October 31, 1993
Salvador Baligod, Macario Malagyab alias Baliling, and ten other persons whose identities and whereabouts are unknown were charged with the crime of robbery with homicide in Criminal case No. 17-87 of the Regional Trial Court of the Second Judicial Region stationed in Tabuk, Kalinga-Apayao in an Information which pertinently alleged:
That on or about January 14, 1987, at Barangay Cawagawan, Pinukpuk, Kalinga-Apayao and within the jurisdiction of this Honorable Court the above-named accused, conspiring and confederating together and helping one another, with ten (10) others whose identities and whereabouts are still unknown, did then and there wilfully, unlawfully and feloniously and by means of force and violence take and with intent of gain and against the consent of the owner took and carried away the following properties to wit:
Adidas shoes worth P380.00
2 Maong pant worth P300.00 and
Five Thousand One Hundred Pesos P5,100.00
or a total of P5,780.00, belonging to Federico Narcisa to the damage and prejudice of the owner in the aforesaid amount: that on the occasion of the said Robbery and for the purpose of enabling them to take, steal and carry away the article above-mentioned, herein accused, in pursuance of their conspiracy did then and there wilfully, unlawfully and feloniously and with evident premeditation and taking advantage of their superior number and strength and with intent to kill, sho[o]t Federico Narcisa with different kinds on unlicensed firearms causing his instantaneous death; and on the same occasion of the said robbery with homicide, the same accused did then and there wilfully, unlawfully, and feloniously and with evident premeditation and with intent to kill sho[o]t George Narcisa, a son of Federico, inflicting gunshot wounds upon the right side of his stomach and right upper arm, which ordinarily would cause the death of said George Narcisa, thus performing all the acts of execution which should have produced the crime of robbery with homicide as a consequence, but nevertheless did not produce it by reason of causes independent of the accused’s will, that it is by timely and able medical assistance rendered to said George Narcisa which prevented his death.
The crime is aggravated by evident premeditation abuse of superior strength, treachery and employment of craft. (pp. 5-6, Rollo)
Both accused Baligod and Malagyab pleaded not guilty and after trial, the court a quo, on October 22, 1990, rendered judgment, the dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered finding the accused SALVADOR BALIGOD and MACARIO MALAGYAB alias BALILING guilty beyond reasonable doubt as principals of the crime of ROBBERY WITH HOMICIDE AND FRUSTRATED HOMICIDE under Article 294 par. 1 revised Penal Code, sentencing each of the accused to suffer the penalty of RECLUSION PERPETUA with the accessory penalties provided for by law, and to indemnify the heirs of Federico Narcisa jointly and severally the sum of P30,000.00 without subsidiary imprisonment in case of insolvency pursuant to Article 39 Revised Penal Code as amended RA 5465.
Both accused are further ordered to pay the amount of P5,780.00 to the heirs of Federico Narcisa which is the cash and the value of the personal properties stolen by the said accused.
The detention of the accused starting from August 24, 1987 up to the present shall be deducted from the service of their sentence in accordance with Article 29 revised Penal Code as amended by RA 6127. )pp. 50-51, Rollo)
Both accused appealed. However, accused Salvador Baligod later filed a motion withdrawing his appeal which this Court granted on November 25, 1992 (pp. 69 and 99-A, Rollo). Thus, only the appeal of Macario Malagyab remains to be disposed of. Said appellant simply argues in his single assigned error that the prosecution failed to prove guilt beyond reasonable doubt.
The summary of the Office of the Solicitor general of the background facts of the case is supported by the evidentiary record, and for this reason, the same is hereby adopted, to wit:
In the evening of January 13, 1987, George Narcisa slept in the house of his cousin Antonio Narcisa, which is about two hundred (200) meters from his own house in Cawagayan, Pinukpuk, Kalinga-Apayao (TSN, November 14, 1987, p.37).
The following morning at around 6:15 A.M., George was roused from sleep by someone kicking him and he saw a man, whom he later identified as Salvador Baligod, and a companion pointing their guns at his face (TSN, November 14, 1987, pp. 37-38). Salvador Baligod had an Armalite Rifle while his companion, whom George Narcisa did not recognize, had a .45 caliber pistol (TSN, November 14, 1987, pp. 38-39). The two had ten (10) other companions all of whom were armed (TSN, November 14, 1987, pp. 39, 51). Some of the men wore masks (TSN, November 14, 1987, p. 51).
Salvador told George “We will go to your house” (TSN, November 14, 1987, p. 39). George and his cousin Antonio Narcisa were taken by Salvador and his companions to George Narcisa’s house (TSN, November 14, 1987, p. 39). Eight (8) men went ahead while the remaining four walked behind George (TSN, November 14, 1987, p. 55)
About twenty (20) meters from the house, Salvador ordered George to call out his father (TSN, November 14, 1987, p. 40). George called for his father shouting “papa, papa” (TSN, November 14, 1987, pp. 40, 56).
Inside the house, George’s sister Mildred and his father Federico were having a cup of coffee when they heard George shouting “Papa, papa” (TSN, October 15, 1987, p. 4). As soon as Federico Narcisa came out of the house, Salvador shouted “assault!” (TSN, November 14, 1987, p. 40) and Salvador’s companions started shooting at Federico who died on the spot due to multiple gunshot wounds (TSN, November 14, 1987, p. 40; Exhibit “A” and “A-1″). The armed men then turned their guns a George) and shot him hitting him in the right side of the body (TSN, November 14, 1987, p. 41). One bullet entered the back side of the right arm and exited in the front part (TSN, November 14, 1987, p. 41). Another hit George in the hip and a third hit him in the shoulder below the clavicle (TSN, November 14, 1987, p. 41).
Immediately after Mildred heard the gunshots, three (3) armed men entered their house and pointed their guns at Mildred (TSN, October 15, 1987, p. 5). they took Mildred out to the porch and a fourth man who was wearing a mask that showed only his eyes and mouth came and guarded her (TSN, October 15, 1987, pp. 5-8). The three men went back inside the house and ransacked it (TSN, October 15, 1987, p. 15). They took cash totalling five thousand one hundred pesos (P5,100.00), a pair of “adidas” shoes belonging to her father, and two pairs of maong pants (TSN, October 15, 1987, pp. 14, 16). The masked men guarding Mildred at the porch talked to her and said “Why is it that you are still here. Why did you not transfer ? you should have built your own house near the road, you see what is happening now” (TSN, October 15, 1987, p. 8). Mildred recognized the masked man as appellant Macario Malagyab whom she had known since 1977 when, as a jeepney driver, appellant used to fetch her and George, then in high school, every Friday afternoon from school and take her back every Sunday afternoon to the Sta. Theresita Dormitory (TSN, October 15, 1987, pp. 5-8). Appellant used to talks and joke a lot with his passengers (TSN, October 15, 1987, p. 8)
Another masked man came saying “Bakit ayaw buksan yong baril?” (TSN, October 15, 1987, pp. 9, 10). Mildred answered “who told you that we have a gun (TSN, October 15, 1987, p. 9)”. Whereupon the second masked man tried to lunge at her but the appellant prevented him saying “Don’t do that because she’s a girl ? she is a woman” (TSN, October 15, 1987, p. 9).
George was lying down on the ground after he was shot when he heard the assailants decide to finish him off (TSN, November 14, 1987, p. 42). Upon hearing this, George decided to fight back. He immediately got up and grabbed around piece of wood to hit Baligod who stepped backwards about ten (10) meters to avoid being hit. Baligod tripped and fell down whereupon George threw the piece of wood at Baligod hitting the latter on the left shoulder (TSN, November 14, 1987, pp. 42, 64-65). He ran inside their house, which was only twenty (20) meters away, Just as he heard the sound of gunshots behind him (TSN, November 14, 1987, p. 43).
His sister Mildred was at the porch (TSN, November 14, 1987, p. 43) and inside their house George found that their belongings had been ransacked and topsy-turvey (TSN, November 14, 1987, p. 42). George grabbed a bolo and went out again and those who were chasing him stepped back upon seeing him (TSN, November 14, 1987, p. 44). George chased the attackers who were shooting as they retreated but about fifty meters from the house he became dizzy and collapsed (TSN, November 14, 1987, p. 44). He regained consciousness only at the hospital.
Antonio Narcisa was also hit as a result of the gunfire, sustaining two gunshot wounds, one in the arm and another on his chest.
After the attackers had fled, George was taken to the Provincial Hospital in Bulanao where he stayed for sixteen (16) days before being transferred to the Cagayan Valley Regional Hospital in Tuguegarao where he stayed fro twenty-five (25) days or until February 24, 1987 (TSN, November 14, 1987, pp. 43, 44).
Mildred told her brother George that she knew one of the men to be “Baliling”, a person who was also known to George, but they did not report this to the police because the man was still at large (TSN, November 14, 1987, pp. 70-71). They informed their mother and their Manong about Baliling but agreed to keep the matter to themselves for the meantime out of fear of reprisal (TSN, November 14, 1987, pp. 71-72).
On June 15, 1987, or about five months after the incident, George and Mildred who were now residing in Pantikian, Kalinga-Apayao (TSN, Oct. 15, 1987, pp. 3, 32) heard over the “Radyo ng Bayan” program an announcement that certain members of the “Kurakot” gang were apprehended by PC soldiers and that the victims were requested to come and identify them (TSN, November 14, 1987, p. 44).
On the same day, George went to the PC barracks where he saw and identified Salvador Baligod from the nine (9) people arrested by the PC (TSN, November 14, 1987, pp. 45, 46). On June 18, 1987, Mildred went to the PC barracks and identified appellant as one of the twelve men who shot her father (TSN, October 15, 1987, p. 16). Appellant denied the accusation and told Mildred that he was in Manila at the time of the incident (TSN, October 15, 1987, p. 11). Their conversation confirmed her conclusion that the masked man who guarded her was appellant Macario Malagyab (TSN, October 15, 1987, p.11). (pp. 5-11, Appellee’s Brief)
Appellant’s assails the testimony of the prosecution witnesses Mildred Narcisa and George Narcisa that appellant was one of the 12 armed men who ransacked their house and killed their father Federico Narcisa on the ground that their testimony as to the clothes he (appellant) was wearing at the time of the incident is conflicting. Mildred Narcisa testified that appellant was wearing a long-sleeve shirt and maong pants while George Narcisa testified that appellant was wearing a checkered short-sleeve shirt with maong pants. This inconsistency is a minor matter which does not militate against the veracity of Mildred Narcisa and George Narcisa. Inconsistencies on minor details do not indicate prevarication and will not adversely affect the credibility of witnesses. (People vs. Segwaben, 194 SCRA 239 ).
In another flimsy attempt to discredit the testimony of Mildred and George, appellant points out that their testimony do not tally as to the exact number of persons presented to them at the PC barracks. There is no conflict between the testimony of Mildred and that of George for the simple reason that they did not go to the barracks on the same day and, therefore, would not have been the same persons, detained or otherwise, who were presented as possible suspects.
Appellant casts doubt on Mildred’s testimony that she recognized appellant by way of his voice despite the fact that the man she identified as appellant was wearing a mask during the incident. Identification by the sound of the voice of the person identified is sufficient and acceptable means of identification where it is established that the witness and the accused had known each other personally and closely for a number of years (U.S. vs. Manabat), 7 Phil. 209 ). It is not disputed that Mildred had known appellant since 1977, or ten year prior to the assault, when Mildred regularly rode appellant’s Ford Fiera to and from school for a number of years. On these occasions, appellant used to engage Mildred in conversation, exchanging jokes with her and his other passengers. Mildred entertained no doubts whatsoever as to the identity of appellant. Immediately after the incident she told her brother that one of the masked men was appellant. When she went to the PC barracks, and conversed with appellant and heard his voice, their conversation bolstered her conclusion that appellant was one of the masked men.
Furthermore, the statements and behavior of the masked man who guarded Mildred attest to acquaintance of long standing with Mildred. Thus, the masked man who guarded Mildred asked her the following questions:
Why is it that you are still here? Why did you not transfer? ? you should have built your house near the road, you see what is happening now.” (TSN, October 15, 1987, p.8).
The foregoing statements of the masked man clearly indicate that he knew the Narcisas and was aware that they had always lived far from the road, circumstances that appellant could have known only because of his long acquaintance with the Narcisas and the fact that he had driven Mildred to and from school. By imputing the tragedy that befell the Narcisas to their own failure to move their residence closer to the road, the masked man appeared to deplore the fact that their victims were the Narcisas, especially Mildred whom he had known for a long time, and whom he protected from injury. When another masked man lunged at Mildred, the masked man who guarded her intervened and told the attacking masked man not to hurt Mildred as she is a woman. All these clearly indicate the familiarity and acquaintanceship between Mildred and the masked man whom she identified as the accused-appellant.
Mildred’s failure to immediately disclose to the authorities that one of the masked men was accused-appellant does not detract from the veracity of her testimony. The armed men who killed her father were vicious killers and she was obviously fearful that to identify appellant would alert the others who might cause her harm. Delay or vacillation in making an accusation does not impair the credibility of the witness if such delay is satisfactorily explained (People vs. Elizaga, 73 SCRA 524 ; People vs. Roxas, 73 SCRA 583 ) Mildred’s failure to immediately reveal to the authorities the identity of appellant is fully justified under the circumstance of the case. In one case, a delay of thirty-five days before the victim reported the sexual assault upon her was not considered an unreasonable delay (People vs. Santiago, 197 SCRA 556 ). Tardiness in making an accusation due to fear of reprisal does not impair the credibility of a witness (People vs. Artieda, 90 SCRA 144 ). Anyway, soon after hearing over the radio that certain members of the “Kurakot” gang had been apprehended and that possible victims were requested to identify the malefactors, when thereby her fear of reprisal had been dispelled, Mildred went to the PC barracks and identified appellant as one of the robbers.
In the face of the positive identification of accused-appellant by Mildred, the defense of alibi put forth by appellant cannot prevail (People vs. Esmael, 37 SCRA 601 ; People vs. Carandang, 52 SCRA 259 ). At any rate, this Court has consistently hewed to the rule that findings of fact of the judge who tried the case and heard the witnesses should not be disturbed on appeal, unless there are substantial facts or circumstances, which if properly considered might affect the result of the case (People vs. Brioso, 37 SCRA 336 ). A painstaking search of the record fails to unearth the presence of any fact or circumstance of such weight and significance which would sufficiently negate the correctness of the findings of the trial court.
WHEREFORE, with the modification that the civil indemnity is increased to P50,000.00, the appealed decision is hereby AFFIRMED in all other respects.
Feliciano, Bidin, Romero and Vitug, JJ., concur.
October 31, 1993
Accused-appellant Rodolfo Salinas y Hernandez was accused by the Assistant City Prosecutor of Pasay City of violation of Section 15, Article III of Republic Act No. 6425, as amended, otherwise known as the “The Dangerous Drugs Act of 1972″ committed as follows:
That on or about the 27th day of January, 1992, in Pasay City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, Rodolfo Salinas y Hernandez, without authority of law, did then and there wilfully, unlawfully and feloniously sell and deliver to another Methamphetamine Hydrochloride (shabu), a regulated drug.
Contrary to law. 1
Rodolfo Salinas pleaded not guilty and after trial the Regional Trial Court, Branch 116 of Pasay City rendered a decision * dated 31 July 1992, the dispositive part of which reads:
WHEREFORE, accused Rodolfo Salinas y Hernandez is found guilty beyond reasonable doubt of selling and delivering methamphetamine hydrochloride or “shabu”, a regulated drug, in violation of Section 15 of Republic Act No. 6425, The Dangerous Drugs Act of 1972, as charged in the aforequoted Information, and he is sentenced to suffer the penalty of life imprisonment and to pay a fine of P20,000.00. 2
On appeal to this Court, the accused-appellant assigns the following errors to the trial court:
. . . IN HOLDING THAT THE TOO MANY DISCREPANCIES AND CONFLICTING TESTIMONIES OF PROSECUTION WITNESSES REFER ONLY TO MINOR DETAILS WHICH THEREFORE CANNOT AFFECT THEIR CREDIBILITY.
. . . IN NOT HOLDING THAT THE PROSECUTION MISERABLY FAILED TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT, ANCHORING ITS VERDICT NOT ON ESTABLISHED FACTS BUT RATHER ON CIRCUMSTANTIAL EVIDENCE NOT DULY PROVEN.
. . . IN APPLYING AGAINST THE ACCUSED THE DISPUTABLE PRESUMPTION THAT OFFICIAL DUTY HAD BEEN REGULARLY PERFORMED. 3
The evidence for the prosecution is contained in the testimonies of PO2 Benito Basilio, Jr., SPO3 Ely Ramos both policemen assigned to the Southern Police District and Leslie B. Chambers, a Forensic Chemist of the Philippine National Police Crime Laboratory Service.
Briefly stated, the circumstances which led to the arrest of the accused-appellant are as follows:
1. At about 10:00 a.m. on 27 January 1992, a civilian informant reported to the office of the Intelligence Operations Group of the Southern Police District Command the rampant “shabu” peddling along Vergel St., Pasay City. Accused-appellant Rodolfo Salinas was identified as one of those engaged in the illegal trade.
2. Commanding Officer Danilo Caseres then formed a team composed of SPO3 Ely Ramos, SPO1 Manolito Tobias, PO2 Benito Basilio, Jr., PO2 Richard Palomata and PO2 Rolando Losaria to verify the report and conduct a buy-bust operation.
3. After confirming the information given by the civilian informant, a buy-bust operation was planned with PO2 Basilio acting as the poseur-buyer. Four (4) P100-bills were then marked with the letters “IOG”, meaning Intelligence Operations Group, and xerox copies thereof were made.
4. At around 9:30 p.m. on the same day (27 January 1992), the buy-bust team proceeded to Vergel St. together with their informant who introduced Basilio to Rodolfo Salinas as a buyer of “shabu”. Rodolfo Salinas asked Basilio how much “shabu” he was buying. PO2 Basilio said he wanted P400 worth and handed the four (4) marked P100-bills to Salinas who then handed him (Basilio) a small plastic packet containing a white crystalline substance, Basilio then made the pre-arranged signal by scratching his head, whereupon the other members of the team who were positioned at strategic places and who were observing the transaction, arrested the accused-appellant, Rodolfo Salinas.
5. The four (4) marked P100-bills were recovered from Salinas and the white crystalline substance was verified to be Methamphetamine Hydrochloride (shabu) by Forensic Chemist Leslie B. Chambers.
For his defense, accused-appellant Rodolfo Salinas asserts that he was “framed”. He claims that at about 8:00 in the evening of 27 January 1992, he was on his way home when he passed by Clarita’s store and some friends invited him to have a few rounds of beer with them. After having a bottle of beer, he excused himself so he could buy bread at a nearby bakery for his breakfast the next morning.
Rodolfo Salinas testified that it was while he was on his way to the bakery that two (2) men confronted him. One of them pointed a gun at him while the other showed him a white plastic packet and told him, “This is yours, you are a pusher.” 4 He was then brought to Fort Bonifacio and questioned by the police and asked to name the drug pushers in Vergel St. One of the policemen allegedly asked him for P20,000.00 in exchange for his liberty. It was when he told them he had no money that he was brought to the Pasay City Prosecutor’s Office for further investigation. 5 Marlyn Salazar corroborated Salinas’ version of the events which led to the arrest. 6
In this appeal Rodolfo Salinas enumerates the following alleged contradictions and inconsistencies in the prosecution’s evidence, which support his acquittal:
1. It is not clear whether a surveillance operation was conducted prior to the alleged buy-bust operation; and assuming that a surveillance operation was conducted, the exact time was not established as the testimonies of the police officers mention a surveillance operation at 11:30 a.m. on 27 January 1992 and another, after the team was formed at around 6:00 p.m. on the same day.
2. It was not clear who designated PO2 Benito Basilio to act as the poseur-buyer. PO2 Basilio had testified that it was his commanding officer Lt. Caseres who designated him to be the poseur-buyer while SPO3 Ely Ramos testified that it was he who assigned Basilio to be the poseur-buyer.
3. It was not clear what time the buy-bust team was formed. PO2 Basilio testified that the team was formed after a civilian informant came and reported to Lt. Danilo Caseres the rampant selling of shabu along Vergel St., Pasay City. SPO3 Ely Ramos, on the other hand, testified that the team was formed at around 6:00 p.m. of 27 January 1992.
4. It is not clear how many vehicles the buy-bust team used in going to Vergel St. PO2 Basilio testified that they hired three (3) tricycles while SO3 Ely Ramos said they used only two (2).
5. It is not clear whether or not the members of the buy-bust team arrived simultaneously at Vergel St. PO2 Basilio testified that they arrived simultaneously while SPO3 Ely Ramos testified that the other members arrived five (5) minutes later.
6. It is not clear how the sale of the “shabu” took place. PO2 Basilio testified that the accused, Rodolfo Salinas asked him how much “shabu” he was buying and he answered P400.00 and he handed the four (4) P100 marked bills to the accused who after counting the money handed the small plastic packet to him (Basilio). On the other hand, SPO3 Ely Ramos testified that after Basilio was introduced to the accused, he asked for P400.00 worth of “shabu” and after some conversation the accused handed the “shabu” to Basilio who then gave the pre-arranged signal for the buy-bust team to arrest the accused Rodolfo
It is a long settled rule that the commission of the crime of illegal sale of prohibited or regulated drugs is considered consummated once the sale transaction is established. 8
In the case before us, the sale of “shabu” by the accused Rodolfo Salinas to the poseur-buyer PO2 Benito Basilio, Jr. was established by the latter’s testimony. The trial court gave credence to the testimony of Basilio over the testimonies of the defense witnesses. A close and careful scrutiny of the records of this case shows no reason to disturb the findings of the trial court regarding the credibility of the witnesses for the prosecution, specially since they are police officers who are presumed to have regularly performed their official duties, the contrary not having been proven. 9
The alleged contradictions and inconsistencies are, in the main, minor and immaterial since the sale of the regulated drug was clearly and categorically established by the testimony of the poseur-buyer, PO2 Benito Basilio, Jr. The testimony of SPO3 Ely Ramos regarding the sale of “shabu” by the accused Rodolfo Salinas to PO2 Basilio cannot be expected to be as detailed and as accurate as the latter’s account because it was only Basilio who actually approached and transacted with Salinas while SPO3 Ely Ramos stayed some distance away and strategically positioned himself so he could see Basilio make the pre-arranged signal for the arrest of Salinas. The minor inconsistencies as to the details of the sale of “shabu” may be considered as badges of truth rather than of falsehood.
WHEREFORE, it having been clearly established that the accused-appellant Rodolfo Salinas did indeed sell and deliver “shabu”, a regulated drug, to PO2 Benito Basilio, Jr., the constitutional presumption of innocence has been overcome by proof beyond reasonable doubt. The appealed decision is hereby AFFIRMED with costs against the appellant.
Narvasa, C.J., Regalado, Nocon and Puno, JJ., concur.
1 Rollo, p. 12.
* Penned by Judge Alfredo J. Gustilo.
2 Rollo, p. 17.
3 Rollo, p. 32.
4 Rollo, p. 39.
5 TSN, 2 June 1992, pp. 10-15.
6 TSN, 27 May 1992, pp. 3-7.
7 Rollo, pp. 43-47.
8 People vs. Santiago, G.R. No. 94472, 3 March 1992, 206 SCRA 733.
9 People vs. Collantes, G.R. No. 97146, 8 May 1992, 208 SCRA 853.
November 8, 1993
G.R. No. 100700
SOFRONIO MARTINADA, DAVID MARTINADA, ANDRES MARTINADA, LILIA MARTINADA YEPES, LYDIA MARTINADA MACARISAS, MARINO MARTINADA AND ZENAIDA MARTINADA MODESTO, petitioners,
DOROTEA BAUTISTA, ELPIDIO BAUTISTA, ANICETO BAUTISTA, VERONICA B. ALVAREZ, CORNELIO BAUTISTA, JR. FILOMENO BAUTISTA AND THE HON. COURT OF APPEALS, respondents.
Domingo M. Ballon for petitioners.
Romeo B. Ruiz for private respondents.
This is a petition for review on certiorari of the Resolution[] promulgated on February 8, 1991 of the Court of Appeals[] in C.A-G.R. Sp No. 24069 denying herein petitioners’ Petition for Review as well as the June 28, 1991 Resolution[] of the same court denying petitioners’ Motion for Reconsideration.
The undisputed fact are as follows:
Private respondent Dorotea Bautista, Elpidio Bautista, Aniceto Bautista, Veronica B. Alvarez, Cornelio Bautista, Jr. and Filomeno Bautista are the heirs of the late Cornelio Bautista, registered owner of a property designated as Lot 3, Block 15 situated at 3020 3rd Street, Guadalcanal Street, Sta. Mesa, Manila covered by TCT No. 51930.
Sometime in 1958, Cornelio Bautista allowed petitioners Sofronio Martinada (now deceased), David Martinada, Andres Martinada, Jr., Lilia Martinada Yepes, Lydia Martinada Macarisas, Marino Martinada and Zenaida Martinada to occupy the subject property for a monthly consideration of P100.00
On April 29, 1980, Cornelio Bautista filed an ejectment case against petitioners with the then City Court of Manila on the ground that the latter were not paying their monthly rentals since July 15, 1958.
Petitioners, however, alleged that they have been occupying the subject property since 1956 when it was still vacant, swampy and ownerless; that the National Housing Authority disapproved their applications to purchase the subject property but instead awarded it to Cornelio Bautista; that sometime in 1958, Cornelio Bautista had verbally agreed to lease the subject property to them through petitioner Sofronio Martinada for a monthly consideration of P100.00 which can be offset by whatever expenses they may incur for the improvement of the subject property; that they have spent P60,000.00 for the filling materials to improve the condition of the subject property, and that sometime in 1980, private respondents demanded that they vacate the subject property but they refused unless they were reimbursed for the expenses they had incurred in the improvement of the subject property.
On May 2, 1990, the Municipal Trial Court rendered its decision, the dispositive portion of which reads, as follows:
WHEREFORE, judgment is hereby rendered:
1. Ordering the defendants and all persons claiming rights under them to vacate the premises situated at Lot 3, Block 15, 3020, 3rd Street, Guadalcanal, Sta. Mesa, Manila and turn over the possession thereof to the plaintiffs;
2. Ordering defendants to pay the sum of One Hundred (P100.00) a month starting July 15, 1958, less whatever payments, if any, made by the defendant to the plaintiff, representing the rental due the premises; up to and until defendants shall have vacated the premises;
3. Ordering the defendants to pay the amount of P2,000.00 as Attorney’s Fees, plus costs of this suit.[]
On appeal by the petitioners to the Regional Trial Court, said appellate court on December 27, 1990 modified the decision of the trial court, the dispositive portion of which reads, as follows:
WHEREFORE, the Court AFFIRMS the appealed decision with the modification that defendants and all persons claiming rights under them are ordered to vacate the premises situated at Lot 3, Block 15, 3020 3rd Street, Guadalcanal Street, Sta. Mesa, Manila, and to surrender possession thereof to the plaintiffs; to pay plaintiffs the sum of P100.00 a month from February 15, 1980 until they vacate the premises, and to pay plaintiffs P2,000.00 as attorney’s fees and costs.[]
Not satisfied with said decision, petitioners filed a Petition for Review with the respondent Court of Appeals which was denied in a Resolution promulgated on February 8, 1991.
Thereafter, petitioners filed a Motion for Reconsideration which was likewise denied by the respondent Court of Appeals in a Resolution promulgated on June 28, 1991. Hence, this instant petition.
We find the petition unmeritorious.
Time and again, we have adhered to the principle that the appellate jurisdiction of the Supreme Court is limited to reviewing errors of law that may have been committed by the lower court. The Supreme Court is not a trier of facts. It leaves these matters to the lower court, which has the opportunity and the facilities to examine these matters. The Court has repeatedly declared its policy of deferring to the factual findings of the trial judge, who has the advantage of directly observing the witnesses on the stand and to determine their demeanor whether they are telling or distorting the truth.[] Findings of fact of the Court of Appeals are final and binding upon this Court unless it is shown that they are grounded entirely on speculations, surmises or conjectures.[] In the instant case, we have carefully reviewed the records and found the findings of facts of the lower courts to be fully supported by the evidence.
Petitioners’ contention that they have a better right to the subject property having been in prior possession, cannot operate to divest private respondents of their rights as the registered owners. The fact that private respondents did not reimburse petitioners for the alleged expenses they incurred for the improvement of the subject property is no justification for their refusal to vacate the property. As held by the respondent appellate court:
Second, . . . . the evidence shows that the premises belong to the plaintiff (herein private respondent Cornelio Bautista), covered as it is by TCT No. 51930. The property was awarded by the National Housing Authority to the plaintiff sometime in 1958. Defendants (herein petitioners) claimed the property as prior occupants but the NHA did not validate their claim.
Third, We cannot subscribe to defendants’ contention that they could not be ejected because they were allowed to stay in the premises by a certain Mr. Sofronio Martinada who had a verbal contract of lease with the titled owner, Mr. Cornelio Bautista. Allegedly, pursuant to this verbal contract, defendants can stay in the premises at a monthly rental of P100.00 which can be offset by whatever they would spend for its improvement. The evidence to support this allegation is scant, to say the least. The petition does not show the authority of Mr. Martinada to sub-lease the premises. Indeed, the claim of a verbal contract can be easily concocted.
Fourth, the trial court correctly held that the stay of the defendants in the premises is due to the tolerance of the plaintiffs. The tolerance ended in 1980 when plaintiffs formally demanded they vacate the premises. Defendants cannot cling to the premises by asking that they be paid for the improvements they mad on the premises. They rely on Article 546 of the Civil Code. the reliance is misplaced. The Article does not apply to lease relationships. Moreover, the alleged improvements worth P60,000.00 has not been clearly established in the petition.[]
WHEREFORE, the instant Petition for Review on certiorari is hereby DISMISSED. The questioned resolutions of the respondent appellate court are AFFIRMED in toto. Costs against the petitioners.
Narvasa, C.J., Padilla and Regalado, JJ., concur.
Puno, J., took no part.
[] Rollo, pp. 10-11.
[] Fifth Division; Penned by Justice Reynato S. Puno with the concurrence of Justice Oscar M. Herrera and Justice Abelardo M. Dayrit.
[] Rollo, p. 13.
[] Id., at p. 16.
[] Court of Appeals’ Rollo, p. 19.
[] Bernardo, et al., vs. Court of Appeals, G.R. 101680, December 7, 1992.
[] Consolidated Dairy Products Co. vs. Court of Appeals, 212 SCRA 810 .
[] Rollo, pp. 10-11.
October 31, 1993
Rape is a crime which is not normally committed in the presence of witnesses, hence, courts merely rely on the credibility of both complainant’s testimony as weighed against the credibility of the accused. 1 Understandably, accused-appellant zeroes in on the alleged inconsistencies in the rape victim’s testimony to extricate himself from criminal liability. Denying any such inconsistencies, the People point out to the stark-naked fact that the accused-appellant hid for fifteen (15) years right after the rape to elude arrest. Yielding to the Court’s constitutionally derived power to review all criminal cases in which the penalty of reclusion perpetua is imposed, 2 accused-appellant leaves his fate to the court’s disposition.
As synthesized by the Solicitor General, the facts of the case are as follows:
On 15 November 1970, at about 7:00 A.M. complainant Alejandra Evangelista was sent by her parents Ignacio Evangelista and Mercedes Evangelista to get her father’s gun at her sister’s residence in Mangatarem, Pangasinan. She was then sixteen (16) years old and a grade five pupil of Quetegan Elementary School (TSN, January 14, 1986, p.2).
Complainant walked from their residence in Barangay Calumbuyan, Mangatarem, Pangasinan to Quetegan, Pangasinan and from there she rode on a mini-bus going to Mangatarem town proper. By noon of the same day, complainant went home by taking a jeep to Barangay Quetegan and from there she had to walk, passing Barangays Bulalacao and Linmansangan, to reach Barangay Calumbuyan. (Ibid, p. 3).
While along the road to Barangay Bulalacao, complainant noticed that she was being followed by two individuals. Complainant identified the first as the appellant but she did not recognize his companion. Soon the appellant and his companion parted ways and the former continued following the complainant.
Moments later, appellant was able to overtake the complainant. Suddenly appellant held the complainant and thrust a knife at the right side of her neck (Ibid, p. 4). He pulled the complainant toward the bushes about ten (10) meters away from the house of the Diaz Family. Appellant continued to drag her to a forested area about fifteen (15) meters from the road (Ibid, p. 5) where he pushed the complainant to the ground and she fell on her back. Appellant immediately knelt and, with his right hand, he removed his pants. Complainant attempted to stand but she was pushed again by the appellant (TSN, January 27, 1986, p. 4). While the appellant was on his knees, he pulled down the complainant’s trouser and her underwear.
Complainant pleaded not to touch her but she was ignored by the appellant. As the complainant continued to resist, appellant slapped her on both sides of the face and then held her shoulders as he started to insert his penis into her vagina. Despite the complainant’s resistance, appellant succeeded in inserting his penis.
Appellant continued to satisfy his desire on the complainant while the latter tried to push and kick the appellant until she was able to free herself from the appellant’s hold. Complainant immediately stood and ran toward the road while shouting for help. An old man named Mama Ado de la Cruz responded but by the time he reached the place where the complainant was molested, appellant had already run away. (TSN, January 14, 1986, p. 6).
Dela Cruz took the complainant to the house of Barangay Captain of Bulalacao where she waited for her parents. When her parents arrived, they reported the incident to the municipal health officer who accompanied them to San Carlos General, San Carlos City, Pangasinan. (Ibid, p. 7).
The medico-legal examination on the complainant was made by Dr. Juanita Abrenio. Her examination was offered as Exhibit “A” which is reproduced as follows:
This is to certify that ALEJANDRA EVANGELISTA, 16 years old, single and resident of Calumb(o)yan, Mangatarem, Pangasinan had been examined in this hospital on November 15, 1970, with the following findings:
1. Linear abrasions, left thigh;
2. Lacerated wound at the 3rd digit, right foot;
1. Hymen showed lacerations at 12:00 o’clock, 3:00 o’clock and cechymosis at 1:00 o’clock;
2. Vaginal bleeding, slight (menstrual flow).
3 Vaginal introitus admits one (1) finger with difficulty.
1. Vaginal smear – negative for sperm cells.
The abovementioned injuries will heal with medical attendance and in the absence of complications fro three (3) to five (5) days. 3
Unfortunately, accused-appellant managed to evade arrest for fifteen (15) years. Thus, while Alejandra Evangelista, the rape victim, filed the complaint on November 17, 1970 ? two days after the rape, 4 ? the Information charging accused-appellant with Rape was filed only on July 2, 1985, 5 after he was arrested s month before the filing of said Information. 6
On April 2, 1987, the trial court rendered judgment finding accused-appellant guilty as charged, sentenced him to suffer the penalty of reclusion perpetua and to pay the offended party the amount of P30,000.00 as moral damages. 7
Hence, this appeal where accused-appellant faults the trial court in convicting him despite:
(1) the contradictory or. inconsistent testimony of the complainant Alejandra Evangelista thereby creating doubt. . . . (as to) the crime charge(d); and
(2) failure of the prosecution to prove his guilt beyond reasonable doubt 8
Accused-appellant claims that a “deep perusal” of Alejandra’s two sworn statements, the first being taken during the first stage of the preliminary investigation conducted by Municipal Judge of Mangatarem, and second taken at the office of the 153rd PC detachment at Mangatarem, Pangasinan, “shows glaring irreconcilable inconsistencies and contradictions that brings doubts and suspicion of (sic) the crimes charge(d).” 9 He asks the Court to consider the following:
1. In her direct testimony, complainant Alejandra Evangelista testified that she was walking ahead of the accused and the latter was following her with a companion whom she failed to recognize (TSN, Jan. 27, 1986, p. 4) Whereas in her sworn statement, she stated that she was following the accused and the latter stopped and waited for her.
2. Continuing her testimony, she declared that accused was able to catch up with her and overtake her. The accused poked a balisong at her right neck and pulled her to a forested area. (TSN, Ibid, p. 5). In her sworn statement, she stated that when she got near the accused, the latter embraced her, held her and dragged her in the bushes of an isolated area.
3. She testified as well that accused removed first her pant(ies) and accused followed this by removing his pants and went on top of her (Ibid, p. 5). It appears on her affidavit that accused first removed his pants and trousers and then followed her panty and went on top of her.
4. She declared that accused had sexual intercourse with her for about ten (10) minutes (Ibid, p. 5). but in her sworn statement she said it took him more than two (2) minutes to have sexual act with her.
5. That when accused had sexual intercourse with her, she struggled by kicking him but she was slapped on her right and left face. She was able to extricate herself after accused had successfully molested her. She ran away and shouted for help and she met Aldo de la Cruz who helped her retrieve her pant(ies) at the scene of the crime. She was brought by dela Cruz at the house of Brgy. Captain of Linmansangan (Ibid, p. 6). Compared this to her sworn statement, she stated that after the accused had sexual contact with her for about two minutes, he took hold of her nipple and boxed her several times on her thigh and stomach. She tried to escape and shouted for help and when accused overtook her again, she was kicked, her hair was grabbed and pulled. She fell to the ground with her face downward and accused stepped on her several times. Then several person who heard her shout came to her rescue and helped her gather her things. Then Aldo dela Cruz was called by these persons to identify her. 10
On the other hand, the Solicitor General claims that accused-appellant’s contention is without merit because:
Appellant never presented during the trial the two allegedly inconsistent statements of complainant. Hence, the complainant was deprived of the chance to explain the alleged discrepancies, Under section 13, Rule 132 of the Rules of Court of the Philippines, complainant’s testimony can not be impeached by mere allegation of those previous statements . . . .
xxx xxx xxx
. . . (said) provision mandates the proper procedure for impeaching a witness by evidence of alleged inconsistent statements. This procedure requires “laying of the predicate,” that is: (a) by confronting the witness with such statements, with the circumstances under which they were made; (b) by asking him whether he made such statements, and (c) by giving him the chance to explain the inconsistency. If the statements were made in writing, the documents must be shown to the witness before he may be asked to explain the discrepancy. Unless the witness is given the opportunity to explain the inconsistency, the impeachment is incomplete (Regalado, Remedial Law Compendium, Sixth revised Edition, p. 537, Citing U. S. vs. Baluyot, 40 Phil. 385; People vs. Rosabal, 50 Phil. 780; People vs. Escosura, 46 O.G. 918 et al). In the case at bar, the appellant never raised the alleged inconsistent statements during the trial. Consequently, such statements cannot now be used to impeach
Be that as it may, issues not raised in the court below cannot be raised for the first time on appeal. 12 But even assuming that it was the prosecution itself which offered said sworn statements as part of the People’s evidence and accused-appellant is now pointing out the inconsistencies between Alejandra’s sworn statements and her testimony in court ? and therefore obviating the need of impeaching her testimony by means of prior inconsistent statements 13 ? the alleged inconsistencies, if any, do not militate against her credibility as the Court has repeatedly held that since sworn statements are most always incomplete and inaccurate and do not disclose the complete facts for want of inquiries or suggestions, 14 said sworn statements are generally considered to be inferior to the testimony given in open court. 15 Accordingly, accused-appellant’s first assignment of error has no merit.
Accused-appellant harps on the alleged pregnancy of the complainant resulting from the alleged rape incident and her eventual abortion a month later. He states that such is not possible for she was menstruating at the time of the alleged rape. 16
The Solicitor General explains that vaginal bleeding of the complainant was caused by the sudden penetration of appellant’s penis in her vagina. He says that the words “menstrual flow” in the medical report were in parentheses because the examining physician was not positive that the slight vaginal bleeding was also caused by the complainant’s menstrual period. 17
Vaginal bleeding is NOT an element in rape as what is important is that the rape victim testified that the appellant sexually abused her with force and intimidation and against her will. 18 When a rape victim says that she has been raped, she says in effect all that is necessary to show that rape has been committed, 19 and her testimony meets the test of credibility, the accused can be convicted on the basis thereof 20 because as related in People vs. Uliti:
[N]o decent and sensible woman will publicly admit being a rape victim and thus run the risk of public contempt ? the dire consequence of a rape charge ? unless she is, in fact, a rape victim (People vs. Paringit, 189 SCRA 478) (At page 12)
Neither is the alleged pregnancy an important element in the crime charged, its relevancy being only that if the offended party had given birth to a live baby then the accused-appellant would be ordered to support the fruit of his lecherous desires. 21
Accused-appellant claims further that:
There is no ample evidence on record to support the trial court’s finding that complainant received death threats from the accused after the incident. This finding would run counter to prosecutions theory that after the incident, accused was never seen in their barangay and went into hiding and surfaced only after two years. Thus, how could accused make good his threat on complainant if he was nowhere to be found. 22
On the other hand, the Solicitor General contends that:
Complainant’s statement that she received death threats from appellate is credible. Appellant lived only two hundred (200) meters away from the house of complainant. Hence, it was not impossible for appellant to display threatening gestures at complainant who was compelled to work in Manila for several years in order to get away from the appellant. . . . 23
We have gone over the testimony of the offended party and we find no evidence that complainant received death threats from accused-appellant right after the rape incident.
What the Court finds is that the accused-appellant threatened the rape victim with a “balisong” at the time he was raping her in order to intimidate her into submitting to his carnal desire, as shown by the complainant’s testimony in the court below, to wit:
Q. Now as you were walking along from Quetegan bound to your house in Calumboyan through Bulalacao, and Linmansangan, did you see accused Cristituto Alegado?
A. Yes, sir.
Q. Where did you see him?
A. I saw him on the crossing of the road at Barangay Bulalacao and Linmansangan.
Q. What was he doing when you saw him?
A. Walking, sir.
Q. Was he alone?
A. They were two, sir.
Q. Did you recognize his companion?
A. Not so much. I did not recognize him well, sir.
Q. Do you know the name of his companion?
A. No sir.
Q. When you were walking alone and the accused ran, his companion whom you do not know were following you, what happened?
A. When I was walking along the road and Cristituto Alegado and his companion, was also walking following me, the other companion left him and then this Cristituto Alegado catch up with me and upon overtaking me, he poked his balisong at me, then held me and pulled me, sir.
xxx xxx xxx
Q. Now, you said that Alegado, the accused, pointed something at your neck, what was that which he pointed to you?
A. Balisong, sir.
Q. Where, specifically, at your neck?
A. Here, sir, below my right ear.
Q. What did he say, if any, when he pointed that balisong at the right side of your neck?
A. He told me not to talk, sir.
Q. What did you do when you were told not to talk?
A. I cried, sir.
Q. And earlier, you stated that he placed his arms around and pulled you to where you were laid by Alegado?
A. He pulled me up to the forested area, sir.
xxx xxx xxx
Q. Upon reaching that forested area, what happened?
A. He pushed, me, sir.
Q. When he pushed you, what happened to you?
A. I fell on my back, sir.
Q. What did the accused do when the pushed you and pulled you at your back, What did he do?
A. He first pointed his balisong at my neck and then removed my pant(ies) then removed his pants and then went on top of me, sir.
Q. When the accused went on top of you, what did you do?
A. I cried, sir.
Q. Did you say anything when he went on top of you?
A. None, sir.
A. He first slapped me, sir. At first, I told him not to touch me after which he slapped me left and right of my face and then held my two shoulders and then inserted his penis inside my vagina, sir.
Q. When the accused inserted his private part on your vagina, what did you do?
A. I struggled, sir, by pushing him but I cannot do anything because he is stronger in holding my two shoulders.
Q. How long did the penis of the accused stayed inside your vagina?
A. About 10 minutes, sir.
xxx xxx xxx
Q. Now, how many hands did he use in removing his pants?
A. He removed his pants with his hand and the other hand is holding a balisong and the hand that is holding that he used in holding the balisong is his left hand, sir.
Q. Now, we go back to the time when you were being pulled by the accused, what hand did he use in holding the balisong when he poked the balisong?
A. Right hand, sir.
Q. How do you know that it was the right hand of the accused?
A. I saw it, sir. 24
While Alejandra’s mother testified that she saw accused-appellant for the first time in their barangay only after two years 25 which, of course, the latter vehemently denied, 26 what is important in considering flight as an indication of guilt is the period when the accused-appellant was arrested in relation to the filing of the complaint Accused-appellant managed to elude arrest for fifteen (15) years as can be seen from the order of the municipal trial court, as follows:
O R D E R
In the order of the court dated November 17, 1970, accused was given P25,000.00 Bail Bond for his temporary liberty. After this court has carefully examined the circumstances of the case, it finds out that the order of the court in 1970 needs an amendment for the following reasons:
That the accused Cristituto Alegado has evaded the law for about fifteen (15) years, and that the offense committed by him is very grave punishable by reclusion perpetua to death;
That accused is publicly known to be notorious, and has been threatening the complainant when she and her witness testified against him as per statement of the mother of the complainant;
WHEREFORE, and in view of the foregoing, the order of the former judge dated November 17, 1970 imposing the Bail Bond of accused to be P25,000.00 is hereby amended and that NO BAIL is recommended.
SO ORDERED. 27
As the Court recently held in People vs. Castor: 28
All the protestations of innocence by the accused-appellant are belied by his flight . . . . It has long been settled that the flight of the accused is competent evidence against him as having tendency to establish his guilt (U.S. vs. Alegado, 25 Phil. 510 ); unexplained flight is a circumstance from which an inference of guilt may be drawn, for the wicked flee even when no man pursueth; but the righteous are as bold as a lion (U.S. vs. Sarikala, 37 Phil. 486 ; see also, People vs. Garcia, G.R. No. 69581, 21 May 1992). 29
Lastly, accused-appellant claims that:
[T]he attitude and demeanor of Mercedes Evangelista, mother of complainant is improper, unnatural, and unfitting from a person being aggrieved of the alleged heinous act of the accused. This can be gleaned from her testimony, to wit:
Q. After that when you saw him you never talked to him neither did he talk to you, is that correct?
Q. You never reprimanded to (sic) the accused or show any anger when you first saw him after the incident?
A. No, sir.
Q. You never showed to him when you saw him any sign of anger?
A. None, sir.
Q. You smiled at him when you saw him?
A. Yes, sir but I kept silent. 30 (Emphasis in the original)
The Solicitor General, on the other hand, explains the “Mercedes Evangelista’s (the mother of complainant) reaction was intentional so as not to invite a violent reaction from the appellant or cause him to flee and elude arrest once more.” 31
In fact, in answer to the trial court’s clarificatory question, the complainant’s mother stated that she reacted in the way she did to psychologize the accused so he won’t be angry at her:
I want to clarify.
xxx xxx xxx
Q. Earlier, you said that two years after the incident, the accused appeared, you just kept silent, why?
A. So that he could psychologize me that I am not angry at him, sir. (sic) 32 (emphasis supplied)
As correctly suggested by the Solicitor General, Alejandra’s mother wanted to create the impression that she had already accepted the fact of Alejandra’s rape and was no longer seeking justice ? in order to give accused-appellant a false sense of security, and enable the police authorities to arrest him and stand trial for the rape.
WHEREFORE, finding no merit in the appeal, the Decision of the court below, finding accused-appellant Cristituto Alegado y Bullo guilty beyond reasonable doubt of the crime of rape is hereby affirmed.
Narvasa, C.J., Padilla, Regalado and Puno, JJ., concur.
1 People vs. Tereso, 194 SCRA 154.
2 Section 5, subsection 2(d), Article VIII, Constitution.
3 Rollo, pp. 137-140.
4 Ibid., p. 19.
5 Ibid., p. 6.
6 Original Records, p. 11.
7 Decision, People vs. Alegado, Criminal Case No. L-3258, April 2, 1987, penned by the Hon. Cornelio W. Wasan, Sr., presiding judge, Lingayen RTC, Branch 39; Rollo, pp. 22-31.
8 Rollo, p. 92.
10 Op cit., pp. 93-94.
11 Ibid., pp. 142-144.
12 People vs. Buendia, 210 SCRA 531, the appellants therein attached affidavits to their brief by which they wanted to show that the vacant lot near the scene of the buy-bust operation, where they were arrested for selling marijuana did not exist. The Court dismissed the same noting that:
. . . . (they were) belatedly submitted, and therefore raising a nagging question as to their credibility, no explanation is given why the affidavits were not submitted before the trial court (At page 539)
13 Section 13, Rule 132, Rules of Court.
14 People vs. Dominguez, G.R. No. 100199, January 18, 1993.
15 People vs. Dabon, G.R. No. 102004, December 16, 1992.
16 Rollo, p. 94.
17 Ibid., p.147.
18 People vs. Mabunga, G.R. No. 96441, November 13, 1992.
19 People vs. Sueta, G.R. No. 94549, August 9, 1993 citing People vs. Aboneda, 169 SCRA 530 and other cases.
20 People vs. Uliti, G.R. No. 103403, August 24, 1993 citing People vs. Calixtro, 193 SCRA 303 and People vs. Isip, Jr., 188 SCRA 648.
21 Paragraph No. 1(3), Article 345, RPC.
22 Rollo, p. 95.
23 Ibid., p. 148.
24 TSN January 14, 1986, pp. 4-6; TSN January 27, 1986, p. 4.
25 Ibid., May 13, 1986, p. 6.
26 Ibid., October 30, 1986, pp. 3, 4, 8, 9, and 10; January 15, 1987, p. 2; February 5, 1987, pp. 2 and 5.
27 Original Record, p. 14.
28 G.R. No. 93664, December 11, 1992.
29 At p. 11.
30 Rollo, p. 95.
31 Ibid., p. 148.
32 TSN, May 13, 1986, p. 8.
October 31, 1993
Convicted of the crime of robbery with homicide in Criminal Case No. 88-372 before the Regional Trial Court of Quezon City, Branch CIII, accused Felimon Java y Mercado interposed this present appeal. Enumerating eight (8) errors which the trial court allegedly committed, he dutifully discussed each of them and insisted on his innocence. Sequentially, we will analyze the merit of each of the said errors, to wit:
. . . . IN HOLDING THAT SALVADOR CAMBAYA POSITIVELY IDENTIFIED ACCUSED-APPELLANT AS A PRINCIPAL ACTOR IN THE COMMISSION OF THE CRIME AT BAR.
. . . . IN HOLDING THAT ACCUSED-APPELLANT COMMITTED ROBBERY AGAINST THE PERSONS OF MICHAEL VALDEZ AND VIRGINIA VALDEZ.
. . . . IN GIVING CREDENCE TO THE TESTIMONY OF PASTOR VALDEZ IN SPITE THE FACT THAT HIS TESTIMONY WAS NOT FORMALLY OFFERED BY THE PROSECUTION.
. . . . IN HOLDING THAT VIRGINIA VALDEZ POSITIVELY IDENTIFIED ACCUSED-APPELLANT AS A PRINCIPAL ACTOR IN THE COMMISSION OF THE CRIME AT BAR.
. . . . IN FINDING ACCUSED-APPELLANT GUILTY OF THE CRIME OF ROBBERY WITH HOMICIDE
. . . . IN FINDING ACCUSED-APPELLANT GUILTY OF THE CRIME OF ROBBERY WITH HOMICIDE BASED ON EVIDENCE NOT ON RECORD.
. . . . IN NOT GIVING CREDENCE TO TESTIMONY OF COL. RODOLFO GARCIA AND OTHER DEFENSE WITNESSES.
. . . . IN NOT GIVING CREDENCE TO THE DEFENSE OF ALIBI OF ACCUSED-APPELLANT. 1
The facts upon which the trial court based its decision convicting the accused are as follows:
At about 3:00 p.m. on March 19, 1988, at the V. Valdez Trading, a gravel and sand establishment located at P. Tuazon Street, Cubao, Quezon City, two men appearing to be customers, arrived. One of them proceeded to the office building while the other approached Salvador Cambaya a truck helper, while the latter was weighing cement in front of the establishment. This man poked a gun at Cambaya, announced a hold-up, divested him of his P20.00 and ordered him to enter the office building where he and other employees and a customer were gathered in front of the counter by the man identified later as accused Felimon Java. The other man ransacked the drawers and found some money which he took. Then he proceeded to the room where Michael Valdez, the son of the owner of the establishment was. Michael was heard as saying “Wala sa. akin ang susi” and “walang pera diyan”. The employees gathered in front of the counter also heard something being destroyed and after a while, saw the man rush out holding a brown envelope. The two men hurriedly left.
Meanwhile, Virginia Cabate Valdez, the mother of Michael Valdez, was at the beauty parlor in front of their establishment. She was informed by the owner of the parlor that a commotion was going on at their place. She rushed out and was informed by her son, Michael, that they had just been robbed of P50,000.00. Since Michael decided to run after the holduppers and he could not be stopped from doing so, she boarded the car of Michael, a ‘Toyota, and went with him. They drove along 20th Avenue and turned left, at Boni Serrano where Michael saw and pointed to the get-away vehicle of the holduppers, which was a maroon-colored passenger jeepney. Michael bumped the jeepney several times and turned left at Katipunan Road. However, the holduppers followed them and bumped their car several times at the rear and sides. Somewhere further along the Katipunan Road, one of the holduppers fired a gun hitting the rear glass of Michael’s car. While the jeepney was side by side with their car, he fired more shots at them hitting Michael on the torso and on the left side of his body. As a result, Michael died. The holduppers sped away towards Quirino Labor Hospital.
Salvador Cambaya described to the Quezon City cartographer the physical characteristics of the man who accosted him as follows: “5’5″ and taas, mga 28-30 an edad, maitim, mabilog ang katawan, kulot na medyo maikli ang buhok, pabilog din ang mukha,” 2
On the other hand, Mrs. Valdez described the man who killed her son as:
Bilog ang mukha, maitim, bilog ang katawan, mga 35-40, kulot ang buhok. 3
On August 25, 1988 at around 11:00 a.m., Pat. Zaragosa, a police operative, went to see Mrs. Valdez and asked her whether she would be able to recognize the man who killed her son if she saw him again. Answering in the affirmative, she was brought to Quezon City Hall and advised to be observant. When they were on a street near the office, of the Metro Manila Commission, she saw a man inside the building which was 20 to 25 meters away. She could see him from the neck up as the latter was facing the window. She positively declared that he was the gunman and could not be wrong because she could not forget the face, especially the eyes of the man who shot her son.
As a result of such identification, accused was arrested on August 26, 1988 and on August 29, 1988, an information was filed with the Regional Trial Court of Quezon City charging him with the crime of Robbery with Homicide, which read as follows:
That on or about the 19th day of March, 1988, in Quezon City, Philippines, and within the jurisdiction of this Court, the said accused, conspiring together, confederating with and mutually helping one another, with intent of gain, with violence and/or intimidation of person, did, then and there, willfully, unlawfully and feloniously (sic) VIRGINIA VALDEZ y CABOTE and MICHAEL VALDEZ y CABOTE, mother and son respectively, by then and there, pointing their respective firearms at them and thereafter take, rob and divested the victims’ collection for the day amounting to P50,000.00, Philippine Currency, to the damage and prejudice of the said owner thereof in the total sum; that on the occasion of the said robbery, the said accused, conspiring together, confederating with and mutually helping one another, with intent to kill attack, assault and employ personal violence against Michael Valdez y Cabote, by then and there shooting him with a .38 cal. revolver marked Smith and Wesson, hitting him on his left breast, thereby inflicting him serious and mortal wounds which were the directed and immediate cause of his death, to the damage and prejudice of the heirs of the said Michael Valdez in such amount as may be awarded under the provisions of the Civil Code.
CONTRARY TO LAW. 4
At the trial of the case, Salvador Cambaya and Mrs. Valdez recounted the aforesaid facts. Mrs. Valdez testified that her family spent P13,833.20 for the Manila Memorial Park lot, P55,000, for the funeral services and P20,000.00 for the wake or a total of P48,833.20.
Pastor Valdez, Michael’s father testified that his establishment lost P50,000.00 to the robbers. He explained that Michael had collected P40,000.00 from a customer in Taguig, Rizal and the P10,000 came from the proceeds of the sale of construction materials that day. He handed the P10,000.00 to Michael to be placed together with the P40,000.00 in the cabinet.
The defense evidence consisted, among others, of the testimony of accused Felimon Java and his witnesses, namely Col. Rodolfo Garcia, Patrolman Jose Malasa and Pfc. Mario Almariego. All their testimonies evinced the theory that accused could not have committed the crime charged as he was at the office of Colonel Rodolfo Garcia, who was then the Station Commander of the Quezon City Police Force at the precise time and date as that of the commission of the offense.
Felimon Java testified that he was a former Quezon City policeman; that he was dismissed from the service on April 24, 1987 in view of an administrative case against him for violation of domicile; that when he was separated from the service, he bought a tricycle to earn a living; that in the month of July, 1988, he was a member of the Quezon City People’s Patrol serving as security guard for Sonny Pumarada; and that from August 1, 1988 up to the time of his arrest, he was working as civilian agent of Western Sector Command, Malacañang Park, Metro Manila. On August 26, 1988, he was at Quezon City Hall particularly at the Metro Manila Commission Compound, together with one Sgt. Caingles, conducting a surveillance, when he was apprehended by Patrolman Zaragosa and brought to the office of one Major Rosales at Kamuning, EDSA. He claimed that Major Rosales, being the Supreme of the Guardians Chapter and Pat. Zaragosa, a member thereof, had both an ax to grind against him because on January 13, 1987, he, shot dead two marines who were members of the Guardians who attacked their headquarters at Kamuning, Quezon City during, the coup attempt. He was then a sentinel at the said police headquarters.
On March 19, 1988, from 2:30 to 4:00 p.m., he was at the office of Col. Rodolfo M. Garcia asking for a letter of recommendation to Col Guillermo Domondon for his reinstatement to the service. He presented to the court said letter of recommendation dated March 19, 1993 quoted herein as follows:
Col. Guillermo Domondon
C, C1 Division
Camp Crame, Q.C.
Please help bearer, Pat Felimon Java in this reinstatement
He brought the letter of recommendation to Col. Domondon but was informed by one Rodriguez that the latter was out of town and that anyway, he already had a recommendation from Colonel Jaro, an aide of then Gen. Fidel Ramos. He didn’t know about that Jaro recommendation but remembered that he had previously sought Col. Jaro to accompany him to see Col. Domondon when he was with the People’s Patrol.
Pfc. Mario Almariego and Patrolman Jose Malasa corroborated his claim that he was at the office of Col. Garcia between 2:00 to 4:00 o’clock p.m. of March 19, 1988 for the purpose of securing a recommendation and that he lingered for some more time after getting the same.
Col. Rodolfo M. Garcia likewise confirmed the visit of the accused but also admitted that his office is swarmed with visitors everyday and he cannot memorize the names of people who see him.
He also said that the accused visited him again after he gave that note of recommendation asking for assistance to get employed. He, remembered recommending him to a certain Sonny Pumarada who works at the Quezon City Hall.
After trial, accused was convicted of the offense charged, the dispositive portion of which read as follows:
ACCORDINGLY, judgment is hereby rendered finding FELIMON JAVA Y MERCADO GUILTY beyond reasonable doubt. as principal for the crime of Robbery with Homicide. Said Felimon Java is hereby sentenced to suffer a jail term of RECLUSION PERPETUA
On the civil aspect said accused Felimon Java is hereby ordered to pay the spouses Pastor and Virginia Valdez the sum of P150,000.00 in relation to the robbery at bar, the sum of P50,000.00 as actual damages for the death of their son Michael Valdez, the sum of P100,000.00 as moral damages and another P100,000.00 as exemplary damages. No costs.
SO ORDERED. 6
Going through the eight assignments of errors allegedly committed by the trial court we note that the thrust of the defense particularly in the first assignment of error is centered on the want of positive identification of the perpetrator of the crime. The accused-appellant harped on the disparity in the cartographs of the supposed suspects, Exhibits “E” and “C”, based on the descriptions given by the prosecution witnesses Salvador Cambaya and Virginia Valdez, respectively.
While conceding that the cartographs do not portray the same person, a comparison, however, of ‘the descriptions given by said prosecution witnesses in their respective sworn statements previously quoted herein shows that except for the age range of the accused-appellant, all the details agree and point to one and the same person. Both descriptions speak of a person with a circular face, stocky physique and curly hair. Thus, it is not the witnesses’ fault if the cartographs came up with slightly different drawings of the accused-appellant. The cartographer could have perceived declarations along different lines. Nevertheless, the important factor is that both witnesses identified the accused-appellant in court when they came face to face with him and pinpointed to him respectively as one of the robbers and the gunman.
While the evidence as to the identity of the accused-appellant as the person who committed the crime should be carefully analyzed, the Court has consistently held that where conditions of visibility are: favorable and the witness does not appear to be biased against the man on the dock, his or her assertions as to the identity of the malefactor should be normally accepted. 7
The witnesses in this case, particularly Mrs. Valdez, had a clear recollection of the identity of the assailant of her son. She categorically declared that she had a good look at him and could not forget his face, particularly his eyes. She was not the kind of person that would perjure herself just to get a man into trouble. She had no motive for filing the case against the accused-appellant other than to seek redress not so much for the loss of the earnings of their establishment but more so for the death of her son. In the face of her clear and positive testimony regarding the accused-appellant’s role as the gunman of her son, as well as Cambaya’s positive identification of the same person as the man who accosted him, there is no mistaking that accused-appellant is one of the perpetrators of the crime.
Accused-appellant next claims in his second and third assignments of errors, that the prosecution failed to establish the fact of robbery because only two witnesses testified to the same, namely: Cambaya, who declared that accused-appellant got his P20.00, and Pastor Valdez, whose testimony was not offered by the prosecution at the time he testified in court on November 14, 1989 and hence cannot be considered pursuant to Sections 34 and 35 of Rule 132 of the Revised Rules of Court.
Indeed, Section 34, Rule 132 of the Revised Rules of Court requires that for evidence to be considered, it should be formally offered and the purpose specified. This is necessary because judge has to rest his findings of fact and his judgment only upon the evidence offered by the parties at the trial. 8
Under, the new procedure as spelled out in Section 35 of the said rule which became effective on July 1, 1989, the offer of the testimony of a witness must be made at the time the witness is called to testify. The previous practice was to offer the testimonial evidence at the end of the trial after all the witnesses had testified. With the innovation, the court is put on notice whether the witness to be presented is a material witness and should be heard, or a witness who would be testifying on irrelevant matter or on facts already testified to by other witnesses and should therefore, be stopped from testifying further.
In the case at bar, we note that Pastor Valdez was not one of the witnesses originally intended to be presented by the prosecution. He was merely called to the witness stand at the latter part of the presentation of the prosecution’s evidence. There was no mention why his testimony was being presented. However, notwithstanding that his testimony was not formally offered, its presentation was not objected to either. Section 36 of the aforementioned Rule requires that an objection in the course of the oral examination of a witness should be made as soon as the grounds therefor shall become reasonably apparent.. Since no objection to the admissibility of evidence was made in the court below, an objection raised for the first time on appeal will not be considered. 9
Besides, even if the testimony of Pastor Valdez were not admitted, the robbery was established by the testimony of Cambaya who not only stated that his P20.00 was taken at the point of a gun but that accused-appellant’s companion ransacked their office, found and fled away with some money. He was not sure only of the exact amount taken. At any rate, the amount stolen came to be known when Mrs. Valdez who rushed to their office, after being informed of a commotion therein, testified to being informed by her son, Michael, that they have been robbed of P50,000.00. This statement is admissible as part of the res gestae, having been made immediately after a startling occurrence and before the declarant had time to concoct matters so that his utterance at that time was merely a reflex product of his immediate sensual impression. Said statements is admissible in evidence as one of the exceptions to the hearsay rule on the ground of trustworthiness and necessity.
Zeroing in on Mrs. Valdez’ identification of her son’s assailant, subject of the fourth assignment of error, accused-appellant pointed out that at the time of the car chase, Mrs. Valdez was so tense, nervous and excited, continually hugging her son until the time that he was shot, so that her attention must have been focused on her son and not on the assailant. On top of that, Mrs. Valdez who was wearing eyeglasses admitted that she was crying at that time, so much so that the accused-appellant surmised that her glasses must have misted and blocked her vision.
Accused-appellant’s conjectures have no basis in fact and collide with Mrs. Valdez’ testimony that she had a good look at the assailant in the passenger jeep. Indeed some circumstances do not always produce the same effects as accused-appellant would want us to believe. Considering the relative positions of the passenger jeepney where the accused-appellant was riding in and the Toyota car driven by the victim with his mother as passenger, which were running side by side at high speed when the shooting occurred, we find it impossible for the assailant not to be seen and identified by Mrs. Valdez. A witness usually strive to remember the uncovered face of the assailant. 10 This, Mrs. Valdez must have done.
Accused-appellant’s fifth and sixth assigned errors center on the alleged failure of the prosecution to prove that those who committed the robbery and those who killed the victim are one and the same persons as to establish the crime of robbery with homicide.
Not only are these arguments fallacious but have no leg to stand on. Prosecution witness Salvador Cambaya positively identified the accused-appellant as one of those who held him up as well as the establishment where he works. While Mrs. Valdez identified the same accused-appellant as the jeep passenger who shot and killed his son. Hence, the connection between the robbery and the homicide was sufficiently established.
True, the robbers in the case at bar had already fled with their loot when the shooting of the victim took place during his hot pursuit of the culprits. It is settled that where the deceased attacked and stopped the robbers when they had already come out of the store where the robbery was committed and got killed in the process, it cannot be denied that the act of killing was done in order to repel an aggression which, had it been effective, would have endangered the whole success of the robbery committed. it was done, in the final analysis, in order to defend the possession of the stolen property. It was therefore an act which tended to insure the successful termination of the robbery and secure to the robbers the possession and enjoyment of the goods taken. 11
It has also been held that where the deceased followed the robbers after he had been robbed and by reason thereof, he was fired upon by one of the robbers, the crime is robbery with homicide. 12
The same is true even if the murder was perpetrated at a place different from that of the robbery and after an appreciable interval of time. 13
As to accused-appellant’s defense of alibi, subject of the seventh and eighth assignment of errors, accused-appellant contends that the same is supported by the testimony of no less than Colonel Rodolfo M. Garcia, Station Commander, QCPS, now Central Police District, who would not have sacrificed his name and integrity by testifying in his favor if it not true that he was in the colonel’s office at the time of the commission of the offense. While it may be true that accused-appellant indeed sought Col. Garcia’s recommendation for reinstatement to the service on the date in question as borne out by the letter of recommendation itself, which is dated March 19, 1988, such fact does not conclusively prove that accused-appellant was at the colonel’s office on said date and time as that of the commission of the crime charged. There was no logbook which recorded his visit, nor the date and time thereof; nor was the letter of recommendation recorded as having been issued by the colonel’s office on said date. Hence, there is no independent proof showing that Col. Garcia issued said letter on March 19, 1988. The good Col. Garcia even admitted that he could not remember the other people who visited him on said day or any day for that matter. Likewise, the trial judge noted that accused-appellant presented this defense only long after the case has gone to trial and more importantly, he noticed that the testimony of accused-appellant himself provided the clue that indicated that his defense predicated on alibi has been merely contrived. Said the Judge in his decision:
1. The centerpiece of the defense theory is the note of recommendation of Col. Rodolfo Garcia for Felimon Java dated March 19, 1988. On the date the accused by his own testimony, was still a tricycle driver as he joined the Quezon City People’s Patrol only on July 1988 upon the recommendation of Col. Garcia.
The testimony of Col. Garcia is that he recommended the accused to Mr. Pumarada of the Quezon City People’s Patrol after that March 19, 1988 visit made by Java to him. But according to Java, when he went to the office of Col. Domondon to present the note of recommendation issued by Col. Garcia, a sergeant Rodriguez there told him that the Garcia note is unnecessary already because he already has the Jaro Letter attached to Java’s record. Consequently, the Col. Jaro note must have preceded the Col. Garcia note-which is what the defense wanted to convey. Yet, in the latter part of Java’s narration in court he stated that he was already with the People’s Patrol when Col. Jaro accompanied him to Col. Domondon. Inasmuch as (the) Col. Jaro note came ahead of (the) Col. Garcia note and by the time the Col. Jaro note was given the accused was already in the Quezon City People’s Patrol, then the Col. Garcia note could not have been issued on March 19, 1988 when Java was still a tricycle driver. 14
Thus, notwithstanding the stature of accused-appellant’s witnesses, their testimonies may be disregarded in the light of the other defense evidence at hand. Testimony to be believed must not only proceed from a credible witness but must be credible in itself and be able to stand the test of scrutiny along with the other testimonies. Thus, the accused-appellant’s invocation of alibi is unavailing not only by reason of its inherent weakness but also because of the circumstances pointing to its contrived nature and his positive identification by the prosecution witnesses as one of the persons who participated in the robbery and shot the victim.
In recapitulation, not even one of the eight arguments of accused-appellant in support of his appeal proved its worth as an error. Not a tinge of doubt was created on the guilt of the accused-appellant. On the other hand, the prosecution evidence showed that the positive identification made by of him by no less than two prosecution witnesses was direct, clear and positive.
WHEREFORE, the decision appealed from is hereby AFFIRMED in toto being in accordance with law and the established facts of the case.
Narvasa, C.J., Padilla, Regalado and Puno, JJ., concur.
1 Rollo, p. 59-60.
2 Records, p. 263
3 Ibid., p. 248
4 Rollo, p. 3.
5 Records, p. 262
6 Rollo, p. 32-33.
7 People v. Alvarez, G.R. No. 70446, 169 SCRA 730 (1989) citing People v. Bernat, G.R. No. 55176, 120 SCRA 918 (1983) and People v. Zapanta, 45 O.G. (1312)
8 People v. Pecardal, G.R. No. 71381 (1986)
9 Asombra v. Dorado, 36 Phil. 883.
10 People v. Cruz, G.R. No. L-37173, 133 SCRA 426 (1984) and People v. Alvarez, supra.
11 People v. Gordon, 104 Phil. 371; People v. Salamuddin No. 1, 52 Phil. 670.
12 People v. Moises, 104 Phil. 1054.
13 People v. Estabillo, 11 Phil. 150.
14 Rollo, p. 30.
October 31, 1993
Illegal recruiters constitute one of the worst vultures of our society today. They prey on the gullible, and often, they victimize the already marginalized Filipinos who will do anything to improve their economic status. The case before us involves one of their kind.
Accused-appellant Manuel de Guia y Samonte was convicted by the Regional Trial Court of Manila, Branch XLI, 1 of the crime of Illegal Recruitment in large scale 2 and three (3) counts of Estafa, 3 in violation of Article 38 of the Labor Code, as amended and Article 315 (2) (a) of the Revised Penal Code, respectively.
The Information in each case reads as follows:
1. Criminal Case No. 92-103341:
That in (sic) or about and during the period comprised between May 23, 1991 and December 11, 1991, inclusive, in the City of Manila, Philippines, the said accused, conspiring and confederating with one whose true name, identity and present whereabouts are still (unknown) and mutually helping each other, representing himself to have the capacity to contract, enlist and transport Filipino workers for employment abroad, did then and there wilfully and unlawfully for a fee, recruit and promise employment/job placement abroad to Cirilo Lising y Mercado, Monteza (sic) Gazmin y Pascual, Leopoldo Realino y Arceo and Jesus Sumalinog y Carin, without first having secured the required license or authority from the Department of Labor and Employment.
Contrary to law. (Rollo, p. 4)
2. Criminal Case No. 92-103342:
That on or about November 24, 1991, in the City of Manila, the said (accused,) conspiring and confederating with one whose true name, identity and present whereabouts are still unknown, and mutually helping each other, did then and there wilfully, unlawfully and feloniously defraud Leopoldo Realino y Arceo in the following manner, to wit: the said accused by means of false manifestations and fraudulent representation which he made to said Leopoldo Realino y Arceo to the effect that he had the proper (authority) and capacity to recruit and employ said Leopoldo Realino y Arceo as factory worker in Japan and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof, and by means of other similar deceits, induced and succeeded in inducing said Leopoldo Realino y Arceo to give and deliver, as in fact he gave and delivered to said accused the amount of P120,000.00 on the strength of said manifestations and representations, said accused well knowing that the same were false and fraudulent and were made solely to obtain, as in fact he did obtain the amount of P120,000.00, which amount once in his possession, with intent to defraud he, wilfully, unlawfully and feloniously misappropriated, misapplied and converted to his own personal use and benefit, to the damage and prejudice of said Leopoldo Realino y Arceo in the aforesaid amount of P20,000.00 Philippine Currency. (Rollo, pp. 5-6)
3. Criminal Case No. 92-103343:
That on or about and during the period comprised between October 3 and December 11, 1991, inclusive, in the City of Manila, Philippines, the said accused conspiring and confederating with one whose true name, identity and presents whereabouts are still unknown and mutually helping each other did then and there wilfully, unlawfully and feloniously defraud Jesus Sumalinog y Carin (in) the following manner, to wit: the said accused by means of false manifestations and fraudulent representation which they made to said Jesus Sumalinog y Carin to the effect that he had the proper (authority) and capacity to recruit and employ said Jesus Sumalinog y Carin as . . . contract worker in Japan and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof, and by means of other similar deceits, induced and succeeded in inducing said Jesus Sumalinog y Carin to give and deliver, as in fact he gave and delivered to said accused the amount of P50,000.00 on the strength of said manifestations and representation, said accused well knowing that the same were false and fraudulent and were made solely to obtain, as in fact he did obtain the amount of P50,000.00 which amount once in his possession, with intent to defraud he, willfully, unlawfully and feloniously misappropriated, misapplied and converted to his own persona use and benefit, to the damage and prejudice of said Jesus Sumalinog y Carin in the aforesaid amount of P50,000.00 Philippine Currency. (Rollo, pp. 7-8)
4. Criminal Case No. 92-103344:
That on May 23, 1991, in the City of Manila, Philippines, the said accused, conspiring and confederating with one whose true name, identity and present whereabouts are still unknown and mutually helping each other did then and there willfully, unlawfully and feloniously defraud Monteza (sic) Gazmin y Pascual in the following manner, to wit: the said accused by means of false manifestations and fraudulent representation which he made to said Montesa Gazmin y Pascual to the effect that he had the power and capacity to recruit and employ said Montesa Gazmin y Pascual as factory worker in Korea and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof, and by means of other similar decits, induced and succeeded in inducing said Montesa Gazmin y Pascual to give and deliver, as in fact she gave and delivered to said accused the amount of P30,000.00 on the strength of said manifestations and representations, said accused well knowing that the same were false and fraudulent and were made solely to obtain, as in fact he did obtain the amount of P30,000.00 which amount once in his possession, with intent to defraud he, wilfully, unlawfully and feloniously misappropriated, misapplied and converted to his own personal use and benefit, to the damage and prejudice of said Montesa Gazmin y Pascual in the aforesaid amount of P(30,000.00) Philippine Currency. (Rollo, pp. 9-10)
Upon arraignment, the accused pleaded not guilty to the offenses charged. The cases were tried jointly.
The prosecution presented the four (4) private complainants (Cirilo Lisong, Montessa Gasmin, Leopoldo Realino and Jesus Sumalinog) as witnesses. They testified as follows:
CIRILO LISING, a 41-year old farmer from Gapan, Nueva Ecija testified that in August 1991, he was summoned by his brother-in-law, Jose (Jhun) Cruz, to fix the septic tank in his house. 4 There, he was introduced to the accused and a certain Loida de Guia who represented themselves to be husband and wife. The two were boarders in Cruz’ house. 5 While fixing the tank, the couple engaged him in a conversation and told him they could facilitate his employment in Korea. He was informed that the placement fee was forty thousand pesos (P40,000.00). Relying on the couple’s representations, he decided to try his luck abroad. The couple promised him a job as factory worker in Korea with an income of $500.00 per month. They asked him to prepare an initial amount of nine thousand seven hundred pesos (P9,700.00) for his plane fare. They told him that he could pay for the balance of the fee when he reach Korea for upon his arrival, he would receive a two-months cash advance on his salary. He agreed. 6
On August 12, 1991, he submitted to the accused his passport and biodata in their office, ML Promotions, at Room 102, Marrieta Apt., 1200 J. Bocobo Street, Ermita, Manila. He handed the amount of P9,700.00 to Loida and the latter issued and signed a receipt therefore. 7
Lising, however, failed to leave for Korea. He then verified the status of the agency from the POEA and discovered that the accused and Loida were not licensed recruiters. 8 Thus, on February 13, 1992, he complained to CIS PO3 Romeo M. Cerezo and gave a written statement. 9
On cross-examination, Lising produced two (2) calling cards of ML Promotions: one showed Loida de Guia as the general manager while the other showed the accused as its travel consultant. 10
MONTESA GASMIN, a 19-year old, high school graduate from San Juan, Tarlac testified that she learned from her cousin, Joey Lino, that the accused and Loida de Guia were engaged in job placement overseas. On May 15, 1991, she asked her cousin to accompany her to the couple’s Ermita office where the accused informed her that they deploy workers to Korea. Relying on said representation, she applied as a factory worker in Korea and accomplished the corresponding application form. She was told that she would earn $500.00 per month and was asked to pay thirty thousand pesos (P30,000.00) to cover her traveling expenses. 11
She gave the couple the required amount in two (2) installments, viz: P10,000.00 on May 23, 1991 and P20,000.00 on June 4, 1991, as evidence by two (2) receipts of even date. 12 She gave the money to Loida who signed the receipts in her presence. 13 The couple assured her that she could leave for Korea by the end of June 1991. The promise proved to be false. On July 14, 1991, she again went to the couple’s office in Ermita to follow-up her departure. Again, the spouses assured her that she would be allow to leave on the succeeding week. Nothing came out of the promise. Thus, together with the other private complainants, she reported the matter to the CIS Camp Crame where she executed her written statement. 14
LEOPOLDO REALINO, a 42 year-old driver, residing at Balibago, Angeles City testified that her brother, Roger, brought him to the couple’s recruitment office in Ermita where he met the accused. He inquired from the accused whether he could work out his employment in Japan. The accused replied in the affirmative. Still undecided, he told the accused he would just come back. 15
Sometime in August 1991, he returned to their Ermita office and applied as a contract worker in Japan. The accused told him to prepare one hundred twenty thousand pesos (P120,000.00). He was also asked to fill up and sign an application form. 16
On November 4, 1991, Leopoldo went to their office and handed the money to the accused. The accused then ordered Loida, whom Leopoldo met for the first time, to prepare the necessary receipt. 17 The accused failed to employ him in Japan despite repeated promises. He demanded the return of his money but to no avail. He, together with his companions, went to no avail. He, together with his companions, went to the POEA where they discovered that the accused was not licensed to recruit workers for overseas employment. With the intention of confronting the accused, they proceeded to their Ermita office but were informed that the accused was already detained at Camp Crame. Thus, they went to Camp Crame where they gave their statements. 18
The last witness for the prosecution was JESUS SUMALINOG, an industrial electrician from Makati. He testified that he first met the accused in May 1991 in the accused’s Ermita office where the inquired about the possibility of employment of Japan. The accused interviewed him. The accused told him that the cost of processing his papers would run from P85,000.00 to P95,000.00. However, when Sumalinog intimated that he could only afford to pay P50,000.00, the accused conferred with Loida, who was introduced by the accused as his wife. The couple then agreed to be paid P50,000.00 and he was told to fill up an application form. He was informed that he could work as a contract worker in a computer firm where he would earn $1,200.00 per month. The couple asked him to prepare the money. 19
Sumalinog gave the money to the accused in four (4) installments, thus: P10,000.00 on October 3, October 30, November 18 and November 21, 1991; P8,000.00 on November 25, 1991; and finally, P2,000.00 on December 11, 1991. In each instance, the accused instructed Loida to prepare the receipts and the same were duly issued and signed by Loida. 20
The two assured Sumalinog that he could leave after two (2) weeks. Failing to leave as promised, he was again made to wait for another two (2) weeks. Still, the accused did not make good with said promise. 21
He then went to the POEA where he discovered that the accused was not licensed to recruit workers for overseas employment. He sought the accused in his Ermita office but found out that the accused was already in the custody of the CIS. He talked with the accused in Camp Crame and the latter asked him not to file any complaint. The accused assured him that his money would be returned. He did not head said request and filed the complaint at bar. 22
The evidence of the accused rests mainly on denial and alibi. He alleged that he was not a recruiter but a driver by profession from 1970 up to December 1991. He contended that he could not have participated in the recruitment of complainants since from May to December 1991, he was employed at RTS Trading Associate Corporation where he reported for work from 7:00 o’clock in the morning until 5:00 o’clock in the afternoon. He was employed as a driver delivering various merchandise for the corporation. He alleged that after work, he always went straight home to Montalban, Rizal. 23
He further testified that his legal wife is Paula Diones and the he has no illicit relationship with one Loida de Guia. According to the accused, he first met Loida in the latter’s house in Baclaran in May 1991. He met Loida to secure overseas employment for his son. He again went to Loida’s house in July 1991 to follow-up his son’s employment application. Further, the accused claimed that he met the complainants only while he was already detained in Camp Crame. 24
Renato Samonte, owner of RTS Trading and a childhood friend of the accused, corroborated his alibi. He testified that the accused acted as his part-time driver from May 1991 until December 1991. 25
On the basis of the above evidence, the trial court found the accused guilty beyond reasonable doubt of the crimes charged. The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered as follows:
1. In Crim. Case No. 92-103341, finding the accused Manuel de Guia y Samonte guilty beyond reasonable doubt for (sic) the crime of Illegal Recruitment committed in large scale and hereby sentences the said accused to suffer the penalty of life imprisonment and for him to pay a fine of P100,000.00. The said accused is further hereby ordered to pay the complainant Cirilo Lising the sum of P9,700.00 as and by way of actual damage;
2. In Crim. Case No. 92-103342, finding the accused Manuel Guia y Samonte guilty beyond reasonable doubt for (sic) the crime of Estafa and hereby sentences the said accused to suffer an indeterminate sentence ranging from Eight (8) years and One (1) day of prision mayor as minimum to Fourteen (14) years Five (5) months and Eleven (11) days of reclusion temporal as maximum and for the said accused to indemnify the complainant Leopoldo Realino the sum of P120,000.00 as and by way of actual damage;
3. In Crim. Case No. 92-103343, finding the accused Manuel de Guia y Samonte guilty beyond reasonable doubt for (sic) the crime of Estafa and hereby sentences the said accused to suffer an indeterminate sentence ranging from Three (3) years Six (6) months and Twenty One (21) days of prision correccional as minimum to Seven (7) years Five (5) months and Eleven (11) days of prision mayor as maximum and for the said accused to indemnify the complainant Jesus Sumalinog the sum of P50,000.00 as and by way of actual damage; and
4. In Crim. case No. 92-103344, finding the accused Manuel de Guia y Samonte guilty beyond reasonable doubt for (sic) the crime of Estafa and hereby sentences the said accused to suffer an indeterminate sentence ranging from One (1) year Eight (8) months and Twenty One (21) days of prision correccional as minimum to Five (5) years Five (5) months and Eleven (11) days also of prision correccional as maximum and for the said accused to indemnify the complainant Montesa P. Gazmin the sum of P30,000.00 as and by way of actual damage.
Costs against the accused.
SO ORDERED. (Rollo, pp. 20-30)
Accused appealed to this Court raising the following assignment of errors:
THE TRIAL COURT ERRED IN FAILING TO PROSECUTE THE REAL MALEFACTOR, LOIDA DE GUIA, WHO SHOULD HAVE BEEN INCLUDED AS ONE OF THE ACCUSED CONSIDERING THAT SHE ISSUED AND SIGNED THE RECEIPTS EVIDENCING THE PAYMENTS ALLEGEDLY MADE BY THE PRIVATE COMPLAINANTS AND WHICH WERE THE ONLY BASES FOR FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT.
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BEYOND REASONABLE DOUBT ON THE BASIS OF THE PAUCITY OF THE EVIDENCE FOR THE PROSECUTION (receipts of payments) ALTHOUGH THE SAME ARE INADMISSIBLE IN CHARACTER FOR BEING PURELY HEARSAY EVIDENCE.
THE LOWER COURT ERRED IN (UP) HOLDING THE UNLAWFUL ARREST OF THE ACCUSED IN A PUBLIC PLACE WITHOUT ANY WARRANT OR PROCESS ISSUED BY A COMPETENT COURT.
The first (2) assigned errors are interrelated and shall be discussed together.
Appellant’s position is that the real perpetrator of the charges imputed against him is Loida de Guia whose signature appears on all the receipts issued to the complainants. He submits that his mere presence at the Ermita office everytime the complainants paid the required fees cannot be made the basis of a finding that he was involved in the illegal recruitment of private complainants. He contends that Loida de Guia should have been charged as the proper accused.
Appellant’s submission deserves scant consideration. To begin with, appellant did not raise this argument in the trial court. It is too late to raise it on appeal. More importantly, the Informations against the appellant show that the appellant was charged with “conspiring and confederating with one whose true name, identity and present whereabouts are still unknown. . . . ” From the evidence, this co-conspirator is Loida de Guia who pretended to be the wife of herein appellant. There is no obstacle for the State to charge this person who goes by the name of Loida de Guia as soon as her true identity and address become known to the prosecution. Her non-prosecution at this state, however, provides no ground for the appellant to fault the decision of the trial court convicting him.
Appellant also erred in dismissing the receipts issued by Loida de Guia as hearsay evidence. The records show that Leopoldo Realino and Jesus Sumalinog testified that they personally handed the money representing the required fees to herein appellant. The latter, in turn, instructed Loida to prepare the corresponding receipts. This was after private complainants were made to believe that the accused and Loida, aside from being husband and wife, were jointly operating the recruitment business, with the former as travel consultant and the latter as the general manager. The evidence shows that the receipts were signed by Loida in the presence of the complaining witnesses. Consequently, Realino and Sumalinog had personal knowledge of the circumstances surrounding the issuance of these receipts and their testimonies cannot be considered as hearsay evidence.
It is not also correct to argue that the guilt of the appellant was based alone on the receipts issued by Loida de Guia. All the complaining witnesses testified that the accused took an active and direct part in misrepresenting that he had the authority and the power to facilitate their employment abroad. Aside from their testimonial evidence, calling cards were presented showing the accused to be the Travel Consultant of said agency, with Loida as the General Manager. Moreover, the evidence also showed that it was the accused who asked the applicants to fill up their applications and to prepare their respective biodata. He also demanded from them varying amounts of money as processing fees. All these show that the accused and Loida de Guia, who are not licensed recruiters, adopted a systematic and elaborate scheme to defraud the complainants through false promises of jobs abroad.
We are not also impressed by the defense of the appellant. Glaring inconsistencies marred his short testimony. At one time, he testified that he was arrested by the CIS officers at a department store in Ermita, Manila. 26 Later on, however, he stated that he was arrested in Marrieta Apartment, located at J. Bocobo Street, Ermita, Manila. 27 He likewise claimed during the trial that he was not aware that Loida de Guia had an office located in Marrieta Apartment, Ermita, 28 but at the same time, he raises in this appeal the defense that he himself has been at the Ermita office to follow-up the job placement of his son in Korea. 29
This is not all. Initially, appellant claimed during the trial that he could not have possibly been at the Ermita office and received payments made by the complainants for he was then employed as a professional driver for RTS Trading. On appeal, however, appellant would have Us believe that during the period from May to December 1991 when private complainants went to the Ermita office to file their application and pay the corresponding fees, accused-appellant “just happened to be there” for he was himself following-up the job application of his son. 30
Appellant’s corroborating witness, Renato Samonte, was equally unimpressive. In fact, Samonte’s testimony rendered the defense’s theory more open to doubt. For one, his testimony that appellant has been in his employ from May to December 1991 was not corroborated by any documentary evidence, such as pay slip/pay roll, certification of SSS contributions and, hence, has little value. Moreover, even assuming that appellant was a part-time driver of Samonte, the nature of his job would not make it physically impossible for him to operate a recruitment business on the side. Time and again, We have ruled that alibi, being a weak defense, must be proved by clear and convincing evidence which should reasonably satisfy the Court of its veracity. 31
The credence of the private complainants is further bolstered by the admission of appellant himself that he does not know of any ill-motive why they would hurl such serious accusations against him. 32 The private complainants were all previously unknown to him.
Finally, appellant’s alleged warrantless arrest will not exculpate him from his guilt as found by the trial court. To be sure, the plea comes too late in the day. We note that upon arraignment, appellant pleaded not guilty to the Information and did not raise the alleged illegality of his arrest. By so pleading, he waived the alleged illegality of his arrest. 33 In People v. Briones, 34 we ruled that the illegality of appellant’s warrantless arrest cannot render all the other proceedings, including the appellant’s conviction, void. It cannot deprive the State of its right to convict the guilty when all the facts on record point to his culpability.
WHEREFORE, premises considered, the decision of the court a quo finding the appellant Manuel de Guia y Samonte guilty beyond reasonable doubt of Illegal Recruitment in Large Scale for having engaged in the business of recruiting the four (4) private complainants for overseas employment without any license or authority from the POEA and three (3) counts of Estafa, for falsely pretending to possess power and qualification to deploy private complainants for overseas employment, is hereby AFFIRMED in toto. Costs against appellant.
Narvasa, C.J., Padilla, Regalado, Nocon and Puno, JJ., concur.
1 Presided by Judge Domingo D. Panis.
2 Docketed as Criminal Case No. 92-103341.
3 Docketed as Criminal Cases Nos. 92-103342, 92-103343 and 92-103344.
4 TSN, April 7, 1992, pp. 3-4, 10.
5 id., pp. 8-9.
6 id., pp. 4-5, 10-12.
7 id., pp. 5, 17-18; Exh. “A”.
8 POEA Certification dated April 2, 1992, Exhibit “C”, Original Records, p. 67.
9 id., pp. 6 & 15.
10 id., p. 8; Exhibits “D” and “E”, respectively.
11 id., pp. 19-21, 31.
12 Exhibits “F” and “G”, Original Records, pp. 70-71.
13 id., pp. 22-23, 31.
14 id., pp. 23-25, 32.
15 TSN, April 8, 1991, pp. 2-4.
16 id., pp. 5-6.
17 Exhibit “I”, Original Record, p. 74.
18 TSN, April 8, 1991, pp. 6-10, 13.
19 id., pp. 16-19.
20 id., pp. 20-22; Exhibits “K” to “K-5″, Original Records, pp. 77-82.
21 id., p. 22.
22 id., pp. 22-24.
23 TSN, April 28, 1992, pp. 7-16.
24 TSN, April 28, 1992, pp. 3-7.
25 TSN, June 9, 1992, pp. 2-5.
26 TSN, April 28, 1992, p. 16.
27 TSN, May 19, 1992, p. 3.
28 TSN, April 28, 1992, p. 20.
29 Appellant’s Brief, Rollo, p. 46.
30 Appellant’s Brief, supra.
31 People v. Loste, G.R. No. 100198, July 1, 1992, 210 SCRA 647.
32 TSN, April 28, 1992, p. 23.
33 People v. de Guzman, et al., G.R. Nos. 983221-24, June 30, 1993.
34 G.R. No. 90319, October 15, 1991, 202 SCRA 708.
October 31, 1993
This is an appeal from the decision of the Regional Trial Court, Branch 109, Pasay City, in Criminal Case No-89-3949, convicting Mary Rose Ondo @ Baby of illegal recruitment.
Appellant and Simeon Ortega were charged with violation of Article 38 of the Labor Code, committed as follows:
That on or about and sometime from the month of December 1988 to August 1989, in Pasay City, Metro Manila, Philippines, and within the jurisdiction of the Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, by falsely representing themselves to have the power and capacity to contract, enlist and transport workers for employment abroad, did then and there, willfully, unlawfully and felonously recruit Erlinda Cortez, Fidela Engada, Myra Siguenza, Dulce Garcia and Emilinda Padua and charged them placement fees and processing fees and promising said persons non-existing jobs abroad, thus participating to the recruitment, placement of deployment of said worders under false pretenses. (Rollo, p. 22).
The court a quo accepted, as established by the evidence on record, the version of the prosecution, which was summarized in the brief of the Solicitor General, as follows:
On January 9, 1989, Perfecta Calderon, the sister and cousin of private complainants Frederico Calderon and Erlinda Cortez, respectively, received a call from her sister Angelita Calderon who was in Italy. Angelita instructed her to wait for the call of appellant regarding the recruitment of her brother Frederico and cousin Erlinda Cortez for jobs in Italy. A few days thereafter, she received a call from appellant who asked for the passports, pictures and birth certificates of Frederico and Erlinda so that appellant could process the requisite documentations for their departure to Italy. Likewise, appellant also demanded the amount of 5,000 US Dollars (sic) as payment for the plane tickets of both applicants (tsn., pp. 3-4, may 10, 1990).
On January 15, 1989, appellant called her up telling her to bring the documents (passports, pictures and Birth Certificates) to appellant’s residence at 1754 Lacaba Compound, Tramo Street, Pasay City, which she did.
At the residence of appellant, Perfecta handed over the documents and the 5,000 US Dollars (sic) to Simeon Ortega who signed a receipt (Exhs. “J” and “J-1″) to evidence payment. Ortega then handed the money to appellant. Before leaving appellant’s residence, Perfecta inquired for the date of departure of her brother and cousin, but was told by appellant to wait for her call (tsn., pp. 5-8, may 10, 1989). The call, however, never came, so she demanded for the return of the money and the documents. Only the documents were returned (tsn., p. 9, May 10, 1990).
Her brother and cousin though were able to leave for and are already working in Italy through the assistance of another travel agency (tsn., ibid.)
Sometime in December 1988, private complainant Fidela Engada was introduced by her brother Wilfredo to appellant through a letter. Wilfredo Engada instructed her auntie Lucy Engada by phone to bring complainant to appellant for the latter to process her papers for abroad.
On December 28, 1988, private complainant and Lucy Engada went to appellant’s residence in 1754 Lacaba Compound, Tramo Street, Pasay City, where she was introduced to appellant. Private complainant manifested he desire to go abroad through the help of appellant per her brother’s recommendation. Appellant then intimated to her that the amount P65,000.00 was needed to defray for all the expenses. Outright, she handed a down payment of P30,000.00 which was duly receipted ([Exhs. "A" to "A-1"] tsn., pp. 5-8, May 2, 1990). Appellant asked for her passport for processing and told her to get in touch with appellant to ascertain the date of her departure.
After numerous follow-ups, private complainant was informed by appellant of her departure on August 18, 1989 and appellant demanded another amount of 200 US Dollars (sic) for the purchase of her plane ticket for Italy. This event was duly acknowledged by appellant (Exhs. “B” to “B-1″, tsn., pp. 10-11, May 2, 1990).
On August 18, 1989, however, private complainant was not able to depart for Italy. She then tried to see appellant at her residence but to no avail; appellant could no longer be located. For four more times she went to appellant’s place but with the same result. In her last attempt though, private complainant met the other victims of appellant and it was then that they decided to file their complaints with the Pasay City Prosecutor’s Office against appellant through a “Magkasanib na Pahayag” ([Exh. "C"], tsn., pp. 12-14, May 2, 1990).
Private complainant, Dulce Garcia was introduced to appellant through a letter from appellant’s friend, Lilia Gonzales. On the last week of April 1989, appellant called her about 11:00 o’clock (sic) in the evening and introduced herself as a balikbayan from Italy and a recruiter who could deploy workers for abroad. Private complainant, desirous of trying her luck abroad, asked what the requirements were. Appellant told her that the amount of P65,000.00 was needed to pay for the package-deal-arrangement in processing her travel documents i.e. passports, plan ticket and placement fees (tsn., pp. 14-15, May 10, 1990).
Three days after, appellant called her up again and told her to prepare the necessary requirements and to go to her (appellant’s) address at 1754-A Lacaba Compound, Tramo Street, Pasay City with the P65,000.00. While at the appellant’s residence, she was told that she could depart on the first week of June 1989. On May 10, 1989, appellant called her up anew and told her to her (appellant) again at her said residence and bring with her the necessary documents and the P65,000.00.
In the afternoon of the next day (May 11, 1989), private complainant went to appellant’s residence where she handed the documents and the amount of P53,000.00 in the presence of Emmanuel Balboa, appellant’s boyfriend. Appellant issued a receipt in acknowledgment therefor (Exhs. “K” to “K-1″), with the entry appearing thereat “received the amount of Fifty-three Thousand Pesos Payment for plane ticket in going to Italy” (Exh. “K-2″). Appellant then told her to wait for another call yet. Five days after, appellant called her up and told her to bring along her Birth Certificate and ID pictures so that she could accompany her to the Passport Division of the department of Foreign Affairs at the Film center. Private complainant was further told that her personal appearance at the Passport Division was important. (tsn., pp. 16-19, May 10, 1990).
At the Passport Division, private complainant was interviewed, after which appellant told her to give the balance of the P65,000.00 In the morning of May 22, 1989, she went to appellant’s residence and paid the amount of P11,500.00, which payment was duly receipted (Exhs. “L” to “L-2″) with the entry: “received from Dulce Garcia, P11,510.00 payment for travel abroad.” Appellant then showed private complainant her passport which was never handed over to her up to now. She was assured though that her departure would be on June 6, 1989 (tsn., pp. 20-21, May 10, 1990). June 6, 1989 came but private complainant was not able to depart because a day before (June 5, 1989), appellant called her up and told her that she (appellant) was hospitalized. Her departure was, however, rescheduled for August 8, 1989. On this said scheduled date (August 8, 1989), she was not able to leave because appellant told her that nobody would fetch her at the airport in Italy. Thus the departure was again reset for any other day of August. The month of August 1989 passed, but she was not able to leave. So she demanded for the return of the entire amount of P64,510.00 but appellant failed to return the money. She, together with the other “victims” of appellant, decided to file complaints against the latter with the Pasay Fiscal’s Office in a “Sinumpaan Salaysay” (Exhs. “M” to “M-2″, tsn., pp. 21-23, May 10, 1990)” (Rollo, pp. 72-79).
After convicting appellant of illegal recruitment, the court a quo sentenced her to life imprisonment and to pay a fine of P100,000.00 in accordance with Article 39 of the Labor Code (Decision, p. 19; Rollo, p. 40).
In her appeal, appellant questions the findings of the trial court that she had committed acts constituting a violation of Article 38 of the Labor Code (Appellant’s Brief, pp. 6-7; Rollo, p. 57).
The evidence on record shows that the complainants positively identified appellant as the one who recruited them for jobs in Italy as domestic helpers and who demanded P65,000.00 from each of them as payment for the facilitation of their travel documents. It was appellant’s promise to complainants of job opportunities abroad that lured them to part with their money.
In the absence of any proof that the decision of the trial court was based on conjectures or surmises, the same must be upheld on appeal. The trial court is in a better position to observe and evaluate the demeanor of the witnesses (People v. Pido, 200 SCRA 45 ).
Devoid of merit is the defense of the appellant that the Felixim Travel Agency was the one which recruited the complainants. No proof whatsoever was adduced to show that the officers or employees of said agency had personally transacted with private complainants in connection with their overseas employment. The complainants themselves had testified that the Felixim Travel Agency had nothing to do with their transaction with appellant.
We agree with the findings of the court a quo that appellant is guilty of illegal recruitment.
Article 38 of the Labor Code, as amended, provides that:
Illegal Recruitment. ? (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code.
Article 13 (b) of the Labor, Code, defines recruitment and placement as “any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers and includes referrals, contract services, promising or advertising for employment locally or abroad, whether for profit or not.
As can be gleaned from the aforementioned provisions, illegal recruitment has two essential elements, to wit: (1) the accused must be engaged in the recruitment and placement of workers, whether locally or overseas and; (2) the accused has not complied with such guidelines, rules and regulations issued by the Secretary of Labor and Employment, particularly with respect to the securing of license or authority to recruit and deploy workers either locally or overseas.
These essential elements are present in the case at bench. Appellant promised overseas employment to the complainants for a fee, which the latter paid. In fact, appellant admitted that the money she received from the complainants was in connection with the processing of their visas, passports and plane tickets. She also admitted that she failed to make good her promise to send them abroad (TSN, October 5, 1990, p. 6).
Appellant is neither licensed nor authorized to recruit workers for overseas employment as testified by Virginia Santiago of the Inspection Division of the Licensing Board of the Philippine Overseas Employment Administration (POEA).
Appellant insists that being a minor, she should be placed under custody of the barangay official of Sambol, Lemery, Batangas as provided for by Article 191 of P.D. No. 603.
Article 191 of P.D. 603 provides:
Care of Youthful Offender Held for Examination or Trial. ? A youthful offender held for physical and mental examination or trial or pending appeal, if unable to furnish bail, shall be from the time of his arrest be committed to the care of the Department of Social Services and Development or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever required: Provided, That in the absence of any such center or agency within a reasonable distance from the venue of the trial, the provincial, city or municipal jail shall provide quarters for youthful offenders separate from other detainees. The court may, in its discretion, upon recommendation of the Department of Social Services and Development or other agency or agencies authorized by the court, release a youthful offender on recognizance, to the custody of his parents or other suitable person who shall be responsible for his appearance whenever required. However, in case of those whose cases fall under the exclusive jurisdiction of the Military Tribunals, they may be committed at any military detention or rehabilitation center. (Emphasis supplied)
This issue is mooted in view of the fact that the trial of the appellant was terminated while her appeal was resolved with this decision. As can be inferred from its wordings, the provision is operative only during the trial or pending the appeal of the minor-accused.
Nevertheless, the law uses the word “may,” which denotes that it is directory in nature and implies discretion on the part of the trial court to place the minor under the custody of his or her parents or any suitable person.
Appellant further invokes the provisions of Article192, which she alleges the court a quo failed to apply to her benefit. Under said Article, the trial court shall suspend the sentencing and commitment of youthful offenders and instead commit them to the custody of the Department of Social Services and Development or to any training institution until they shall have reached 21 years of age.
Again, appellant’s contention cannot be sustained.
Said Article provides that it “. . . . shall not apply to a youthful offender who has once enjoyed suspension of sentence under its provisions or to one who is convicted of an offense punishable by death or life imprisonment.” (Emphasis supplied).
Appellant was convicted by the court a quo of illegal recruitment and was sentenced to suffer the penalty of life imprisonment. Clearly, her case. falls under the exception provided for by the Child and Youth Welfare Code.
Under Section 39 of the Labor Code, as amended, the penalty of life imprisonment is correctly imposed where illegal recruitment is committed in “large scale,” which means that it is committed against three or more persons (People v. Duque, 212 SCRA 607 ). In this case,appellant victimized Erlinda Cortez, Fidela Engada, Myra Siguenza, Dulce Garcia and Emilinda Padua.
We noted that appellant was only 16 years of age at the time she committed the offense (TSN, October 5, 1990, p. 2). If she prosecuted under, the Revised Penal Code, appellant is entitled to a reduction of the penalty imposed by law by one degree because of the attendance of the privileged mitigating circumstance of minority (Article 68, Revised Penal Code). But the benign provisions of the Revised Penal Code are not applicable to offenders prosecuted and punished under special laws. Likewise, appellant is not entitled to the benefits of the Indeterminate Sentence Law, which requires the sentencing court to fix a minimum term within the range of the penalty next lower to that prescribed by law, because the penalty imposed on her is “life imprisonment” (Act 4103 as amended by Act 4225, Sec. 2).
Under the circumstances, we can only recommend that executive clemency be extended to her (People v. Beralde, 139 SCRA 426 ; People v. Lagasca, 148 SCRA 264 ; People v. Mangusan, 189 SCRA 624 ).
WHEREFORE, the appealed decision is AFFIRMED in toto but in view of the minority of appellant at the time she committed the offense, we recommend to the Secretary of Justice that a case study of appellant be undertaken to determine whether she is deserving of executive clemency. Costs de oficio.
Cruz, Davide, Jr. and Bellosillo, JJ., concur.
October 31, 1993
An information filed on 05 September 1983 before the Regional Trial Court of Manila, charges ?
. . . AUGUSTO MANZANO Y REYES (with) Violation of Section 4, Article II in relation to section 2 (i) Article I of Republic Act No. 6425, as amended by P.D. 44, as further amended by P.D. 1675, committed as follows:
That on or about September 2, 1983, in the City of Manila, Philippines, the said accused, not being authorized by law to sell, deliver, distribute or transport to another any prohibited drug, did then and there willfully and unlawfully sell and deliver for monetary consideration seven (7) teat-bag size plastic containing marijuana flowering tops at P5.00 per tea bag, which is a prohibited drug.
The trial of the case was originally presided over by Hon. Oscar C. Fernandez. When Hon. Romeo J. Callejo assumed the post of Judge Fernandez, he promptly ordered the Court Stenographic Reporters to submit their transcripts of stenographic notes. To his dismay, however, discrepancies were discovered in the transcripts; the transcriptions submitted by one Mercedes Velasquez were incomprehensible; and no stenographic notes were apparently taken during the testimony of defense witness Leonardo Quiambao. Upon motion of the accused’s counsel, the incumbent judge ordered the retaking of the testimonies of Pat. Gaudencio Quebuyen and defense witness Leonardo Quiambao and the cross-examination of Pat. Paterno Banawel. Additional documentary evidence was likewise admitted.
On 02 October 1987, the court a quo, following the formal submission of evidence, rendered judgment, finding the accused guilty of the crime charged and sentencing him, thus ?
WHEREFORE, judgment is hereby rendered finding the Accused Augusto Manzano y Reyes, guilty beyond reasonable doubt, as principal, for the crime of violation of Section 4 Article II in relation to Section 2 (e) (i) of Republic Act 6425, as amended and hereby sentences him to the penalty of RECLUSION PERPETUA, with accessory penalties of the law and to pay a fine of P25,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs of the suit.
The marijuana subject matter of this case is hereby declared forfeited in favor of the government.
The Accused shall be credited for the entire period of his detention during the pendency of this case provided that he undertook in writing, to abide by and comply strictly with the rules and regulations of the City Jail of Manila.
In this appeal, the accused claims that ?
THE LOWER COURT (HAS) GRAVELY ERRED IN FINDING THE ACCUSED GUILTY OF THE CRIME CHARGED NOTWITHSTANDING THE FOLLOWING:
(a) Inadmissibility of evidence obtained in violation of the accused’s rights under the Constitution (; and)
(b) Proof of guilt beyond reasonable doubt has not been adequately, positively and convincingly established.
The trial court, in convicting the accused-appellant, relied, in main, on the evidence for the prosecution, thus ?
The Drug Enforcement Section of the Western Police District received information that the accused was engaged in the sale of marijuana. On 02 September 1983, a “trial-buy” operation was conducted by the law enforcement operatives. At five o’clock that afternoon, a civilian poseur-buyer was able to purchase from the accused dried flowering tops of suspected marijuana with cigarette rolling papers contained in three (3) tea-bag sized plastic bags. Each bag sold for P5.00. No arrest was made. At seven o’clock in the evening of the same day, however, a “buy-bust” operation, this time conducted by police officers Sgt. Gaudencio Quebuyen, Pat. Rolando Anza, Pat. Paterno Banawel, Pat. Bernabe Yokingco and Pat. Eriberto Alameda, with Rebecca Avila Reyes, a civilian informer, as poseur buyer, was set into motion. The team was so positioned as to have a clear view of the transaction that was to take place near an electric post. Not long after, the poseur-buyer gave the accused four (4) P5.00 marked bills. The accused left; moments later, he returned and handed over to the poseur-buyer four (4) plastic bags, tea-bag size, containing marijuana flowering tops and pieces of white rolling paper. Forthwith, the informer gave the pre-arranged signal (by scratching her head). The team promptly moved in and arrested the accused.
Accused-appellant firstly anchors his assigned error on the fact that he has been “investigated, interrogated and made to sign an accomplished booking sheet and arrest report without the benefit of counsel.” 1 The contention is without merit. This Court has already emphasized that “(w)hen an arrested person signs a booking sheet and arrest report at a police station, he does not (thereby) admit the commission of an offense nor confess to any incriminating circumstance.” 2 The booking sheet is no more than a record of arrest and a statement on how the arrest is made. It is simply a police report, and it has no probative value as an extrajudicial statement of the person being detained. 3 The signing by the accused of the booking sheet and arrest report is not a part of the custodial investigation which would otherwise require the presence of counsel to ensure the protection of the accused’s constitutional rights. 4
The appellant’s plea of innocence on the basis of reasonable doubt, however, deserves serious considerations.
In the prosecution of an accused for an illegal sale of prohibited drugs “what is (initially) material is . . . the presentation in court of the corpus delicti as evidence.” 5 The laboratory tests and the chemical microscopic examination, conducted by NBI Forensic Chemist Neva Gamosa, definitely reveal the contents of the plastic bags to be marijuana. 6 The chemistry report, attested to by the forensic chemist, has undoubtly established the corpus delicti of the crime. 7
The other question is whether or not the prosecution has been able to prove the fact of sale and delivery of the prohibited drug by the accused, a matter that must likewise be established beyond reasonable doubt. 8
In any criminal prosecution, it would be imperative to establish the elements of the offense; viz:
(1) That the accused has sold and delivered a prohibited drug to another; and
(2) That he knew that what he had sold and delivered was a dangerous drug. 9
A tedious and conscientious effort has been made to evaluate the evidence presented by the prosecution; the results, every time, however, appear to yield more questions than answers to a number of concerns that has bewildered the Court.
First. The prosecution witnesses could not agree on the number of marijuana tea bags taken from the accused. Patrolman Quebuyen 10 testified that three bags were taken from the accused during the buy-bust operation. On the other hand, Patrolman Banawel 11 claimed that four marijuana bags were sold by the accused to the informer.
Second. The buy-bust team was supposed to be composed of six members: five members of the police force and a civilian informer. Yet, the name of a sixth police officer kept on cropping up ? that of Patrolman Borlongan. 12 No effort was made to clarify who this Patrolman Borlongan is.
Third. Patrolman Quebuyen 13 testified that only the accused was arrested and that defense witness Leonardo Quiambao (who claimed to have likewise been arrested together with the accused) was not present at the place of the incident. According, however, to Patrolman Anza, 14 the accused was seen with a companion who, in fact, was chased by police officers. This conflicting versions given by the prosecution itself, again, were not explained.
More importantly, the prosecution has missed putting on record any evidence to indicate that the tea bags, supposedly delivered to the poseur-buyer, had been known by the accused to contain dangerous drugs. Even the information itself has failed to allege this fact. 15 Section (2) (f), Article I of Republic Act No. 6425, as amended, defines the term “deliver,” the offense that is charged in the information, as “. . . a person’s act of knowingly passing a dangerous drug to another personally or otherwise, and by any means, with or without consideration.”
Given all the above, it is readily discernible that the testimony of the poseur-buyer would have been most vital to the prosecution’s case. 16 Yet, the prosecution did not even bother t have her take the witness stand.
A final remark on the buy-bust operation that simply cannot escape one’s attention. The prosecution sought to prove that the accused left the place of the transaction for a few minutes and entered an alleyway to get the marijuana tea bags from an unknown supplier. No attempt was made to find out who this person was, either before or after the accused was apprehended. Then, while it was asserted by the prosecution that the informer gave the accused four P5.00-marked bills, only one P5.00 marked bill was recovered from the latter when he was arrested. The three other P5.00-marked bills were not accounted for.
Too much, indeed, has been left to conjecture. While buy-bust operations have been recognized as a valid means of apprehending peddlers of drugs, 17 we also did caution, however, that the use of poseur-buyer is to be employed with solicitude being, as it is, easily susceptible to mistake, harassment, extortion and abuse. 18
Considering the severity of the penalty imposed, it behooves the law enforcement agencies it its investigatorial work, the prosecution in its presentation and submission of the evidence, 19 and the courts in its evaluation of the merits of the case, to exercise no less that the extreme care and professionalism demanded in these cases if we are to attain a good degree of success in our drive to curb the drug menace. Unfortunately, the buy-bust operation, assuming that it did not take place in this particular instance, has appeared to have been laid out quite haphazardly. Instead of taking that cue for it to excel on its own, the prosecution regrettably has likewise exhibited a lukewarm stance. The rule is clear : The guilt of the accused must be proved beyond reasonable doubt. 20 The prosecution, on its part, must rely on the strength of its own evidence and must not simply depend on the weakness of the defense. The slightest possibility of an innocent man being convicted for an offense he has never committed, let alone when no less than a capital punishment is imposed, would be far more dreadful than letting a guilty person go unpunished for a crime he may have perpetrated.
WHEREFORE, the decision of the trial court is REVERSED and SET ASIDE and the accused is hereby ACQUITTED of the offense charged.
Feliciano, Bidin, Romero and Melo, JJ., concur.
1 Appellant’s Brief, p. 6.
2 People vs. Rualo, 152 SCRA 635; People vs. Bandin, G.R. No. 104494, 10 September 1993.
4 People vs. Olivares, 186 SCRA 536.
5 People vs. Mariano, 191 SCRA 136; People vs. Labarias, 217 SCRA 483. See also People vs. Pacleb, 217 SCRA 92.
6 Rollo, pp. 57-60.
7 People vs. Celiz and Bangero, 214 SCRA 55.
8 People vs. Alilin, 206 SCRA 772.
9 People vs. Aranda, G.R. No. 100985, 17 September 1993.
10 TSN, 24 October 1986, p. 4; TSN, 8 September 1987, p. 6.
11 TSN, 7 November 1984, p. 9.
12 Patrolman Quebuyen, TSN, 24 October 1986, p. 4; Patrolman Banawel, TSN, 8 September 1987, p. 1.
13 TSN, 24 October 1986, pp. 5-6.
14 TSN, 14 November 1984, pp. 10-11.
15 The information is to the effect that the accused “. . . willfully and unlawfully sell and deliver for monetary consideration seven (7) tea-bag size plastic containing marijuana flowering tops. . . . (emphasis supplied).
16 People vs. Yabut, 210 SCRA 394; People vs. Fulgarillas, 212 SCRA 76; People vs. Polizon, 214 SCRA 56.
17 People vs. Ramos, Jr., 203 SCRA 237.
18 People vs. Lati, 184 SCRA 336; People vs. Yutuc, 186 SCRA 1.
19 People vs. William, 209 SCRA 808.
20 People vs. Alilin, 206 SCRA 772.
October 31, 1993
Accused-appellant Napoleon Subingsubing was charged with the crime of rape in three (3) separate informations reading thus:
CRIMINAL CASE NO. 772
That on or about noontime of November 28, 1989 at Barangay Fiangtin, Barlig, Mountain Province and within the jurisdiction of this Honorable Court, the above-named accused by means of force, threat and intimidation by poking his garand rifle and then boxing the belly of the complainant, MARY JANE S. ESPILAN, which rendered the latter unconscious, did then and there willfully, unlawfully and feloniously have carnal knowledge with the complainant, against her will and without her consent.
CRIMINAL CASE NO. 773
That on or about the afternoon of November 30, 1989, at Barangay Fiangtin, Barlig, Mountain Province and within the jurisdiction of this Honorable Court, the above-named accused by means of force, threat and intimidation by putting over the nose of the victim handkerchief soaked with chemical which rendered the latter unconscious did then and there willfully, unlawfully and feloniously have carnal knowledge with the complainant, against her will and without her consent.
CRIMINAL CASE NO. 774
That on or about noontime of November 25, 1989, at Barangay Fiangtin, Barlig, Mountain Province, and within the jurisdiction of this Honorable Court, the above-named accused by means of force, threat and intimidation by poking his garand rifle and then boxing the belly of the complainant, MARY JANE S. ESPILAN, which rendered the latter unconscious, did then and there willfully, unlawfully and feloniously have carnal knowledge with the complainant, against her will and without her consent.
Upon arraignment, the accused entered pleas of not guilty to the three (3) criminal informations which were then consolidated and tried jointly to expedite proceedings.
After trial on the merits, the trial court found the case meritorious for the prosecution in Criminal Case Nos. 772 and 774 in view mainly of the testimony of the complainant which was found credible. Accused-appellant was, therefore, convicted for rape in said cases. However, insofar as Criminal Case No. 773 was concerned, the trial court found the testimony of the complainant therein inadequate to sustain conviction and “surmised that perhaps out of her bitterness, the said complainant wanted to ensure that the accused be meted out the highest penalty possible.” Accused was accordingly acquitted in said Criminal Case No. 773.
Hence, this appeal in Criminal Case Nos. 772 and 774, docketed in this Court as G.R. No. 104942-104943.
The case for the prosecution, anchored mainly on the testimony of the complainant Mary Jane Espilan, was summarized by the trial court 1 the pertinent portion of which states:
The complainant Mary Jane Espilan in all of these actions is sixteen years old, unmarried and resident of Philex Mines, Baguio. For the past three years immediately preceding 1990, she continuously lived with her grandmother at the latter’s house at Bo. Fiangtin, Barlig, Mountain Province while her parents were residing in Baguio. At that time she was a high school student. The accused Napoleon Subingsubing is the complainant’s uncle, the brother of her mother and the son of her grandmother. Said accused was then living with his mother and his niece in the same house as mentioned. On Nov. 25, 1989, at 1:00 P.M., Mary Jane and Napoleon were alone in the house, the grandmother having gone to the fields. When Mary Jane was about to go out to attend her afternoon classes in school, Napoleon forcibly pulled her to the bedroom of the grandmother, pointed his Garand rifle at her, then punched her in the stomach as a result of which the former lost consciousness. When the complainant regained her senses, she noticed that she was en dishabille and her vagina was bloody. She felt pain in her private parts and is quite certain she was raped or abused. The accused who was then standing outside the room warned the complainant not to tell anybody what happened or else he will kill her. Hence Mary Jane did not report the incident to her grandmother or to anyone for that matter. In the morning of November 28, 1989, at 10:30 o’ clock A.M., Mary Jane arrived from school and Napoleon was alone in the house. The latter again leveled his Garand Rifle at the former and pushed her into her bedroom. The complainant tried to get out of the house but the accused held unto her. Inside the room, the said accused pulled down the skirt of Mary Jane, pushed her down on the floor, stripped her of her panties and laid down on top of her with the zipper of his pants open. Forcing the complainant’s legs apart, the accused abused or took advantage of the former second time around. All the while, Napoleon was holding unto his rifle and Mary Jane was afraid to scream for he might squeeze the trigger. Immediately thereafter, the complainant gathered up all her clothes and went to their own family house at Bo. Pat-tog, Barlig which is less than a kilometer away from her grandmother’s residence. She wanted to get away from her uncle, hence she stayed alone in the house until November 30, 1989 in the morning when the accused followed her. She was then cleaning the ceiling of their house when Napoleon sneaked up behind her, and when the former tried to scream, the accused placed a piece of cloth with some sort of chemical over the nose of the complainant and the latter fainted. When she awoke, Mary Jane found herself lying on the floor stark naked. She felt that she had again been sexually molested. The accused who was outside the house menacingly ordered the complainant to pack her clothes and go back home with him. The afternoon of the same day, Mary Jane and Napoleon went back to the house of the former’s grandmother. The complainant did not reveal to anybody the things that happened to her for fear that the accused might really kill her as the accused had threatened to do. Months later, when she was with her parents in Baguio, Mary Jane finally divulged everything to her mother Rosita Espilan. They went back to Barlig and reported the incidents to the police station where the statement of the complainant was taken (Exhs. “A,” Crim. Case No. 772, pp. 4-5; Crim. Cases Nos. 773-774, pp. 2-3). Thereafter, she had herself physically examined at the Barlig hospital by a government physician and was found pregnant (Exh. “C”; p. 6, Crim. Case No. 772). On August 29, 1990 in Baguio, the complainant delivered a baby boy. The latter before all these things happened to her was a virgin with no prior sexual experience. She did not even have a boyfriend. In open court, Mary Jane Espilan singled out the accused Napoleon Subingsubing as the culprit in all of the incidents she earlier testified to.
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At the trial, the accused Napoleon Subingsubing denied the charge of rape as narrated above and proferred a different story. Interposing consent on the part of the complainant as a defense, he testified 2 that at around 10:00 o’ clock in the morning of 25 November 1989, he arrived at his mother’s house at Bo. Fiangtin, Barlig, Mountain Province after fetching wood. Shortly thereafter, the complainant arrived from school, massaged the back of the accused and then prepared their lunch. After eating, the accused went to his room to rest but was followed by the complainant who laid down beside him, placed her hand on the accused’s stomach, and then the pair embraced. They both removed their clothes and then had sexual intercourse. At this time, the complainant was smiling, tightly embracing the accused. After the intercourse, the complainant put on her clothes, went to her room to change and then went back to school. That evening, the accused brought the complainant to attend a wake. The accused also professed that the incident on 25 November 1989 was the only occasion when he had sexual intercourse with the complainant.
On 28 November 1989, the complainant asked him to help clean their house located at Pat-tog, Barlig, Mountain Province, as witnessed by a neighbor’s child. The accused denied that he had sexual intercourse with the complainant on 28 November and 30 November 1989.
To bolster the claim of the accused, his mother, Rufina Subingsubing, who is also the grandmother of the complainant, testified, 3 among others, that the three (3) of them were living in one house and that their relationship was happy, even after the month of November 1989; that the complainant left her house in March 1990 for a vacation and was fetched by her mother; that the only thing she observed about the complainant was that her breasts were becoming bigger; that the complainant and the accused got food for the pigs on Saturdays and that when the latter would receive his monthly salary, the complainant would ask him to take her to the movies.
Three (3) other witnesses for the defense were presented who corroborated the story of the accused and testified that indeed, the complainant and the accused were seen going out together and sharing happy moments months after November 1989 (when the alleged rapes were committed).
It is a fundamental rule in criminal procedure that the prosecution has the onus probandi in establishing the guilt of the accused, as a consequence of the tenet ei incumbit probatio qui dicit, non qui negat, that is, he who asserts, not he who denies, must prove. This is especially significant in rape cases for, generally, in the prosecution thereof, the only two (2) parties who can testify as to the occurrence are the complainant and the accused. Very often, their respective testimonies are diametrically contradictory as to what really happened. 4
A careful perusal of the records of the present case reveals, even if were to assume arguendo that the defense of consent on the part of the complainant was not sufficiently established, that the evidence for the prosecution cannot, on its own, stand and suffice to establish the guilt of the accused for the crime of rape beyond reasonable doubt.
Although the general rule is that this Court by and large respects the factual findings of the trial court because of its better position in assessing the credibility of witnesses through close scrutiny of their demeanor, mannerism and attitude, the present case falls short of convincing us that it falls under such general rule.
A perusal of the records and the testimony of the complainant discloses contradictions and inconsistencies on vital details which lead one to seriously doubt the veracity of her story.
On 05 March 1991, during her direct examination, complainant described the incidents when the accused allegedly raped her, as follows: 5
Q: Will you tell this Honorable Court what was the incident?
A: When I was about to leave for school (this was on 25 November 1989) and was almost to go out, my uncle pulled me and when I resisted trying to go out, he poked his gun at me and boxed me on my stomach and I was unconscious. When I woke up, I was conscious already.
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Q: When you regain (sic) consciousness miss witness, what was your position?
A: I was naked, sir.
Q: When you say were naked, you mean to say that your panty was removed?
Q: Your shirt, underwear, and even your panty were removed?
A: Yes, sir.
Q: But before the accused boxed you, do you remember if you were wearing all your clothings?
A: I was wearing my school uniform?
Q: And when you regained consciousness, you noticed that your clothings were removed?
Q: Do you know who removed your clothings?
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Q: You said that when the accused was on top of (you) you don’t (sic) have any underwear?
A: When he was on top of me I was forcing myself to get out.
Q: But you don’t (sic) have your panty?
A: He removed my panty.
Q: About him how did he look?
A: Only the zipper of his pant was down.
Q: And when he went on top of you?
A: Yes and I forced to get out but he was strong.
Q: When he was on top of you, you forced yourself to get out, that was all?
A: Yes, sir.
Q: What else happened?
A: He did again what he did to me.
Q: And what is that he did to you?
A: He abused me again, sir.
Q: And what do you mean by abuse?
A: He took advantage again of me for the second time.
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Q: Did you not shout for help?
A: I tried, sir, but his gun was poked to (sic) me.
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Q: Did he tell you anything?
A: Yes, he said that if I will scream, he will kill me.
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Q: And when you went to your house at Barangay Pat-tog, what happened there, if any?
A: When I went to our house at Pat-tog I did not know that he still followed me there, that was on the 30th of November, 1989.
Q: He followed you at Barangay Pat-tog on November 30, 1989?
Q: And when he followed you there, what happened?
A: While I was cleaning the ceiling of our house, I did not know that he entered the second floor of the house.
Q: And after that what happened?
A: When I was about to shout, he immediately came to me and put a piece of cloth with chemical on my nose then I felt unconscious already.
Q: And were you able to regain consciousness?
A: I regained consciousness after all the thing happened to me.
Q: And when you regained consciousness, what did you notice?
A: I was lying on the floor naked, sir.
Q: And what do you think happened to you?
The witness will be incompetent to answer what happened to her because she was made unconscious.
Being the person herself she is competent to feel what happened to her.
Q: After you regained consciousness, you stated that you were lying on the floor?
A: Yes, sir.
Q: What did you feel at that time?
A: I felt uneasy.
Q: That was all?
Q: You did not feel what happened to any part of your body?
A: I felt. He did again what he has done to me for the third time.
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Q: Do you remember miss witness if during those times when you said the accused boxed you and you felt unconscious. . . .?
A: I did not feel anything when I felt unconscious.
Q: When he threatened you telling you that will kill you if you tell anybody what happened, what did you say?
A: I just kept quiet.
Q: Do you have neighbors?
A: We have neighbors but they were out that time.
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Q: On March (November) 28, 1989, do you remember where were you?
A: I was in the same house of my grandmother.
Q: And what were you were doing at that time?
A: I just arrived from school, sir.
Q: And when you arrived from school, what happened?
A: When I was in the house, he poked his gun at me and stripped my shirt.
Q: Who poked the garand rifle at you?
A: My uncle, sir.
Q: Will you please tell this Honorable Court what happened ?
A: At about 11:30 P.M., I entered the house and my uncle poked his gun at me. I don’t know why he poked his gun at me then he did again what he did to me.
Q: When he poked his gun at you, what did you do?
A: I forced my way out.
Q: And were you able to go out?
A: No, sir because he was strong.
Q: What did he tell you, if any?
A: The same threat as the first.
Q: After he poked his gun at you, what did you do next?
A: He took advantage of me again, sir.
Q: Will you be more specific, miss witness. When you said he took advantage of you, what do you mean?
A: He did the same thing that he did to me.
Q: What is that thing that he did to you?
A: He again abused my dignity as a woman.
Q: When he poked his gun at you, were you wearing clothes?
A: Yes, sir.
Q: And after that what did he do?
A: He removed my panty.
Q: And after removing your panty, what did he do next?
A: He did it again.
Q: When he removed your panty, what was your position?
A: I was standing and I was forcing to leave when he forced me to remove my panty while his gun was poked at me.
Q: And after he removed your panty, you said you were standing?
Q: Then what did he do next?
A: He pushed me down the floor.
Q: And after that what did he do next?
A: He did the same thing to me.
Q: When he pushed you down to the floor, what else happened?
A: He was on top of me.
Q: When he was on top of you, was he wearing clothes at that time.
A: Yes, sir.
Q: He did not remove any of his clothes.
A: He removed his pants.
Q: What else did he do?
A: He put down the zipper of his pant.
Q: And after he put down the zipper of his pant, what happened next?
A: I tried to get out but he was strong.
Q: And after he removed the zipper of his pant, what did he do?
A: He abused the dignity of my woman (sic).
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Q: Miss witness you said a while back that the accused poked a gun to (sic) you then removed your panty and then after that he pushed you down the floor?
A: Yes, sir.
Q: Aside from that he also removed the zipper of his pant then went on top of you?
A: I was unconscious.
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Q: Aside from going on top of you, what else did he do?
A: He poked his gun at me.
Q: Then what else?
A: He did the same thing.
Q: The specific thing?
A: He raped me again, sir.
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In short, the complainant on 05 March 1991 testified that on 25 November 1989 and 28 November 1989, the accused employed force and threats which rendered her unconscious and unable to feel anything when ravished by the accused. However, when recalled to the witness stand on 02 April 1991, the same complainant Mary Jane Espilan testified: 6
Q: Miss Witness, you declared during the prior examination that the accused, Napoleon Subingsubing raped, abused your dignity or “pinagsamantalahan ka” and that was on March (November) 28, my question is what do you mean when you said he abused your dignity on March (November) 28, 1991?
A: He pointed his gun to (at) me, then pushed me to my lola’s room, let me down trying to separate my legs and then he placed his penis into my vagina.
Q: When you said that the accused pointed a gun at you, what kind of gun?
A. Rifle, M-14, sir.
Q. When he pushed you down, was he still holding his gun?
A. Yes, sir.
Q. When he was doing the act, was he still holdng his gun?
Q. You did not resist.
A. I resisted but he was stronger than me.
Q. The second time he did the sme, was he still holding the gun?
A. Yes, sir.
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The complainant’s theory of force and intimidation manifested in her sworn statement and her testimony on 05 March 1991, and which rendered her “unconscious,” is belied by her own testimony on 02 April 1991. Complaint speaks of resistance, intimidation, and loss of consciousness attributed to accused’s violence and threats. However, and this must be carefully noted, the complainant’s testimony on 02 April 1991 gave a detailed description of what transpired during those incidents.
The Court also cannot help but question the conduct of the complainant after the alleged incidents of rape. The complainant did not reveal tghe incidents to her randmother allegedly because the accused told her not to and that he would kill the complainant and her grandmother if she told anyone. Neither did she tell her mother upon the latter’s arrival at barlig on 28 April 1990 or soon after the complainant was brought by her mother to Philex Mines in Baguio City. The mother was told of the alleged incidents only on 15 May 1990. It is quite unnatural for a girl not to reveal such assaults on her virtue (if indeed they occurred) immediately after they happened or when the alleged threat on her life and her grandmother’s had ceased, as in this case, when complainant had gone to Baguio. The complainant likewise admitted that after the alleged incidents in November 1989, she still went out with the accused to watch betamax movies or get food for the pigs in the ricefields. Such behaviour directly contradicts the normal or expected behaviour of a rape victim. There is no way she could possibly forgive, to say the least; and yet, complainant interacted immediately with her assailant. Viewed in its entirety, such behaviour of the complainant appears to be inconsistent with her charge of rape.
The accused, on the other hand, while admitting that indeed he had sexual intercourse with the complainant on 25 November 1989, set up the defense that the latter consented to such act. The Two (2) succeeding incidents were however denied by the accused. While we find such defenses weak, we nevertheless stress once more the time-honored principle that the prosecution must rely on the strength of its evidence rather than on the weakness of the defense.
Appellant’s exculpation from the offense of rape does not mean, however, that his responsibility is merely moral and not penal in character. If that were so, considering the facts of this case, it may be cause for right-thinking men and women to discern a gap or fissure in the legal order, one that cries moreover to be bridged. 7
As things stand, for failing to meet the exacting test of moral certainty, it is incumbent upon us to set aside the trial court’s judgments of conviction for rape. However, the Court must state that it finds conclusive evidence (no less than the accused-appellant’s admission) that on 25 November 1989, the accused Napoleon Subingsubing had sexual intercourse with Mary Jane Espilan when she was only 16 years of age. The complainant and the accused were living in the same house. The accused is the uncle of the complainant, brother of her own mother.
Qualified seduction is the act of having carnal knowledge of a virgin over 12 years to 18 years of age and committed by any of the persons enumerated in Art. 337 of the Revised Penal Code, to wit: any person in public authority, priest, home-servant, domestic, guardian, teacher, or any person who, in any capacity, shall be entrusted with the education and custody of the woman seduced. Abuse of confidence is the qualifying circumstance in the offense. Notably, among the persons who can commit qualified seduction is a “domestic”. And a “domestic,” for purposes of said legal provision, has been interpreted judicially as ?
. . . Upon the word domestic being employed in said legal provision segregating it from that of a servant, the term is applied to persons usually living under the same roof, pertaining to the same house, and constituting, in the sense, a part thereof, distinguishing it from the term servant whereby a person serving another on a salary is designated; in this manner, it has been properly used. 8
Under the circumstances of the case at bench, we hold that a conviction for qualified seduction is proper in Criminal Case No. 774. The verified complaint for rape contains allegations, sans averment on the use of force, which impute the crime of qualified seduction. Any deficiency in the complaint is supplied by the supporting affidavit, 9 where complainant averred that the accused Napoleon Subingsubing, her uncle, 10 who was living in the same house as the complainant, 11 had sexual intercourse with her. The accused took advantage of his moral ascendancy if not dominance over the complainant. She was presumably a virgin. As already stated, the accused was a domestic in relation to the complainant within the meaning of Art. 337 of the Revised Penal Code.
WHEREFORE, in G.R. No. 104943, the judgment of the trial court in Criminal Case No. 774 is hereby MODIFIED by convicting the accused of the crime of QUALIFIED SEDUCTION instead of RAPE. The accused is hereby sentenced to an indeterminate penalty of six (6) months of ARRESTO MAYOR, as minimum to two (2) years, eleven (11) months and ten (10) days of PRISION CORRECCIONAL as maximum. Accused is likewise ordered to indemnify the complainant in the amount of P30,000.00 and to support the child of the complainant. Costs against accused-appellant.
The accused-appellant is ACQUITTED in G.R. No. 104942 (Criminal Case No. 772) based on reasonable doubt.
Upon the finality of this decision, let the records of this case be remanded to the court of origin for the sole purpose of determining the amount of support to which the child in Criminal Case No. 774 is entitled. 12
Narvasa, C.J., Regalado, Nocon and Puno, JJ., concur.
1 Rollo, pp. 138-140.
2 TSN, pp. 86-93.
3 TSN, pp. 46-48.
4 People vs. Godofredo Sagot, G.R. Nos. 102773-77, June 8, 1993.
5 TSN, pp. 5-20.
6 Id., pp. 39-42.
7 People vs. Alvarez, 55 SCRA 81, 91.
8 People vs. Alvarez, G.R. No. 34644, January 17, 1974, 55 SCRA p. 92
9 People vs. Samillano, 56 SCRA 573, 580
10 Rollo, p. 12
11 Ibid., p. 11
12 People vs. Noly Sia, G.R. No. L-28884, 25 July 1969, 28 SCRA 789.
October 31, 1993
Before us is a petition seeking the review and the consequent reversal of the decision of the Court of Appeals in CA-G.R. CV No. 249671 entitled, “George T. Tiu and Rosalina Tiu vs. Juan Go and Sps. Juanito Lim and Lim Lee Show Fong”, promulgated on September 30, 1992, which affirmed the summary judgment dated August 21, 1989 and the Order dated October 30, 1989 of the Regional Trial Court of Manila Branch 35 in its Civil Case No. 88-43782.
The fcts of the case are as follows:
Petitioner George T. Tiu and his mother, Rosalina Tiu, filed an action for reformation of contract, delivery of personal property, and damages before the regional trial court against Juan Go and the Spouses Juanito Lim and Lim Lee Show Fong.
Among the allegations of the complaint, as quoted by the Court of Appeals, are the following:
4. That plaintiff George Tiu is the registered owner of Two (2) CONDOMINIUM UNITS identified and described as follows ?
UNIT 9-A of the Condominium located on the ninth floor, with an area of 133.48 sq. mts., more or less, with 3 rooms and 3 comfort rooms, of the Blue Diamond Tower Condominium Project.
UNIT 9-B of the Condominium located on the ninth floor, with an area of 98.26 sq. mts., more or less, with 3 rooms and 3 comfort rooms, of the Blue Diamond Tower Condominium Project” covered by CONDOMINIUM CERTIFICATE OF TITLE NOS. 4583 and 4584, respectively, of the REGISTER OF DEEDS FOR THE CITY OF MANILA, copies of which are hereto attached as Annexes “A” and “B”, respectively;
5. That sometime in March, 1986, plaintiff GEORGE TIU and plaintiff ROSALINA TIU, his mother, negotiated a loan of P300,000.00 with defendant JUAN GO who then asked for a mortgage of the aforesaid CONDOMINIUM UNITS of plaintiff GEORGE TIU as security for the payment therefor and additional thereto, a pledge of jewelries and checks from plaintiff ROSALINA TIU;
6. That in that transaction, defendant JUAN GO agreed to extend the loan without any fixed period of re-payment and with the further condition that the plaintiffs shall have ample time to pay when demanded and that they can remain in possession of the said CONDOMINIUM UNITS of plaintiff GEORGE TIU in the event of mortgage;
7. That with that agreement, defendant JUAN GO then prepared, based on copies of the CONDOMINIUM CERTIFICATE OF TITLE NOS. 4583 and 4584 of plaintiff GEORGE TIU earlier given to him, a document denominated as “DEED OF SALE OF A CONDOMINIUM WITH RIGHT TO REPURCHASE” and another as “CONTRACT OF LEASE”, the former was prepared in favor of defendant JUANITO LIM AND LIM LEE SHOW FONG, while the latter was prepared in favor of plaintiff GEORGE TIU;
8. That when the said documents were presented to the plaintiffs by defendant JUAN GO, plaintiff GEORGE TIU asked him why the documents had to be drawn in that form and why there a need to involve the defendant spouses JUANITO LIM AND LIM LEE SHOW FONG, both total strangers to the plaintiffs, when the transaction of loan was purely between GEORGE TIU, plaintiff ROSALINA TIU, his mother, and defendant JUAN GO, but defendant JUAN GO then said that he cannot carry a real estate property in his own name, as he is a Chinese National, and that there was no harm in having the covering instruments made in that way and in that form, as their agreement of mortgage intended to secure the loan will always prevail, stand and govern over the said instruments, for which reason plaintiff GEORGE TIU agreed to sign the said DEED OF SALE OF A CONDOMINIUM WITH RIGHT TO REPURCHASE and CONTRACT OF LEASE and after signing them, plaintiff ROSALINA TIU handed to defendant JUAN GO jewelries with a value of P200,000.00 and PCIB Check No. 51405, drawn to the sum of P200,000.00, signed by plaintiff ROSALINA TIU but undated, and another PCIB Check No. 51428, signed by plaintiff ROSALINA TIU but without any stated amount and date, as additional collateral for the loan just received and which the defendant JUAN GO then required in their agreement;
9. That the said DEED OF SALE OF A CONDOMINIUM WITH RIGHT TO REPURCHASE and CONTRACT OF LEASE were later verified before a notary public and then later registered by the defendants’ agent with the REGISTER OF DEEDS FOR THE CITY OF MANILA and subsequently annotated at the back of CONDOMINIUM CERTIFICATE OF TITLE NOS. 4583 and 4584, as now evidenced by certified true copies hereto attached as Annexes “C” and “D”, respectively;
10. That, from the date of execution of said documents, Annexes “C” and “D”, to this time of filing, plaintiff GEORGE TIU, with plaintiff ROSALINA TIU, has remained and continue to remain in possession of said Condominium Units as lessee;
11. That plaintiff GEORGE TIU, in executing the said DEED OF SALE OF A CONDOMINIUM UNIT WITH RIGHT TO REPURCHASE, has merely agreed to a mortgage of the properties, for which reason reformation is proper, pursuant to the provisions of the Civil code which state, thus ?
Art. 1365. If two parties agree upon the mortgage or pledge of real or personal property, but the instrument states that the property is absolutely sold or with a right to repurchase, reformation is proper.
12. That the said DEED OF SALE OF A CONDOMINIUM WITH RIGHT TO REPURCHASE executed by plaintiff GEORGE TIU is in law an equitable mortgage at the same time on two of the specified grounds, for which reformation is also proper on either one, in accordance with the provisions of the Civil Code, thus ?
Art. 1602. The contract shall be presumed to be an equitable mortgage, in any of the following cases:
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(2) When the vendor remains in possession as lessee or otherwise;
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(6) In any other case where it may fairly be inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation.
13. That the real intention of the parties on the transaction covered by the DEED OF SALE OF A CONDOMINIUM WITH RIGHT TO REPURCHASE being a mortgage, and not a sale, plaintiff GEORGE TIU is entitled to the redemption of the property as sanctioned by Article 1601 of the Civil Code;
14. That, after a lapse of the unlawful period of repurchase stated in the DEED OF SALE OF A CONDOMINIUM WITH RIGHT TO REPURCHASE, plaintiff GEORGE TIU tried to redeem the mortgaged condominium units, but the defendants refused redemption;
15. That when plaintiff GEORGE TIU tried to redeem the said properties, plaintiff ROSALINA TIU also attempted to get back the jewelries and checks given as additional collateral, but defendant JUAN GO who refused the redemption of the mortgaged properties also refused to return the said jewelries and checks to plaintiff ROSALINA TIU;
16. That, after the redemption offer was made by plaintiff GEORGE TIU and the return of the personal properties were asked by plaintiff ROSALINA TIU, defendant JUAN GO, after filing the blanks in PCIB Check No. 51405 and PCIB Check No. 51428, presented them to the bank for encashment, but were returned, for which there is now a demand made upon plaintiff ROSALINA TIU for her to pay for the value thereof;
17. That defendant JUAN GO and JUANITO LIM have acted with evident bad faith, unlawfully and contrary to the agreement, and in violation of the plaintiffs’ right;
18. That by reason of the unlawful acts of the said defendants, the plaintiffs suffered sleepless nights, anxiety, besmirched reputation and social humiliation, for which they now seek the sum of not less than P100,000.00 as payment for moral damages, plus litigation expenses;
19. That the plaintiffs were forced to litigate in this action and in so doing, they were compelled to engage the services of the undersigned counsel for an attorney’s fee of P50,000.00;
20. That as corrective measure to those who unlawfully act contrary to their agreements and in violation of the rights of others, an exemplary damage to be determined by the Honorable Court is also sought.
(pp. 25-29, Rollo.)
The Spouses Lim filed a separate answer with counterclaim, denying the material allegations of the complaint and, as special and affirmative defenses, claimed that by virtue of George Tiu’s failure, as vendor a retro, to exercise his right to repurchase the condominium units within the period expressly stipulated in the contract, the spouses thereupon irrevocably acquired the absolute ownership of said condominium units; that absolute ownership thereof has been consolidated in their names; that the deed of sale is clear, without any ambiguity, mistake, or imperfection and the deed is and should only be the repository of the truth of the contractual relations of the parties and no parol evidence is admissible to alter the stipulations, terms, and conditions of the contract (See CA Decision, p. 29, Rollo).
The Tius filed a reply and answer to the counterclaim of the Spouse Lim.
On the other hand, Go, in his answer with counterclaim, alleged that while indeed the Tius had incurred various amounts of loans on different dates, the totality is much greater than the sum of P200,000.00 alleged in the complaint, and which remained unpaid; that the two checks mentioned in Paragraph 8 of the complaint issued in partial payment on the Tius various loans were dishonored when presented by Go for encashment; and that the Tius had not offered or given any other security to answer for the payment of their overdue loans and obligations to Go; that he (Go) is merely one of the instrumental witnesses to, and has nothing to do with, the Tius’ transactions with the Spouses Lim, which should thus be treated separately and distinctly from the various loan transactions between the Tius and Go; that Go never committed the supposed acts of misrepresentation in the execution of the deeds as alleged in the complaint.
As compulsory counterclaim, Go alleged that Rosalina Tiu had secured, on different dates, loan advances in the total amount of P1,060,000.00, which remained unpaid despite demands.
The Tius filed a reply and answer to the counterclaim of Go, admitting receipt by Rosalina Tiu of the money stated in respondent Go’s counterclaim, but alleging that the loans had already been paid for by tobacco delivered to Go.
Go subsequently filed a motion for leave to admit third party-complaint for a sum of money and damages against Joaquin Tiu, alleging that on different dates, the latter had, for himself and in behalf of the Tius, received the money as loan or advances in connection with the latter’s tobacco business, in the total amount of P700,000.00, for which amount Joaquin Tiu should be held jointly and severally liable with the Tius.
Over the opposition of the Tius, the motion for leave to admit third-party complaint was granted by the trial court on June 22, 1988.
Pre-trial was conducted on May 13 and November 14, 1988.
On August 21, 1989, the trial court rendered summary judgment, disposing as follows:
WHEREFORE, judgment is hereby rendered as follows:
1. The complaint of the plaintiffs is DISMISSED;
2. Plaintiff Rosalina Tiu is ordered to pay defendant Juan Go the sum of P1,060,000.00;
3. The third party complaint of Juan Go against Joaquin Go is DISMISSED;
4. The respective counterclaim of the two groups of defendants in their separate answers for moral and exemplary damages, and for attorney’s fees are DENIED and DISMISSED;
5. Plaintiffs George Tiu and Rosalina Tiu are ordered to pay the costs of the present action.
(p. 30, Rollo.)
The Tius and Joaquin Tiu (third-party defendant) appealed while the Lims filed a “Motion for Supplemental/Additional Relief or Decision”.
Go filed a motion for reconsideration of the summary judgment.
On October 30, 1989, the trial court issued an order resolving the respective motions of the Lims and Go, thus ?
ACCORDINGLY, the motion of defendants-spouses Juanito Lim and Lim Lee Show Fong, and the Register of Deeds of the City of Manila is hereby ordered to make the corresponding note of consolidation and cancel the Condominium Certificates of Title Nos. 4583 and 4584 in the name of George Tiu, and, in lieu thereof, issue an new Condominium Certificate of Title in the name of Juanito Lim and Lim Lee Show Fong.
The motion for reconsideration by defendant and third party plaintiff is Denied for lack of merit.
The Tius, including Joaquin, appealed, arguing that the trial court erred when it (1) accepted the Deed of Sale of Condominium Units with Right of Repurchase as the true agreement of the contracting parties; and (2) held Rosalina Tiu liable for the total amount of P1,060,000.00 claimed by Go.
Go, who also appealed, on the other hand, lamented the failure of the trial court to hold George Tiu and Joaquin Tiu jointly and solidarily liable with Rosalina Tiu on the amount of P1,060,000.00, and for dismissing both his third-party complaint and counterclaim for moral and exemplary damages, and for attorney’s fees.
The Court of Appeals (Paras [P], Ordoñez-Benitez, Montenegro, JJ.) upheld and affirmed the summary judgment rendered by the trial court. Hence, the instant petition anchored on the general assertion that the decision of respondent Court of Appeals is not in accord with law.
We vote to sustain the appellate court. The summary judgment of the trial court was properly rendered.
A summary judgment is one granted by the court, upon motion by either party, for an expeditious settlement of the case, there appearing from the pleadings, depositions, admissions, and affidavits that there are no genuine questions or issues of fact involved (except as to the amount of damages) ? and that, therefore , the moving party is entitled to a judgment as a matter of law (Sections 1, 2, and 3, Rule 34; Justice E.L. Paras, Revised Rules of Court, Ann., Vol. I, 1989 Ed., p. 632).
In the present case, the Tius maintain that there are as yet unresolved questions of fact that preclude summary judgment, such as whether there was indeed a loan contract between the Tius and Go, which was secured by a mortgage on the condominium units owned by George Tiu and a pledge by Rosalina Tiu of her pieces of jewelry and checks; and, assuming the existence of a loan, whether reformation is feasible in order that the true agreement of the parties on an equitable mortgage may be reflected in the deed of sale.
In the instant petition, the Tius narrate a series of events and loan transactions between Rosalina Tiu and Juan Go that would negate, in their opinion, the sale transaction between the Tius and the Spouses Lim, and would thus necessitate trial on the merits to determine the true agreement or intention of the parties. The appellate court, however, brushed aside this argument thusly:
Under Rule 34 of the Rules of Court, summary judgment may be rendered by the court upon application of a party when there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. By genuine issue is meant an issue of fact which calls for the presentation of evidence as distinguished from an issue which is sham, fictitious, contrived, set up in bad faith and patently unsubstantial so as not to constitute a genuine issue for trial. The court can determine this on the basis of the pleadings, admissions, documents, affidavits and/or counter affidavits submitted by the parties to the Court. Where the facts pleaded by the parties are disputed or contested, proceedings for a summary judgment cannot take the place of a trial. (Paz vs. CA, 181 SCRA 26).
(p. 32, Rollo)
The appellate court then continued :
The lower court correctly rendered the summary judgment on the basis of the pleadings, admissions, documents and affidavits submitted by the parties.
Appellants Tiu admitted not only the due execution, genuineness and authenticity of the Deed of Sale of Condominium with Right to Repurchase and Contract of Lease (Exhs. C & D). They also admitted that they read and understood the contents of said deeds before they signed the said documents (tsn., May 13, 1988, p. 26) which deeds were later annotated at the back of Condominium Certificate of Title Nos. 4583 and 4584. They failed to offer any counter-affidavit to controvert the statement of the Notary Public, Florante C. de la Cruz before whom the parties acknowledged and ratified their agreement that he (de la Cruz) ascertained the agreement of the parties before preparing the document. In his affidavit, Notary Public Florante C. de la Cruz swore:
“That on March 25, 1986 George Tiu, together with Sps. JUANITO LIM and LIM LEE SHOW FONG requested me to prepare a DEED OF SALE of Condominium Units with a Right to Repurchase and a CONTRACT OF LEASE over the same CONDOMINIUM Units which I notarized as Doc. No. 412; Page No. 64; Book No. 83; Series of 1986 and Doc. 413; Page No. 64; Book No. 83; Series of 1986 respectively, both documents signed by the parties therein and their instrumental witnesses, copies of said Deed of Sale and Contract of Lease is hereto attached and marked as Annex A & B respectively;
“That prior to March 25, 1986 George Tiu accompanied by Juan Go came to my office and requested me to prepare a Contract of which they would sell the two (2) Condominium Units in favor of Sps. JUANITO LIM and LIM LEE SHOW FONG with a reservation for Vendor to Repurchase the same within one (1) year for the amount of FOUR HUNDRED THOUSAND PESOS (P400,000.00), and that Tiu shall remain in possession for one (1) year from March 1986 but since Sps. Vendees Juanito Lim and Lim Lee Show Fong were not around, I instructed George Tiu to return with said Sps. Vendees;
“That it was on March 25, 1986, that all the parties mentioned in the documents above mentioned were present and after determining and ascertaining what they have agreed I prepared said documents after explaining to them both in Tagalog and in Ilocano; that there is no other Contract of Agreement written or verbal regarding the subject matter of sale or lease that I prepared except the two (2) aforementioned DEED OF SALE of a Condominium Units with a Right to Repurchase and the CONTRACT OF LEASE as aforementioned.”
In addition thereto, appellants Tiu admitted that they have updated the real estate taxes due on the condominium only up to the time of the transaction after which they have never paid anymore the taxes thereon belying their claim that they continued paying the taxes even after the execution of deeds (tsn., Nov. 24, 1988, pp. 15 & 16). Also the said appellants admitted that they did not file an opposition to the petition for consolidation of ownership and that they filed the present complaint for reformation six (6) days after receipt of a copy of the said petition (tsn, Nov. 24, 1988, pp. 23 & 26). If it were true that their agreement was one of mortgage, then, they could have filed at least an opposition to the said petition.
(pp. 32-34, Rollo.)
The Court of Appeals also disregarded the claim of the Tius that a deed of sale with right of repurchase was drawn up in favor of the Spouses Lim instead of a mortgage with Go as creditor-mortgagee because Go cannot own real estate being a Chines citizen, re-echoing, in the process, the conclusion of the trial court that aliens or non-Filipino citizens are not disqualified from being mortgagees of real estate properties.
Upon the foregoing premises, we agree with the Court of Appeals that summary judgment was properly rendered by the trial court as there was no genuine issue of fact that would necessitate formal trial.
On the feasibility of reformation of the deed of sale with right of repurchase, we also agree with the appellate court, that the Tius’ complaint did not aver ultimate facts that would constitute a cause of action for reformation of instrument despite the Tius’ insistence that paragraphs 11, 12, 13, 14 and 15 of their complaint contain allegations of fraud and inequitable conduct, upon which reformation may be premised.
A perusal of these paragraphs (reproduced earlier) would show that indeed, as pointed out by the Court of Appeals, the allegations therein are mere conclusions of law or opinion; hence, reformation is not feasible. Section 5 of Rule 8 of the Revised Rules of Court directs a party averring fraud or mistake to state with particularity the circumstances constituting such fraud or mistake, with particularity is conspicuously absent in the complaint.
Further, in view of Rosalina Tiu’s failure to controvert the allegations of the Mario Obar Trading Center denying any trading partnership with Go, (and in effect, debunking Rosalina Tiu’s claim that payments to the trading firm were payments to Juan Go), summary judgment holding Rosalina Tiu liable was proper.
We shall also not disturb the ruling of the Court of Appeals that George and Joaquin Tiu are not solidary liable with Rosalina Tiu on the amount of P1,060,000.00, for apt and correct are the findings of the appellate court on this point:
The various receipts (Exhs. 1-15-Go) clearly show that the appellant George Tiu never signed the receipts nor received any money from appellant Go while appellant Joaquin Tiu signed and received the money for an in behalf of Rosalina. Consequently, they are not liable solidarily for the said amounts even if the money were used for tobacco business. And even if they admitted that they received the money, both are not liable in solidum because there was no express provision in said receipts that appellants George and Joaquin Tiu should be liable in solidum. There is solidary obligation only when the obligation expressly so states or when the law or nature of the obligation requires solidarity (Article 1207, NCC).
And there is no truth to the allegation that appellants George and Joaquin Tiu admitted that they are jointly and solidarily liable for said amount. What they admitted was that they received said money. Appellants’ failure to deny the allegations in pars. 8, 9, 10 of appellant Go’s third party complaint does not amount to an admission that they are solidarily liable. Be it noted that appellants Tiu, in their reply and answer to the counterclaim of appellant Go, admitted that only appellant Rosalina Tiu received the monies. The allegation in appellant Go’s third party complaint is essentially the same with the allegations in the counterclaim of appellant Go. Thus, it was not necessary for them to deny the allegations in the third party complaint.
Assuming arguendo that they admitted their solidary liability, still they are not liable. As aptly held by the lower court:
At any rate, the doctrine laid down on the case of Un Fak Leang vs. Nigurra, 9 Phil. 381, falls squarely on the point wherein the Supreme Court ruled that an admission of two debtors in their brief that their liability in the contract is a solidary one does not convert the joint character of their obligation as appearing in their contract, for what determines the nature of the obligation is the tenor of their contract itself, not the admission of the parties.
On Go’s prayer for attorney’s fees, moral and exemplary damages, all that has to be said perhaps is that simply because the Tius did not prevail in their suit against Go would it necessarily follow that they should be made liable for attorney’s fees and damages. An adverse result of a suit in law does not mean that the same is wrongful as to justify assessment of damages against the actor (Rubio vs. Court of Appeals, 141 SCRA 488 ).
WHEREFORE, the decision appealed from is AFFIRMED in toto. No special pronouncement as to costs.
Feliciano, Bidin, Romero and Vitug, JJ., concur.