Order Of Presentation Of Evid - Reference To Memorandum.docx

G.R. No. 146697

July 23, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONARDO FABRE y VICENTE, accused-appellant. VITUG, J.: Leonardo Fabre was adjudged guilty by the Regional Trial Court, Br. VI, of Prosperidad, Agusan del Sur, of raping his own daughter Marilou Fabre, and he was sentenced to suffer the extreme penalty of death. Fabre was indicted in an Information that read:1 "That on or about 4:00 o'clock in the afternoon of April 26, 1995 in the house of the accused located at Manat, Trento, Agusan del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused by force, threats and intimidation, with lewd design, did then and there willfully, unlawfully and feloniously succeed in having sexual intercourse with his own daughter MARILOU FABRE, a girl thirteen (13) years of age, of good reputation, against her will and consent to the damage and prejudice of the said victim consisting of moral, actual and compensatory damages." Accused pleaded not guilty to the crime charged. At the trial, the prosecution presented the testimony of Marilou, that of Adela Fabre, her mother and the wife of the accused, and that of Dr. Reinerio Jalalon, the doctor who examined Marilou, along with the medico-legal certificate issued by Dr. Jalalon, the sworn statement of Adela, and the criminal complaint signed by both Marilou and Adela. The defense, during its turn in the presentation of evidence, countered with the testimony of the accused himself. It also called Adela Fabre back to the witness stand. The trial court gave credence to the evidence given by the prosecution, particularly to the narration of the young complainant, expressing a quote from an observation once made by this Tribunal in one of its decision that "even when consumed with revenge, it (would) take a certain amount of psychological depravity for a young woman to concoct a story which (could) put her own father for the rest of his remaining life in jail and drag herself and the rest of her family to a lifetime of shame." 2 Convinced that the accused committed the crime of rape on his own daughter, the trial judge disposed of the case thusly:

"WHEREFORE, the Court finds accused LEONARDO FABRE y VICENTE alias Nardo, GUILTY beyond reasonable doubt as principal of the crime of RAPE as defined and penalized under Article 335 of the Revised Penal Code as amended by R.A. No. 7659 Section 11 thereof and hereby imposes upon the accused Leonardo Fabre y Vicente alias Nardo the penalty of DEATH; to pay the victim Marilou Fabre civil indemnity in the amount of FIFTY THOUSAND (P50,000.00) PESOS and the costs."3 In this automatic review, the convicted accused assigned the following alleged errors committed by the court a quo. "I "THE TRIAL COURT GRAVELY ERRED IN NOT GIVING CREDENCE TO ACCUSEDAPPELLANT'S DEFENSE OF ALIBI AND DENIAL. "II "ASSUMING IN ARGUENDO THAT ACCUSEDAPPELLANT IS GUILTY, THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH SENTENCE UPON ACCUSED-APPELLANT DESPITE THE FAILURE OF THE PROSECUTION TO ESTABLISH THE ACTUAL AGE OF MARILOU FABRE AT THE TIME OF THE COMMISSION OF THE ALLEGED RAPE."4 The defense argues, rather desperately, that the testimony of appellant should acquire added strength for the failure of the prosecution to conduct cross-examination on him and to present any rebuttal evidence. The cross-examination of a witness is a prerogative of the party against whom the witness is called.5 The purpose of cross-examination is to test the truth or accuracy of the statements of a witness made on direct examination.6 The party against whom the witness testifies may deem any further examination unnecessary and instead rely on any other evidence theretofore adduced or thereafter to be adduced or on what would be believed is the perception of the court thereon. Certainly, the trial court is not bound to give full weight to the testimony of a witness on direct examination merely because he is not cross-examined by the other party. The alibi of appellant itself would not appear to be deserving of serious consideration. His account that at the time of the alleged rape he was working at a coconut plantation, just about one kilometer away from the place of the crime, hardly would amount to much. Nor would the testimony of Adela

Fabre, his wife, merit any better regard. At first, she testified that on the day of the rape incident, she had left their house at four o'clock in the afternoon. Later, however, she changed her story by saying that she had left the house in the morning and returned only at ten o'clock that same morning, staying home the whole day thereafter. In any event, in order that alibi might prosper, it would not be enough for an accused to prove that he was somewhere else when the crime was committed; he would have to demonstrate likewise that he could not have been physically present at the place of the crime or in its immediate vicinity at the time of its commission.7 Clearly, in the instant case, it was not at all impossible nor even improbable for appellant to have been at the crime scene. Upon the other hand, the evidently candid and straightforward testimony of Marilou should be more than enough to rebut the claim of innocence made by appellant.8 On 26 April 1995, around four o'clock in the afternoon, Marilou Fabre was alone in their house in Barangay Manat, Trento, Agusan del Sur. Adela Fabre, her mother, had gone to Purok 4 to buy fish while her siblings were out strolling. After cleaning their yard, Marilou went to the adjacent palm plantation, about fourteen to fifteen meters away from their house, to gather palm oil. Marilou had been gathering palm oil for about a minute when her father, appellant Leonardo Fabre, arrived. He suddenly gripped Marilou's hands and forcibly dragged her towards the house. He closed the door and removed his daughter's underwear. He took off his pants and asked Marilou to hold his sex organ. In tears, Marilou obeyed her father. He then began touching the girl's breasts and vagina. He forced her to lie down, mounted her and sought to insert his penis into her organ. Marilou cried in pain. When after some time he still could not insert his penis into Marilou's vagina, he applied coconut oil to lubricate his and his daughter's sexual organs. He was finally able to penetrate her. Once inside her, appellant made push and pull movements until he was through with her. Appellant threatened to kill her if she would tell anybody about the sexual encounter. The young girl's mother, Adela Fabre, arrived home about five o'clock that afternoon but, remembering her father's threats, she kept mum about her ordeal. The credibility of Marilou would not be all that difficult to discern from her narration that, as so described by the prosecution, "was full of graphic details which a young provincial girl could not possibly have concocted and which could only have come from someone who must have personally experienced a brutal rape assault." She testified: "PROS. ENRIQUEZ:

"Q Now, Miss Marilou, can you recall where were you on April 26, 1995 at about 4:00 o'clock in the afternoon?

"Q While you were in your house after having been dragged by your father, what happened if any?

"A

Yes, sir.

"A He closed our house and he removed my panty, sir.

"Q

Where were you that time?

"A

In our house, sir.

"Q

What were you doing in your house?

"A

I was cleaning our yard, sir.

"Q Now, did your father find it easy to insert his penis to your vagina? "A

"Q How far is your yard where you were doing some works from your house? "A (Witness pointing a distance of around 2 to 3 meters.) "Q Now, while you were doing your work in your yard, can you recall if there was an incident that occurred? "A

Yes, sir.

"Q

What was that incident that occurred?

"A While I was gathering a palm oil my father arrived and suddenly dragged me to our house, sir. "COURT: "Q

Where is your house located?

"Q And after removing your panty, what did your father do next?

"Q And did he use anything to facilitate the insertion of his penis to your vagina? "A

Yes, sir.

"A He removed his pants and he let me hold his penis, sir.

"Q

What was that?

"Q And what did you do next after holding his penis?

"A He used coconut oil in his penis and also in my vagina so that his penis can easily insert my vagina, sir.

"A

I was crying, sir.

"Q do?

While you were crying what did your father

"A He was touching my breast and my vagina, sir. "Q

After that what did he do next?

"A

He let me lie down, sir.

"Q do?

And while lying down, what did your father

"Q Now, while his penis was in your vagina, can you tell this Honorable Court if he did anything also on top of you and while his penis was inside your vagina? "A

None, sir.

"Q

Did he make any movement?

"A

Yes, sir.

"Q

What was that movement?

"A He made a push and pull movement on my body, sir.

"A He mounted me and he inserted his penis, to my vagina, sir. "Q And what did you feel while your father was inserting his penis to your vagina?

"A At Purok 4, Manat, Trento, Agusan del Sur, Your Honor.

"A

"PROS. ENRIQUEZ:

"Q And what did you do while your father was inserting his penis to your vagina?

"Q What did you do when your father dragged you to your house?

"A

"A Because I was dragged by my father to our house I just went with him, sir.

It [took] a long time, sir.

"Q Now, while your father was doing it to you where was your mother that time? "A She was in Purok 4, Manat, Trento, Agusan del Sur, sir.

Very painful, sir.

I was crying, sir.

"Q And did you report this incident to your mother? "A Not yet sir because he told me not to tell anybody.

"Q And while you were crying what did your father do if any?

"Q So when did you had a chance to tell your mother about this incident?

"A He told me not to tell anybody because if I will do it he will kill me, sir.

"A

On May 1, 1995, sir.

"Q And what did your mother do after you reported to her this incident? "A sir."9

She reported [the matter] to the Kagawad,

It has been stressed quite often enough that the testimony of a rape victim, who is young and still immature, deserves faith and credence10 for it simply would be unnatural for a young and innocent girl to invent a story of defloration, allow an examination of her private parts and thereafter subject herself and her family to the trauma of a public trial unless she indeed has spoken the truth.11 Most especially, a daughter would not accuse her own father of such a serious offense or allow herself to be perverted if she were not truly motivated by a desire to seek a just retribution for a violation brazenly committed against her.12 Confirming Marilou's story was the medical report and testimony of Dr. Reinerio Jalalon, the government physician stationed at the Bunawan District Hospital in Agusan del Sur, who examined Marilou. Dr. Jalalon made these findings; viz: "Abrasion at (L) labia minora at 3:00 o'clock position. "Vaginal smear (-) negative for spermatozoa."13 The doctor concluded that it was possible that genital penetration on the victim did occur and that a penis could have caused the abrasion on the victim's labia minora. There is merit, however, in the plea of the defense, seconded by the prosecution, that the penalty of death imposed by the trial court should be reduced to the penalty of reclusion perpetua. Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659, provides: "The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law-spouse of the parent of the victim." While the father-daughter relationship between appellant and private complainant has been sufficiently established, the

fact of minority of the victim, although specifically averred in the information, has not been equally shown in evidence. These qualifying circumstances of relationship and minority are twin requirements that should be both alleged in the information and established beyond reasonable doubt during trial in order to sustain an imposition of the death penalty.14 Neither an obvious minority of the victim nor the failure of the defense to contest her real age always excuse the prosecution from the desired proof required by law.15 Judicial notice of the issue of age without the requisite hearing conducted under Section 3, Rule 129, of the Rules of Court, would not be considered sufficient compliance with the law. The birth certificate of the victim or, in lieu thereof, any other documentary evidence, like a baptismal certificate, school records and documents of similar nature, or credible testimonial evidence, that can help establish the age of the victim should be presented.16 While the declaration of a victim as to her age, being an exception to the hearsay proscription, would be admissible under the rule on pedigree, the question on the relative weight that may be accorded to it is a totally different matter.17 In the case at bar, the complainant claimed that she was 13 years old at the time of the incident. 18 Her mother stated, however, that she was 14.19 The birth certificate of the victim, at least already in her teens, was not presented to ascertain her true age on the bare allegation that the document was lost when their house burned down.20 No other document that could somehow help establish the real age of the victim was submitted. The Court, in sum, upholds the decision of the trial court convicting Leonardo Fabre of the crime of rape but must reduce, on account of insufficiency of proof on the qualifying circumstance of minority of the victim, the penalty of death to reclusion perpetua. With respect to the civil liability, the Court sustains the award of P50,000.00 civil indemnity but, in keeping with prevailing jurisprudence, must additionally order the payment of P50,000.00 moral damages21 and P20,000.00 exemplary damages.22 WHEREFORE, the judgment of the court a quo finding LEONARDO FABRE guilty of rape is AFFIRMED but the sentence of death therein imposed should be, as it is hereby so, reduced to reclusion perpetua. The award of P50,000.00 civil liability in favor of victim, Marilou Fabre, is sustained; however, appellant is further ordered to pay to the victim the amounts of P50,000.00 moral damages and P20,000.00 exemplary damages. SO ORDERED.

2. The accused was at the time of the incident in the vicinity thereof; 3. The victim in this case, Mayia P. Ponseca, was born on 23 May 1990 as evidenced by her birth certificate; G.R. No. 142556

February 5, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JESUS PEREZ y SEBUNGA, accused-appellant. DECISION PER CURIAM: For automatic review is the Decision1 dated October 26, 1999 of the Regional Trial Court of Iba, Zambales, Branch 69, in Criminal Case No. RTC-2116-I, finding appellant Jesus S. Perez ("appellant" for brevity), guilty of raping Mayia P. Ponseca ("Mayia" for brevity) and imposing on appellant the death penalty. On January 22, 1997, the Second Assistant Provincial Prosecutor2 of Zambales filed an Information3 charging appellant with the crime of rape "penalized under Article 335 of the Revised Penal Code in relation to Section 5 (b), Article III of Republic Act No. 7610," committed as follows: "That on or about the 17th day of January, 1997 at 12:00 noon at Sitio Baco, Brgy. Macarang, in the Municipality of Palauig, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with lewd design and by means of coercion, inducement and other consideration, did then and there, wilfully (sic), unlawfully and feloniously have sexual intercourse with one Mayia P. Ponseca, a minor of 6 years old, without her consent and against her will, to the damage and prejudice of the latter." Upon arraignment, appellant, assisted by counsel de officio Atty. Genaro N. Montefalcon, pleaded not guilty to the offense charged.4 Subsequently, the trial court allowed the withdrawal of Atty. Montefalcon as counsel for health reasons. The trial court appointed Atty. Roberto Blanco as appellant’s counsel de oficio.5 At the pre-trial, the prosecution and defense stipulated on the following facts: "1. The identity of the accused;

4. That after the incident, the child was subjected to a medico-legal examination to which a medicolegal certificate was issued by Dr. Editha Divino. The prosecution marked in evidence the birth certificate of the victim Mayia O. Ponseca as Exhibit ‘A’, and the medicolegal certificate issued by Dr. Editha Divino as Exhibit ‘B’."6 Thereafter, trial ensued. The prosecution presented the following witnesses: the victim, Mayia Ponseca; the victim’s mother, Hermie Ponseca; the victim’s father, Osias Ponseca; Virginia Espejo Giron; and Dr. Editha dela Cruz Divino. On the other hand, the defense presented appellant and his employer, Bartolome Tolentino. The Office of the Solicitor General ("OSG" for brevity) summarized the prosecution’s version of the incident in the appellee’s brief, to wit: "On January 17, 1997, about noontime, in Sitio Baco, Barangay Macarang, Palauig, Zambales, six-year old Mayia Ponseca was walking along Sulok on her way to her house in Sitio Camiling when appellant Jesus Sebunga Perez approached her (pp. 7-8, TSN, December 15, 1998). Appellant introduced himself as "Johnny" and immediately afterwards, strangled her neck and boxed her abdomen (p. 10, TSN, December 15, 1998). Still in shock, Mayia fell down (id.). At that point, a dog arrived and barked at them. Appellant then proceeded to lower his black denim pants while simultaneously removing Mayia’s panty. He then inserted his penis inside Mayia’s vagina (p. 11, id.). Mayia felt excruciating pain in her private parts (sic) but was not able to repel her aggressor whose strength and weight totally engulfed her. Her only recourse was to cry while her young body was being ravished (p. 13, id.). After satisfying his beastly desires, appellant raised his pants and ran away (p. 14, id.). Notwithstanding that her vagina was bleeding profusely and her dress now covered with her own blood, Mayia managed to stand up and seek help. She ran to the house of Virginia Giron, which was only fifty (50) meters away from the scene of the crime. In fact, Giron was outside when she heard her dog barking (apparently, it was the same dog barking at appellant while he was consummating his lust on Mayia, pp. 2-3, TSN, January 12, 1999; p. 11, TSN, December 15, 1998). Looking at the

direction of the noise, she saw a confused Mayia approaching her with blood dripping from her private parts and thighs. When Giron asked Mayia what happened, the latter shouted "ni-rape ako, ni-rape ako" (p. 4, TSN, January 4, 1999). Giron then summoned her husband and other companions to look for Mayia’s attacker but was unable to find him. Giron then proceeded to Hermie Ponseca and Osias Ponseca, Mayia’s parents, to inform them of what happened (p. 5, TSN, January 5, 1999; p. 2, TSN, January 19, 1999). When her parents asked Mayia if she knew her assailant, the latter answered the name "Johnny." (id.) The couple brought their daughter to the President Ramon Magsaysay Memorial Hospital for medical examination (p. 2, TSN, February 24, 1999). She was examined by Dra. Editha Dela Cruz Divino, who issued a medico-legal certificate dated January 23, 1997 stating the following: a. Bleeding of genitalia coming from median laceration at the vaginal floor around four (4) centimeters in size. Possible cause, a fall and then hitting a sharp object and also an alleged sexual assault (p. 4, TSN, February 24, 1999). b. Genitalia had hymenal lacerations at 3, 6, 9 and 12 o’clock positions. (pp. 4-6 id.) Because of the extent of the damage on her genitals, Mayia undertook an IV sedation operation to repair her lacerations (p. 6, id.) During her confinement at the hospital, the Ponseca couple reported the incident to the Palauig PNP Police Station and recounted their daughter’s narration including the name of the culprit as "Johnny" who, according to their neighbors, was a worker at the fishpond of Bartolome Tolentino (pp. 11-12, TSN, January 5, 1999). Police operatives then proceeded to the said fishpond and arrested appellant. After her discharge from the hospital, Mayia learned that appellant was already apprehended (pp. 3-8, TSN, January 5, 1999). In the police station, she was able to positively identify the appellant as the person who sexually assaulted her (p. 18, TSN, December 15, 1998)."7 Appellant denied raping Mayia. Appellant testified that on the date of the alleged rape incident, he was working at a fishpond at Macarang, Zambales. He heard of the rape of a young girl from his manager, Bartolome Tolentino ("Tolentino" for brevity).8 Appellant further testified that on January 25, 1997, policemen went to the fishpond where he worked. The policemen arrested appellant and brought him to the police station at Palauig. Later, the policemen took him to the municipal jail of Palauig.

On cross-examination, appellant testified that his nickname is not "Johnny" but "Jessie."9 He testified that on January 17, 1997, at around 12 o’clock noon, he left the fishpond and walked home to Barangay Alwa which was about thirty meters from the fishpond.10 The defense formally offered the testimony of witness Tolentino to prove that appellant was employed as caretaker of Tolentino’s fishpond for almost two years before the alleged rape incident. Appellant was purportedly of good moral character while employed as a fishpond caretaker. The prosecution admitted the offer of testimony. Hence, the trial court dispensed with the testimony of Tolentino in open court.11 After trial, the court a quo rendered judgment12 on October 26, 1999, the dispositive portion of which reads: "WHEREFORE, foregoing considered, accused Jesus Perez y Sabung (SIC) is found GUILTY beyond reasonable doubt of the crime of Statutore Rape, defined and penalized under Article 335 of the Revised Penal Code with the qualifying circumstance that the victim was only 6 years old at the time of the commission of the offense, in relation to Section 5 (b), Article III, Republic Act 7610, and is sentenced to suffer the penalty of DEATH. Jesus Perez is directed to pay to the private complainant the amount of Seventy-Five Thousand Pesos (P75,000.00) as and by way of civil indemnity and Fifty Thousand (P50,000.00) as and by way of moral damages."

As a rule, leading questions are not allowed. However, the rules provide for exceptions when the witness is a child of tender years13 as it is usually difficult for such child to state facts without prompting or suggestion.14 Leading questions are necessary to coax the truth out of their reluctant lips. 15 In the case at bar, the trial court was justified in allowing leading questions to Mayia as she was evidently young and unlettered, making the recall of events difficult, if not uncertain.16 As explained in People v. Rodito Dagamos:17 "The trend in procedural law is to give wide latitude to the courts in exercising control over the questioning of a child witness. The reasons are spelled out in our Rule on Examination of a Child Witness, which took effect on December 15, 2000, namely, (1) to facilitate the ascertainment of the truth, (2) to ensure that questions are stated in a form appropriate to the developmental level of the child, (3) to protect children from harassment or undue embarrassment, and (4) avoid waste of time. Leading questions in all stages of examination of a child are allowed if the same will further the interests of justice."

Q Were there persons around in the place when Johnny strangled you? A None, ma’m. Q So, what did he do then after he strangled you? A He boxed me on my stomach, ma’m. Q When he boxed you on your stomach, what happened to you? A I was shocked, ma’m. Q Did you fall down? A Before that, I was already lying down, so when he boxed me, I was shocked.

The Court has repeatedly stated that it is highly inconceivable for a child of tender age, inexperienced in the ways of the world, to fabricate a charge of defloration, undergo a medical examination of her private part, subject herself to public trial, and tarnish her family’s honor and reputation, unless she was motivated by a strong desire to seek justice for the wrong committed against her.18

Q You said that you were already lying down. Who made you lie down?

Mayia recounted her harrowing experience, thus:

A Because he strangled me and boxed me.

A The person, ma’m. Q Why were you shocked, Mayia?

Hence, this automatic review. In his brief, appellant raises the following lone assignment of error: "THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE APPELLANT HAS BEEN PROVEN BEYOND REASONABLE DOUBT."

"Q What time was this when Johnny introduced himself to you?

Q After he boxed you on your abdomen, what happened? What else did he do to you?

A I do not recall, ma’m.

A There was a dog that arrived in the place and it barked at us. Then Johnny moved in a hurry by penetrating my private part and after he dressing (SIC) me, he ran away.

Q Was it in the morning, noontime or in the afternoon or in the evening?

Q You said that Johnny penetrated your private part. With what instrument did he use in penetrating your private part?

Appellant contends that his identification in open court by Mayia was highly irregular.l^vvphi1.net Appellant points out that the prosecutor had already identified him as the man wearing an orange t-shirt when the prosecutor asked Mayia to identify her alleged rapist. Appellant stresses that when Mayia identified him in open court, she referred to him as a man named "Johnny" and did not give any description or any identifying mark. Moreover, appellant claims he was alone in the cell when Mayia identified him after the police arrested him. Appellant bewails that the identification was not done with the usual police line-up.

A Noontime, ma’m.

Q After that when Johnny said, ‘Ako si Johnny’, what happened?

A A black denim, ma’m.

Appellant’s contention is untenable.

A He strangled (sinakal) me.

Q When he used his penis in entering your private part, did he remove his pants?

Q So, when Johnny said, ‘Ako si Johnny,’ what did you do? A None, ma’m.

A His penis, ma’m. Q What was he wearing at that time?

A No, ma’m.

A At Sulok, ma’m.

Q What did he do with his pants?

Q Sulok is a place?

A He brought out his penis, ma’m.

A Yes, ma’m.

Q You mean to say Mayia, he lowered his pants?

Q Do you have any companion when this man introduced himself to you?

A Yes, ma’m. A None, ma’m. Q What about you, were you wearing any panty? Q How did he introduce himself to you? A Yes, ma’m. Q What was your clothes at that time? A A dress, ma’m. Q When his penis entered your vagina Mayia, did he remove your panty? A Yes, ma’m."19 The identity of appellant as the rapist has been established by the clear, convincing and straightforward testimony of Mayia. During the trial, she testified as follows:

A The man introduced himself to me by saying, ‘Kilala mo ba ako? Hindi po. Ako si Johnny.’"20

A Yes, ma’m. Q Do you know his name?

"Q You were talking of a certain Johnny. s this Johnny in court now? A Yes, sir. Q Can you point to him? A Yes, sir.

A (Witness pointing to the person sitting at the accused bench and when asked of his name answered Jesus Perez) Q Is this Johnny whom you point to the person whom you saw in that ‘Sulok?’

A Yes, ma’m. A Yes, sir." 21 Q What is his name? A Johnny, ma’m. Q Why do you know him? A Because he introduced himself to me. Q Where did he introduced himself to you?

Appellant’s claim that the police improperly suggested to Mayia to identify appellant is without basis. True, Mayia did not identify appellant in a police line-up when Mayia identified appellant in his cell. However, appellant, in his testimony admitted that he had two other companions in his cell.25 Moreover, the Court has held that there is no law requiring a police line-up as essential to a proper identification. Even without a police line-up, there could still be a proper identification as long as the police did not suggest such identification to the witnesses. 26 The records are bereft of any indication that the police suggested to Mayia to identify appellant as the rapist.

The trial court further asked Mayia:

Q Point to him. "Q Mayia, there is a man sitting wearing orange tshirt, do you know this man?

the sexual assault leaves no doubt as to the correctness of her identification for a man and woman cannot be physically closer to each other than during the sexual act.24 Thus, even if Mayia did not give the identifying marks of appellant, her positive identification of appellant sufficed to establish clearly the identity of her sexual assailant.

Mayia’s simple, positive and straightforward recounting on the witness stand of her harrowing experience lends credence to her accusation. Her tender age belies any allegation that her accusation was a mere invention impelled by some ill-motive. As the Court has stressed in numerous cases, when a woman or a child victim says that she has been raped, she in effect says all that is necessary to show that rape was indeed committed.22 Mayia had a clear sight of appellant’s face since the rape occurred at "noontime."23 Her proximity to appellant during

Mayia’s identification in open court of appellant as her rapist dispels any doubt as to the proper identification of appellant. Mayia positively identified and pointed to appellant as her rapist. We are satisfied that her testimony, by itself, is sufficient identification of her rapist. As held in People v. Marquez:27 "xxx. Indeed, the revelation of an innocent child whose chastity was abused deserves full credit, as the willingness of complainant to face police investigation and to undergo the trouble and humiliation of a public trial is eloquent testimony of the truth of her complaint. Stated differently, it is most improbable for a five-year old girl of tender years, so innocent and so guileless as the herein offended party, to brazenly impute a crime so serious as rape to any man if it were not true." In his Reply Brief, appellant contends that even assuming that the guilt of appellant has been proven beyond reasonable doubt, the trial court erred in imposing the death penalty. Appellant maintains that the death penalty cannot be imposed on him for failure of the prosecution to prove Mayia’s age by independent evidence. Appellant points out that while Mayia’s birth certificate was duly marked during the pre-trial, it was not presented and identified during the trial. Appellant asserts that Mayia’s minority must not only be specifically alleged in the Information but must also be established beyond reasonable doubt during the trial.1awphi1.nét Appellant’s argument deserves scant consideration. At the pre-trial, the parties mutually worked out a satisfactory disposition of the criminal case. Appellant, assisted by

counsel, signed a Pre-Trial Agreement28 which, incorporated in the Pre-Trial Order, stated that:

as

"x x x. 3. The victim in this case, Mayia P. Ponseca was born on 23 May 1990 as evidenced by her birth certificate; x x x." (Emphasis supplied) During the pre-trial, the prosecution marked in evidence Mayia’s birth certificate as Exhibit "A". 29 The prosecution submitted its Offer of Evidence30 which included Exhibit "A", a certified true copy of Mayia’s birth certificate. The trial court admitted Exhibit "A"31 without any objection from the defense. The purpose of pre-trial is to consider the following: (a) plea bargaining; (b) stipulation of facts; (c) marking for identification of evidence of the parties; (d) waiver of objections to admissibility of evidence; (e) modification of the order of trial if the accused admits the charge but interposes lawful defenses; and (f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case.32 Facts stipulated and evidence admitted during pretrial bind the parties. Section 4, Rule 118 of the Revised Rules of Criminal Procedure33 provides: "SEC. 4. Pre-trial order. - After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of, and control the course of the action during the trial, unless modified by the court to prevent manifest injustice." (Emphasis supplied) Moreover, Mayia herself testified in open court as to her age. During the trial on December 15, 1998, which was about twenty-three (23) months after the rape incident occurred on January 17, 1997, Mayia testified on cross-examination that she was "8 years old last May 23."34 Thus, by deduction, since Mayia was born on May 23, 1990 as shown in her birth certificate, she was about six (6) years and seven (7) months old on January 17, 1997, the day the crime took place. We rule that the prosecution has indisputably proven that Mayia was below seven years old at the time appellant raped her.1a\^/phi1.net Finally, the trial court was correct in imposing the death penalty on appellant. Under Article 33535 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659,36 the death penalty shall be imposed if the crime of rape is committed against a child below seven (7) years old. Mayia was six (6) years and seven (7) months old when appellant raped her.

If rape is qualified by any of the circumstances 37 warranting the imposition of the death penalty, the civil indemnity for actual or compensatory damages is mandatory.38 Following prevailing jurisprudence, the civil indemnity is fixed at P75,000.00. In addition, moral damages of P50,000.00 should also be awarded to the rape victim without need for pleading or proving it.39 WHEREFORE, the Decision dated October 26, 1999 of the Regional Trial Court of Iba, Zambales, Branch 69, in Criminal Case No. RTC-2116-I, finding appellant Jesus S. Perez guilty beyond reasonable doubt of the crime of qualified rape, sentencing him to suffer the death penalty,40 and ordering him to pay the victim Mayia P. Ponseca the amount of P75,000.00 as civil indemnity and P50,000.00 as moral damages, is AFFIRMED in toto. In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of the Republic Act No. 7659, upon the finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President of the Philippines for possible exercise of the pardoning power. SO ORDERED.

G.R. No. 139412

On July 8, 1996, between 5:00 p.m. to 6:00 p.m., Levy Avila, a teacher, was in his house doing some repairs. He noticed Jaime, Jr. and Ronald talking by the roadside near the gate of his (Levy’s) house. Levy overheard the two planning to go to Diosdado’s house. Jaime, Jr. and Ronald even told Levy: "Ayaw namin kasing inaasar." Suspecting that the two were intending to harm Diosdado, Levy urged them to amicably settle their differences with Diosdado.

April 2, 2003

THE PEOPLE OF THE PHILIPPINES, appellee, vs. JAIME CASTILLANO, SR. alias "Talino," RONALD CASTILLANO alias "Nono" and JAIME CASTILLANO, JR. alias "Junjun," accused, RONALD CASTILLANO alias "Nono" and JAIME CASTILLANO, JR. alias "Junjun," appellants. CALLEJO, SR., J.: 1

This is an appeal from the Decision of the Regional Trial Court of Pili, Camarines Sur, Branch 31, in Criminal Case No. P-2542, convicting appellants Ronald Castillano alias "Nono" and Jaime Castillano, Jr. of murder, meting on each of them the penalty of reclusion perpetua and ordering them to pay, jointly and severally, damages to the heirs of the victim Diosdado Volante. The Evidence or the Prosecution Diosdado Volante, who eked out a living as a farmer, his wife Luz,2 and their four children lived in their farmland located in the outskirt of Sitio Danawan, Barangay Sagrada, Bula, Camarines Sur. About 200 meters away from Diosdado’s farmland was the farmhouse of Jaime Castillano, Sr.3 He tasked his son, Jaime Castillano, Jr., to take care of the farmhouse and allowed him to reside there.4 Jaime, Sr., his wife Concepcion, their son Ronald (Nono) Castillano and other children lived at their family residence in Sagrada, Bula, Camarines Sur, approximately three kilometers away from their farmhouse in Sitio Danawan.5 Sometime in the early part of June 1996,6 Jaime, Sr. fired his gun indiscriminately. Afraid that a stray bullet might hit any member of his family, Diosdado accosted Jaime, Sr. and asked him to desist from firing his gun indiscriminately. Jaime, Sr. resented the intrusion. He remonstrated that neighbors did not even complain about him firing his gun. A heated altercation ensued. Jaime, Sr. then fired his gun towards the house of Diosdado. The incident germinated deep animosity between the two and their respective families.7 Jaime, Sr. always carried a bolo whenever he passed by the house of Diosdado.

At around 8:00 p.m., Luz and Diosdado were about to retire for the night. Their children were already fast asleep. Diosdado was tired after a day’s work of spraying chemicals at the rice field. He reclined on a bamboo bench near the main door of their house. A kerosene lamp lighted the house. Suddenly, Luz heard voices near their house. She saw Jaime, Sr. holding a flashlight and his two sons, Jaime Jr. and Ronald, on their way to the house. Luz immediately alerted her husband and told him that the Castillanos were in their yard. However, Diosdado was nonchalant and simply told Luz not to mind them. All of a sudden, Jaime, Sr. fired his gun at Diosdado’s house. Terrified, Luz hastily carried her baby daughter Mary Jane, sought cover and hid near the rear door. She was about five meters away from her husband when the Castillanos barged inside their house and ganged up on Diosdado. Jaime, Jr. and Ronald, armed with bladed weapons, took turns in stabbing Diosdado. Ronald stabbed Diosdado on the right side of his breast, right thigh and on the back. He also struck him with a one-meter long pipe. Not satisfied, Jaime, Sr. fired his gun hitting the right thigh of Diosdado. Luz was so shocked by the sudden turn of events. To silence her one year old baby, she breastfed her. As soon as she could, Luz fled to the rice paddies where she hid for a time. The Castillanos fled on board a jeep parked in the NIA road about 200 meters from the house of Diosdado. When Luz returned to their house, she saw her husband sprawled on the ground in a pool of his own blood. Diosdado, at the point of death, asked her for help. Not knowing what to do, Luz lost no time and ran to the house of their neighbor Celedonio Espiritu for help. Celedonio rushed to the Bula Police Station and reported the incident.

the boundary in Sto. Domingo where they put up a checkpoint. The police officers inspected every vehicle that passed by. At around 12:45 a.m., SPO4 Javier halted a passenger jeepney. On board were Jaime, Sr. and his two sons, Jaime Jr. and Ronald, each of whom carried a bag containing their clothes. The policemen brought the Castillanos to the police station.16 The bags of Jaime, Jr. and Ronald were turned over to the police investigators. The three were placed under arrest for the killing of Diosdado. The policemen submitted their investigation report.17 In the meantime, at 7:00 a.m., Dr. Evangeline Consolacion, the Municipal Health Officer of Bula, conducted an autopsy on the cadaver of Diosdado. Her autopsy report revealed the following findings: External Findings 1. Incise Wound 3 cm Superior pinna R ear 2. Incise woud (sic) 10 cm. from nasal bridge extending to mandible R 3. Stab wound 2 cm.x 5 cm. Epigastrium R 4. Stab wound 2 cm.x 4 cm. Epigastrium L 5. Stab wound 2.5 cm. Middle third Arm R 6. Stab wound 2cm x 5 cm. posterior Back. 7. Amputating middle third finger L

A team composed of SPO4 Jaime Javier, SPO3 Jaime Bellano and SPO3 Nilo Fornillos,8 the duty investigator,9went to the crime scene10 to conduct an on-the-spot investigation. Photographs were taken of the cadaver. 11 SPO3 Fornillo drew rough sketch12 of the scene. The policemen saw a bolo at the place where Diosdado was sprawled near the door of their house. A scabbard of a bolo was found a meter away from the house of Diosdado. 13 The policemen also found a bullet hole on the wall of the house.14 Thereafter, the cadaver was placed on a hamak[hammock] brought to the police station. The police investigators turned over the scabbard and bolo to the desk officer of the police station.15 From the police station, SPO4 Javier, SPO3 Bellano and Sgt. Rogelio Palacio boarded their mobile police car and set out a manhunt for the malefactors. They proceeded towards

8. Hacked wound posterior ankle L 9. Gunshot wound POE 2 x 2cm. with contusion collar medial aspect middle third R thigh No point of exit noted Internal Findings: Fracture femur with Foreign body bullet lodge in middle third femur with hematoma about about 100 cc R thigh

Cause of Death; Hypovolemia secondary to Multiple Stab Wound18 The doctor recovered a slug from the right thigh of Diosdado. She later signed the victim’s post-mortem certificate of death.19 Senior Inspector Edgardo B. Sambo, Chief of Police of Bula Police Station, filed with the Municipal Trial Court of Bula, Camarines Sur, a criminal complaint 20 for murder against the Castillano brothers.21 Judge Francisco O. Tolentino conducted the preliminary examination and thereafter issued an order of arrest against the Castillanos.22 No bail was recommended for their provisional release. On July 9, 1996, Luz gave a sworn statement to the police investigators.23 On July 10, 1996, the accused were transferred to the Tinangis Penal Farm. Senior Inspector Sambo requested the PNP-CLRU5 Provincial Unit to conduct a paraffin test on the Castillanos.24 On July 12, 1997, Major Lorlie Arroyo, the Head Forensic Chemist of PNP-Region 5, conducted the paraffin test on the Castillanos. Ronald was found positive for gunpowder residue.25 Jaime, Sr. and Jaime, Jr. were found negative for gunpowder residue. The MTC issued a subpoena requiring the accused to submit their counter-affidavits from notice thereof. However, the accused failed to submit any counter-affidavit.26 On August 2, 1996, an Information for murder was filed against Jaime, Sr., Ronald and Jaime Jr. with the Regional Trial Court of Pili, Camarines Sur, Branch 31. The accusatory portion of the Information reads: That on or about the 8th day of July 1996 at about 8:00 o’clock in the evening at Barangay Sagrada, Municipality of Bula, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another with intent to kill with treachery and evident premeditation armed with a handgun, bladed weapon and piece of wood did then and there wilfully, unlawfully and feloniously attack, assault and shot and stab one DIOSDADO VOLANTE y LOZANO inflicting upon the latter several mortal wounds on the different parts of his body which caused his instantaneous death, to the damage and prejudice of the heirs of said Diosdado Volante the amount of which to be proven in Court. ACTS CONTRARY TO LAW.

27

Upon their arraignment28 on August 29, 1996, accused Jaime Sr., Jaime, Jr and Ronald, duly assisted by counsel de parte, Atty. Avelino Sales Jr., pleaded not guilty to the offense charged. Thereafter, trial on the merits ensued. Luz testified that when Diosdado was still alive, he had an annual income of over P65,000. She spent P18,000 for the funeral services,29 P300 for religious services,30 P9,111 for food and other expenses31 during her husband’s wake and funeral. She suffered sleepless nights and mental anguish for his sudden death.

Jose Del Socorro corroborated the testimony of Ronald. He testified that on July 8, 1996, at about 5:00 p.m. he was on his way home when he met Diosdado whom he noticed to be inebriated and unruly Diosdado was throwing dried mud at the farmhouse of the Castillanos and challenging the occupants of the farmhouse to a fight. He advised Diosdado to stop what he was doing and warned him that he was only inviting trouble. Diosdado told him to mind his own business and not to intervene. Jose thereafter left Diosdado and went, home.34 When Jose arrived home, Dominador Briña was waiting for him. He and Dominador talked business for a while and subsequently had dinner. After some time, Jaime, Jr. and Ronald arrived at Jose’s house.

The Defenses and Evidence of the Accused Ronald admitted when he testified that he killed Diosdado but insisted that he did so in self-defense and in defense of his brother Jaime, Jr. He asserted that his father Jaime, Sr. and brother Jaime, Jr. had nothing to do with Diosdado’s death. Ronald alleged that on September 8, 1996, at about 7:30 p.m., he was driving a passenger jeepney on his way to the poblacion of Bula. Jaime, Jr. flagged down the jeepney. He boarded the jeepney and told Ronald that he was instructed by their mother to go to the house of Jose del Socorro to ask the latter to accompany them to their farmhouse in order to fetch Gilda Albes. Ronald was armed with a .38 paltik gun, while Jaime, Jr. was armed with a bolo sheathed in a scabbard. They fetched Jose and then Ronald parked the jeepney at the NIA road. Jaime, Jr., who was holding a flashlight, walked along the footpath on top of a pilapil (a narrow earthen barrier between two rice fields). Ronald and Jose walked behind Jaime, Jr. As they passed by the house of Diosdado, a man suddenly shouted: "you shit, I have await (sic) for you for a while, why just now." Surprised, Jaime, Jr. forthwith focused his flashlight towards the man who shouted. He was aghast when he saw Diosdado armed with a bolo running towards them and about to attack them with his bolo. Ronald shoved Jaime, Jr. who fell on the muddy rice paddies below the pilapil. Ronald forthwith shot Diosdado. Diosdado took a step but fell on a kneeling position. Diosdado brandished his bolo. Ronald shot Diosdado once more but his gun misfired. To defend himself, Ronald took Jaime, Jr.’s bolo and hacked Diosdado to death.32 Ronald then fled from the scene and ran to the jeepney at the NIA road. Jaime, Jr. and Jose boarded the jeep and left the scene. Ronald threw the bolo along the way. He threw his gun into a rice farm in Danawan. Jaime, Jr. corroborated the testimony of his brother. He, however, testified that he did not see his brother hack and kill Diosdado. He claimed that when Ronald got hold of his bolo, he ran away and proceeded to their jeepney which was then parked at the roadside. Minutes later, Ronald followed. They then hastily went home to Sagrada and told their father Jaime, Sr. of the incident.33

Concepcion Castillano testified that on July 8, 1996 at around 5:00 a.m., her son Jaime, Jr. arrived home and told her that Diosdado threw stones at their farmhouse and challenged everybody to a fight. She felt nervous and reported the incident to the police and caused the same to be entered in the police blotter.35 Thereafter, she went home and told her sons Jaime, Jr. and Ronald to immediately fetch Gilda. She, likewise, instructed her sons to first drop by the house of Jose so that the latter could accompany them to the farmhouse. Jaime, Sr. vehemently denied any participation in the killing of Diosdado. He claimed that at the time of the alleged incident, he was at their house in Sagrada, bedridden due to his debilitating diabetes. He narrated to the trial court his medical history and his confinement at the Mandaluyong Medical Center sometime in 1994.36 He presented documents and receipts showing that he had been and is still under medication.37 He declared that upon learning from his son Ronald that the latter killed Diosdado, he advised his sons to look for a lawyer for legal representation. He told the trial court that at around 11:30 p.m., he and his two sons had decided to go to Andangnan in order to meet a cousin of his who knew of a lawyer named Atty. Rotor. As they traversed the road to Andangan, they were stopped by some policemen at a checkpoint and were invited to the police station where they were investigated and eventually incarcerated.38 Gilda Abes, the last witness for the defense, affirmed that she was the girlfriend of Jaime, Jr. She told the trial court that on July 8, 1996 she was at the farmhouse of the Castillanos. She corroborated the testimony of Jose that Diosdado was combative and drunk. According to Gilda, Jaime, Jr. left the farmhouse before sundown to go to his parent’s place at Sagrada. Jaime, Jr. never returned to the farmhouse that night. Gilda learned of the incident the next morning when she went home.39 The Verdict of the Trial Court

On December 22, 1998, the trial court rendered a decision convicting Jaime, Jr. and Ronald of murder qualified by evident premeditation and treachery. The trial court exonerated Jaime, Sr. of the crime on reasonable doubt. The trial court gave no credence to Ronald’s claim that he acted in self-defense. The decretal portion of the decision reads: WHEREFORE, in view of all the foregoing, judgment is hereby rendered, finding the two (2) accused RONALD CASTILLANO and JAIME CASTILLANO, JR. guilty beyond reasonable doubt of the offense of MURDER and they are hereby sentenced to suffer the penalty of imprisonment of RECLUSION PERPETUAwith all the accessory penalties imposed thereby. Further, as civil liability, the said two (2) accused are hereby ordered to pay the legal heirs of the late Diosdado L. Volante, through his widow Luz R. Volante, the total sum of ONE HUNDRED SEVENTY-SEVEN THOUSAND FOUR HUNDRED TWENTY ONE PESOS (P177,421.00) Philippine Currency as actual and moral damages including death indemnity, with costs against both accused.

evidence and not on the weakness of the evidence of the prosecution for by pleading self-defense, the accused thereby admits having killed the victim and he can no longer be exonerated of the crime charged if he fails to prove the confluence of the essential requisites for self-defense and defense of a relative.43 Appellant Ronald failed to discharge his burden. First. After shooting and stabbing Diosdado, appellant Ronald fled from the situs criminis. Flight from the situs of the crime is a veritable badge of guilt and negates his plea of self-defense.44 Second. Appellant Ronald threw away his paltik .38 gun and the bolo he used in hacking Diosdado as he fled from the scene of the crime instead of surrendering the same to the police authorities. Appellant Ronald admitted that he had no license for the gun: Q

Where is that gun now that you use?

The accused Jaime Castillano, Sr. is hereby acquitted on the ground of reasonable doubt.

A I do not know, Your Honor, I think I was able to throw it away.

SO ORDERED.40

Q

Where?

The accused, now appellants, interposed their appeal from the decision of the trial court contending that it committed reversible errors:

A

At Danawan, Your Honor.

Q

Danawan, is that a lake?

(a) in rejecting appellant Ronald’s plea of self-defense; and (b) in not acquitting appellant Jaime, Jr. of the crime charged for failure of the prosecution to prove his guilt beyond reasonable doubt.

A

No, Your Honor, it is a ricefarm.

Q

What kind of gun is this?

Anent the first issue, appellant Ronald posits that he adduced proof that he acted in self-defense when he stabbed the victim.

A

Paltik .38, Your Honor.45

The Court disagrees with appellant Ronald. The Court has consistently held that like alibi, self-defense is inherently weak because it is easy to fabricate. 41 In a case where selfdefense and defense of relatives is invoked by the accused, the burden of evidence is shifted to him to prove with clear and convincing evidence the essential requisites of selfdefense, namely (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed to repel or prevent it; and (c) lack of sufficient provocation on the part of the person defending himself. There can be no complete or incomplete self-defense or defense of relatives unless the accused proves unlawful aggression on the part of the victim.42 The accused must rely on the strength of his

Q By the way, where is that bolo that you used in hacking and stabbing Diosdado Volante?

ATTY. BALLEBAR:

A I do not know anymore because I was able to throw it away also when I ran away. Q

Where is that place where you throw it?

A

It was by the NIA road.

Q You mentioned also a while ago that this gun that you said is a "paltik" and you throw it away also, is it not? A

Yes, Ma’am.

Q And that gun had been in your possession the whole day that you are driving up to the time you shot the victim, Diosdado Volante? A

Yes, Ma’am.

Q firearm? A

Do you have license to possess that

None, Ma’am.46

The failure of appellant Ronald to surrender the bolo and his gun to the police authorities belies his claim of self-defense. Third. Appellant Ronald failed to report the incident to the police authorities even when they arrested him. Curiously, he failed to inform the police officers who arrested him that he acted in self-defense when he shot and stabbed the victim The resounding silence of the appellant is another indicium of the incredibility of his defense.47 Moreover, the records show that the municipal trial court issued a subpoena on July 9, 1996 requiring appellant Ronald to submit his counter-affidavit but he refused and/or failed to submit the same despite service on him of the subpoena. It was only during the trial that appellant Ronald, for the first time, invoked self-defense and defense of a relative. Fourth. The cadaver of the victim was found inside his house when the police investigators arrived.48 This belies appellant Ronald’s claim that he shot the victim in the rice paddies, near his house and that he (appellant Ronald) took the bolo of appellant Jaime, Jr. and used it to stab the victim. Appellant Ronald failed to prove his claim that when the police investigators arrived in the victim’s house, they carried his (the victim’s) body from the rice paddies to the house. The only evidence adduced by appellant Ronald was his testimony which is hearsay, and besides being hearsay, it is speculative and mere conjecture. Fifth. Appellant Ronald hacked the victim no less than five times. Two of the stab wounds sustained by the victim were at his back and posterior portion of his left ankle. The number and nature of the wounds of the victim negate the appellant’s claim that he shot the victim in self-defense. On the contrary, they prove that appellant Ronald was determined to kill the victim.49

Appellant Jaime, Jr. avers that the prosecution failed to prove his guilt beyond reasonable doubt of the crime charged. He asserts that the testimony of Luz Volante, the widow of Diosdado, was inconsistent with her testimony during the preliminary examination in the municipal trial court and her sworn statement before the police investigators as well as the testimonies of SPO1 Fornillos and SPO4 Jaime Favier, and the physical evidence on record. The appellant catalogued said inconsistencies, thus: 1. He was lying on the bench inside just upon entering. (Tsn p. 9, 2/17/97). - I was lying down with my husband inside our house but we were still awake (9th Answer, Prel. Exam. MTC, 7/9/96). 2. JCS fired towards our house hitting the wall (Tsn p. 11, 2/17/96). JCS fired twice (16th answer, Prel. Exam. MTC, 7/9/96). JCS kept on firing the gun pointing towards the body of my husband (9th Answer, Sworn Statement, PNP, 7/9/96). JCS shot my husband three (3) times (Tsn p. 16, 2/17/97) 3. My husband was shot and hit on the right thigh (Tsn p. 14, 2/17/97). He was hit on the left lap (23rd Answer, Prel. Exam. MTC, 7/9/96). He was hit on his side (Tsn p. 43, 2/17/97). 4. RC struck my husband with a 1-meter long Pipe (Tsn p. 13, 2/17/97). RC & JCJ smashed my husband with a hard object (5th Answer, Sworn Statement, 7/9/96). RC smashed my husband (22nd Answer, Prel. Exam. MTC, 7/9/96). 5. He was not able to fight back (Tsn p. 43, 2/17/97). He was standing and was trying to parry the attack of the accused (26th Answer, Prel. Exam. 7/9/96). 6. When I went back to the house, he was still alive (Tsn p. 19, 2/17/97). - LV "Yes," the victim could have died instantly (Tsn p. 35, 2/3/97) With

wounds sustained, he could have died instantly (p. 8, Complainant’s Memorandum). 7. It was bright inside our house with a kerosene and a bottle lamp (Tsn pp. 33-34, 2/17/97). Only one kerosene lamp - bottle of gin with wick and light (Tsn p. 10, 4/1/97 - SPO1 Pornillos Surrounding house, dark, total darkness (Tsn pp. 12-13, 4/1/97). 8. Scene Photography by Jaime Jornales (Tsn, p. 21, 2/17/97). -do- by Mr. Lozano (Tsn., p. 12, 3/7/97). 9. SPO1 Nilo Pornillos learned of the incident at 8:00 o’clock of July 8, 1996 (page 5 of Complainant’s Memorandum. SPO4 Jaime Javier received report at 9:00 o’clock P.M. of July 8, 1996 of Complainant’s Memorandum. SPO4 Jaime Javier received report at 8:00 P.M. (page 7 of Complainant’s Memorandum).50 On the other hand, the Office of the Solicitor General asserts that the credibility of the testimony of Luz, the prosecution’s principal witness, cannot be impeached via her testimony during the preliminary examination before the municipal trial court nor by her sworn statement given to the police investigators for the reason that the transcripts and sworn statement were neither marked and offered in evidence by the appellants nor admitted in evidence by the trial court. Moreover, the appellants did not confront Luz with her testimony during the preliminary examination and her sworn statement to the police investigators. Luz was not, therefore, accorded a chance to explain the purported inconsistencies, as mandated by Section 13, Rule 132 of the Revised Rules of Evidence which reads: How witness is impeached by evidence of inconsistent statement. - Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them.

The Court agrees with the Office of the Solicitor General. Before the credibility of a witness and the truthfulness of his testimony can be impeached by evidence consisting of his prior statements which are inconsistent with his present testimony, the cross-examiner must lay the predicate or the foundation for impeachment and thereby prevent an injustice to the witness being cross-examined. The witness must be given a chance to recollect and to explain the apparent inconsistency between his two statements and state the circumstances under which they were made. 51 This Court held in People v. Escosura52 that the statements of a witness prior to her present testimony cannot serve as basis for impeaching her credibility unless her attention was directed to the inconsistencies or discrepancies and she was given an opportunity to explain said inconsistencies. In a case where the cross-examiner tries to impeach the credibility and truthfulness of a witness via her testimony during a preliminary examination, this Court outlined the procedure in United States vs. Baluyot,53 thus: ...For instance, if the attorney for the accused had information that a certain witness, say Pedro Gonzales, had made and signed a sworn statement before the fiscal materially different from that given in his testimony before the court, it was incumbent upon the attorney when crossexamining said witness to direct his attention to the discrepancy and to ask him if he did not make such and such statement before the fiscal or if he did not there make a statement different from that delivered in court. If the witness admits the making of such contradictory statement, the accused has the benefit of the admission, while the witness has the opportunity to explain the discrepancy, if he can. On the other hand, if the witness denies making any such contradictory statement, the accused has the right to prove that the witness did make such statement; and if the fiscal should refuse upon due notice to produce the document, secondary evidence of the contents thereof would be admissible. This process of cross-examining a witness upon the point of prior contradictory statements is called in the practice of the American courts "laying a predicate" for the introduction of contradictory statements. It is almost universally accepted that unless a ground is thus laid upon cross-examination, evidence of contradictory statements are not admissible to impeach a witness; though undoubtedly the matter is to a large extent in the discretion of the court. In this case, the appellants never confronted Luz with her testimony during the preliminary examination and her sworn statement. She was not afforded any chance to explain any discrepancies between her present testimony and her testimony during the preliminary examination and her sworn statement. The appellants did not even mark and offer in

evidence the said transcript and sworn statement for the specific purpose of impeaching her credibility and her present testimony. Unless so marked and offered in evidence and accepted by the trial court, said transcript and sworn statement cannot be considered by the court.54 On the purported inconsistencies or discrepancies catalogued by the appellants relating to the testimony of Luz during the preliminary examination and her sworn statement, the Office of the Solicitor General posits that: … Sixth, Volante indeed testified that when she returned to their house from the ricefield, after the three accused had left the premises, her husband was still alive (TSN, February 17, 1997, p. 19) as he was still able to ask for her assistance (Ibid, p. 20). But it is not inconsistent with the expert opinion of Dr. Consolacion that by the nature of the wounds sustained by the victim, the latter could have died thereof instantaneously (TSN, February 3, 1997, p. 35). It is clear that the said physician was merely stating a possibility and not what happened in the instant case because in the first place, she was not present at the scene right after the incident. Seventh, Volante was insistent in her testimony that at the time of the commission of the subject crime, it was bright inside their house because they had a "kerosene lamp" and a "bottle lamp" both lighted up, one placed on the wall and the other on the ceiling (Ibid, pp. 33, 52-53). While it may appear contradictory to SPO1 Pornillos’ testimony that there was only a kerosene lamp at the time, he could not have been expected to notice all the things found inside the house, including the "bottle lamp", because he might not have been familiar with its interiors. Or, he could have focused his attention primarily on the body of the fallen victim and the objects that may be used later as evidence against the perpetrators of the crime. Eight, it is admitted that the testimonies of Volante and SPO1 Pornillos as to who took pictures of the crime scene including the lifeless body of the victim are contradictory. But again, such contradiction, being only minor and irrelevant, does not affect the credibility of their testimonies.

incident was reported to the police authorities are similarly irrelevant to the matters in issue. Of consequence here is the fact that on the night the crime was committed, it was reported to the authorities who later effected the arrest of the perpetrators thereof.55 The Court fully agrees with the foregoing ruminations of the Office of the Solicitor General. The inconsistencies adverted to by the appellants pertained only to minor and collateral matters and not to the elements of the crime charged; hence, they do not dilute the probative weight of the testimony. It bears stressing that even the most truthful witness can make mistakes but such innocent lapses do not necessarily affect his credibility. The testimonies of witnesses must be considered and calibrated in their entirety and not by their truncated portions or isolated passages.56 And then again, minor contradictions among several witnesses of a particular incident and aspect thereof which do not relate to the gravamen of the crime charged are to be expected in view of their differences in impressions, memory, vantage points and other related factors.57 Contrary to appellant Jaime, Jr.’s claim, the prosecution adduced proof that he and appellant Ronald conspired to kill and did kill Diosdado by their simultaneous acts of stabbing the victim. As narrated by Luz: ATTY. BALLEBAR:

Q Now, was your husband hit by the stabbing of Ronald Castillano, Jr. (sic)? A

A

They entered our house.

Q Now, when you say they to whom are you referring to? A Jaime Castillano Sr., Jaime Castillano, Jr., and Ronald Castillano. Q

Now, where did they enter?

A

In the other door.

Q Now at the time they entered your house was the door of your house closed or opened? It was closed.

Q Now, after the accused entered your house what happened next, if any?

Yes, sir.

Q Will you tell us on what part of his body was he hit? A My husband was still struck by Ronald Castillano hitting him on his right side of his body including on his right thigh and also on his back.. ATTY. BALLEBAR: Q Now, you said Ronald Castillano struck your husband, now with what instrument did he use in strucking (sic) your husband? ATTY. BERNALES: We object, misleading, your Honor. COURT:

Q Now after Jaime Castillano Sr. fired at your house, what happened next if any?

A And ninth, the apparently inconsistent statements of the prosecution witnesses (SPO1 Pornillos and SPO4 Javier) as to the exact time the subject

A Jaime Castillano Jr. stabbed my husband and also Ronal Castillano stabbed my husband.

Witness may answer. WITNESS: A

A pipe.

ATTY. BALLEBAR: Q Now, will you tell us more or less how long was that pipe that was used by Ronald Castillano? A

About one (1) meter, Maam.58

Luz was merely five meters away from where Diosado was attacked and stabbed by the appellants. Appellant Jaime, Jr. even tried to cut the ankle of the victim: ATTY. BALLEBAR: Q Now during this incident, how far were you from the accused and your husband?

A From where I am sitting up to that window which is about five (5) meters. Q Now after the accused strucked (sic) and shot your husband, what else happened if any? A Jaime Castillano Jr. stabbed my husband on his breast (Witness is pointing to her breast). ATTY. BERNALES: We will move that the answer be striken off from the records because it is not responsive to the question. The question is after your husband has been stabbed strucked (sic) and shot. COURT: Q Your are being asked what happened after the accused was already stabbed, strucked (sic) and shot, what happened next? WITNESS: Q Jaime Castillano Junior still stabbed my husband and try to cut his ankle, Your Honor. COURT: Strike our (sic) the previous answer of the witness. ATTY. BALLEBAR: Q By the way, will you tell us how many times did Ronald Castillano stab your husband? A I cannot determine how many times he even stabbed my husband on his left eye. Q How about Jaime Castillano Jr., how many times did he stab your husband? A I cannot determine exactly how many times but he repeatedly stabbed my husband.59 The mere denial appellant Jaime, Jr. of the crime charged is but a negative self-serving which cannot prevail over the positive and straightforward testimony of Luz and the physical evidence on record.60

The Crime Committed by Appellants The trial court correctly convicted the appellants of murder, qualified by treachery, under Article 248 of the Revised Penal Code. The Court, however, does not agree with the trial court’s finding that evident premeditation attended the commission of the crime. Case law has it that the prosecution has the burden to prove beyond reasonable doubt qualifying circumstances in the commission of the crime. For evident premeditation to qualify a crime, the prosecution must prove the confluence of the essential requites thereof: (a) the time when the offender has determined to commit the crime; (b) an act manifestly indicating that the offender has clung to his determination; (c) an interval of time between the determination and the execution of the crime enough to allow him to reflect upon the consequences of his act.61There must be proof beyond cavil when and how the offender planned to kill the victim and that sufficient time had elapsed between the time he had decided to kill the victim and the actual killing of the victim, and that in the interim, the offender performed overt acts positively and conclusively showing his determination to commit the said crime.62In this case, the only evidence adduced by the prosecution to prove evident premeditation is the testimony of Levy Avila that between 5:00 p.m. and 6:00 p.m. on July 8, 1996, he heard the appellants planning to go to the house of Diosdado and that he heard them say: "Ayaw namin kasing inaasar," and that at 8:00 p.m., the appellants arrived in the house of the victim and stabbed him to death. There is no evidence of any overt acts of the appellants when they decided to kill Diosdado and how they would consummate the crime. There is no evidence of any overt acts perpetrated by the appellants between 5:00 and 8:00 p.m. that they clung to their determination to kill Diosdado. There is treachery in the commission of a crime when (a) at the time of attack, the victim was not in a position to defend himself; (b) the offender consciously and deliberately adopted the particular means, methods and forms of attack employed by him.63 Even a frontal attack may be treacherous when unexpected on an unarmed victim who would not be in a position to repel the attack or avoid it.64 In this case, the victim was unarmed and was supinely resting before sleeping after a hard day’s work. Although Luz warned the victim that the appellants were already approaching their house, however, the victim remained unperturbed when the appellants barged into the victim’s house. They stabbed him repeatedly with diverse deadly weapons. The victim had nary a chance to defend himself and avoid the fatal thrusts of the appellants. The crime was committed in the house of the victim. There was no provocation on the part of the victim. Dwelling thus aggravated the crime. However, dwelling was not alleged in

the information, as mandated by Section 8, Rule 110 of the Revised Rules of Criminal Procedure: Sec. 8. Designation of the offense. - The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. The use by appellant Ronald of an unlicensed firearm to shoot Diosdado on the thigh is not an aggravating circumstance because (1) there is no allegation in the information that said appellant had no license to possess the firearm. That appellant lacked the license to possess the firearm is an essential element of the crime and must be alleged in the information.65 Although the crime was committed before the new rule took effect on December 1, 2002, the rule should, however, be applied retroactively as it is favorable to the appellants.66 The appellants are not entitled to the mitigating circumstance of voluntary surrender. The evidence shows that the appellants were arrested when the police officers manning the checkpoint stopped the passenger jeepney driven by appellant Ronald and arrested the appellants. The fact that the appellants did not resist but went peacefully with the peace officers does not mean that they surrendered voluntarily.67 There being no mitigating and aggravating circumstances in the commission of the crime, the appellants should be meted the penalty of reclusion perpetua conformably with Article 63 of the Revised Penal Code. The Civil Liabilities of the Appellants The trial court awarded the total amount of P177,421 as civil indemnity, actual and moral damages in favor of the heirs of the victim Diosdado. The Court has to modify the awards. Appellants Ronald and Jaime, Jr. are obliged to pay jointly and severally the amount of P50,000 as civil indemnity; P50,000 as moral damages; P25,000 as exemplary damages in view of the aggravating circumstance of dwelling;68and the amount of P18,300 for funeral and religious services. The heirs of the victim failed to adduce in evidence any receipts or documentary evidence to prove their claim for food and other expenses during the wake. However, they are entitled to temperate damages in the amount of P5,000, conformably with the ruling of the Court in People v. dela Tongga.69 His wife Luz’s testimony that the victim had an annual income of more than P65,000 is not

sufficient as basis for an award for unearned income for being self-serving. There was no proof of the average expense of the victim and his family and his net income. In People v. Ereño,70 this Court held that: … It bears stress that compensation for lost income is in the nature of damages and as such requires due proof of the damage suffered; there must be unbiased proof of the deceased’s average income. In the instant case, the victim’s mother, Lita Honrubia, gave only a self-serving hence unreliable statement of her deceased daughter’s income. Moreover, the award for lost income refers to the net income of the deceased, that is, her total income less her average expenses. No proof of the victim’s average expenses was presented. Hence, there can be no reliable estimate of the deceased’s lost income. IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Camarines Sur, Branch 31 in Criminal Case No. P-2542 is AFFIRMED with MODIFICATION. Appellants Ronald Castillano alias "Nono" and Jaime Castillano, Jr. alias "Junjun" are found guilty beyond reasonable doubt of murder, qualified by treachery, punishable by reclusion perpetua to death, under Article 248 of the Revised Penal Code. There being no modifying circumstances in the commission of the crime, the appellants are sentenced to suffer the penalty of reclusion perpetua, conformably with Article 63 of the Revised Penal Code. They are, likewise, ordered to pay jointly and severally to the heirs of the victim, Diosdado Volante, the amounts of P50,000 as civil indemnity; P50,000 as moral damages; P18,300 as actual damages; P25,000 as exemplary damages; and P5,000 as temperate damages. Costs against the appellants. SO ORDERED.

left anterior and the left mid axillary line up to the left 4th intercostal space including all muscle underlying the skin exposing the ribs.

roadside Herminio Mansueto and Roberto Descartin alias "Ruby" engaged in conversation. Pansing approached them and asked Mansueto if he would be interested in buying two of her pigs for P1,400.00. Mansueto said "yes" and promised that he would be right back.

Cause of death: Internal hemorrhage due to stab wound.

Mansueto and Ruby meantime proceeded to the latter's piggery. Joelito Descartin and his brother-in-law Rene were also seen going to the place. After some time, Pansing noticed Joelito take Mansueto's bicycle. Believing that Mansueto was already preparing to leave and in her desire to catch up with him, Pansing promptly walked towards the piggery which was around 100 meters away from her house. She could see Mansueto leaning on the pigsty with Ruby on his right side and Antonio Plasencia alias "Tonying" on his left; behind was Joelito.2 Midway, she was halted on her tracks; she suddenly saw Antonio stab Mansueto. The latter staggered towards Ruby who himself then delivered another stab blow. Mansueto fell on his back. Joelito started hitting Mansueto on the forehead while Rene held Mansueto's legs.3 Except for a coconut tree and some ipil-ipil trees around the area, nothing obstructed Pansing's line of vision. Pansing rushed back home. The image of Antonio waving the weapon and the thought that she might herself be killed kept her from revealing to anyone what she saw.4

G.R. No. 90198 November 7, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO PLASENCIA y DESAMPARADO alias "Tonying," ROBERTO DESCARTIN y PASICARAN alias"Ruby" and JOELITO (JULITO), DESCARTIN y PASICARAN, accused-appellants. VITUG, J.: Antonio Plasencia, Roberto Descartin and Joelito (Julito) Descartin were accused of robbery with homicide in an information, dated 20 December 1984, that read: That on or about the 29th day of November, 1984 at around 3:00 o'clock in the afternoon, more or less, in sitio San Juan, Barangay Patao, Municipality of Bantayan, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused conspiring and confederating together and mutually helping one another, did then and there wilfully, unlawfully and feloniously, and with treachery, evident premeditation and taking advantage of their superior number and strength and with intent to kill, treacherously attack, assault and use personal violence upon Herminio Mansueto, thereby inflicting upon him the following physical injuries: 1. Stab wounds which was approximately two inches in length, parallel to the ribs and is located 1 1/2 inches below the right nipple on the right anterior axillary line and on the fifth intercostal space. On probing the wound was penetrating immediately up to the left parasternal border approximately hitting the heart; 2. Hacking wound 9 inches in length extending from the coracoid process of the left clavicle passing between the

after which the body was placed inside a plastic bag and brought to an open sea by the pump boat owned by Roberto Descartin y Pasicaran and operated by Joelito Descartin y Pasicaran and dumped to the water by herein accused, and as a result of which said Herminio Mansueto died, herein accused, in pursuance of their conspiracy, wilfully, unlawfully and feloniously and with intent to gain, took and carried away the personal property belonging to Herminio Mansueto, namely: one (1) Seiko 5 "Stop Watch" valued at P3,000.00; one (1) Bicycle (standard size) valued at P1,000.00; and cash in the amount of P10,000.00, all in the total amount of FOUR-TEEN THOUSAND PESOS (P14,000.00), Philippine Currency, to the damage and prejudice of said oner (sic) in the said total sum. All contrary to law, and with the qualifying circumstance of alevosia, and the generic aggravating circumstance of known premeditation. CONTRARY TO LAW. 1 When arraigned, all the accused entered a plea of "not guilty" to the charge; whereupon, trial commenced. The prosecution sought to establish, as follows: At around ten o'clock in the morning of 29 November 1984, Herminio Mansueto, wearing a blue and white striped t-shirt, maong pants, Seiko 5 stop watch and a pandan hat, left on his bicycle for Barangay Patao, Bantayan, Cebu. He had with him P10,000.00 cash which he would use to purchase hogs from a certain "Ruby." In Patao, Francisca Espina, also known in the locality as Pansing and whose house was just across the street from the respective residences of the three accused, saw at the

The following day, in Kodia, Madridejos, Cebu, where Mansueto resided, his daughter Rosalinda reported to Francisca Tayo, the barangay captain, that her father had not returned home. Tayo proceeded to Putian, which was in Mansueto's itinerary, and then to Ruby's piggery in Patao, where a youngster, who turned out to be Ruby's son, innocently informed her that Mansueto's bicycle was taken by Joelito.5 The day after, Francisca Tayo, accompanied by police officers of Madridejos, Cebu, and some relatives of Mansueto, went back to Ruby's place. On a railing of the pigpen, she saw blood stains. When she asked Ruby's father about it, he said that the stains had come from chicken blood. Going around the piggery, she also saw blood stains on a bamboo pole, which Ruby's father once again so identified as chicken blood. At the back of the piggery, Francisca noticed a digging which looked like an empty grave. The digging was measured and photos were taken. The police found a hat at the back of a hut beside the piggery, which was later recognized to be that which belonged to Mansueto.6 In the morning of 30 November 1984, Patrolman Elpidio Desquitado of the Bantayan police went back to the piggery. This time, the police learned from Pansing herself that Joelito took Mansueto's bicycle.7 Joelito was invited to the police headquarters to shed light on the case. Later, Joelito, waiving his right to counsel, executed a "confession."8

Joelito narrated that, upon Ruby's instruction, he brought the bicycle to the piggery. Unexpectedly, he said, Tonying Plasencia stabbed Mansueto. Stunned, Joelito tried to run away but Tonying stopped him. Tonying then dragged the victim to a nearby house. Threatened by Tonying, Joelito agreed to later return to where the victim's body was dragged. At around eleven o'clock that evening, tonying and Joelito placed the body in a sack. Tonying asked Ruby to allow the use of the latter's pumpboat to ferry the body. Tonying paddled the pumpboat to the island of Po-Po'o where he picked up some pieces of stones. Then, again paddling the pumpboat farther away from the island, he ordered Joelito to start the engine of the boat. They headed for the islet of Gilotongin (Hilotongan). On the way, Tonying filled the sack with stones and, using a rope, tied to it the body of the victim. Tonying then unloaded their cargo into the sea. Guided by Joelito, members of the Bantayan police force headed for the islet of Hilotongan on two pumpboats 9 in the area pinpointed to be the place where the body was dumped. On the second day of the search, the group was informed that the body had already surfaced near the vicinity of the search and delivered to the municipal building. 10 The municipal health officer of Bantayan, Dr. Oscar Quirante, examined the body and concluded that the victim died of internal hemorrhage due to stab wounds. 11 The bloated body was in a late stage of decomposition and its skin had sloughed off. 12 He found the victim's face to be "beyond recognition." There were "some rope signs in the body particularly in the waistline and in the knees." 13

accused was reclusion perpetua with a joint and several civil liability for indemnification to the heirs of Herminio Mansueto in the amount of P30,000.00. The instant appeal was interposed by the three convicted appellants. Appellant Antonio Plasencia attacks the credibility of the prosecution's lone eyewitness, Francisca Espina, alleging that she is a pejured witness who has an axe to grind against him because his dog had once bitten Francisca's child. 16 He bewails the fact that it has taken Francisca until 29 December 1984 to reveal what she supposedly has seen to the police authorities. Contending that treachery has not been duly proven as "no wound was inflicted at the back and as a matter of fact only one wound was fatal," 17 appellant argues that even if conspiracy were to be considered to have attended the commission of the crime, he could be held liable with the others, if at all, only for homicide. Appellant Roberto Descartin, likewise challenging Francisca Espina's credibility because of her alleged inconsistencies, faults the trial court for allowing the witness to glance at the notes written on her palm while testifying. He also argues that his alibi, being corroborated, should have been given weight. Appellant Joelito Descartin, in assailing the credibility of Francisca, has noted her "jittery actuation" while giving her testimony. He also questions the findings of the ponente for not being the presiding judge during the examination of Francisca on the witness stand.

The main defense interposed is one of alibi. Antonio stated that on the whole day of 29 November 1984, he was out at sea fishing with his son. Joelito, on his part, asserted that he was in Barrio Baod, about an hour's walk from his residence, at the house of his fiancee. He returned to his house, he said, only the day after. Roberto ("Ruby"), Joelito's uncle, testified that on that fateful day, he was in Samoco Purok 2, Iligan City, and then left for Cebu on 06 December 1984 only after receiving a telegraph that Joelito was implicated in the crime. The Regional Trial Court 14 did not give credence to the defense of alibi. It convicted the three accused of murder (punishable under Article 248 of the Revised Penal Code), instead of robbery with homicide, explaining that the term "homicide" was used in the information in its generic sense. 15 Finding conspiracy, the trial court ruled that the killing was qualified by both treachery and abuse of superior strength with the latter, however, being absorbed by the former. No other aggravating or mitigating circumstances being attendant in the commission of the crime, the trial court said, the penalty that could be imposed upon each of the

The focus of this appeal is clearly one of credibility. The initial assessment on the testimony of a witness is done by the trial court, and its findings still deserve due regard notwithstanding that the presiding judge who pens the decision is not the one who personally may have heard the testimony. 18 The reliance on the transcript of stenographic notes should not, for that reason alone, render the judgment subject to challenge. 19 The continuity of the court and the efficacy of its decision are not affected by the cessation from the service of the judge presiding it 20or by the fact that its writer merely took over from a colleague who presided at the trial. 21 It is asserted that the testimony of Francisca Espina should not be given worth since, while testifying, she would at times be seen reading some notes written on her left palm. Thus — Q. May I see your left hand, may I see what is written there?

A. Witness showing to the court her left palm and the following words have been written in her palm in ball pen handwritten words and number of the pumpboat No. 56 and there is another word "petsa" and there are words which cannot be deciphered and all found in the palm of the left hand. ATTY. MONTECLAR: That is all. ATTY. GONZALES: RE-CROSS Q Mrs. witness, you cannot deny of what these physical evidences or writings on the palm of your left hand. I want you to be honest, the law will not allow you to lie, you are subject to punishment and penalty. My question is, who wrote this on the palm of your left hand? A I was the one who wrote this. Q Why did you write that down? A I was the one who wrote this. Q Why, what was your purpose of writing that in your palm? A I wrote this in my palm because I wanted to be sure of what time the incident happened, was the same as that I wrote in my palm. Q And who furnished you the data in which you wrote in the palm of your hand? A I was the one who made that. ATTY. GONZALES: Q You don't understand my question. You wrote that writing but where did you get that data? A. This is just of what I know. Q Since you claim to have all this knowledge of your mind, why did you find it necessary to write that in the palm of your hand and I notice during the trial that you used to look in your palm, why, is

that necessary in your believe to testify here to what you knew about the incident. A Because of the fact that I have an headache. Q When did this headache occur? A After I left my house because my sick child. Q Now, knowing that you have an headache, did you not bring this to the attention of the Fiscal? A No, I did not tell the Fiscal. Q Do you know of your own that doing this is unfair and is not allowable while testifying in open court, do you know that is illegal act? A No, I did not, know. Q And you did all of this claiming that you do not know about the incident for the purpose of giving here testimony against the accused? A Yes, sir. 22 The use of memory aids during an examination of a witness is not altogether proscribed. Section 16, Rule 132, of the Rules of Court states: Sec. 16. When witness may refer to memorandum. — A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly written or recorded; but in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross-examine the witness upon it and may read it in evidence. So, also, a witness may testify from such a writing or record, though he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such

evidence must be received with caution. (Emphasis supplied.)

falsehood 31 even as they also erase suspicion of rehearsed testimony.32

Allowing a witness to refer to her notes rests on the sound discretion of the trial court. 23 In this case, the exercise of that discretion has not been abused; the witness herself has explained that she merely wanted to be accurate on dates and like details.

All considered, the case against the appellants has been proven beyond reasonable doubt even with the retracted extra-judicial admission of Joelito Descartin. 33 The testimony of a single witness, if found to be credible, is adequate for conviction, 34 The defense of alibi hardly can overcome the positive identification of an unprejudiced eyewitness. 35

Appellants see inadvertency on Francisca's appearing to be "jittery" on the witness stand. Nervousness and anxiety of a witness is a natural reaction particularly in the case of those who are called to testify for the first time. The real concern, in fact, should be when they show no such emotions.

Like the trial court, we are not persuaded that robbery has been proven to be the principal motive for the crime that can warrant the conviction of appellants for the complex crime of robbery with homicide. 36 Appellants could only thus be held responsible for the killing of Mansueto. Conspiracy among the appellants has been established beyond doubt by the sum of their deeds pointing to a joint purpose and design. 37

Francisca did fail in immediately reporting the killing to the police authorities. Delay or vacillation, however, in making a criminal accusation does not necessarily adulterate the credibility of the witness. 24 Francisca, in her case, has expressed fears for her life considering that the assailants, being her neighbors, could easily exact retribution on her. 25 Also, the hesitancy in reporting the occurrence of a crime in rural areas is not unknown. 26 Francisca's inability to respond to the summons for another appearance in court for further questioning was satisfactorily explained by the prosecution. Francisca at the time just had a miscarriage and was found to be too weak to travel. The recall of the witness was, after all, at the sound discretion of the trial court. 27 The claim of appellant Roberto Descartin that Francisca and her husband, a tuba-gatherer, owed him P300.00, and the assertion made by appellant Antonio Plasencia on the dogbiting story involving Francisca's son truly were too petty to consider. It would be absurd to think that Francisca, for such trivial reasons was actually impelled to falsely implicate appellants for so grave an offense as murder. Appellants questioned Francisca's ability to recognize them from a distance. Francisca knew appellants well; they all were her neighbors while Antonio Plasencia himself was her cousin. 28 The crime occurred at around three o'clock in the afternoon only about fifty (50) meters away from her. With an unobstructed view, Francisca's positive identification of the culprits should be a foregone matter. 29 The alleged inconsistencies in Francisca's testimony and in her sworn statement of 18 December 1984, cover matters of little significance. Minor inconsistencies in the testimonies of witnesses do not detract from their credibility; 30 on the contrary, they serve to strengthen their credibility and are taken as badges of truth rather than as indicia of

Three aggravating circumstances were alleged in the information, i.e., treachery, evident premeditation and abuse of superior strength. The trial court disregarded the circumstance of evident premeditation and concluded that the attack upon Mansueto was committed with treachery and abuse of superior strength. On its finding that the assault was unexpectedly perpetrated upon the unarmed victim to ensure its execution without risk to themselves from the defense that the victim might make, the trial court appreciated treachery, which it deemed as having so absorbed abuse of superior strength. The trial court was correct when it concluded that the crime committed was murder, a crime technically lower than robbery with homicide, 38 not, however, because of the attendance of treachery but of abuse of superior strength. Treachery, in our view, was not satisfactorily proven by the prosecution. Francisca Espina simply testified that appellant Plasencia stabbed Mansueto while the latter and the appellants were in a huddle. There was nothing adduced on whether or not the victim gave provocation, an indispensable issue in the proper appreciation of treachery. 39 The presence, nonetheless, of the aggravating circumstance of abuse of superior strength qualified the killing to murder. 40 The three appellants utilized superiority in numbers and employed deadly weapons in assaulting the unarmed Mansueto. There being no other aggravating or mitigating circumstances to consider, the trial court aptly imposed the penalty of reclusion perpetua, the medium period 41 of the penalty of reclusion temporal maximum to death prescribed by Article 248 of the Revised Penal Code. In conformity with prevailing jurisprudential law, the heirs of the victim should be indemnified in the amount of P50,000.00. 42

WHEREFORE, the decision of the trial court convicting appellants Antonio Plasencia, Roberto Descartin and Joelito (Julito) Descartin of the crime of murder and imposing on each of them the penalty of reclusion perpetua is hereby AFFIRMED with the modification that the indemnity to the heirs of the victim, Herminio Mansueto, is raised to P50,000.00. Costs against appellants. SO ORDERED.

The Sub-Contractor (SOCOR Corporation) and the Contractor (RDC Construction) for the consideration hereinafter named, hereby agree as follows:

G.R. No. 96202 April 13, 1999

a. The Sub-Contractor agrees to perform and execute the Supply, Lay and Compact Item 310 and Item 302;

ROSELLA D. CANQUE, petitioner, vs. THE COURT OF APPEALS and SOCOR CONSTRUCTION CORPORATION, respondents.

1. SCOPE OF WORK:

b. That Contractor shall provide the labor and materials needed to complete the project;

MENDOZA, J This petition for review on certiorari seeks a reversal of the decision 1 of the Court of Appeals affirming the judgment 2 of the Regional Trial Court of Cebu City ordering petitioner — . . . to pay [private respondent] the principal sum of Two Hundred Ninety Nine Thousand Seven Hundred Seventeen Pesos and Seventy Five Centavos (P299,717.75) plus interest thereon at 12% per annum from September 22, 1986, the date of the filing of the complaint until fully paid; to pay [private respondent] the further sum of Ten Thousand Pesos (P10,000.00) for reasonable attorney's fees; to pay the sum of Five Hundred Fifty Two Pesos and Eighty Six Centavos (P552.86) for filing fees and to pay the costs of suit. Since [private respondent] withdrew its prayer for an alias writ of preliminary attachment vis-a-vis the [petitioner's] counterbound, the incident on the alias writ of preliminary attachment has become moot and academic.

c. That the Contractor agrees to pay the Sub-Contractor the price of One Thousand Pesos only (P1,000.00) per Metric Ton of Item 310 and Eight Thousand Only (P8,000.00) per Metric Ton of Item 302. d. That the Contractor shall pay the SubContractor the volume of the supplied Item based on the actual weight in Metric Tons delivered, laid and compacted and accepted by the MPWH; e. The construction will commence upon the acceptance of the offer. The second contract (Exh. B), 5 dated July 23, 1985, stated: The Supplier (SOCOR Construction) and the Contractor (RDC Construction) for the consideration hereinafter named, hereby agree as follows:

The facts are as follows:

1. SCOPE OF WORK:

Petitioner Rosella D. Canque is a contractor doing business under the name and style RDC Construction. At the time material to this case, she had contracts with the government for (a) the restoration of Cebu-Toledo wharf road; (b) the asphalting of Lutopan access road; and (c) the asphalting of Babag road in Lapulapu City. 3 In connection with these projects, petitioner entered into two contracts with private respondent Socor Construction Corporation. The first contract (Exh. A), 4 dated April 26, 1985, provided:

a. The Supplier agrees to perform and execute the delivery of Item 310 and Item 302 to the jobsite for the Asphalting of DAS Access Road and the Front Gate of ACMDC, Toledo City; b. That the Contractor should inform or give notice to the Supplier two (2) days before the delivery of such items;

c. That the Contractor shall pay the Supplier the volume of the supplied items on the actual weight in metric tons delivered and accepted by the MPWH fifteen (15) days after the submission of the bill; d. The delivery will commence upon the acceptance of the offer. On May 28, 1986, private respondent sent petitioner a bill (Exh. C), containing a revised computation, 6 for P299,717.75, plus interest at rate of 3% a month, representing the balance of petitioner's total account of P2,098,400.25 for materials delivered and services rendered by private respondent under the two contracts. However, petitioner refused to pay the amount, claiming that private respondent failed to submit the delivery receipts showing the actual weight in metric tons of the items delivered and the acceptance thereof by the government. 7 Hence, on September 22, 1986, private respondent brought suit in the Regional Trial Court of Cebu to recover from petitioner the sum of P299,717.75, plus interest at the rate of 3% a month. In her answer, petitioner admitted the existence of the contracts with private respondent as well as receipt of the billing (Exh. C), dated May 28, 1986. However, she disputed the correctness of the bill — . . . considering that the deliveries of [private respondent] were not signed and acknowledged by the checkers of [petitioner], the bituminous tack coat it delivered to [petitioner] consisted of 60% water, and [petitioner] has already paid [private respondent] about P1,400,000.00 but [private respondent] has not issued any receipt to [petitioner] for said payments and there is no agreement that [private respondent] will charge 3% per month interest. 8 Petitioner subsequently amended her answer denying she had entered into sub-contracts with private respondent. 9

During the trial, private respondent, as plaintiff, presented its vice-president, Sofia O. Sanchez, and Dolores Aday, its bookkeeper. Petitioner's evidence consisted of her lone testimony.

10

On June 22, 1988, the trial court rendered its decision ordering petitioner to pay private respondent the sum of P299,717.75 plus interest at 12% per annum, and costs. It held: . . . . [B]y analyzing the plaintiff's Book of Collectible Accounts particularly page 17 thereof (Exh. "K") this Court is convinced that the entries (both payments and billings) recorded thereat are credible. Undeniably, the book contains a detailed account of SOCOR's commercial transactions with RDC which were entered therein in the course of business. We cannot therefore disregard the entries recorded under Exhibit "K" because the fact of their having been made in the course of business carries with it some degree of trustworthiness. Besides, no proof was ever offered to demonstrate the irregularity of the said entries thus, there is then no cogent reason for us to doubt their authenticity. 11 The trial court further ruled that in spite of the fact that the contracts did not have any stipulation on interest, interest may be awarded in the form of damages under Article 2209 of the Civil Code. 12 On appeal, the Court of Appeals affirmed. It upheld the trial court's' reliance on private respondent's Book of Collectible Accounts (Exh. K) on the basis of Rule 130, §37 13 of the Rules of Court.

II. THE DECISION OF THE RESPONDENT COURT SHOULD BE REVERSED AS IT HAS ONLY INADMISSIBLE EVIDENCE TO SUPPORT IT. First. Petitioner contends that the presentation of the delivery receipts duly accepted by the then Ministry of Public Works and Highways (MPWH) is required under the contracts (Exhs. A and B) and is a condition precedent for her payment of the amount claimed by private respondent. Petitioner argues that the entries in private respondent's Book of Collectible Accounts (Exh. K) cannot take the place of the delivery receipts and that such entries are mere hearsay and, thus, inadmissible in evidence. 14 We agree with the appellate court that the stipulation in the two contracts requiring the submission of delivery receipts does not preclude proof of delivery of materials by private respondent in some other way. The question is whether the entries in the Book of Collectible Accounts (Exh. K) constitute competent evidence to show such delivery. Private respondent cites Rule 130, §37 of the Rules of Court and argues that the entries in question constitute "entries in the course of business" sufficient to prove deliveries made for the government projects. This provision reads: Entries in the course of business. — Entries made at, or near the time of the transactions to which they refer, by a person deceased, outside of the Philippines or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. 15 The admission in evidence of entries in corporate books requires the satisfaction of the following conditions:

Hence, this appeal. Petitioner contends that — I. THE RESPONDENT COURT ERRED IN ADMITTING IN EVIDENCE AS ENTRIES IN THE COURSE OF BUSINESS THE ENTRIES IN PRIVATE RESPONDENT'S BOOK OF COLLECTIBLE ACCOUNTS CONSIDERING THAT THE PERSON WHO MADE SAID ENTRIES ACTUALLY TESTIFIED IN THIS CASE BUT UNFORTUNATELY HAD NO PERSONAL KNOWLEDGE OF SAID ENTRIES.

1. The person who made the entry must be dead, outside the country or unable to testify; 2. The entries were made at or near the time of the transactions to which they refer; 3. The entrant was in a position to know the facts stated in the entries;

4. The entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and 5. The entries were made in the ordinary or regular course of business or duty. 16 As petitioner points out, the business entries in question (Exh. K) do not meet the first and third requisites. Dolores Aday, who made the entries, was presented by private respondent to testify on the account of RDC Construction. It was in the course of her testimony that the entries were presented and marked in evidence. There was, therefore, neither justification nor necessity for the presentation of the entries as the person who made them was available to testify in court. Necessity is given as a ground for admitting entries, in that they are the best available evidence. Said a learned judge: "What a man has actually done and committed to writing when under obligation to do the act, it being in the course of the business he has undertaken, and he being dead, there seems to be no danger in submitting to the consideration of the court." The person who maybe called to court to testify on these entries being dead, there arises the necessity of their admission without the one who made them being called to court be sworn and subjected to cross-examination. And this is permissible in order to prevent a failure of justice. 17 Moreover, Aday admitted that she had no personal knowledge of the facts constituting the entry. She said she made the entries based on the bills given to her. But she has no knowledge of the truth or falsity of the facts stated in the bills. The deliveries of the materials stated in the bills were supervised by "an engineer for (such) functions." 18 The person, therefore, who has personal knowledge of the facts stated in the entries, i.e., that such deliveries were made in the amounts and on the dates stated, was the company's project engineer. The entries made by Aday show only that the billings had been submitted to her by the engineer and that she faithfully recorded the amounts stared therein in the books of account. Whether or not the bills given to Aday correctly reflected the deliveries made in the amounts and on the dates indicated was a fact that could be established by the project engineer alone who, however, was not presented during trial. The rule is stated by former Chief Justice Moran, thus:

[W]hen the witness had no personal knowledge of the facts entered by him, and the person who gave him the information is individually known and may testify as to the facts stated in the entry which is not part of a system of entries where scores of employees have intervened, such entry is not admissible without the testimony of the informer. 19 Second. It is nonetheless argued by private respondent that although the entries cannot be considered an exception to the hearsay rule, they may be admitted under Rule 132, §10 20 of the Rules of Court which provides: Sec. 10. When witness may refer to memorandum. — A witness may be allowed to refresh his memory respecting a fact, by anything written by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly stated in the writing; but in such case the writing must be produced and may be inspected by the adverse party, who may, if he chooses, cross-examine the witness upon it, and may read it in evidence. So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts, if he is able to swear that the writing correctly stated the transaction when made; but such evidence must be received with caution. On the other hand, petitioner contends that evidence which is inadmissible for the purpose for which it was offered cannot be admitted for another purpose. She cites the following from Chief Justice Moran's commentaries: The purpose for which the evidence is offered must be specified. Where the offer is general, and the evidence is admissible for one purpose and inadmissible for another, the evidence should be rejected. Likewise, where the offer is made for two or more purposes and the evidence is incompetent for one of them, the evidence should be excluded. The reason for the rule is that "it is the duty of a party to select the competent from the incompetent in offering testimony, and he cannot impose this duty upon the trial court."

Where the evidence is inadmissible for the purpose stated in the offer, it must be rejected, though the same may be admissible for another purpose. The rule is stated thus: "If a party . . . opens the particular view with which he offers any part of his evidence, or states the object to be attained by it, he precludes himself from insisting on its operation in any other direction, or for any other object; and the reason is, that the opposite party is prevented from objecting to its competency in any view different from the one proposed. 21 It should be noted, however, that Exh. K is not really being presented for another purpose. Private respondent's counsel offered it for the purpose of showing the amount of petitioner's indebtedness. He said: Exhibit "K," your Honor — faithful reproduction of page (17) of the book on Collectible Accounts of the plaintiff, reflecting the principal indebtedness of defendant in the amount of Two hundred ninety-nine thousand seven hundred seventeen pesos and seventy-five centavos (P299,717.75) and reflecting as well the accumulated interest of three percent (3%) monthly compounded such that as of December 11, 1987, the amount collectible from the defendant by the plaintiff is Six hundred sixteen thousand four hundred thirty-five pesos and seventy-two centavos (P616,435.72); 22 This is also the purpose for which its admission is sought as a memorandum to refresh the memory of Dolores Aday as a witness. In other words, it is the nature of the evidence that is changed, not the purpose for which it is offered. Be that as it may, considered as a memorandum, Exh. K does not itself constitute evidence. As explained in Borromeo v. Court of Appeals:23 Under the above provision (Rule 132, §10), the memorandum used to refresh the memory of the witness does not constitute evidence, and may not be admitted as such, for the simple reason that the witness has just the same to testify on the basis of refreshed memory. In other words, where the witness has testified independently of or after his

testimony has been refreshed by a memorandum of the events in dispute, such memorandum is not admissible as corroborative evidence. It is self-evident that a witness may not be corroborated by any written statement prepared wholly by him. He cannot be more credible just because he supports his open-court declaration with written statements of the same facts even if he did prepare them during the occasion in dispute, unless the proper predicate of his failing memory is priorly laid down. What is more, even where this requirement has been satisfied, the express injunction of the rule itself is that such evidence must be received with caution, if only because it is not very difficult to conceive and fabricate evidence of this nature. This is doubly true when the witness stands to gain materially or otherwise from the admission of such evidence . . . . 24 As the entries in question (Exh. K) were not made based on personal knowledge, they could only corroborate Dolores Aday's testimony that she made the entries as she received the bills. Third. Does this, therefore, mean there is no competent evidence of private respondent's claim as petitioner argues? 25 The answer is in the negative. Aside from Exh. K, private respondent presented the following documents: 1) Exhibits A — Contract Agreement dated 26 April 1985 which contract covers both the Toledo wharf project and the Babag Road project in Lapulapu City. 2) Exhibit B — Contract Agreement dated 23 July 1985 which covers the DAS Asphalting Project. 3) Exhibit C — Revised Computation of Billings submitted on May 28, 1986. 4) Exhibit D — an affidavit executed by [petitioner] to the effect that she has no more pending or unsettled obligations as far as Toledo Wharf Road is concerned. 5) Exhibit D-1 — Statement of Work Accomplished on the Road Restoration of Cebu-Toledo wharf project.

6) Exhibit E — another affidavit executed by [petitioner] attesting that she has completely paid her laborers at the project located at Babag, Lapulapu City

performance. In view of these facts, we believe Art. 1235 of the New Civil Code is applicable. Art. 1235. When the obligee accepts the performance, knowing its incompleteness and irregularity and without expressing any protest or objection, the obligation is deemed complied with.

7) Exhibits F, G, G-1, G-2, G-3 — Premiums paid by [private respondent] together with the receipts for filing fees. 8) Exhibits H, I, J — certifications issued by OIC, MPWH, Regional Office; Lapulapu City, City Engineer; Toledo City Treasurer's Office respectively, proving that RDC construction has no more collectibles with all the said government offices in connection with its projects.

FINALLY, after a conscientious scrutiny of the records, we find Exhibit "D-1" (p. 85 record) to be a material proof of plaintiff's complete fulfillment of its obligation. There is no question that plaintiff supplied RDC Construction with Item 302 (Bitunimous Prime Coat), Item 303 (Bituminous Tack Coat) and Item 310 (Bitunimous Concrete Surface Course) in all the three projects of the latter. The Lutopan Access Road project, the Toledo wharf project and the BabagLapulapu Road project.

10) Exhibit L — Bill No. 057 under the account of RDC Construction in the amount of P153,382.75 dated August 24, 1985. 11) Exhibit M — Bill No. 069 (RDC's account), in the amount of P1,701,795.00 dated November 20, 1985.

On the other hand, no proof was ever offered by defendant to show the presence of other contractors in those projects. We can therefore conclude that it was Socor Construction Corp. ALONE who supplied RDC with Bituminous Prime Coat, Bituminous Tack Coat and Bituminous Concrete Surface Course for all the aforenamed three projects. 26

12) Exhibit N — Bill No. 071 (RDC's account) in the amount of P47,250.00 dated November 22, 1985. 13) Exhibit O — Bill No. 079 (RDC's account) in the amount of P7,290.00 dated December 6, 1985. As the trial court found: The entries recorded under Exhibit "K" were supported by Exhibits "L", "M", "N", "O" which are all Socor Billings under the account of RDC Construction. These billings were presented and duly received by the authorized representatives of defendant. The circumstances obtaining in the case at bar clearly show that for a long period of time after receipt thereof, RDC never manifested its dissatisfaction or objection to the aforestated billings submitted by plaintiff. Neither did defendant immediately protest to plaintiff's alleged incomplete or irregular

Indeed, while petitioner had previously paid private respondent about P1,400,000.00 for deliveries made in the past, she did not show that she made such payments only after the delivery receipts had been presented by private respondent. On the other hand, it appears that petitioner was able to collect the full amount of project costs from the government, so that petitioner would be unjustly enriched at the expense of private respondent if she is not made to pay what is her just obligation the contracts. WHEREFORE, the decision of the Court of Appeals is AFFIRMED. SO ORDERED.