1

G.R. No. L-61570 February 12, 1990.

RUPERTO FULGADO, substituted by his heirs, JULIANA, JOSE, MAXIMO, PACITA and SEVERO all surnamed FULGADO, petitioners,
vs.
HON. COURT OF APPEALS, RUFINO CUSTODIO, SIMPLICIA CUSTODIO, ARSENIO PIGUING, ISMAEL PORCIUNCULA and DOMINGA
MACARULAY, respondents.

Dollete, Blanco, Ejercito & Associates for petitioners.

Ramon Tuangco for private respondents

FERNAN, C.J.:

On September 9,1967, Ruperto Fulgado, a man approaching the twilight of his life, undertook the arduous task of filing an action in the Court of First
Instance of Rizal, Pasig branch against Rufino Custodia, Simplicia Custodia, Arsenio Piguing, Ismael Porciuncula and Dominga Macarulay for the
annulment of certain contracts of sale and partition with accounting. 1 The defendants (herein private respondents) filed their answer to the complaint
with special and affirmative defenses and a counterclaim.

After several deferments, the pre-trial conference was finally set for February 1, 1968 at 8:30 in the morning. Private respondents and their counsel
failed to appear on time at the pre-trial and were subsequently declared as in default. Plaintiff Fulgado was then allowed to present his evidence ex
parte before the Deputy Clerk of Court.

Meanwhile, upon learning of their predicament, private respondents immediately filed a motion to lift the order of default on the same day that the
order was issued. The trial court denied said motion in its order of February 16, 1972. Their motion for reconsideration was also denied. Persistently,
respondents filed a petition for relief from the default order. Once more, this was denied.

On April 24, 1972, the trial court rendered a decision in favor of plaintiff Ruperto Fulgado. On appeal, however, the Court of Appeals found that
private respondents had been deprived of their day in court by the unjust denial of their motion to lift the order of default. 2 The Appellate Court, in no
less than explicit terms, said:

WHEREFORE, the decision of the court a quo is hereby set aside and the case is remanded to the court of origin for trial on the merits, granting to
the defendants the opportunity to present their evidence, provided, however, that the evidence already presented before the commissioner shall
stand, but with the right of the defendants to cross-examine the witness who had already testified and with the right of the plaintiff to present
additional evidence that then he may decide. Without costs. 3

The Court of Appeals' decision became final and executory on June 27,1974 and the records of the case were remanded to the trial court.

On July 3, 1975, or more than a year after the finality of the Appellate Court's decision, counsel for private respondents moved that the trial court
"include th(e) case in any date of the August and September calendar of the Court, at the usual hour in the morning." 4

The case was set for hearing on September 16,1975. Unfortunately, the presiding judge went on official leave and the hearing was postponed anew
to January 15 and February 15, 1976. In the meantime, plaintiff Ruperto Fulgado died on November 25,1975 and was substituted by his children as
party plaintiffs. Fulgado's witness, Jose Fulgado, referred to in the dispositive part of the Appellate Court's judgment, had earlier migrated to the
United States on September 16, 1974.

When the case was heard on May 4, 1976, the following proceedings transpired:

Atty Dollete:

For the plaintiff, Your Honor. If your Honor please, may I inform this Honorable Court that this is a remanded case from the Court of Appeals for
cross-examination or presentation by the plaintiff of any additional evidence. But we have no further evidence in this case ... except those evidence
already adduced in the lower court before it was appealed in the Court of Appeals. It is up for the defense now to cross-examine the witnesses.

Court (To Atty. Tuangco):

You are through with the cross-examination?

Atty. Tuangco:

Not yet, Your Honor, we were granted by the Court of Appeals the right to cross-examine the witnesses ... . The last time this case was called for
hearing by this Honorable Court, the Presiding Judge tried to make the parties come to a settlement, but it seems that. they could not come to such
 2

settlement. I advised my clients to try to meet them. So now, this is the stage where they could not agree and so we will be proceeding with the
cross-examination of the witnesses.

Atty. Dollete:

There were only two witnesses. Two witnesses were presented, one is Ruperto Fulgado and he died already. Your Honor, the other witness was
Jose Fulgado who is now abroad for almost a year, Your Honor.

Atty. Tuangco:

I understand that the other witness was here on a visit, Your Honor. He came back.

Court:

So, what shall we do now?

Atty. Tuangco:

So, I move to strike out the testimonies of the witnesses who testified on the ground that we were deprived of our right to cross-examine them.

Atty. Dollete:

We will submit, Your Honor, for resolution the motion of the defendants.

Court (To Atty. Tuangco):

So, what do you want?

Atty. Tuangco:

That the whole testimonies of the two witnesses who were presented ex parte  be stricken off the record because we have not been granted the right
of cross-examining them and they are not available at this stage, Your Honor.

Atty. Dollete:

We will submit Your Honor. We maintain, Your Honor. Our opposition is that it hinges on the fact that defendants committed laches in their failure to
cross-examine the witness. That is our opposition.

Court:

Why?

Atty. Dollete:

There were several opportunities for them to cross-examine especially the witness Ruperto Fulgado, Your Honor. They are with full knowledge of the
age of this witness. They could have taken steps to assert their right granted by the Court of Appeals. Notwithstanding their knowledge about the
age, the advanced age and health condition of this witness Ruperto Fulgado, then we maintain, Your Honor, that defendants, in a way, have
committed laches in the assertion of their right to cross-examine.

Atty. Tuangco:

The records will show Your Honor, that it was the defendants who moved to set this case for hearing upon the remanding of the records from the
Court of Appeals.

Court:

You make a written motion and I will grant you a period of ten (10) days within which to file an opposition and then another additional period of ten
(10) days within which to reply. Then this matter shall be deemed submitted for resolution. But the fact is clear now that plaintiff has no more
additional evidence.

Atty. Dollete:

Yes, Your Honor.

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Court:

So that in case the court favorably grants the motion of defendants and orders the striking out of the testimonies of Ruperto Fulgado and the other
witness, together with the documentary evidence, the plaintiff had no more evidence to offer.

Atty. Dollete:

Yes, Your Honor. We stand on the evidence on Record. 5

On June 30, 1976, the trial court issued an order dismissing the case. It decreed:

For reason stated in the defendants' motion filed on May 18, 1976, which the Court finds meritorious, the testimonies of plaintiffs witnesses Ruperto
Fulgado and Jose Fulgado, who were not presented by the plaintiff so that the defendants could cross-examine them on May 4, 1976, are stricken
off the record and, as a consequence, in view of the manifestation of plaintiffs counsel that he had no more witnesses to present, the above-entitled
case is dismissed without pronouncement as to costs. 6

On appeal to the Appellate Court in C.A. G.R No. 62353-R, said order was affirmed on June 30, 1982. 7 Petitioners now question said affirmance
before this Court in the instant petition for review.

The principal issue in the case at bar is the propriety of the exclusion of the testimonies given by the now deceased Ruperto Fulgado and his
witness, Jose Fulgado, who has departed for the United States, which resulted in the dismissal of the complaint. Private respondents maintain that
such testimonies are wholly inadmissible for being hearsay, because respondents were not able to cross-examine the witnesses.

Petitioners, on the other hand, contend that while the right to cross-examination is an essential part of due process, the same may however be
waived as the private respondent have done when they allowed an unreasonable length of time to lapse from the inception of the opportunity to
cross-examine before availing themselves of such right and likewise when they failed to exhaust other remedies to secure the exercise of such right.

The appeal is well-taken.

In Savory Luncheonette vs. Lakas ng Manggagawang Pilipino , 8 and the cases cited thereunder, the Court, speaking through Justice Muñoz Palma,
has provided us with a concise overview of the right to cross-examination as a vital element of due process. Thus:

The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal or civil in nature, or in proceedings before
administrative tribunals with quasi-judicial powers, is a fundamental right which is part of due process. However, the right is a personal one which
may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the
opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on
direct examination of the witness will be received or allowed to remain in the record.

The conduct of a party which may be construed as an implied waiver of the right to cross-examine may take various forms. But the common basic
principle underlying the application of the rule on implied waiver is that the party was given the opportunity to confr ont and cross-examine an
opposing witness but failed to take advantage of it for reasons attributable to himself alone.

The principle requiring a testing of testimonial statements by cross-examination has always been understood as requiring, not necessarily
an actual cross-examination, but merely an opportunity to exercise the right to cross-examine if desired. 9 Thus the resolution of the present case
would hinge on whether or not this was an opportunity for cross-examination.

There is no disputing that where there was no such opportunity (to cross examine) and the want of it was caused by the party offering (plaintiff), the
testimony should be stricken out. However, where the failure to obtain cross-examination was imputable to the cross examiner's fault, the lack of
cross-examination is no longer a ground for exclusion according to the general principle that an opportunity, though waived, will suffice. 10

From the records presented, it is manifest that private respondents had enough opportunity to cross-examine plaintiff Ruperto Fulgado before his
death, and Jose Fulgado before his migration to the United States. Conceding that private respondents lost their standing in court during the time
they were in default, they were no longer in that situation on June 6, 1974 when the Court of Appeals set aside the default judgment in CA-G.R. No.
42590-R and remanded the case to the court of origin for trial on the merits, "granting to the defendants the opportunity to present their
evidence ... ." 11 This was a positive signal for them to proceed with the cross-examination of the two Fulgados, a right previously withheld from them
when they were considered in default. But despite knowledge of Ruperto's failing health (he was then 89 years of age) and Jose's imminent travel to
the United States, private respondents did not move swiftly and decisively. They tarried for more than one year from the finality of the Appellate
Court's decision on June 27, 1974 to ask the trial court on July 3, 1975 to set the already much delayed case for hearing "in any date of August and
September ... ." 12

Such inaction on the part of private respondents cannot be easily dismissed by the argument that it is the duty of the plaintiff to always take the
initiative in keeping the proceedings "alive." At best, the argument is fatuous.
 4

The task of recalling a witness for cross examination is, in law, imposed on the party who wishes to exercise said right. This is so because the right,
being personal and waivable, the intention to utilize it must be expressed. Silence or failure to assert it on time amounts to a renunciation thereof.
Thus, it should be the counsel for the opposing party who should move to cross-examine plaintiffs witnesses. It is absurd for the plaintiff himself to
ask the court to schedule the cross-examination of his own witnesses because it is not his obligation to ensure that his deponents are cross-
examined. Having presented his witnesses, the burden shifts to his opponent who must now make the appropriate move. Indeed, the rule of placing
the burden of the case on plaintiffs shoulders can be construed to extremes as what happened in the instant proceedings.

Having had the liberty to cross-examine and having opted not to exercise it, the case is then the same in effect as if private respondent had actually
cross-examined. We therefore hold that it was gross error for both the trial court and the Appellate Court to dismiss the complaint in Civil Case No.
10256 on the ultimate ground that there was an alleged failure of cross-examination. The wholesale exclusion of testimonies was too inflexible a
solution to the procedural impasse because it prejudiced the party whose only fault during the entire proceedings was to die before he could be
cross-examined. The prudent alternative should have been to admit the direct examination so far as the loss of cross-examination could have been
shown to be not in that instance a material loss.13 And more compellingly so in the instant case where it has become evident that the adverse party
was afforded a reasonable chance for cross-examination but through his own fault failed to cross-examine the witness.

Where death prevents cross-examination under such circumstances that no responsibility of any sort can be ascribed to the plaintiff or his witness, it
seems a harsh measure to strike out all that has been obtained in the direct examination. 14

As to the witness Jose Fulgado who is reportedly abroad, private respondents could have resorted to the various modes of discovery under the
Rules of Court to cross-examine Jose. D, During the hearing of May 4, 1976, counsel for private respondents unwittingly or wittingly disclosed that
they knew that Jose was in the country "for a visit" but they did not exert any effort to have him subpoenaed.

Altogether, the acts of private respondents constitute a waiver, and consequently, a forfeiture of their right to cross-examination. And having failed to
make use of this right, the consequences should rightfully fall on them and not on their adversary.

WHEREFORE, the decision under review of the Court of Appeals in CA-G.R. No. 62353-R dated June 30, 1982 is SET ASIDE. The trial court is
ordered to REINSTATE Civil Case No. 10256 and to allow the direct testimonies of plaintiff Ruperto Fulgado and his witness Jose Fulgado to remain
in the record. The court is further ordered to give priority to the hearing of said case in view of the length of time that it has remained unresolved on
account of procedural differences. This judgment is immediately executory. No costs.

G.R. No. 139456             July 7, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ADONES ABATAYO, appellant.

DECISION

CALLEJO, SR., J.:

On appeal is the Decision1 of the Regional Trial Court of Mandaue City, Branch 56, in Criminal Case No. DU-4381 finding appellant Adones Abatayo
guilty beyond reasonable doubt of two counts of murder and sentencing him to suffer reclusion perpetua for each count.

The appellant was charged with the crime of double murder in an Information dated January 31, 1994. The indictment reads:

That on or about the 10th day of September 1993, in the City of Mandaue, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused with deliberate intent to kill and with treachery and evident premeditation, did then and there wil[l]fully, unlawfully and feloniously
attack, assault and strike Dominador Basalan and Teofredo Basalan with the use of a GI pipe, thereby inflicting upon them mortal wounds in (sic)
their head[s] which caused their instantaneous death.

CONTRARY TO LAW.2

Upon arraignment, the appellant, assisted by counsel, pleaded not guilty. 3

The first witness for the prosecution was Juanito Gutang, whose direct examination was terminated during the trial of November 22, 1994. The
appellant’s counsel commenced with his cross-examination of the witness, but later prayed for a resetting as he still had many questions for the said
 5

witness. The court granted the motion. However, during the continuation of the trial on January 23, 1995, Juanito failed to appear due to fever. The
public prosecutor then asked the court to defer the further cross-examination of Juanito until he recovered from his illness, and that he be allowed to
present his second witness, Apolonio Quilag. The appellant did not object. The court granted the motion, but warned the public prosecutor that if
Juanito would not appear to continue with his testimony by the next trial date, his testimony would be stricken off the record. 4 However, such warning
was not contained in the order issued by the court on even date.

During the trial on March 2, 1995, the public prosecutor presented PO2 Alfredo Andales, and thereafter, the victims’ mother, Silvina Basalan. Both
testimonies were completed. The hearing of April 17, 1995 was cancelled, after the parties admitted the authenticity of Dr. Ladislao Diola, Jr.’s
necropsy report and agreed to dispense with his testimony thereon. The public prosecutor announced that he would rest his case on May 22, 1995. 5

During the trial on May 22, 1995, the public prosecutor manifested that he was ready to offer his documentary evidence and rest his case thereafter.
He offered in evidence the affidavit of Juanito as part of his documentary evidence. The appellant objected to the admission of the affidavit for the
purpose for which it was offered. The court nevertheless admitted the affidavit and the public prosecutor rested his case. On motion of the appellant,
trial was set at 8:30 a.m. of June 26, 1995 for the presentation of the witnesses for the defense.

The Case for the Prosecution6

Teofredo Basalan and his brother Dominador Basalan, aged 24 and 26, respectively, lived with their mother Silvina Basalan in Colon, Naga, Cebu
City.7 They were stay-in construction workers at the construction site of the Gaisano FCDC at Ibabao, Mandaue City. 8

At around 7:00 p.m. of September 9, 1993, after a hard day’s work at the construction site, laborers Juanito Gutang, Apolonio Quilag and Pedro
Esconia, as well as an unidentified co-worker, retired early in their quarters. 9

At around 3:00 a.m. the following day,10 Juanito was awakened by an unusual thud, similar to that produced by someone "striking somebody." 11 He
got up and saw the appellant, from a distance of about three (3) meters, 12 hitting Teofredo and Dominador with a lead pipe. 13 Juanito woke up his co-
workers and told them what he had just witnessed.14 Apolonio saw the victims, already lying in a pool of blood. 15 Juanito and his co-workers
immediately reported the incident to the security guards on duty who, in turn, called up the Mandaue City police station. 16

Meanwhile, the appellant hurriedly left the job site, bringing with him his personal belongings. 17

PO2 Alfredo Andales, who was assigned to the case, forthwith conducted an on-the-spot investigation. At the crime scene, he found the victims’
bloodied corpses, with their respective heads smashed. He also found a galvanized iron (G.I.) pipe, the weapon used to kill the victims. 18 His
investigation revealed that the night before the victims were killed, they had an acrimonious quarrel with the appellant over some misplaced
construction tools which were later recovered.19 The policemen had the incident recorded in the police blotter 20 with the appellant as the prime
suspect.

In the afternoon of that same day, the bodies of the victims were brought to the Cosmopolitan Funeral Homes where Dr. Ladislao V. Diola, Jr.,
conducted a post mortem examination. He signed a necropsy report stating that the victims died due to "cardio respiratory arrest due to shock and
hemorrhage secondary to injuries to the head." 21 By agreement of the parties, the testimony of Dr. Diola was dispensed with after the defense
admitted the findings contained in the doctor’s post mortem report.22 On September 16, 1993, Juanito and Apolonio subscribed and swore to the truth
of their respective affidavits before the public prosecutor. 23

Silvina testified that she fainted when she learned of the death of her two sons. She spent around P50,000.00 for the wake and funeral. She also
testified that the death of her two sons caused her emotional pain, but when asked to translate her pain into monetary terms, she left it for the court
to determine.24

The Evidence of the Appellant25

The appellant testified that he started working for Super Metro Gaisano as a construction worker sometime in mid-August 1993. On September 9,
1993, after rendering overtime work for two hours, he decided to go home. He left the job site at around 7:00 p.m., and hitched a ride home in the
company’s vehicle driven by Charmel Ralago, who happened to be his neighbor. He finally arrived home at about 9:00 p.m. The following morning,
his uncle dropped by his place and asked to be accompanied to Carcar, Cebu, as it was the town’s fiesta. The appellant readily acquiesced.
Consequently, he absented himself from work, and requested a co-worker to get his salary. After the fiesta, he went back home but no longer
reported for work. Instead, he went to Bohol. He returned home in December 1993 in time for the holiday season. He was surprised when he was
arrested in August 1994 for the killings of the Basalan brothers. 26

Bernabe Hinario, 23 years old, erstwhile taho peddler and next-door neighbor of the appellant, corroborated the latter’s alibi. He testified that at
about 9:00 p.m. on September 9, 1993, as he was whiling away the time in the neighborhood, he saw the appellant arrive from work as usual. The
appellant greeted him and invited him to attend the fiesta in Carcar, Cebu, the next day. He declined because of his work. Thereafter, they parted
ways, as the appellant proceeded to his house.27
 6

Leonora Abatayo, the appellant’s mother, testified that she was in their house when the appellant arrived home at about 9:00 p.m. on September 9,
1993. After taking his dinner, the appellant slept. The following morning, after breakfast, the appellant left with his uncle, Fransico Malubay, to attend
the fiesta in Carcar, Cebu.28

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

Foregoing considered and in the light of Prosecution witness Juanito Gutang’s positive identification and eyewitness account of the killing, the Court
is constrained and so finds the Accused GUILTY of the crime of two counts of Murder. Accordingly, Accused is sentenced to suffer the penalty
of Reclusion Perpetua for each count of Murder. Accused is, likewise, ordered to:

1. Reimburse the victim’s kin for actual expenses in the sum of Seventeen Thousand Pesos (P17,000.00);

2. Pay damages in the total sum of Two Hundred Thousand Pesos (P200,000.00) plus costs.

SO ORDERED.29

In convicting the appellant, the trial court relied on the testimony of Apolonio and eyewitness Juanito Gutang, which were corroborated by the
medical findings showing the nature and the location of the wounds inflicted on the victims. The court brushed aside as dubious and weak the denial
and alibi interposed by the appellant. According to the court, such defenses could not prevail over the positive identification made by Juanito of the
appellant as the perpetrator of the crime. 30

The appellant now assails his conviction, asserting that:

THE TRIAL COURT ERRED IN NOT ORDERING THE STRIKING OUT OF THE ENTIRE TESTIMONY OF THE PROSECUTION[’S] ALLEGED
EYEWITNESS JUANITO GUTANG ANENT THE CRIME CHARGED IN VIEW OF HIS UNJUSTIFIED FAILURE TO ALLOW HIMSELF TO BE
FURTHER CROSS-EXAMINED PURSUANT TO ITS ORDER DATED JANUARY 23, 1995.

II

THE TRIAL COURT ERRED IN GIVING PROBATIVE VALUE TO THE UNFINISHED TESTIMONY OF THE PROSECUTION WITNESS JUANITO
GUTANG DESPITE ITS INHERENT IMPLAUSIBILITY AND IN DISREGARDING THE EVIDENCE INTERPOSED BY [THE] ACCUSED-
APPELLANT WHICH WAS AMPLY CORROBORATED ON MATERIAL POINTS.

III

THE TRIAL COURT ERRED IN RENDERING A VERDICT OF CONVICTION NOTWITHSTANDING THE FACT THAT ACCUSED-APPELLANT’S
GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.31

The Ruling of the Court

We affirm the findings of the trial court and sustain the conviction of the appellant with modifications.

The Incomplete Cross-Examination of Juanito Gutang

The appellant insists that the trial court should not have given credence to the story of the lone eyewitness for the prosecution, Juanito Gutang,
considering that his counsel was not able to continue cross-examining the witness. He strongly argues that his constitutional and procedural right to
confront the witness against him was thereby impaired. Citing Ortigas, Jr. v. Lufthansa German Airlines32 as the case in point, the appellant faults the
trial court for relying on Juanito’s testimony despite the warning it made during the trial of January 23, 1995, that it would consider the entire
testimony of Juanito stricken off the record for lack of proper cross-examination. 33

The Office of the Solicitor General (OSG), for its part, asserts that while the appellant has the constitutional right to cross-examine the witnesses
against him, he waived such right when he failed to invoke the same after his initial cross-examination of Juanito.

We agree with the OSG.

Under Article III, Section 14(2) of the 1987 Constitution, the appellant has the right to meet the witnesses against him face to face. Under Rule 115,
Section 1(f) of the Rules of Court, he has the right to confront and cross-examine the witnesses against him at the trial, a fundamental right which is
part of due process. However, the right of confrontation and cross- examination is a personal one. It is not an absolute right which a party can claim
at all times.34
 7

In Savory Luncheonette v. Lakas ng Manggagawang Pilipino ,35 we ruled that the right to confront the witness may be waived by the accused,
expressly or impliedly.

The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal or civil in nature, or in proceedings before
administrative tribunals with quasi-judicial powers, is a fundamental right which is part of due process. However, the right is a personal one which
may be waived, expressly or impliedly, by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the
opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on
direct examination of the witness will be received or allowed to remain in the record.

The conduct of a party which may be construed as an implied waiver of the right to cross-examine may take various forms. But the common basic
principle underlying the application of the rule on implied waiver is that the party was given the opportunity to confront and cross-examine an
opposing witness but failed to take advantage of it for reasons attributable to himself alone. 36

In the later case of Fulgado v. Court of Appeals,37 we ruled that the task of recalling a witness for cross-examination is imposed on the party who
wishes to exercise said right, and stressed that it should be the opposing counsel who should move to cross-examine the plaintiff’s witness. Thus:

The task of recalling a witness for cross-examination is, in law, imposed on the party who wishes to exercise said right. This is so because the right,
being personal and waivable, the intention to utilize it must be expressed. Silence or failure to assert it on time amounts to a renunciation thereof.
Thus, it should be the counsel for the opposing party who should move to cross-examine plaintiff’s witnesses. It is absurd for the plaintiff himself to
ask the court to schedule the cross-examination of his own witnesses because it is not his obligation to ensure that his deponents are cross-
examined. Having presented his witnesses, the burden shifts to his opponent who must now make the appropriate move. Indeed, the rule of placing
the burden of the case on plaintiff’s shoulders can be construed to extremes as what happened in the instant proceedings. 38

In this case, we are convinced that the appellant waived his right to further cross-examine Juanito. The records show that Juanito testified for the
prosecution on direct examination on November 22, 1994. Thereafter, the appellant’s counsel cross-examined the witness on the corpus delicti. He
then moved for a resetting as he still had many questions to ask the witness. Juanito failed to attend the trial on January 23, 1995 for the
continuation of his cross-examination because he had a fever. The appellant did not object to the deferment of Juanito’s cross-examination; neither
did he object to the public prosecutor’s presentation of Apolonio Quilag as its second witness. The trial was reset to March 2, 1995 for the
continuation of Juanito’s cross-examination.39 However, no subpoena ad testificandum was issued to Juanito for the said trial. There is, likewise, no
showing whether Juanito was in court on March 2, 1995 when the case was called. Furthermore, the appellant did not object when the public
prosecutor presented PO2 Andales and Silvina Basalan as witnesses.

During the trial on April 17, 1995, the public prosecutor manifested, following the stipulation of the parties on the authenticity of Dr. Ladislao Diola,
Jr.’s necropsy report, that he would be ready to rest his case by the next trial. Again, the appellant did not call the attention of the court on the fact
that he had not yet finished his cross-examination of Juanito. He did not ask to be allowed to terminate the cross-examination of the witness first
before allowing the prosecution to rest its case. Neither did the appellant ask the court to strike Juanito’s testimony on direct and cross-examination
from the records. When the case was called for trial on May 22, 1995, the public prosecutor announced that he had no more witness to present and
was ready to formally offer his documentary evidence. There was no objection from the appellant. Neither did the appellant object to the offer of
Juanito’s affidavit40 as part of his testimony, on the ground that he was deprived of his right to complete his cross-examination of the said witness.
Moreover, when he testified, the appellant disputed the testimony of Juanito that he killed the victims, claiming that he was at home when the victims
were killed. The appellant adduced testimonial evidence corroborating his alibi.

All the foregoing instances conclusively show that the appellant had waived his right to further cross-examine Juanito. From the conduct of the
appellant’s counsel, it can be fairly inferred that he considered the initial cross-examination of Juanito adequate, and that there was no longer a need
to further cross-examine the witness.

Credibility of Witnesses and Sufficiency of Prosecution’s Evidence

Reviewing the records, we find that the prosecution has proven beyond doubt that the appellant killed the victims. He was positively identified by the
lone eyewitness, Juanito Gutang. The testimony of this lone eyewitness is clear, straightforward, categorical and consistent, without any tinge of
falsehood or sign of fabrication. In his testimony, he narrated the nightmarish events that transpired in that unholy hour of 3:00 a.m. on September
10, 1993, thus:

FISCAL MATA (on direct)

...

Q Mr. Juanito Gutang, you are a construction worker of what company?

A FCDC.

...
 8

Q On the said date, September 10, 1993, at around 3:00 o’clock in the evening (sic) where were you? 41

ATTY. SURALTA

Misleading, there is no such time.

FISCAL MATA

Q At 3:00 o’clock dawn or in the morning?

A In our bunk house.

Q What do you mean by bunk house?

A The place where we slept.42

...

Q Do you know of any incident on September 10, at around 3:00 o’clock early in the morning? 43

...

Q Now, what was that incident you mentioned all about?

A I was awakened by a sound striking somebody, and when I got up, I saw Adones holding a pipe.

Q You mentioned Adones, who is this Adones?

A Adones Abatayo.44

...

COURT (to witness)

Q What was he doing with the pipe?

A He was striking it against my companions who were sleeping?

COURT:

Proceed.

Q Who are these companions you mentioned?

A The brothers, Teofredo and Dominador.

Q What are their family names?

A Basalan.

Q Where are these Teofredo and Dominador Basalan now?

A They are already dead.45

No evil motive has been imputed against Juanito Gutang for testifying against appellant. As a matter of fact, the latter admitted that no bad blood
existed between them, and he knew of no reason why the former would testify against him. 46 In such a situation, the rule is that where there is no
evidence, and nothing to indicate that the principal witness for the prosecution was actuated by improper motives, the presumption is that he was
not, and his testimony is entitled to full faith and credit. 47 Furthermore, it is unlikely that this witness could relate all the details of the crime with clarity
and lucidity if he had not actually witnessed the killings of the Basalan brothers.

It is well-established that the trial court’s calibration of the credibility of witnesses should not be disturbed on appeal since the said court is in a better
position to decide the question, having itself heard and observed the demeanor of the witnesses on the stand, unless it has plainly overlooked
 9

certain facts of substance and value, which, if considered, could alter and affect the result of the case. 48 In the case at bar, we find no reason to
depart from this rule, given the trustworthiness of the testimony of the witness.

The Prosecution Failed

To Prove Treachery and
Evident Premeditation
Beyond Reasonable Doubt

The trial court found the appellant guilty of murder and sentenced him to suffer the penalty of reclusion perpetua in each case, without finding any
circumstance attendant to the crime to qualify the killings to murder. Section 1, 49 Rule 120 of the Revised Rules of Court, requires that after an
adjudication of guilt by the court, it should impose the proper penalty and civil liability provided for by law. Further, Section 2 50 of the same Rule
mandates that the judgment of conviction should state, among others, the aggravating or mitigating circumstances attendant to the commission of
the crime, if there are any, to enable the Court to determine the proper penalty on the appellant. Judges who faithfully observe this duty contribute to
the orderly administration of justice.51

Treachery cannot be appreciated in this case where the lone eye-witness to the killing, Juanito Gutang, was not able to see how the assault started.
The fact that the incident happened in an unholy hour, around 3:00 a.m., did not prove that the victims were sleeping when they were killed. As
Juanito Gutang testified, he was asleep when appellant started the attack on his victims and he was only awakened by thudding sounds, as the
appellant struck the victims with a pipe. The importance of such testimony cannot be overemphasized, considering that treachery cannot be
presumed nor established from mere suppositions.52

Under our penal law, there is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the
execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party
might make.53 It requires the concurrence of two conditions: 1) employment of means of execution that gives the person attacked no opportunity to
defend himself, much less to retaliate; and, 2) deliberate or conscious adoption of the means of execution. 54 The essence of treachery is the sudden
and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself and thereby ensuring its
commission without risk to himself.55

It is settled that if the victim, when killed, was sleeping or had just awakened, the killing is with treachery because in such cases, the victim was not in
a position to put up any form of defense.56 However, when the lone eyewitness for the prosecution did not see how the attack commenced, the trial
court cannot presume from the circumstances of the case that there was treachery. Circumstances which qualify criminal responsibility cannot rest
on mere conjectures, no matter how reasonable or probable, but must be based on facts of unquestionable existence. 57 Thus, treachery cannot be
deduced from mere conjectures, presumption or sheer speculation. 58 Mere probabilities cannot substitute for proof required to establish each element
necessary to convict. Settled is the rule that treachery cannot be presumed but must be proved by clear and convincing evidence, or as conclusively
as the killing itself.59

Like treachery, evident premeditation should be established by clear and positive evidence. Mere inferences or presumptions, no matter how logical
and probable they might be, would not be enough. In the case at bar, evident premeditation was, likewise, not proven. The prosecution did not even
attempt to prove the three elements necessary before evident premeditation may be appreciated as a qualifying aggravating circumstance, namely:
(a) the time when the accused determined to commit the crime; (b) an act manifestly indicating that the accused has clung to his determination; and,
(c) a sufficient lapse of time between such a determination and execution to allow him to reflect upon the consequences of his act. 60 A police report of
a prior spat61 between the appellant and the victims is not enough, as nothing in the records show that the appellant planned in advance the
commission of the crime. The principal eyewitness was not even aware of any prior incident or possible reason which could have led the appellant to
attack the victims.

The Defenses of Alibi and Denial

The appellant insists that the trial court erred in disbelieving his alibi. He contends that the testimony of Bernabe Hinario, a neighbor, being a
disinterested witness, should have been given more weight than the untested words of Juanito Gutang. 62

The trial court certainly could not be faulted for not giving probative weight to the appellant’s alibi. Besides being inherently weak for not being
airtight, the appellant’s alibi cannot prevail as against the positive identification made by the prosecution witness. On top of its inherent weakness,
alibi becomes less plausible as a defense when it is corroborated only by a relative or a close friend of the accused. 63 At any rate, it was for the trial
judge, using his discretion and his observations at the trial, to determine whom to believe among the witnesses who disputed the whereabouts of the
appellant in the unholy morning of September 10, 1993.

On the appellant’s denial, suffice it to say, that said defense cannot prevail over the positive identification by the eyewitness who had no improper
motive to falsely testify against him as we have mentioned above. 64 It is negative and self-serving, and cannot be given greater evidentiary weight
over the testimony of a credible witness who testifies on affirmative matters. 65
 10

The appellant’s flight after the said incident could be taken as a clear and positive indication of guilt. It is a sage observation that the flight of an
accused from the scene of the crime and his act of hiding himself until he is arrested are circumstances highly indicative of guilt. 66 For, as wisely said,
the "wicked flee even when no man pursueth but the righteous are as bold as a lion." The appellant’s sudden and unexplained trip following the
killing of the victims was unmistakably a flight from justice.

Duplicity of the
Information and the
Proper Penalty

It must be noted that only one Information (for double murder) was filed with the trial court. The records are bereft of any showing that the appellant
objected to the duplicity of the information by filing a motion to quash before his arraignment. Hence, he is deemed to have waived such defect. 67 In
this connection, Section 3 of Rule 120 of the Rules of Court provides:

SEC. 3. Judgment for two or more offenses. – When two or more offenses are charged in a single complaint or information, and the accused fails to
object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense,
setting out separately the findings of fact and law in each offense.

Under Article 249 of the Revised Penal Code, homicide is punishable by reclusion temporal which has a range of twelve (12) years and one (1) day
to twenty (20) years. There being no mitigating nor aggravating circumstance that attended the commission of the crimes, the maximum period of the
imposable penalty should be taken from the medium period of reclusion temporal, the range of which is from fourteen (14) years, eight (8) months
and one (1) day to seventeen (17) years and four (4) months. The minimum of the indeterminate penalty should be taken from the full range
of prision mayor, which is one degree lower than reclusion temporal. Applying the Indeterminate Sentence Law,68 the appellant may be meted an
indeterminate sentence of from eight (8) years and one (1) day of prision mayor, in its medium period, as minimum, to fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal in its medium period, as maximum, for each count of homicide.

Amount of Damages

The amount of damages awarded by the trial court must be modified, as it awarded P17,000.00 for actual damages despite the absence of any
documentary evidence to prove the same. The award shall be deleted. However, temperate damages may be recovered under Art. 2224 of the Civil
Code, when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty.
In this case, the amount of P25,000.00 would be sufficient, considering that it is undisputed that the family incurred expenses for the wake and burial
of the victims.69

Under Article 2206 of the Civil Code, the heirs of the victims are entitled to indemnity for loss of earning capacity. Ordinarily, documentary evidence
is necessary for the purpose. By way of exception, testimonial evidence may suffice if the victim was either (1) self-employed, earning less than the
minimum wage under current labor laws, and judicial notice may be taken of the fact that in the victim's line of work, no documentary evidence is
available; or (2) employed as a daily-wage worker earning less than the minimum wage under current labor laws. 70 In the case at bar, however, while
the victims’ mother testified that her sons remitted to her their income, she did not indicate how much her sons were then earning. 71 Thus, this case
does not fall under any of the exceptions.

In its decision, the trial court, likewise, awarded the sum of P200,000.00 by way damages without specifying the amount of each item. In accordance
with prevailing jurisprudence relative to Article 2206 of the Civil Code, the heirs of the victims are entitled to the total amount of P100,000.00 by way
of civil liability. Civil indemnity is automatically imposed upon the accused without need of proof other than the fact of the commission of murder or
homicide.72

Proof of moral damages was presented through the testimony of the mother of the victims. Moral damages may be awarded in favor of the heirs of
the victims upon sufficient proof of physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock,
social humiliation and similar injury.73 Considering the pain and anguish of the victims’ family brought about by their death, the award of P50,000.00
for each offense is justified.74

WHEREFORE, the Decision of the Regional Trial Court of Mandaue City, Branch 56, is hereby AFFIRMED with MODIFICATIONS. The appellant is
found GUILTY beyond reasonable doubt of two (2) counts of homicide as defined and penalized in Article 249 of the Revised Penal Code, as
amended, and is sentenced to suffer an indeterminate penalty of Eight (8) Years and One (1) day of prision mayor, in its medium period, as
minimum, to Fourteen (14) Years, Eight (8) Months and One (1) Day of reclusion temporal in its medium period, as maximum, for each count of
homicide. The appellant is ORDERED to pay the heirs of each of the victims, Teofredo Basalan and Dominador Basalan, the sums of P50,000.00
representing temperate damages; P100,000.00 as indemnity ex delicto; and, P100,000.00 as moral damages.
 11

G.R. No. L-38790 November 9, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FEDERICO RELUCIO @ "PEDRING", EDRI PINEDA, ROSENDO VELASCO @ "MANGYO", DANTE ARIOLA, MIGUEL ESPEJO PADRONES @
"EGI", PETER DOE, and RICHARD DOE, accused, ROSENDO VELASCO @ "MANGYO", accused-appellant.

J. G. Lapuz & E. F. David for appellant.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Hugo E. Gutierrez Jr. and Trial Attorney Windalino Y. Custodia for appellee.

BARREDO, J.:

Appeal from the judgment of conviction against appellant Rosendo Velasco of the crime of murder by the Circuit Criminal Court of the Fourth Judicial
District dated January 4, 1974, the dispositive part of which reads:

WHEREFORE, this Court, finding the accused Federico Relucio and Rosendo Velasco guilty beyond reasonable doubt of the crime of Murder as
charged in the information, and in the absence of any modifying circumstance, hereby sentences them to  reclusion perpetua; to indemnify jointly and
severally the heirs of the herein deceased victim Gonzalo Talastas in the amount of P12,000.00 without, however, subsidiary imprisonment in case
of insolvency by reason of the nature of the sentence, and to pay the proportionate costs.

It appears that the other accused Federico Relucio withdrew his appeal upon the filing of a motion for new trial but pending the resolution of said
motion, said accused broke out of the Nueva Ecija Provincial Jail together with two other inmates named Mario David and Amante Villasenor for
which reason the trial court declared the decision final as to him. (Order of the trial court of June 4, 1974.)

Appellant was charged with murder in the court below, together with Federico Relucio, alias "Pedring", Edri Pineda, Dante Ariola, Miguel Espejo
Padrones. alias "Egi" Peter Doe and Richard Doe, in an information dated May 29, 1972 reading as follows:

The City Fiscal accuses Federico Relucio alias "Pedring", Edri Pineda, Rosendo Velasco alias "Mangyo", Dante Ariola, Miguel Espejo Padrones
alias "Egi", Peter Doe and Richard Doe, the true Identities of the last two-named accused being presently unknown, of the crime of Murder,
committed as follows:

That on or about the 23 rd day of June, 1971, in the City of Cabanatuan, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and mutually aiding and abetting one another, with treachery, did then and there, willfully, unlawfully and
feloniously attack, assault and use personal violence upon the person of one Gonzalo Talastas by shooting the latter on different parts of his body
with guns thereby inflicting upon him serious physical injuries which directly caused his death.

CONTRARY TO LAW, with the generic aggravating circumstances of evident premeditation and cruelty.

Cabanatuan City, May 29, 1972.

FOR THE CITY FISCAL:

SGD.) MARIO M. DEL ROSARIO Special Counsel

The trial began on November 16, 1972 and ended on November 5, 1973, the court holding no less than twenty-four sessions. Four witnesses,
Patrolman Jose E. Garcia, Crispin Angeles, Dra. Melicia C. de Guzman and Miguel Padrones, testified for the prosecution during the presentation of
the direct evidence and four witnesses, Jose Serafica, Inday Tinio, Benito Custodio and again Miguel Padrones were presented as rebuttal
witnesses. The defense had, aside from the accused Relucio and Velasco, the following witnesses: Eduardo Mangahas, Jose Aguilar, Ligaya
Velasco, Elias Estrella, judge Alfin Vicencio, Segundino Gabriel, Pablo Padilla, Eusebio Mendiola and Dr. Emiliano Perez. Later, Velasco testified
again in rebuttal. The transcript of the stenographic notes of the testimonies of all the witnesses consist of over 930 pages.

Of the four witnesses in chief presented by the prosecution only two, Crispen Angeles and Miguel Padrones, can be said to have given incriminatory
evidence against appellant.

-1-
 12

According to Angeles, (pp. 18-115, t.s.n.), on the day in question, June 23, 1971, he met the deceased Gonzalo Talastas (Along) near the entrance
to the Capital Theater in Cabanatuan City at about 2 o'clock in the afternoon. He invited Talastas to see the movie. The latter said he was waiting for
a woman. When the woman named Amanda arrived, she had a female companion, and the four of them went in. After a while Amanda left and did
not go back anymore. So, Angeles invited Talastas to leave but the latter said he would wait for Amanda to return. A little later, however, he acceded
just the same, but Angeles "left ahead of him."

As Angeles was going out, he met the accused Federico Relucio and another person unknown to him going inside the theater. After the two went in,
Angeles heard shots, after which he saw Talastas going out of the theater with blood on his shoulder. (He could not say whether left or right. 'At that
moment, he (Angeles) was "in the place opposite the Capital Theater near the Avenue Theater" (across Burgos Street ). He saw "someone following
and shooting him" (Talastas),' somebody who was chasing him. ... He was firing shots," but he did not say clearly who fired the shots. His vague
testimony on this point is as follows:

Q Where were you when you saw Gonzalo Talastas going out of the theater?

A I was there in front of the Avenue theater, sir.

Q What happened if you know when you saw Gonzalo Talastas going out the theater?

A There was somebody who was chasing him, sir.

Prosecutor

Q What was that one chasing him doing while chasing him?

A He was firing shots, sir.

Q To whom was he firing shots?

A Gonzalo Talastas, the one who died.

Q Do you know that one chasing Gonzalo Talastas?

A Yes, sir. The one chasing him I know him by face and the other one I know him by name only, sir.

Q How many were chasing Gonzalo Talastas?

A There were many but I recognized only four, sir.

Q You said that you know the name of one of them, will you please tell the Honorable Court the name of one of them whom you know by name?

A Yes, sir.

Q What is his name?

A Ige, sir.

Q If Ige is in this courtroom, can you point to him?

A Yes, sir.

Atty. Abesamis

We object to the question for it lacks basis because the witness categorically stated that he only knew the name. He did not state that he knows the
person who carries the name of Ige, your Honor.

Court

But he saw the man. If he did not see, I would not insist. I would sustain you easily but he saw the face.

Atty. Abesamis

I submit, your Honor.

 13

Court

Witness may answer.

Witness

A Yes, sir. Prosecutor

Q Please point to him?

A (witness pointing to a person wearing a white shirt when asked of his name answered that he is Miguel Padrones).

Q You said you saw four persons, besides Miguel Padrones, can you tell if any of the three is in this courtrooms.

A Yes, sir.

Q Please point to them?

A (witness going down from the witness stand and pointing to somebody sitting handsome and with curly hair who, when asked of his name,
answered that he is Rosendo Velasco).

Q Who else if there are still in this courtroom?

A I have already pointed three. The other one is not here, sir.

Q You said that you recognized four men among those chasing the deceased Gonzalo Talastas and you pointed to Ige who is Miguel Padrones and
now you pointed to Mangyo who is Rosendo Velasco, who is the other one?

Atty. Abesamis

Already answered, he already pointed three according to him, your honor.

Court

Q You only pointed two as far as the Court remembers. You said four were there other still present in the courtroom?

A Yes, sir. This is the third one (witness pointing to somebody who is used to be Identified to be Federico Relucio), and the fourth one is not here.

Prosecutor

Q You said that they were chasing Gonzalo Talastas, what happened with that chasing?

A He was hit and he fell down, sir.

Q Where did he fall ?

A In front of the Tiwag College, sir.

Q How far is that point from the theater where Gonzalo Talastas came?

A It was quite far, sir, I cannot estimate but he came from the Capital theater, and he fell down in front of the Liwag College.

Court

Q Can the parties determine as to the distance from the Capital theater up to the Liwag College?

(Make of record that the distance approximated by the parties is more or less 150 meters).

(t.sn., pp. 37-42, hearing of November 16, 1972.)

Explaining further, he testified that Talastas was running towards the east and that "those chasing him, some were in the jeep and others running. "
Among those in the jeep was appellant Rosendo Velasco, the only one he recognized, and among those on foot he recognized only Miguel
Padrones. After Talastas fell, the witness went to the municipal building "looking for a policeman whom I know because I will tell him that Gonzalo
Talastas was shot", but he could not find anyone he knew, so he went home.
 14

On cross-examination, however, he identified Padrones as the only one chasing Gonzalo thus:

Atty. Pablo

Q Now, you saw Ige chasing him on foot when he was going out of the theater or when he was already running along the street?

A When he was already running in the street sir.

Q He was alone chasing him when he was proceeding along the Liwag College?

A I only saw one. He was alone Ige only, sir. (t.s.n., p. 60, hearing of November 16, 1972.)

Moreover, whatever frail indication may appear in the testimony of this, witness linking appellant to the offense charged was virtually shattered by
Exhibit 17, the sworn statement of the same witness given to Detective Justiniano E. Fernandez of the Cabanatuan City Police on January 11, 1972,
which the defense presented for impeachment purposes, strangely without objection on the part of the prosecution notwithstanding that the defense
failed to lay the predicate therefor. (t.s.n., p. 388.) In said statement, Angeles gave practically a different story from beginning to end - from the
reference to the time place and reason how he and Talastas and Amanda came to be together that fateful afternoon up to the Identification of Ige or
Egi (Miguel Padrones) as the one who shot Talastas) — from that related by him on the witness stand. Exhibit 17 reads as follows:

CCPD-Bilang 1356-71

SALAYSAY NI CRISPIN ANGELES Y SANTIAGO NA KUHA SA PAGTATANONG NI TIKTIK JUSTINIANO P. FERNANDEZ NG PANGKAT NG
TAGATUGAYGAY NG HIMPILAN NG PULISYA NG LUNGSOD NG KABANATUAN NGAYONG IKA-11 NG BUAN NG ENERO 1972, SA GANAP
NA IKA-4:00 NG HAPON.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

01. TANONG:-Ito'y isang pagsisiyasat, ikaw ba'y handang magbigay ng isang malaya at kusang loob na salaysay na ang iyong sasabihin dito ay
pawang katotohanan lamang.?

SAGOT:-Opo.

02. T-Sabihin mo ang iyong pangalan at bagay na maaring pa sa iyong pagkatao at sabihin mo din kung saan ka kasalukuyang naninirahan?

S-CRISPIN ANGELES Y SANTIAGO po, 22 taong may asawa, magsasaka at sa kasalukuyang naninirahan sa Bo. Pamaldan, Lungsod ng
Kabanatuan.

03. T-Ano ang dahilan at ikaw ay naririto ngayon sa Tanggapan ng Pulisya at ikaw ay nagbibigay ng isang malaya at kusang loob na salaysay dito?

S-Dahilan po sa akoy nagpapatunay sa isang pangyayari na naganap.

04. T-Ano ba ang pangyayaring ito na ayon sa iyo ay naganap na nais mong patunayan dito?

S-Ganito po iyon. Nuong ika-2:00 ng hapon ng ika-23 ng buan ng Hunyo 1971, samantalang kami nitong si GONZALO TALASTAS ay nanduon sa
isang bahay na aming tinutuluyan sa Bo. Aduas, dito sa Lungsod ng Kabanatuan, ay dumating itong si MANDA at ang isang babae na sinabi niyang
kanyang pinsan at kami ay kanilang inamuki na samahan sila na manood ng Cine. Amin naman pong sinamahan ang dalawang babae na ito at ang
kanilang piniling pasukin na Cine ay iyong Capital sa may daang Burgos. Ng kami'y nanduon na sa loob ng sine, hindi pa gaanong nagtatagal kami
sa aming pagkakaupo na magkakatabi duon sa hulihang upuan sa ibaba sa gawing kaliwa ay nagpaalam ang dalawang kasama naming ito na sila'y
di umano'y pupunta sa kasilyas ng mga babae at sila'y iihi. Ng mayruon ng humigit kumulang na kahalating oras ang nakakaraan ang dalawang
babae na ito ay hindi pa nagbabalik sa kanilang upuan sa tabi naming dalawa ay nainip kami at amin silang hinanap subalit hindi na namin sila
nakita. Sa pangyayaring ito ay nagusap kami nitong si GONZALO TALASTAS at napagkasunduan naming dalawa na kami'y lumabas na din, ang
ginawa ko ay nagpatiuna na ako sa paglabas na sumusunod itong is GONZALO TALASTAS at siya ay naghinto sa may tapat ng takilya. Ng ako'y
malapit ng makarating duon sa mga bungad ng pasilyo ay napansin ko na mayruong tatlong tao na mayruong mga dalang baril ang naduon sa
magkabilang gilid at sa aking palagay ay mayruong silang inaabangan. Ng ako'y makalagpas na sa mga taong ito, iyong isa sa kanilang tatlo ay
humiwalay at pumasok duon sa loob. Sa napansin kong ito ang ginawa ko ay nagbalik ako at sa aking pagpasok ay bigla na lamang mayruong
pumutok na baril at ng aking tingnan ang pinangalingan ng putok ay nakita ko itong si FEDERICO RELUCIO na mayruong palayaw na "PEDRING
"na binabaril itong si GONZALO TALASTAS na tinamaan sa kanyang kaliwang balikat. Nakita ko din na gumanti itong si GONZALO TALASTAS at
tinamaan din itong si PEDRING na hindi ko alam kung saang parte. Nakita ko din po na itong si GONZALO TALATAS ay tumakbong papalabas ng
sine na naiwanan itong si PEDRING duon sa loob. Sa ginawang paglabas nitong si GONZALO TALASTAS ay sumunod na din ako at nakita ko na
iyong ibang mga kasamahan nitong si PEDRING na nagaabang sa labas at nakasakay duon sa jeep na di pasaheros na kasama na duon iyong
dalawang kasamahan nitong si PEDRING na nakita kong nakatayo sa magkabilang gilid ng pasilyo ng Cine Capital. Nakita ko na bumaba itong si
PEDRING na hinabol itong si GONZALO TALASTAS na kasalukuyan nuong nagtatakbo napatungo duon sa may gawi ng Cine Broadway na
 15

binabaril naman nitong si IGE ng isang baril na Carbine, subalit hindi tinamaan itong si GONZALO TALASTAS. Nakita ko din po na itong si EDRI ay
nagbalik at kanyang kinuha ang isang jeep na army type at kanyang iminaneho ito na kasama itong dalawa na sina Mangyo Velasco at si Dante
Arriola at kanilang pinulot itong si IGE Natapos na maisakay itong si IGE ay kanila ng sinundan itong is GONZALO TALASTAS at kanilang inabutan
duon sa may panulukan ng daang Bonifacio at Burgos na sumasakay sa tricycle. Inihinto po nitong si EDRI ang jeep na army type at bumaba itong
si IGE at kanyang binaril itong is GONZALO TALASTAS ng dala niyang Carbine. Tinamaan itong is GONZALO TALASTAS at nakita kong nabuwal
at habang ito'y nabubuwal ay binabaril ito ng mga kasamahan ni EDRI na naiwanan duon sa jeep na tumatama naman sa katawan nito. Matapos
ang maramihang pagpapaputok na ginawa ng mga naiwanan sa jeep, itong si IGE ay lumapit dito sa kinabuwalan nitong si GONZALO TALASTAS
at kanyang itinaas ang ulo nito at pinaputukan ng kanyang baril na mahigsi sa may gawing likuran at pagkatapos ay kinuha niya ang baril na dala
nitong si GONZALO TALASTAS. Pagkatapos nuon ay sumakay na itong si IGE duon sa jeep na nakahinto at sila'y tumakas na.

05. T-Ayon sa iyo ay sinundan mo itongmga taong ito at iyong sinubaybayan ang mga nagaganap na pangyayari, saan lugar ka naman lumagay
nuon?

S-Duon po ako nanduon at nakakubli sa bangketa bago dumating sa Mobil Gas Station sa gawing kanan ng daang Burgos.

06. T-Ilan bang magkakasama itong mga taong ito na pumatay dito kay GONZALO TALASTAS?

S-Sa akin pong pagkakakita sila'y mayruong pito ang bilang.

07. T-Binangit mo dito sila, FEDERICO RELUCIO @ PEDRING, EDRI PINEDA, @ IGE, @ MANGYO VELASCO at DANTE ARRIOLA, lumilitaw o
lumalabas na mayruon na itong lima ang bilang, iyong dalawa na hindi mo nabangit dito dahil sa ayon sa iyo ay pito ang magkakasamahan na ito.
Sino pa iyong dalawa kung nakikilala mo?

S-Hindi ko po sila kilala dahilan sa nuon ko lamang sila nakita.

08. T-Ayon sa iyo dito na nuong lumabas itong si GONZALO TALASTAS sa loob ng Cine Capital na mayruon ng tama ng baril upang tumakas ay
nakita mo na iyong mga kasamahan nitong si PEDRING RELUCIO na siyang pumasok dito sa loob ng sine at binaril si GONZALO TALASTAS ay
nanduon sa isang jeep na di pasahero na parada sa tapat ng bowling alley, at ng tugisin nila itong si GONZALO TALASTAS ay sakay na sila ng
isang jeep na army type ang ibig mo bang sabihin dito ay dalawa ang sasakyan na ginamit ng mga taong ito?

S-Opo.

09. T-Alam mo ba kung ano ang mga Plaka ng dalawang sasakyang ito na ginamit ng mga taong ito na pumatay dito kay GONZALO TALASTAS?

S-Hindi dahil sa hindi ko na napagruonan ng pansin ito at ang hinahabol ko ay iyong nagaganap na pangyayari tungkol sa pagkapatay dito kay
GONZALO TALASTAS.

10. T-Ito bang mga taong binangit mo dito liban dito sa dalawa na hindi mo kilala, ay dati mo ng kilala?

S-Opo iyong tatlo na sina, FEDERICO RELUCIO PEDRING, @ EDRI PINEDA at @ IGE na pawang mga taga Bo. Talipapa, dito sa Lungsod ng
Kabanatuan, at itong dalawang sina MANGYO VELASCO at DANTE ARRIOLA ay hindi pa gaanong nagtatagal.

11. T-Ano ba naman ang relasyon ninyong dalawa dito sa dalawang babae na sumundo sa inyo duon sa inyong tinuluyang bahay sa Bo. Aduas, na
humimok sa inyo na sumama sa kanila na manood ng Cine?

S-Wala po kaming relasyon, subalit hindi katagalang magkakilala.

12. T-Sino sa dalawang ito ang kakilala ninyo?

S-Iyon pong MANDA.

13. T-Saan ba naman nagtitira itong si MANDA at ang kanyang kasama na isang babae din?

S-Sa Bo. Dalampang po.

14. T-Hindi mo ba alam kung ano ang kanilang mga apilyedo?

S-Hindi ko na po maalala ang kanilang mga apilyedo subalit sila ay maituturo ko kung sila'y aking makitang muli.

15. T-Simula ng pangyayaring iyon, nagkita ba kayong mull ng dalawang babae na ito?

S-Hindi na po napakita sila sa akin.

 16

16. T-Sa iyong pagaaral o pagkakaalam ano ang motibo ng ginawang pagpatay dito kay GONZALO TALASTAS ng mga taong binangit mo dito?

S-Ang pagkakaalam ko po ay dahilan sa ginawang pagbaril nitong si GONZALO TALASTAS dito kay VITO RELUCIO na kapatid nitong si PEDRING
RELUCIO na pamangkin naman nitong si EDRI PINEDA.

17. T-Alam mo din ba kung bakit binaril nitong si GONZALO TALASTAS itong si VITO RELUCIO?

S-Opo.

18. T-Ano naman ang pagkakaalam mo?

S-Dahil sa nasabi po sa akin ng personal nitong si GONZALO TALASTAS na iyon daw pong kanyang asawa ay siniraang purl nitong si VITO
RELUCIO at ito'y nagsumbong dito.

19. T-Ayon saiyo dito na ng mangyari ang pagpatay dito kay GONZALO TALASTAS ay nuong ika-23 ng buan ng Hunyo 1971 ng bandang hapon,
bakit ngayon ka lamang nagbigay ng isang malaya at kusang-loob na salaysay dito bilang pagpapatunay na pangyayari naiyon na paganap?

S-Dahil po sa ako'y natatakot sapagkat panahon nila ng panunugis.

20. T-Ito ba lang ang dahilan kung kaya ngayon ka lamang nagkaruon ng lakas ng loob upang magpatunay sa naganap na patayan naito na ang
naging biktima dito ay si GONZALO TALASTAS?

S-Mayroon pa po, wala namang nagpunta sa akin na investigador upang ako'y tanungin tungkol sa naganap na pangyayaring ito.

21. T-Dito ba sa pagbibigay mo ng isang malaya at kusangloob na salaysay dito sa Himpilang ito ay walang tumakot saiyoo kaya nangakong ikaw ay
bibigyan ng pabuya upang sabihin mo dito ang lahat ng mga binangit mo na salaysay mong ito?

S-Wala po ang lahat ng mga sinabi ko dito sa harap ninyo ay kusang-loob ko at walang pumilit sa akin o tumakot dili kaya ay nangako na ako'y
bibigyan ng ano mang pabuya, bagkus ito ay aking karapatan bilang isang mamamayang Pilipino at tungkulin ko din pong makipagtulungan sa mga
ahensya ng batas lalo na sa ganitong uri ng krimen ginanap na nagdamay pa ng iba.

22. T-Nasabi mong nagdamay pa ng iba, bukod dito kay GONZALO TALASTAS, mayroon pa bang ibang mga taong naging biktima ng
pangyayaring ito?

S-Mayroon po.

23. T-Sino naman ang mga taong ito kung mayroon kang nalalaman?

S-Sa akin pong pagkakaalam ay iyong mayari ng dating tindahan na isang babae na asawa ng manager ng isang bangko dito sa Lungsod ng
Kabanatuan na napagalaman ko ang pangalan na GINANG LUISA MONDELO.

24. T-Ano naman ang naging pinsala nito kung nalalaman mo?

S-Ayon po sa aking pagkakaalam ay tinamaan ito ng ligaw na bala sa kanyang baraso hindi ko po malaman kung kaliwa o kanan.

25. T-Tutuo bang lahat ang mga sinabi mong ito at handa mong panumpaan sa harap ng Hukuman kung sakaling ikaw ay kailanganin na
magpatutuo sa pagpapatunay sa pangyayaring iyon nasaksihan ng ayon sa iyo?

S-Opo.

(Lumagda) CRISPIN S. ANGELES (Pp. 369-372, Record of Lower Court.)

As may be seen, the material discrepancies between the contents of the above-quoted statement, on the one hand, and the testimony of Angeles in
open court, on the other, are so irreconcilable that even if the proper predicate had been laid upon proper objection of the fiscal it is doubtful, if any
believable reconciliation could have been given by him. In open court, he testified that in the afternoon of June 23, 1971, it was at the entrance of the
Capital Theater that he met Talastas and invited him to see the movie but the latter said that he was waiting for Amanda. It turned out, according to
Exhibit 17, that he and Talastas were still in Barrio Aduas, where they were staying, when Manda arrived with a woman companion and invited them
to go to the "cine". In his testimony, he said that it was Amanda who left and did not go back anymore, while in the above statement, he declared that
both of their two female companions told them they would only go to the comfort room but eventually disappeared. In court, he said that when Manda
did not return, he invited Talastas to leave but the latter answered he would wait for Manda's return. In Exhibit 17, it appears that he and Talastas
agreed to follow and look for their lady companions and that he went ahead and Talastas stopped by the ticket booth. Whereas in court, he testified
that he was already in the middle or across Burgos Street near the Avenue Theater when he heard shots inside the Capital Theater where Talastas
had returned, as they met Federico Relucio with a companion, unknown to him, who were going inside, hence, he did not see who fired the shots, in
 17

the above sworn statement, he categorically stated that upon seeing Relucio, who had separated from his two armed companions and gone inside,
he (Angeles) went back inside the theater and actually saw Relucio firing at Gonzalo and the latter retaliating with his own gun. In court, he said that
when Talastas came out of the theater already wounded and running towards the east, the two companions of Relucio, referring to Velasco and
Padrones, chased Talastas, with Relucio riding in a jeep and Padrones going on foot. In Exhibit 17-A, he said:

04. S-Nakita ko din po na itong si GONZALO TALASTAS ay tumakbong papalabas ng sine na naiwanan itong si PEDRING duon sa loob. Sa
ginawang paglabas nitong si GONZALO TALASTAS ay sumunod na din ako at nakita ko na iyong ibang mga kasamahan nitong si PEDRING na
nagaabang sa labas at nakasakay duon sa jeep na di pasaheros na kasama na duon iyong dalawang kasamahan nitong si PEDRING na nakita
kong nakatayo sa magkabilang gilid ng pasilyo ng Cine Capital. Nakita ko na bumaba itong si EDRI na ang kanyang apilyedo ay PINEDA at itong si
IGE at kanilang hinabol itong si GONZALO TALASTAS na , kasalukuyan nuong nagtatakbo na patungo duon sa may gawi ng Cine Broadway na
binabaril naman nitong si IGE ng isang baril na Carbine, subalit hindi tinamaan itong si GONZALO TALASTAS. Nakita ko din po na itong si EDRI ay
nagbalik at kanyang kinuha ang isang jeep na army type at kanyang iminaneho ito na kasama itong dalawa na sina Mangyo Velasco at si Dante
Arriola at kanilang pinulot itong si IGE Natapos na maisakay itong si IGE ay kanila ng sinundan itong si GONZALO TALASTAS at kanilang inabutan
duon sa may panulukan ng daang Bonifacio at Burgos na sumasakay sa tricycle.

In court, Angeles intimated that Padrones or Egi did not fire at Talastas, leaving the inference that it was appellant Velasco who was shooting the
deceased. In the above statement, he positively said:

Inihinto po nitong si EDRI ang jeep na army type at bumaba itong si IGE at kanyang binaril itong si GONZALO TALASTAS ng dala niyang Carbine.
Tinamaan itong si GONZALO TALASTAS at nakita kong nabuwal at habang ito'y nabubuwal ay binabaril ito ng mga kasamahan ni EDRI na
naiwanan duon sa jeep na tumatama naman sa katawan nito. Matapos ang maramihang pagpapaputok na ginawa ng mga naiwanan sa jeep, itong
si IGE ay lumapit dito se kinabuwalan nitong si GONZALO TALASTAS at kanyang itinaas ang ulo nito at pinaputukan ng kanyang baril na maiksi sa
may gawing likuran at pagkatapos ay kinuha niya ang baril na dala nitong si GONZALO TALASTAS. Pagkatapos nuon ay sumakay na itong si IGE
duon sa jeep na nakahinto at sila'y tumakas na.

In brief, in court, Angeles' account of the participation of appellant in the shooting of Talastas was vague and inconclusive; in his statement, Exhibit
17, nothing points definitely and specifically to appellant as having fired any shot at all; importantly the one clearly and categorically referred to as
having shot Talastas is Egi or Padrones

It results, therefore, that at least insofar as herein appellant Velasco is concerned, the testimony of Angeles has been completely impeached or
discredited.

It is a basic postulate in the law on evidence that every witness is presumed to be truthful and perjury is not to be readily inferred just because
apparent inconsistencies are evinced in parts of his testimony. Every effort to reconcile the conflicting points should first be exerted before any
adverse conclusion can be made therefrom. These considerations he at the base of the familiar rule requiring the laying of a predicate, which is
essence means simply that it is the duty of a party trying to impugn the testimony of a witness by means of prior or, for that matter, subsequent
inconsistent statements, whether oral or in writing, to give the witness a chance to reconcile his conflicting declarations, such that it is only when no
reasonable explanation is given by him that he should be deemed impeached. Thus, Section 16 of Rule 132 provides:

Section 16. How witness impeached by evidence of inconsistent statements. — Before a witness can be impeached by evidence that he has made
at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and
places and the persons present, and he must be asked whether he made such statements if so, to explain them. If the statements be in writing they
must be to the witness before any question is put to him concerning them.

In United States vs. Baluyot, 40 Phil 385, at pp. 406-407, the Court made a clear exposition of the universal rule of laying a predicate as follows:

In order that we may not be misunderstood, as wen as for the purpose of clarifying the practice in such matters, a few words may here be properly
said in respect to the proper mode of proceeding in a case where a party wishes to get before the court contradictory statements made by a witness
who is testifying for the adversary party. For instance, if the attorney for -the accused had information that a certain witness, say Pedro Gonzales,
had made and signed a sworn statement before the fiscal materially different from that given in his testimony before the court, it was incumbent upon
the attorney when cross-examining said witness to direct his attention to the discrepancy and to ask him if he did not make such and such statement
before the fiscal or if he did not there make a statement different from that delivered in court. If the witness admits the making of such contradictory
statement, the accused has the benefit of the admission, while the witness has the opportunity to explain the discrepancy, if he can. On the other
hand, if the witness denies making any such contradictory statement, the accused has the right to prove that the witness did make such statement;
and if the fiscal should refuse upon due notice to produce the document, secondary evidence of the contents thereof would be admissible. This
process of cross-examining a witness upon the point of prior contradictory statements is called in the practice of the American courts 'laying a
predicate' for the introduction of contradictory statements. It is almost universally accepted that unless a ground is thus laid upon cross-examination,
evidence of contradictory statements are not admissible to impeach a witness; though undoubtedly the matter is to a large extent in the discretion of
the court.
 18

We wish to add that in a case of this kind, if the accused had, by affidavit or otherwise, made it appear to the satisfaction of the court that the
witnesses named had made statements in their declarations before the fiscal materially at variance with their statements in court and that the
production of said declarations was necessary or even desirable, in the interests of justice, the court would have had ample power to order their
production.

This doctrine has been reiterated consistently in subsequent cases. (Moran, Comment on the Rules of Court, Vol. 6, 1970 ed., P. 92, citing People
vs. Resabal, 50 Phil. 780; People vs. Quingsy, 54 Phil. 88; People vs. Lara, 75 Phil. 786; and People vs. Escusura, 82 Phil. 41.)

But it, as in the instant case of the witness Angeles, the prosecution did not object to the presentation of Exhibit 17 which was offered expressly for
impeachment purposes, notwithstanding that the defense did not give the witness the opportunity to give his own explanation of the apparent
contradictions in his testimony, the trial judge and the appellate courts have no alternative but to determine, if they can, possible reconciliation on the
basis alone of logic and common experience. The omission to object on the ground of failure to lay the predicate is waived by the omission to
interpose the same when the impeaching contradictory statement is offered. (Evidence, [Rules of Court] Vol. VII, 1973 ed. by Vicente Francisco, p.
398.) On this score, We find the inconsistencies in the two versions of Angeles utterly beyond possible rational explanation. The various
discrepancies We have pointed out above - and there are still others We have not mentioned — are so disparate that there can be no other
conclusion than that the witness must have lied in either of them. Accordingly, We have to reject both of them.

-2-

The testimony of the other witness Miguel Padrones, one of appellant's co-accused, cannot be viewed in better light.

After Patrolman Garcia and Crispen Angeles had testified, at the hearing on January 4, 1973, the prosecutor, District State Prosecutor Mariano D.
Copuyoc, asked for resolution of his motion to discharge the accused Miguel Padrones in order to be utilized as a state witness, evidently by virtue of
Section 9 of Rule 119, on the ground that "this representation has found absolute necessity of the testimony of said defendant because the
prosecution has no other direct evidence available for the prosecution of the offense committed except the testimony of said Miguel Padrones; that
the said testimony of the defendant Miguel Padrones could be substantially corroborated in its material points by the testimony of the other
prosecution witness Crispin Angeles; that the said accused Miguel Padrones appears to be the least guilty and that he has never been convicted of
any crime involving moral turpitude." No notice was given to the defense of the motion; it turned out it was filed as early as December 14, 1972, after
Angeles had already finished testifying on December 6, 1972. Counsel for Relucio and Velasco protested they had no notice of the motion and
objected to it contending that from the testimony of Angeles, Padrones did not appear to be the least guilty and that the prosecution had not shown
that Padrones had been previously convicted of a crime involving moral turpitude, but the trial court overruled them.

Briefly, the testimony of Padrones on direct examination (pp. 427-453, t.s.n.) was as follows:

Between 4:00 and 5:00 p.m., June 23, 1971, while he was in the residence of Atty. Perez (in Cabanatuan City), "an information was received" ...
from a person named Og that Gonzalo Talastas was inside Capital Theater also in Cabanatuan City. The "information" was addressed to the
accused Federico Relucio who was then present together with Atty. Perez and two other persons not known to the witness. Then
appellant Mangyo Velasco and two others unknown to the witness arrived. After these three arrived, "they (referring to "Relucio, Mangyo and the
other two whom I do not know and I went to the Capital Theater". They went there "because Gonzalo Talastas was really to be killed." This, he was
told by Relucio, for "according to Federico Relucio, Gonzalo Talastas was the one who killed his brother." He did not mention anything about any
conversation among those present from which a conspiracy could be deduced.

Upon arriving at the Capital Theater, Pedring (Relucio) went inside, while the witness and Mangyo and the two others were in front of the bowling
hall. Padrones said they were all armed, Relucio with a.45, Mangyo with a.38 caliber and a carbine, the other two with armalite and he (Padrones)
with a.45, but there was no suggestion that they did so with the intent to kill anyone. Not long after Federico (Relucio) entered the theater, there were
shots (he does not know how many). "Not long after, the late Gonzalo Talastas went outside of the theater with a wobbling motion (susuray-suray),
and wounded . . in his chest portion (where there was) blood." Gonzalo ran going towards "hulo" (east). Not long thereafter, Federico Relucio
followed also wounded.

Then, Mangyo (Velasco), the other two unknowns and Padrones "boarded a jeep and ... followed them (Talastas and Relucio) with us inside the
jeep. " They followed them up to the Old Republic Telephone Company Building. Gonzalo "was running" and Relucio "boarded a tricycle, sir,
following Gonzalo Talastas. " And when the witness and his companions were already in front of the Republic building, "Doon nga po pinagbabaril
(si) Gonzalo Talastas. ... Mangyo and the other two whom I do not know and also Pedring, (Relucio) because Pedring arrived," were the ones who
shot him, and Gonzalo died.

After the cross-examination of Padrones, the prosecution rested its case, asking for and securing at the same time, the dismissal of the case against
the accused Dante Arriola as to whom the prosecutor did not unexplainedly present any evidence. At this point, it may be stated relatedly that Our
review of the records of this case has revealed a number of other loose ends in the proceedings which warrant special attention. Indeed, what must
have been a preconceived plan of the prosecution to save Padrones and to pin down appellant instead is quite evident. And worse, it was not without
significant, if perhaps unwitting, assistance from the court.
 19

Thus, having in view the testimony of Angeles We have discussed earlier, which had only a hazy reference to the supposed participation of appellant
in the offense charged, and taking into account Exhibit 17, which the prosecution could not have been ignorant of, pointing to Padrones instead of
said appellant as the one who chased and shot the deceased as the latter came out of Capital Theater, it is to be wondered how Padrones was
selected as state witness. Moreover, from Padrones' own account, readily available beforehand to the prosecutor, he was with Relucio, who was the
one who had the motive to do away with Gonzalo, earlier than appellant Velasco in the house of Atty. Perez, and there is no indication at all that
before the group went to Capital Theater, appellant knew, unlike Padrones, that Gonzalo was to be killed. To reiterate, there is no evidence that the
killing of Talastas was ever talked about in the house of Atty. Perez.

In other words, the prosecution could easily have chosen other witnesses, even from among the other alleged participants in the affray, who
appeared to have had minor parts therein, if not from the tricycle drivers who, from Padrones own account, must have seen what happened, and yet
Padrones had to be the one allowed to go scot-free. Withal, the repeated references to unknown participants is unnatural. How could there be a
conspiracy of the character charged in the information where four of the participants were not supposedly known to any of the witnesses who
themselves are alleged to have been in the conspiracy? Why was Dante Ariola included in the information when there was absolutely no evidence
against him? Why was Edri Pineda who was mentioned by Angeles in Exhibit 17 or Dante Ariola, who was also charged, not chosen instead? For
that matter, why was Atty. Perez in whose house and in whose presence the plot to kill Talastas is alleged to have originated not among the
accused?

All these questions and many more are intriguing, but the most mystifying circumstance extant in the record was the attitude of both the prosecution
and the trial judge in regard to what appears clearly to be a statement given by Padrones to the Cabanatuan City police in the person of a certain
Patrolman Corporal J. S. Viloria on October 5, 1972 immediately after he was arrested. This is the same statement, Annex A, on which the defense
motion for reconsideration and/or new trial, the denial of which is the plaint in the fourth assignment of error of appellant's brief.

Counsel for accused Relucio started his cross-examination of Padrones by inquiring about the circumstances surrounding his arrest and detention
which incontestably took place on October 5, 1972. The witness readily revealed that:

ATTY. ABESAMIS

q Immediately after your arrest you were placed in jail?

D.S. PROSECUTOR

Answered already, Your Honor.

COURT

Answer the question.

WITNESS

a No, sir.

ATTY. ABESAMIS

q Where were you first brought by the apprehending officers immediately after you were arrested in the afternoon of October 5, 1972?

a An investigation was made, sir, on any person.

q Who investigated you?

a Viloria, sir.

q Where?

a At the city hall, sir.

q In what part of the city hall did Viloria investigate you, please tell the Court?

a Downstairs at his table, sir.

COURT

(To witness) Speak louder.

 20

ATTY. ABESAMIS

q This Viloria is also a member of the Cabanatuan City police force?

a Yes, sir.

q Who were present when you were investigated by Viloria?

a The two of us, sir.

q He was asking you questions?

a Yes, sir,

q And you were giving answers to the questions propounded by Viloria to you?

a Yes, sir.

q And Viloria was typing the questions propounded and the answers given by you?

a Yes, sir.

q And Viloria investigated you in connection with your anti-government activities?

a No, sir.

q In what connection were you investigated by Viloria?

a Regarding the case of Gonzalo Talastas, sir.

q Did you sign that written investigation?

a Yes. sir, I signed it.

q Also on October 5, 1972?

a I was brought before the presence of Judge Vicencio, sir.

q But you have not answered my question, Mr. Witness. My question to you was, did you sign that typewritten investigation conducted by Viloria also
on October 5, 1972?

a Yes, sir, I signed it before the judge.

q On October 5, 1972?

a Yes, sir.

q You were escorted by armed policemen of Cabanatuan City when you were brought in connection with that written investigation before Judge
Vicencio on October 5, 1972?

D.S. PROSECUTOR

It is very immaterial and irrelevant, Your Honor.

COURT

Answer the question.

WITNESS

a Yes, sir.

ATTY. ABESAMIS
 21

q Who were those policemen who brought you to Judge Vicencio on October 5, 1972?

a They were two, sir.

q I am not asking you about the number; I am asking you who they were?

a One of them is Viloria and I do not know the other policemen who is old.

q Now, could you tell the Honorable Court the time when Viloria started investigating you on October 5?

a I cannot remember, sir.

q But it was night time?

a No, sir.

q But the investigation was conducted several hours after you were already apprehended by the three policemen headed by Pat. Adriano?

D.S. PROSECUTOR

It is vague, Your Honor.

ATTY. ABESAMIS

To obviate the objection, I will modify the question.

q How many hours after you were arrested were you investigated on October 5?

a The moment we arrived at the city hall I was investigated, sir. (t.s.n., pp. 66-70, hearing of January 4, 1973)

On the basis of such clear and categorical testimony about a statement signed by him before Judge Vicencio of the City Court on that date October
5, 1972, the defense counsel asked "the Honorable District State Prosecutor to produce the written investigation of this witness on October 5, 1972,
if he has it in his possession." (p. 70, Id.) And to add to the basis for such request, there was the following manifestation of Atty. Pablo, counsel for
Velasco:

ATTY. PABLO

May it please the Honorable Court.

Atty. Taguiam would be a witness to this statement of mine that in the first hearing of this case, Your Honor, Atty. Taguiam requested the District
State Prosecutor to lend him the two affidavits executed by this witness and I reiterate that the first affidavit was dated October 5, and the second,
October 20, 1972. After Atty. Taguiam has read this affidavit I was able to take hold of this affidavit and to read it. It was the District State Prosecutor
who lent these two affidavits to Atty. Taguiam during the first hearing of this case.

(pp. 71-72, Id.)

Surprisingly, the reaction of the state prosecutor was negative, and the following exchange of words took place:

ATTY. ABESAMIS

Your Honor please, I would like to make it appear on record that when the recess was called by the Honorable Court in order to afford the District
State Prosecutor to look over his records, he Was sorting out his records in connection with this case in order to look for the affidavit demanded of
him to be produced by the defense. May we know from the Honorable District State Prosecutor what is the answer.

D.S. PROSECUTOR

I do not have any affidavit dated October 5, but with respect to the affidavit they want me to produce I want that that affidavit be described what is
that.

ATTY. ABESAMIS

But Your Honor, it is already sufficiently described, the affidavit executed by this witness on October 5.
 22

COURT

How about on October 20?

ATTY. PABLO

And December 14, Your Honor.

D.S. PROSECUTOR

I would not answer that, Your Honor, unless it is described.

ATTY. ABESAMIS

We would like to make it appear on record, Your Honor, by the actuation of the Honorable District State Prosecutor construes a suppression of the
evidence, a suppression of a very vital evidence which the defense has been demanding pursuant to the rule on discovery as sanctioned under our
rules of court.

We will proceed, Your Honor.

D.S. PROSECUTOR

May I state also a manifestation that it could not be suppression if it came from the mouth of this witness. The witness is present. You can ask him,
so it could not (be) suppression of evidence. (pp. 73-75, Id.)

Then came the inexplicable ruling of the court:

COURT

Well those are manifestations only of counsel. You give the basis for the Court to compel the Fiscal to produce such document. Up to now there is
no basis. I think, the Fiscal would want to describe that affidavit. He does not like to fish. All right, continue. (pp. 76, Id.)

Not only that, in its decision, the trial court reasoned out thus:

But it is not all rosy with the testimony of Miguel Padrones. Like all other witnesses of the same capabilities he suffers from a poor memory as
regards remembering dates of events and faces of persons whom he occasionally saw and met. The records is replete of incidents showing the poor
memory of the witness as regards the exact dates of events and the faces of persons he met. The following instances will show that while in the
witness stand he was asked the following: 'Do you remember where were you on June 23, 1971 between the hours of four o'clock in the afternoon?'
His answer was: 'I was in the residence of Atty. Perez.' It may be noted that June 23, 1971 was the date of the commission of the crime and the
same date was included in the question. But when he was asked again on cross examination the date of the commission of the crime, he answered
that he could not remember but if he would be allowed to refer to his affidavit he could answer the same. It was only when he was snowed to refer to
his affidavit that he came to know that the crime was committed on June 23, 1971. Again, he was asked when on October 5 he was arrested, and he
answered that he did not know other than that it was after lunch. There was much confusion with regard to the execution of the affidavit of Padrones
on October 5. The Court believes that there was no such affidavit executed on October 5, 1971. The confusion came up only when Padrones was
asked when he was arrested and he answered on October 5. In answer to the subsequent questions he answered that he was brought before Judge
Alfin Vicencio, the city judge, now the Honorable Judge of the Court of First Instance of Masbate. Then the defense assumed in the following
questions that the investigation took place on October 5 and that this affidavit was taken on the same date, to which the accused answered in the
affirmative. Whether the accused realized the truth of his answer or not, the Court has its doubts, upon which it based its conclusion that this witness
has a poor memory as to dates of events. Capitalizing on this weakness of the witness, the defense confined its cross examination on the several
affidavits supposedly executed by Miguel Padrones on October 5 and 20. But Padrones denied vehemently that after that investigation of October 5
he made any affidavit except that given by him to Corporal Viloria on October 20, 1971, which the latter offered to show to the defense (referring to
the affidavit of December 14, 1972). The District State Prosecutor also denied possession of the affidavit of October 5 of Miguel Padrones. The
defense, to strengthen its position, manifested that the affidavit of October 5 was lost and that this could be confirmed by Atty. Fidel Taguiam,
counsel of one of the defendants; but Atty. Taguiam was never presented in court to confirm or deny the same. The Court honestly believes that
there was no such affidavit ever executed on October 5, 1971 and that the witness might be referring to the affidavits executed by him on October
20, 1971 (Exhibit "2" Relucio) and on December 14, 1972 before the District State Prosecutor. To further Justify their actuations, the defense called
on to the witness stand the former Cabanatuan City Judge Alfin Vicencio, now the presiding judge of one of the branches of the Court of First
Instance of Masbate. His Honor testified that he remembers one Miguel Padrones to have executed an affidavit before him on October 5, 1971, but
that he had only a general Idea of its contents. The defense got what it wanted to get from the lips of His Honor, Judge Alfin Vicencio and i.e., that it
was only accused Miguel Padrones who shot and killed the deceased victim Gonzalo Talastas when the latter caught up with him near the Retelco
building. As a whole, His Honor wanted this Court to believe that only Miguel Padrones shot and killed Gonzalo Talastas and that his co-accused
Federico Relucio and Rosendo Velasco were not with Padrones when he killed said deceased victim. To this testimony of His Honor, it is regrettable
 23

to state that he failed to state at least, all the substantial contents of the said affidavit, assuming that there was really an affidavit of October 5
executed by Miguel Padrones. Human as we all are, it is unavoidable for our minds to slip, particularly as regards the dates, considering the length of
time and the work that confronted His Honor, the Honorable Alfin Vicencio. (Pp. 107-110, Appendix A, Appellant's Brief.)

Such ratiocination is strange, to say the least. The record shows that His Honor himself asked:

COURT

q Do you know the date when the statement was made?

a It was on the 5th, sir.

q Of October?

a Yes, sir.

COURT

Proceed. (t. t.s.n., p. 77, hearing of January 1973)

As can be seen, seemingly there was a deliberate and concerted intent to prevent the impeachment of Padrones, except that the prosecutor failed to
realize that with his omission to object to the testimony of Judge Vicencio, all his transparent moves to suppress the presentation of the statement of
said witness of October 5, 1972 would come to naught. The record reveals only too plainly that several recesses were allowed by His Honor at
critical stages of the cross-examination for the obvious purpose of affording the witness opportunity to adjust his testimony with the help of the
prosecutor — that with his being already released after his discharge on January 4, 1972 — so much so that after the spirited skirmishes between
defense counsel and the prosecutor when the session of January 4, 1972 was to end, the significance of which could not have been lost to him, at
the resumption of the trial on February 12, 1972, the witness tried to sing a different tune. As to be expected, he came out with the theory that the
statement given by him before Patrolman Corporal Viloria on October 5, 1972 was actually signed by him on October 19 or 20, 1972 before Fiscal
del Rosario thus:

COURT:

Q Are you sure that your statement was taken on the 5th of October?

A Yes, sir.

Q So Sgt. Viloria has taken two affidavits from you?

A It was only on the 5th, sir.

Q How many times did that Sgt. Viloria taken your statement?

A It was only the time when I was apprehended, sir.

Q And when was that time when you were apprehended?

A On the 5th, sir.

Q Why is there now an affidavit subscribed and sworn to before Fiscal Del Rosario dated October 19?

A It was there at the City Court where I was made to sign my statement, sir.

Q When was that? Refer to your affidavit to refresh your memory,

A (Witness reads Exhibit" 2-A.") Maylaska question.

Q Read it all.

ATTY. PABLO:

May we make of record that the State Prosecutor is instructing the witness to read the contents of the statement before the witness could be guided
by this Honorable Court that he read the said affidavit.
 24

COURT:

Now what is your question, Mr. Padrones?

A Because, this morning I was being asked by them whether I was made to sign before Viloria, but they are not asking me whether I have signed
before the Fiscal, sir.

Q What do you mean? Explain further.

A Only about that question whether I was made to sign before Viloria that is why I answered yes. But it was not asked of me whether I was made to
sign before Fiscal Del Rosario, sir.

ATTY. ABESAMIS:

Q So you mean to tell the Honorable Court is that your affidavit dated October 5,1972 was signed before Police Cpl. Viloria?

A It was only before the city hall that I affixed may signature, sir.

Q Precisely that affidavit of yours dated October 5, 1972 was signed by you before Judge Vicencio, is that correct?

A Before Del Rosario, sir.

Q So the affidavit dated October 5, 1972, for purposes of clarification only, Your Honor, was signed by you before Fiscal Del Rosario?

A Yes, sir.

Q What is that affidavit which you signed before Judge Vicencio and that is included in your cross examination before on January 4, 1973?

A It came from the City Court, sir.

Q That was not on October 5, 1972?

A I do not know, sir, whether it was the one.

COURT:

Q The question is what is that affidavit that you subscribed and swore to before Judge Vicencio, if you have any?

A I do not remember that affidavit, sir. What I remember I only signed before Fiscal Del Rosario, sir.

Q So you do not recall having signed any statement before Judge Vicencio?

A In the City Court I do not remember having signed any affidavit before Judge Vicencio, sir.

Q In any other place do you remember having signed any affidavit before Judge Vicencio?

A None, sir.

Q You are sure?

A I remember nothing, sir.

Q You do not remember or you do not even recall that you were presented before Judge Vicencio by Police Cpl. Viloria?

PROSECUTOR:

We request that the witness be shown any statement to that effect, if there is any.

COURT:

He is testing the credibility of the witness.

ATTY. ABESAMIS:
 25

Q When you testified here on January 4, 1973 you said following which I am reading from the transcript of the stenographic notes taken during
January 4, 1973 hearing ...

PROSECUTOR:

It seems the witness is confused about his affidavit.

ATTY. ABESAMIS:

The witness, Your Honor, is not confused; the witness is lying.

COURT:

Proceed.

ATTY. ABESAMIS:

I will read from your testimony during the trial of January 4, 1973, specifically the questions and answers found on page 68, which I quote:

In what connection were you investigated by Viloria?

A. Regarding the case of Gonzalo Talastas, sir.

Q. Did you sign that written investigation?

A. Yes, sir.

Q. Also on October 5, 1972?

A. I was brought before the person of Judge Vicencio, sir.

Q. But you have not answered my question. My question to you was, did you sign that typewritten of Viloria also on October 5, 1972?

A. Yes, sir, he signed it before the judge.

Q. On October 5, 1972?

A. Yes, sir.

And Your Honor, on page 76, 1 read the following questions and answers:

Q. Who was carrying the typewritten investigation when you were brought before the judge on October 5,1972?

A. Viloria, sir.

Q. After coming from the place of Judge Vicencio who was carrying that statements?

A. Viloria also, sir.

Q My question now, Mr. Witness, is will you insist that you were never brought before Judge Vicencio in order to swear, to sign and to subscribe your
statement in connection with this case since the beginning?

A I do not remember, sir. What I remember is I signed it before Fiscal Del Rosario, sir.

COURT:

Q Then why did you assure counsel for the defense before the court that you were presented before Judge Vicencio, during our hearing of January
4, 1973?

A I do not remember having been asked that question, sir.

Q It was asked of you and the court also remembers that question asked of you. Will you now insist that you were never brought before Judge
Vicencio in connection with this case?
 26

A I cannot comprehend the question, sir.

Q What do you not comprehend?

A Regarding that point that I was brought before the judge, sir.

Q But when you were asked by counsel about that fact on January 4, 1973 your mind was clear then, is it not?

A I do not remember whether I was brought before Judge Vicencio, sir.

Q You know very well Judge Vicencio before that date?

A I know him to be in the City Court, sir. He was being pointed to me by the police, sir.

Q My question is do you know Judge Vicencio personally before that date'!

A Yes, sir.

Q What about Fiscal Del Rosario, you know him also personally

A Yes, sir.

COURT:

Continue.

ATTY. ABESAMIS:

We request also, Your Honor, that pages 68 and 69 of the transcript of the stenographic notes of the trial dated January 4, 1973 be marked as
Exhibit '3 Impeachment-Relucio' and the bracketed portion be marked as Exhibit '3-A-Impeachment-Relucio.'

COURT:

Mark it. (t.s.n., pp. 23-31, hearing of February 12, 1973)

His Honor continued asking questions as the witness was already faltering, until finally, to save him, the session was adjourned:

Q What day were you arrested?

A On a Friday, sir.

Q That was on October 5, 1972?

A Yes, sir.

Q So, that coming Monday you were brought before Fiscal Del Rosario?

A Yes, sir.

Q Are you sure of that?

A Yes, sir.

Q Do you remember if you signed this affidavit before Fiscal Del Rosario?

A It was only the statement which I swore to that I remember, sir.

Q Did you see Fiscal Del Rosario sign his name?

A Yes, sir.

Q You do not remember if you signed the affidavit before Fiscal Del Rosario?

A I signed, sir.
 27

Q What pen did you use? The pen of Fiscal Del Rosario or some other kind of pen?

A I do not remember whether I used the same pen used by the Fiscal, sir. I remember only that I borrowed a ball pen placed on the table of the
Fiscal, sir.

Q But you said you signed that statement of yours before Policeman Viloria, do you recall that now?

A I do not remember whether I was able to sign that or not, sir.

Q Are you tired already?

A My head is aching, sir.

COURT:

All right, we will adjourn this hearing and continue tomorrow, as previously scheduled. At any rate it is already twelve o'clock noon. (pp. 35-36, Id.)

At this point, it must be noted that Exhibit 2-A, the statement which Padrones claimed above to have been admittedly taken by Viloria on October 5,
1972 but, supposedly signed by him later and not on the same day before Judge Vicencio as he had previously stated, bears the following heading:

SINUMPAANG SALAYSAY NI MIGUEL PADRONES y ESPEJO SA PAGTATANONG NI P/CPL J. S. VILORIA DITO SA HIMPILAN NG PULISYA
NG KABANATUAN NGAYONG IKA-19 NG OKTUBRE 1972 SA GANAP NA IKA 5:15 NG HAPON...

and ends with the following jurat:

NILAGDAAN AT PINANUMPAAN sa aking harap ngayong ika 20 ng Oktubre 1972, dito sa Lunsod ng Kabanatuan.

With the dates October 19 and 20 thus appearing in this statements, how could there be any proximity to the truth in the assertion of Padrones that
his statement was first taken by Viloria on October 5, 1972 and that it was signed by him before Fiscal del Rosario on October 19, 1972 and that it
was the very statement he had been referring to earlier as having been signed by him before Judge Vicencio?

And then, at the session of February 13, 1972, he tried to foist upon the court another theory:

COURT:

I was the one asking questions yesterday to the witness. Let me finish my questioning of this witness.

Q So that the court understands from you that you have only executed two affidavits in connection with this case, one was taken from you by Cpl.
Viloria of the Cabanatuan City police department; and the second was taken before District State Prosecutor Copuyoc, is that right?

A No, sir, it is on the 19 th; the third is on the 4th.

Q So you have three affidavits taken in connection with this case, is that it?

A The one taken by Viloria which was subscribed before Fiscal Del Rosario, sir.

Q Yes, and the other one taken is that one taken by Fiscal Copuyoc?

A Yes, sir.

Q I did not mention any dates, remember.

A Yes, sir.

Q I repeat again. Your mind is not yet confused this morning?

A Yes, sir.

Q The first affidavit was taken before Cpl. Viloria of the city police and subscribed and sworn to before Fiscal Del Rosario?

A Yes, sir.

Q And the second was the one executed before District State Prosecutor?
 28

A Yes, sir.

Q You have not executed any other affidavit in connection with this case before any administering officer?

A None, sir.

COURT:

Continue.

ATTY. ABESAMIS:

Q In answer to a question propounded by the Honorable Court you said that your third affidavit was on the 4th, do you remember having said that?

A It was here that I swore, sir.

Q To an affidavit?

A Being a witness, sir.

Q So when you executed a third affidavit on the 4th you merely refer to your declaration made in open court on January 4, 1973?

A I cannot comprehend very well what is affidavit, sir.

Q Did you make a written statement in connection with this case on the 4th?

COURT:

Fourth of what?

ATTY. ABESAMIS:

Q On the 4th of your testimony?

COURT:

Fourth of what month? Be specific, let us be fair with the witness, especially with his kind of mentality. (t.s.n., pp. 38-41, hearing of Feb. 12, 1973.)

Only to fall back at the trial on February 19, 1973 on his original version that Viloria accompanied him before Judge Vicencio:

ATTY. ABESAMIS:

q You having stated before this Honorable Court on January 4, 1973 under oath that you were accompanied by Viloria in order to swear to one of
your statements and another policeman whom you do not know, will you still insist that you were never accompanied by Viloria?

a When I signed before Fiscal del Rosario, Viloria was not with me, sir.

q When was Viloria with you?

a It was on the 5th, sir.

q Before whom?

a Before Judge Vicencio, sir.

q Where?

a In the city jail, sir. (pp. 13, 14, Id.)

We have taken pains to quote above several portions of the transcript of the stenographic notes of the proceedings in the court below even at the
risk of unduly extending this opinion — and there are actually many more of similar tenor that can be mentioned — in order to bring out in bold relief
how Padrones, the state witness who was freed from prosecution by the fiscal and the trial court played fast and loose with the truth in the course of
his lengthy testimony. How unfounded indeed is His Honor's laudation of Padrones in the decision under review to the following effect:
 29

This Court has been extra careful in the analysis and appreciation of the evidence in question, particularly that of the two principal witnesses for the
prosecution, namely: Crispin Angeles and Miguel Padrones. The latter having been discharged as prosecution witness he cannot escape, of course,
like all accused similarly situated the imputation that he was allowed to be discharged from the information only for one basic reason, i.e., to escape
criminal responsibility. The discharge of one or two accused is allowed by law in consideration of justice and truth with the injunction to the
discharged accused to testify to the truth and run the risk only of being recalled and included in the information again should he refuse to live up to
his commitment to the prosecution. That injunction is the consideration that compels the discharged accused to toe the line. Nevertheless, the Court
has been scrupulously and judiciously wary over the conduct, behavior and testimonies of this particular witness, Miguel Padrones. Even his means
of walking from the place where he was seated to the witness stand and his return to his seat did not escape the vigilance of this court. As Padrones
was called to the witness stand for several times the Court observed that he walked in a natural manner, as if he was to face nobody. He answered
the questions immediately if he understood them and if he did not he asked the interpreter to repeat the same; he answered the questions without
hesitation or nervousness. In fine, he took everything in his stride, and one noticeable behavior which he has shown the Court was when he
answered questions the said witness looked straight to the Court and lowered his eyes only after he has answered the same. This Court went further
into his educational attainment and he admitted he was only a second grader. He made no bones about his educational background. The Court
believes he has acquired a very low standard of education, otherwise, he would not be a willing tool of the accused Federico Relucio who, together
with him in that afternoon of June 23, 1971 purposely went to the Capital theater to kill Gonzalo Talastas. He showed his blind loyalty to Relucio as a
friend, if the Court were to believe the theory of the defense. But, of course, the testimonies of Relucio and his wife on this point were of doubtful
efficacy. According to the defense and this is admittedly true, Miguel Padrones was a member of the BSDU and at one time a security guard. As
person belonging to a unit of the BSDU was fighting the dissidents, while being a security guard helps the police authorities to maintain peace and
order in a given place, so that by the nature of the work of Miguel Padrones, he is working for, with and by the side of the law. Notwithstanding his
low educational attainment there was not even a record of conviction offered by either the prosecution or defense. Under these circumstances
attributed to the same witness, what more can a court of justice expect from an ignorant and sincere witness like Miguel Padrones? (Appellant's
Brief, pp. 104-106.)

Such unusually elaborate but obviously unmerited encomium given a discharged state witness could have no other purpose than to induce the
appellate court to reply implicitly on the findings in the decision.

There is more than meets the eye here in the actuations of the district state prosecutor who handled the case for the People, and regrettably, the trial
court was apparently carried away by his antics to the point that His Honor came to seemingly join in the effort to concoct the obvious falsehood that
Padrones did not swear to a statement about the incident in question before Judge Vicencio on October 5, 1972. Judge Vicencio was city judge then
of Cabanatuan City and at the time of the trial was already presiding in the Court of First Instance of Masbate. He declared under oath:

Atty. Abesamis

Q Sir, you said that you are the encumbent CFI judge of Masbate, when did you assume that office?

A I assumed office on May 21, 1973 and I took my oath on May 16, sir.

Q Before that date Sir what was your occupation?

A I was the city judge of Cabanatuan City presiding over Branch 1, sir.

Q On October 5, 1972 were you still the City judge of Cabanatuan City presiding over Branch I of the said court?

A Yes, sir.

Q And as City judge of Cabanatuan City on October 5, 1972 it was your duty to administer all oaths of affiants on their respective statements is that
correct?

A Yes, sir.

Q Now, sir, I would like to inform you that a certain Miguel Padrones alias Ige testified before this Honorable Court as a witness for the prosecution
on January 4, 1973 and among others, he said the following: that he was arrested by the Cabanatuan City Police Department on October 5, 1972 in
the afternoon thereof; that he was formally investigated by the police department of Cabanatuan City and that his statement was taken by a certain
Cpl. Julio S. Viloria on the same date October 5, 1972 — page 68 of the transcript of the stenographic notes of the testimony of Miguel Padrones on
January 4, 1973. After Padrones made that declaration before the Honorable Court, the defense asked for the production of that affidavit which he
allegedly executed on October 5, 1972 but the Honorable District State Prosecutor said that he did not have it in his possession and the
manifestation of the District State Prosecutor is page 71 of the transcript of the stenographic notes of the same hearing. He likewise stated that he
signed his affidavit of October 5, 1972 on the same date before you. However, during the hearing of February 12, 1973 before this Honorable Court
the same Padrones declared under oath that Ms affidavit dated October 5, 1972 was signed by him before Fiscal del Rosario of the Office of the City
Fiscal of Cabanatuan City pages 25-26 of the transcript of the stenographic notes, February 12, 1973, and he said categorically that he does not
remember having signed any statement before Judge Vicencio in the city court nor in any other place for that matter page 26 t.s.n. February 12,
 30

1973 which we have exerted efforts to locate that alleged statement of Miguel Padrones executed on October 5, 1972 but we failed to do so. Now,
on the basis of this will you please tell us sir whether or not on October 5, 1972 a certain Miguel Padrones alias Ige had appeared before you in
order to swear to a statement given by him before Cpl. Viloria on the mm date October 5, 1972?

A I remember this Miguel Padrones accompanied by policeman Viloria and del Rosario. They went to my residence at Gen. Tinio street and they sat
in the terrace of my residence. It was there when I asked to administer the oath to Mr. Padrones, sir.

Q That was sir in the afternoon of October 5, 1972?

A It was late in the afternoon of that date, sir.

Q Now since that affidavit could not be retrieved and could not be found despite efforts exerted by the defense to look for the same, can you tell us
sir the contents in brief of that statement of Miguel Padrones alias 'Ige'?

A I can give you a general Idea of the statement, sir.

Q Yes, sir, please state.

A Padrones stated among others that he is Ige mentioned in a warrant of arrest with respect to the death of a certain Gonzalo Talastas. I believe it
was then that he stated that Gonzalo Talastas shot a certain Federico Relucio inside the Capital theater and that, he, Padrones chased this Talastas
along Burgos Avenue and caught up with him in front of the former Retelco office at Burgos Avenue and then he shot this Talastas, sir.

Q What else did he state in that statement?

A Well that is the general idea that I recall that he chased Talastas and he shot him until he died, sir.

Q Did Padrones state in that affidavit where he left Federico Relucio after Relucio was shot by Talastas inside the Capital theater and after Padrones
had chased Gonzalo Talastas?

A I do not remember Padrones having made any statement except that according to him, Talastas shot Federico Relucio inside the Capital theater
and that on his part, he chased Talastas along Burgos Avenue caught up with him in front of the former Retelco office that is the residence of the late
Judge Cecilio then he shot Talastas, sir.

Q Did Padrones as far as you could recall mention in that affidavit his companions in chasing and shooting Gonzalo Talastas?

A I do not remember any other name except him, Talastas and Relucio. Those are the names that I remember.

Q Do you remember if Padrones had ever mentioned in that statement of his the name of Rosendo Velasco alias "Mangyo"?

A No, sir, I do not remember that he ever mentioned.

Atty. Abesamis:

That is all, your honor.

Court:

Cross

Fiscal:

No cross examination, your honor.

(t.s.n., pp, 28-35, hearing. of July 25, 1973.)

For the trial court to hold in its decision under review, in the face of this solemn testimony of a fellow member of the judiciary of equal rank, as
against the wavering and fast changing declarations of a discharged accused, that "it is regrettable to state that he (Judge Vicencio) failed to state at
least the substantial contents of said affidavit, (the statement of Padrones before him of October 5, 1972) assuming that there was really an affidavit
of October 5 executed by Miguel Padrones. Human as we all are, it is unavoidable for our minds to slip particularly as regards the dates, considering
the length of time and the work that confronted His Honor, the Honorable Alfin Vicencio" is purely a slanted rationalization and an unexcusable
display of uncommon naivety truly unbecoming of a judicial trier of facts. This observation is also justified by His Honor's own admission that:
 31

But it is not all rosy with the testimony of Miguel Padrones. Like all other witnesses of the same capabilities he suffers from a poor memory as
regards remembering dates of events and faces of persons whom he occasionally saw and met. The records is replete of incidents showing the poor
memory of this witness as regards the exact dates of events and the faces of persons he met. The following instances will show that while in the
witness stand he was asked the following: 'Do you remember where were you on June 23, 1971 between the hours of four o'clock and five o'clock in
the afternoon?' His answer was: 'I was in the residence of Atty. Perez.' It may be noted that June 23, 1971 was the date of the commission of the
crime and the same date was included in the question. But when he was asked again on cross-examination the date of the commission of the crane,
he answered that he could not remember but if he would be allowed to refer to this affidavit he could answer the same. It was only when he was
allowed to refer to this affidavit that he came to know that the crime was committed on June 23, 1971. Again, he was asked when on October 5 he
was arrested, and he answered that he did not know other than that it was after lunch. (Appellant's Brief, p. 107).

In other words, His Honor could excuse the supposed lapse of memory of a discharged accused, while he would condemn a supposedly similar fault
in the testimony of a judge.

We hold that, contrary to the unwarranted and incomprehensible finding of His Honor, the evidence on record conclusively establishes that Padrones
did give to Patrolman Corporal Viloria of the Cabanatuan City Police on October 5, 1972 immediately after his arrest, his own account of what
happened in the afternoon of June 23, 1971 at the Capital Theater and subsequently near the Old Republic Telephone Company in Cabanatuan City
that led to the death of Gonzalo Talastas and that he signed and swore to said statement before Judge Alfin Vicencio, then of the City Court of
Cabanatuan City, that same day to whom he was brought by the same Patrolman Corporal Viloria. We consider the attitude shown in the premises
by District State Prosecutor Mariano D. Copuyoc of feigning ignorance of Annex A and attempting to foist upon the court the theory that Exhibit 2-A
was the one given by Padrones on October 5, 1972, to be lacking in candor to the court and prejudicial to the interests of justice. Likewise, the
circumstances under which Exhibit 2-A, the supposed statement of Padrones bearing two dates, October 19 or 20, 1972, and supposedly signed
before Fiscal del Rosario, came into being need to be inquired into, there being indications from the circumstances We have found home by the
record that it is not of regular origin. We further hold that the trial court committed a reversible error in not giving due course to the motion for
reconsideration and/or new trial of the defense dated April 16, 1974, if only for the purpose of delving deeper into the execution of Annex A thereof,
which appears to be the statement given by Padrones on October 5, 1972 to Patrolman Corporal Viloria and which he signed and swore to before
Judge Vicencio, wherein Padrones categorically confessed that he, and not appellant Velasco, was the one who chased and shot to death Gonzalo
Talastas during the incident here in question, thus:

SINUMPAANG SALAYSAY NI MIGUEL PADRONES Y ESPEJO SA PAGTATANONG NI P/CPL J S VILORIA DITO SA HIMPILAN NG PULISYA
NG KABANATUAN NGAYON IKA 5 NG OKTUBRE 1972 SA GANAP NA IKA 5:15 NG HAPON... .

01. TANONG: Ito ay isang pagsisisyasat ipinaaalata ko saiyo ang iyong karapatan na itinatadhana ng Saligang Batas ng Bansang Pilipino na ang
sino man ay hindi maaaring piliting magbigay ng ano mang pahayag at kung magbibigay man ay maaari namang gamitin ng laban saiyo sa alin
mang Hukuman, ikaw ba ay handang sumagot sa mga itatanong saiyo?

SAGOT: Opo.

02. T: Ano ang iyong pangalan at iba pang pagkakailanlan saiyo?

S: MIGUEL PADRONES Y ESPEJO, 43 taon, may-asawa, manggagawa sa NIA, Talipapa, Kabanatuan.

03. T: Ano ang iyong palayaw?

S: IGI po.

04. T: Ano ba ang dahilan al narito ka sa Himpilan ng Pulis?

S: Ako po ay kasalukuyang napipiit sa isang usapin.

05. T: Aling asunto ang iyong kinasasangkutan?

S: Iyon pong pagkapatay kay ALONG.

06. T: Kailan napatay si ALONG?

Buan po ng Hunyo 1971.

07. T: Saang lugar napatay si ALONG?

S: Duon po sa Burgos, Kabanatuan malapit sa dating "Republic Telephone".

08. T: Papaano napatay si ALONG?

 32

S: Sa barilan po.

09. T: Sino ang tao o mga taong kabarilan ni ALONG?

S: Ako po.

10. T: Maliban sa iyo, wala na bang iba pang tao o mga taong kasama sa pakikipagbarilan kay ALONG?

S:. Wala na po.

11 T: Isalaysay mo nga ang buong pangyayari .

S: Si RELUCIO at saka ako ay nagpunta sa bahay ni Atty. PEREZ sa Gen. Tinio, Kabanatuan at pagdating namin duon ay nabalitaan ni RELUCIO
na si ALONG ay nasa loob ng cine 'Capital'.

12 T: Sa nabalitaan ni RELUCIO na tungkol kay ALONG ano pa ang nangyari, kung mayroon man?

S: Inaya po ako ni RELUCIO at sumakay kami sa tricycle at nagpunta kami sa malapit sa cine 'Capital'.

13. T: Nuong dumating kayo sa may cine 'Capital ano ang inyong ginawa?

S: Pumasok si RELUCIO sa cine samantalang ako ay naghintay sa labas ng cine.

14. T: Nuong makapasok si RELUCIO sa loob ng cine Capital ano ang nangyari?

S: Hindi po nagtagal ay nagkaroon ng mga putok sa loob ng cine.

15 T: Matapos kang makarinig ng mga putok ano ang iyong nakita?

S: Lumabas po si ALONG.

16. T: Saan nagtuloy si ALONG?

S: Nagtatakbo po siyang patungong hulo.

17. T: Ano pa ang nangyari nuong tumakbo si ALONG?

S: Sinundan ko po si ALONG sa pamamagitan ng paghabol sa kanya.

18. T: Inabutan mo ba si ALONG?

S: Inabutan ko po sa malapit sa dating Tanggapan ng 'Republic Telephone'.

19 T: Ano ang nangyari ng abutan mo si ALONG?

S: Nagbarilan po kami.

20. T: Ano ang baril ni ALONG ?

S: 45 calibre po.

21. T: Matapos ang putukan saan ka nagtuloy?

S: Umuwi na po ako sa amin.

22. T: Si ALONG ano ang ayos ng iyong iwan?

S: Patay na po.

23. T: Ano ba ang nagudyok sa iyo upang ipahayag sa akin ang iyong salaysay na ito?

S: Gusto ko pong maliwanagan ninyo ang pangyayari sa pagkamatay ni ALONG.

24. T: Ano ang ipinamaril mo kay ALONG?

 33

S: Carbine at calibre 45 po.

24. T: Wala na akong itatanong mayroon ka pang nais sabihin?

S: Wala na po.

25. T: Lalagdaan mo at panunumpaan ang inyong salaysay na ito patotoo at pagpapatibay sa iyong sinabi?

S: Opo.

(Nilagdaan) MIGUEL PADRONES

NILAGDAAN AT PINANUMPAAN sa aking harap ngayong ika 5th ng Oktubre, 1972, sa Lunsod ng Kabanatuan.

(Nilagdaan) ALFIN VICENIO City Judge (Pp. 509-610, Record.)

Indeed, in the light of all the foregoing, We can safely say that with the testimony of Judge Vicencio, the evidence against appellant Velasco coming
from the lips of Padrones is not entitled to any credit at all. And there is even no need for the new trial prayed for by the defense. In the premises,
such a proceeding would obviously be superfluous.

- 3-

With the disgusting character of the prosecution's evidence against herein appellant Velasco We have disclosed above, and Our ineludible
conclusions against the evidentiary value of the testimonies of Crispin Angeles and the discharged defendant Miguel Padrones, it goes without
saying that the charge of murder against said appellant has no leg to stand on. Accordingly, We find no need to elucidate on the other evidence on
record, which, to be sure, based on Our careful study thereof could absolve him just the same, We have no alternative but to reverse the judgment of
conviction of the trial court, for lack of any evidence to support the same.

WHEREFORE, the decision of the trial court under review is hereby reversed and the appellant Rosendo Velasco is acquitted and ordered
immediately released from custody unless there is any reason for his further detention other than this case, with the corresponding portion of the
costs de officio. Let copies of this decision be furnished the Minister of Justice and the Provincial Fiscal of Nueva Ecija, for their information and
guidance relative to the actuations of Special District Prosecutor Copuyoc and Fiscal del Rosario discussed in the above opinion.

G.R. No. 122740 March 30, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
WINSTON DE GUZMAN, accused-appellant.

REGALADO, J.:

Accused appellant Winston de Guzman was charged before the Regional Trial Court of Mati, Branch 5, Davao Oriental1 with the crime of rape in an
information docketed as Criminal Case No. 2584, and which alleged:

That on or about June 9, 1994, in the Municipality of Governor Generoso, Province of Davao Oriental, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused with lewd designs, by means of force, violence and intimidation, did then and there willfully, unlawfully
and feloniously have carnal knowledge of one JOVELYN A. GERAM, a ( sic) against her will.2

Appellant pleaded not guilty when arraigned on the aforequoted indictment on September 5, 1994,3 and the case then went to trial.

The evidence for the prosecution reveals that 14-year old complainant, Jovelyn A. Geram,4 was alone in their residence at Barangay Monserrat,
Governor Generoso, Davao Oriental when the crime was committed in the afternoon of June 9, 1994 by appellant who had managed to gain entry
into the house.

Complainant was sleeping at around two o'clock that afternoon when she was awakened by the weight of something on top of her. Upon opening her
eyes, she saw herein appellant naked and sitting on her thighs. Complainant instinctively tried to shout for help but appellant covered her mouth and
nose with his hand and warned her not to resist or she would be killed. A struggle between the two ensued thereafter. The strength of appellant and
the strain of complainant's efforts at resistance took its toll on the latter, causing her to feel weak and faint.
 34

On recovering her senses, complainant discovered that she was already undressed and she saw blood on her vagina. She also noticed some white
fluid on her abdomen and thighs. Complainant felt pain on her genitals and other parts of her body. Appellant was no longer around, and the hapless
complainant was left crying over the tragedy which had befallen her.

In the evening of the same day, a neighbor, Florami Bayno, arrived in the house of the Gerams to watch television. Complainant went with Florami
when the latter went home. They proceeded to the house of Mauricia and Hugo Bayno, close friends of the Gerams and Florami's parent's-in-law. In
front of the couple, complainant recounted her ordeal at the hands of appellant.

In the morning of June 10, 1994, complainant went to the house of another neighbor, Genesis Delgado, and confided her misfortune to the latter.
Later, she went to the house of the Baynos and waited for her parents who were in Barangay Tambo attending to their fishing enterprises.
Complainant's mother, Evelyn Geram,5 arrived shortly thereafter. Mother and daughter could only cry as the latter related the incident to the former.

Complainant and her mother subsequently went to the barangay captain of Monserrat who advised them to report then latter to the police authorities
of Sigaboy, Governor Generoso. After complainant had narrated the incident to the police, she and her mother proceeded to the municipal hospital
for the physical examination of the former.

Dr. Divina Lopez,6 a resident physician of the Municipal District Hospital of Governor Generoso, issued a medical certificate detailing the result of
her examination of complainant, as follows:

FINDINGS:

1) Positive (+) BLOOD CLOTS BOTH ON LABIA MINORA

2) POSITIVE (+) RUPTURED HYMEN

3) REDNESS AROUND THE VULVAR AREA7

Prosecution witness Genesis Delgado8 declared that he saw appellant going inside the house of complainant on June 9, 1994 at around two o'clock
in the afternoon. Apparently, appellant entered through the kitchen door at the rear portion of the house. Two hours later, appellant went out of the
house through the same kitchen door. Delgado noticed all of these while he was watching television inside their house located just beside the
Gerams' residence.

Later, at the rebuttal stage, Enecita9 dela Cruz Torion,10 a teacher in Monserrat Elementary School, also testified that she saw appellant, together
with two companions, sitting at the front porch of the house of the Gerams at about one o'clock in the afternoon of June 9, 1994. Enecita was then on
her way from the school which was located in front of the house of the Gerams.

The defense of appellant is denial and alibi. Aside from the intrinsic weakness of this shopworn excuse, we are not persuaded to grant any credence
thereto since the facts relied on to make out appellant's story obviously appear too pat as to have clearly been contrived. The only persons
presented to corroborate appellant's story are his own parents, despite the availability of other persons whose lack of relationship to him would not
have engendered suspicion of connivance.

Appellant,11 who is also a resident of Monserrat, asserted before the trial court that he was in Davao City at the time of the commission of the felony.
He allegedly went there on June 6, 1994 with his mother to attend to his sister-in-law who was confined in the Davao Medical Center due to an
incomplete abortion.12 After his sister-in-law was discharged from the hospital in the afternoon of June 8, they went to the house of Christy, his sister
who was residing at Sasa, Davao City. He stayed in the house and cleaned it the whole day of June 9. At 4:30 in the morning of June 10, he and his
mother left Davao City for Monserrat, arriving at their house between 8:30 and 9:00 A.M.

Aside from merely repeating the position of appellant, his father, Raul De Guzman,13 tried to convince the trial court that he saw complainant in the
afternoon of June 9, 1994. According to this witness, Jovelyn went to their store on that date to borrow a VHS cassette tape featuring "Robo
Vampire." Appellant's mother, Violeta De Guzman,14 also sought to support his story by claiming that it was her decision to bring appellant along to
Davao City so that he could help minister to her daughter-in-law.

After considering the evidence of both the prosecution and the defense, the lower court gave credence to the testimony of Jovelyn and disregarded
the defense of denial cum alibi presented by appellant.

The trial court considered the immediate revelation made by Jovelyn of the crime committed against her, and her steadfast efforts to bring her
violator to justice, as indicative of the veracity of her charge. It rejected the defense put up by appellant in light of the positive identification made by
Jovelyn and the categorical declarations of the other prosecution witnesses placing him within the vicinity of the locus criminis  at the time of the
commission of the crime.

Accordingly, appellant was sentenced to suffer the penalty of reclusion perpetua, to indemnify Jovelyn in the amount of P40,000.00, and to pay the
costs. 15
 35

Appellant now pleads for the reversal of the judgment of the trial court, contending that said court erred in giving credence to the testimony of
Jovelyn and in finding him guilty on the basis thereof.16

Appellant adverts to the fact that complainant stated in her complaint17 and in her testimony18 given during the preliminary investigation that he
committed the crime of rape through the application of odorous chemicals over her nose and mouth which caused her to sleep. This fact was not
repeated by complainant in the trial court but she merely claimed the crime was consummated by appellant through force and intimidation. Such
inconsistency, according to appellant, destroys Jovelyn's credibility, thus warranting a reversal of the lower court's judgment of conviction.

The records disclose that at the trial, counsel for appellant tried to utilize the testimony of complainant given in the preliminary investigation before
Judge Rodolfo A. Castro to impeach her through statements therein supposedly different from what she gave in court.19 Alluding to her answer to
Judge Castro's questions numbered 28 and 29,20 appellant's counsel asked complainant if she first reported the rape to one Dioneson Bayno.
Complainant duly corrected that statement and clarified that it was Mauricia and Hugo Bayno whom she first told about the incident.21

However, complainant was never confronted during the proceedings in the trial court with her answers allegedly given in the same testimony at the
preliminary investigation regarding appellant's resort to sleep-including chemicals. In fact, no sub-markings for such particular answers as exhibits
were made in the records of her testimony in the preliminary investigation, much less offered by the counsel of appellant for that purpose during the
trial of the case.

It is universally accepted that a witness cannot he impeached by evidence of contradictory or prior inconsistent statements until the proper
foundation or predicate has been duly laid by the party against whom said witness was called.22 The American rule on laying the predicate is
embodied in Rule 132 of our own Rules of Court, to wit:

Sec. 13. How witness impeached by evidence of inconsistent statements . — Before a witness can be impeached by evidence that he has made at
other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and
places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in
writing they must be shown to the witness before any question is put to him concerning them.

Although the whole record of the testimony of complainant at the preliminary examination was offered in evidence by the defense and admitted by
the trial court,23 complainant cannot now be discredited through any of her extrajudicial statements which were not brought to her attention during
the trial. Thus, it has been held that granting arguendo the alleged contradictions, previous statements cannot serve as bases for impeaching the
credibility of a witness unless his attention was first directed to the discrepancies and he was then given an opportunity to explain them.24

In People vs. Resabal,25 this Court explicitly ruled that the mere presentation of the prior declarations of a witness without the same having been
read to the witness while he was testifying in court is insufficient for the desired impeachment of his testimony. As explained therein, the apparent
contradiction between the declarations of the witness before the former justice of the peace court and those before the then court of first instance
was insufficient to discredit him since he was not given ample opportunity, by reading to him his declarations before the lower court, to explain the
supposed discrepancy.

The rule which requires a sufficient foundation to be first laid before introducing evidence of inconsistent statements of a witness is founded upon
common sense and is essential to protect the character of a witness. His memory is refreshed by the necessary inquiries, which enables him to
explain the statements referred to, and to show that they were made under a mistake, or that there was no discrepancy between them and his
testimony.26

It would be unjust to complainant at this stage to be declared an incredible witness as a result of the unauthorized procedure adopted by appellant. It
is evidentiarily proscribed to discredit a witness on the bases of purportedly prior inconsistent statements which were not called to the attention of
that witness during the trial, although the same are supposedly contained in a document which was merely offered and admitted in its entirety
without the requisite specifications.

Through such a somewhat underhanded recourse, a party can expediently offer in evidence at the trial  the whole document containing allegedly
variant statements and then point out much later on appeal the supposed contradictory statements which were not specified, intentionally or
otherwise, in the same trial. That sub silentio gambit would necessarily deprive a witness of the chance to explain the seeming divergencies, which is
the paramount consideration of the rule mandating the laying of the proper predicate.

Complainant is undoubtedly the person best suited and mandated by the rule to explain the supposed differences in her statements. Without such
explanation before us, whether plausible or not, we are left with no basis to evaluate and assess her credibility on the rationale that it is only when no
reasonable explanation is given by a witness in reconciling his conflicting declarations that he should be deemed impeached.27 As things stand
before us and the court a quo, therefore, complainant's credibility remains unimpeached.

On the foregoing considerations, we confirm the validity of the doctrine articulated by the Court of Appeals in Villaruel vs. Bascon28 that, unless the
proper predicate is laid during the trial by calling the attention of a witness to his alleged inconsistent statements given outside of his testimony in
court and asking him to explain the contradiction, the supposed inconsistencies cannot be pointed out on appeal for the purpose of destroying the
 36

credibility of the witness. This pronouncement was actually based upon and in line with the holdings of this Court in Escosura29 and People vs. Lim
Quingsy.30

We now take up the other document relied upon by appellant, that is, the complaint executed by complainant. A reading of the transcript of
stenographic notes shows that said complaint was never introduced in evidence for the consideration of the trial court nor shown to complainant
during the trial so that she could explain the alleged discrepancies in accordance with the foregoing rule. The complaint is not even included in the
folder of exhibits as part of the documents admitted in evidence by the trial court. It is only attached to the original record of this case together with
the other records of the preliminary investigation forwarded to the trial court. Under the revision in the 1985 Rules of Criminal Procedure, those
records of the preliminary investigation do not form part of the record of the case in the Regional Trial Court.31

Again, it is undeniable that the proper basis was not laid for the impeachment of complainant through the statements contained in her complaint.
Coupled with the basic principle that courts shall consider no evidence which has not been formally offered or whose purpose has not been
specified,32 the complaint cannot also be taken into account for impeaching complainant. If appellant was really prepared to attack complainant's
credibility based on the statements in her complaint, he should necessarily have asked complainant about them during the trial, offered the complaint
as his evidence, and specified the purpose for its submission. Appellant utterly failed in all of these mandatory evidential requirements.

Hence, no impeaching evidence having been properly brought before it for its consideration during trial, the lower court was perfectly justified in
disregarding the supposed inconsistent statements of complainant in her complaint and her testimony during the preliminary investigation. Her
testimony at the trial, therefore, stands unassailed and entitled to full credit, together with the corroboration afforded thereto by the testimonies of the
other prosecution witnesses, in stark contrast to the effete and puerile defense offered by appellant.

WHEREFORE, the judgment of the court a quo is hereby AFFIRMED, with the MODIFICATION that the indemnity to be paid by accused-appellant
Winston de Guzman is increased to P50,000.00 in accordance with the present case law thereon.

G.R. No. L-31342 April 7, 1976

JUAN T. BORROMEO, petitioner,
vs.
COURT OF APPEALS, EMMANUEL B. AZNAR, ALMA AZNAR and JOSE B. AZNAR, respondent.

G.R. No. L-31740 April 7, 1976

EMMANUEL B. AZNAR, ALMA AZNAR and JOSE B. AZNAR, as Special Administrator of the Estate of Matias H. Aznar, petitioners,
vs.
COURT OF APPEALS and JUAN T. BORROMEO, As Special Administrator of the Estate of Simeon Rallos, respondents.

Vicente J. Francisco for Juan T. Borromeo.

Ciriaco Lopez, Jr. & Associates for Emmanuel B. Aznar, et al.

BARREDO, J.:

Cross-petitions for the review of the per curiam resolution of the Court of Appeals in CA-G.R. No. 30092-R, Juan T. Borromeo etc. vs. Emmanuel B.
Aznar, et al, dated November 19, 1969 which review entirely its previous decision of January 30, 1968 thereby ultimately holding that the
transactions in question are equitable mortgages instead of absolute sales of real properties and granting the heirs of the deceased Simeon Rallos a
period of one year from the finality of the resolution within which to effect a redemption of said properties, without prejudice to the right of the
opposing party to foreclose the declared mortgages if no such redemption takes place and the amounts stated in the documents are not fully paid,
arid ordering furthermore the Aznars to pay said heirs P10,000 for and as attorney's fees and the costs. In G.R. No. L-31342, petitioner Juan T.
Borromeo, as administrator of the estate of the deceased Simeon Rallos, prays for the modification of the per curiam resolution in order to include an
award of moral and exemplary damages of P200,000 and P50,000, respectively, and to increase the award of attorney's fees to not less than
P75,000, whereas in G.R. No.
L-31740, the Aznars are asking that said resolution be set aside and that the decision of January 30, 1968 be reinstated and affirmed.

There are three preliminary questions We have to resolve. First, Borromeo contends that this Court has no jurisdiction to entertain the petition of the
Aznars in G.R. No. L-31740 because the latter failed to file said petition within fifteen days from December 20, 1969, the date they were notified of
the resolution now under review. Borromeo's theory is that upon the filing of his own petition in G.R. No. L-31342 on December 20, 1969, by way of
appeal from the aforesaid resolution in so far as it failed to grant him the awards referred to in said petition, the Court of Appeals was divested of
jurisdiction to entertain the motion for reconsideration which the Aznars filed on the same date, December 22, 1969, in the Court of Appeals praying
for the reversal of the same resolution, copy of which had been received by them only on December 20, 1969. According to Borromeo, what the
Aznars should have done upon being notified of the filing of the petition in G.R. No. L-31342 should have been to file already their petition for review
 37

with this Court instead of filing or continuing with their motion for reconsideration in the Appellate Court, and that since the latter court had lost its
jurisdiction over the case by reason of his (Borromeo's appeal), citing in this respect the resolution of this Court of September 3, 1965 in G.R. No. L-
24762 (Manila Electric Co. vs. Public Service Commission et al.), the Aznars' motion for reconsideration did not suspend their period for appeal to
this Court which they made only on February 27, 1970 (erroneously alleged as March 11, 1970 by Borromeo).

Obviously, Borromeo's. contention has absolutely no merit. To start with, when We issued Our resolution of January 13, 1970, granting the Aznars
an extension of fifteen (15) days from the time they were to be notified of the resolution of the Court of Appeals of its action on their motion for
reconsideration then still pending therein. We already knew that the petition of Borromeo against the same resolution of the Court of Appeals had
already been filed with Us. In other words, in that resolution, the Court already recognized the right of the Aznars to file their own separate appeal
from the resolution of the Court of Appeals after the reconsideration thereof was to be denied by the Court of Appeals notwithstanding Borromeo's
appeal was already with Us. Besides, to sustain Borromeo's theory would lead to the absurd proposition that one party may be deprived of the right
to appeal from the portion of a decision against him just because the other party who had been notified of the decision ahead had already perfected
his appeal in so far as the said decision adversely affects him. Indeed, We have already virtually ruled against such pose of Borromeo in Timoteo
Simsim vs. The Hon. Judge Feliciano Belmonte etc. et al.,  34 SCRA 536 and People vs. Ursua, 60 Phil. 252. The Meralco resolution invoked by
Borromeo is not in point.

Borromeo secondly tries to make capital of the fact that while it is true that the brief of the Aznars was filed on time, on August 31, 1970, the last day
therefor, it did not contain a digest of the arguments nor the text of the resolution sought to be reviewed, which are required by the rules (Sections 1
and 6 of Rule 56 read together with Section 16 of Rule 46) and that these requirements were complied with only on September 19, 1970, for which
reason, he prays that their appeal should be dismissed pursuant to Section 1 (b) of Rule 50. We are not impressed. The digest of arguments and the
copy of the appealed resolution are not in strict sense parts of the brief so as to justify the charge that the Aznars filed their brief in two parts. No
conceivsble prejudice could have been caused to anyone concerned by their late filing nineteen days after the reglementary period had expired, the
brief itself, with the assignments of error and the arguments supporting them, having been filed already within said period. Of course, it would be
Ideal if all the requirements of the rules were complied with on time, but there is nothing in principle or in the precedents relied upon by Borromeo
that makes it imperative for Us to dismiss an appeal upon no more ground than such obviously unintentional and harmless technicality as the
omission of the requirements herein complained of.

The third preliminary issue raised by Borromeo is that the appeal of the Aznars in G.R. No. L-31342 involves purely questions of fact. It is argued
that the reversal by the Court of Appeals of its original conclusion, upholding the trial court, that the transactions in question were absolute sales, by
holding in its per curiam resolution that they were actually equitable mortgages, does not constitute an error of law but a mere reappraisal or
reweighing of the evidence which it has the power to do. Borromeo insists that a ruling as to whether a transaction is a sale or a mortgage involves
no more than evaluation of the evidence and is consequently a factual matter beyond the Supreme Court's authority to review except under peculiar
circumstances that do not obtain here.

To be sure, this is not the first instance that a reversal by the Court of Appeals of its own original decision has been brought to Our attention. And
indeed, where the reversal was the result exclusively of a reevaluation or reweighing of the evidence, this Court has refrained from interfering. No
doubt, it would be inimical to the interests of justice and would not be conducive to the fair and just resolution of judicial controversies to deprive a
court of the power to reconsider possible errors committed by it in any of its actuations. It is in fact one of the inherent powers of courts "to amend
and control its process and orders so as to make them conformable to law and justice." (Section 5 (g), Rule 135) And the Court of Appeals is
certainly included in the contemplation of such rule. The only limitation to this power is that it cannot be exercised anymore after the action or
judgment concerned has already become final and executory by the expiration of the corresponding reglementary period for the purpose, this as a
matter of public policy requiring that litigations should from the very nature of things have a definite conclusion at a given time even at the risk of
occasional errors or unintended injustice.

We perceive however that the instant case does not fall under the foregoing principles. While the main impugned resolution does relate ultimately to
factual conclusions of the Court of Appeals, We see that in reversing its previous findings of fact, which it arrived at after excluding on grounds of
legal incompetency the corresponding evidence presented by Borromeo, the Appellate Court first reversed those rulings on the admissibility of said
evidence and declared them competent, and then predicated its new factual conclusions on these subsequently admitted evidence it had rejected in
its original decision. And so, it is safe to presume that had not the Appellate Court reversed its legal rulings on the admissibility or competency of the
evidence referred to, it would not have reversed its actual conclusion as to the nature of the transactions in controversy. Accordingly, and on the
theory that if this Court should hold that the later rulings of the Court of Appeals on the admissibility of evidence are erroneous in law, the inevitable
result would be that the factual conclusions of said court in its original decision, which were favorable to the Aznars, would be revived, it is now the
position of the Aznars that their attack against said later rulings constitute legal issues over which this Court has jurisdiction. After carefully studying
all the points respectively raised by the parties, We are convinced that this contention is well taken and We shall now proceed to resolve the legal
issues on admissibility of evidence which are extensively, exhaustively and very well discussed by both counsel in their briefs and other papers filed
with the Court and for which they are both worthily deserving of commendation for unusual diligence and expertise in the work of advocacy, thereby
lightening considerably the work of the Court. We refer equally to the late Senator Vicente J. Francisco, counsel for Borromeo, and Atty. Ciriaco
Lopez Jr., who is appearing for the Aznars.

As already stated, the main controversy here centers on the true nature of the three documents, Exhibits A, B and C, which on their faces are
unquestionably deeds of absolute sale of the real properties therein described executed by the deceased Simeon Rallos on various dates in favor of
 38

Emmanuel Aznar, in Exhibits A and C, and his sister, Alma Aznar, in Exhibit B. In his complaint in the court below, Juan T. Borromeo, as
administrator of the estate of Simeon Rallos, alleged that these documents were in fact equitable mortgages to secure loans granted to Rallos by
Matias Aznar, deceased father of Emmanuel and Alma, and prayed for their reformation. The trial court dismissed the said complaint and on appeal,
said dismissal was affirmed by the Court of Appeals in its original decision of January 30, 1968 penned by Justice Ramon NOLASCO and concurred
in by Presiding Justice Francisco B. Capistrano and Justice Antonio Cañizares The pertinent portions of said decision read thus:

We have examined Exhibits A, B and C carefully, and we find them clear, unambiguous and unequivocal. If the terms of a contract are clear and
leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control. (Article 1370, Civil Code.) The
intention of the parties is to be deduced from the language employed by them, and the terms of the contract, where unambiguous, are conclusive, in
the absence of averment and proof of mistake, the question being, not what intention existed in the minds of the parties, but what intention is
expressed by the language used. When a written contract is clear and unequivocal, its meaning must be determined by its contents alone; and a
meaning' cannot be given it other than that expressed. (City of Manila vs. Rizal Park C., 53 Phil. 515; 17 C.J.S. 700.).

According to the testimony of Crispina Rallos Alcantara, who claimed to have been present when the transactions took place, her deceased father
merely borrowed money from the late Matias Aznar in the sums of P6,000.00 and P35,000.00 and to secure the repayment thereof mortgaged to the
latter the properties described in Exhibits A, B and C. She testified that the transactions were disguised as absolute sales and Rallos was assured by
Matias Aznar that he could exercise the right to repurchase the lots and would deliver to him the corresponding options in writing.

We find the testimony of Crispina Rallos Alcantara in this respect unreliable and insufficient to justify the reformation of the instruments in question.
While it is true that relationship does not disqualify a witness, it calls for a close scrutiny of his testimony. For obvious reasons, the testimony of close
relatives by affinity or consanguinity to corroborate a claim is not given much credence. (People vs. Guzman, 70 Phil. 23.) As correctly observed by
the trial court, her testimony cannot be considered as absolutely unbiased or impartial, as she was naturally interested in an outcome of the case
favorable to the plaintiff. More than this, however, the record shows that Rallos was even cautioned by his daughter Crispina and her husband before
signing Exhibit A. The fact remains that Exhibits A, B and C were signed by Rallos himself as a party thereto. His successors-in-interest cannot now
be heard to complain that the parties to said exhibits intended the same to be loans with mortgages contrary to what are clearly expressed therein.
The natural presumption is that one does not sign a document without first informing himself or its contents, and that presumption acquires greater
force where, as in the case at bar, not only one but several documents, executed at different times, were signed by Rallos. (Javier vs. Javier, 7 Phil.
261.) It is the duty of every contracting party to learn and know the contents of a contract before he signs and delivers it. He owes this duty to the
other party to the contract, because the latter may, and probably will pay his money and shape his action in reliance upon the agreement. To permit
a party, when sued on a written contract, to admit that he signed it but to deny that it expresses the agreement he made, or to allow him to admit that
he signed it but did not read it, or know its stipulations, would absolutely destroy the value of all contracts. (Tan Tun Sia vs. Yu Bino Sentua, 56 Phil.
711; Moran, Idem pp. 123-124.).

The appellant urges that Exhibits A-2, A-3, B-3 and C-5, which, according to Crispina Rallos Alcantara, were her notations allegedly representing the
deductions made by Matias Aznar for advance interest, attorney's fees and miscellanous expenses are corroborative of her testimony that the
transactions in controversy were really loans with mortgages. We, likewise, find the said exhibits weak and unsatisfactor as evidence of the facts
asserted. They are clearly self-serving, as they were admittedly prepared by the declarant herself (2 Wharton's Criminal Evidence, Sec. 690; 2 Jones
on Evidence, 2d., Ed., Sec. 895), who was a daughter of the deceased Rallos and who cannot, therefore, be said to be disinterested witness. With
respect to Exhibit J, the option to repurchae Lots Nos. 462 and 7032, also relied upon by the appellant as allegedly corroborative of the testimony of
Crispina Rallos Alcantara that all the transactions in question were loans secured by mortgages, it is to be noted that said exhibit his to do with the
two lots mentioned therein and none other. Certainly, it is no proof that Rallos was similarly given a written option to redeem any of the lots covered
by Exhibits B and C, which, according to Crispina Rallos Alcantara, was taken back by Matias Aznar but never renewed. The evidence shows that
the period fixed in Exhibit J expired without the lots involved being redeemed.

To show, too, that Matias Aznar had agreed to the repurchase of the lots in question by Rallos, the plaintiff presented at the trial of the case Exhibit
L, which appears to be a copy of a draft of deed of absolute sale. This exhibit deserves but the scantest consideration, it being undated, unsigned
and unsubscribed by any purported party thereto. Besides, even granting arguendo  that the same was prepared by a lawyer of the Aznars, as
alleged by Crispina Rallos Alcantara, we fail to see its materiality to the resolution of the main issue involved in this case of whether or not
reformation is proper or justified, as the draft appears to have been drawn in favor of Crispina RalloE Alcantara who was not a party to the
instruments sought to be reformed, and there is nothing in said exhibit to indicate that the contested transactions were really loans secure by
mortgages.

As to Exhibits Q, Q-1, Q-2 Q-3, R and R-1, which, according to the appellant, were erroneously ignored by the court below, the same invariably refer
to an alleged indebtedness of Rallos to Matias Aznar and not to the defendants, Emmanuel and Alma Aznar, to whom the properties in question
appear to have been sold (Exhibits A, B and C). The said exhibits fail to show clearly and satisfactorily that the transactions mentioned therein relate
to the same transactions and the same parcels of land involved in the case at bar.

The appellant further contends that the considerations paid for the lots in dispute were very inadequate or unusually low which would justify
reformation under the provisions of Articles 1602, paragraph 1, and 1604, of the Civil Code. This contention is untenable.
 39

The evidence shows that Lot No. 7032 was sold to the defendant Emmanuel for P6,000.00 (Exhibit A), which was higher than its assessed value of
P4,447.25 in 1954 when the transaction took place (Exhibit A-1). The price paid for Lots Nos. 519-B, 519-C, 467 and 490 is P40,000.00 also in lump
sum (Exhibit C). The total consideration for said six lots is P45,000.00, which was more than one-half, or approximately 60%, of their total assessed
value of P74,647.00 at the time of transaction in 1954 (Exhibits B-1, B-2, C-1, C-2, C-3 and C4). It is to be noted that at the time of the sale, there
was a mortgage encumbrance of P5,000.00 on Lots Nos. 2713 and 7728 in favor of the Go Chan & Sons Realty Corporation, while Lots Nos. 519-B,
519-C, 467 and 490 had a mortgage encumbrance of P20,000.00 in favor of the Philippine National Bank, which obligations were assumed by the
defendants-vendees (Exhibits 27, 28, 29, 30, 32, 33 and 34). In fact, when Exhibit C was executed, the indebtedness to the bank was already due
and demands for the payment thereof had been made upon Rallos (Exhibits H and H-1).

On this question of the vsluation of the subject lots, the plaintiff presented HIPOLITO S. Ricardo, at one time Deputy City Assessor in Cebu City, who
testified that the assessment of a real estate property was only about 40% of its fair market value, but the same was not the basis for determining the
fair market value of a real estate property; that the factors considered by their office in appraising the fair market value of a real estate property were
the transactions of the parties and the prices appearing in the deeds of sale of the adjacent or neighboring lots, but in the absence thereof, the
capitalization system was used, based upon the investment in the property, its income, plus 6% interest annually after deductions for taxes paid,
insurance premiums, repairs, losses and other miscellaneous expenses; and that in the assessment of real properties their office had a schedule of
values to be followed, and a partial revision of the assessments was made yearly. According to him, however, their scheal of was not applied in the
assessment of Lots Nos. 2713 and 7728, covered by tax declarations, Exhibits B-1 and B-2, and subject matter of Exhibit B, and of Lots Nos. 519-C,
619-B, 46'7 and 490, covered by tax declarations, Exhibits C-1, C-2, C-3 and C4 and subject matter of Exhibit C. As to the assessment of Lot No.
7032, covered by tax declaration, Exhibit A-1, and subject matter of Exhibit A, the said schedule was used. At any rate, taking the assessment of the
seven lots involved in this case as a reasonable basis for determining their actual valuation at the time of the transactions, and considering the
encumbrances existing on six of the lots and their purchase by the defendants, Emmanuel and Alma Aznar, at one time and in lump sums, this Court
is not prepared to conclude that under the attendant circumstances, the considerations paid for the lots in question were unusually inadequate or
shockingly low to warrant the application of the provisions of paragraph No. I of Article 1602 of the Civil Code on equitable mortgage. (Manalo vs.
Gueco, 42 Phil. 925; Cabigao vs. Lim, 50 Phil. 844.)

The appellant points out that, according to the bank records, Exhibits T, T-1, U U-1, V, V-1, W and W-1, the appraised values of the lots mortgaged
with the bank were considerably higher than the prices paid for them. The fact remains, however, that the mortgage obligation of Rallos secured by
the same six lots was only P20,000.00, which was assumed by the defendants-vendees. Besides, no bank appraiser or representative was
presented by the plaintiff at the trial to testify as to how the appraised values appearing in said exhibits were arrive at.

On the other hand, the testimony of Vicente Kyamko also relied upon by the appellant to prove the alleged fair market values of the subject lots,
deserves but scant consideration. The said witness admitted that he was not a licensed appraiser, and that he did not know what the assessed
values of the lots in question were in 1954, although, according to him, the assessed value of a real property was the basis for computing or
estimating its fair market value. However, even granting arguendo that there were differences in value or some inadequacy of consideration here,
nevertheless; the same cannot be said to be controlling when viewed in the light of the entire evidence Page 341 adduced in this case. A difference
in value is not always a decisive factor for determining whether the contract is one of sale with right to repurchase or a mere loan with guaranty.
(Ocuma vs. Olandesca [CL] 47 O.G. 1902.) Mere inadequacy is not a sufficient ground for the rescission or resolution of a contract when both
parties, as in the instant case, were in a position to form an independent judgment concerning the transaction. (Askay vs. Coselan 46 Phil. 179.)

In its tenth assignment of error, the appellant assails the trial court's finding that the defendant vendees were in possession of the lots in question
after the execution of the deeds of absolute sale, Exhibits A, B, and C. It contends that the defendants never possessed the contested lots. We see
no merit in this contention.

The records show that after the execution of the documents in question, the defendants, Emmanuel and Alma Aznar, transferred in their names the
tax declarations covering the properties sold to them, paid the taxes thereon and caused the issuance of new certificates of title accordingly (Exhibits
7, 8, 9, 10, 11, 12, 21, 22, 24, 25, 26, 35, 36, 37, 38, 39 and 40). They demanded for the payment to them of the rentals due from the tenants of the
lots, and began to collect the rentals from them after the maturity of the promissory note of Rallos for P1,800.00, Exhibit I, which, according to the
defendant, Emmanuel, represented the rentals for one year collected in advance by Rallos from the lessees. Thereafter, defendants Emmanuel and
Alma Aznar filed detainer suits against those occupants who failed to pay their rents to them (Exhibits D to D-21, inclusive, 41, 41-A, 41-B, 41-C and
41-D). Certainly, those facts belie the appellant's claim that the defendant vendees were never in possession of the lots in dispute.

From the evidence adduced, we are satisfied that after the execution of the deeds of absolute sale, Exhibits A, B and C, the defendants vendees
took possession of the subject lots, and they were in possession thereof and collected the rentals due until the plaintiff's administrator was
authorized by the court a quo to collect the rents and deposit them in a bank, subject to the court's disposition.

The appellant capitalizes, too, on the statement, Exhibit K, which allegedly shows that Matias Aznar charged Rallos with the payment of the taxes
due on the contested lots. According to Crispina Rallos Alcantara, the said exhibit was prepared by an employee of Matias Aznar upon the latter's
orders, when she went to see him concerning the repurchase of the lots. This, however, was denied by the defendant, Emmanuel Aznar, who
claimed that after the sale, neither Rallos nor his daughter Crispina went to see any of the Aznars in their office for the redemption of the lots. The
exhibit in question, allegedly a statement of account of Rallos to Matias Aznar involving the disputed transactions is neither dated nor signed. much
less by the party sought to be charged. The alleged writer thereof was not presented at the trial of the case, and we have only the biased testimony
 40

of Crispina as to its authenticity or preparation. Even if it were true, however, that the writing was made, as alleged by Crispina, we cannot consider
the name as proof of what was said or transacted then. The mere making of written -memorandum immediately after the interview does not make the
memorandum affirmative intrinsic proof of the things said or transacted. (32 CJS 948.) Knowledge on the part of the person who made the
memorandum, at the time it was made, that the statements or entries therein were correct must be shown (32 OJS 947), and this the plaintiff failed to
do. On the other hand, the record indubitably shows that after the execution of the questioned instruments, the taxes on the lots subject matter
thereof were paid by the defendants vendees. Consequently, we hold that Exhibit K has no evidentiary value, and the lower court was correct in
disregarding it ( Pp 82- 95, Record of L-31740.)

However, in its per curiam resolution of November 19, 1969, wherein Presiding Justice Capistrano who had by then been elevated to this Court was
substituted by his successor Presiding Justice Julio Villamor, this rather strong position taken by the appellate court was completely reversed by
itself as follows:

While it is true that in our decision rendered in this case, we held that the notations or memoranda of Crispina Rallos Alcantara marked as Exhibits
A-2, A-3, B3 and C5 were self-serving and unsatisfactory as evidence of the facts asserted (Decision, p. 24), the same, however, as now correctly
contended by the plaintiff-appellant in his motion for reconsideration, may be considered as constituting part of the res gestae, and as such, are
admissible in evidence to show the nature of the contracts in question and the relation of the parties involved.

Statements, acts or conduct accompanying or so nearly connected with the main ion as to form a part of it, and which illustrate, elucidate qualify, or
the act, are admissible as part of the res gestae. Accordingly, the attendant circumstances and the statements then made by the pudes are
admissible as part of the res gestae to show the execution of a contract, and, where relevant, matters said and done which are parts of the res
gestae of the negotiation and execution of a contract are admissible to show the existence and nature of the contract and the relation of the parties.
Matters attendant upon a sale or conveyance may also be admissible m part of the res gestae. (32 CJS 30-32.)

Coversations occurring during the negotiation of a loan or other transaction, as well as the instrument given or received, being part of the res gestae,
are competent evidence to show the Page 343 nature of the transaction and the parties for whose benefit it was made, where that fact is material.
(National Bank vs Kennedy, 17 Wall. [U.S.] 19, 21 L. Ed. 554, cited in 20 Am. Jur. 57.)

... The character of the transaction is precisely what the intention of the parties at the time made it. It will therefore be discovered that the testimony
of those who were present at the time the instrument was made, and especially of those who participated in the transaction, becomes most
important. (Cuyugan vs. Santos, 34 Phil. 100, 114-115.)

Thus, while the testimony of Crispina Rallos Alcantara may nor, be free from bias, she being the daughter of the deceased, Simeon Rallos, the same
should not, however, be totally rejected on the ground of bias alone (U.S. vs. Mante, 27 Phil. 124; People vs. Pagaduan 37 Phil. 90), considering that
it appears to be clearly and sufficiently supported by memoranda which, as already stated, are admissible in evidence as part of the res
gestae (Exhibits A-2, A-3, B-3 and C-5) and by the ledgers of the Philippine National 7 Bank .(Exhibits X and Y). Besides, mere relationship of a
witness to a party does not discredit his testimony in court, (U.S. vs. Mante, supra.)

In this connection, the appellant has pointed out in his motion under consideration that on of this Court's decision, there was an erroneous citation of
C.J.S., i.e., Vol. 32 pp. 947-948 thereof. The said citation, however, appears and may be found in the 1964 edition of the Corpus Juris Secundum,
Vol. 32, pages 947-948.

In the case at bar, there is another factor why the transactions in question should be considered as equitable mortgages. This factor consists of the
unusual inadequacy of the prices of the sale of the properties involved. For purposes of comparison, the prices paid for the properties mentioned in
Exhibits A, B and C and the asses values thereof are hereunder tabulated:

Lot No. Purchase Price Assessment as per Tax declaration

7032 P6,000.00 (Exh. A) P4.447.25 (Exh. A-1)

2713)   4,679.00 (Exh. B-1)

7728) 5,000.00 (Exh, B, 9,308.00 (Exh. B- 2)

519-C)   150.00 (Exh. C-1)

519-B)   31.300.00 (Exh. C-2)

 41

467 )   17,760.00 (Exh. C-3)

490 ) 40,000.00 (Exh. C) 11,440.00 (Exh. C-4)

  P51,000.00 P79,084.25

From the foregoing tabulation, it can be seen that the total amount paid to Simeon Rallos for all the properties involved is only P51,000.00 as against
the total assessed values thereof which amounted to P79,084.25, or a difference of P28,084.25. In short, the total sum paid as purchase price for the
subject lots represents only 64% of their total assessed valuation. To our mind, this constitutes a strong indication that the transactions in question
were really loans with mortgages and not absolute sale.

Moreover, it appears that Lots Nos. 519-C, 519-B, 467 and 490 covered by the deed of absolute sale (Exhibit C) were previously mortgaged with the
Philippine National Bank, which obligation was assumed by the supposed vendee in the transaction under consideration. As appraised by the
Philippine National Bank and as shown in its inspection and appraisal report, marked as Exhibits T, U and V in this case, the market values,
respectively, of said properties are as follows:

TCT No. 1096 - Lot No. 490

Market value - Land

572 sq. m. at P25/sq. m. ...................P14,300.00

TCT No. 10915 - Lot No. 467

Market value - land

888 sq. m. at P25/sq. m. ...................P22,200.00

TCT No. 10832 - Lots Nos.

519-B and 519-C

Market value - land

14,242 sq. m. at P10/sq. m. ................142,420.00

Total. . . . . . . . . . P178,920.00.

There is, therefore, a difference of P138,920.00 between the purchase price of the same properties stated at P40,000.00 in the deed of absolute sale
(Exhibit C) and the total market value as appraised by the Philippine National Bank amounting to P178,920.00.

Under Republic Act 357, otherwise known as the General Banking Act, a bank may grant loans against a real estate security and improvements
thereon on the basis of the appraised value of the real estate made by the bank itself. Section 78 of said Act provides that "loans against real estate
security shall not exceed 70% of the appraised value of the improvement." Inasmuch as the appraisal of the mortgage values of the lots in question
were made by competent officers of the Philippine National Bank in the performance of their assigned duties and who are presumed to have
regularly performed such duties, the same are not only admissible in evidence but are prima facie evidence of the facts therein stated.

Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts therein stated. (Section 38, Rule 130, Rules of Court.)

If a prima facie, case exists, it sustains the quantum of evidence on the point which it covers, shifting the burden of proof to the other party. It relieves
a party of the burden of proving the fact presumed. The same result is effected by any substitute for evidence, such as statutory regulations
prescribing prima facie evidence of specified facts. (1 Jones on, Evidence 2 Ed., Sec. 369.)

It results, therefore, as previously stated, that the appraisal of the lots in question made by the officials of the Philippine National Bank in the
performance of a duty especially enjoined by law is not only admissible in evidence, but is a prima facie  evidence of the specified facts stated
therein. The defendants, however, presented no evidence to rebut the same. We have here, therefore, a case where four of the seven lots involved
 42

appear to have been sold for the total sum of P40,000.00 (Exhibit C), which is equivalent to only 22% of their market values as appraised by the
Philippine National Bank. Certainly, this fact clearly bolsters the plaintiff's claim that the transactions in controversy were really loans secured by
mortgages and not absolute sales, as there is gross unusual inadequacy of the prices paid for the same. The fact that the properties were mortgaged
and a notice of lis pendens was annotated on the corresponding certificate of title at the time of the sale does not lessen nor affect the values of the
lands.

It has been held that in determining the amount of compensation, or the market value of the property taken, no account should be given ... to the fact
that the property is mortgaged. (City of Detroit vs. Fidelity Realty Co., 182 N. W. 140, 213 Mich., cited in 29 C.J.S. 972-973.)

As regards the lis pendens annotation on the certificates of title of the subject lots, the facts show that the same arose from the action for support
filed by Lourdes Rallos against her husband, Simeon Rallos. Such annotation appears to be improper as an action for support is one in personam
and a notice of lis pendens  is available only in real actions, that is, actions affecting the title to or the right of possession of real property and not in
any other action. (Saavedra vs. Martinez, 58 Phil. 767; Garchitorena vs. Register of Deeds, G.R. No. L-9731, May 11, 1957; Somes vs. Government
of the Phil., 62 Phil. 432; and Geronimo vs. Navs, G.R. No. L-12111, January 31, 1969.)

On the question of possession of the properties in litigation, however, which was likewise raised by the appellant in his motion under consideration,
we are not disposed to disturb our findings on this point. At least, the records show that after the execution of the documents in question (Exhibits A,
B and C), the defendants exercise over the litigated properties acts constitutive of dominion and possession for sometime prior to the appointment of
the plaintiff-appellant as the administrator thereof in 1957. The transferred in then names the tax declarations of the properties described therein,
cause the issuance of new certificates of title thereto accordingly in July, August and November, 1954, and paid the corresponding taxes therein
(Exhibits 7 to 12, 21 to 26 and 36 to 40). Prior to the institution of the present action, the defendants, too, appeared to have demanded for the
payment to them of the rentals due from the lands in dispute, and in 1956, they filed detainer suits against the occupants thereof who failed or
refused to pay the rents to them (Exhibits D to D-21, inclusive, and 41, 41-A to 41-D, inclusive).

It appears, to that after the death of Simeon Rallos in 1956, the plaintiff who was appointed special administrator of the decedents estate was
authorized by the court a quo  to collect the rentals due from subject premises in an order issued on August 8, 1957 and had since then been in
possession of the lots in question up to the present (printed Record on Appeal, pp. 34-38). Thus, paragraph 2 of Article 1602 of the Civil Code is not
applicable in the present case.( Pp. 117-124. Id.)

Thus, as may be seen, in overturning its own previous conclusion that the deeds in question are really absolute sales by subsequently finding that
they are equitable mortgages, the Court of Appeals did not do it by just committing a turnabout in its appreciation or evaluation of the evidence.
Rather, it reversed first its rulings on the admissibility of the relevant evidence by admitting those it had rejected in its original decision and then
premised the reversal of its conclusions therein on these newly admitted evidence. Indeed, it appears to Us from the above ratiocination of the Court
of Appeals in its per curiam  resolution, considered together with the arguments adduced by it relative to the same matters in its original decision, that
had that court found no reason to admit and take into account said evidence, it would not have reversed its previous finding that the subject deeds
are absolute sales. In the final analysis, therefore, the specific question of law raised by the Aznars in this appeal is whether or not the Court of
Appeals committed a legal error in admitting the evidence it had originally held to be incompetent. To reiterate, it is evidently their position that in the
affirmative, no alternative is left to Us except to grant the prayer of their petition.

The thrust of the per curiam  resolution is that the plaintiff Borromeo was able to prove that the defendants Aznars "retained part of the purchase
price" stipulated in deeds in question and that there was unusual inadequacy of said purchase price thereby justifying the use in this case of the
presumption created by Article 1602 of the Civil Code whenever said circumstances are shown (Paragraphs 1 and 4 of said article). According to the
Court of Appeals, these circumstances were proven through, among other evidence, the testimony of plaintiff Crispina Rallos, Alcantara, the
daughter of the deceased Simeon Rallos, who declared that she was present on all occasions when the three transactions in dispute took place
between her father and Matias Aznar and that while thus listening to their conversations she took down notes of the various amounts mentioned by
them and the respective purposes thereof such as interest, attorney's fees, other obligations to be paid out of the money being borrowed by her
father, etc., which notes were Identified at the trial as Exhibits A-2, A-3, B-3 and C-5. More specifically, the Court of Appeals held that because the
testimony of the witness Alcantara was corroborated by these notes, it should be believed, from which it can be gathered that it was only because
said notes were considered by it as inadmissible that in its original decision, said testimony and notes were deemed to be without evidentiary value
for being self-serving. "While it is true," says the appealed resolution, "that in our decision rendered in this case, we held that the notations or
memoranda of Cristina Rallos Alcantara marked as Exhibits A-2, A-3, B-3 and C-5. More specifically, the Court of Appeals held that because the
testimony and notes were deemed to be without evidentiary value for being self-serving. "While it is true," says the appealed resolution, "that in our
decision rendered in this case, we held hat the notations or memoranda of Cristina Rallos Alcantara marked as Exhibit A-2, A-3, B-3 and C-5 were
self-serving and unsatisfactory as evidence of the facts asserted (Decision, p. 24), the same, however, as nor correctly contended by plaintiff-
appellant in his motion for reconsideration, may be considered as constituting part of the res gestae, and as such are admissible in evidence to show
the nature of the contracts in question and the relation of the parties involved." (p. 18, Annex C of the petition.) It is the ruling upholding the
admissibility of said notes and memoranda as parts of the res gestae that the Aznars contend to be a legal error committed by the Court of Appeals.

We cannot see how the disputed notes and memoranda can be considered in any sense as part of the res gestae as this matter is known in the law
of evidence. It must be borne in mind, in this connection, that Crispina was not a party to the transaction in question. Only Simeon Rallos, on the one
hand, and Matias Aznar, if she is to be believed, or Emmanuel and Alma Aznar, as the documents show, on the other, were the parties thereto. The
 43

record does not reveal why Crispina was with her father and the time, hence, there can be no basis for holding that she actually took part in the
transaction. That she allegedly took notes thereof while there present made her at best only a witness not a party. It cannot be said, therefore, that
her taking down of her alleged notes, absent any showing that she was requested or directed by the parties to do so or that the parties, more
particularly the Aznars, who are being sought to be bound by then, knew what she was doing, constitute part of the transaction, the res gestae  itself.
If such alleged taking of notes by Crispina has to be given any legal significance at all, the most that it can be is that it is one circumstance at all, the
most that it can be is that it is one circumstance relevant to the main fact in dispute. In other words it could at the most be only circumstantial
evidence.

The trouble however is that the admission of said notes and memoranda suffers from a fatal defect. No witness other than Crispina has testified as to
the veracity of her testimony relative to her alleged notes and memoranda. Not even her husband who, according to her, was present on one of the
occasions in issue, was called to testify. It cannot be denied that Crispina is interested in the outcome of this case. In the words of the Court of
Appeals itself in its original decision, "her testimony cannot be considered as absolutely unbiased or impartial", hence, "unreliable and insufficient to
justify the reformation of the instruments in question." Such being the case, how can the notes and memoranda in dispute add any weight to her
testimony, when she herself created them? Surely, they cannot have anymore credibility than her own declarations given under oath in open court.

The extensive and repeated arguments of the parties relative to the issue of whether or not self-serving statements may be admitted in evidence as
parts of the res gestae are very interesting and illuminating, but We fee they are rather very interesting and illuminating, but We feel they are rather
off tangent. The notes supposedly prepared by witness Alcantara during the transaction between her father and the Aznars do not partake at all of
the nature of hearsay evidence. If anything, they constitute memoranda contemplated in Section 10 or Rule 132 which provides:

SEC. 10. When witness may refer to memorandum. — A witness may be allowed to refresh his memory respecting a fact, by anything written by
himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his
memory and he knew that the same was correctly stated in the writing; but in such case the writing must be produced and may be inspected by the
adverse party, who may, if he chooses, cross-examine the witness upon it, and may read it in evidence. So, also, a witness may testify from such a
writing, though he retain no recollection of the particular facts, if he is able to swear that the writing correctly stated the transaction when made; but
such evidence must be received with caution.

As may be observed, this provision applies only when it is shown beforehand that there is need to refresh the memory of the witness, which is not
the case here. Nowhere in the record is there any indication that Alcantara needed during her testimony the aid of any memorandum in respect to
the matters contained in the notes in dispute. Besides, under the above witness does not constitute evidence, and may not be admitted as such, for
the simple reason that the witness has just the same to testify on the basis of refreshed memory. In other words, where the witness has testified
independently of or after his testimony has been refreshed by a memorandum of the events in dispute, such memorandum is not admissible as
corroborative evidence. It is self-evident that a witness may not be corroborated by any written statement prepared wholly by him. He cannot be
more credible just because he support his open-court declaration with written statements of the same facts even if he did prepare them during the
occasion in dispute, unless the proper predicate of his failing memory is priorly laid down. What is more, even where this requirement has been
satisfied, the express injunction of the rule itself is that such evidence must be received with caution, if only because it is not very difficult to conceive
and fabricate evidence of this nature. This is doubly true when the witness stands to gain materially or otherwise from the admission of such
evidence, which is exactly the case of Crispina Alcantara.

The other pieces of evidence rejected by the trial court as well as the Court of Appeals in its original decision but which it subsequently admitted
upon motion for reconsideration of Borromeo, thereby causing the appellate court to reverse its own affirmatory conclusion as to the nature of the
transactions in dispute as absolute sales, are the following:

1. Exhibit J, the document giving Simeon Rallos the option to "repurchase" the lots sold under Exhibit A, which however expired without Rallos
excercising the same.

2. Exhibits X and Y, alleged ledgers of the Philippine National Bank apparently showing the items in the current account of Southwestern Colleges,
Inc. purportedly corresponding to the checks allegedly issued by Matias Aznar to Simeon Rallos in the course of the controversial transactions herein
invoked and which, it is contended, proves that the amounts actually received by Rallos were less than the stipulated prices, because corresponding
interests for the alleged loan had already been deducted.

3. Exhibit K, supposedly a statement of the account of Rallos with Matias Aznar allegedly by Crispina Alcantara to have been prepared by an
employee of Aznar who, however, was not called to testify.

4. Exhibits T, U and V, purported inspection and appraisal reports allegedly submitted by investigators of the Philippine National Bank to whom the
property described in Exhibit C covering four lots, Nos. 467, 490, 519-B and 519-C had been mortgaged indicating therein the market value thereof
as appraised by said investigators and on the basis of which Borromeo now maintains that there was inadequacy of the purchase price in said deed
of sale Exhibit C for the purposes of the presumption in Article 1602 of the Civil Code that the disputed transactions are equitable mortgages.

As regards Exhibit J, the contention of the Aznars is that in its per curiam resolution, the Court of Appeals reversed itself as to the evidentiary value
of this exhibit without giving any reason at all. What is worse, whereas in its original decision, the Appellate Court pointedly held that since Exhibit J
 44

was an option to repurchase that had expired without being exercised, it could not alter the true nature of Exhibit A, the deed of absolute sale of the
properties to which said options refers, in its resolution, this exhibit was used as basis for the further inference that there were also similar options
relative to the other two sales in question, Exhibits B and C, merely because Crispina Alcantara testified that Aznar, hence the same could not be
produced.

Again, We find the position of the Aznars to be well taken. True it is that the Court of Appeals is the final arbiter of question of fact and as such has
the inherent power to reverse its findings. For it, however, to alter its factual findings without any adequate basis borders on being whimsical and
capricious. At the very least, to do is such a departure from the accepted and usual course of judicial proceedings as to call for the exercise of the
Supreme Court's power of supervision. (Section 4 (b), Rule 45.) In this case of Exhibit J here, nowhere in the appealed resolution is there any
explanation for the Court's turnabout. The casual reference in the said resolution of Exhibit J as being corroborative of the testimony of Crispina
Alcantara together with her notes, Exhibits A-2, A-3, B-3 and C-5, is certainly an unwarranted conclusion, considering specially that We have already
ruled above that there was no legal basis for the Appellate Court's reversal of its original position as to said notes themselves. In this connection, the
same notes constitute the main support of Crispina's testimony, hence the corroborative force of Exhibit J must necessarily dissipate without them.
Indeed, under the circumstances, with the notes of Crispina being inadmissible, and absent any other pertinent document to back up her work, the
inference drawn by the Court of Appeals regarding options to repurchase the properties covered by Exhibits B and C appear hollow and baseless.

The appealed resolution also reversed the Appellate Court's original pose anent the admissibility of Exhibits X and Y by attributing to it corroborative
evidentiary value of the testimony of Crispina, although it did not even mention said exhibits in its earlier decision. As in the case of the exhibits
previously discussed, We are of the considered opinion that it was legal error for the Court of Appeals to have thus ruled in favor of the admission of
these exhibits, X and Y merely by implication. It is true that their contents were discussed in the resolution, but no reason is given therein why they
have suddenly become admissible.

These exhibits purport to be ledgers of the Philippine National Bank corresponding to the current account of the Southwestern Colleges owned by
the Aznars. Now, it is undisputed that these exhibits were offered only in rebuttal and that no witness testified on them, not even for purposes of
Identification. How the Appellate Court came to take them into account is surprising, considering that the appealed resolution does not contain the
slightest discussion relative to these exhibits. Obviously, such a procedure cannot deserve Our sanction. We reject it as unjudicial.

The same observation may be made with respect to Exhibits T, U and V. No one testified as to their controversial contents. Nobody even Identified
them. They were just marked and shoved in as part of the documentary evidence of Borromeo in rebuttal. In an effort to give them a semblance of
admissibility, counsel now contends that they are public documents appearing to have been prepared by employees of the Philippine National Bank.
But although this bank is a government bank, it is not wholly owned by the government, there being private persons owning shares thereof. This is a
matter of judicial notice. Officials and employees of the Philippine National Bank are not, therefore, public officers within the contemplation of Section
38 of Rule 130. Moreover, assuming otherwise or that these exhibits could have any standing as public or official records, under Section 35 of Rule
132, they do not prove themselves, as certain requisites must be complied with before they can be admitted, none of which appears to have been
established in connection with the exhibits in question. Worse, it is clear in the record that these exhibits relate to only one of the three transactions
herein involved. Accordingly, We do not see any justification at all for their admission as evidence to prove the true nature of the said transactions.

Very little needs be said of Exhibit K. In its original decision, the Appellate Court rejected this exhibit holding: "The exhibit in question, allegedly a
statement of account of Rallos to Matias Aznar involving the disputed transaction is neither dated nor signed, much less by the party sought to be
charged. The alleged writer thereof was not presented at the trial of the case, and we have only the biased testimony of Crispina as to its authenticity
or preparation. Even if it were true, however, that the writing was made, as alleged by Crispina, we cannot consider the same as proof of what was
said or transacted then. The mere making of written memorandum immediately after the interview does not make the memorandum affirmative
intrinsic proof of the things said or transacted. (32 C.J.S. 948.) Knowledge on the part of the person who made the memorandum, at the time it was
made, that the statements or entries therein were correct must be shown (32 C.J.S. 947), and this the plaintiff failed to do. On the other hand, the
record indubitably shows that after the execution of the questioned instruments, the taxes on the lots subject matter thereof were paid by the
defendants vendees. Consequently, we hold that Exhibit K has no evidentiary value, and the lower court was correct in disregarding it." (Pages 94-
95, Record of L-31740.) On the other hand, in the impugned resolution, the only mention made of Exhibit K is but casual thus: "Crispina Rallos
Alcantara went to Matias Aznar to know the total indebtedness of her father, which, according to Aznar had accumulated to P55,428.00 (Exhibit K)."

We are not prepared to give Our assent to such a mode of treating a factual issue. If anything, the subsequent treatment thus given to the document
in question reflects lack of serious consideration of the material points in dispute. That is not the way to decide judicial controversies. While courts do
not have to so rationalize their decisions as to meet all the arguments of counsel to the satisfaction of the latter, it is imperative for the credibility of
the judiciary and the maintenance of the people's faith therein that pivotal contentions be not treated in cavalier fashion that leaves the motive or
grounds for the court's ruling to pure speculation and imagination. The attempt of counsel to classify this exhibit as some kind of admission by Matias
Aznar is without merit, if only because it was not to Crispina, the witness, to whom the alleged admission was made and it is not explained why the
supposed employee of Aznar, a certain Baltazar, who imputedly prepared it was not called to testify and be cross-examined.

In the final analysis, therefore, it is evident that the Court of Appeals has sought to support its reversing per curiam resolution with props that are
legally untenable. True it is that the reversal involves factual findings, but as already explained earlier, a careful review of the appealed resolution
reveals unmistakably that the reversal was induced by the reconsideration by the Court of its previous rulings on the admissibility of the relevant
evidence, such that its original conclusions of fact would not have been altered had the Court not been convinced by the motion for reconsideration
 45

of Borromeo that the exhibits it had rejected or refused to consider are admissible under the law. In these premises, and it being Our considered
view that the rulings in the appealed resolution as to the admissibility of the exhibits concerned are legally erroneous, the irresistible conclusion is hat
the original decision of the Court of Appeals affirming that of the trial court must stand. Indeed, We have gone over both decisions and We are
satisfied that they were studied and are in accord with law and justice.

We are not overlooking the point by counsel that some of the exhibits in question (Exhibits X and Y and T, U and V) were not specifically objected to
on the grounds We have discussed above. The truth is that counsel's proposition is not entirely accurate. These exhibits are supposed to be records
of the Philippine National Bank, but nobody testified to even Identify them as genuine. And they were introduced only in rebuttal. True it is that the
technical objections mentioned by Aznars' counsel when they were offered were general — for being immaterial, irrelevant and impertinent, but the
explanation accompanying these general grounds included the point that defendants were being deprived of the right to cross-examine the ones who
prepared the exhibits. In fact, the objecting counsel is quoted to have expressly argued that "It appears that these exhibits are hearsay." (referring to
Exhibits T U and V (Page 241, Brief for Respondents.) Furthermore, inasmuch as the Court of Appeals failed to give any reason for overturning its
previous conclusions, without explaining why it considered these evidence admissible, after ruling against them in the original decision, We deem it
superfluous to rule squarely on counsel's contention.

That somehow the Court of Appeals has been overly swayed by the masterly presentation of Borromeo's case by his notably brilliant counsel is, of
course, understandable in the course of the administration of human justice but it is the ever existing responsibility of judges to guard themselves
against being awed by the professional proficiency and fame of the lawyers appearing before them and to be doubly careful in studying and resolving
the issues they raise. And in this respect, there is no substitute for well grounded preparation, up-to-dateness in the development of the law and legal
principles and an adequate sense of logic and proportion inspired solely by probity of the highest order. The assertion made in some quarters about
alleged inherent inequality before the courts resulting from the disparity of the abilities of respective counsels of the parties cannot have real ground
for being, if only the judges remain conscious of the inevitable fact that they are supposed to possess the levelling factor their own knowledge pitted
against those of the most learned advocates, to augment the possible inadequacy of the opposing attorney, who in most cases are of the poor who
cannot afford the fees of better barristers.

IN VIEW OF ALL THE FOREGOING, the per curiam  resolution of the Court of Appeals appealed in G.R. No. L-31740 is hereby reversed and the
original decision of that court dated January 30, 1968 in CA-G.R. No. 30092-R is affirmed. In consequence, obviously, the prayer of the petition in
G.R. No. L-31342 being to augment the reliefs granted by the appealed resolution to Borromeo cannot be granted, hence said petition is hereby
ordered dismissed. Costs against Borromeo, as administrator of the estate of Simeon Rallos.