petition. In its comment, the Office of the Solicitor General countered that the trial court had jurisdiction over the cases inasmuch as the questioned checks were delivered to Manuel Trivinio in Gumaca, Quezon, and cited in support thereof People vs. Yabut. 27 It further argued that all the elements of B.P. Blg. 22 are present in these cases. The petitioner's knowledge of insufficient funds is legally presumed from the fact of dishonor; and the defense that the dishonored checks were issued as guarantee to secure a pre-existing obligation is without merit pursuant to the rule laid down in Que vs. People. 28 We sustain the petitioner's conviction. Violation of B.P. Blg. 22 is in the nature of a continuing crime. Venue is determined by the place where the elements of making, issuing, or drawing of the check and delivery thereof are committed. Thus, as explained in People vs. Yabut, 29 "[t]he theory is that a person indicted with a transitory offense may be validly tried in any jurisdiction where the offense was in part committed. . . . The place where the bills were written, signed, or dated does not necessarily fix or determine the place where they were executed. What is of decisive importance is the delivery thereof. The delivery of the instrument is the final act essential to its consummation as an obligation."

8

In her testimony, Maria Negro categorically stated that the three checks were delivered by the petitioner to their residence in Gumaca, Quezon. It is well-settled in criminal jurisprudence that where the issue is one of credibility of witnesses, the appellate court will generally not disturb the findings of the trial court, considering it was in a better position to settle such issue. Indeed, the trial court has the advantage of hearing the witness and observing his conduct during trial, circumstances which carry a great weight in appreciating his credibility. 30 We see no oversight on the part of the trial court in giving credence to the testimony of Maria Negro. Besides, we have repeatedly ruled that the testimony of a lone witness, when credible and trustworthy, is sufficient to convict. 31 Besides, it is not without convincing reason to believe that delivery of the checks was in fact made at Gumaca, Quezon, it being the place of business of the late Manuel Trivinio and from where the animal feeds were delivered. Consequently, payment should be considered effected at Gumaca, Quezon. 32

The fact that the object of the contract, the animal feeds, was not of good quality is irrelevant in the prosecution of a case involving B.P. Blg. 22, for the said law was enacted to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. It is not the non-payment of an obligation which the law punishes, but the act of making and issuing a check that is dishonored upon presentment for payment. 37 WHEREFORE, the instant petition is DENIED, and the challenged decision of the Regional Trial Court, Branch 62, Gumaca, Quezon, in Criminal Cases Nos. 2755-G, 2756-G, and 2757-G is hereby AFFIRMED. Costs against the petitioner. SO ORDERED. Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.

The petitioner's defense of accommodation cannot exculpate him from his wrongdoing. The case of Magno is inapplicable to him. The material operative facts therein obtaining are different from those established in the instant petition. In Magno, the bounced checks were issued to cover a "warranty deposit" in a lease contract, where the lessor-supplier was also the financier of the deposit. It was as modus operandi whereby the supplier of the goods is also able to sell or lease the same goods at the same time privately financing those in desperate need so they may be accommodated. The maker of the check thus becomes an unwilling victim of a lease agreement under the guise of a lease-purchase agreement. The maker did not benefit at all from the deposit, since the checks were used as collateral for an accommodation and not to cover the receipt of an actual account or credit for value. Also, in Magno, the payee in the former was made aware of the insufficiency of the funds prior to the issuance of the checks. Equally untenable is the petitioner's argument that since he issued the checks prior to 8 August 1984 as accommodation or security, he is similarly situated with Co in the Co case. In Co, we held that the rubber checks issued prior to 8 August 1984 as a guarantee or as part of an arrangement to secure an obligation or to facilitate collection was a valid defense in view of Ministry Circular No. 4 of the Ministry of Justice. In the case of the petitioner, although he issued the checks prior to such date, they were issued in payment of his indebtedness, and not for the accommodation of the Trivinios nor security of their indebtedness. Accommodation pertains to an arrangement made as a favor to another, not upon a consideration received. On the other hand, guarantee refers to a promise to answer the debt of another, in case the latter should fail to do so. 33Neither occurred in this case. The petitioner's theory of accommodation is debunked by the following circumstances: (1) The checks were issued after all deliveries were made at such time when the petitioner's obligation was already in existence; (2) The sum of the checks equalled the petitioner's total obligation in the amount of P51,566.40; (3) The petitioner prepared a statement of account, 34 where the checks issued were applied to his accounts due to Manuel Trivinio; (4) The act of the petitioner in issuing three checks of different dates is inconsistent to his claim 35 that Manuel Trivinio requested a post-dated check to show to his creditors; and (5) After the checks bounced, the petitioner offered a property for its replacement. 36 All these incidents verily indicate that the checks were issued as payment and for value and not for accommodation. Needless to state, the checks failed to bear any statement "for accommodation" or "for guarantee" to show the petitioner's intent.

9

1. That sometime in 1983 and 1984, accused Felix Nizurtado was the Barangay Captain of Barangay Panghulo of Malabon, Metro Manila and discharged his functions as such; G.R. No. 107383 December 7, 1994 FELIX vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

NIZURTADO, petitioner,

Melquiades P. De Leon for petitioner. Eugene C. Paras collaborating counsel for the petitioner.

2. That sometime in 1983, the Ministry of Human Settlements, the Metro Manila Commission and Kilusang Kabuhayan at Kaunlaran (KKK) undertook a Livelihood Program for Barangays in Metro Manila consisting of loans in the amount of P10, 000.00 per barangay. 3. That as Barangay Captain of Barangay Panghulo, accused received a check in the amount of P10,000.00 for said barangay's livelihood program; 4. That the check, to be encashed, had to be supported by a project proposal to be approved by the KKK; 5. That the accused encashed the check received by him in the amount of P10,000.00 with the Land Bank of the Philippines; and

VITUG, J.: An information, accusing Felix Nizurtado of having committed the complex crime of malversation of public funds through falsification of public document, reads: That on or about August 25, 1983, and for sometime prior or subsequent thereto, in the City of Caloocan, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, a public officer, being then the Barangay Captain of Panghulo, Malabon, Metro Manila, did then and there, willfully, unlawfully and feloniously falsify and attest Resolution No. 17 Series of 1983 by making it appear that on August 25, 1983 the Barangay council of Panghulo met and identified T-shirt manufacturing as its livelihood project, when in truth and in fact, as the accused fully well knew, no such meeting was held, where T-shirt manufacturing was identified and approved by the Barangay Council as its livelihood project, and thereafter, accused submitted the falsified resolution to the MHS-MMC-KKK Secretariat which endorsed the same to the Land Bank of the Philippines, which on the basis of said endorsement and the falsified resolution, encashed LBP check No. 184792 in the amount of TEN THOUSAND PESOS (P10,000.00), which check was earlier received by him as Barangay Captain of Panghulo in trust for the Barangay for its livelihood project and for which fund accused became accountable, and upon receipt thereof herein accused, with deliberate intent and grave abuse of confidence did then and there willfully, unlawfully and feloniously misappropriate, misapply and convert to his own personal use and benefit the amount of TEN THOUSAND PESOS (P10,000.00) out of the funds for which he was accountable, to the damage and prejudice of the government in the said amount. CONTRARY TO LAW. 1 When arraigned by the Sandiganbayan, Nizurtado pleaded "not guilty" to the charge. During the pre-trial, held on 17 July 1989, the prosecution and the defense stipulated thusly:

6. That the accused distributed the amount of P10,000.00 in the form of loans of P1,000.00 each to members of the barangay council. 2 After evaluating the evidence adduced, the Sandiganbayan came out with its factual findings and conclusions, hereunder detailed: It appears from the evidence, testimonial and documentary, as well as from the stipulations of the parties that accused Felix V. Nizurtado was the Barangay Captain of Barangay Panghulo, Malabon, Metro Manila from 1983 to 1988. In April or May 1983, Nizurtado and Manuel P. Romero, Barangay Treasurer of Panghulo, attended a seminar at the University of Life, Pasig, Metro Manila. The seminar was about the Barangay Livelihood Program of the Ministry of Human Settlements (MHS), the Metro Manila Commission (MMC), and the Kilusang Kabuhayan at Kaunlaran (KKK). Under the program, the barangays in Metro Manila could avail of loans of P10,000.00 per barangay to finance viable livelihood projects which the Barangay Councils would identify from the modules developed by the KKK Secretariat or which, in the absence of such modules, the Councils would choose subject to the evaluation/validation of the Secretariat. After the seminar, Nizurtado received a check for P10,000.00 intended for Barangay Panghulo and issued in his name. The check, however, could be encashed only upon submission to the Secretariat of a resolution approved by the Barangay Council identifying the livelihood project in which the loan would be invested. He entrusted the check to Romero for safekeeping. In one of its regular sessions, which was on the second Saturday of each month, the Barangay Council of Panghulo discussed the project in which to invest the P10,000.00. Among the proposals was that of Romero that a barangay service center be established. But the meeting ended without the Councilmen agreeing on any livelihood project.

10

A few days after the meeting, Nizurtado got back the check from Romero, saying that he would return it because, as admitted by Nizurtado during the trial, the Councilmen could not agree on any livelihood project. Nizurtado signed a receipt dated August 4, 1983, for the check "to be returned to the Metro Manila Commission." After a few more days, Nizurtado asked Romero to sign an unaccomplished resolution in mimeograph form. All the blank spaces in the form were unfilled-up, except those at the bottom which were intended for the names of the Barangay Councilmen, Secretary, and Captain, which were already filled-up and signed by Councilmen Marcelo Sandel, Jose Bautista, Alfredo Aguilar, Alfredo Dalmacio, F.A. Manalang (the alleged Barangay Secretary), and Nizurtado. In asking Romero to sign, Nizurtado said that the MMC was hurrying up the matter and that the livelihood project to be stated in the resolution was that proposed by Romero — barangay service center. Trusting Nizurtado, Romero affixed his signature above his typewritten name. When he did so, the blank resolution did not yet bear the signatures of Councilmen Santos Gomez and Ceferino Roldan. The blank resolution having already been signed by Romero, Nizurtado asked him to talk with Gomez and secure the latter's signature. Romero obliged and upon his pleading that his proposed barangay service center would be the one written in the blank resolution, Gomez signed. But before he returned the resolution, he had it machine copied. The machine copy is now marked Exhibit J. Unknown to Romero and Gomez, the blank but signed resolution was later on accomplished by writing in the blank space below the paragraph reading: WHEREAS, the Barangay Council now in this session had already identified one livelihood project with the following title and description: the following: Title : T-shirt Manufacturing Description : Manufacture of round neck T-shirts of various sizes and colors. The other blank spaces in the resolution were also filled-up. Thus "Panghulo," "Brgy. Hall," and "August 25, 1983" were typewritten in the spaces for the name of the Barangay, the place where and the date when the council meeting took place, respectively. In the blank spaces for the names of the members of the Council who attended the meeting were typewritten the names of Felix Marcelo Alfredo Santos Jose

Nizurtado Sandel Aguilar Gomez Bautista

Barangay Barangay Barangay Barangay Barangay

Captain Councilman Councilman Councilman Councilman

Alfredo Dalmacio Ceferino Roldan Barangay Councilman

Barangay

Councilman

The word "none" was inserted in the space intended for the names of the Councilmen who did not attend. The resolution was given the number "17" series of "1983." Finally, the last line before the names and signatures of the Councilmen was completed by typewriting the date so that it now reads: UNANIMOUSLY APPROVED this 25th day of August, 1983. The resolution as fully accomplished is now marked Exhibit D. Other supporting documents for the encashment of the check of P10,000.00 were also prepared, signed, and filed by Nizurtado. They were: Project Identification (Exhibit B), Project Application in which the borrower was stated to be Samahang Kabuhayan ng Panghulo (Exhibit C and C-1), Project Location Map (Exhibit E), and Promissory Note (Exhibit F). The application for loan having been approved, the Promissory Note (Exhibit F) was re-dated from August to October 18, 1983, placed in the name of the Samahang Kabuhayan ng Panghulo represented by Nizurtado, and made payable in two equal yearly amortizations of P5,000.00 each from its date. The purpose of the loan was stated to be T-Shirt Manufacturing of round neck shirts of various sizes and colors. Nizurtado encashed the check on the same day, October 18, 1983, and re-lent the cash proceeds to himself, Sandel, Aguilar, Bautista, Dalmacio, and Roldan at P1,000.00, and to Manalang and Oro Soledad, Barangay Court Secretary and Barangay Secretary, respectively, at P500.00 each. On April 25, 1984, Nizurtado who was then on leave wrote Sandel, then acting Barangay Captain, informing him that per record, he, Romero, and Gomez had not made any remittance for the account of their P1,000.00 loans from the barangay livelihood fund of P10,000.00 and advising him to collect, through the Secretary or Treasurer. Since Romero and Gomez had not borrowed any amount from the said fund, they told Sandel to ask Nizurtado if he had any proof of their alleged loans. So Sandel wrote Nizurtado on May 2, 1984, but the latter did not answer. This attempt to collect from Romero and Gomez prompted them to make inquiries. They learned that the check for P10,000.00 was indeed encashed by Nizurtado and that the blank resolution which they had signed was filled-up to make it appear that in a Council meeting where all councilmen were present on August 25, 1983, T-shirt manufacturing was adopted as the livelihood project of Panghulo. But no such meeting occurred on that day or on any other day. Neither was Nizurtado authorized by the Council to submit T-shirt Manufacturing as the livelihood project of Panghulo.

11

On August 9, 1984, Romero and Gomez lodged their complaint against Nizurtado with the Office of the Tanodbayan. After due preliminary investigation, this case was filed. As of September 7, 1984, the members of the Council who had received P1,000.00 each, as well as Bacani (also referred to as Manalang) and Soledad who had received P500.00 each had paid their respective loans to Nizurtado who, in turn, remitted the payments to the MMC on these dates: April August September ————

16, 14, 7,

1984 1984 1984

P1,450.00 3,550.00 3,000.00

Total P8,000.00 In June 1987, after demands for payment, Dalmacio remitted the balance of P2,000.00 from his pocket because, as acting Barangay Captain, he did not want to leave the Barangay with an indebtedness.3 On the basis of its above findings, the Sandiganbayan convicted the accused of the offense charged. The dispositive portions of its decision, promulgated on 18 September 1992, read: WHEREFORE, the Court finds Felix Nizurtado y Victa guilty beyond reasonable doubt of the complex crime of malversation of public funds committed through falsification of public document and, appreciating in his favor . . . two mitigating circumstances and applying the Indeterminate Sentence Law, imposes upon him the penalties of imprisonment ranging from FOUR (4) YEARS, NINE (9) MONTHS, and ELEVEN (11) DAYS of prision correccional as minimum to EIGHT (8) YEARS, EIGHT (8) MONTHS, and ONE (1) DAY of prision mayor as maximum; perpetual special disqualification; and a fine of P10,000.00. No pronouncement is made as to civil liability, there having been complete restitution of the amount malversed. With costs.

2. It has committed serious error of law and gravely abused its discretion in finding petitioner guilty of malversation of the amount of P10,000.00 which he had received as a loan from the then Metro Manila Commission in his capacity as representative of the Samahang Kabuhayan ng Barangay Panghulo, Malabon, Metro Manila. 5 The Solicitor General Agrees in all respects with the Sandiganbayan in its findings and judgment except insofar as it has found petitioner to have likewise committed the crime of falsification of a public document. Article 217 of the Revised Penal Code provides: Art. 217. Malversation of public funds or property. — Presumption of malversation. — Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty the misappropriation or malversation of such funds or property, shall suffer: 1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundreds pesos. 2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two hundred pesos but does not exceed six thousand pesos. 3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos. 4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua. In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

SO ORDERED.4 His motion for reconsideration having been denied, Nizurtado has filed the instant petition for review on certiorari. Petitioner faults the Sandiganbayan in that — 1. It has committed grave abuse of discretion in finding that Resolution No. 17, dated August 25, 1983, of the Barangay Council of Panghulo, Malabon, Metro Manila (Exh. "D") is a falsified document and that the petitioner is the forger thereof; and

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. The elements of malversation, essential for the conviction of an accused, under the above penal provisions are that — (a) the offender is a public officer;

12

(b) he has the custody or control of funds or property by reason of the duties of his office; (c) the funds or property involved are public funds or property for which he is accountable; and (d) he has appropriated, taken or misappropriated, or has consented to, or through abandonment or negligence permitted, the taking by another person of, such funds or property. Nizurtado was a public officer, having been the Barangay Captain of Panghulo, Malabon, Metro Manila, from 1983 to 1988; in that capacity, he received and later encashed a check for P10,000.00, specifically intended by way of a loan to the barangay for its livelihood program; and the funds had come from the Ministry of Human Settlements, the Metro Manila Commission and "Kilusang Kabuhayan at Kaunlaran." The only point of controversy is whether or not Nizurtado has indeed misappropriated the funds. Petitioner was able to encash the check on 18 October 1988 on the basis of a resolution of the Barangay Council, submitted to the KKK Secretariat, to the effect that a livelihood project, i.e., "T-shirt manufacturing," had already been identified by the council. The money, however, instead of its being used for the project, was later lent to, along with petitioner, the members of the Barangay Council. Undoubtedly, the act constituted "misappropriation" within the meaning of the law.6 Accused-appellant sought to justify the questioned act in that it was only when the members of the Barangay Council had realized that P10,000.00 was not enough to support the T-shirt manufacturing project, that they decided to distribute the money in the form of loans to themselves. He submitted, in support thereof, a belated 7 certification issued by Rodolfo B. Banquicio, Chief of District IV of the Support Staff and Malabon SubDistrict Officer of KKK, to the effect that Barangay Captains were given discretionary authority to invest the money in any viable project not falling within the list of project modules provided by the MHS-NCR Management. Lending the unutilized funds to the members of the Barangay council could have hardly been meant to be the viable project contemplated under that certification. Furthermore, it would appear that only Regional Action Officer Ismael Mathay, Jr., and Deputy Regional Action Officer Lilia S. Ledesma were the officials duly authorized to approve such projects upon the recommendation of the KKK Secretariat.8 We could see no flaw in the ratiocination of the Sandiganbayan, when, in rejecting this defense, it said: The defense evidence that the Barangay Council changed the T-shirt Manufacturing to whatever business ventures each members of the Council would select for investment of his P1,000.00 has, as already stated, little, if any, probative value. But assuming there was such a change, the same is of no avail. The Resolution marked Exhibit D expressly stated that the P10,000.00 "shall only be appropriated for the purpose/s as provided in the issued policies and guidelines of the program." The guidelines, in turn, prescribed that the livelihood project shall be identified from the modules developed by the KKK Secretariat or, as stipulated in the Resolution itself, in the absence of such modules, shall be chosen by the Samahang Kabuhayan "subject to the evaluation/validation of the KKK Secretariat." There is absolutely no showing that the alleged substitute projects which each

lendee of P1,000.00 would select were among those of the developed modules or were submitted to the KKK Secretariat for evaluation/validation.9 Accused-appellant criticizes the Sandiganbayan for its having failed to consider the fact that no valid demand has been made, or could have been made, for the repayment of the loaned sum. Demand merely raises a prima facie presumption that missing funds have been put to personal use. The demand itself, however, is not an element of, and not indispensable to constitute, malversation. Even without a demand, malversation can still be committed when enough facts, such as here, are extant to prove it. 10 Accused-appellant was charged with having committed the crime through the falsification of a public document punishable under paragraph 2 of Article 171 of the Revised Penal Code. The pertinent provisions read: Art. 171. Falsification by public officer, employee or notary or ecclesiastic minister. — The penalty ofprision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts: xxx xxx xxx 2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; In falsification under the above-quoted paragraph, the document need not be an authentic official paper since its simulation, in fact, is the essence of falsification. So, also, the signatures appearing thereon need not necessarily be forged. 11 In concluding that the Barangay Council resolution, Exhibit "D," 12 was a falsified document for which petitioner should be held responsible, the Sandiganbayan gave credence to the testimonies of Barangay Councilman Santos A. Gomez and Barangay Treasurer Manuel P. Romero. The two testified that no meeting had actually taken place on 25 August 1983, the date when "T-shirt manufacturing" was allegedly decided to be the barangay livelihood project. The Sandiganbayan concluded that Nizurtado had induced Romero and Gomez to sign the blank resolution, Exhibit "J" 13 on the representation that Romero's proposal to build a barangay service center would so later be indicated in that resolution as the barangay livelihood project. The established rule is that unless the findings of fact of the Sandiganbayan are bereft of substantial evidence to support it, those findings are binding on this court. The Sandiganbayan has considered the mitigating circumstances of voluntary surrender and restitution in favor of Nizurtado. Deputy Clerk of Court Luisabel Alfonso Cortez, on 17 January 1989, has certified to the voluntary surrender of the accused thusly:

13

CERTIFICATION

o f C o u r t

THIS CERTIFIES that accused FELIX NIZURTADO in criminal Case No: 13304 voluntarily surrendered before this court on JANUARY 17, 1989 and posted his bail bond in said case. Manila, Philippines, JANUARY 17, 1989 ( s g d . ) L U I S A B E L A L F O N S O C O R T E Z D e p u t y C l e r k

1 4

Voluntary surrender (Art. 13, par. 7, Revised Penal Code), therefore, may thus be treated as a modifying circumstance independent and apart from restitution of the questioned funds by petitioner (Art. 13, par. 10, Revised Penal Code). We are convinced, furthermore, that petitioner had no intention to commit so grave a wrong as that committed. (Art. 13, par. 3, Revised Penal Code), entitling him to three distinct mitigating circumstances. Under Article 48 of the Revised Penal Code, when a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same (the penalty) to be applied in the maximum period. The penalty prescribed for the offense of malversation of public funds, when the amount involved exceeds six thousand pesos but does not exceed twelve thousand pesos, is prision mayor in its maximum period to reclusion temporal in its minimum period; in addition, the offender shall be sentenced to suffer perpetual special disqualification and to pay a fine equal to the amount malversed (Art. 217[3], Revised Penal Code). The penalty of prision mayor and a fine of five thousand pesos is prescribed for the crime of falsification under Article 171 of the Revised Penal Code. The former (that imposed for the malversation), being more severe than the latter (that imposed for the falsification), is then the applicable prescribed penalty to be imposed in its maximum period. The actual attendance of two separate mitigating circumstances of voluntary surrender and restitution, also found by the Sandiganbayan and uncontested by the Solicitor General, entitles the accused to the penalty next lower in degree. For purposes of determining that next lower degree, the full range of the penalty prescribed by law for the offense, not merely the imposable penalty because of its complex nature, should, a priori, be considered. It is our considered view that the ruling in People vs. Gonzales, 73 Phil. 549, as opposed to that of People vs. Fulgencio, 92 Phil. 1069, is the correct rule and it is thus here reiterated. In fine, the one degree lower than prision mayor maximum to reclusion temporal minimum is prision mayor minimum to prision mayor medium (being the next two periods in the scale of penalties [see Art. 64, par 5, in relation to Art. 61, par 5, Revised Penal Code]) the full range of which is six years and one day to ten years. This one degree lower penalty should, conformably with Article 48 of the Code (the penalty for complex crimes), be imposed in its maximum period or from eight years, eight months and one day to ten years. The presence of the third mitigating circumstance of praeter intentionem (lack of intention to commit so grave a wrong as that committed) would result in imposing a period the court may deem applicable. 15 Considering, however, that the penalty has to be imposed in the maximum period, the only effect of this additional mitigating circumstance is to impose only the minimum portion of that maximum period, 16 that is, from eight years, eight months and one day to nine years, six months and ten days, from which range the maximum of the indeterminate sentence shall be taken. Under the Indeterminate Sentence Law (which can apply since the maximum term of imprisonment would exceed one year), the court is to impose an indeterminate sentence, the minimum of which shall be anywhere within the range of the penalty next lower in degree (i.e., prision correccional in its medium period to prision correccional in its maximum period or anywhere from two years, four months and one day to six years) and the maximum of which

14

is that which the law prescribes after considering the attendant modifying circumstances. In view of the mitigating circumstances present in this case, the fine of P10,000.00 may also be reduced (Art. 66, Revised Penal Code) and, since the principal penalty is higher than prision correccional, subsidiary imprisonment would not be warranted. (Art. 39, par. 3, Revised Penal Code). The law and the evidence no doubt sustains Nizurtado's conviction. Given all the attendant circumstances, it is, nevertheless, the personal and humble opinion of the assigned writer of this ponencia that appellant deserves an executive commutation of the statutory minimum sentence pronounced by this Court. WHEREFORE, the decision of the Sandiganbayan convicting Nizurtado for malversation of public funds through falsification of public document is AFFIRMED but the sentence, given the circumstances here obtaining, is MODIFIED by imposing on petitioner a reduced indeterminate sentence of from two years, four months and one day to eight years, eight months and one day, perpetual special disqualification and a fine of P2,000.00. SO ORDERED. Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Kapunan and Mendoza, JJ., concur. Feliciano, J., is on leave.

15

G.R. No. 108747 April 6, 1995 PABLO C. FRANCISCO, vs. COURT OF APPEALS AND THE HONORABLE MAXIMO C. CONTRERAS, respondents.

On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed his conviction but appreciated in his favor a mitigating circumstance analogous to passion or obfuscation. Thus — petitioner,

BELLOSILLO, J.: Probation is a special privilege granted by the state to a penitent qualified offender. It essentially rejects appeals and encourages an otherwise eligible convict to immediately admit his liability and save the state of time, effort and expenses to jettison an appeal. The law expressly requires that an accused must not have appealed his conviction before he can avail of probation. This outlaws the element of speculation on the part of the accused — to wager on the result of his appeal — that when his conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation as an "escape hatch" thus rendering nugatory the appellate court's affirmance of his conviction. Consequently, probation should be availed of at the first opportunity by convicts who are willing to be reformed and rehabilitated, who manifest spontaneity, contrition and remorse. As conceptualized, is petitioner entitled to probation within the purview of P.D. 968, as amended by P.D. 1257 and P.D. 1990? Petitioner's woes started when as President and General Manager of ASPAC Trans. Company he failed to control his outburst and blurted — You employees in this office are all tanga, son of a bitches (sic), bullshit. Puro kayo walang utak . . . . Mga anak ng puta . . . . Magkano ba kayo . . . God damn you all. Thus for humiliating his employees he was accused of multiple grave oral defamation in five (5) separate Informations instituted by five (5) of his employees, each Information charging him with gravely maligning them on four different days, i.e., from 9 to 12 April 1980. On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial Court of Makati, Br. 61, found petitioner guilty of grave oral defamation in four (4) of the five (5) cases filed against him, i.e., Crim. Cases Nos. 105206, 105207, 105209 and 105210, sentenced him to a prison term of one (1) year and one (l) day to one (1) year and eight (8) months of prision correccional "in each crime committed on each date of each case, as alleqed in the information(s)," ordered him to indemnify each of the offended parties, Victoria Gatchalian, Rowena Ruiz, Linda Marie Ayala Pigar and Marie Solis, P10,000.00 as exemplary damages, and P5,000.00 for attorney's fees, plus costs of suit.1 He was however acquitted in Crim. Case No. 105208 for persistent failure of the offended party, Edgar Colindres, to appear and testify. Not satisfied with the Decision of the MeTC, and insisting on his innocence, petitioner elevated his case to the Regional Trial Court.

. . . (he) was angry and shouting when he uttered the defamatory words complained of . . . . he must have been angry and worried "about some missing documents . . . as well as the letter of the Department of Tourism advising ASPAC about its delinquent tax of P1.2 million . . . . " the said defamatory words must have been uttered in the heat of anger which is a mitigating circumstance analogous to passion or obfuscation.2 Accordingly, petitioner was sentenced "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment . . . . "3 After he failed to interpose an appeal therefrom the decision.of the RTC became final. The case was then set for execution of judgment by the MeTC which, as a consequence, issued a warrant of arrest. But·before he could be arrested petitioner filed an application for probation which the MeTC denied "in the light of the ruling of the Supreme Court in Llamado v. Court of Appeals, G.R. No, 84850, 29 June 1989, 174 SCRA 566 . . . ."4 Forthwith he went to the Court of Appeals on certiorari which on 2 July 1992 dismissed his petition on the following grounds — Initially, the Court notes that the petitioner has failed to comply with the provisions of Supreme Court Circular No. 28-91 of September 4, 1991. Violation of the circular is sufficient cause for dismissal of the petition. Secondly, the petitioner does not allege anywhere in the petition that he had asked the respondent court to reconsider its above order; in fact, he had failed to give the court an.opportunity to correct itself if it had, in fact, committed any error on the matter. He is, however, required to move for reconsideration of the questioned order before filing a petition for certiorari (Sy It v. Tiangco, 4 SCRA 436). This failure is fatal to his cause. It is a ground for dismissal of his petition (Santos v. Vda. de Cerdenola, 5 SCRA 823; Acquiao v. Estenso, 14 SCRA 18; Del Pilar Transit, Inc. v. Public Service Commission, 31-SCRA 372). Thirdly, it is obvious that respondent court did not commit any capricious, arbitrary, despotic or whimsical exercise of power in denying the petitioner's application for probation . . . . Fourthly, the petition for probation was filed by the petitioner out of time . . . . Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to grant probation after conviction, upon an application by the defendant within the period of appeal, upon terms and conditions and period appropriate to each case, but expressly rules out probation where an appeal has been taken . . . . 5 The motion for reconsideration was likewise denied. In the present recourse, petitioner squirms out of each ground and seeks this Court's compassion in dispensing with the minor technicalities which may militate against his petition as he now argues before us that he has not yet lost his right to avail of probation notwithstanding his appeal from the MeTC to the RTC since "[t]he reason for his appeal was precisely to enable him to avail himself of the benefits of the Probation Law because the original

16

Decision of the (Metropolitan) Trial Court was such that he would not then be entitled to probation." 6 He contends that "he appealed from the judgment of the trial court precisely for the purpose of reducing the penalties imposed upon him by the said court to enable him to qualify for probation." 7 The central issue therefore is whether petitioneris still qualified to avail of probation even after appealing his conviction to the RTC which affirmed the MeTC except with regard to the duration of the penalties imposed. Petitioner is no longer eligible for probation. First. Probation is a mere privilege, not a right. 8 Its benefits cannot extend to those not expressly included. Probation is not a right of an accused, but rather an act of grace and clemency or immunity conferred by the state which may be granted by the court to a seemingly deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he stands convicted. 9 It is a special prerogative granted by law to a person or group of persons not enjoyed by others or by all. Accordingly, the grant of probation rests solely upon the discretion of the court which is to be exercised primarily for the benefit of organized society, and only incidentally for the benefit of the accused.10 The Probation Law should not therefore be permitted to divest the state or its government of any of the latter's prerogatives, rights or remedies, unless the intention of the legislature to this end is clearly expressed, and no person should benefit from the terms of the law who is not clearly within them. Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction," nor Llamado v. Court of Appeals 11 which interprets the quoted provision, offers any ambiguity or qualification. As such, the application of the law should not be subjected to any to suit the case of petitioner. While the proposition that an appeal should not bar the accused from applying for probation if the appealis solely to reduce the penalty to within the probationable limit may be equitable, we are not yet prepared to accept this interpretation under existing law and jurisprudence. Accordingly, we quote Mr. Justice Feliciano speaking for the Court en banc in Llamado v. Court of Appeals— . . . we note at the outset that Probation Law is not a penal statute. We, however, understand petitioner's argument to be really that any statutory language that appears to favor the accused in acriminal case should be given.a "liberal interpretation." Courts . . . have no authority to invoke "liberal interpretation" or "the spirit of the law" where the words of the statute themselves, and·as illuminated by the history of that statute, leave no room for doubt or interpretation. We do not believe that "the spirit of·the law" may legitimately be invoked to set at naught words which have a clear and definite meaning imparted to them by our procedural law. The "true legislative intent" must obviously be given effect by judges and all others who are charged with the application and implementation of a statute. It is absolutely essential to bear in mind, however, that the spirit of the law and the intent that is to be given effect are derived from the words actually used by the law-maker, and not from some external, mystical or metajuridical source independent of and transcending the words of the legislature. The Court is not here to be understood as giving a "strict interpretation" rather than a "liberal" one to Section 4 of the Probation Law of 1976 as amended by P.D. No. 1990. "Strict" and "liberal" are adjectives which too frequently impede a disciplined and principled search for the meaning which the law-making authority projected when it promulgated the language which

we must apply. That meaning is clearly visible in the text of Section 4, as plain and unmistakable as the nose on a man's face. The Courtis simply·reading Section 4 as it is in fact written. There is no need for the involved process of construction that petitioner invites us to engage in, a process made necessary only because petitioner rejects the conclusion or meaning which shines through the words of the statute. The first duty of the judge is to take and apply a statute as he finds it, not as he would like·it to be. Otherwise, as this Court in Yangco v. Court of First Instance warned, confusion and uncertainty will surely follow, making, we might add, stability and continuity in the law much more difficult to achieve: . . . [w]here language is plain, subtle refinements which tinge words as to give them the color of a particular judicial theory are not only unnecessary but decidedly harmful. That which has caused so much confusion in the law, which has made it so difficult for the public to understand and know what the law is with respect to a given matter, is in considerable measure the unwarranted interference by judicial tribunals with the English language as found in statutes and contracts, cutting the words here and inserting them there, making them fit personal ideas of what the legislature ought to have done or what parties should have agreed upon, giving them meanings which they do not ordinarily have cutting, trimming, fitting, changing and coloring until lawyers themselves are unable to advise their clients as to the meaning of a given statute or contract until it has been submitted to some court for its interpretation and construction. The point in this warning may be expected to become sharper as our people's grasp of English is steadily attenuated. 12 Therefore, that an appeal should not·bar the accused from applying for probation if the appeal is taken solely to reduce the penalty is simply contrary to the clear and express mandate of Sec, 4 of the Probation Law, as amended, which opens with a negativeclause, "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." In Bersabal v. Salvador, 13 we said — By its very language, the Rule is mandatory. Under the rule of statutory construction. negative words and phrases are to be regarded as mandatory while those in the affirmative are merely directory. . . . the use of the term "shall" further emphasizes its mandatory character and means that it is imperative, operating to impose a duty which may be enforced. And where the law does not distinguish the courts should not distinguish; where the law does not make exception the court should not except. Second. At the outset, the penalties imposed by the MeTC were already probationable. Hence, there was no need to appeal if only to reduce the penalties to within the probationable period. Multiple prison terms imposed against an accused found guilty of several offenses in one decision are not, and should not be, added up. And, the sum of the multiple prison terms imposed against an applicant should not be determinative of his eligibility for, nay his disqualification from, probation. The multiple prison terms are distinct from each other, and if none of the terms exceeds the limit set out in the Probation Law,i.e., not more than six (6) years, then he is entitled to probation, unless he is otherwise specifically disqualified. The number of offenses is immaterial as long as all the penalties

17

imposed, taken separately, are within the probationable period. For, Sec. 9, par. (a), P.D. 968, as amended, uses the word maximum not total when it says that "[t]he benefits of this Decree shall not be extended to those . . . . sentenced to serve a maximum term of imprisonment of more than six years." Evidently, the law does not intend to sum up the penalties imposed but to take each penalty separately and distinctly with the others. Consequently, even if petitioner was supposed to have served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional sixteen (16) times as he was sentenced to serve the prison term for "each crime committed on each date of each case, as alleged in the information(s)," and in each of the four (4) informations, he was charged with.having defamed the four (4) private complainants on four (4) different, separate days, he was still·eligible for probation, as each prison term imposed on petitioner was probationable. Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based on the assumption that those sentenced to higher penalties pose too great a risk to society, not just because of their demonstrated capability for serious wrong doing but because of the gravity and serious consequences of the offense they might further commit. 14 The Probation Law, as amended, disqualifies only those who have been convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The Revised Penal Code, 15 and not necessarily those who have been convicted of multiple offenses in a single proceeding who are deemed to be less perverse. Hence, the basis of the disqualification is principally the gravity of the offense committed and the concomitant degree of penalty imposed. Those sentenced to a maximum term not exceeding six (6) years are not generally considered callous, hard core criminals, and thus may avail of probation. To demonstrate the point, let ustake for instance one who is convicted in a single decision of, say, thirteen (13) counts of grave oral defamation (for having defamed thirteen [13] individuals in one outburst) and sentenced to a total prison term of thirteen (13) years, and another who has been found guilty of mutilation and sentenced to six (6) years and one (l) day of prision mayor minimum as minimum to twelve (l2) years and one (1) day of reclusion temporal minimum as maximuin. Obviously, the latter offender is more perverse and is disqualified from availing of probation. Petitioner thus proceeds on an erroneous assumption that under the MeTC Decision he could not have availed of the benefits of probation. Since he could have, although he did not, his appeal now precludes him from applying for probation. And, even if we go along with the premise of petitioner, however erroneous it may be, that the penalties imposed against him should be summed up, still he would not have qualified under the Decision rendered by the RTC since if the "STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" imposed by the RTC is multiplied sixteen (16) times, the total imposable penalty would be ten (10) years and eight (8) months, which is still way beyond the limit of not more than six (6) years provided for in the Probation Law, as amended. To illustrate: 8 months multiplied by 16 cases = 128 months; 128 months divided by 12 months (in a year) = 10 years and 8 months, hence, following his argument, petitioner cannot still be eligible for probation as the total of his penalties exceeds six (6) years. The assertion that the Decision of the RTC should be multiplied only four (4) times since there are only four (4) Informations thereby allowing petitioner to qualify for probation, instead of sixteen (16) times, is quite difficult to understand. The penalties imposed by the MeTC cannot be any clearer — "one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional, in each crime committed on each date of each case, as alleged in the information(s). "Hence, petitioner should suffer the imposed penalties sixteen (16) times. On the other hand, the RTC affirmed, the judgment of conviction and merely reduced the duration of each penalty imposed by the MeTC "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" on account of a mitigating

circumstance for each case, count or incident of grave oral defamation·There is no valid reason therefore why the penalties imposed by the RTC should be multiplied only four (4) times, and not sixteen (16) times, considering that the RTC merely affirmed the MeTC as regards the culpability of petitioner in each of the sixteen (16) cases and reducing only the duration of the penalties imposed therein. Thus — Premises considered, the judgment of conviction rendered by the trial court is AFFIRMED with modification, as follows: WHEREFORE, the Court hereby finds the accused Pablo C. Francisco GUILTY beyond reasonable doubt in each of the above entitled cases and appreciating in his favor the mitigating circumstance which is analogous to passion or obfuscation, the Court hereby sentences the said accused in each case to a straight penalty of EIGHT (8) MONTHS imprisonment, with the accessory penalties prescribed by law; and to pay the costs. 16 Nowhere in the RTC Decision is it stated or even hinted at that the accused was acquitted or absolved in any of the four (4) counts under each of the four (4) Informatfons, or that any part of thejudgment of conviction was reversed, or that any of the cases, counts or incidents was dismissed. Otherwise, we will have to account for the twelve (12) other penalties imposed by the MeTC. Can we? What is clear is that the judgment of conviction rendered by the was affirmed with the sole modification on the duration of the penalties. In fine, considering that the multiple prison terms should not be summed up but taken separately as the totality of all the penalties is not the test, petitioner should have immediately filed an application for probation as he was already qualified after being convicted by the MeTC, if indeed thereafter he felt humbled, was ready to unconditionally accept the verdict of the court and admit his liability. Consequently, in appealing the Decision of the MeTC to the RTC, petitioner lost his right to probation. For, plainly, the law considers appeal and probation mutually exclusive remedies. 17 Third. Petitioner appealed to the RTC not to reduce or even correct the penalties imposed by the MeTC, but to assert his innocence. Nothing more. The cold fact is that petitioner appealed his conviction to the RTC not for the sole purpose of reducing his penalties to make him eligible for probation — since he was already qualified under the MeTC Decision — but rather to insist on his innocence. The appeal record is wanting of any other purpose. Thus, in his Memorandum before the RTC, he raised only three (3) statements of error purportedly committed by the MeTC all aimed at his acquittal: (a) in finding that the guilt of the accused has been established because of his positive identification by the witness for the prosecution; (b) in giving full faith and credence to the bare statements of the private complainants despite the absence of corroborating testimonies; and, (c)in not acquitting him in all the cases," 18 Consequently, petitioner insisted that the trial court committed an error in relying on his positive identification considering that private complainants could not have missed identifying him who was their President and General Manager with whom they worked for a good number of years. Petitioner further argued that although the alleged defamatory words were uttered in the presence of other persons, mostly private complainants, co-employees and clients, not one of them was presented as a witness. Hence, according to petitioner, the trial court could not have convicted him on the basis of the uncorroborative testimony of private complainants. 19 Certainly, the protestations of petitioner connote profession of guiltlessness, if not complete innocence, and do not simply put in issue the propriety of the penalties imposed. For sure, the accused never manifested that he was appealing only for the purpose of correcting a wrong penalty — to reduce it to within the probationable range.

18

Hence, upon interposing an appeal, more so after asserting his innocence therein, petitioner should be precluded from seeking probation. By perfecting his appeal, petitioner ipso facto relinquished his alternative remedy of availing of the Probation Law the purpose of which is simply to prevent speculation or opportunism on the part of an accused who although already eligible does not at once apply for probation, but doing so only after failing in his appeal. The fact that petitioner did not elevate the affirmance of his conviction by the RTC to the Court of Appeals does not necessarily mean that his appeal to the RTC was solely to reduce his penalties. Conversely, he was afraid that the Court of Appeals would increase his penalties, which could be worse for him. Besides, the RTC Decision had already become final and executory because of the negligence, according to him, of his former counsel who failed to seek possible remedies within the period allowed by law. Perhaps it should be mentioned that at the outset petitioner, in accordance with Sec 3, par. (e), Rule 117 of the Rules of Court, 20 should have moved to quash as each of the four (4) Informations filed against him charged four (4) separate crimes of grave oral defamation, committed on four (4) separate days. His failure to do so however may now be deemed a waiver under Sec. 8 of the same Rule 21 and he can be validly convicted, as in the instant case, of as many crimes charged in the Information. Fourth. The application for probation was filed way beyond the period allowed by law. This is vital way beyond the period allowed by law and crucial. From the records it is clear that the application for probation was filed "only after a warrant for the arrest of petitioner had been issued . . . (and) almost two months after (his) receipt of the Decision" 22of the RTC. This is a significant fact which militates against the instant petition. We quote with affirmance the well-written, albeit assailed, ponencia of now Presiding Justice of the Court of Appeals Nathanael P. De Pano, Jr., on the specific issue —

Our minds cannot simply rest easy on. the proposition that an application for probation may yet be granted even if it was filed only after judgment has become final, the conviction already set for execution and a warrant of arrest issued for service of sentence. The argument that petitioner had to await the remand of the case to the MeTC, which necessarily must be after the decision of the RTC had become final, for him to file the application for probation with the trial court, is to stretch the law beyond comprehension. The law, simply, does not allow probation after an appeal has been perfected. Accordingly, considering that prevailing jurisprudence treats appeal and probation as mutually exclusive remedies, and petitioner appealed from his conviction by the MeTC although the imposed penalties were already probationable, and in his appeal, he asserted only his innocence and did not even raise the issue of the propriety of the penalties imposed on him, and finally, he filed an application for probation outside the period for perfecting an appeal granting he was otherwise eligible for probation, the instant petition for review should be as it is hereby DENIED. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Bidin and Regalado, JJ., concur.

. . . the petition for probation was filed by the petitioner out of time. The law in point, Section 4 of P.D. 968, as amended, provides thus: Sec. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal. . . . place the defendant on probation . . . . Going to the extreme, and assuming that an application for probation from one who had appealed the trial court's judgment is allowed by law, the petitioner's plea for probation was filed out of time. In the petition is a clear statement that the petitioner was up for execution of judgment before he filed his application for probation. P.D. No. 968 says that the application for probation must be filed "within the period for perfecting an appeal;" but in this case, such period for appeal had passed, meaning to say that the Regional Trial Court's decision had attained finality, and no appeal therefrom was possible under the law. Even granting that an appeal from the appellate court's judgment is contemplated by P.D. 968, in addition to the judgment rendered by the trial court, that appellate judgment had become final and was, in fact, up for actual execution before the application for probation was attempted by the petitioner. The petitioner did not file his application for probation before the finality of the said judgment; therefore, the petitioner's attempt at probation was filed too late.

19

G.R. Nos. 115981-82

August 12, 1999

RUBEN LAGROSA, petitioner, vs. COURT OF APPEALS, SPOUSES ROMULO & EVELYN A. BANUA, and CESAR OROLFO, respondents. GONZAGA-REYES, J.: Decision1

Petitioner seeks to review and set aside the of respondent Court of Appeals dated January 7, 1994 affirming the July 12, 1993 decision of the Regional Trial Court of Manila (Branch 42) in Civil Case No. 93-65646 (CA-G.R. SP No. 31683); and reversing the decision dated March 15, 1993 of the Regional Trial Court of Manila (Branch 12) in Civil Case No. 92-62967 (CA-G.R. SP No. 32070). The two petitions for review of two (2) conflicting decisions rendered by two different branches of the Regional Trial Court of Manila in ejectment suits involving the same parties and property were consolidated before the Court of Appeals upon motion of one of herein respondents, Cesar Orolfo. The consolidation was granted considering the property involved is one and the same in both petitions and Ruben Lagrosa, petitioner in CA-G.R. SP No. 31683 is the same Ruben Lagrosa, who is the private respondent in CA-G.R. SP No. 32070; in the same manner that Evelyn Arizapa Banua is the private respondent in CA-G.R. SP No. 31683 while Cesar Orolfo, who is the caretaker of the subject property representing Evelyn Arizapa Banua, is the petitioner in CA-G.R. SP No. 32070.2 Both petitions involve the possession of sixty-five (65) square meters of residential lot located in Paco, Manila, originally owned by the City of Manila which, in due course, following its land and housing program for the underprivileged, awarded it to one Julio Arizapa who constructed a house and upholstery shop thereon. The award was in the nature of a "Contract to Sell" payable monthly for a period of twenty (20) years. Julio Arizapa is the predecessor-in-interest of respondent Evelyn Arizapa Banua in CA-G.R. SP No. 31683, while Cesar Orolfo, petitioner in CA-G.R. SP No. 32070, is the caretaker of the same subject property as authorized and appointed by Evelyn Arizapa Banua, in whose name Transfer Certificate of Title No. 197603 covering the said property is registered. Cesar Orolfo, as aforestated, represented Evelyn Arizapa Banua, in CA-G.R. SP No. 32070.3 As found by the trial court, the title of respondent Evelyn Arizapa Banua to the subject property is evidenced by the "Deed of Sale" executed by the City of Manila in her favor and the Transfer Certificate of Title No. 197603, issued to her by the Register of Deeds of Manila.4 Respondent Evelyn Arizapa Banua derived her title as follows Before Julio Arizapa could make the full payment for the said lot, he died on January 20, 1987, intestate, at the age of 67 and was survived by his wife, Josefa Albaytar Arizapa and children5. His wife Josefa Alabaytar Arizapa died intestate on January 21, 1988. On February 17, 1988, Evelyn Arizapa and her brothers and sisters executed a "Deed of Extrajudicial Partition" adjudicating unto themselves, as the sole heirs of the deceased, the aforesaid lot and a "Renunciation" in favor of Evelyn Arizapa under which they renounced and waived all their rights over the aforesaid lot in favor of Evelyn Arizapa. The "Notice of Extrajudicial Settlement of Estate of Deceased Julio Arizapa and Josefa Albaytar" was duly published in the "BALITA" in its March 4, 11 and 18, 1988 issues. On March 22, 1988, the heirs of Julio Arizapa wrote a letter to the City of Manila, through the City Tenants Security Committee, requesting that the award of said lot be placed under the name of Evelyn Arizapa based on said "Deed of Extrajudicial Partition" and the "Renunciation". On December 26, 1988, the Committee approved the request by Resolution. On January 8, 1990, Evelyn Arizapa paid the amount of P29,500.00 to the City of Manila which constituted the full payment of the lot for which Evelyn Arizapa was issued Official Receipt No. 738608 by the City Treasurer. On April 8, 1991, the City of Manila executed a "Deed of Sale" over the lot in favor of Evelyn Arizapa and, on the basis thereof, Transfer Certificate of Title No. 197603 was issued to Evelyn Arizapa.1âwphi1.nêt

Petitioner Ruben Lagrosa claims to be the lawful possessor of the subject property by virtue of the "Deed of Assignment of Real Estate Mortgage" executed in his favor by Presentacion Quimbo on the basis of a "Contract of Real Estate Mortgage" executed by Julio Arizapa in favor of the latter. Lagrosa posits that he cannot be evicted from the subject property because he had prior possession as assignee of the said "Assignment of Real Estate Mortgage" executed by Presentacion Quimbo in his favor, and with the consent of Mauricia Albaytar, the sister of the deceased Josefa Albaytar Arizapa, after the demise of the spouses Julio Arizapa and Josefa Albaytar. The first petition (CA-G.R. SP No. 31683) sought the review of the decision rendered by the Regional Trial Court of Manila, Branch 49, with the Honorable Romeo J. Callejo presiding in Civil Case No. 93-65646 entitled "Spouses Romulo and Evelyn Arizapa-Banua, plaintiffs-appellees, vs. Ruben Lagrosa, et al., defendants-appellants," affirming in toto the judgment dated March 24, 1993 of the Metropolitan Trial Court of Manila, Branch 2, the dispositive portion of which reads: WHEREFORE, judgment is rendered for the PLAINTIFFS. The DEFENDANTS and all other persons claiming rights under them are hereby ordered: (a) To vacate the land covered by T.C.T. No. 197603 situated in Paco, Manila; (b) To pay the amount of P1,000.00 per month as reasonable compensation for the use and enjoyment of the premises, from the filing of this complaint until possession is restored to the plaintiffs; (c) To pay the amount of P2,000.00 as attorney's fees; and costs of suit. SO ORDERED. (Rollo, 73-74)6 The second petition (CA-G.R. SP No. 32070) sought the review of the decision rendered on March 15, 1993 by the Regional Trial Court of Manila, Branch 12, with the Honorable Edgardo Sundiam presiding in Civil Case No. 9262967 entitled "Ruben Lagrosa, plaintiff, versus, Cesar Orolfo, defendant," affirming in toto on appeal the judgment of the Metropolitan Trial Court of Manila, Branch 5, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the defendant Cesar Orolfo ordering the said defendant and all the persons claiming rights under him to vacate the leased premises located at 1765 La Purisima Concepcion, Pedro Gil, Paco, Manila; ordering the Defendant to pay the plaintiff the sum of P5,950.00 representing the arrears in monthly rental from October 1989 up to February 1991; ordering the defendant to pay the monthly rental of P350.00 starting March 1991 until the defendant actually vacates the leased premises in question and, ordering the defendant to pay plaintiff the sum of P5,000.00 as attorney's fees plus the costs of suit.7 In sum, in Civil Case No. 93-65646 (subject of CA-G.R. SP No. 31683), the trial court upheld the rightful possession of Evelyn Arizapa Banua over the subject lot and accordingly ordered the immediate execution of its judgment against Ruben Lagrosa, et al. On the other hand, in Civil Case No. 92-62967 (subject of CA-G.R. SP No. 32070), the trial court opined that a preponderance of evidence tilted on the side of Ruben Lagrosa and gave judgment in his

20

favor, all because defendant therein, Cesar Orolfo, through utter negligence of his former counsel, failed to submit countervailing evidence on time, i.e. prior to the rendition of judgment by the Metropolitan Trial Court.8 After a careful review of the records, the respondent Court of Appeals proceeded to determine which of the two conflicting decisions should be sustained and given effect, the decision in Civil Case No. 93-65646 in favor of Evelyn Arizapa Banua, or the decision in Civil Case No. 92-62967 in favor of Ruben Lagrosa. The controlling operative facts as found by the respondent Court of Appeals are: 1. The subject property involved in both petitions is more particularly described as Lot No. 2, Block No. 29 of the former Fabmar Estate owned by the City of Manila. Subject property contains an area of 65 square meters. 2. On June 24, 1977, the City of Manila awarded said lot to Julio Arizapa under its land for the landless program. It was payable in monthly installments for a period twenty (20) years. 3. Julio Arizapa obtained a loan of P17,000.00 from one Presentacion B. Quimbo and he executed on August 2, 1985 a Contract of Real Estate Mortgage of his right over the subject property in favor of the latter. He failed to pay his loan and on top of which he borrowed more from Presentacion Quimbo until his account reached P28,000.00. 4. Julio Arizapa died intestate on January 20, 1987, leaving no other property except the lot in question. Meanwhile, his wife Josefa Albaytar, on account of her deteriorating health, borrowed P40,000.00 from Ruben Lagrosa, for which she executed a deed mortgaging her one-half right to the lot. When Quimbo was poised to foreclose the mortgage, Albaytar convinced her to execute instead a Deed of Assignment of Mortgage in favor of Ruben Lagrosa for a certain consideration, which she did. 5. Josefa Albaytar died on January 21, 1988. For her burial expenses, Mauricia Albaytar sister of the deceased, borrowed P65,000.00 from Ruben Lagrosa. In the meantime, Ruben Lagrosa with the permission of Mauricia Albaytar, allowed his relatives, to occupy and take possession of the subject property. Ruben Lagrosa himself was never in actual physical possession or occupation of the property. 6. Thus, the tenuous claim of Ruben Lagrosa over the subject property rests on the Deed of Assignment of Mortgage executed by Presentacion B. Quimbo in his favor. This deed of assignment was correctly declared illegal by the Honorable Romeo Callejo in SP No. 31683. It was declared illegal for the simple reason that the Deed of Mortgage executed by the late Julio Arizapa in favor of Presentacion D. Quimbo was fatally defective in that the property subject thereof was still owned by the City of Manila when said deed of mortgage was executed. 7. Concerning the issue of possession of the subject property, the rightful possession thereof of Evelyn Arizapa Banua is traceable to the possession of the City of Manila, then to her father Julio Arizapa; whereas, the possession claimed by Ruben Lagrosa is founded on that illegal Deed of Assignment of Mortgage (which was not even notarized), and the permission given him by Mauricia Albaytar after the death of her sister Josefa Albaytar, a permission which derives no legal authority or validity because Mauricia, apart from her being a sister of the deceased, was not and has never been appointed as a legal representative or administratrix of the deceased spouses.9

In light of the foregoing, the respondent Court of Appeals affirmed the decision of the Regional Trial Court of Manila (Branch 49) in Civil Case No. 93-65646 finding for spouses Romulo and Evelyn Arizapa Banua. The dispositive portion of said decision reads: WHEREFORE, considering that respondent court has committed no error of law of fact in the decision under review, the same is affirmed and the petition is hereby DISMISSED. Costs against petitioner. On the other hand, the respondent Court of Appeals reversed the decision of Regional Trial Court of Manila (Branch 12) in Civil Case No. 92-62967 which ruled in favor of Ruben Lagrosa. The dispositive portion of said decision reads: WHEREFORE, the decision under review in SP No. 32070 is reversed and set aside, and another one is hereby entered dismissing the complaint for ejectment against petitioner Cesar Orolfo. Accordingly, other writ of execution and notice to vacate issued by respondent court in Civil Case No. 92-1291711 are hereby declared null and void and set aside. Costs against private respondents.12 Thus, the conflict between the two decisions as to who is entitled to the possession of the subject property, Ruben Lagrosa on the one hand, or Evelyn Arizapa-Banua on the other, with Cesar Orolfo merely representing the latter in Civil No. 92-62967, was resolved. Hence, the instant petition on grounds that may be summarized as follows: (1) that the respondent Court of Appeals erred in declaring the "Contract of Real Estate Mortgage" and the "Assignment of Mortgage" as illegal; (2) that the respondent Court of Appeals erred in upholding the validity of Transfer Certificate of Title No. 197603 in the name of Evelyn Arizapa Banua despite the fact that Josefa Arizapa was the only legal wife of Julio Arizapa and that they were childless; (3) that the respondent Court of Appeal erred in declaring that Cesar Orolfo was appointed caretaker of the subject property and that he was not given a chance to present his evidence before the lower court. The petition is bereft of merit. The only issue to be resolved in ejectment cases is the question as to who is entitled to the physical or material possession of the premises or possession de facto.13 In the event the issue ownership is raised in the pleadings, such issue shall be taken up the limited purpose of determining who between the contending parties has the better right of possession.14 As it were, herein petitioner Ruben Lagrosa also filed before the Regional Trial Court of Manila (Branch 32), in Civil Case No. 90-55315 entitled "Ruben Lagrosa, versus, City Tenants Security Committee, represented by its Chairman, Hon. Gemiliano Lopez, Jr., Intestate Estate of Julio Arizapa represented by Mauricia Albaytar, Evelyn Arizapa Banua and Register of Deeds of Manila," a "Complaint for Foreclosure of the "Real Estate Mortgage", Annulment of Awards with Damages, and Cancellation of Title and Reconveyance of Real Property."15 As mentioned earlier, petitioner Lagrosa claims to be the lawful possessor of the subject property by virtue of the "Deed of Assignment" of "Real Estate Mortgage" executed by Julio Arizapa in favor of the latter. Lagrosa posits that he cannot be evicted from the subject property because he had prior possession as assignee of the said "Assignment of Real Estate Mortgage" executed by Presentacion Quimbo in his favor, and with the consent of Mauricia Albaytar, the sister of the deceased Josefa Albaytar Arizapa, after the demise of the spouses Julio Arizapa and Josefa Albaytar.

21

On the other hand, Evelyn Arizapa Banua's title to the property is evidenced by a "Deed of Sale" executed by the City of Manila in her favor and the Transfer Certificate of Title No. 197603 issued to her by the Register of Deeds. Evelyn Arizapa Banua sought to evict Lagrosa from the subject property citing, among others, the need to repossess the property for her own personal use. We agree with the respondent Court of Appeals that petitioner Lagrosa's right to possess the subject property is clearly inferior to or inexistent in relation to Evelyn Arizapa Banua. As correctly held by the lower courts, the "Deed of Real Estate Mortgage" executed by Julio Arizapa is null and void, the property mortgaged by Julio Arizapa owned by the City of Manila under Transfer Certificate of Title No. 91120. For a person to validly constitute a valid mortgage on real estate, he must be the absolute owner thereof as required by Article 2085 of the Civil Code of the Philippines.16 Since the mortgage to Presentacion Quimbo of the lot is null and void, the assignment by Presentacon Quimbo of her rights as mortgage to Lagrosa is likewise void. Even if the mortgage is valid as insisted by herein petitioner, it is well-settled that a mere mortgagee has not right to eject the occupants of the property mortgaged.17 This is so, because a mortgage passes no title to the mortgagee. Indeed, by mortgaging a piece of property, a debtor merely subjects it to lien but ownership thereof is not parted with.18Thus, a mortgage is regarded as nothing more than a mere lien, encumbrance, or security for a debt, and passes no title or estate to the mortgagee and gives him no right or claim to the possession of the property. Petitioner Lagrosa now contends that what was mortgaged by Julio Arizapa in favor of Presentacion Quimbo was "his right as an awardee over the homelot in question, and not the homelot itself." Petitioner would have this Court uphold the validity and legality of the mortgage over the "right as an awardee" rather than the homelot itself. The agreement between the City of Manila and Julio Arizapa was in the nature of a "contract to sell," the price for the lot being payable on installment for a period of twenty (20) years which could yet prevent, such as by the non-fulfillment of the condition, the obligation to convey title from acquiring any obligatory force. 19 Hence, there is no "right" as awardee to speak of, and there is no alienable interest in the property to deal with. The further allegation in petitioner's memorandum that Evelyn Arizapa Banua is not the lawful owner of the lot and residential house in question because the "Extrajudicial Partition" and the "Renunciation" on the basis of which the "Deed of Sale" was executed by the City of Manila and the Transfer Certificate of Title No. 197603 was issued, are all falsified because Julio Arizapa and Josefa Albaytar Arizapa were childless up to their demise deserves no prolonged consideration, being factual in nature. Factual findings of the Court of Appeals are conclusive on the parties and carry even more weight when said court affirms the factual findings of the trial court. 20 We quote the following findings of the trial court as adopted by the respondent Court of Appeals, to wit: The Court cannot accord its imprimatur to the stance of the Defendants-Appellants. As borne by the evidence of the Plaintiff-Appellee, Julio Arizapa and Bernardita Iñigo Arizapa were married on May 9, 1963 in Manila (Exhibit "GG"). Julio Arizapa, during his lifetime, wrote a letter to the Plaintiff-Appellee and her brothers and sisters and addressing them as his children, thus: Mahal kong mga anak, magmahalan kayong mabuti at magtulungan habang buhay. Ala-ala ko kayo kailan mang. — Exhibit "RR."

The bare fact that, after the demise of Bernardita Iñigo Arizapa in 1984, Julio Arizapa and Josefa Albaytar lived together as husband and wife but bore no children does not necessarily mean that Julio Arizapa was incapable of procreation. Indeed, there is persuasive authority to the effect that "it is presumed in the absence of evidence to the contrary, that a male person of mature years, is capable of sexual intercourse and procreation, even though he has reached a very advanced age (Francisco, The Revised Rules of Court in the Philippines, Volume VII, Part II, at pages 142-143, citing Love versus Mcdonald, 148 S.W. 2d. 170, 201 Ark. 882). While it is true that in their "Extrajudicial Partition", the Plaintiff-Appellee and her brothers and sisters called Julio Arizapa and Josefa Arizapa, as their parents, however, this is not unusual because, after all, after the demise of Bernardita Iñigo, Josefa Albaytar and Julio Arizapa lived together as husband and wife and, in the process, the Plaintiff-Appellee must have considered Josefa Albaytar as their step-mother in deference and out of respect to their father. (Resolution, at page 348, Records).21 Moreover, it is a well-known doctrine that the issue as to whether title was procured by falsification or fraud as advanced by petitioner can only be raised in an action expressly instituted for the purpose. Torrens title can be attacked only for fraud, within one year after the date of the issuance of the decree of registration. Such attack must be direct, and not by a collateral proceeding.22 The title represented by the certificate cannot be changed, altered, modified, enlarged, or diminished in a collateral proceeding.23 Thus, the arguments of petitioner Lagrosa in the ejectment suit are misplaced.1âwphi1.nêt As to Lagrosa's prior possession of the subject property, their stay in the property as correctly found by the respondent Court of Appeals was by mere tolerance or permission. It is well-settled that "a person who occupies the land of another at the latter's tolerance or permission, without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which, a summary action for ejectment is the proper remedy against him.24 The trial court rationalized thus: On the other hand, the possession of the Plaintiff-Appellee retroacted to the possession of the City of Manila of the property in question because the Plaintiff-Appellee merely stepped into the shoes of the owner of the property when she purchased the said property from the Appellants from said property (Caudal versus Court of Appeals, et al., 175 SCRA 798). It must be borne in mind that, as mere assignee of the mortgage rights of Presentation Quimbo, the Defendant-Appellant is not entitled to the physical possession of the mortgaged property. The same is true even if the Defendant-Appellant was himself the mortgagee. In point of fact, during the lifetime of Julio Arizapa and Josefa Albaytar, they had possession of the property. The Defendant-Appellant managed to take possession of the property only because of the alleged consent thereto by Mauricia Albaytar, who was merely the sister of Josefa Albaytar. By then, the couple, Julio Arizapa and Josefa Albaytar were already dead. Mauricia Albaytar thus had no lawful authority to allow anybody to enter into and occupy the property. There is no evidence in the records that Mauricia Albaytar had been appointed by any Court as the Administratix of the estate of the Spouses.25 By Lagrosa's own admission, he is merely an assignee of the rights of the mortgage of the lot and that, consequently, the respondent Court of Appeals correctly ruled that the only right of action of Lagrosa as such assignee of the mortgagee, where the mortgagor is already dead, is that provided for in Section 7 of Rule 86 26 and Section 5 of Rule 8727 of the Rules of Court. Thus, the mortgagee does not acquire title to the mortgaged real

22

estate unless and until he purchases the same at public auction and the property is not redeemed within the period provided for by the Rules of Court. The issues by petitioner in CA G.R. SP No. 32070 that the respondent Court of Appeals erred in declaring Cesar Orolfo as the caretaker of the subject property and that he was not given a chance to present his evidence before the lower courts are also factual. The jurisdiction of this Court is limited to reviewing errors of law unless there is a showing that the findings complained of are totally devoid of support in the record or that they are so glaringly erroneous as to constitute serious abuse of discretion.28 We find no such showing in this case. More importantly, whether Cesar Orolfo is the caretaker of the property as appointed by Evelyn Arizapa Banua and the representative of the latter is now beside the point. As was discussed by this Court, petitioner Ruben Lagrosa's right to possess the subject property is clearly inexistent in relation to herein respondent Evelyn Arizapa Banua. WHEREFORE, the joint decision of the Court of Appeals in CA-G.R. SP Nos. 31683 and 32070 promulgated on January 7, 1994 is AFFIRMED in toto. SO ORDERED. Melo, Vitug, Panganiban and Purisima, JJ., concur.

23

G.R. No. 116512 March 7, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILLIAM O. CASIDO @ "MARIO," and FRANKLIN A. ALCORIN @ "ARMAN," accused-appellants. RESOLUTION

DAVIDE, JR., J.: In our Resolution of 30 July 1996, we ruled that "the conditional pardons granted in this case to accused-appellants William Casido and Franklin Alcorin are void for having been extended on 19 January 1996 during the pendency of their instant appeal," and disposed of the incident as follows: WHEREFORE, the accused-appellants' Urgent Motion To Withdraw Appeal is hereby DENIED and the Bureau of Corrections is DIRECTED to effect with the support and assistance of the Philippine National Police, the re-arrest of accused-appellants William Casido and Franklin Alcorin who shall then, forthwith, be reconfined at the New Bilibid Prisons in Muntinlupa, Metro Manila, both within sixty (60) days from notice hereof, and to submit a report thereon within the same period. In the meantime, further action on the appeal is suspended until the re-arrest of the accused-appellants. The Court further resolves to REQUIRE the officers of the Presidential Committee for the Grant of Bail, Release, and Pardon to SHOW CAUSE, within thirty (30) days from notice hereof, why they should not be held in contempt of court for acting on and favorably recommending approval of the applications for the pardon of the accused-appellants despite the pendency of their appeal. In a Comment for the members of the Presidential Committee for the Grant of Bail, Release or Pardon (hereinafter Committee), dated 28 August 1996, two members of the Committee's Secretariat, namely, Nilo C. Mariano (Assistant Chief Prosecutor) and Nestor J. Ballacillo (Solicitor in the Office of the Solicitor General), submitted the following explanation in compliance with the above-mentioned resolution: 1. In line with the confidence building measures of government, the President on August 11, 1992 constituted the Presidential Committee for the Grant of Bail, Release or Pardon with the Secretary of Justice as the Chairman and Secretary of National Defense and the Secretary of the Interior and Local Government as members with the directive to establish guidelines for the grant of bail, release or pardon of persons detained or convicted of crimes against national security and public order and violations of the Articles of War. Subsequently, membership to the Committee was expanded to include the Chairman of the Commission on Human Rights and a member of the defunct National Unification Commission who was later on replaced by the Presidential Adviser on the Peace Process.

2. On 9 December 1992, the President issued an amendment to the guidelines incorporating therein a provision which reads: "Those charged, detained or convicted of common crimes but who can establish by sufficient evidence that they have actually committed any of the crimes/offenses enumerated above may apply for possible grant of bail, release or pardon under these guidelines." 3. Corollary to the constitution of the Committee, a Secretariat was also constituted which was tasked to process and evaluate the applications of those desiring to be granted pardon or recommended for release or bail under the aforementioned guidelines and which will recommend to the Committee those who qualify under the guidelines. 4. The members of the Secretariat are representatives of the Office of the Chief State Prosecutor, the Board of Pardons and Parole, the Office of the Chief State Counsel, the Bureau of Corrections, the Philippine National Police Legal Service, the Judge Advocate's Office-Armed Forces of the Philippines, the Office of the Solicitor General, and the Commission on Human Rights (Legal Services). 5. In the processing and evaluation of the applications for the grant of pardon, release or bail, it was the agreement between the Secretariat and counsels for the applicants who are usually the lawyers of non-government organizations (NGOs), such as the Task Force Detainees of the Philippines (TFDP), the Free Legal Assistance Group (FLAG), the KAPATID, PAHRA, among others, that simultaneous with the processing of the applications, motions for the withdrawal of the applicant's appeals must be filed by them with this Honorable Court. 6. With the arrangement, the processing and evaluation of the applications for the grant of pardon, release or bail by the committee resulted in the grant of conditional pardon to 123 applicants and absolute pardon to eight (8) applicants as of June 27, 1994. 7. The applications for conditional pardon of the aforenamed prisoners were recommended by the Committee to the President for the grant of Conditional Pardon (after the Secretariat had evaluated that the former committed the crimes for which they had been charged in pursuit of their political belief) per Memorandum dated May 25, 1995 and approved by the President on December 29, 1995. The Conditional Pardon paper was signed by the President on January 19, 1996 and the subject prisoners (accused-appellants) were released by the Bureau of Corrections on January 25, 1996. 8. Prior to their release, subject prisoners filed an "Urgent Motion to Withdraw Appeal" which was received by the Supreme Court on January 11, 1996. Unfortunately, the Committee failed to verify first whether the counsel of the accused had also withdrawn their appeal or that the NGO lawyers had filed in their behalf a motion to Withdraw their Appeal. It was upon the honest belief of the Secretariat that the NGO lawyers would perform their agreed undertaking, that the Secretariat indorsed the applications for conditional pardon of subject prisoners for favorable action by the Committee, and thereafter by the President.

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9. There was no intention on the part of the Secretariat and the Presidential Committee to violate Section 19, Article VII, of the Constitution, but that what happened was a clear misappreciation of fact. 10. The Secretariat/Committee was only prompted to act, as they did, in their sincere and zealous effort to take part in the government's confidence building measure geared towards achieving peace and national reconciliation. To avoid repetition of grant of presidential clemency under similar circumstances, the Secretariat/Committee will require applicants for any executive relief to show proof that their appeal, if any, has been withdrawn and the withdrawal thereof has been also approved before acting on their applications as directed by President Fidel V. Ramos in his handwritten instructions to the Presidential Committee, thru the Executive Secretary, and upon recommendation of Chief Presidential Legal Counsel Rene Cayetano, for the Presidential Committee" to exercise better diligence." (See Annex "1", and its attachments). 11. The undersigned most respectfully pray for the kind indulgence and understanding of this Honorable Court on the matter. On 18 September 1996, the Court required Hon. Nilo C. Mariano and Hon. Nestor J. Ballacillo to submit to this Court list of the members of the Secretariat who participated in the deliberations on the accused-appellants application for pardon and reocommended the grant thereof, together with a certified true copy of the agreement between the Secretariat and the counsel for the applicants for pardon regarding the filing with the appropriate courts of motions for the withdrawal of appeals pending therein. Their Compliance, dated 23 October 1996, stated as follows: 2. A review of the records of the Secretariat indicates that initially or as of January, 1993, the members of the Secretariat were: Undersecretary Ramon S. Esquerra — DOJ Assistant Chief State Nilo C. Mariano — DOJ Executive Director Artemio C. Aspiras — DOJ State Counsel Teresita L. de Castro — DOJ Director Eriberto Misa, Jr. — Bureau of Pardon Correction Edgardo Dayao — JAGO Pedro Abella — PNP Samuel M. Soriano, Jr. — CHR Imelda B. Devila — National Unification Commission Nestor J. Ballacillo — OSG 3. On February 9-11, 1995, a Working Group was constituted "to conduct and expeditious review of the cases of prisoners in the New Bilibid Prison who are alleged to have committed crime in pursuit of political objectives" (Resolution No. 1, of the Secretariat Working Group).

4. For this purpose, the Working Group consisting of State Prosecutor Alberto Vizcocho of the Department of Justice (DOJ), Commissioner Mercedes V. Contreras of the Commission on Human Rights (CHR) and Andrei Bon C. Tagum of the Office of the Presidential Adviser on the Peace Process (OPAPP) convened for three days or February 9-11, 1995 to review the cases of the political prisoners. 5. Among the cases reviewed by the Working Group were those of appellants Franklin Alcorin y Alparo and William Casido y Balcasay. 6. After the review of the cases, the Working Group issued Resolution No. 1, which states among others that the "prisoners [including Alcorin and Casido] be recommended to the Secretariat of the Presidential Committee for the Grant of Conditional Pardon in view of a determination that they were charged or convicted of crimes that may have been committed in pursuit of political objectives." (A copy of Resolution No.1 is attached hereto as Annex "1"). 7. The recommendations on the political prisoners listed in Resolution No. 1 by the Working Group as well as the recommendations made by the Secretariat were based on the undertaking of those representing the political prisoners, particularly the Non-Government Organizations (NGOs) such as, among others, the Task Force Detainees of the Philippines (TFDP), the Free Legal Assistance Group (FLAG), KAPATID and PAHRA who promised that the corresponding withdrawals of appeal would be filed with this Honorable Court and other Courts concerned. This undertaking of the NGOs was however verbal and not made in writing. 8. In recommending the grant of conditional pardon to Alcorin and Casido, the members of the Secretariat Working Group acted in good faith and did not disregard the Resolutions of this Honorable Court in People vs. Hino, Jr., G.R. No.110035,January 31, 1995 and People vs. Salle, (250 SCRA 582, December 4, 1995). At the time they made the recommendations or the Working Group issued Resolution No. 1, the members of the Secretariat and the Working Group were not aware of the Hino and Salle rulings. Moreover, at the time the cases were being reviewed, the members of the Secretariat, were pressed on by members of the NGOs to act on certain applications for pardon or provisional release with dispatch. In turn, they made it clear to those following up the applications that the appropriate withdrawal of appeals should be filed so that the applications could be acted upon. 9. Believing in good faith that the promise or undertaking of those who followed up the applications for pardon of Alcorin and Casido would be complied with as promised, the members of the Secretariat Working Group did not secure the written commitment for the withdrawal of the appeal by accused Alcorin and Casido before their applications for pardon were reviewed. Earlier, or on 1 October 1996, the Court received from Hon. Manuel C. Herrera, Chairman of the National Amnesty Commission, a letter, dated 26 September 1996 addressed to Mr. Justice Hilario G. Davide, Jr., wherein the former informed the Court that the applications for amnesty of accused- appellants Franklin A. Alcorin and William O. Casido were "favorably acted" upon by the National Amnesty Commission on 22 February 1996. The body of the letter reads:

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We refer to a newspaper article found in the Philippine Daily Inquirer's August 1, 1996 issue. Please be informed that on February 22, 1996, the National Amnesty Commission (hereinafter the "NAC") favorably acted on the applications for amnesty of Franklin A. Alcorin and William O. Casido. The NAC was created under Proclamation No. 347 by President Fidel V. Ramos on March 25, 1994, to receive, process, and decide on applications for amnesty. Under Proclamation No. 347 a grant of amnesty shall carry with it the extinguishment of any criminal liability for acts committed by the grantee in pursuit of his or her political beliefs. It also carries with it the restoration of civil or political rights that may have been suspended or lost by virtue of a criminal conviction. In the course of our deliberations, the NAC found that the applicants are indeed confirmed members of the CPP/NPA/NDF whose killing of Victoriano Mapa was committed in pursuit of their political beliefs. We enclose, for ready reference, copies of the following documents: 1. Notice of Resolution for Franklin A. Alcorin and William O. Casido 2. Proclamation No. 347 3. Primer on Amnesty under Proclamation Nos.347 and 348. In its Comment to the aforesaid letter (submitted in compliance with our Resolution of 7 October 1996), the Office of the Solicitor General alleged that the accused-appellants in this case, "in an effort to seek their release at the soonest possible time, applied for pardon before the Presidential Committee on the Grant of Bail, Release or Pardon (PCGBRP), as well as for amnesty before the National Amnesty Commission (NAC)"; then contended that since amnesty, unlike pardon, may be granted before or after the institution of the criminal prosecution and sometimes even after conviction, as held in Barrioquinto v. Fernandez, 1 the amnesty then granted accusedappellants William Casido and Franklin Alcorin "rendered moot and academic the question of the premature pardon granted to them." We agree with the Office of the Solicitor General. In Barrioquinto, 2 we stated as follows:

conviction. Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolishes or forgives the punishment, and for that reason it does "nor work the restoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon," and it "in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence" (article 36, Revised Penal Code). While amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense. (Emphasis supplied) Accordingly, while the pardon in this case was void for having been extended during the pendency of the appeal or before conviction by final judgment and, therefore, in violation of the first paragraph of Section 19, Article VII of the Constitution, the grant of the amnesty, for which accused-appellants William Casido and Franklin Alcorin voluntarily applied under Proclamation No. 347, 3 was valid. This Proclamation was concurred in by both Houses of Congress in Concurrent Resolution No.12 adopted on 2 June 1994. The release then of accused-appellants William Casido and Franklin Alcorin can only be justified by the amnesty, but not by the "pardon." As to the "pardon," we find unsatisfactory the Explanation of the Secretariat of the Committee. It borders on the absurd that its members were unaware of the resolutions of this Court in People v. Hinlo 4 and People v. Salle. 5 As early as 1991, this Court, in People v. Sepada, 6 cited in our Resolution of 30 July 1996 in this case, already stressed in no uncertain terms the necessity of a final judgment before parole or pardon could be extended. Even in their Comment of 28 August 1996, the Members of the Secretariat implied that they were all the time aware that a pardon could only be granted after conviction by final judgment; hence, they required from the lawyers of the applicants the filing with this Court of "motions for the withdrawal of the applicants' appeals." Thus, they cannot plead ignorance of this condition sine qua non to the grant of pardon. They should have demanded from the applicants the submission of proof of their compliance of the requirement before submitting to the President a favorable recommendation. That alone, at the very least, could have been the basis of a finding of good faith. In failing to observe due care in the performance of their duties, the Members of the Committee caused the President serious embarrassment and thus deserve an admonition. IN VIEW OF THE FOREGOING, the Court hereby resolved that the release of accused-appellants William O. Casido and Franklin A. Alcorin was valid solely on the ground of the amnesty granted them and this case is dismissed with costs de officio.

The theory of the respondents, supported by the dissenting opinion, is predicated on a wrong contention of the nature or character of an amnesty. Amnesty must be distinguished from pardon.

The Members of the Presidential Committee for the Grant of Bail, Release or Pardon and of its Secretariat are admonished to exercise utmost care and diligence in the performance of their duty to save the President from any embarrassment in the exercise of his power to grant pardon or parole.

Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned, because the courts take no notice thereof; while amnesty by Proclamation of the Chief Executive with the concurrence of Congress, and it is a public act of which the courts should take judicial notice. Pardon is granted to one after conviction; while amnesty is to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after

SO ORDERED. Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur

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G.R. No. 122338 December 29, 1995 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF WILFREDO SUMULONG TORRES, (LYDIA DELA ROSA TORRES, Wife of Wilfredo Sumulong Torres, and daughters RAMONA ELISA R. TORRES and MARIA CECILIA R. TORRES), petitioners, vs. THE DIRECTOR, BUREAU OF CORRECTIONS, NEW BILIBID PRISONS, MUNTINLUPA, MM., respondents.

HERMOSISIMA, JR. J.: We ruled consistently, viz., in Tesoro v. Director of Prisons,1 Sales v. Director of Prisons 2 Espuelas v. Provincial Warden of Bohol3 and Torres v. Gonzales,4 that, where a conditional pardonee has allegedly breached a condition of a pardon, the President who opts to proceed against him under Section 64 (i) of the Revised Administrative Code need not wait for a judicial pronouncement of guilt of a subsequent crime or for his conviction therefor by final judgment, in order to effectuate the recommitment of the pardonee to prison. The grant of pardon, the determination of the terms and conditions of the pardon, the determination of the occurrence of the breach thereof, and the proper sanctions for such breach, are purely executive acts and, thus, are not subject to judicial scrutiny. We have so ruled in the past, and we so rule now. In this original petition for habeas corpus, the wife and children of convicted felon Wilfredo Sumulong Torres pray for his immediate release from prison on the ground that the exercise of the President's prerogative under Section 64 (i) of the Revised Administrative Code to determine the occurrence, if any, of a breach of a condition of a pardon in violation of pardonee's right to due process and the constitutional presumption of innocence, constitutes a grave abuse of discretion amounting to lack or excess of jurisdiction. Of two counts of estafa Torres was convicted by the Court of First Instance of Manila some time before 1979. These convictions were affirmed by the Court of Appeals. The maximum sentence would expire on November 2, 2000. On April 18, 1979, a conditional pardon was granted to Torres by the President of the Philippines on condition that petitioner would "not again violate any of the penal laws of the Philippines. 5" Petitioner accepted the conditional pardon and was consequently released from confinement. 6 On May 21, 1986, the Board of Pardons and Parole resolved to recommend to the President the cancellation of the conditional pardon granted to Torres because Torres had been charged with twenty counts of estafa before, and convicted of sedition by, the Regional Trial Court of Quezon City. On September 8, 1986, the President cancelled the conditional pardon of Torres. On October 10, 1986, then Minister of Justice Neptali A. Gonzales issued "by authority of the President" an Order of Arrest and Recommitment 7 against petitioner. The petitioner was accordingly arrested and confined in Muntinlupa to serve the unexpired portion of his sentence. Torres impugned the validity of the Order of Arrest and Recommitment in the aforecited case of Torres v. Gonzales 8. There we ruled that: Succinctly put, in proceeding against a convict who has been conditional pardoned and who is alleged to have breached the conditions of his pardon, the Executive Department has two

options: (i) to proceed against him under Section 64 (i) of the Revised Administrative Code, or (ii) to proceed against him under Article 159 of the Revised Penal Code . . . Here, the President has chosen to proceed against the petitioner under Section 64 (i) of the Revised Administrative Code. That choice is an exercise of the President's executive prerogative and is not subject to judicial scrutiny.9 Now, Torres, apparently through his wife and children, seeks anew relief from this court. Unfortunately, there is no adequate basis for us to oblige him. A conditional pardon is in the nature of a contract between the sovereign power or the Chief Executive and the convicted criminal to the effect that the former will release the latter subject to the condition that if he does not comply with the terms of the pardon, he will be recommitted to prison to serve the unexpired portion of the sentence or an additional one.10 By the pardonee's consent to the terms stipulated in this contract, the pardonee has thereby placed himself under the supervision of the Chief Executive or his delegate who is duty-bound to see to it that the pardonee complies with the terms and conditions of the pardon. Under Section 64 (i) of the Revised Administrative Code, the Chief Executive is authorized to order "the arrest and re-incarceration of any such person who, in his judgment, shall fail to comply with the condition, or conditions of his pardon, parole, or suspension of sentence." It is now a well-entrenched rule in this jurisdiction that this exercise of presidential judgment is beyond judicial scrutiny. The determination of the violation of the conditional pardon rests exclusively in the sound judgment of the Chief Executive, and the pardonee, having consented to place his liberty on conditional pardon upon the judgment of the power that has granted it, cannot invoke the aid of the courts, however erroneous the findings may be upon which his recommitment was ordered. 11 It matters not that in the case of Torres, he has allegedly been acquitted in two of the three criminal cases filed against him subsequent to his conditional pardon, and that the third case remains pending for thirteen (13) years in apparent violation of his right to a speedy trial. Habeas corpus lies only where the restraint of a person's liberty has been judicially adjudged as illegal or unlawful. In the instant petition, the incarceration of Torres remains legal considering that, were it not for the grant of conditional pardon which had been revoked because of a breach thereof, the determination of which is beyond judicial scrutiny, he would have served his final sentence for his first conviction until November 2, 2000. Ultimately, solely vested in the Chief Executive, who in the first place was the exclusive author of the conditional pardon and of its revocation, is the corrollary prerogative to reinstate the pardon if in his own judgment, the acquittal of the pardonee from the subsequent charges filed against him, warrants the same. Courts have no authority to interefer with the grant by the President of a pardon to a convicted criminal. It has been our fortified ruling that a final judicial pronouncement as to the guilt of a pardonee is not a requirement for the President to determine whether or not there has been a breach of the terms of a conditional pardon. There is likewise nil a basis for the courts to effectuate the reinstatement of a conditional pardon revoked by the President in the exercise of powers undisputedly solely and absolutely lodged in his office. WHEREFORE, the instant petition for habeas corpus is hereby DISMISSED for lack of merit. No pronouncement as to costs. Padilla, Davide, Jr., Bellosillo and Kapunan, JJ., concur.

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G.R. Nos. 111206-08 October 6, 1995 PEOPLE OF vs. CLAUDIO TEEHANKEE, JR., accused-appellant.

THE

PHILIPPINES, plaintiff-appellee,

the head, thereby inflicting gunshot wounds, which ordinarily would have caused the death of said Jussi Olavi Leino, thereby performing all the acts of execution which would have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of cause or causes independent of his will, that is, due to the timely and able medical assistance rendered to said Jussi Olavi Leino which prevented his death. Contrary to law.4

PUNO, J.: Three (3) separate Informations were filed against accused Claudio Teehankee, Jr. for the shooting of Roland John Chapman, Jussi Olavi Leino and Maureen Hultman. Initially, he was charged with: MURDER for the killing of ROLAND CHAPMAN, and two (2) FRUSTRATED MURDER for the shooting and wounding of JUSSI LEINO and MAUREEN HULTMAN. When Hultman died on October 17, 1991, during the course of the trial, the Information for Frustrated Murder against accused was amended to MURDER.1 The Information for murder in Criminal Case No. 91-4605 thus reads: That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said Claudio Teehankee, Jr. y Javier, armed with a handgun, with intent to kill and evident premeditation and by means of treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with and shoot with the said handgun Roland John Chapman who war hit in the chest, thereby inflicting mortal wounds which directly caused the death of said Roland John Chapman. Contrary to law.2 The Amended Information for Murder in Criminal Case No. 91-4606 reads: That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said Claudio Teehankee, Jr. y Javier, armed with a handgun, with intent to kill and evident premeditation, and by means of treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with the said handgun Maureen Navarro Hultman who was hit in the head, thereby inflicting moral wounds which directly caused the death of the said Maureen Hultman. CONTRARY TO LAW.3 Finally, the Information for Frustrated Murder in Criminal Case No. 91-4607 reads: That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, while armed with a handgun, with intent to kill, treachery and evident premeditation did then and there wilfully, unlawfully and feloniously attack, assault and shoot one Jussi Olavi Leino on

In the two (2) Informations for frustrated murder initially filed against accused, bail was set at twenty thousand pesos (P20,000.00) each. No bail was recommended for the murder of Roland John Chapman. A petition for bail was thus filed by accused. Hearing was set on August 9, 1991, while his arraignment was scheduled on August 14, 1991. At the hearing of the petition for bail on August 9, 1991, the prosecution manifested that it would present the surviving victim, Jussi Leino, to testify on the killing of Chapman and on the circumstances resulting to the wounding of the witness himself and Hultman. Defense counsel Atty. Rodolfo Jimenez objected on the ground that the incident pending that day was hearing of the evidence on the petition for bail relative to the murder charge for the killing of Chapman only. He opined that Leino's testimony on the frustrated murder charges with respect to the wounding of Leino and Hultman would be irrelevant.5 Private prosecutor, Atty. Rogelio Vinluan, countered that time would be wasted if the testimony of Leino would be limited to the killing of Chapman considering that the crimes for which accused were charged involved only one continuing incident. He pleaded that Leino should be allowed to testify on all three (3) charges to obviate delay and the inconvenience of recalling him later to prove the two (2) frustrated murder charges. 6 By way of accommodation, the defense suggested that if the prosecution wanted to present Leino to testify on all three (3) charges, it should wait until after the arraignment of accused on August 14, 1991. The defense pointed out that if accused did not file a petition for bail, the prosecution would still have to wait until after accused had been arraigned before it could present Leino.7 The private prosecutor agreed to defer the hearing on the petition for bail until after arraignment of accused on the condition that there shall be trial on the merits and, at the same time, hearing on the petition for bail. The defense counsel acceded.8 Upon arraignment, accused pleaded not guilty to the three (3) charges. The prosecution then started to adduce evidence relative to all three (3) cases. No objection was made by the defense.9 A replay of the facts will show that on July 12, 1991, Jussi Olavi Leino invited Roland Chapman, Maureen Hultman and other friends for a party at his house in Forbes Park, Makati. The party started at about 8:30 p.m. and ended at past midnight. They then proceeded to Roxy's, a pub where students of International School hang out. 10 After an hour, they transferred to Vintage, another pub in Makati, where they stayed until past 3:00 a.m. of July 13, 1991. Their group returned to Roxy's to pick up a friend of Maureen, then went back to Leino's house to eat. 11 After a while, Maureen requested Leino to take her home at Campanilla Street, Dasmariñas Village, Makati. Chapman tagged along. 12 When they entered the village, Maureen asked Leino to stop along Mahogany Street,

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about a block away from her house in Campanilla Street. She wanted to walk the rest of the way for she did not like to create too much noise in going back to her house. She did not want her parents to know that she was going home that late. Leino offered to walk with her while Chapman stayed in the car and listened to the radio. 13

Security guards Florece and Cadenas were then on duty at the house of their employer, while driver Mangubat was in his quarters, preparing to return to his own house. These three (3) eyewitnesses heard the first gunshot while at their respective posts.

Leino and Maureen started walking on the sidewalk along Mahogany Street. When they reached the corner of Caballero and Mahogany Streets, a light-colored Mitsubishi box-type Lancer car, driven by accused Claudio Teehankee, Jr., came up from behind them and stopped on the middle of the road. Accused alighted from his car, approached them, and asked: "Who are you? (Show me your) I.D." Leino thought accused only wanted to check their identities. He reached into his pocket, took out his plastic wallet, and handed to accused his Asian Development Bank (ADB) I.D. 14 Accused did not bother to look at his I.D. as he just grabbed Leino's wallet and pocketed it. 15

Upon hearing the first shot, Florece went out to Caballero Street to see what was happening, while Mangubat and Cadenas peeped over the fence of their employer's house and looked out to Caballero Street. Each saw a man (Chapman) sprawled on the ground, another man (Leino) sitting on the sidewalk, a third man standing up ad holding a gun and a woman (Hultman). They saw the gunman shoot Leino and Hultman and flee aboard his Lancer car. However, because of Florece's distance from the scene of the crime, 24 he was not able to discern the face of the gunman. He saw the control numbers of the gunman's car as 566. He described the gateway car as a box-type Lancer, its color somewhat white ("medyo maputi"). 25 Cadenas noticed in full the plate number of the getaway car and gave it as PDW 566. He described the car as silver metallic gray. 26 Both Cadenas and Mangubat saw the gunman's face. They had a good look at him. Cadenas was then a mere four (4) meters away from the gunman's car, 27 while Mangubat was about twenty (20) meters away from the scene of the crime. 28 The three confirmed that the corner of Caballero and Mahogany Streets where the shooting took place was adequately illuminated by a Meralco lamppost at the time of the incident. 29

Chapman saw the incident. All of a sudden, he manifested from behind Leino and inquired what was going on. He stepped down on the sidewalk and asked accused: "Why are you bothering us?" Accused pushed Chapman, dug into his shirt, pulled out a gun and fired at him. Chapman felt his upper body, staggered for a moment, and asked: "Why did you shoot me?" Chapman crumpled on the sidewalk. Leino knelt beside Chapman to assist him but accused ordered him to get up and leave Chapman alone. 16 Accused then turned his ire on Leino. He pointed gun at him and asked: "Do you want a trouble?" Leino said "no" and took a step backward. The shooting initially shocked Maureen. When she came to her senses, she became hysterical and started screaming for help. She repeatedly shouted: "Oh, my God, he's got a gun. He's gonna kill us. Will somebody help us?"

After the gunman sped away, Mangubat ran outside his employer's house and went near the scene of the crime. He noticed security guard Florece along Caballero Street. A man on a bike passed by and Mangubat requested him to report the shooting incident to the security officers of Dasmariñas Village. 30 Meanwhile, Florece returned to his post and narrated to his employer, Mrs. Helen Roxas, what he saw. Mrs. Roxas repaired to the crime scene while Florece noted the incident in his logbook (Exhibit "B"). He also jotted down the license plate control number of the gunman's car as 566. 31

All the while, accused was pointing his gun to and from Leino to Maureen, warning the latter to shut up. Accused ordered Leino to sit down on the sidewalk. Leino obeyed and made no attempt to move away. Accused stood 2-3 meters away from him. He knew he could not run far without being shot by accused.

The security guards of Dasmariñas Village came after a few minutes. They rushed Leino and Maureen to the Makati Medical Center for treatment. 32

Maureen continued to be hysterical. She could not stay still. She strayed to the side of accused's car. Accused tried but failed to grab her. Maureen circled around accused's car, trying to put some distance between them. The short chase lasted for a minute or two. Eventually, accused caught Maureen and repeatedly enjoined her to shut up and sit down beside Leino. 17 Maureen finally sat beside Leino on the sidewalk. Two (2) meters away and directly in front of them stood accused. 18 For a moment, accused turned his back from the two. He faced them again and shot Leino. Leino was hit on the upper jaw, fell backwards on the sidewalk, but did not lose consciousness. Leino heard another shot and saw Maureen fall beside him. He lifted his head to see what was happening and saw accused return to his car and drive away. 19 Leino struggled to his knees and shouted for help. He noticed at least three (3) people looking on and standing outside their houses along Caballero Street. 20 The three were: DOMINGO FLORECE, a private security guard hired by Stephen Roxas to secure his residence at #1357 Caballero Street, Dasmariñas Village, Makati; 21 VICENTE MANGUBAT, a stay-in driver of Margarita Canto, residing at #1352 Caballero Street, corner Mahogany Street, Dasmariñas Village; 22 and AGRIPINO CADENAS, a private security guard assigned at the house of Rey Dempsey, located at #1351 Caballero Street, corner Mahogany Street, Dasmariñas Village. 23

The Makati police and agents of the NBI also came. Patrolman JAMES BALDADO of the Makati police, together with SPO3 ALBERTO FERNANDEZ, investigated the incident. 33 Their initial investigation disclosed that the gunman's car was a box-type Mitsubishi Lancer with plate control number 566. They checked the list of vehicles registered with the village Homeowners' Association and were able to track down two (2) Lancer cars bearing plate control number 566. One was registered in the name of JOSE MONTAÑO of 1823 Santan Street, Dasmariñas Village, with plate number PKX 566, and another was traced to accused CLAUDIO TEEHANKEE, JR., of 1339 Caballero Street, Dasmariñas Village, with plate number PDW 566. SALVADOR RANIN, Chief of the Special Operations Group (SOG) of the NBI, was also tasked by then NBI Director Alfredo Lim 34 to head a team to investigate the shooting. Ranin's team immediately proceeded to the house of Jose Montaño35 where they found ahead of them the Makati police and operatives of the Constabulary Highway Patrol. Ranin tried to verify from Mrs. Montaño whether the white Lancer car registered in the name of Mr. Montaño and bearing plate number 566 was the gunman's car. Mrs. Montaño denied and declared they had already sold the car to Saldaña Enterprises. She averred the car was being used by one Ben Conti, a comptroller in said company, who resides in Cubao, Quezon City. Mrs. Montaño called up her husband and informed him about the investigation. She also called up Conti and asked him to bring the car to the house. 36 Jose Montaño came around noon. Conti followed with white Lancer car. Ranin brought them to the NBI office for investigation, together with Lancer car. At the NBI Ranin inquired from Montaño the whereabouts of his car on

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July 12 and 13, 1991. Montaño informed him that the car was at the residence of his employee, Ben Conti, at E. Rodriguez Street, Cubao, Quezon City, the night of July 12, 1991. In the morning of July 13, 1991, Conti drove the car to their office at Saldaña Enterprises. Conti confirmed this information. Ranin received the same confirmation from two (2) NBI agents who made a countercheck of the allegation. Upon Ranin's request, Montaño left his car at the NBI parking lot pending identification by possible witnesses. 37 On July 14, 1991, a team of NBI agents conducted an on-the-spot investigation and neighborhood inquiry of the shooting incident. They interviewed Domingo Florece and asked him to report to their office the next day for further investigation.38 They also interviewed Agripino Cadenas who was reluctant to divulge any information and even denied having witnessed the incident. Sensing his reluctance, they returned to Cadenas' post at Dasmariñas Village that night and served him a subpoena, inviting him to appear at the NBI office for investigation the next day. 39 The NBI agents also talked with Armenia Asliami, an Egyptian national residing at #1350 Caballero Street, Dasmariñas Village, near the scene of the crime. Asliami informed the agents that the gunman's car was not white but light gray. A foreign national, Asliami was afraid and refused to give a statement about the incident. The agents exerted every effort to convince Asliami to cooperate, assuring her of their protection. Ranin even asked a representative of the Egyptian embassy to coax Asliami to cooperate. They failed. 40 On July 15, 1991, Florece and Cadenas appeared at the NBI office as summoned. Florece readily executed a sworn statement.41 Cadenas, however, continued to feign ignorance and bridled his knowledge of the incident. He was lengthily interviewed. At around 2:00 p.m., the NBI agents informed SOG Chief Ranin that Cadenas was still withholding information from them. Ranin talked to Cadenas in his office. Cadenas confided to Ranin his fear to get involved in the case. He was apprehensive that the gunman would harass or harm him or his family. After Ranin assured him of NBI protection, Cadenas relented. 42 The next day, July 16, 1991, Cadenas gave a full disclosure to Ranin. He described the gunman's car as a box-type Lancer with plate number PDW 566. He was brought to the NBI parking lot where Montaño's white Lancer car was parked to identify the gunman's car. Ranin asked Cadenas if Montaño's was the gunman's car. Cadenas replied that its color was different. Ranin directed him to look around the cars in the parking lot and to point the color that most resembled the color of the gunman's car. He pointed to a light gray car. Ranin told him that the color of the car he pointed to was not white but light gray. 43 Ranin then asked Cadenas if he could identify the gunman. Cadenas replied in the affirmative. Ranin led Cadenas to his office and showed him ten (10) pictures of different men (Exhibits "CC-1" to "CC-10) taken from the NBI files. One of the pictures belonged to accused Claudio Teehankee, Jr. Cadenas studied the pictures, picked accused's picture (Exhibit "CC-7"), and identified him as the gunman. Cadenas wrote his name and the date at the back of said picture. Atty. Alex Tenerife of the NBI then took down Cadenas' statement. 44 Ranin sent his agents and the witnesses to the Makati Regional Trial Court to apply for a search warrant. After a searching examination of the witnesses, Judge Rebecca Salvador issued a search warrant (Exhibit "RR"), authorizing the NBI to search and seize the silver metallic gray, 1983 Mitsubishi Lancer car owned by accused, bearing plate number PDW 566. Ranin and his agents drove to accused's house at #1339 Caballero Street, Dasmariñas Village, to implement the warrant. 45 At accused's house, Ranin informed Mrs. Pilar Teehankee, mother of accused, of their search warrant. Ranin also told Mrs. Teehankee that they had orders from Director Lim to invite accused to the NBI office for investigation.

Mrs. Teehankee informed them that accused was not in the house at that time. She excused herself, went to the kitchen and called up someone on the phone. 46 In the meantime, Ranin and his men slipped to the Teehankee garage and secured accused's car. After a while, Mrs. Teehankee joined them. Ranin asked her for the car keys but she told him that the keys were with accused. Upon Ranin's request, Mrs. Teehankee got in touch with accused on the phone. Ranin conversed with accused and invited him to the NBI for investigation. Accused assured Ranin that he would report to the NBI later that day. The agents then towed the car of accused to the NBI office. 47 At around 9:00 p.m., accused's brother, Raul Teehankee, arrived at the NBI office and waited for accused. Accused came, escorted by three (3) Makati policemen, after an hour. He informed them that he just came from the Makati police station where he was also investigated. He told Lim that he was given a statement to the Makati police and was brought to the PC Crime Laboratory for paraffin test. 48 Accused's NBI investigation started. Lim asked accused of the whereabouts of his Lancer car at the time of the shooting. Accused claimed that his car was involved in an accident a few weeks back and was no longer functioning. The car had been parked in his mother's house at Dasmariñas Village since then. Due to the lateness of the evening, the group decided to continue the investigation the following day. 49 The next day, July 17, 1991, after breakfast at the Manila Hotel, Lim pressed accused on what really happened at Dasmariñas Village. Accused said he did not see anything. Lim apprised accused that he would be confronted with some eyewitnesses. Accused sank into silence. 50 Lim directed Ranin to prepare a lineup at his office. Accused was requested to join the lineup composed of seven (7) men and he acceded. Cadenas was called from an adjoining room 51 and Ranin asked him to identify the gunman from the lineup. Forthwith, Cadenas pointed to accused. 52 Accused merely stared at Cadenas. 53 On the same day, then Asst. Director Epimaco Velasco, Ranin and two (2) other agents brought accused to Forbes Park for further identification by the surviving victim, Jussi Leino. Leino has just been discharged from the hospital the day before. Since Leino's parents were worried about his safety, they requested the NBI to conduct the identification of the gunman in Forbes Park where the Leinos also reside. The NBI agreed. 54 House security agents from the U.S. embassy fetched Leino at his house and escorted him and his father to a vacant house in Forbes Park, along Narra Avenue. After a couple of minutes, Leino was brought out of the house and placed in a car with slightly tinted windows. The car was parked about five (5) meters away from the house. Inside the car with Leino was his father, NBI-SOG Chief Salvador Ranin and a driver. Leino was instructed to look at the men who would be coming out of the house and identify the gunman from the lineup. 55 A group of five to six men (including accused) then came out of the unoccupied house, into the street, in a line-up. Leino noticed that one of them was wearing sunglasses. Since Leino could not yet speak at that time due to the extensive injury on his tongue, he wrote down on a piece of paper a request for one of the men in the lineup to remove his sunglasses. Leino handed this written request to his father. The men in the lineup were herded back inside the house. After a couple of minutes, they again stepped out and none was wearing sunglasses. From the lineup, Leino identified accused as the gunman. 56

30

The agents brought back accused to the NBI. They prepared and referred the cases of murder and double frustrated murder against accused to the Department of Justice for appropriate action. At the inquest, Fiscal Dennis Villa-Ignacio did not recommend bail insofar as the murder charge was concerned. Hence, accused was detained at the NBI. 57 The shooting incident was also investigated by the Makati Police. Pat. Baldado went to see security guard Vicente Mangubat at his post, at the residence of his employer in Dasmariñas Village. Baldado interviewed Mangubat and invited him to the Makati police station where his statement (Exhibit "D") was taken. 58

With the identification of accused by Mangubat, the NBI wrote finis to its investigation. 66 JUSSI LEINO, the surviving victim, suffered the following injuries: FINDINGS: = Abrasion, 0.5 cm., temporal area, left. = Wound, gunshot, entrance, circular in shape, 1.0 cm. in diameter, located at the upper lip, mouth, along the medial line, directed backwards and downwards, fracturing the maxillary bone and central and lateral incisors, both sides, to the buccal cavity then lacerating the tongue with fragments of the bullet lodged in the right palatine, tongue and tonsillar region.

The next day, July 16, 1991, at about 8:30 a.m., Pat. Baldado fetched Mangubat from his house and brought him to the Makati police station. At the station, Baldado told him to wait for a man who would be coming and see if the person was the gunman. Mangubat was posted at the top of the stairs at the second floor of the station. 59 After a couple of hours, accused, came with Makati police Major Lovete. He ascended the stairs, passed by Mangubat and proceeded to Major Lovete's office at the second floor. While accused was going up the stairs, Pat. Baldado inquired from Mangubat if accused was the gunman. Mangubat initially declined to identify accused, saying that he wanted to see the man again to be sure. He also confided to Pat. Baldado that he was nervous and afraid for accused was accompanied by a police Major. When accused came out from Major Lovete's office, Pat. Baldado again asked Mangubat if accused was the gunman. Mangubat nodded his head in response. 60 Accused, together with Major Lovete and Pat. Baldado, boarded a Mercedes Benz and left. Mangubat was brought back to his post at Dasmariñas Village by other Makati policemen.61 Two (2) days later, Pat. Baldado visited Mangubat at his employer's house and asked him again if accused was really the gunman. Once more, Mangubat answered in the affirmative. Pat. Baldado told Mangubat that he would no longer ask him to sign a statement which he (Baldado) earlier prepared (Exhibit "HHH"). 62 Baldado then left. 63 In the afternoon of July 23, 1991, Mangubat was also questioned by the NBI agents. Director Lim asked Mangubat if he could recognize the gunman. Mangubat said he could. Mangubat was shown twelve (12) pictures (Exhibits "E" to "E-11) of different men and was asked to identify the gun gunman from them. He chose one picture (Exhibit "E-10"), that of accused, and identified him as the gunman. Mangubat's statement was taken. He was asked to return to the NBI the next day to make a personal identification. 64 When Mangubat returned, a lineup was prepared in Lim's office in the presence of the media. At that time, accused's counsels, Attys. Jimenez and Malvar, were at the office of then Asst. Director Epimaco Velasco protesting to the submission of accused to identification. They pointed out that since the cases against accused had already been filed in court and they have secured a court order for the transfer of accused to the Makati municipal jail, any identification of accused should be made in the courtroom. Asst. Director Velasco insisted on the identification as it was part of their on-going investigation. Eventually, accused's counsels acquiesced but requested that identification be made without the presence of the media. Velasco turned them down and explained that if accused is not identified n the lineup, the media coverage would favor accused. 65 All that time, accused was at the SOG office. He refused to join the lineup at Lim's office and remained seated. Ranin was compelled to bring to the SOG office the men composing the lineup and he asked them to go near accused. Ranin then told Mangubat to go in the office. Mangubat pointed to accused as the gunman.

SKULL CHEST July 13, 1991

FOR

RIBS

X-RAY

#353322

No demonstrable evidence of fracture. Note of radioopaque foreign body (bullet fragments) along the superior alveolar border on the right. No remarkable findings. CT SCAN #43992 July 13, 1991 Small hyperdensities presumably bullet and bone fragments in the right palatine, tongue and tonsillar regions with associated soft tissue swelling. Anterior maxillary bone comminuted fracture. Temporal lobe contusions with small hematomata on the right side. Minimal subarachnoid hemorrhage. Intact bone calvarium. xxx xxx xxx 67 Dr. Pedro Solis, testified that the bullet entered the left temple of Leino. After entering Leino's head, it fractured his upper jaw and his front teeth. Some of the bullet fragments pierced his palette and tongue. Brain scanning revealed contusions on the temporal lobe and hemorrhage on the covering of the brain. Physical deformity resulted as a consequence of the gunshot wound because of the fractured upper jaw and the loss of the front teeth. Sutures were performed on the upper portion of his tongue. Nonetheless, Leino's injuries on the tongue caused him difficulty in speaking. 68

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Dr. Solis also testified as to the relative position of Leino and the gunman. He opined that the muzzle of the gun, like in the case of Maureen, must have been at a higher level than the victim's head. He concluded that the gun must have been pointed above Leino's head considering the acuteness and downward trajectory of the bullet. 69 Dr. Leovigildo C. Isabela, a neuro-surgeon at the Makati Medical Center, operated on MAUREEN HULTMAN. He testified that when he first saw Maureen, she was unconscious and her face was bloodied all over. Maureen had a bullet hole on the left side of the forehead, above the eyebrow. Brain tissues were oozing out of her nostrils and on the left side of the forehead where the bullet entered. 70 They brought Maureen to the x-ray room for examination of her skull. She was also given a CT scan. The examination revealed that she suffered injuries on the skull and brain. There were several splintered bullets in her brain and the major portion of the bullet, after it fragmented, was lodged beneath her right jaw. 71 Maureen was rushed to the operating room for surgery. Dr. Isabela led a team who operated on her brain to arrest the bleeding inside her head, remove devitalized brain tissues and retrieve the splintered bullets embedded in her brain. Due to the extensive swelling of Maureen's brain and her very unstable condition, he failed to patch the destroyed undersurface covering of her brain. 72 After the surgery, Maureen's vital signs continued to function but she remained unconscious. She was wheeled to the ICU for further observation. Two (2) weeks later, brain tissues and fluid continue to flow out of Maureen's nostrils due to the unpatched undersurface covering of her brain, leaving the swollen portion of her brain exposed. A second surgery was made on July 30, 1991 to repair Maureen's brain covering. He used the fascia lata of Maureen's right thigh to replace the destroyed covering of the brain. Nonetheless, Maureen remained unconscious. The trickle of brain tissues through her nose was lessened but Maureen developed infection as a result of the destruction of her brain covering. Maureen developed brain abscess because of the infection. She underwent a third operation to remove brain abscess and all possible focus of infection. 73 Testifying on the extensive injuries suffered by Maureen Hultman, Dr. Solis explained that Maureen was shot at the left side of the forehead. The bullet entry was at 1.5 cm. above the eyebrow. Upon entering the forehead, the bullet fragmented into pieces and went from the left to the right side of the temple, fracturing the frontal bone of the skull. The bullet eventually settled behind the right jaw of Maureen. 74 The wound inflicted on Maureen was mortal for it hit one of the most vital parts of the body, the brain. When Maureen was subjected to CT scan, they discovered hemorrhage in her brain. After the bullet hit her head, it caused hemorrhagic lesion on the ventricles of the brain and the second covering of the brain. 75

With each passing day, Maureen's condition deteriorated. Even if Maureen survived, she would have led a vegetating life and she would have needed assistance in the execution of normal and ordinary routines. 78 She would have been completely blind on the left eye and there was possibility she would have also lost her vision on the right eye. All her senses would have been modified and the same would have affected her motor functions. There was practically no possibility for Maureen to return to normal. 79 Maureen did not survive her ordeal. After ninety-seven (97) days of confinement in the hospital, she ceased to be a breathing soul on October 17, 1991. For his exculpation, accused relied on the defense of denial and alibi. Accused claimed that on said date and time, he was not anywhere near the scene of the crime. He alleged that he was then in his house at #53 San Juan, Barrio Kapitolyo, Pasig. He slept at around 1:00 a.m. on July 13, 1991 and woke up at around 8:00 or 9:00 a.m. that same morning. Accused avowed his two (2) maids could attest to his presence in his house that fateful day. 80 Accused averred that he only came to know the three (3) victims in the Dasmariñas shooting when he read the newspaper reports about it. He denied knowing prosecution eyewitnesses Agripino Cadenas and Vicente Mangubat before they identified him as the gunman. 81 Accused admitted ownership of a box-type, silver metallic gray Mitsubishi Lancer, with plate number PDW 566. He, however, claimed that said car ceased to be in good running condition after its involvement in an accident in February 1991. Since May 1991 until the day of the shooting, his Lancer car had been parked in the garage of his mother's house in Dasmariñas Village. He has not used this car since then. Accused, however, conceded that although the car was not in good running condition, it could still be used. 82 Accused said that on July 16, 1991, he went to the Makati police station at around 5:00 p.m. upon invitation of Chief of Police Remy Macaspac and Major Lovete who wanted to ask him about the ownership of the Lancer car parked in his mother's house. He readily gave a statement to the Makati police denying complicity in the crime. He submitted himself to a paraffin test. He was accompanied by the Makati police to the Crime Laboratory in Camp Crame and was tested negative for gunpowder nitrates. 83 After the test, he asked the Makati policemen to accompany him to the NBI for he had earlier committed to his mother that he would present himself to Director Lim. 84 He arrived at Director Lim's office at about 9:30 to 10:00 p.m. He furnished Lim with the statement he earlier gave to the Makati police. Thereafter, Lim detained him at the NBI against his will. 85

The bullet also injured Maureen's eye sockets. There was swelling underneath the forehead brought about by edema in the area. Scanning also showed that Maureen's right jaw was affected by the fragmented bullet. The whole interior portion of her nose was also swollen. 76

The following day, July 17, 1991, Lim and his agents brought him to the Manila Hotel for breakfast. When they returned to the NBI, he was asked to proceed to Lim's office. On his way, he saw a lineup formed inside Lim's office. The NBI agents forced him to join the lineup and placed him in the number seven (7) slot. He observed that the man who was to identify him was already in the room. As soon as he walked up to the lineup, Cadenas identified him as the gunman. 86

A team of doctors operated on Maureen's brain. They tried to control the internal bleeding and remove the splintered bullets, small bone fragments and dead tissues. The main bullet was recovered behind Maureen's right jaw. There was also an acute downward trajectory of the bullet. Hence, it was opined that Maureen was shot while she was seated. 77

A second identification was made on the same day at a house in Forbes Park. The NBI agents brought him to Forbes Park but he never saw Jussi Leino who allegedly identified him as the gunman in a lineup. 87

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A third identification was conducted on July 24, 1991. He was then seated at the office of Ranin for he refused to join another lineup. Despite his protest, the NBI agents insisted on the conduct of the identification and ordered a group of men to line up alongside him. While thus seated, he was identified by Mangubat as the gunman. He complained that he was not assisted by counsel at any stage of said investigation. 88 The defense also presented CLAUDIO TEEHANKEE III, son of accused Claudio Teehankee, Jr. He testified that from May 1989 to February 1991, he had been using his father's Lancer car bearing plate number PDW 566 in going to school. 89 In February 1991, while driving his father's Lancer car, he accidentally hit a bicycle driver and two (2) trucks parked at the side of the road. The accident resulted in the death of the bicycle driver and damage to his father's car, 90especially on its body. The timing of the engine became a little off and the car was hard to start. They had the car repaired at Reliable Shop located in Banawe Street, Quezon city. After a month, he brought the car to the residence of his grandmother, Pilar Teehankee, at Dasmariñas Village, Makati. He personally started the car's engine and drove it to Makati from the shop in Quezon City. He did not bring the car to their house in Pasig for it was still scheduled for further repairs and they preferred to have the repair done in a shop in Makati. Teehankee III claimed that from that time on, he was prohibited by his father from using the car because of his careless driving. He kept the keys to the car and since he was busy in school, no further repair on said car had been made. 91 Accused also imputed the commission of the crimes at bar to Anders Hultman, adoptive father of deceased victim Maureen Hultman. He capitalized on a newspaper report that the gunman may have been an overprotective father. This theory was formed when an eyewitness allegedly overheard Maureen pleading to the gunman: "Huwag Daddy. Huwag, Daddy." The defense presented Anders Hultman as a hostile witness. ANDERS HULTMAN, testified that he is a Swedish national. He and Vivian Hultman were married in the Philippines in 1981. Vivian had two (2) children by her previous marriage, one of whom was Maureen. He legally adopted Vivian's two (2) daughters in 1991. He and Vivian had three (3) children of their own. 92 The defense confronted Anders with one of the angles of the crime in the initial stage of the investigation, i.e., that Maureen was overhead pleading to the gunman: "Huwag, Daddy. Huwag, Daddy." Anders explained that Maureen could not have uttered those words for Maureen never spoke Tagalog. He also said that all his children call him "Papa," not "Daddy." 93 On July 12, 1991, he and Vivian permitted Maureen to have a night out but instructed her to be home by 2:00 a.m. Maureen just received her first salary in her first job and she wanted to celebrate with friends. At the time of the shooting, he and his wife were sleeping in their house. He woke up at around 5:15 a.m. of July 13, 1991 when a security guard came to their house and informed them about the killings. 94 Anders admitted he had been vocal about the VIP treatment accorded to accused at the Makati municipal jail. On several occasions, he checked on accused in jail and discovered that accused was not in his cell. The jail guards even covered up accused's whereabouts. His complaint was investigated by the Congressional Committee on Crime Prevention, headed by Congressman Concepcion. 95 The defense also presented two (2) Makati policemen, PAT. JAMES F. BALDADO and SPO3 ALBERTO FERNANDEZ, who investigated the shooting.

Pat. Baldado testified that in the course of his investigation, he learned from Mr. Jose Montaño that he sold his white Lancer car, with plate number PKX 566, to Saldaña Lending Investors in February 1991. This car was assigned to Ben Conti, Operations Manager of said company and was in the residence of Conti at the time of the shooting. The other witnesses he interviewed confirmed that Montaño's white Lancer car was not in the vicinity of Montaño's residence at the time of the incident. 96 SPO3 Fernandez testified that he interviewed security guard Vicente Mangubat. Mangubat saw the gunman and the get-away car but could not give the central letters of the car's license plate. Fernandez went to one of the houses at the corner of Mahogany and Caballero Streets and asked the maid therein if he could use the phone. After placing a call, the maid told him that he saw the gunman and heard one of the victims say: "Daddy, don't shoot. Don't, don't." Fernandez tried to get the maid's name but the latter refused. The defense did not present this maid in court nor asked the court to subpoena her to testify. Neither was the alleged statement of the maid included in the Progress Report (Exhibit "13") prepared by the Makati police investigators. 97 SPO3 Fernandez saw Mangubat the next time on July 16, 1991 when he and Baldado fetched the latter at Dasmariñas Village for identification of the gunman at the Makati police station. At the police station, Fernandez and Baldado posted Mangubat at the lobby. After a few minutes, accused and company arrived. When accused passed by them, they instructed Mangubat to look around and see if he could identify the gunman. Mangubat failed to identify accused. Mangubat told Fernandez that the gunman was younger and shorter than accused. 98 SPO3 Fernandez also took the statement of security guard Domingo Florece (Exhibit "MM"). It was signed by Florece in his presence. In said statement, Florece described the gunman's car as "medyo puti" (somewhat white). 99 ELIZABETH AYONON, forensic chemist of the PNP Crime Laboratory, testified on the paraffin test she conducted on July 17, 1991 on both hands of accused. 100 As per Chemistry Report No. C 274-91, 101 the test yielded a negative result of gunpowder nitrates on accused's hands. In said Report, she noted that accused was subjected to paraffin test more than seventy-two (72) hours after the shooting incident. She explained that 72 hours is the reasonable period within which nitrate residues may not be removed by ordinary washing and would remain on the hands of a person who has fired a gun. 102 ATTY. MANUEL Q. MALVAR, one of accused's counsel of record, also took the stand for the defense. He testified that in the course of handling the cases, he was able to confer with Ponferrada, Cadenas' supervisor at the Security agency where Cadenas was employed. Ponferrada informed him that Cadenas confided to him that he was tortured at the NBI and was compelled to execute a statement. Ponferrada, allegedly, refused to testify. Atty. Malvar, however, admitted the defense did not compel the attendance of Ponferrada by subpoena. On rebuttal, Cadenas denied the torture story. Atty. Malvar also admitted that he and Atty. Jimenez were aware of the irregularities committed in the off-court identification of their client. When asked what he did to remedy this perceived irregularity, Malvar said he objected to the conduct of the lineup. When further pressed whether he filed a petition for review raising this issue with the Department of Justice upon the filing of the cases therewith, he said he did not. He offered the excuse that he deferred to Atty. Jimenez, the principal counsel of accused at that time. He also declared that although they knew

33

that arraignment would mean waiver of the alleged irregularities in the conduct of the investigation and preliminary investigation, he and Atty. Jimenez allowed accused to be arraigned. 103

One, he said, is the jealousy angle and the other is a "highly sensitive" matter that might involve influential people. 106

The defense likewise relied on a number of news accounts reporting the progress in the investigation of the case. It presented seven (7) newspaper reporters as witnesses, viz: Nestor Barrameda of the Manila Times, Martin Marfil and Dave Veridiano of the Philippine Daily Inquirer, Nida Mendoza of Malaya, Itchie Kabayan and Alex Allan of the People's Journal and Elena Aben of the Manila Bulletin. The bulk of defense evidence consists of newspaper clippings and the testimonies of the news reporters, thus:

Barrameda testified that he had no personal knowledge of the content of the news items marked as Exhibits "1C" to "1-D". He just culled them from previous news reports of other newspapers. He admitted that the only portion he wrote based on an actual interview with NBI Asst. Director Velasco was Exhibit "I-E."

NESTOR BARRAMEDA, a news reporter of the Manila Times identified two (2) news reports as having been partly written by him. One was a news item, entitled: "JUSTICE DEP'T ORDERS PROBE OF THREE METRO KILLINGS" (Exhibit "1"), appearing on the July 16, 1991 issue of the Manila Times. 104 He, however, clarified that a news report is usually the product of collaborative work among several reporters. They follow the practice of pooling news reports where several reporters are tasked to cover one subject matter. The news editor then compiles the different reports they file and summarizes them into one story. 105 The defense lifted only certain portions of Exhibit "1" and marked them in evidence as follows: Exhibit "1-A": Bello directed NBI Deputy Director Epimaco Velasco to take over the investigation of the murders of Roland Chapman, 21, Eldon Maguan, 25, and three members of a family — Estrellita Vizconde and her daughters, Carmela, 19, and Anne Marie Jennifer, 7. Exhibit "1-B" Police said that Chapman's assailant could have been angered when Hultman, a 10th grader at the International School in Makati was escorted home by Chapman after going to a disco. Exhibit "1-C" The lone gunman, witnesses told police, first pistol-whipped Hultman.

Barrameda identified another news item in the July 23, 1991 issue of the Manila Times, entitled: "NBI INSISTS IT HAS "RIGHT" SUSPECT IN CHAPMAN SLAY" which was marked as Exhibit "2." Certain portions thereof, which were not written by Barrameda, 107 were lifted by the defense and offered in evidence, viz: Exhibit "2-a" Superintendent Lucas Managuelod, CIS director for the national capital region, claims, however, that another security guard, Vic Mangubat, had testified before the police that another man, not Teehankee, had fired at Chapman and his companions. Exhibit "2-b" The CIS official added that the absence of nitrite or powder burns on Teehankee's hands as shown by paraffin tests at the CIS laboratory indicated that he may not have fired the gun. 108 MARTIN MARFIL, a reporter of the Philippine Daily Inquirer identified two (2) newspaper clippings which were partly written by him. One news item, which appeared on the July 17, 1991 issue of the Philippine Daily Inquirer, was entitled: "FBI JOINS PROBE OF DASMA SLAY" (Exhibit "3"). 109 Again, the defense marked in evidence certain portions of Exhibit "3", thus: Exhibit "3-a"

Exhibit "l-D"

Witnesses said Hultman talked with the gunman whom she called "Daddy" shortly before Chapman's shooting.

The same witnesses said Chapman and Leino were shot when they tried to escape.

Exhibit "3-b"

Exhibit "1-E"

But Ranin said they were also looking into reports that Hultman was a dancer before she was adopted by her foster parent.

Other angles Exhibit "3-c" Velasco said "we are pursuing two angles" in the Chapman murder.

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Investigations showed that the gunman sped along Caballero street inside the village after the shooting and was believed to have proceeded toward Forbes Park using the Palm street gate. On cross-examination, Marfil admitted that he did not write Exhibits "3-a" and "3-c". He just reiterated previous reports in other newspapers. They were based on speculations.

Exhibit "6-a" "I will be visiting him often and at the most unexpected occasion," Hultman said the day after his 17-year old daughter was cremated. 115 Exhibit "6-b"

Marfil also wrote some portions of a news item, entitled: "TEEHANKEE SON HELD FOR DASMA SLAY," which appeared on the July 18, 1991 issue of the Philippine Daily Inquirer (Exhibit "4"), viz:

The day Maureen died, a congressional hearing granted the Hultman family's request for permission to visit Teehankee in his cell "at anytime of their choice."

Exhibit "4-B" Exhibit "6-c" According to NBI Director Alfredo Lim, the break in the case came when the witness showed up and said that the gunman was on board a silver-metallic Lancer. Exhibit "4-C" The witness said the gunman was standing a few feet away near the car and was talking to Hultman, who was shouting "Huwag! Daddy!" several times. 110 Marfil's source of information was Director Lim. On cross-examination, Marfil admitted that the news reports marked as Exhibits "3" and "4" were written based on information available at that time. 111 NIDA MENDOZA, a reporter of the Malaya identified a news report, entitled: "TEEHANKEE SON HELD ON DASMA SLAYING," which appeared on the July 18, 1991 issue of Malaya. She testified that she wrote a portion thereof, marked as Exhibit "5-c", and the sources of her information were several Makati policemen. 112 Exhibit "5-c" reads: Makati policemen, meanwhile, disputed NBI accounts that Teehankee was arrested at his house. They said Teehankee, the last remaining owner of a car with plate control number 566 who had not been questioned, voluntarily went to police headquarters upon invitation of Makati police chief Superintendent Remy Macaspac. 113 The defense presented EXHIBITS "1-5" to prove: (a) the alleged concerted effort of the investigators to implicate accused as the lone gunman; (b) that there were other suspects aside from accused and that someone whom Maureen called as "Daddy" was the actual gunman; (c) that the initial police investigation showed that the gunman's car was a white Lancer with plate no. 566; and, (d) that after the NBI took over the investigation, the white Lancer car of the gunman became a silver gray Lancer of accused and thereafter, he became the gunman. ITCHIE CABAYAN, a reporter of the People's Journal identified the portions she wrote in the news item, entitled: ''I WILL HOUND YOU", which appeared on the October 24, 1991 issue of People's Journal (Exhibit "6"). She identified the source of her information as Mr. Anders Hultman himself. 114

"If on my next visit he still refuses to come out and is still hiding behind the curtain," Hultman said, "Congress told me that I can take the curtain down and jail authorities will pull him out." 116 ALEX ALLAN, also a reporter of People's Journal co-wrote the news item marked as Exhibit "6". Specifically, he wrote Exhibits "6-d" and "6-e" 117 which read: Exhibit "6-d" "Kaawaawa naman ang mga Hultmans, tulungan natin sila," Ong was quoted as telling Vergel de Dios. Exhibit "6-e" BIR insiders said Ong has shown a keen interest in the Chapman-Hultman, Vizconde and Eldon Maguan cases because he belongs to a secret but very influential multi-sectoral group monitoring graft and corruption and other crimes in high levels of government and society. 118 Allan was not able to check or verify the information in Exhibit "6-e" given to him by BIR insiders for the latter refused to be identified. 119 Exhibit "6" and its sub-markings were offered to prove: (a) the alleged blind and consuming personal rage and bias of Anders Hultman against accused; and (b) the unwarranted pressure, prejudice and prejudgment by some congressional leaders in favor of the Hultmans in violation of due process. DAVE VERIDIANO, a reporter of the Philippine Daily Inquirer, identified the news account which appeared on the July 16, 1991 issue of the Inquirer, entitled: "DASMA SLAY SUSPECT IDENTIFIED" (Exhibit "7"). He wrote a portion of said article (Exhibit "7-c") and the source of his information was Camp Crame. 120 It reads: Exhibit "7-c"

The portions thereof were marked in evidence by the defense, viz:

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Witnesses said the gunman fled aboard a white Mitsubishi Lancer with plate number "566." The witnesses cannot tell the plate's control letters. 121 Veridiano likewise identified a news item which appeared on the July 1991 issue of the Inquirer, entitled: "N.B.I. FINDINGS DISPUTED, SECOND WITNESS TAGS TEEHANKEE" (Exhibit "8"). The portions of said news item which he wrote were marked in evidence by the defense, viz: Exhibit "8-a" At the Criminal Investigation Service, however, an investigator who asked not to be identified insisted that the NBI got the wrong man. The NBI has taken over the case from the CIS. Exhibit "8-c" He said the CIS will shortly identify the suspect killer whom he described as "resembling Teehankee but looks much younger." Exhibit "8-e" The source said that the police's "prime witness," identified only as Mangubat, saw everything that happened in the early morning of July 13. The witness, however, failed to identify Teehankee as the gunman. 122 Veridiano was shown another news report, entitled: "CIS GIVES UP CHAPMAN SLAY CASE", which appeared on the July 26, 1991 issue of the Philippine Daily Inquirer (Exhibit 9). 123 He wrote the entire news account, 124 portions of which were marked by the defense in evidence, thus: Exhibit "9-a" The CIS pulled out from the case a day after its so-called "surprise witness" picked Claudio Teehankee, Jr. from an NBI lineup. He gathered this information from his source but he was not able to interview Mangubat himself. 125

Exhibit "10-a-1" The victims were on their way home in Olanileino's Mercedez Benz with a diplomat's plate number when a white Lancer with plate number PKX-566 blocked its path. Exhibit "10-a-2" US embassy spokesman Stanley Schrager said Chapman's father is a communications specialist. He said the shooting could be the result of an altercation on the street. 127 Finally, VICTOR VEGA, a reporter of the Manila Bulletin, identified the news account he wrote which appeared on the July 16, 1991 issue of the Bulletin, entitled: "4 MURDER SUSPECTS FALL" (Exhibit "22"). Portions of said news item were marked by the defense as follows: Exhibit "22-b" . . . He was shot to death by a group of armed men at the corner of Mahogany and Caballero Sts. in Dasmariñas Village at past 4 a.m. Friday. Exhibit "22-c" The NBI sources said that jealousy sparked the slaying of Chapman who was killed in front of his friends on his way home from a party. The armed men, on board a white Lancer car, blocked the path of the victim's Mercedes Benz car inside the village before the shooting. Exhibit "22-a-1" The gunmen then alighted from their car and at gunpoint ordered Chapman to alight from the car. They shot Chapman several times in the body, while his companions identified as Maureen Hultman, and Jussi Olanileino, were seriously wounded when the gunmen sprayed the car with bullets. The gunmen escaped after the shooting. Lim said he will announce later the names of the detained suspects after their initial investigation. 128

Exhibit "9-b" Sira ulo pala siya (Mangubat). Ilang beses kong pinarada sa kanya si Bobby (Teehankee Jr.) puro iling siya. Hindi raw ito ang suspect. Ngayon bigla niyang ituturo, said a red-faced Makati investigator who, as usual, did not want to be identified. ELENA ABEN, a reporter from the Manila Bulletin, wrote the entire article, entitled: "US DIPLOMAT'S SON SHOT DEAD", which appeared on the July 14, 1991 issue of the Manila Bulletin (Exhibit "10"). 126 Two (2) portions thereof were marked as evidence by the defense, viz:

Finally, his article, entitled: "MAKATI SLAY SUSPECT IDENTIFIED" (Exhibit "23"), which appeared on the July 18, 1991 issue of the Manila Bulletin, was introduced by the defense in evidence as follows: Exhibit "23-a-1" The NBI said Teehankee was one of four men who blocked Chapman's car on Mahogany St. in the subdivision.

36

Exhibit "23-a-2" Witnesses said they saw Teehankee order Chapman and his two companions, Maureen Hultman and Jussi Olanileino, a Finn, to get out of their car.

even filed a motion asking for additional time to file its Memorandum. 137 In due time, both parties submitted their respective Memorandum. On December 22, 1992, the trial court convicted accused CLAUDIO TEEHANKEE, JR. of the crimes charged. 138The dispositive portion of the Decision reads:

Exhibit "23-a-3" WHEREFORE, premises considered, the Court hereby renders judgment: They identified the car used by the suspect, a silver gray Lancer with plate No. PDW 566. They added that they saw the same car in the garage of the Teehankee family. 129 On cross-examination, Vega declared that the source of his two (a) stories was the NBI and they were based on information available to the NBI at that time 130 The prosecution recalled to the stand eyewitness VICENTE MANGUBAT as its rebuttal witness. Mangubat insisted that he was able to identify accused when he saw the latter at the Makati police station. Her reiterated that the next day, Pat. Baldado of the Makati police went to his place of work in Dasmariñas Village and asked him if he was sure about the identity of the gunman. He told Baldado he was positive. Baldado then said him he would no longer require him to sign the statement he prepared for him earlier. 131 LEONORA C. VALLADO, chief of the Forensic Chemistry Division of the NBI, was also presented as a prosecution rebuttal witness. She testified that extensive washing of hands or excessive perspiration can eliminate gunpowder nitrates lodged on skin pores of the hands. Continued washing with hot water can induce perspiration and remove nitrate residue embedded in the skin pores. Application of vinegar on the hand can register the same effect. 132 She testified that their practice at the NBI is to take the paraffin test on a suspect within 72 hours from the time of the alleged firing of a gun, during which time, any possible trace of nitrate may still be found. 133 She divulged that questions have been raised regarding the reliability of the paraffin test. She related that she once attended a training in Baguio City where they tried to test the accuracy of a paraffin test. In said training, two (2) NBI agents fired a .38 revolver. One of them washed his hands. They then subjected both agents to a paraffin test using diphylamine reagent. Both yielded a negative result. Thus, she opined, the result of a paraffin test should merely be taken as a corroborative evidence and evaluated together with other physical evidence. 134 The records show that the case was set for hearing on October 29, 1992 for the presentation by the defense of sur-rebuttal evidence. However, a day before the scheduled hearing, the defense filed a Constancia 135 manifesting that it shall waive its right to present sur-rebuttal evidence, the same being unneccesary. The defense, however, declared that this is without prejudice to the presentation of its evidence in the trial proper should the same be necessary. At the hearing of October 29, 1992, the defense counsels did not appear. The prosecution moved in open court that the main cases and the petition for bail be submitted for decision in view of the absence of defense counsels who had manifested that they would no longer present their sur-rebuttal evidence. The motion was granted and the parties were given ten (10) days from receipt of the Order within which to submit their simultaneous Memorandum. 136 It does not appear that the defense objected to this Order. The records show that the defense

(1) In criminal Case No. 91-4605, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Murder, qualified by treachery, for the fatal shooting of Roland John Chapman, and sentencing said accused to suffer imprisonment of Reclusion perpetua, and to pay the heirs of the said deceased the sum of Fifty Thousand Pesos (P50, 000.00), Philippine Currency, plus moderate or temperate and exemplary damages in the sum of Five Hundred Thousand Pesos (P500,000.00), Philippine Currency; (2) In Criminal Case No. 91-4606, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Murder, qualified by treachery, for the fatal shooting of Maureen Navarro Hultman, and sentencing him to suffer imprisonment of Reclusion Perpetua, and to pay the heirs of the said deceased the sum of Fifty Thousand Pesos (P50,000.00), Philippine Currency, plus the sums of Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83), Philippine Currency, as actual damages; Thirteen Million Pesos (P13,000,000.00), Philippine Currency, for loss of earning capacity of the said deceased; and One Million Pesos (P1,000,000.00), Philippine Currency, as moral, moderate and exemplary damages; (3) In Criminal Case No. 91-4607, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Frustrated Murder, qualified by treachery, for the shooting of Jussi Olavi Leino, and sentencing him to suffer the indeterminate penalty of eight (8) years of prision mayor, as minimum, to ten (10) years and one (1) day of prision mayor, as maximum, and to pay the said offended party the sum of Thirty Thousand Pesos (P30,000.00), Philippine Currency; plus the sum of One Hundred Eighteen Thousand Three Hundred Sixty-Nine Pesos and Eighty-Four Centavos (P118,369.84), Philippine Currency, and another sum equivalent in Philippine Pesos of U.S. $55,600.00, both as actual damages; an amount equivalent in Philippine Pesos of U.S. $40,000.00, as loss of earning capacity of said offended party; and One Million Pesos (P1,000,000.00), Philippine Currency, as moral, moderate and exemplary damages. (4) In all these three cases ordering said accused to pay all the offended parties the sum of Three Million Pesos (P3,000,000.00), Philippine Currency, as and for attorney's fees and expenses of litigation; and (5) To pay the costs in these three cases. Consequently the petition for bail is hereby denied for utter lack of merit.

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SO ORDERED. Accused hired a new counsel in the person of Atty. Nicanor B. Gatmaytan, Jr. He filed a Motion for New Trial, 139alleging for the first time that the trial court erred in considering as submitted for decision not only the petition for bail but also the case on the merits. He claimed that accused's right to adduce further evidence was violated. His motion for new trial was denied. Accused interposed the present appeal. 140 He contends that: I. THE LOWER COURT ERRED IN FINDING THAT THE ACCUSED HAD BEEN POSITIVELY IDENTIFIED BY JUSSI LEINO, CADENAS AND MANGUBAT AS THE ONE WHO SHOT HIM, ROLAND CHAPMAN AND MAUREEN NAVARRO HULTMAN. II. THE PROSECUTION HAS FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT. III. THE PUBLICITY GIVEN THE CASE AGAINST THE APPELLANT WAS MASSIVE, OVERWHELMING, AND PREJUDICIAL AS TO EFFECTIVELY DEPRIVE THE ACCUSED OF RIGHT TO IMPARTIAL TRIAL. IV. THE LOWER COURT ERRED IN FINDING THAT THE KILLING OF CHAPMAN AND HULTMAN AND THE SHOOTING OF LEINO WAS ATTENDED BY TREACHERY. V. THE LOWER COURT ERRED IN GRANTING EXORBITANT MORAL AND EXEMPLARY DAMAGES AND LOSS OF EARNING CAPACITY. VI. THE LOWER COURT ERRED IN AWARDING ATTORNEY'S FEES OF THREE MILLION PESOS (P3,000,000.00). VII. THE LOWER COURT ERRED IN RENDERING JUDGMENT ON THE MERITS AND ON THE PETITION FOR BAIL AT THE SAME TIME WITHOUT GIVING THE ACCUSED THE OPPORTUNITY TO PRESENT ADDITIONAL EVIDENCE IN HIS DEFENSE ON THE MERITS OF THE CASE AND DENYING THE ACCUSED'S MOTION FOR NEW TRIAL. We shall discuss these alleged errors in seriatim. Appellant was convicted on the strength of the testimonies of three (3) eyewitnesses who positively identified him as the gunman. He vigorously assails his out-of-court identification by these eyewitnesses. He starts by trying to discredit the eyeball account of Jussi Leino, the lone surviving victim of the crimes at bar. Appellant urges: First, that Leino's identification of him outside an unoccupied house in Forbes Park was highly irregular.

Third, that Leino's interview at the hospital was never put in writing. Fourth, that the sketch of appellant based on the description given by Leino to the CIS agents was suppressed by the NBI. It is surmised that the sketch must have been among the evidence turned over to the NBI when the latter assumed jurisdiction over the investigation. Lastly, that Leino could not have remembered the face of appellant. The shooting lasted for only five (5) minutes. During that period, his gaze could not have been fixed only on the gunman's face. His senses were also dulled by the five (5) bottles of beer he imbibed that night. It is understandable for appellant to assail his out-of-court identification by the prosecution witnesses in his first assignment of error. Eyewitness identification constitutes vital evidence and, in most cases, decisive of the success or failure of the prosecution. Yet, while eyewitness identification is significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as the fingerprint or DNA testing. Some authors even describe eyewitness evidence as "inherently suspect." 141 The causes of misidentification are known, thus: xxx xxx xxx Identification testimony has at least three components. First, witnessing a crime, whether as a victim or a bystander, involves perception of an event actually occurring. Second, the witness must memorize details of the event. Third, the witness must be able to recall and communicate accurately. Dangers of unreliability in eyewitness testimony arise at each of these three stages, for whenever people attempt to acquire, retain, and retrieve information accurately, they are limited by normal human fallibilities and suggestive influences. (Emphasis Supplied) 142 Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru line-ups where a witness identifies the suspect from a group of persons lined up for the purpose. Since corruption of out-of-court identification contaminates the integrity of in-court identification during the trial of the case, courts have fashioned out rules to assure its fairness and its compliance with the requirements of constitutional due process. In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and, (6) the suggestiveness of the identification procedure. 143 Using the totality of circumstances test, we hold that the alleged irregularities cited by appellant did not result in his misidentification nor was he denied due process. There is nothing wrong in Leino's identification of appellant in an unoccupied house in Forbes Park. The records reveal that this mode was resorted to by the authorities for security reasons. 144 The need for security even compelled that Leino be fetched and escorted from his house in Forbes Park by U.S. embassy security officials and brought to the house where he was to make the identification. The Leinos refused to have the identification at the NBI office as it was cramped with people and with high security risk. 145 Leino's fear for his safety was not irrational. He and his companions had been shot in cold blood in one of the exclusive, supposedly safe subdivisions in the metropolis. Atty. Salvador Ranin, Chief of the Special Operations

Second, that Leino saw his pictures on television and the newspapers before he identified him.

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Group of the NBI, correctly testified that there is no hard and fast rule as to the place where suspects are identified by witnesses. Identification may be done in open field. It is often done in hospitals while the crime and the criminal are still fresh in the mind of the victim. 146 Appellant cannot also gripe that Leino saw his pictures and heard radio and TV accounts of the shooting before he personally identified him. Indeed, the records show that on July 15, 1991, while Leino was still in the hospital, he was shown three (3) pictures of different men by the investigators. He identified appellant as the gunman from these pictures. He, however, categorically stated that, before the mug shot identification, he has not seen any picture of appellant or read any report relative to the shooting incident. 147 The burden is on appellant to prove that his mug shot identification was unduly suggestive. Failing proof of impermissible suggestiveness, he cannot complain about the admission of his out-of-court identification by Leino. We have no reason to doubt the correctness of appellant's identification by Leino. The scene of the crime was well-lighted by a Meralco lamp post. Appellant was merely 2-3 meters away when he shot Leino. The incident happened for a full five (5) minutes. Leino had no ill-motive to falsely testify against appellant. His testimony at the trial was straightforward. He was unshaken by the brutal cross-examination of the defense counsels. He never wavered in his identification of appellant. When asked how sure he was that appellant was responsible for the crime, he confidently replied: "I'm very sure. It could not have been somebody else." 148 Appellant cannot likewise capitalize on the failure of the investigators to reduce to a sworn statement the information revealed by Leino during his hospital interviews. It was sufficiently established that Leino's extensive injuries, especially the injury to his tongue, limited his mobility. The day he identified appellant in the line-up, he was still physically unable to speak. He was being fed through a tube inserted in his throat. 149 There is also no rule of evidence which requires the rejection of the testimony of a witness whose statement has not been priorly reduced to writing. Reliance by appellant on the case of People v. Alindog 150 to erode Leino's credibility is misplaced. In Alindog, accused was acquitted not solely on the basis of delay in taking his statement, but mainly on the finding that the prosecution evidence was, at best, circumstancial and "suspiciosly short in important details," there being no investigation whatsoever conducted by the police. We also reject appellant's contention that the NBI suppressed the sketch prepared by the CIS on the basis of the description given by Leino. There is nothing on the record to show that said sketch was turned over by the CIS to the NBI which could warrant a presumption that the sketch was suppressed. The suspicion that the sketch did not resemble appellant is not evidence. It is unmitigated guesswork. We are not likewise impressed with the contention that it was incredible for Leino to have remembered appellant's face when the incident happened within a span of five (5) minutes. Five (5) minutes is not a short time for Leino to etch in his mind the picture of appellant. Experience shows that precisely because of the unusual acts of bestiality committed before their eyes, eyewitnesses, especially the victims to a crime, can remember with a high degree of reliability the identity of criminals. 151 We have ruled that the natural reaction of victims of criminal violence is to strive to see the appearance of their assailants and observe the manner the crime was committed. Most often, the face end body movements of the assailant create an impression which cannot be easily erased from their memory. 152 In the case at bar, there is absolutely no improper motive for Leino to impute a serious crime to appellant. The victims and appellant were unknown to each other before their chance encounter. If Leino identified appellant, it must be because appellant was the real culprit.

Appellant also assails his identification by Cadenas. He contends that Cadenas did not witness the crime. He stresses that when the Dasmariñas security force and the Makati police conducted an on-the-spot investigation on the day of the incident, neither came across Cadenas. The next day, in the afternoon of July 14, 1991, an NBI agent interviewed Cadenas and asked if he saw the incident. He merely replied: "Nakita ko pero patay na." He did not volunteer information to anyone as to what he supposedly witnessed. That same night, the NBI subpoenaed him for investigation. He went to the NBI the next morning. It was only the next day, July 16, 1991, that he gave his statement to the NBI. Cadenas allegedly told Ponferrada, his supervisor, that the NBI tortured him. We reject appellant's submission. Cadenas' initial reluctance to reveal to the authorities what he witnessed was sufficiently explained during the trial. He related that he feared for his and his family's safety. His fear was not imaginary. He saw with his own eyes the senseless violence perpetrated by appellant. He knew appellant belonged to an influential family. It was only after consistent prodding and assurance of protection from NBI officials that he agreed to cooperate with the authorities. 153 The Court has taken judicial notice of the natural reticence of witnesses to get involved in the solution of crimes considering the risk to their lives and limbs. In light of these all too real risks, the court has not considered the initial reluctance of fear-gripped witnesses to cooperate with authorities as an authorities as an indicium of credibility. 154 It will not depart from this ruling. Appellant's assertion that Cadenas was tortured by the NBI is not borne out by the records. Supposedly, Cadenas passed on to his superior, a certain Ponferrada, information about his torture. The allegation is an out and out hearsay as Ponferrada was not presented in the witness stand. Cadenas himself stoutly denied this allegation of torture. The claim of torture is also belied by the fact that Cadenas' entire family was allowed to stay with him at the NBI headquarters and likewise extended protection. 155 Appellant then discredits his identification by VICENTE MANGUBAT, citing the testimony of defense witness Pat. James Baldado of the Makati Police. Pat. Baldado testified that Mangubat failed to identify appellant as the gunman the first time he was brought to the Makati police station. Mangubat, however, belied Baldado's story. He declared he positively identified appellant as the gunman at the Makati police station. He averred that the day after he identified appellant, Pat. Baldado returned to his place of work in Dasmariñas and asked him again whether appellant was the gunman. Again, he replied in the affirmative. Forthwith, Pat. Baldado said he would no longer ask him to sign a statement (Exhibit "HHH") 156 earlier prepared by Baldado. In said statement previously prepared by Baldado, Mangubat was supposed to state that appellant, whom he saw at the Makati police station, was NOT the gunman. We give more weight to the testimony of Mangubat. We find nothing in the records to suspect that Mangubat would perjure himself. The Court cannot be as generous to Pat. Baldado of the Makati Police. Mr. Hultman has proved that the Makati police, including some of its jail officials, gave appellant favored treatment while in their custody. The anomaly triggered nothing less than a congressional investigation. II We now rule on appellant's second assignment of error, i.e., that the trial court erred in not holding that the prosecution failed to establish his guilt beyond reasonable doubt. First, he claims the trial court erred in citing in its Decision his involvement in previous shooting incidents for this contravenes the rule 157 that evidence that one did or omitted to do a certain thing at one time is not admissible to prove that he did or omitted to do the same or similar thing at another time. Second, the NBI failed to conduct an examination to compare the bullets fired from the gun at the scene of the crime with the bullets recovered from the body of Chapman. Third, the prosecution eyewitnesses described the gunman's car as white, but the trial

39

court found it to be silver mettalic gray. Fourth, appellant could not have been the gunman for Mangubat, in his statement dated July 15, 1991, said that he overheard the victim Maureen Hultman plead to the gunman, thus: "Please, don't shoot me and don't kill me. I promise Mommy, Daddy." Appellant also contends that a maid in a house near the scene of the crime told Makati police Alberto Fernandez that she heard Maureen say: "Daddy don't shoot. Don't." Fifth, the NBI towed accused's car from Dasmariñas Village to the NBI office which proved that the same was not in good running condition. Lastly, the result of the paraffin test conducted on appellant showed he was negative of nitrates.

Nor are we impressed by the alleged discrepancies in the eyewitnesses' description of the color of the gunman's car. Leino described the car as light-colored; Florece said the car was somewhat white ("medyo puti"); 163 Mangubat declared the car was white; 164 and Cadenas testified it was silver metallic gray. 165 These alleged discrepancies amount to no more than shades of differences and are not meaningful, referring as they do to colors white, somewhat white and silver metallic gray. Considering the speed and shocking nature of the incident which happened before the break of dawn, these slight discrepancies in the description of the car do not make the prosecution eyewitnesses unworthy of credence.

Appellant points to other possible suspects, viz:. ANDERS HULTMAN, since one of the eyewitnesses was quoted in the newspapers as having overheard Maureen plead to the gunman: "Huwag, Daddy."; and, (b) JOSE MONTAÑO, another resident of Dasmariñas Village, who had a white Lancer car, also bearing license plate number 566.

Appellant's attempt to pin the crimes at bar on Anders Hultman, the adoptive father of Maureen Hultman, deserves scant consideration. Appellant cites a newspaper item 166 where Maureen was allegedly overheard as saying to the gunman: "Huwag, Daddy. Huwag, Daddy." The evidence on record, however, demonstrates that Anders Hultman could not have been the gunman. It was clearly established that Maureen could not have uttered said statement for two (2) reasons: Maureen did not speak Tagalog, and she addressed Anders Hultman as "Papa," not "Daddy." 167Moreover, Leino outrightly dismissed this suspicion. While still in the hospital and when informed that the Makati police were looking into this possibility, Leino flatly stated that Anders Hultman was NOT the gunman. 168 Leino is a reliable witness.

We reject appellant's thesis as bereft of merit. Appellant cannot hope to exculpate himself simply because the trial judge violated the rule on res inter alios actawhen he considered his involvement in previous shooting incidents. This stance is a specie of a mid-1800 rule known as the English Exchequer Rule pursuant to which "a trial court's error as to the admission of evidence was presumed to have caused prejudice and therefore, almost automatically required a new trial." 158 The Exchequer rule has long been laid to rest for even English appellate courts now disregard an error in the admission of evidence "unless in its opinion, some substantial wrong or miscarriage (of justice) has been occasioned." 159 American courts adopted this approach especially after the enactment of a 1915 federal statute which required a federal appellate court to "give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." 160 We have likewise followed the harmless error rule in our jurisdiction. In dealing with evidence improperly admitted in trial, we examine its damaging quality and its impact to the substantive rights of the litigant. If the impact is slight and insignificant, we disregard the error as it will not overcome the weight of the properly admitted evidence against the prejudiced party. 161 In the case at bar, the reference by the trial judge to reports about the troublesome character of appellant is a harmless error. The reference is not the linchpin of the inculpatory evidence appreciated by the trial judge in convicting appellant. As aforestated, the appellant was convicted mainly because of his identification by three (3) eyewitnesses with high credibility. The NBI may have also failed to compare the bullets fired from the fatal gun with the bullets found at the scene of the crime. The omission, however, cannot exculpate appellant. The omitted comparison cannot nullify the evidentiary value of the positive identification of appellant. There is also little to the contention of appellant that his Lancer car was not in running condition. Allegedly, this was vicariously proved when the NBI towed his car from Dasmariñas Village where it was parked to the NBI office. Again, the argument is negated by the records which show that said car was towed because the NBI could not get its ignition key which was then in the possession of appellant. Clearly, the car was towed not because it was not in running condition. Even appellant's evidence show that said car could run. After its repairs, appellant's son, Claudio Teehankee III, drove it from the repair shop in Banawe, Quezon City to Dasmariñas Village, in Makati, where it was parked. 162

Appellant cannot also capitalize on the paraffin test showing he was negative of nitrates. Scientific experts concur in the view that the paraffin test has ". . . proved extremely unreliable in use. The only thing that it can definitely establish is the presence or absence of nitrates or nitrites on the hand. It cannot be established from this test alone that the source of the nitrates or nitrites was the discharge of a firearm. The person may have handled one or more of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticals, and leguminous plants such as peas, beans, and alfalfa. A person who uses tobacco may also have nitrate or nitrite deposits on his hands since these substances are present in the products of combustion of tobacco." 169 In numerous rulings, we have also recognized several factors which may bring about the absence of gunpowder nitrates on the hands of a gunman, viz: when the assailant washes his hands after firing the gun, wears gloves at the time of the shooting, or if the direction of a strong wind is against the gunman at the time of firing. 170 In the case at bar, NBI Forensic Chemist, Leonora Vallado, testified and confirmed that excessive perspiration or washing of hands with the use of warm water or vinegar may also remove gunpowder nitrates on the skin. She likewise opined that the conduct of the paraffin test after more than seventy-two (72) hours from the time of the shooting may not lead to a reliable result for, by such time, the nitrates could have already been removed by washing or perspiration. 171 In the Report 172 on the paraffin test conducted on appellant, Forensic Chemist Elizabeth Ayonon noted that when appellant was tested for the presence of nitrates, more than 72 hours has already lapsed from the time of the alleged shooting. III In his third assigned error, appellant blames the press for his conviction as he contends that the publicity given to his case impaired his right to an impartial trial. He postulates there was pressure on the trial judge for high-ranking government officials avidly followed the developments in the case (as no less than Vice-President Joseph Estrada and then Department of Justice Secretary Franklin Drilon attended some of the hearings and, President Corazon Aquino even visited victim Maureen Hultman while she was still confined at the hospital). He submits that the trial judge failed to protect him from prejudicial publicity and disruptive influences which attended the prosecution of the cases. He claims there were placards displayed during the hearing of the cases, spectators inside the courtroom clapped their hands and converted the proceedings into a carnival. In another instance, he was allegedly given the "finger sign" by several young people while he was leaving the courtroom on his way back to his cell.

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We cannot sustain appellant's 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 accused's 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 . . . The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting in the police, prosecutors, and judicial processes to extensive public scrutiny and criticism." 173 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 they 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 lose their impartiality. Criticisms against the jury system are mounting and Mark Twain's wit and wisdom put them all in better perspective when he observed: "When a gentleman of high social standing, intelligence, and probity swears that testimony given under the same oath will outweigh with him, street talk and newspaper reports based upon mere hearsay, he is worth a hundred jurymen who will swear to their own ignorance and stupidity . . . Why could not the jury law be so altered as to give men of brains and honesty an equal chance with fools and miscreants?" 174 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 a1., 175 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. We have minutely examined the transcripts of the proceedings and they do not disclose that the trial judge allowed the proceedings to turn into a carnival. Nor did he consent to or condone any manifestation of unruly or improper behavior or conduct inside the courtroom during the trial of the case at bar. The transcripts reveal the following: 1. At the August 14, 1991 hearing, the defense counsel called the attention of the court to the visible display of a placard inside the courtroom. Acting on the manifestation, the trial judge immediately directed that the placard be hidden. Only then did he order the start of the arraignment of accused. 176

On the same hearing, the defense counsel asked for the exclusion of the media after they had enough opportunity to take pictures. The court granted defense's request, noting that the courtroom was also too crowded. 177 2. During the testimony of Domingo Florece, an argument ensued between the defense lawyer and the fiscal. When part of the audience clapped their hands, the defense counsel invoked Rule 119, Section 13 of the Rules of Court and moved for the exclusion of the public. Assistant Prosecutor Villa-Ignacio objected on the ground that the public was not unruly. The trial judge noted that there were yet no guidelines drafted by the Supreme Court regarding media coverage of the trial proceedings. 178Collaborating defense counsel, Atty. Malvar, complained that the outpouring of sympathy by spectators inside the courtroom has turned the proceedings into a carnival. He also manifested that he personally saw that when accused was being brought back to his cell from the courtroom, a group of young people were pointing dirty fingers at accused in full view of policemen. Forthwith, the trial judge declared that he could not be dissuaded by public sentiments. He noted that the clapping of hands by the public was just a reaction at the spur of the moment. He then admonished the audience not to repeat it. 179 3. At the hearing of July 14, 1992, the parties again argued on the coverage of the trial by the press. The defense alleged that the media coverage will constitute mistrial and deny accused's constitutional right to due process. It invoked the provision in the Rules of Court which allows the accused to exclude everybody in the courtroom, except the organic personnel. The prosecutor, however, argued that exclusion of the public can be ordered only in prosecution of private offenses and does not apply to murder cases. He added that the public is entitled to observe and witness trial of public offenses. He quoted the U.S. case of Sheppard v. Maxwell 180 where it was held: "A responsible press is always regarded as the handmaiden of effective judicial administration especially in the criminal field. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, the prosecutors and judicial processes to extensive public scrutiny and criticism. What transpires in the courtrooms public property." The trial judge then ruled that the media should be given a chance to cover the proceedings before the trial proper but, thereafter, he prohibited them from taking pictures during the trial. They were allowed to remain inside the courtroom but were ordered to desist from taking live coverage of the proceedings. 181 4. At the August 14, 1992 hearing, before the hearing began, the trial judge gave the media two (2) minutes to take video coverage and no more. Trial then ensued. 182 5. At the September 8, 1992 hearing, the trial judge again gave the media two (2) minutes to take pictures before the trial proper. Afterwards, the reporters were duly admonished to remain silent, to quietly observe the proceedings and just take down notes. 183 6 On September 10, 1992 before the start of the afternoon session, the judge admonished the media people present in the courtroom to stop taking pictures. 184 Parenthetically, appellant should be the last person to complain against the press for prejudicial coverage of his trial. The records reveal he presented in court no less than seven (7) newspaper reporters and relied heavily on

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selected portions of their reports for his defense. The defense's documentary evidence consists mostly of newspaper clippings relative to the investigation of the case at bar and which appeared to cast doubt on his guilt. The press cannot be fair and unfair to appellant at the same time. Finally, it would not be amiss to stress that on May 29, 1992, the trial judge voluntarily inhibited himself from further hearing the case at bar to assuage appellant's suspicion of bias and partiality. 185 However, upon elevation of the trial judge's voluntary Order of Inhibition to this Court, we directed the trial judge to proceed with the trial to speed up the administration of justice. 186 We found nothing in the conduct of the proceedings to stir any suspicion of partiality against the trial judge. IV In his fourth assigned error, appellant claims that treachery was not present in the killing of Hultman and Chapman, and the wounding of Leino for it was not shown that the gunman consciously and deliberately adopted particular means, methods and forms in the execution of the crime. Appellant asserts that mere suddenness of attack does not prove treachery. The three (3) Informations charged appellant with having committed the crimes at bar with treachery and evident premeditation. Evident premeditation was correctly ruled out by the trial court for, admittedly, the shooting incident was merely a casual encounter or a chance meeting on the street since the victims were unknown to appellant and vice-versa It, however, appreciated the presence of the qualifying circumstance of treachery. We hold that the prosecution failed to prove treachery in the killing of Chapman. Prosecution witness Leino established the sequence of events leading to the shooting. He testified that for no apparent reason, appellant suddenly alighted from his car and accosted him and Maureen Hultman who were then walking along the sidewalk. Appellant questioned who they were and demanded for an I.D. After Leino handed him his I.D., Chapman appeared from behind Leino and asked what was going on. Chapman then stepped down on the sidewalk and inquired from appellant what was wrong. There and then, appellant pushed Chapman, pulled a gun from inside his shirt, and shot him. The gun attack was unexpected. "Why did you shoot me?" was all Chapman could utter. Concededly, the shooting of Chapman was carried out swiftly and left him with no chance to defend himself. Even then, there is no evidence on record to prove that appellant consciously and deliberately adopted his mode of attack to insure the accomplishment of his criminal design without risk to himself. It appears to us that appellant acted on the spur of the moment. Their meeting was by chance. They were strangers to each other. The time between the initial encounter and the shooting was short and unbroken. The shooting of Chapman was thus the result of a rash and impetuous impulse on the part of appellant rather than a deliberate act of will. We have consistently ruled that mere suddenness of the attack on the victim would not, by itself, constitute treachery. 187 Hence, absent any qualifying circumstance, appellant should only be held liable for Homicide for the shooting and killing of Chapman. As to the wounding of Jussi Leino and the killing of Maureen Hultman, we hold that treachery clearly attended the commission of the crimes. The evidence shows that after shooting Chapman in cold blood, appellant ordered Leino to sit on the pavement. Maureen became hysterical and wandered to the side of appellant's car. When appellant went after her, Maureen moved around his car and tried to put some distance between them. After a minute or two, appellant got to Maureen and ordered her to sit beside Leino on the pavement. While seated, unarmed and

begging for mercy, the two were gunned down by appellant. Clearly, appellant purposely placed his two victims in a completely defenseless position before shooting them. There was an appreciable lapse of time between the killing of Chapman and the shooting of Leino and Hultman — a period which appellant used to prepare for a mode of attack which ensured the execution of the crime without risk to himself. Treachery was thus correctly appreciated by the trial court against appellant insofar as the killing of Hultman and the wounding of Leino are concerned. V and VI We come now to the civil liability imposed against appellant. Appellant posits that the awards of moral and exemplary damages and for loss of earning capacity of Maureen Hultman, Roland Chapman and Jussi Leino were exorbitant. He likewise claims that the trial court's award of attorney's fees was excessive. In its Decision, the trial court awarded to Jussi Leino end the heirs of victims Hultman and Chapman the following damages: 1. For the murder of Roland John Chapman, appellant was sentenced to pay the heirs of the deceased the sum of Fifty Thousand Pesos (P50,000.00) as indemnity for death and the sum of Five Hundred Thousand Pesos (P500,000.00) as moderate or temperate and exemplary damages. 2. For the murder of Maureen Navarro Hultman, appellant was sentenced to pay the heirs of the deceased the sum of: Fifty Thousand Pesos (P50,000.00) as indemnity for death; Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83) as actual damages; Thirteen Million Pesos (P13,000,000.00) for loss of earning capacity of deceased; and, One Million Pesos as moral, moderate and exemplary damages. 3. For the shooting of Jussi Olavi Leino, appellant was sentenced to pay: Thirty thousand pesos (P30,000.00) as indemnity for the injury; One Hundred Eighteen Thousand Three-Hundred Sixty Nine Pesos and Eighty-Four Centavos (P118,369.84) and the sum equivalent in Philippine pesos of U.S.$55,600.00, both as actual damages; an amount equivalent in Philippine pesos of U.S.$40,000.00, for loss of earning capacity of Jussi Leino; and, One Million Pesos (P1,000,000.00) as moral, moderate and exemplary damages. 4. In all three cases, appellant was also ordered to pay each of the offended parties the sum of One Million Pesos (or a total of three million pesos) for attorney's fees and expenses of litigation. 5. Costs of litigation. 188 The early case of Heirs of Raymundo Castro v. Bustos 189 discussed in detail the matter of damages recoverable in case of death arising from a felony, thus:

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When the commission of a crime results in death, the civil obligations arising therefrom are governed by penal laws, ". . . subject to the provisions of Art. 2177, and of the pertinent provisions of Chapter 2, Preliminary Title on Human Relations, and of Title XVIII of this Book (Book IV) regulating damages." (Art. 1161, Civil Code) Thus, "every person criminally liable for a felony is also civilly liable." (Art. 100, Revised Penal Code). This civil liability, in case the felony involves death, includes indemnification for consequential damages (Art. 104, id.) and said consequential damages in turn include ". . . those suffered by his family or by a third person by reason of the crime." (Art. 107, id.) Since these provisions are subject, however, as above indicated, to certain provisions of the Civil Code, (w)e will now turn to said provisions. The general rule in the Civil Code is that: In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably foreseen by the defendant. (Art. 2202) When, however, the crime committed involves death, there is Art. 2206 which provides thus: The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos even though there may have been mitigating circumstances. In addition: (1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death; (2) If the deceased was obliged to give support according to the provisions of article 291, the recipient who is not an heir called to the descendant's inheritance by law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court; (3) The spouse, legitimate or illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. The amount of P3,000 referred to in the above article has already been increased by this Court first, to P6,000.00 in People v. Amansec, 80 Phil. 426, and lately to P12,000.00 in the case of People v. Pantoja, G.R. No. L-18793, promulgated October 11, 1968 190, and it must be stressed that this amount, as well as the amount of moral damages, may be adjudicated even

without proof of pecuniary loss, the assessment of the moral damages being "left to the discretion of the court, according to the circumstances of each case." (Art. 2216) Exemplary damages may also be imposed as a part of this civil liability when the crime has been committed with one or more aggravating circumstances, such damages being "separate and distinct from fines and shall be paid to the offended party." (Art. 2230). Exemplary damages cannot however be recovered as a matter of right; the court will decide whether or not they should be given. (Art. 2233) In any event, save as expressly provided in connection with the indemnity for the sole fact of death (1st par., Art. 2206) and is cases wherein exemplary damages are awarded precisely because of the attendance of aggravating circumstances, (Art. 2230) ". . . damages to be adjudicated may be respectively increased or lessened according to the aggravating or mitigating circumstances," (Art. 2204) "but the party suffering the loss or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in question." (Art. 2203) "Interest as a part of the damages, may, in a proper case, be adjudicated in the discretion of the Court." (Art. 2211) As to attorneys' fees and expenses of litigation, the same may be recovered only when exemplary damages have been granted (Art. 2208, par. 1) or . . . when there is a separate civil action. Stated differently, when death occurs as a result of a crime, the heirs of the deceased are entitled to the following items of damages: 1. As indemnity for the death of the victim of the offense — P12,000.00 (now P50,000.00), without the need of any evidence or proof of damages, and even though there may have been mitigating circumstances attending the commission of the offense. 2. As indemnity for loss of earning capacity of the deceased — an amount to be fixed by the court according to the circumstances of the deceased related to his actual income at the time of death and his probable life expectancy, the said indemnity to be assessed and awarded by the court as a matter of duty, unless the deceased had no earning capacity at said time on account of permanent disability not caused by the accused. If the deceased was obliged to give support, under Art. 291, Civil Code, the recipient who is not an heir, may demand support from the accused for not more than five years, the exact duration to be fixed by the court. 3. As moral damages for mental anguish, — an amount to be fixed by the court. This may be recovered even by the illegitimate descendants and ascendants of the deceased. 4. As exemplary damages, when the crime is attended by one or more aggravating circumstances, — an amount to be fixed in the discretion of the court, the same to be considered separate from fines.

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5. As attorney's fees and expenses of litigation, — the actual amount thereof, (but only when a separate civil action to recover civil liability has been filed or when exemplary damages are awarded).

Appellant argues that the damages for the death of Maureen should be awarded to her mother, Vivian Hultman, and her natural father. He contends that under Article 352 of the New Civil Code, Anders Hultman as adoptive father of Maureen, is not entitled to said award. Only the parents by nature of Maureen should inherit from her.

6. Interests in the proper cases.

We reject the argument. Under the Family Code which was already in effect at the time of Maureen's death, Anders Hultman, as adoptive father, is entitled to the award made by the trial court. Article 190 of the Family Code provides:

7. It must be emphasized that the indemnities for loss of earning capacity of the deceased and for moral damages are recoverable separately from and in addition to the fixed sum of P12,000.00 (now P50,000.00) corresponding to the indemnity for the sole fact of death, and that these damages may, however, be respectively increased or lessened according to the mitigating or aggravating circumstances, except items 1 and 4 above, for obvious reasons. 191 We shall first review the damages awarded to the heirs of ROLAND JOHN CHAPMAN in light of the law and the case law. Appellant claims that the award of Five Hundred Thousand (P500,000.00) pesos as moderate or temperate and exemplary damages to the heirs of Roland John Chapman was baseless. We start with the observation that the trial court should not have lumped together the awards for moderate or temperate and exemplary damages at Five Hundred Thousand Pesos (P500,000.00), without specifying the particular amount which corresponds to each, as they are of a different kind. We shall, however, consider their propriety and reasonableness. The amount of Five Hundred Thousand (P500,000.00) pesos cannot be given as temperate or moderate damages for the records do not show any basis for sustaining the award. Nor can it be given as exemplary damages. The killing of Chapman was not attended by either evident premeditation or treachery. Be that as it may, the award can be considered as one for moral damages under Article 2206 (3) of the New Civil Code. 192 It states: Art. 2206. The amount of damages for death caused by a crime . . . shall be at least (fifty thousand pesos, under current jurisprudence) . . . In addition: xxx xxx xxx (3) The spouse, legitimate or illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. Moreover, considering the shocking and senseless aggression committed by appellant, we increase the amount of moral damages to One Million (P1,000,000.00) pesos for the death of Chapman. We next rule on the legality of damages awarded to the heirs of MAUREEN NAVARRO HULTMAN.

xxx xxx xxx (2) When the parents, legitimate or illegitimate, or the legitimate descendants of the adopted concur with the adopters, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; xxx xxx xxx (5) When only the adopters survive, they shall inherit the entire estate; It does not appear on the records whether Maureen was survived by her natural father. During the trial of these cases, only Vivian and Anders Hultman testified on their claim of damages. Hence, we find that the award of damages in their favor has sufficient factual and legal basis. Appellant also urges that the award to the heirs of Maureen Hultman of One Million Pesos (P1,000,000.00) as moral and exemplary damages is unjustified or, at the very least, exorbitant and should be reduced. We hold that the award of One Million (P1,000,000.00) pesos is amply justified by the circumstances. The records reveal that Maureen recovered between life and death for ninety-seven (97) days. Her family experienced the peaks and valleys of unspeakable suffering. During that time, she underwent brain surgery three (3) times. Her condition was never stable and remained critical. It was always touch and go with death. She could not be left alone at the hospital. Her parents had to be perpetually by her side at least six (6) to seven (7) hours daily. After the shooting, their siblings had to be sent back to Sweden for their safety. Left unattended, her family's business took a downspin. Soon, her family's assets were depleted, then wiped out. A total of twenty-three (23) doctors attended to her and their bills ballooned without abatement. They were forced to rely on the goodness of the gracious. Her family started receiving contributions from other people to defray the medical expenses and hospital bills. 193 Maureen never regained consciousness until her demise on October 17, 1991, at the tender age of seventeen. Under the foregoing circumstances, we thus find the award of One Million Pesos (P1,000,000.00) as moral damages to be reasonable. Moreover, we find that the grant of exemplary damages is called for by the circumstances of the case. Under Article 2229 of the Civil Code, 194 in addition to the award of moral damages, exemplary or corrective damages may be adjudged in order to deter the commission of similar acts in the future. The award for exemplary damages is designed to permit the courts to mould behavior that has socially deleterious consequences. Its imposition is required by public policy to suppress the wanton acts of an offender.

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In the case at bar, appellant's unprovoked aggression snuffed the life of Maureen Hultman, a girl in the prime of her youth. Hultman and her companions were gunned down by appellant in cold-blood, for no apparent reason. Appellant's vicious criminality led to the suffering of his victims and their families. Considering our soaring crime rate, the imposition of exemplary damages against appellant to deter others from taking the lives of people without any sense of sin is proper. Moreover, since the killing of Hultman was attended by treachery and pursuant to Article 2229 of the new Civil Code, 195 we impose an award of Two Million (P2,000,000.00) pesos as exemplary damages against appellant for the death of Maureen Hultman.

was thus only on his first year, first semester, in said school and was practically, a mere high school graduate. Under the foregoing circumstances, we find the records wanting with substantial evidence to justify a reasonable assumption that Leino would have been able to finish his studies at the Manila Aero Club and ultimately become a professional pilot.

We now review the award of One Million Pesos (P1,000,000.00) as moral, moderate and exemplary damages to victim JUSSI LEINO.

In adjudging an award for Maureen's loss of earning capacity, the trial court incorrectly used the monthly salary of a secretary working in Sweden, computed at two thousand dollars ($2,000.00) a month, as per the estimate given by Anders Hultman. Nowhere in the records does it appear that, at the time of her death, Maureen had acquired the skills needed for a secretarial job or that she intended to take a secretarial course in preparation for such job in Sweden. Anders Hultman himself testified that there was uncertainty as to Maureen's future career path, thus:

From the record, it is incontrovertible that Leino likewise suffered extensive injuries as a result of the shooting. His upper jaw bone was shattered. He would need a bone transplant operation to restore it. His tongue was also injured. He partially lost his sense of taste for his taste buds were also affected. When he was discharged from the hospital, he had difficulty in speaking and had to be fed through a tube running down his nose. He lost eight of his teeth. The roots of his teeth were cut off and the raw nerves were exposed. But all these speak only of his physical injuries and suffering. More devastating was the emotional strain that distressed Leino. His parents were in Europe for a vacation at the time of the shooting. Only a neighbor attended to him at the hospital. It took two (2) days for his father to come and comfort by his bedside. Leino had trouble sleeping in peace at night. The traumatic event woke him up in the middle of the night. Black memories of the incident kept coming back to mind. 196 Understably, the ill-effects of the incident spilled over his family. Seppo Leino, Jussi's father, was tortured by thoughts of insecurity. He had to relocate his entire family to Europe where he felt they would be safe. 197 Under the foregoing circumstances, we find that an award of One Million (P1,000,000.00) pesos to Jussi Leino as indemnity for moral damages is justified and reasonable. As in the case of Hultman, since the shooting of Leino was committed with treachery and pursuant to Article 2229 of the New Civil Code, 198 appellant is additionally adjudged liable for the payment to Leino of Two Million (P2,000,000.00) pesos as exemplary damages.

We now pass upon the propriety of the award of Thirteen Million Pesos (P13,000,000.00) for loss of earning capacity of deceased MAUREEN HULTMAN. We find that the award is not supported by the records.

ATTY. VINLUAN: Q Mr. Witness, if Maureen would not been (sic) shot and she continued her studies, what professional career would she (sic) like to pursue considering her interests and inclinations? WITNESS: A That is very difficult to say. She has just turned 17 and our projection is that, certainly she would have been an artist in the creative side. She would have become an actress or a movie producer or probably she would have been a college graduate. ATTY. VINLUAN:

We come now to the trial court's monetary award to compensate the LOSS OF EARNING CAPACITY OF VICTIMS JUSSI LEINO and MAUREEN HULTMAN. To be compensated for loss of earning capacity, it is not necessary that the victim, at the time of injury or death, is gainfully employed. Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn money. In Cariaga v. Laguna Tayabas Bus Company, 199 we awarded to the heirs of Cariaga a sum representing loss of his earning capacity although he was still a medical student at the time of injury. However, the award was not without basis for Cariaga was then a fourth year medical student at a reputable school; his scholastic record, which was presented at the trial, justified an assumption that he would have been able to finish his course and pass the board in due time; and a doctor, presented as witness for the appellee, testified as to the amount of income Cariaga would have earned had he finished his medical studies. In the case at bar, the trial court awarded the amount, equivalent in Philippine pesos, of Forty capacity of JUSSI LEINO. We agree with appellant that this amount is highly speculative and should be denied considering that Leino had only earned a high school degree at the International School, Manila, in 1989. He went back to Finland to serve the military and has just arrived in Manila in February 1991 to pursue his ambition to become a pilot. At the time of the shooting on July 13, 1991, he has just enrolled at the Manila Aero Club to become a professional pilot. He

Q But if you would just say based on the salary of a secretary in Sweden, how much would she have much earned? A. Not less than Two Thousand Dollars a month. 200 Clearly, there is no factual basis for the award of thirteen million (P13,000,000.00) pesos to the heirs of Maureen far loss of earning capacity as a probable secretary in Sweden. In any event, what was proved on record is that after graduating from high school, Maureen took up a short personality development course at the John Roberts Powers. Maureen was employed at the John Roberts Powers at the time of her death. It was her first job. In fact, she had just received her first salary, for which reason she went out with her friends to celebrate on that fateful day. However, neither the nature of her work nor her salary in said company was disclosed at the trial. Thus, to compute the award for Maureen's loss of earning capacity, we are constrained to use the minimum wage prevailing as of the date of her death (October 17, 1991), i.e., one hundred eighteen pesos (P118.00). 201 Allowing for reasonable and necessary expenses in the amount of

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P19,800.00, her net income per annum would amount to P26,859.17. 202 Hence, using the formula repeatedly adopted by this Court: 203 (2/3 x [80 — age of victim at time of death]) x a reasonable portion of the net income which would have been received by the heirs as support, 204 we fix the award for loss of earning as capacity of deceased Maureen Hultman at Five Hundred Sixty-Four Thousand Forty-Two Pesos and Fifty-Seven Centavos (P564,042.57). It also bears emphasis that in the computation of the award for loss of earning capacity of the deceased, the life expectancy of the deceased's heirs is not factored in. The rule is well-settled that the award of damages for death is computed on the basis of the life expectancy of the deceased, and not the beneficiary. 205 Lastly, appellant seeks a reduction of the award of attorney's fees in the amount of Three Million Pesos (P3,000,000.00), claiming that the same is exorbitant. We disagree. The three (3) private complainants were represented by the ACCRA law firm, with Atty. Rogelio Vinluan as lead counsel. They agreed to pay the amount of One Million (P1,000,000.00) pesos each as attorney's fees and for litigation expenses. The three criminal cases were consolidated. A continuous trial was conducted, with some hearings having both morning and afternoon sessions. The trial lasted for almost one and a half years. More than forty (40) witnesses testified during the hearings. Several pleadings were prepared and filed. A total of sixty-eight (68) documentary exhibits were presented by the prosecution. Incidents related to the trial of the cases came up to this Court for review at least twice during the pendency of the trial. 206 Given these circumstances and the evident effort exerted by the private prosecutor throughout the trial, the trial court's award of a total of Three Million (P3,000,000.00) pesos as attorney's fees and litigation expenses appears just and reasonable. VII In his last assigned error, appellant urges that the hearings conducted on the cases, where no less than forty-one (41) witnesses were presented by the parties, 207 were merely hearings on the petition for bail concerning the murder charge for the killing of Roland Chapman, and not a trial on the merits of all three (3) cases. Appellant insists that after the termination of the hearing, he still had the right to adduce evidence at the trial proper. He claims he was denied due process when the trial court considered all the cases submitted for decision after the defense waived its right to present its surrebuttal evidence. Appellant's position is untenable. This issue was resolved at the very first hearing of the cases on August 9, 1991. The incident then pending was appellant's petition for bail for the murder of Chapman. It will be remembered that, initially, there was only one murder charge against appellant since Maureen Hultman succumbed to death during the course of the proceedings on October 17, 1991. Thus, at the initial hearing on August 9, 1991, the incident for resolution was appellant's petition for bail. The prosecution sought to present the surviving victim, Jussi Leino, to testify on all three (3) charges to obviate delay and inconvenience since all three (3) charges involved one continuing incident. Appellant, through counsel, objected to the testimony of Leino insofar as the two (2) frustrated murder charges (with respect to the wounding of Leino and Hultman) were concerned. He argued that since the pending incident was the petition for bail with respect to the killing of Chapman, any testimony relative to the two (2) other charges in which bail were recommended was irrelevant.

After arguments, the defense suggested that if the prosecution would present Leino to testify on all three (3) charges, it should wait until after accused's arraingment on August 14, 1991. 208 The prosecution agreed on the condition that there shall be trial on the merits and, at the same time, hearing on the petition for bail. Defense counsel agreed. 209 As agreed upon, accused was arraigned and the prosecution presented Jussi Leino as its first witness to testify on all three (3) cases. No objection was made by the defense. 210 Subsequent proceedings likewise disprove appellant's insistence that the hearings conducted by the trial court were limited to the petition for bail, viz: 1. The prosecution presented all their witnesses and documentary evidence relative to the shooting incident, including evidence in support of the claim for damages. These witnesses were extensively cross-examined by the defense counsels. The defense never objected that evidence on damages would be unnecessary if its intention was really to limit presentation of evidence to appellant's petition for bail. 2. After the prosecution and the defense rested their cases, the trial court issued an Order 211 directing the parties to submit their Memorandum, after which "the main case as well as the petition for bail are respectively submitted for Decision and Resolution." After receipt of this Order, the defense counsel filed two (2) motions for extension of time to file the defense Memorandum. In both Motions, the defense did not object to the trial court's Order submitting for decision the main case and the petition for bail. Neither did it move for a reconsideration of this Order and notify the court that it still had witnesses to present. 3. In compliance with said Order, appellant's counsel, Atty. Rodolfo Jimenez, filed a Memorandum and Supplemental Memorandum praying for accused's acquittal. This is inconsistent with the defense's position that the hearing conducted was only on the petition for bail. If the defense insist that what was submitted for decision was only his petition for bail, he would have only prayed that he be granted bail. 4. Upon receipt of the notice of promulgation of judgment from the trial court, the defense did not interpose any objection to the intended promulgation. In fact, the defense attended the promulgation of the Decision and manifested that they were ready therefor. All these clearly show that the merits of the cases and the petition for bail were heard simultaneously and appellant acquiesced thereto. Moreover, appellant's right to present additional evidence was not abridged by the trial court. On the contrary, the records disclose that the trial court afforded the defense fair opportunity to adduce its evidence. It took the defense almost one and a half years to submit its evidence. The defense presented more than twenty (20) witnesses and several documentary evidence. It was only after the trial court rendered a decision against appellant that he filed a motion for new trial, 212 through his new counsel, Atty. Gatmaytan, Jr. For the first time, he alleged that the joint decision of the cases, both on the merits and on the petition for bail, was irregular for he was not given a chance to present further evidence to corroborate his alibi. We note that in his motion for new trial, 213 appellant did not even identify his alleged additional witnesses and the substance of their testimonies. Nor was it shown that he could not have

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produced these evidence at the trial with reasonable diligence. Appellant's motion was a patent ploy to delay the decision on his cases. His motion was properly denied by the trial court. IN VIEW WHEREOF, we hereby AFFIRM WITH MODIFICATIONS the Decision of the trial court, dated December 22, 1992, thus: (1) In Criminal Case No. 91-4605, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Homicide for the shooting of Roland John Chapman, and sentencing said accused to suffer an indeterminate penalty of imprisonment of eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum, and to pay the heirs of the said deceased the following amounts: Fifty Thousand (P50,000.00) pesos as indemnity for the victim's death; and, One Million (P1,000,000.00) pesos as moral damages. (2) In Criminal Case No. 91-4606, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Murder, qualified by treachery, for the shooting of Maureen Navarro Hultman, and sentencing him to suffer imprisonment of reclusion perpetua, and to pay the heirs of the said deceased the following amounts: Fifty Thousand (P50,000.00) pesos as indemnity for her death; Two Million Three Hundred Fifty Thousand Four Hundred SixtyOne Pesos and Eighty-Three Centavos (P2,350,461.83) as actual damages; Five Hundred SixtyFour Thousand Fourty-Two Pesos and Fifty-Seven Centavos (P564,042.57) for loss of earning capacity of said deceased; One Million Pesos (P1,000,000.00) as moral damages; and Two Million (P2,000,000.00) pesos as exemplary damages. (3) In Criminal Case No. 91-4807, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Frustrated Murder, qualified by treachery, for the shooting of Jussi Olavi Leino, and sentencing him to suffer the indeterminate penalty of eight (8) years of prision mayor as minimum, to fourteen (14) years and eight (8) months of reclusion temporal as maximum, and to pay the said offended party the following amounts: (P30,000.00) pesos as Thirty Thousand (P30,000.00) pesos as indemnity for his injuries; One Hundred Eighteen Thousand Three Hundred Sixty-Nine pesos and Eighty-Four Centavos (P118,369.84) and equivalent in Philippine Pesos of U.S.$55,600.00, both as actual damages; One Million (P1,000,000.00) pesos as moral damages; and, Two Million (P2,000,000.00) pesos as exemplary damages. (4) In all three cases, ordering said accused to pay each of the three (3) offended parties the sum of One Million Pesos (P1,000,000.00; or a total of Three Million [P3,000,000.00] pesos] for attorney's fees and expenses of litigation; and (5) To pay the costs in all three (3) cases. SO ORDERED.

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G.R. No. 112346 March 29, 1996 EVELYN vs. HON. COURT OF APPEALS and HEIRS OF HECTOR CAÑETE, respondents.

YONAHA, petitioner,

VITUG, J.:p From the decision of the Court of Appeals dismissing for lack of merit the petition for certiorari, with prayer for preliminary injunction, filed by Evelyn Yonaha against an order, dated 29 May 1992, of the Regional Trial Court1 which had granted private respondent motion for the issuance of a writ of subsidiary execution, the instant appeal was taken. In Criminal Case No. 01106-L, Elmer Ouano was charged with the crime of "Reckless Imprudence Resulting in Homicide" in an information which averred — That on April 14, 1990, at or about 11:45 A.M. in Basak, Lapulapu City, Philippines, within the jurisdiction of this Honorable Court, the aforenamed accused, while driving a Toyota Tamaraw sporting Plate No. GCX-237 duly registered in the name of Raul Cabahug and owned by EK SEA Products, did then and there unlawfully and feloniously maneuver and operate it in a negligent and reckless manner, without taking the necessary precaution to avoid injuries to person and damage to property, as a result thereof the motor vehicle he was then driving bumped and hit Hector Cañete, which caused the latter's instantaneous death, due to the multiple severe traumatic injuries at different parts of his body. 2

filed a motion to stay and to recall the subsidiary writ of execution principally anchored on the lack of prior notice to her and on the fact that the employer's liability had yet to be established. Private respondents opposed the motion. On 24 August 1992, the trial court denied petitioner's motion. On 23 September 1992, petitioner's plea for reconsideration of the denial was likewise rejected. Petitioner promptly elevated the matter to the Court of Appeals (CA-GR SP No. 29116) for review. The appellate court initially restrained the implementation of the assailed orders and issued a writ of preliminary injunction upon the filing of a P10,000.00 bond. Ultimately, however, the appellate court, in its decision of 28 September 1993, dismissed the petition for lack of merit and thereby lifted the writ of preliminary injunction. The Court of Appeals ratiocinated: We are not unmindful of the ruling in the aforecited case of Lucia Pajarito vs. Señeris, supra. — that enforcement of the secondary or subsidiary liability of employer maybe done by motion in the same criminal case, a recourse which presupposes a hearing. But even assuming that issuance of writ of subsidiary execution requires notice and hearing, we believe a hearing in the present case would be sheer rigmarole, an unnecessary formality, because, as employer, petitioner became subsidiarily liable upon the conviction of her accused driver, Elmer Ouano, and proof of the latter's insolvency. And if she had any defense to free herself from such subsidiary liability, she could have ventilated and substantiated the same in connection with her (petitioner's) motion to stay and recall the writ of subsidiary execution in question. But from her said motion, it can be gleaned that except for the protestation of violation of due process, and absence of notice to her of the motion for issuance of a writ of subsidiary execution, petitioner intimated no defense which could absolve her of subsidiary liability under the premises. Then, too, after the denial of her motion to stay and recall subject writ, petitioner moved for reconsideration but in her motion for reconsideration, she averred no exculpatory facts which could save her from subsidiary liability, as employer of the convicted Elmer Ouano.4

When arraigned, the accused pleaded "guilty" and, on 09 March 1992, the trial court pronounced its judgment — Finding therefore the accused guilty beyond reasonable doubt of the offense charged against him and taking into account the mitigating circumstances of voluntary surrender and plea of guilty which the prosecuting fiscal readily accepted, the Court hereby sentences the accused to suffer and undergo an imprisonment of 1 year and 1 day to 1 year and 8 months and to pay the heirs of the victim the sum of P50,000.00 for the death of the victim; P30,000.00 for actual damages incurred in connection with the burial and the nightly prayer of the deceased victim and P10,000.00 as attorney's fees.3 On 27 April 1992, a writ of execution was issued for the satisfaction of the monetary award. In his Return of Service, dated 07 May 1992, the MTCC Deputy City Sheriff stated that he had served the writ on accused Elmer Ouano but that the latter had manifested his inability to pay the money obligation. Forthwith, private respondents presented a "motion for subsidiary execution" with neither a notice of hearing nor notice to petitioner. Acting on the motion, nevertheless, the trial court issued an order, dated 29 May 1992, directing the issuance of a writ of subsidiary execution. The sheriff went to petitioner's residence to enforce the writ, and it was then, allegedly for the first time, that petitioner was informed of Ouano's conviction. Petitioner

In the instant appeal, petitioner additionally reminds the Court that Ouano's conviction was not the result of a finding of proof beyond reasonable doubt but from his spontaneous plea of guilt. We find merit in the petition. The statutory basis for an employer's subsidiary liability is found in Article 103 of the Revised Penal Code.5 This Court has since sanctioned the enforcement of this subsidiary liability in the same criminal proceedings in which the employee is adjudged guilty,6 on the thesis that it really is a part of, and merely an incident in, the execution process of the judgment. But, execution against the employer must not issue as just a matter of course, and it behooves the court, as a measure of due process to the employer, to determine and resolve a priori, in a hearing set for the purpose, the legal applicability and propriety of the employer's liability. The requirement is mandatory even when it appears prima facie that execution against the convicted employee cannot be satisfied. The court must convince itself that the convicted employee is in truth in the employ of the employer; that the latter is engaged in an industry of some kind; that the employee has committed the crime to which civil liability attaches while in the performance of his duties as such; and that execution against the employee is unsuccessful by reason of insolvency.7

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The assumption that, since petitioner in this case did not aver any exculpatory facts in her "motion to stay and recall," as well as in her motion for reconsideration, which could save her from liability; a hearing would be a futile and a sheer rigmarole is unacceptable. The employer must be given his full day in court. To repeat, the subsidiary liability of an employer under Article 103 of the Revised Penal Code requires (a) the existence of an employer-employee relationship; (b) that the employer is engaged in some kind of industry; (c) that the employee is adjudged guilty of the wrongful act and found to have committed the offense in the discharge of his duties (not necessarily any offense he commits "while" in the discharge of such duties); and (d) that said employee is insolvent. The judgment of conviction of the employee, of course, concludes the employer 8 and the subsidiary liability may be enforced in the same criminal case, but to afford the employer due process, the court should hear and decide that liability on the basis of the conditions required therefor by law.9 WHEREFORE, finding the order, dated 29 May 1992, as well as the order of 24 August 1992 to have been improvidently issued, said orders are hereby SET ASIDE. Petitioner shall be given the right to a hearing on the motion for the issuance of a writ of subsidiary execution filed by private respondents, and the case is REMANDED to the trial court for further proceedings conformably with our foregoing opinion. No costs. Padilla, Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.

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