3. G.R. Nos.

108280-83 November 16, 1995

ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO
TAMAYO, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS

FACTS:

The case before us occurred at a time of great political polarization in the aftermath of the 1986
EDSA Revolution. This was the time when the newly-installed government of President Corazon C.
Aquino was being openly challenged in rallies, demonstrations and other public fora by "Marcos
loyalists," supporters of deposed President Ferdinand E. Marcos. Tension and animosity between
the two (2) groups sometimes broke into violence. On July 27, 1986, it resulted in the murder of
Stephen Salcedo, a known "Coryista."

From August to October 1986, several informations were filed in court against eleven persons
identified as Marcos loyalists charging them with the murder of Salcedo..

The cases were consolidated and raffled to the Regional Trial Court, Manila. All of the accused
pleaded not guilty to the charge and trial ensued accordingly. The prosecution presented twelve
witnesses, including two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and the police
officers who were at the Luneta at the time of the incident. In support of their testimonies, the
prosecution likewise presented documentary evidence consisting of newspaper accounts of the
incident and various photographs taken during the mauling.

The prosecution established that, a rally was scheduled to be held at the Luneta by the Marcos
loyalists. Earlier, they applied for a permit to hold the rally but their application was denied by the
authorities. Despite this setback, three thousand of them gathered at the Rizal Monument of the
Luneta at 2:30 in the afternoon of the scheduled day. Led by Oliver Lozano and Benjamin Nuega,
both members of the Integrated Bar of the Philippines, the loyalists started an impromptu singing
contest, recited prayers and delivered speeches in between. Colonel Edgar Dula Torres, then
Deputy Superintendent of the Western Police District, arrived and asked the leaders for their permit.
No permit could be produced. Colonel Dula Torres thereupon gave them ten minutes to disperse.
The loyalist leaders asked for thirty minutes but this was refused. Atty. Lozano turned towards his
group and said "Gulpihin ninyo ang lahat ng mga Cory infiltrators." Atty. Nuega added "Sige, sige
gulpihin ninyo!" The police then pushed the crowd, and used tear gas and truncheons to disperse
them. The loyalists scampered away but some of them fought back and threw stones at the police.
Eventually, the crowd fled towards Maria Orosa Street and the situation later stabilized 1

At about 4:00 p.m., a small group of loyalists converged at the Chinese Garden, Phase III of the
Luneta. There, they saw Annie Ferrer, a popular movie starlet and supporter of President Marcos,
jogging around the fountain. They approached her and informed her of their dispersal and Annie
Ferrer angrily ordered them "Gulpihin ninyo and mga Cory hecklers!" Then she continued jogging
around the fountain chanting "Marcos pa rin, Marcos pa rin, Pabalikin si Marcos, Pabalikin si
Marcos, Bugbugin ang mga nakadilaw!" The loyalists replied "Bugbugin!" A few minutes later, Annie
Ferrer was arrested by the police. Somebody then shouted "Kailangang gumanti, tayo ngayon!" A
commotion ensued and Renato Banculo, a cigarette vendor, saw the loyalists attacking persons in
yellow, the color of the "Coryistas." Renato took off his yellow shirt.  He then saw a man wearing a
2

yellow t-shirt being chased by a group of persons shouting "Iyan, habulin iyan. Cory iyan!" The man
in the yellow t-shirt was Salcedo and his pursuers appeared to be Marcos loyalists. They caught
Salcedo and boxed and kicked and mauled him. Salcedo tried to extricate himself from the group but
they again pounced on him and pummelled him with fist blows and kicks hitting him on various parts
of his body. Banculo saw Ranulfo Sumilang, an electrician at the Luneta, rush to Salcedo's aid.
Sumilang tried to pacify the maulers so he could extricate Salcedo from them. But the maulers
pursued Salcedo unrelentingly, boxing him with stones in their fists. Somebody gave Sumilang a
loyalist tag which Sumilang showed to Salcedo's attackers. They backed off for a while and
Sumilang was able to tow Salcedo away from them. But accused Raul Billosos emerged from behind
Sumilang as another man boxed Salcedo on the head. Accused Richard de los Santos also boxed
Salcedo twice on the head and kicked him even as he was already fallen.  Salcedo tried to stand but
3

accused Joel Tan boxed him on the left side of his head and ear.  Accused Nilo Pacadar punched
4

Salcedo on his nape, shouting: "Iyan, Cory Iyan. Patayin!"  Sumilang tried to pacify Pacadar but the
5

latter lunged at the victim again. Accused Joselito Tamayo boxed Salcedo on the left jaw and kicked
him as he once more fell. Banculo saw accused Romeo Sison trip Salcedo and kick him on the
head, and when he tried to stand, Sison repeatedly boxed him.  Sumilang saw accused Gerry Neri
6

approach the victim but did not notice what he did.7

Salcedo somehow managed to get away from his attackers and wipe off the blood from his face. He
sat on some cement steps  and then tried to flee towards Roxas boulevard to the sanctuary of the
8

Rizal Monument but accused Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in the
process. Salcedo pleaded for his life exclaiming "Maawa na kayo sa akin. Tulungan ninyo ako." He
cried: "Pulis, pulis. Wala bang pulis?"
9

The mauling resumed at the Rizal Monument and continued along Roxas Boulevard until Salcedo
collapsed and lost consciousness. Sumilang flagged down a van and with the help of a traffic officer,
brought Salcedo to the Medical Center Manila but he was refused admission. So they took him to
the Philippine General Hospital where he died upon arrival.

Salcedo died of "hemorrhage, intracranial traumatic." He sustained various contusions, abrasions,

lacerated wounds and skull fractures as revealed in the following post-mortem findings:

The mauling of Salcedo was witnessed by bystanders and several press people, both local and
foreign. The press took pictures and a video of the event which became front-page news the
following day, capturing national and international attention. This prompted President Aquino to
order the Capital Regional Command and the Western Police District to investigate the incident. A
reward of ten thousand pesos (P10,000.00) was put up by Brigadier General Alfredo Lim, then
Police Chief, for persons who could give information leading to the arrest of the killers.  Several
11

persons, including Ranulfo Sumilang and Renato Banculo, cooperated with the police, and on the
basis of their identification, several persons, including the accused, were apprehended and
investigated.

For their defense, the principal accused denied their participation in the mauling of the victim and
offered their respective alibis. Accused Joselito Tamayo testified that he was not in any of the
photographs presented by the prosecution  because on July 27, 1986, he was in his house in
12

Quezon City.  Gerry Neri claimed that he was at the Luneta Theater at the time of the
13

incident.   Romeo Sison, a commercial photographer, was allegedly at his office near the Luneta
14

waiting for some pictures to be developed at that time.   He claimed to be afflicted with hernia
15

impairing his mobility; he cannot run normally nor do things forcefully.   Richard de los Santos
16

admits he was at the Luneta at the time of the mauling but denies hitting Salcedo.   He said that he
17

merely watched the mauling which explains why his face appeared in some of the
photographs.   Unlike the other accused, Nilo Pacadar admits that he is a Marcos loyalist and a
18

member of the Ako'y Pilipino Movement and that he attended the rally on that fateful day. According
to him, he saw Salcedo being mauled and like Richard de los Santos, merely viewed the
incident.   His face was in the pictures because he shouted to the maulers to stop hitting
19

Salcedo.   Joel Tan also testified that he tried to pacify the maulers because he pitied Salcedo. The
20

maulers however ignored him.  21

The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer opted not to testify in
their defense.

the trial court rendered a decision finding Romeo Sison, Nilo Pacadar, Joel Tan, Richard de los
Santos and Joselito Tamayo guilty as principals in the crime of murder qualified by treachery and
sentenced them to 14 years 10 months and 20 days of reclusion temporal as minimum to 20 years
of reclusion temporal as maximum. Annie Ferrer was likewise convicted as an accomplice. The
court, however, found that the prosecution failed to prove the guilt of the other accused and thus
acquitted Raul Billosos, Gerry Nery, Rolando Fernandez, Oliver Lozano and Benjamin Nuega. The
dispositive portion of the decision reads as follows:

The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan, Joselito
Tamayo and Annie Ferrer are hereby ordered to pay, jointly and severally, to the
heirs of Stephen Salcedo the total amount of P74,000.00 as actual damages and the
amount of P30,000.00 as moral and exemplary damages, and one-half (1/2) of the
costs of suit.

The period during which the Accused Nilo Pacadar, Romeo Sison, Joel Tan, Richard
de los Santos and Joselito Tamayo had been under detention during the pendency of
these cases shall be credited to them provided that they agreed in writing to abide by
and comply strictly with the rules and regulations of the City Jail.

The Warden of the City Jail of Manila is hereby ordered to release the Accused Gerry
Nery, Raul Billosos and Rolando Fernandez from the City Jail unless they are being
detained for another cause or charge.

The Petition for Bail of the Accused Rolando Fernandez has become moot and
academic. The Petition for Bail of the Accused Joel Tan, Romeo Sison and Joselito
Tamayo is denied for lack of merit.

The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega are
hereby cancelled.

On appeal, the Court of Appeals modified the decision of the trial court by acquitting Annie
Ferrer but increasing the penalty of the rest of the accused, except for Joselito Tamayo, to reclusion
perpetua. The appellate court found them guilty of murder qualified by abuse of superior strength,
but convicted Joselito Tamayo of homicide because the information against him did not allege the
said qualifying circumstance.

Appellants mainly claim that the Court of Appeals erred in sustaining the testimonies of the
two in prosecution eyewitnesses, Ranulfo Sumilang and Renato Banculo, because they are
unreliable, doubtful and do not deserve any credence. According to them, the testimonies of
these two witnesses are suspect because they surfaced only after a reward was announced
by General Lim. Renato Banculo even submitted three sworn statements to the police
geared at providing a new or improved version of the incident. On the witness stand, he
mistakenly identified a detention prisoner in another case as accused Rolando
Fernandez.   Ranulfo Sumilang was evasive and unresponsive prompting the trial court to
27

reprimand him several times.  28

There is no proof that Banculo or Sumilang testified because of the reward announced by General
Lim, much less that both or either of them ever received such reward from the government. On the
contrary, the evidence shows that Sumilang reported the incident to the police and submitted his
sworn statement immediately two hours after the mauling, even before announcement of any
reward.   He informed the police that he would cooperate with them and identify Salcedo's assailants
29

if he saw them again.  30

The fact that Banculo executed three sworn statements does not make them and his testimony
incredible. The sworn statements were made to identify more suspects who were apprehended
during the investigation of Salcedo's death. 31

The records show that Sumilang was admonished several times by the trial court on the witness
stand for being argumentative and evasive.   This is not enough reason to reject Sumilang's
32

testimony for he did not exhibit this undesirable conduct all throughout his testimony. On the whole,
his testimony was correctly given credence by the trial court despite his evasiveness at some
instances. Except for compelling reasons, we cannot disturb the way trial courts calibrate the
credence of witnesses considering their visual view of the demeanor of witnesses when on the
witness stand. As trial courts, they can best appreciate the verbal and non-verbal dimensions of a
witness' testimony.

Banculo's mistake in identifying another person as one of the accused does not make him an entirely
untrustworthy witness.   It does not make his whole testimony a falsity. An honest mistake is not
33

inconsistent with a truthful testimony. Perfect testimonies cannot be expected from persons with
imperfect senses. In the court's discretion, therefore, the testimony of a witness can be believed as
to some facts but disbelieved with respect to the others.  34

We sustain the appellate and trial courts' findings that the witnesses' testimonies corroborate each
other on all important and relevant details of the principal occurrence. Their positive identification of
all petitioners jibe with each other and their narration of the events are supported by the medical and
documentary evidence on record.

Dr. Roberto Garcia, the medico-legal officer of the National Bureau of Investigation, testified that the
victim had various wounds on his body which could have been inflicted by pressure from more than
one hard object.   The contusions and abrasions found could have been caused by punches, kicks
35

and blows from rough stones.   The fatal injury of intracranial hemorrhage was a result of fractures in
36

Salcedo's skull which may have been caused by contact with a hard and blunt object such as
fistblows, kicks and a blunt wooden instrument.  37

Appellants do not deny that Salcedo was mauled, kicked and punched. Sumilang in fact testified that
Salcedo was pummeled by his assailants with stones in their hands.

Appellants also contend that although the appellate court correctly disregarded Exhibits "D," "G," and
"P," it erroneously gave evidentiary weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W-
13."   Exhibit "O" is the Joint Affidavit of Pat. Flores and Pat. Bautista, the police intelligence-
39

operatives who witnessed the rally and subsequent dispersal operation. Pat. Flores properly
identified Exhibit "O" as his sworn statement and in fact gave testimony corroborating the contents
thereof.   Besides, the Joint Affidavit merely reiterates what the other prosecution witnesses testified
40

to. Identification by Pat. Bautista is a surplusage. If appellants wanted to impeach the said affidavit,
they should have placed Pat. Flores on the witness stand.

Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was being mauled at the
Luneta — starting from a grassy portion to the pavement at the Rizal Monument and along Roxas
Boulevard,   — as he was being chased by his assailants   and as he sat pleading with his
41 42

assailants.   Exhibits "W", "W-1" to "W-13" are photographs of Salcedo and the mauling published in
43

local newspapers and magazines such as the Philippine Star,   Mr. and Ms. Magazine,   Philippine
44 45
Daily Inquirer,   and the Malaya.   The admissibility of these photographs is being questioned by
46 47

appellants for lack of proper identification by the person or persons who took the same.

ISSUE: WNOT THE PHOTOGRAPHS IS ADMISSIBLE IN EVIDENCE

RULING: YES

The rule in this jurisdiction is that photographs, when presented in evidence, must be
identified by the photographer as to its production and testified as to the circumstances
under which they were produced. The value of this kind of evidence lies in its being a correct
representation or reproduction of the original, and its admissibility is determined by its
accuracy in portraying the scene at the time of the crime.

The photographer, however, is not the only witness who can identify the pictures he has
taken. The correctness of the photograph as a faithful representation of the object portrayed
can be proved prima facie, either by the testimony of the person who made it or by other
competent witnesses, after which the court can admit it subject to impeachment as to its
accuracy. Photographs, therefore, can be identified by the photographer or by any other
competent witness who can testify to its exactness and accuracy.

This court notes that when the prosecution offered the photographs as part of its evidence,
appellants, objected to their admissibility for lack of proper identification. However, when the
accused presented their evidence, Atty. Winlove Dumayas, counsel for accused Joselito Tamayo
and Gerry Neri used Exhibits "V", "V-1" to "V-48" to prove that his clients were not in any of the
pictures and therefore could not have participated in the mauling of the victim.

 The photographs were adopted by appellant Joselito Tamayo and accused Gerry Neri as part of the
defense exhibits. And at this hearing, Atty. Dumayas represented all the other accused per
understanding with their respective counsels, including Atty. Lazaro, who were absent. At
subsequent hearings, the prosecution used the photographs to cross-examine all the accused who
took the witness stand. No objection was made by counsel for any of the accused, not until
Atty. Lazaro appeared at the third hearing and interposed a continuing objection to their
admissibility.

The objection of Atty. Lazaro to the admissibility of the photographs is anchored on the fact that the
person who took the same was not presented to identify them. We rule that the use of these
photographs by some of the accused to show their alleged non-participation in the crime is an
admission of the exactness and accuracy thereof. That the photographs are faithful representations
of the mauling incident was affirmed when appellants Richard de los Santos, Nilo Pacadar and Joel
Tan identified themselves therein and gave reasons for their presence thereat

An analysis of the photographs vis-a-vis the accused's testimonies reveal that only three of the
appellants, namely, Richard de los Santos, Nilo Pacadar and Joel Tan could be readily seen in
various belligerent poses lunging or hovering behind or over the victim.   Appellant Romeo Sison
59

appears only once and he, although afflicted with hernia is shown merely running after the
victim.  Appellant Joselito Tamayo was not identified in any of the pictures. The absence of the two
60

appellants in the photographs does not exculpate them. The photographs did not capture the
entire sequence of the killing of Salcedo but only segments thereof. While the pictures did
not record Sison and Tamayo hitting Salcedo, they were unequivocally identified by
Sumilang and
Banculo Appellants' denials and alibis cannot overcome their eyeball identification.
61
IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows:

1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los
Santos are found GUILTY beyond reasonable doubt of Murder without any
aggravating or mitigating circumstance and are each hereby sentenced to suffer the
penalty of reclusion perpetua;

2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable doubt of

the crime of Homicide with the generic aggravating circumstance of abuse of
superior strength and, as a consequence, he is sentenced to an indeterminate
penalty of TWELVE (12) YEARS of prision mayor as minimum to TWENTY (20)
YEARS of reclusion temporal as maximum;

3. All accused-appellants are hereby ordered to pay jointly and severally the heirs of
Stephen Salcedo the following amounts:

(a) P74,000.00 as actual damages;

(b) P100,000.00 as moral damages; and

(c) P50,000.00 as indemnity for the death of the victim.

Costs against accused-appellants.

SO ORDERED.

4. G.R. No. 71464 August 4, 1988

THE PEOPLE OF THE PHILIPPINES, vs. ROMEO ESTREBELLA

FACTS:

As per result of the psychiatric and psychological examination conducted by Dr. Erlinda Marfil of the
National Bureau of Investigation (NBI) on the person of complainant Joy Alcala y Advincula, it was
established that said complainant is a mental retardate whose chronological age is thirteen but her
mental age is below that (only six or seven).

When Dr. Maximo Reyes, senior NBI medico-legal officer did a physical and genital examination on
the person of the complainant, a day after the alleged commission of the offense charged, he found
that the outer genitalia (i.e. labia majora and labia minora) showed healing abrasions on the
posterior aspect and the presence of bleeding. An internal examination showed congestion of the
posterior of the vestibular mucosa, meaning there was reddening and inflammation of that particular
portion. In ordinary parlance, such irritation in the genitalia of the complainant could be caused only
by the sex organ of a male in erection. Dr. Reyes concluded that the complainant could have had
sexual intercourse with a man on or about the alleged date of commission, however, there was no
complete penetration as the hymen was intact, and elastic.

Fernando Alcala, brother of the complainant, testified that Romeo Estrebella, is their neighbor. at
about 3:00 p.m., as he was about to take a bath, he saw the accused under the house of Crisanto
Cuevas sitting on a long bench with the zipper of his pants opened. He also saw the legs of a
woman around the waist of the accused with the latter making some movements. He did not readily
recognize who the woman was until he went to the faucet and saw accused stand up. Recognizing
the female partner of the accused as his mentally retarded sister, witness Fernando immediately
went to where accused was and boxed him.

His sister who was frightened ran away while the neighbors tried to pacify Fernando and Romeo
Estrebella. The latter was able to disengage himself from the former, but another brother of
complainant, named Armando, ran after Romeo Estrebella and was able to catch up with him. The
two brothers then brought the accused to the police precinct of Mandaluyong. Fernando's testimony
was corroborated by Wilfredo Davan, another witness for the prosecution.

Accused denied that he had sexual intercourse with complainant. Through his testimony as the sole
witness for the defense, accused alleged that while he was resting under the house of his godfather
on October 25, 1981 at around 3:00 o'clock in the afternoon, Joy Alcala suddenly arrived. He called
her and the latter sat on the bench where he was sitting. He told Joy Alcala to go to the house of his
sister to get his clothes as he was going home to Bulacan. However, she did not go at once because
she was asking money from him. While he and Joy were talking, her brother Fernando Alcala arrived
and suddenly hit him. He did not do anything because Fernando was drunk. When he was on his
way home, Fernando Alcala and his brother Armando, stopped him and then boxed him until he fell
down. He asked them why they hit him but they did not answer. He further averred that he used to
see Joy Alcala play with her private part by inserting her two fingers. In fact whenever he saw her
playing with herself he usually gave her a spanking.

Appellant's defense is denial of the offense charged. That he did not rape complainant is allegedly
supported by the findings of Dr. Maximo Reyes that there was no tear or laceration in her hymen. He
further argues that "(g)ranting arguendo but without admitting that rape is committed, there is
however, no evidence adduced that complainant was forced or intimidated by the accused", or that
the sexual intercourse was against her will and consent but that, it was mutually voluntary, as
gleaned from the testimonies of Fernando Alcala and Wilfredo Davan who testified to the effect that
they did not hear any word or conversation between the two (accused and complainant) while
performing the sexual act.

Appellant's arguments deserve no consideration.

Based on the medical and physical examination of the genital organ of complainant conducted by
Dr. Maximo Reyes, Joy Alcala had sexual intercourse with a man on October 25, 1981 due to the
presence of abrasion and congestion and bleeding in the genitalia, a physical condition
consistent with sexual intercourse. Physical evidence is of the highest order and speaks
more eloquently than all witnesses put together. Furthermore, such medical findings confirm
the testimonies of Femando Alcala and Wilfredo Davan that they saw accused Romeo
Estrebella having carnal knowledge with Joy Alcala on said date under the house of Crisanto
Cuevas.

The fact that the hymen was not lacerated does not negate rape. We have held that penetration by
entry of the lips of the female organ even without rapture of hymen suffices to warrant conviction for
rape.

It is established by the medical and phychological examination that complainant is a mental

retardate. Sexual intercourse with a woman who is deprived of reason or one who is weak in
intellect to the extent that she is incapable of giving rational consent to the carnal intercourse
constitutes rape. In this type of rape the employment of force or intimidation on the part of
the man and resistance on the part of the woman are not essential. In the instant case the
fact that complainant did not offer any resistance did not mean that she consented, for
clearly she could not comprehend the fun implications of the libidinous act. Surely, she
deserves the protection of the law.

In his second assignment of error, appellant insists that the trial court did not acquire jurisdiction to
try the case because the complaint was filed by complainant who was a minor and a mental
retardate contrary to the provisions of Rule 110, Secs. 4 and 5 of the Revised Rules of Court and
Art. 344 of the Revised Penal Code, the pertinent portions reading as follows:

Again, appellant's argument holds no water.

It is of course well-settled that jurisdiction over the subject matter of an action—in this case the crime
of rape—is and may be conferred only by law, and that jurisdiction over a given crime not vested by
law upon a particular court, may not be conferred thereon by the parties involved in the offense. But
the aforementioned provision of Art. 344 does not determine the jurisdiction of our courts over the
offenses therein enumerated. It could not affect said jurisdiction, because the same with respect to
the instant crime is governed by the Judiciary Act of 1948, not by the Revised Penal Code, which
deals primarily with the definition of crimes and the factors pertinent to the punishment of the
culprits. The complaint required in said Art. 344 is merely a condition precedent to the exercise by
the proper authorities of the power to prosecute the guilty parties. And such condition has been
imposed out of consideration for the offended woman and her family who might prefer to suffer the
outrage in silence rather than go through with the scandal of a public trial. (Samilin v. Court of First
Instance of Pangasinan, 57 Phil. 298, 304, cited in Valdepenas v. People, supra)

In the case at bar, while the complaint may have been technically in the sense that complainant was
incompetent, this defect has been cured when complainant's brother Fernando Alcala took the
witness stand for the prosecution. The brother's testimony shows the consent and willingness of the
family of complainant, who can not give her consent obviously, to have the private offense
committed against the latter publicly tried. Substantially, this is what is required by the rules.
Evidently, by undergoing trial, the family of complainant chose to denounce the injustice committed
against the latter in public and thus agreed to bear the personal effects of said exposure.
Undoubtedly, therefore, the trial court had jurisdiction to try the case.

WHEREFORE, premises considered, the guilt of the accused has been proved beyond reasonable
doubt. The assailed decision is hereby AFFIRMED. SO ORDERED.

5. G.R. No. 104383*      July 12, 2001

PEOPLE OF THE PHILIPPINES, vs. VALERIANO AMESTUZO y VIÑAS, FEDERICO AMPATIN y

SABUSAB, ALBINO BAGAS y DALUHATAN and DIASCORO VIÑAS y ODAL, accused.
ALBINO BAGAS y DALUHATAN, accused-appellant

In the present case, there being a doubt as to the guilt of accused-appellant, the
constitutional presumption of innocence stands and he must be acquitted.

FACTS:

At about 9:30 PM of February 22, 1991, a group of eight armed men wearing masks entered the
house of complainant Perlita delos Santos Lacsamana at Sacred Heart Village, Kalookan City and
robbed the said premises of valuables in the total amount of P728,000.00. In the course of the
robbery, two members of the gang raped Maria Fe Catanyag and Estrella Rolago, niece and
employee, respectively of complainant Lacsamana.
accused Albino Bagas, Valeriano Amestuzo, Federico Ampatin, Dioscoro Viñas and four other
accused, whose identities are unknown and who are still at large up to the present, were charged
with the complex crime of robbery in band with double rape under the following information:

On arraignment, all the accused including accused-appellant Albino Bagas pleaded "Not Guilty" to
the charge. Thereafter, trial ensued.

The facts as found by the trial court and as presented in the Solicitor General's Brief are as follows:

The incident happened at the compound of Block 5, Road 32, Phase II of the Sacred Heart
Village in Kalookan City. In the compound are the main house where Mrs. Perlita Lacsamana
resides and another house which serves as the office and quarters for Lacsamana's
employees. In between of these two houses is about three (3) meter-wide area where the
dirty kitchen and the garage are found. In the first floor of the main house is the master's
bedroom, and on the second floor is the guestroom

While at the master's bedroom on that particular evening at about 9:30 p.m., Lacsamana
overheard her maid, cried 'aray, aray, aray'. She immediately went out but as soon as she
opened the door of her room, two (2) men (one of them is accused Amestuzo while the other
one remains unarrested) poked their guns on her. At gun point, Lacsamana, Lea, Edwin, and
Belen were forcibly brought to the second floor of the main house. Thereat, Lacsamana saw
four (4) other male persons ransacking her premises. The said male persons, armed with
guns and knives, tied her including all her employees and members of her household with
the use of torn electric fan wire and television wire. After that they were told to lie down with
face against the floor but a minute later she was asked where the master's bedroom is and
when she answered that it is on the ground floor, she was again forcefully brought down. On
her way down, she saw, aside from the six (6) male persons who were inside her house, two
(2) other male persons (later identified as accused Ampatin and Viñas) outside the main
house but within the compound

Once they were already inside the master's bedroom, the six (6 ) armed male persons (two
(2) of them were Amestuzo and Bagas) ransacked the same and took all her monies,
jewelries, shoes, jackets, colored television and imported wine. Likewise, aforesaid accused
ate the foods found by them in their kitchen.

After ransacking the room, two (2) of the accused, one (1) of them is Amestuzo, brought
Estrella Rolago inside her room and afterwhich she was in turn brought to the guest
room. Thereat she heard Rolago pleading "Maawa kayo, maawa kayo" then after ten (10)
minutes, Rolago, with bloodstain on her shorts, was brought in back to the guest room.
Rolago was raped by Amestuzo

Almost simultaneously, Bagas likewise sexually assaulted and ravished Fe Catanyag.

Thereafter, Bagas shouted at her to stand up and although she was experiencing pain on
her private part which was bleeding at that time, she stood up, dressed up and proceeded to
the servants' quarter.

Thereafter, Mrs, Lacsamana shouted for help. Sensing that the accused had already left,
they locked the door. With the help of her employer and co-employees, more particularly
Nanding, she and Rolago were brought the nearby Neopolitan Clinic and from there they
proceeded to the St. Luke's Hospital where Dr. Brion treated Catanyag and Rolago

the trial court rendered judgment convicting all the accused.

From the judgment of conviction by the trial court, only accused-appellant Bagas appealed to
this Court. His appeal is based mainly on (1) the alleged deprivation of his constitutional right
to be represented by counsel during his identification, (2) the trial court's error in giving due
weight to the open court identification of him which was based on a suggestive and irregular
out-of-court identification, and (3) the trial court's improper rejection of his defense of alibi.

Accused maintains that from the time he was arrested until he was presented to the complainants for
identification, he was deprived of the benefit of counsel. He narrates the circumstances surrounding
his arrest and investigation as follows:

On February 26, 1991, four days after the alleged incident, a group of policemen together with
accused Federico Ampatin, who was then a suspect, went to the handicrafts factory in NIA Road,
Pasay City where accused-appellant was working as a stay-in shell cutter. They were looking for a
certain "Mario" and searched the first and second floors of the building. Failing to find said Mario, the
police hit Ampatin at the back of his neck with a gun and uttered, "Niloloko lang yata tayo ng taong
ito" and "Magturo ka ng tao kahit sino." It was at this juncture that Ampatin pointed to accused-
appellant Bagas as he was the first person Ampatin chanced to look upon.

Thereafter, he was arrested and made to board the police vehicle together with accused Ampatin.
While on board the jeep, accused Ampatin told him that he (Ampatin) committed an error in pointing
him out to the police, "namumukaan lang niya ako, napagkamalian lang niya ako." They were
brought to the Urduja Police Station in Kalookan City and placed under detention together with the
other two accused, Amestuzo and Viñas. When the complainants arrived, accused-appellant was
brought out, instructed to turn to the left and then to the right and he was asked to talk. Complainant
Lacsamana asked him if he knew accused Amestuzo and Viñas. Accused-appellant answered in the
negative. The policemen told the complainants that accused-appellant was one of the suspects. This
incited complainants to an emotional frenzy, kicking and hitting him. They only stopped when one of
the policemen intervened.5

Accused alleges that the trial court committed a serious error when it deprived him of his
constitutional right to be represented by a lawyer during his investigation. His singular presentation
to the complainants for identification without the benefit of counsel, accused-appellant avers, is a
flagrant violation of the constitutional prerogative to be assisted by counsel to which he was entitled
from the moment he was arrested by the police and placed on detention. He maintains that the
identification was a critical stage of prosecution at which he was as much entitled to the aid
of counsel as during the trial proper.

The contention is not meritorious. The guarantees of Sec. 12 (1), Art. III of the 1987 Constitution, or
the so-called Miranda rights, may be invoked only by a person while he is under custodial
investigation.

 Custodial investigation starts when the police investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular suspect taken into custody by the police who
starts the interrogation and propounds questions to the person to elicit incriminating
statements.7 Police line-up is not part of the custodial investigation; hence, the right to counsel
guaranteed by the Constitution cannot yet be invoked at this stage. 8 This was settled in the case
of People vs. Lamsing9 and in the more recent case of People vs. Salvatierra.10 The right to be
assisted by counsel attaches only during custodial investigation and cannot be claimed by the
accused during identification in a police line-up because it is not part of the custodial investigation
process. This is because during a police line-up, the process has not yet shifted from the
investigatory to the accusatory11 and it is usually the witness or the complainant who is interrogated
and who gives a statement in the course of the line-up. 12
Hence, herein accused-appellant could not yet invoke his right to counsel when he was presented
for identification by the complainants because the same was not yet part of the investigation
process. Moreover, there was no showing that during his identification by the complainants, the
police investigators sought to elicit any admission or confession from accused-appellant. In fact,
records show that the police did not at all talk to accused-appellant when he was presented before
the complainants. The alleged infringement of the constitutional rights of the accused while under
custodial investigation is relevant and material only to cases in which an extra-judicial admission or
confession extracted from the accused becomes the basis of his conviction. 13 In the present case,
there is no such confession or extra-judicial admission.

Accused-appellant also makes much ado about the manner in which he was presented to the
complainants for identification. It is alleged that the identification was irregular as he was not placed
in a police line-up and instead, made to stand before the complainants alone.

Again, the contention has no merit. As aptly pointed out by the Solicitor General, there is no law
requiring a police line-up as essential to a proper identification. 14 The fact that he was brought out of
the detention cell alone and was made to stand before the accused by himself and unaccompanied
by any other suspects or persons does not detract from the validity of the identification process.

However, we agree that complainants' out-of-court identification of accused-appellant was seriously

flawed as to preclude its admissibility. In resolving the admissibility and reliability of out-of-court
identifications, we have applied the totality of circumstances test enunciated in the case of People
vs. Teehankee15 which lists the following factors:

xxx (1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness'
degree of attention at that time; (3) the accuracy of any prior description given by the
witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the
length of time between the crime and the identification; and (6) the suggestiveness of the
identification process.

The out-of-court identification of herein accused-appellant by complainants in the police station

appears to have been improperly suggestive. Even before complainants had the opportunity to view
accused-appellant face-to-face when he was brought our of the detention cell to be presented to
them for identification, the police made an announcement that he was one of the suspects in the
crime and that he was the one pointed to by accused Ampatin as one of culprits. According to
accused-appellant -

Q:       When the complaining witnesses arrived at the Urduja precinct at that time you
mentioned, were you immediately kicked by them?

A:       No, sir.

Q:       How long a time from the time they arrived at the Urduja precinct to the time that you
were kicked by them?

A:       Around 10 minutes, sir.

Q:       And how were you identified or recognized by the complaining witnesses?

A:       Because upon arrival at the Urduja police station, the policemen announced that I am
one of the suspects in this case and thereafter, the complainants started kicking me, sir.
 Q:       So that the announcement of the policemen that you were one of the suspects came
first then they started kicking you?

A:       Yes, sir.16

It is, thus, clear that the identification was practically suggested by the police themselves
when they announced to the complainants that accused was the person pointed to by
Ampatin. The fact that this information came to the knowledge of the complainants prior to
their identification based on their own recall of the incident detracts from the spontaneity of
their subsequent identification and therefore, its objectivity.

In a similar case, People vs. Cruz,17 accused Cruz, a suspected co-conspirator in a case of robbery

with homicide, was presented to the witnesses alone and made to walk and turn around in their
presence. Then the police pointed out to the accused and several others as the persons suspected
by the police as the perpetrators of the robbery committed in Goso-on. The Court, in rejecting the
subsequent identification made by the witnesses, reasoned that:

The manner by which (witnesses) were made to identify the accused at the police station
was pointedly suggestive, generated confidence where there was none, activated visual
imagination, and all told, subverted their reliability as eyewitnesses.

In Tuason vs. Court of Appeals,18 an NBI agent first pointed the accused to the witnesses after which
the latter identified the accused. The Court held that such identification was doubtful as the same
was not spontaneous and independent as there was improper suggestion coming from the NBI
agent. We ruled that a "show-up" or the presentation of a single suspect to a witness for purposes of
identification is seriously flawed as it "constitutes the most grossly suggestive identification
procedure now or ever used by the police."

Likewise in People vs. Meneses,19 where the accused was presented to the lone witness as the
suspect in the crime inside the police investigator's office, the Court pronounced that although the
police officer did not literally point to the accused as in the Tuason case, the confrontation and the
identification proceeding therefrom was objectionable.

The Court also finds that the trial court erroneously rejected accused-appellant's alibi.

Accused clearly and positively testified that at the time of the crime, February 22, 1991, he
was working as a shell cutter in a factory in Pasay City where he was a stay-in employee. He
rendered overtime work until ten o'clock in the evening that night because they had to rush
work. After ten p.m., he, together with his stay-in co-workers, went to sleep. Four days later,
he was arrested when accused Ampatin randomly pointed him out to the police. 20

This testimony of accused-appellant was materially corroborated by two of his co-employees who
were with him on the night of the incident. Rodolfo Rosales, his co-worker, testified that he worked
overtime until 10 p.m. in the Pasay City factory together with accused-appellant. Upon finishing
work, they went to sleep in their quarters on the second floor of the building because they were stay-
in employees of the factory.21 Another co-worker of accused-appellant, Clemente Gahelan, was
similarly offered as a witness to corroborate Rosales' testimony and his testimony was duly admitted
by the prosecution.

The employer of accused-appellant Rolando Ocasla, likewise testified that on the night of the
incident, accused-appellant worked overtime in his factory until 10 p.m. After 10 p.m., he personally
locked the door of the premises which was the only means of ingress and engress, as he always
does because it was his means of preventing any pilferage of materials. He was the only one who
had keys to said door. Around five a.m. of the following day, he woke up accused-appellant and told
him to drink his coffee. He also declared that there was nothing unusual about accused-appellant's
behavior either, before, during or after the date of the alleged crime. 23

The defense of alibi or denial assumes significance or strength when it is amply corroborated
by a credible witness.24 And to be given weight, accused must prove not only that he was
somewhere else when the crime was committed but that he was so far away that it was
physically impossible for him to be present at the crime scene or its immediate vicinity at the
time of its commission.

In this case, we find accused-appellant's alibi sufficiently corroborated by the testimonies of his co-
workers and his employer who categorically stated that they were with accused-appellant on the
night of the crime. There was no evidence that these witnesses were related to accused-appellant;
neither was it shown that they had any personal interest nor motive in the case. As impartial credible
witnesses, their testimonies cannot be doubted absent a clear showing of undue bias or prejudice, or
convincing proof of the impropriety of their motives to testify for the accused. 26

Accused vehemently argues that it was physically impossible for him to have been present at the
scene of the crime or its immediate vicinity at the time of its commission. First, the crime was
committed around 9:30 in the evening of February 22, 1991. Accused-appellant, as well as two other
witnesses, testified that he worked in the factory until 10 p.m. that night and went to sleep after.
Second, there was only one door in the factory which was the only means of entrance and exit and
this door was kept locked by witness Ocasla after ten p.m. that night. Ocasla was the only person
who had a key to this door. Third, the windows on the first floor of the building consisted of hollow
blocks with small holes which do not allow passage. The second and third floor windows were 14
and 21 feet high, respectively. There was no possible means of exit through these windows without
accused-appellant getting hurt or injured. Lastly, the crime took place in Kalookan City around 9:30
p.m. while accused-appellant's place of work was in Pasay City. Assuming for the sake of argument
that he was able to leave the premises after 10 p.m. that night, by the time he reaches Kalookan, the
crime would have already been completed.

The Court has held that where an accused sets up alibi as a defense, the courts should not be too
readily disposed to dismiss the same, for, taken in the light of all the evidence on record, it may be
sufficient to reverse the outcome of the case as found by the trial court and thereby rightly set the
accused free.27 Though inherently weak as a defense, alibi in the present case has been sufficiently
established by corroborative testimonies of credible witnesses and by evidence of physical
impossibility of accused-appellant's presence at the scene of the crime. Alibi, therefore, should have
been properly appreciated in accused-appellant's favor.

Another significant evidence which the trial court failed to consider is the voluntary confession of
accused Federico Ampatin absolving accused-appellant Bagas of the crime. Ampatin's testimony
was clear and categorical:

Q:       When you reached that house where Bagas was working what happened?

A:       All the persons were ordered to lie down, sir.

xxx

Q:       And what did they do to you?

A:       Immediately I was instructed to follow the policemen who went upstairs, sir.

Q:       Why did that policemen go upstairs?

A:       He was looking for Mario, sir.

xxx

Q:       Upon reaching the second floor, what happened there?

A:       They did not see any person there, sir.

Q:       What followed next?

A:       P/O Melmida pistol-whipped me, sir.

Q:       Where were you hit?

A:       On the left portion of my neck, sir.

Q:       Did Melmida utter any remark while hitting you?

xxx

A:       He told me to point to somebody else, sir, saying these words, "Magturo ka ng tao
kahit sino."

xxx

Q:       So what did you do when you were ordered to point to anyone?

A:       Because at that time I cannot yet stand up he forced me to go downstairs, sir.

xxx

Q:       Were you able to reached (sic) the ground floor?

A:       Yes, sir.

Q:       And what happened there?

A:       I pointed to Albino Bagas, sir, because he was the only first person I saw there at the
ground floor while his companions were on the other side because I don't want to get hurt
anymore, Your Honor.

Court: When you see (sic) Bagas was lying face down at the time you pointed to him?

A:       Yes, your Honor.

 Court: You did not bother to look at his face?

A:       No more Your Honor because I was in a hurry to point to somebody because I was
afraid that I will be hurt again, Your Honor.

xxx

Court: You mean to say at the time you pointed to Albino Bagas you did not know him?

A:       No I don't know him, Your Honor.28

Ampatin and accused-appellant were charged as co-conspirators in the crime of robbery with
rape. As a co-accused, it would have been more consistent with human nature for Ampatin to
implicate accused-appellant if indeed he was one of the gang. In fact, the Court has
recognized that "as is usual with human nature, a culprit, confessing a crime is likely to put
the blame as far as possible on others rather than himself. 29 The fact that he testified to the
innocence of a co-accused, an act which resulted in no advantage or benefit to him and which might
in fact implicate him more, should have been received by the trial court as an indicum of the truth of
Ampatin's testimony and the innocence of herein accused-appellant. Ampatin's testimony,
therefore, should have been given weight by the trial court. More so, the same was
substantially corroborated by another witness, Rodolfo Rosales, accused-appellant's co-
worker and who was present when accused-appellant was arrested. Rosales testified as
follows:

Q:       Now, do you know when was Albino Bagas arrested in connection with this case?

A:       Last February 25, that was Monday, sir.

Q:       And where were you when he was arrested?

A:       I was there at that time.

xxx

Q:       xxx what was the reaction of Albino Bagas when he was being pointed to and arrested
by the arresting officers?

A:       The situation goes like this, sir, the policemen arrived there and they were holding the
persons of Ampatin and they were looking for a person named Mario that was what I heard,
sir, and then the policemen forced us to be identified or to be seen by the guide. Ampatin at
first at the ground floor but since there was nobody there by the name of Mario they
proceeded to the second floor and upon looking one of the policemen shouted, "Wala rito,
niloloko lang tayo ng taong ito."

Court: Then what happened next?

Witness: And I noticed that the reaction of Federico Ampatin that he was afraid, so, because
of fear he was able to point on the person of Albino Bagas but when asked he does not know
the name of Albino Bagas, Your Honor.
 Atty. Pacis: Before going to the second floor, because according to you the arresting officers
and the guide went to the second floor, was Albino Bagas at the ground floor seen by the
guide and the policemen?

A:       We were the first group of persons seen by the policemen and Albino and I were
beside each other, sir.

Q:       And you want to impressed (sic) upon this Honorable Court that at first at the ground
floor, Albino Bagas was not identified by this Ampatin before going to the second floor?

A:       The guide was not able to identify the person of Albino Bagas and that was the reason
why they still made searches at the second floor, sir.

Q:       How was Federico Ampatin able to identify Albino Bagas when he was accompanied
by the policemen went downstairs?

A:       I noticed from the reaction of Federico Ampatin that he was afraid after hearing the
shout of the policemen, sir.

xxx30

The testimony of witness Rosales corroborates Ampatin's declaration in court that he does not know
herein accused-appellant and merely pointed to him out of fear of the police. These testimonies
remain unrebutted by the prosecution as the arresting officers were not presented to refute or deny
the same. The foregoing testimonies exculpating accused-appellant have sufficiently cast at least a
shadow of doubt as to his guilt.

WHEREFORE, the decision of the trial court convicting accused-appellant Albino Bagas of the crime
of robbery with multiple rape is hereby REVERSED and he is ACQUITTED of the crime charged. His
immediate release is hereby ordered unless he is held for some other valid charges.

SO ORDERED. 1âwphi1.nêt

6. G.R. No. 181545              October 8, 2008

THE PEOPLE OF THE PHILIPPINES, vs. MARK DELA CRUZ, 

FACTS:

in the evening of 16 July 2003, a male informant came to the office of the Northern Police District on
Tanigue Street, Kaunlaran Village, Caloocan City. In the presence of (PO3 Velasco) and (PO2
Amoyo), the informant complained about the rampant selling of shabu by a certain Mac-Mac. Said
information was relayed to P/Chief Inspector Rafael Santiago who immediately instructed PO3
Velasco to form a buy-bust team. The team was composed of PO3 Velasco, PO2 Amoyo, PO3 Joel
Borda (PO3 Borda), PO2 Loreto Lagmay, PO1 Renato Ameng, PO1 Allan Reyes and PO1 Joel
Cosme. PO2 Amoyo was the designated poseur-buyer. Two (2) pieces of ₱100.00 bills were
prepared as boodle money. The initials "ECA" were placed on the bills.

The buy-bust team underwent a briefing and then proceeded to the target area on board two (2)
separate vehicles. They arrived at a parking lot along Hipon Liit in Dagat-dagatan at 7:30 p.m. PO2
Amoyo, PO3 Velasco and PO3 Borda, along with the informant, waited beside a coconut tree for
Mac-Mac.

After two hours, appellant arrived with two male companions. The informant approached appellant
and introduced PO2 Amoyo to him as a buyer of ₱200.00 worth of shabu. Appellant left for a while to
get the shabu from his companions, who were standing 7 meters away from the group. He returned
ten (10) minutes later and handed two (2) plastic sachets to PO2 Amoyo, who, in exchange, handed
over the boodle money.

After the exchange, PO2 Amoyo raised his left hand to signal the other members of the buy-bust
team that the transaction had already been concluded. PO3 Velasco and PO3 Borda immediately
arrested appellant while PO2 Amoyo ran after appellant’s companions. There was an exchange of
gunfire between PO2 Amoyo and an unidentified companion but the latter was able to escape
unscathed. PO2 Amoyo kept the two (2) plastic sachets in his pocket.

A spot investigation was conducted on appellant. It was revealed that the two (2) male companions
were identified as Amay and Tabo. Appellant was then brought to the police headquarters. PO2
Amoyo placed his markings "ECA-BB-1" and "ECA-BB-2" on the plastic sachets before turning them
over, together with the buy-bust money, to SPO4 Jorge Tabayag. PO2 Amoyo also prepared a
request for laboratory examination addressed to the Philippine National Police (PNP) Crime
Laboratory.

The two (2) plastic sachets containing white crystalline substance were found positive
for shabu. Said finding was indicated in Physical Science Report No. D-845-03 5 prepared by
Forensic Chemist and Police Inspector of the PNP Crime Laboratory Group.

Appellant presented a different version of the facts. He testified that at 8:30 p.m. on 16 July 2003, he
was sitting in the plaza located on Hipon Liit St., Dagat-dagatan, Caloocan City. He was waiting for
his brother to deliver his boots when the policemen arrived and were looking for an alias Amay.
Appellant then heard a gunshot and saw Amay firing the shot. Appellant ran towards his house.
Later, the policemen went to his house and handcuffed him. When appellant asked why he was
being arrested, the policemen claimed that appellant knew Amay. Appellant denied
selling shabu and asserted that the case was filed against him when he refused to give information
about Amay.

Appellant’s testimony was corroborated by his brother, Balweg Dela la Cruz, who stated in court that
appellant instructed him to get his boots and bring them to the plaza at around 8:30 p.m. 6 As he was
about to leave the house, Balweg saw his brother being arrested by two policemen. He heard from
other people that the policemen were asking appellant if he knew of a man named Amay. 7

In finding appellant guilty, the trial court ruled that there was a meeting of minds between the poseur-
buyer and appellant as to the delivery of shabu in exchange for ₱200.00.

the Court of Appeals rendered judgment affirming the RTC's decision. The appellate court gave
weight to the testimony of the poseur-buyer as well as to the Physical Science Report in concluding
that the illegal sale of shabu was perpetrated by appellant. The appellate court rejected appellant’s
defense of frame-up for failure to substantiate such allegation and in light of the presumption of
regularity accorded to police officers in the performance of their official duties. Anent the alleged
failure of the police officers to observe the procedure laid down under Section 21 of R. A. No. 9165,
the appellate court held that such failure is not fatal as the circumstances in the instant case show
that the integrity pertaining to the custody of the seized shabu was not compromised notwithstanding
that the same were marked only during the investigation held at the police station. 11
After obtaining an unfavorable decision, appellant filed a notice of appeal before this Court. 12

Appellant maintains that the prosecution was not able to establish the moral certainty required by
law to prove his guilt beyond reasonable doubt. He contends that his defenses of alibi and denial
were supported not only by his testimony but by that of other witnesses. He questions the identity of
the shabu allegedly confiscated from him as the marking was made only in the police station in front
of the investigating officer, contrary to the requirement laid down in Section 21 (1) of RA No. 9165.
He also assails the forensic laboratory examination result in that it was not covered by a
certification in violation of Section 21 (3) of the same law. He stresses that the prosecution
must not simply rely on the presumption of regularity for it cannot by itself support a
judgment of conviction.15

In its appellee’s brief,16 the Office of the Solicitor-General (OSG) supports the conviction of appellant.
It argues that appellant was caught in flagrante delicto selling shabu in a legitimate buy-bust
operation. It claims that the elements necessary in the prosecution of the illegal sale of drugs were
duly established by the prosecution, namely: the appellant, as seller of the shabu, and the poseur-
buyer were identified; and the shabu confiscated from appellant and the money used to buy it were
also presented in court. The OSG emphasizes that the sachets of shabu presented in court were the
same sachets confiscated from appellant and subjected to laboratory examination. It justifies the
non-observance of Section 21 (1) of R. A. No. 9165 since the corpus delicti of the illegal sale of
drugs was duly established during trial. It adds that after the confiscation of the sachets
of shabu from appellant, they were immediately submitted for laboratory examination to the PNP
Crime Laboratory.17

The appeal is meritorious.

The elements necessary for the prosecution of illegal sale of drugs are:

(1) the identities of the buyer and the seller, the object, and consideration; and

(2) the delivery of the thing sold and the payment therefor. What is material to the
prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale
actually took place, coupled with the presentation in court of evidence of corpus delicti.18

The common issue that crops out of a buy-bust operation, like in this case, is whether the drug
submitted for laboratory examination and presented in court was actually recovered from appellant.
The Court is cognizant of the fact that an entrapment operation is open to possibilities of abuse. It is
by this same thrust that the chain of custody rule was adopted by the Court. In Lopez v. People,19 we
had the occasion to expound on the chain of custody rule, thus:

As a method of authenticating evidence, the chain of custody rule requires that the admission of an
exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link in the chain, from the moment
the item was picked up to the time it is offered into evidence, in such a way that every person who
touched the exhibit would describe how and from whom it was received, where it was and what
happened to it while in the witness’ possession, the condition in which it was received and the
condition in which it was delivered to the next link in the chain. These witnesses would then describe
the precautions taken to ensure that there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the same.

While testimony about a perfect chain is not always the standard because it is almost always
impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the
item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time
of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same
standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination
and even substitution and exchange. In other words, the exhibit’s level of susceptibility to fungibility,
alteration or tampering—without regard to whether the same is advertent or otherwise not—dictates
the level of strictness in the application of the chain of custody rule.

Indeed, the likelihood of tampering, loss or mistake with respect to an exhibit is greatest when the
exhibit is small and is one that has physical characteristics fungible in nature and similar in form to
substances familiar to people in their daily lives. Graham v. State positively acknowledged this
danger. In that case where a substance later analyzed as heroin—was handled by two police
officers prior to examination who however did not testify in court on the condition and whereabouts
of the exhibit at the time it was in their possession—was excluded from the prosecution evidence,
the court pointing out that the white powder seized could have been indeed heroin or it could have
been sugar or baking powder. It ruled that unless the state can show by records or testimony, the
continuous whereabouts of the exhibit at least between the time it came into the possession of police
officers until it was tested in the laboratory to determine its composition, testimony of the state as to
the laboratory’s findings is inadmissible.

A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they
are subject to scientific analysis to determine their composition and nature. The Court cannot
reluctantly close its eyes to the likelihood, or at least the possibility, that at any of the links in the
chain of custody over the same there could have been tampering, alteration or substitution of
substances from other cases—by accident or otherwise—in which similar evidence was seized or in
which similar evidence was submitted for laboratory testing. Hence, in authenticating the same, a
standard more stringent than that applied to cases involving objects which are readily identifiable
must be applied, a more exacting standard that entails a chain of custody of the item with sufficient
completeness if only to render it improbable that the original item has either been exchanged with
another or been contaminated or tampered with.

Thus, the corpus delicti should be identified with unwavering exactitude. 20

This Court believes that the prosecution failed to clearly establish the chain of custody of the
seized plastic sachets containing shabu from the time they were first allegedly received until
they were brought to the police investigator.

PO2 Amoyo testified that he failed to place any marking on the sachets of shabu immediately after
the apprehension of appellant. In fact, PO3 Amoyo admitted that he only placed his markings upon
being ordered by SPO4 Tabayag. 21

The defense however failed to corroborate PO2 Amoyo’s claim. While SPO4 Tabayag was
presented in court, he neglected to mention nor was he asked about the markings on the shabu. On
the contrary, the sworn statement of PO2 Amoyo, which was formally offered in evidence, seemed to
suggest that markings were made prior to the submission of the shabu to SPO4 Tabayag, to wit:

T: Maipapakita mo ba yong sinasabi mong pinaghihinalaang Shabu na nabili mo dito kay Mark Dela
Cruz, alyas Mac Mac?

S: Opo. Ito po. [Affiant presented two (2) pieces of small transparent plastic sachets (heat-sealed)
containing a crystalline substance believed to be Shabu] at ang plastic po nito ay aking minarkahan
ng aking inisyal na "ECA-BB1" at "ECA-BB2]."
Verily, PO2 Amoyo’s testimony suggests that he already placed his markings prior to being
questioned by SPO4 Tabayag.

Moreover, no other witness was presented to testify or to fill the gap from the time SPO4 Tabayag
received the sachets of shabu from PO2 Amoyo up to the time they were delivered to the PNP
Crime Laboratory.

Furthermore, nothing on record shows that the procedural requirements of Section 21, Paragraph 1
of Article II of R. A. No. 916523 with respect to custody and disposition of confiscated drugs were
complied with. There was no physical inventory and photograph of the items allegedly confiscated
from appellant. Neither did the police officers offer any explanation for their failure to observe the
rule. The prosecution merely sought refuge in its belief that a stringent application of the rule may be
dispensed with if the corpus delicti has been duly established.

In People v. Orteza,24 the Court citing People v. Laxa,25 People v. Kimura26 and Zarraga v.

People,27 reiterated the ruling that the failure of the police to comply with the procedure in the
custody of the seized drugs raises doubt as to its origins. 28

In People v. Nazareno,29 the poseur-buyer failed to immediately place his markings on the seized
drugs before turning them over to the police investigators. The police officer who placed his
markings was not presented to testify on what actually transpired after the drugs were turned over to
him. The Court equated these circumstances as failure on the part of the prosecution to prove the
existence of the corpus delicti.30

As stated by the Court in People v. Santos, Jr.,31 failure to observe the proper procedure also
negates the operation of the presumption of regularity accorded to police officers. 32 As a general
rule, the testimony of the police officers who apprehended the accused is usually accorded full faith
and credit because of the presumption that they have performed their duties regularly. 33 However,
when the performance of their duties is tainted with irregularities, such presumption is effectively
destroyed.

While the law enforcers enjoy the presumption of regularity in the performance of their
duties, this presumption cannot prevail over the constitutional right of the accused to be
presumed innocent and it cannot by itself constitute proof of guilt beyond reasonable
doubt.34 The presumption of regularity is merely just that—a mere presumption disputable by
contrary proof and which when challenged by the evidence cannot be regarded as binding
truth. 35

In fine, the failure to establish the corpus delicti is detrimental to the cause of the
prosecution. The Court is thus constrained to acquit appellant on reasonable doubt.

WHEREFORE, the assailed Decision of the Court of Appeals dated 12 September 2007 affirming
the judgment of conviction of the Regional Trial Court of Caloocan City, Branch 120
is REVERSED and SET ASIDE. Appellant MARK DELA CRUZ y BATAC is ACQUITTED on
reasonable doubt and is accordingly ordered immediately released from custody unless he is being
lawfully held for another offense.

The Director of the Bureau of Corrections is ORDERED to implement this decision forthwith and to
INFORM this Court, within five (5) days from receipt hereof, of the date appellant was actually
released from confinement.
Agency for proper guidance and implementation. No costs.

SO ORDERED.

ADMISSIONS and CONFESSIONS

G.R. No. 169431             April 3, 2007

[Formerly G.R. Nos. 149891-92]

PEOPLE OF THE PHILIPPINES, vs. JERRY RAPEZA y FRANCISCO, 

, an unidentified woman went to the Culion Municipal Station and reported a killing that had taken
place in Sitio Cawa-Cawa, Barangay Osmeña, Culion, Palawan. 9 The officer-in-charge, SPO2
Ciriaco Gapas, sent to the victims’ house which was the scene of the crime an investigating team led
by SPO2 Crisanto Cuizon, Jr. and PO2 Isidro Macatangay. There they saw two bloodied bodies, that
of a woman lying on the floor of the sala and that of a man inside the bedroom. The investigating
team wrapped the bodies in blankets and loaded them in a banca to be brought to the morgue. 10 The
victims were later identified as Priscilla Libas and Cesar Ganzon.

The Autopsy Report show that the common cause of death of both victims was hypovolemic shock
secondary to massive bleeding secondary to multiple stab wounds and that both bodies were in the
early stages of decomposition. The medico-legal officer testified that Ganzon sustained six (6)
wounds on different parts of his body while Libas bore sixteen (16) wounds. 12 All the wounds of the
victims were fatal and possibly caused by a sharp instrument.

Upon information supplied by a certain Mr. Dela Cruz that appellant had wanted to confess to the
crimes, SPO2 Gapas set out to look for appellant. 13 He found appellant fishing in Asinan Island and
invited the latter for questioning. Appellant expressed his willingness to make a confession in the
presence of a lawyer.14 Appellant was then brought to the police station after which SPO2 Gapas
requested Kagawad Arnel Alcantara to provide appellant with a lawyer. The following day, appellant
was brought to the house of Atty. Roberto Reyes, the only available lawyer in the municipality. 15 The
typewriter at the police station was out of order at that time and Atty. Reyes could not go to the
police station as he was suffering from rheumatism. 16 At the house of Atty. Reyes, in the presence of
Vice-Mayor Emiliano Marasigan of Culion, two (2) officials of the Sangguniang Barangay, SPO2
Cuizon and an interpreter, SPO2 Gapas proceeded with the custodial investigation of appellant who
was assisted by Atty. Reyes. Appellant was expressly advised that he was being investigated for the
death of Libas and Ganzon.

Per the Sinumpaang Salaysay17 that appellant executed, he was informed of his constitutional rights
in the following manner:

xxxx

Tanong: Bago kita kunan ng isang salaysay, ikaw ay mayroong karapatan sa ating Saligang Batas
na sumusunod:

a) Na, ikaw ay maaaring hindi sumagot sa tanong na sa iyong akala ay makaka-apekto sa

iyong pagkatao;
 b) Na, ikaw ay may karapatang pumili ng isang manananggol o abogado na iyong sariling
pili;

c) Na, kung ikaw ay walang kakayahan kumuha ng isang ab[u]gado ang Pulisya ang siyang
magbibigay sa iyo.

d) Na, ang lahat na iyong sasabihin ay maaaring gawing ebidensya pabor o laban sa iyo.

Sagot: Opo, sir.

Tanong: Nakahanda ka na bang ipag-patuloy ang pagsisiyasat na ito, na ang ating gagamiting salita
ay salitang Tagalog, na siyang ginagamit nating [sic]?

Sagot: Opo, sir.

x x x18

Thereupon, when asked about the subsequent events, appellant made the following narration:

xxx

Tanong: Maari mo bang isalaysay ang pang-yayari [sic]?

Sagot: Opo, [n]oong Sabado ng umaga alas 8:00[,] petsa 21 ng Oktobre, 1995, kami ni Mike ay
nagkaroon ng pag-iinuman sa kanilang bahay sa Cawa-Cawa at sinabi sa akin [sic] puntahan
naming iyong matanda, dahil may galit daw si Mike sa dalawang matanda [Pris]cilla Libas at Cesar
Ganzon) na nakatira din sa Cawa-Cawa at ang layo ay humigit-kumulang isang daang metro sa
aming pinag-iinuman at kami ay nakaubos ng labing dalawang bote ng beer, mula umaga hanggang
alas kuatro ng hapon at habang kami ay nag-iinom aming pinag-uusapan [sic] ang pagpatay sa
dalawang matanda. Noong sinasabi sa akin ni Mike, ako umayaw ngunit ako ay pinilit at sinabihan
ko rin siya (Mike) at pinag-tatapon [sic] pa niya ang bote ng beer at may sinabi pa si Mike "hindi ka
pala marunong tumulong sa akin, pamangkin mo pa naman ako." At ang sagot ko sa kanya, ay
maghintay ka, mamayang hapon natin[g] puntahan. At noong humigit-kumulang [sa alas] [sic] kuatro
ng hapon, amin ng pinuntahan ang bahay ng mag-asawa, at pagdating namin sa bahay na dala
naming [sic] ang patalim, tuloy-tuloy na kaming umakyat, at hinawakan ni Mike ang babae (Presing)
at nilaslas na ang leeg at sinaksak ng sinaksak niya sa iba’t ibang parte ng katawan at ako ay
umakyat din sa bahay at nakita kong nakataob ang lalaki (Cesar)[,] aking hinawakan [sic] ko sa
kanyang balikat, at siya ay nakaalam [sic] na mayroong tao sa kanyang likuran, akin nang sinaksak
sa kaliwang tagiliran [sic] ng kanyang katawan, at hindi ko na alam ang sumunod na pang-yayari
[sic] dahil ako[’]y tuliro. At kami ay umalis at tumalon sa likod ng kusina, nang alam na naming [sic]
na patay [na] iyong dalawang matanda.

x x x x19

An interpreter was provided appellant as he was not well versed in Tagalog being a native of Samar.
As he is illiterate, appellant affixed only his thumbmark on the statement above his printed name.
Bonifacio Abad, the interpreter, and Atty. Reyes, as the assisting counsel, also signed the statement.
Atty. Reyes signed again as the notary public who notarized the statement.

Thereafter, a complaint for multiple murder was filed against appellant, and Regino was likewise
arrested. Judge Jacinto Manalo of the Municipal Trial Court (MTC) of Culion conducted a preliminary
investigation. Finding probable cause only as against appellant, Regino was ordered released. 20 The
Provincial Prosecutor, however, reversed the finding of the MTC by including Regino in the
Informations, but by then the latter had already left Culion. 21

Testifying in his defense, appellant presented a different story during the trial. The defense
presented no other witness.

Appellant testified that he did not know the victims and that he had nothing to do with their deaths.
He was a native of Samar and he did not know how to read or write as he never attended
school.22 He arrived in Culion as a fisherman for the Parabal Fishing Boat. 23 As his contract had
already expired, he stayed in Culion to look for work. He lived with Regino as the latter was his only
friend in Cawa-Cawa.24 Regino’s house was about 40 meters away from the victims’ house.

Several days after appellant’s arrival, the killings took place. Appellant, along with Regino and
another man named Benny Macabili, was asked by a police officer to help load the bodies of the
victims in a banca. Shortly thereafter, appellant was arrested and brought to the municipal hall where
he was mauled by PO2 Macatangay and placed in a small cell. 25 Regino, too, was arrested with him.
While under detention, appellant told the police that it was Regino who was responsible for the killing
of the victims but the police did not believe appellant. But appellant later testified that he implicated
Regino only in retaliation upon learning that the latter pointed to him as the perpetrator. 26 Appellant
was then asked by SPO2 Gapas to sign a document so that he will be released. When appellant
replied that he did not know how to sign his name, SPO2 Gapas took appellant’s thumb, dipped it in
ink and marked it on the document. 27 Appellant claimed he did not resist because he was afraid of
being mauled again.

Appellant further denied going to the house of Atty. Reyes or meeting Abad, the alleged interpreter.
He never left the jail from the time he was arrested except to attend the hearing before the
MTC.28 When appellant was brought to the MTC, nobody talked to him during the hearing nor did
counsel assist him.29 He was thereafter brought by a police officer to a hut in a mountain where he
was told to go a little bit farther. He refused for fear of being shot. The police officer then got angry
and punched him in the stomach.30

On the basis of appellant’s extrajudicial confession, the RTC found him guilty of both crimes. The
Court of Appeals upheld the trial court.

Appellant submits for our resolution two issues, namely: (1) whether his guilt was proven beyond
reasonable doubt; and (2) whether the qualifying circumstance of evident premeditation was likewise
proven beyond reasonable doubt.

Appellant mainly contends that the extrajudicial confession upon which the trial court placed heavy
emphasis to find him guilty suffers from constitutional infirmity as it was extracted in violation of the
due process guidelines. Specifically, he claims that he affixed his thumbmark through violence and
intimidation. He stresses that he was not informed of his rights during the time of his detention when
he was already considered a suspect as the police had already received information of his alleged
involvement in the crimes. Neither did a competent and independent counsel assist him from the
time he was detained until trial began. Assuming Atty. Reyes was indeed designated as counsel to
assist appellant for purposes of the custodial investigation, said lawyer, however, was not appellant’s
personal choice.

Appellant likewise maintains that although the Sinumpaang Salaysay states that his rights were read
to him, there was no showing that his rights were explained to him in a way that an uneducated
person like him could understand. On the assumption that the confession is admissible, appellant
asserts that the qualifying circumstance of evident premeditation was not amply proven as the trial
court merely relied on his alleged confession without presenting any other proof that the
determination to commit the crime was the result of meditation, calculation, reflection or persistent
attempt.

The Solicitor General, on the other hand, contends that the constitutional guidelines on custodial
investigation were observed. Hence, appellant’s Sinumpaang Salaysay is admissible. Even if
appellant was not informed of his constitutional rights at the time of his alleged detention, that would
not be relevant, the government counsel argues, since custodial investigation began only when the
investigators started to elicit information from him which took place at the time he was brought to the
house of Atty. Reyes. Moreover, appellant did not interpose any objection to having Atty. Reyes as
his counsel. As to the qualifying circumstance of evident premeditation, the Solicitor General submits
that the same was sufficiently proven when accused proceeded to the victims’ house together with
Regino, armed with bladed weapons, in order to consummate their criminal design. He further
argues that appellant’s defense of denial and his lame excuse of being illiterate must be rejected in
the face of a valid voluntary extrajudicial confession.

The fundamental issue in this case is whether appellant’s extrajudicial confession is admissible in
evidence to warrant the verdict of guilt.

There is no direct evidence of appellant’s guilt except for the alleged confession and the corpus
delicti. Upon careful examination of the alleged confession and the testimony of the witnesses, we
hold that the alleged confession is inadmissible and must perforce be discarded.

A confession is admissible in evidence if it is satisfactorily shown to have been obtained within the
limits imposed by the 1987 Constitution. 31 Sec. 12, Art. III thereof states in part, to wit:

SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to
be informed of his right to remain silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation or any other means which vitiate the free
will shall be used against him. Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.

xxxx

Republic Act No. 7438,32 approved on 15 May 1992, has reinforced the constitutional mandate
protecting the rights of persons under custodial investigation. The pertinent provisions read:

SEC. 2. Rights of Persons Arrested, Detained or under Custodial Investigation; Duties of Public
Officers.—

a. Any person arrested, detained or under custodial investigation shall at all times be
assisted by counsel.
 b. Any public officer or employee, or anyone acting under his order or his place, who arrests,
detains or investigates any person for the commission of an offense shall inform the latter, in
a language known to and understood by him, of his rights to remain silent and to have
competent and independent counsel, preferably of his own choice, who shall at all times be
allowed to confer private with the person arrested, detained or under custodial investigation.
If such person cannot afford the services of his own counsel, he must be provided by with a
competent and independent counsel.

xxxx

f. As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a
person who is investigated in connection with an offense he is suspected to have committed, without
prejudice to the liability of the "inviting" officer for any violation of law.

If the extrajudicial confession satisfies these constitutional standards, it must further be tested for
voluntariness, that is, if it was given freely by the confessant without any form of coercion or
inducement,33 since, to repeat, Sec. 12(2), Art. III of the Constitution explicitly provides:

(2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall
be used against him. Secret detention places, solitary, incommunicado, or other similar forms of
detention are prohibited.

Thus, the Court has consistently held that an extrajudicial confession, to be admissible, must
conform to the following requisites: 1) the confession must be voluntary; 2) the confession must be
made with the assistance of a competent and independent counsel, preferably of the confessant’s
choice; 3) the confession must be express; and 4) the confession must be in writing. 34

If all the foregoing requisites are met, the confession constitutes evidence of a high order because it
is presumed that no person of normal mind will knowingly and deliberately confess to a crime unless
prompted by truth and conscience. 35 Otherwise, it is disregarded in accordance with the cold
objectivity of the exclusionary rule. 36 The latter situation obtains in the instant case for several
reasons.

Appellant was not informed of his constitutional rights in custodial investigation.

A person under custodial investigation essentially has the right to remain silent and to have
competent and independent counsel preferably of his own choice and the Constitution requires that
he be informed of such rights. The raison d' etre for this requirement was amply explained in People
v. Ayson37 where this Court held, to wit:

xxxx

In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in
police custody, "in-custody interrogation" being regarded as the commencement of an adversary
proceeding against the suspect.

He must be warned prior to any questioning that he has the right to remain silent, that anything he
says can be used against him in a court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so
desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation.
After such warnings have been given, such opportunity afforded him, the individual may knowingly
and intelligently waive these rights and agree to answer or make a statement. But unless and until
such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained
as a result of interrogation can be used against him.

The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated

atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights."

The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody
interrogation of accused persons." And, as this Court has already stated, by custodial interrogation is
meant "questioning initiated by law enforcement officers after a person has been taken into custody
or otherwise deprived of his freedom of action in any significant way." The situation contemplated
has also been more precisely described by this Court.

x x x After a person is arrested and his custodial investigation begins[,] a confrontation arises which
at best may be termed unequal. The detainee is brought to an army camp or police headquarters
and there questioned and "cross-examined" not only by one but as many investigators as may be
necessary to break down his morale. He finds himself in strange and unfamiliar surroundings, and
every person he meets he considers hostile to him. The investigators are well-trained and seasoned
in their work. They employ all the methods and means that experience and study have taught them
to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and
are not aware of their constitutional rights. And even if they were, the intimidating and coercive
presence of the officers of the law in such an atmosphere overwhelms them into silence. Section 20
of the Bill of Rights seeks to remedy this imbalance.

x x x x38

We note that appellant did not voluntarily surrender to the police but was "invited" by SPO2 Gapas to
the police station. There he was detained from 11 o’clock in the morning of 22 October 1995 up to
the morning of 23 October 1995 before his extrajudicial statement was allegedly taken. At this
juncture, appellant should have been informed of his constitutional rights as he was already
considered a suspect, contrary to the finding of the trial court that the mandatory constitutional
guidelines only attached when the investigators started to propound questions to appellant on 23
October 1995 in the house of Atty. Reyes.39 In People v. Dueñas, Jr.,40 we ruled, to wit:

Custodial investigation refers to the critical pre-trial stage when the investigation ceases to be a
general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect.
According to PO3 Palmero, right after appellant’s arrest, the latter already insinuated to him that he
would confess his participation in the killing. As he testified on cross-examination:

Q On December 18, 1996, when you arrested him what did he actually told [sic] you?

A Before we put him in jail at the Baler Police Station he told us that he has [sic] to reveal something
about the death of Elvira Jacob.

Q So you already know [sic] that on December 18, 1996 that whatever Catalino Duenas will reveal to
you will give you lead in solving the investigation in connection with the death of Elvira Jacob, isn’t
it?

A Yes, sir.

Q So, you still waited until December 23, 1996 for that revelation, isn’t it?
A Yes, sir. That’s all, your honor. 41

In the case at bar, SPO2 Gapas testified:

Q By the way, when you conducted the investigation in the house of Atty. Reyes in Culion, why was
Jerry Rapeza there?

A I invited Jerry Rapeza and upon my invitation he voluntarily came to me.

Q In the first place, why did you invite him?

A To ask [a] question about the crime committed in the Island of Cawa-Cawa.

xxx

Q That was the only reason why you invited him, being a transient in that place you made him a
suspect?

A In the first place[,] Your Honor, he was not a suspect but 2 days after the commission of the crime
a certain person came to me and said that Jerry Rapeza requested that he will give his confession
but in front of a lawyer, so he said: "Puntahan nating [sic] ang isang taong nagngangalang Jerry
Rapeza."

xxx

Q And based on your experienced [sic], would it not be quite strange that a person who committed a
crime would voluntarily give confession because ordinarily a criminals [sic] will find a way to escape?

A Yes, sir. [B]ut at that time the person who assisted me strongly believed that Jerry Rapeza would
confess so I did not make any "tanong-tanong" in order to solve that crime so I proceeded to that
place and talked to the suspect.

Q So you already considered Jerry Rapeza as a suspect?

A When that person informed me that Jerry Rapeza would like to confess.

x x x x [Emphasis ours.]42

Already being held as a suspect as early as 21 October 1995, accused should have been informed
of his constitutional rights. SPO2 Gapas admitted that appellant was not so informed, thus:

Q What was he doing?

A He was fishing, sir.

Q And you told him that you’re going to arrest him?

A He did not refuse to go with me, sir.

xxxx
Q From the Island you brought him to the station?

A Yes, sir.

Q And there you arrived at the station at around 11:00 o’clock in the morning?

A Yes, sir.

Q And then you started to conduct the investigation as Investigator of the Police Station?

A Yes, sir.

xxxx

Q And what was the[,] result of your investigation?

A According to him he would confess and he would give his confession in the presence of a lawyer
so I talked to Kgd. Arnel Alcantara.

x x x x43

Q On October 22, 1995[,] when you brought him to the Police Station, did you start the investigation
at that time?

A Not yet sir, I only talked to him.

Q When did you start the investigation?

A I started the investigation when Jerry Rapeza was in front of his lawyer.

Q When was that?

A October 23, 1995[,] noon time, sir.

Q From the Island you just talked to him?

A Yes, sir.

Q You did not consider that as part of the investigation?

A Yes sir, my purpose at that time was to certain (sic) the suspect of the said crime.

xxxx

Q Please answer my question[,] Mr. Witness, on October 22, 1995, did you inform him of his
constitutional rights?

A No sir, I did not.

Even supposing that the custodial investigation started only on 23 October 1995, a review of the
records reveals that the taking of appellant’s confession was flawed nonetheless.

It is stated in the alleged confession that prior to questioning SPO2 Gapas had informed appellant in
Tagalog of his right to remain silent, that any statement he made could be used in evidence for or
against him, that he has a right to counsel of his own choice, and that if he cannot afford the services
of one, the police shall provide one for him. 45 However, there is no showing that appellant had
actually understood his rights. He was not even informed that he may waive such rights only in
writing and in the presence of counsel.

In order to comply with the constitutional mandates, there should likewise be meaningful
communication to and understanding of his rights by the appellant, as opposed to a routine,
peremptory and meaningless recital thereof.46 Since comprehension is the objective, the degree of
explanation required will necessarily depend on the education, intelligence, and other relevant
personal circumstances of the person undergoing investigation. 47

In this case, it was established that at the time of the investigation appellant was illiterate and was
not well versed in Tagalog.48 This fact should engender a higher degree of scrutiny in determining
whether he understood his rights as allegedly communicated to him, as well as the contents of his
alleged confession.

The prosecution underscores the presence of an interpreter in the person of Abad to buttress its
claim that appellant was informed of his rights in the dialect known to him. However, the presence of
an interpreter during the interrogation was not sufficiently established. Although the confession bears
the signature of Abad, it is uncertain whether he was indeed present to assist appellant in making
the alleged confession.

For one thing, SPO2 Cuizon did not mention Abad as one of the persons present during the
interrogation. He testified:

Q Who were present during that investigation?

A Vice Mayor Marasigan and the two other SB members.

Q Can you identify who are these two SB members?

A SB Mabiran and SB Alcantara.

Q Who else?

A No more, sir.

Q So, there were two SB members, Vice Mayor Atty. Reyes, Gapas and you?

A Yes, sir.

x x x x49

For another, the prosecution did not present Abad as witness. Abad would have been in the best
position to prove that he indeed made the translation from Tagalog to Waray for appellant to
understand what was going on. This significant circumstance lends credence to appellant’s claim
that he had never met Abad.

According to the appellate court, appellant admitted in his Brief that the confession was made in the
presence of an interpreter. The passage in appellant’s Brief on which the admission imputed to him
was based reads, thus:

The extra-judicial confession was allegedly made in Tagalog when accused-appellant is admittedly
not well versed in said language. Even if the confession was made in the presence of an interpreter,
there is no showing that the rights of a person under investigation were effectively explained and/or
interpreted to accused-appellant. The interpreter was not even presented in Court to prove that said
rights were translated in a language understood by accused-appellant. 50

Clearly, the imputation is erroneous. Throughout his Brief, appellant disputes the allegation that he
ever met the interpreter much less made the confession with the latter’s assistance. The evident
import of the passage is that on the assumption that there was an interpreter present still there was
no indication that the rights of a person under investigation were effectively imparted to appellant, as
the interpreter could not translate that which was not even said in the course of the proceeding.

Moreover, SPO2 Gapas testified on direct examination:

Q As a way of refreshing your mind[,] Mr. Witness, can you take a look at this statement [referring to
appellant’s Sinumpaang Salaysay] those appearing on page 1 of the same up to the word "Opo sir,"
kindly take a look at this, do you remember that you were the one who profounded (sic) this (sic)
questions?

A Yes, sir, I was the one who profounded [sic] that [sic] questions.

Q And you are very definite that the answer is in [the] affirmative, in your question and answer?

A I am not very sure, sir.

Q You are not very sure because he has a lawyer?

A Yes, sir.

x x x x51

SPO2 Gapas could not say for certain if appellant had indeed understood his rights precisely
because he did not explain them to appellant. In any event, SPO2 Gapas would be incompetent to
testify thereon because appellant’s alleged confession was made through an interpreter as he did
not understand Tagalog. SPO2 Gapas’ testimony as regards the contents of appellant’s confession
would in fact be hearsay. In U.S. v. Chu Chio,52 this Court rendered inadmissible the extrajudicial
confession of the accused therein because it was not made immediately to the officer who testified,
but through an interpreter. Thus, the officer as witness on the stand did not swear of his own
knowledge as to what the accused had said. Similarly in this case, SPO2 Gapas’s testimony as to
what was translated to appellant and the latter’s responses thereto were not of his personal
knowledge. Therefore, without the testimony of Abad, it cannot be said with certainty that appellant
was informed of his rights and that he understood them.
Not having been properly informed of his rights prior to questioning and not having waived them
either, the alleged confession of appellant is inadmissible.

Confession was not made with the assistance of competent and independent counsel of appellant’s
choice.

Appellant denies that he was ever assisted by a lawyer from the moment he was arrested until
before he was arraigned. On the other hand, the prosecution admits that appellant was provided with
counsel only when he was questioned at the house of Atty. Reyes to which appellant was allegedly
taken from the police station.

SPO2 Gapas testified that he "talked" to appellant when they got to the police station at 11 o’clock in
the morning of 22 October 1995 and the result of their "talk" was that appellant would give his
confession in the presence of a lawyer. Appellant was then held in the police station overnight before
he was allegedly taken to the house of Atty. Reyes.

The constitutional requirement obviously had not been observed. Settled is the rule that the moment
a police officer tries to elicit admissions or confessions or even plain information from a suspect, the
latter should, at that juncture, be assisted by counsel, unless he waives this right in writing and in the
presence of counsel.53 Appellant did not make any such waiver.

Assuming that Atty. Reyes did assist appellant, still there would be grave doubts as to his
competence and independence as appellant’s counsel for purposes of the custodial investigation.
The meaning of "competent counsel" and the standards therefor were explained in People v.
Deniega54 as follows:

The lawyer called to be present during such investigations should be as far as reasonably possible,
the choice of the individual undergoing questioning. If the lawyer were one furnished in the
accused’s behalf, it is important that he should be competent and independent, i.e., that he is willing
to fully safeguard the constitutional rights of the accused, as distinguished from one who would be
merely be giving a routine, peremptory and meaningless recital of the individual’s constitutional
rights. In People v. Basay, this Court stressed that an accused’s right to be informed of the right to
remain silent and to counsel "contemplates the transmission of meaningful information rather than
just the ceremonial and perfunctory recitation of an abstract constitutional principle."

Ideally therefore, a lawyer engaged for an individual facing custodial investigation (if the latter could
not afford one) "should be engaged by the accused (himself), or by the latter’s relative or person
authorized by him to engage an attorney or by the court, upon proper petition of the accused or
person authorized by the accused to file such petition." Lawyers engaged by the police, whatever
testimonials are given as proof of their probity and supposed independence, are generally suspect,
as in many areas, the relationship between lawyers and law enforcement authorities can be
symbiotic.

x x x The competent or independent lawyer so engaged should be present from the beginning to
end, i.e., at all stages of the interview, counseling or advising caution reasonably at every turn
of the investigation, and stopping the interrogation once in a while either to give advice to the
accused that he may either continue, choose to remain silent or terminate the interview.

The standards of "competent counsel" were not met in this case given the deficiencies of the
evidence for the prosecution. Although Atty. Reyes signed the confession as appellant’s counsel and
he himself notarized the statement, there is no evidence on how he assisted appellant. The
confession itself and the testimonies of SPO2 Gapas and SPO2 Cuizon bear no indication that Atty.
Reyes had explained to appellant his constitutional rights. Atty. Reyes was not even presented in
court to testify thereon whether on direct examination or on rebuttal. It appears that his participation
in the proceeding was confined to the notarization of appellant’s confession. Such participation is not
the kind of legal assistance that should be accorded to appellant in legal contemplation.

Furthermore, Atty. Reyes was not appellant’s counsel of choice but was picked out by the police
officers allegedly through the barangay officials. Appellant’s failure to interpose any objection to
having Atty. Reyes as his counsel cannot be taken as consent under the prevailing circumstances.
As discussed earlier, appellant was not properly informed of his rights, including the right to a
counsel preferably of his own choice. SPO2 Gapas testified thus:

xxxx

Q Now Mr. Witness, you will agree with me that the accused[,] when he allegedly gave his voluntary
confession[,] he [sic] did not read the document when he made his thumbmark?

A He did not because according to him he is illiterate.

Q Illiterate because he only placed his thumbmark and you have all the freedom to manipulate him
and in fact he doesn’t know that he is entitled to have a lawyer of his own choice?

A He doesn’t know.

x x x x56

Strikingly, while it was made to appear in the alleged confession that appellant was informed of his
right to a counsel of his own choice and that if he cannot afford the services of one, the police shall
provide him with one, it was overlooked that it was not similarly made to appear in the same
statement that appellant was advised that he had the option to reject the counsel provided for him by
the police authorities.57

Set against the clear provisions of the Constitution and the elucidations thereof in jurisprudence, the
foregoing lapses on the part of the police authorities preclude the admissibility of appellant’s alleged
confession.

Confession is not voluntary.

It is settled that a confession is presumed voluntary until the contrary is proved and the confessant
bears the burden of proving the contrary.58 The trial court found that appellant’s bare denials failed to
overcome this presumption. However, several factors constrain us to hold that the confession was
not given under conditions that conduce to its admissibility.

First, the confession contains facts and details which appear to have been supplied by the
investigators themselves.

The voluntariness of a confession may be inferred from its language such that if, upon its face, the
confession exhibits no suspicious circumstances tending to cast doubt upon its integrity, it being
replete with details—which could only be supplied by the accused–reflecting spontaneity and
coherence, it may be considered voluntary.59 The trial court applied this rule but without basis. On
closer examination of the evidence, the key details in the alleged confession were provided not by
appellant but by the police officers themselves.
The prosecution failed to establish the actual date of the killings. This is disturbing, to say the least.

The trial court found that the killings were reported to the police at four o’clock in the afternoon of 21
October 1995. That when the investigating team arrived at the scene of the crime, the bodies of the
victims were already rank and decomposing, 60 and that two days after the crimes were committed,
SPO2 Gapas had set out to look for appellant following information from a certain Mr. Dela Cruz that
appellant would like to confess to the crimes.

Indeed, SPO2 Gapas testified that he received a report of the killings on 21 October 1995 and sent a
team to investigate the incident. On direct examination, he declared that two days after the
commission of the crime, he received information that appellant would give his confession in front of
a lawyer.61 However, on cross-examination, he stated that it was on the following day or on 22
October 1995 when he found appellant and invited him to the police station and that appellant’s
custodial investigation had taken place on 23 October 1995.

Likewise, SPO2 Cuizon’s testimony is far from enlightening. He testified, thus:

xxxx

Q Now, on October 24, 1995, where were you?

A I was in Culion Police Station.

Q While you were there in the Police Station, what happened?

A A woman reported to us regarding this incident.62

xxxx

Q When was the investigation conducted?

A October 24, 1995.

Q On the same day that you discover [sic] the cadavers?

A The investigation was conducted on October 25, 1995.

The actual date of the commission of the crimes is material in assessing the credibility of the
prosecution witnesses and of the admissibility of the alleged confession.

While the prosecution insists through the recitals of the Informations and the testimony of its
witnesses that the killings took place on 21 October 1995, the totality of its evidence shows
otherwise, i.e. the killings took place earlier. When the bodies were discovered on 21 October 1995,
they were already decomposing, a factor that indicates that the victims had been dead long before
then. How then could appellant have killed the victims at 4 o’clock in the afternoon of 21 October
1995 as expressly stated in the confession, when that was the same date and time when the bodies
were discovered? Had appellant voluntarily confessed and had he really been the killer, he would
have given the correct date and time when he committed the horrid acts. The only sensible way to
sort out the puzzle is to conclude that the police officers themselves supplied 21 October 1995 and
four o’clock in the afternoon as the date and time of the killings in appellant’s statement, a barefaced
lie on which the prosecution based its allegations in the Informations and which SPO2 Gapas
repeated on the witness stand.

Moreover, the police officers went to the house of the victims on 21 October 1995 where they found
the bodies. The autopsy on the victims’s bodies was done the following day or on 22 October 1995
while appellant’s statement was allegedly taken on 23 October 1995. By then, the investigators knew
how and where the victims were killed, circumstances that could have enabled them to fill up the
details of the crime in the extrajudicial confession. 64

Curiously, the autopsy report on Ganzon’s body shows that he sustained six (6) stab wounds, four
(4) on the right side of his body and two (2) on the left side. Yet, it is stated in appellant’s
extrajudicial confession that he stabbed Ganzon on his left side. Quite oddly, SPO2 Cuizon testified
that Ganzon was wounded on the left arm only. His full account on this aspect runs, thus:

Q Where did you go?

A I immediately proceeded to the house of the victim.

Q What did you find out when you went to the house of the victim?

A I have seen blood on the ground floor of the house.

Q When you opened the house[,] you are [sic] with Macatangay?

A Yes, sir[.] I was with POII Macatangay but he was a little bit far from the victim and I was the one
who opened the door and went upstairs.

Q What did you find out inside the house?

A I have seen a woman lying down with her hands "nakadipa" on the ground and blooded (sic).

xxxx

Q Where else did you go when you were already inside the house?

A I went to the other bedroom.

Q And what did you find out?

A An old man with his face facing downward.

Q The woman already dead was in the sala?

A Yes, sir.

x x x x65

Q Do you know in what bedroom (sic) of her body she was wounded?

A The neck was slashed and both arms and both foot (sic) were wounded.
Q How about the man?

A Left arm, sir.

Q Where else?

A No more, sir.

The prosecution’s evidence likewise fails to establish when the custodial investigation had taken
place and for how long appellant had been in detention. Strangely, the confession is undated and it
cannot be ascertained from it when appellant made the confession or affixed his thumbmark
thereon. What emerges only is the bare fact that it was notarized by Atty. Reyes on 23 October
1995. One can only speculate as to the reason behind what seems to be a lack of forthrightness on
the part of the police officers.

These unexplained inconsistencies cast doubt on the integrity and voluntariness of appellant’s
alleged confession.

Second, again appellant was not assisted by counsel.

To reiterate, the purpose of providing counsel to a person under custodial investigation is to curb the
police-state practice of extracting a confession that leads appellant to make self-incriminating
statements.67 And in the event the accused desires to give a confession, it is the duty of his counsel
to ensure that the accused understands the legal import of his act and that it is a product of his own
free choice.

It bears repeating that appellant was held in the police station overnight before he was allegedly
taken to the house of Atty. Reyes. He was not informed of his rights and there is no evidence that he
was assisted by counsel. Thus, the possibility of appellant having been subjected to trickery and
intimidation at the hands of the police authorities, as he claims, cannot be entirely discounted.

Confession was not sufficiently corroborated.

Courts are slow to accept extrajudicial confessions when they are subsequently disputed unless they
are corroborated.68 There must be such corroboration so that when considered in connection with the
confession, it will show the guilt of accused beyond a reasonable doubt. 69

As a general rule, a confession must be corroborated by those to whom the witness who testified
thereto refers as having been present at the time the confession was made 70 or by any other
evidence.71

The inconsistencies in the testimonies of the police officers as well as any lingering doubt as to the
credibility of appellant’s statement could have been laid to rest by the testimonies of Atty. Reyes, of
Abad, and of those allegedly present during the custodial investigation. However, they were not
presented in court.

Abad’s testimony was likewise crucial in proving that appellant had understood every part of his
alleged confession. Confessions made in a language or dialect not known to the confessant must
also be corroborated by independent evidence. 72 As appellant is unschooled and was not familiar
with the Tagalog dialect, his confession which was in Tagalog necessarily had to be read and
translated to Waray allegedly by Abad. This Court has held that "such a multiple process of reading
and translating the questions and translating and typing the answers and reading and translating
again the said answers is naturally pregnant with possibilities of human, if unintentional,
inadequacies and incompleteness which render the said confession unsafe as basis of conviction for
a capital offense, unless sufficiently corroborated." 73 A confession may be admissible if it is shown to
have been read and translated to the accused by the person taking down the statement and that the
accused fully understood every part of it.74 To repeat, we cannot accept SPO2 Gapas’ testimony as
regards the contents of appellant’s alleged confession for being hearsay evidence thereon. Since
appellant allegedly made the confession to SPO2 Gapas through Abad, Abad’s testimony is thus
indispensable in order to make the confession admissible. 1a\^/phi1.net

Consequently, the non-production of these material witnesses raises a doubt which must be
resolved in favor of appellant75 and the confession should be disregarded as evidence. 76 Verily, we
are left with the unconvincing testimony of two police officers against whose abuse of authority the
Constitution protects the appellant. As their respective testimonies are sated with inconsistencies
and hearsay evidence, we find the same insufficient bases to hold appellant’s extrajudicial
confession admissible against him.

The only other prosecution evidence under consideration are the autopsy reports with which the
alleged confession supposedly dovetails, as the trial court concluded. However, a perusal of the
alleged confession would reveal that does not fit the details in the autopsy report. As discussed
earlier, Ganzon was found to have sustained six (6) stab wounds on different parts of his body while
appellant allegedly admitted stabbing him on his left side only. The confession does not even state
how many times appellant stabbed the old man. SPO2 Cuizon testified that he saw only one stab
wound on Ganzon’s body and it was on the latter’s left arm. Thus, it is not with the autopsy reports
that the alleged confession dovetails but rather with what the police authorities would like us to
believe as the truth.

Nevertheless, since the confession is inadmissible, it becomes irrelevant whether it dovetails with
the autopsy reports. The corroboration that medico-legal findings lend to an extrajudicial confession
becomes relevant only when the latter is considered admissible. In People v. De la Cruz,77 we held,
to wit:

It is significant that, with the exception of appellant’s putative extrajudicial confession, no other
evidence of his alleged guilt has been presented by the People. The proposition that the medical
findings jibe with the narration of appellant as to how he allegedly committed the crimes falls into the
fatal error of figuratively putting the horse before the cart. Precisely, the validity and admissibility of
the supposed extrajudicial confession are in question and the contents thereof are denied and of
serious dubiety, hence the same cannot be used as the basis for such a finding. Otherwise, it would
assume that which has still to be proved, a situation of petitio principii or circulo en probando.78

No motive could be ascribed to appellant.

For the purpose of meeting the requirement of proof beyond reasonable doubt, motive is essential
for conviction when there is doubt as to the identity of the perpetrator. 79 In view of the inadmissibility
of the confession, there is no other evidence that directly points to appellant as the culprit. However,
the prosecution failed to show any motive on appellant’s part to commit the felonies. Appellant
consistently denied having known the victims. Although the confession states that Regino allegedly
sought appellant’s help in killing the victims as Regino was his nephew, the fact of their relationship
was denied by appellant and was never established by the prosecution. In People v. Aguilar, 80 we
held that "the absence of apparent motive to commit the offense charged would, upon principles of
logic, create a presumption of the innocence of the accused, since, in terms of logic, an action
without a motive would be an effect without a cause." 81
Furthermore, appellant’s conduct after the killings was not that of a guilty person. He never
attempted to flee even if he knew that the police authorities were already investigating the incident
as he was summoned to help load the bodies in a banca. Being a transient in the place, he could
have easily disappeared and left the island but he remained there to continue looking for work.

Taken together, these circumstances generate serious doubts that must be resolved in appellant’s
favor, congruently with the constitutional presumption of innocence.

In view of the inadmissibility of appellant’s confession, which is the sole evidence of the prosecution
against him, the resolution of the issue of whether the qualifying circumstance of evident
premeditation had attended the commission of the crimes has become academic. Indeed, there
exists no other prosecution evidence on which appellant’s guilt beyond reasonable doubt may be
based.

In conclusion, the overriding consideration in criminal cases is not whether appellant is completely
innocent, but rather whether the quantum of evidence necessary to prove his guilt was sufficiently
met. With the exclusion of appellant’s alleged confession, we are left with no other recourse but to
acquit him of the offenses charged for the constitutional right to be presumed innocent until proven
guilty can be overcome only by proof beyond reasonable doubt. In fact, unless the prosecution
discharges the burden of proving the guilt of the accused beyond reasonable doubt, the latter need
not even offer evidence in his behalf. 82

WHEREFORE, the Decisions of the Regional Trial Court, Branch 52, Palawan, Puerto Princesa City
in Criminal Case Nos. 13064 and 13202 and the Court of Appeals in CA-G.R. CR-H.C. No. 00642
are REVERSED and SET ASIDE. Appellant Jerry Rapeza y Francisco is hereby ACQUITTED for
insufficiency of evidence leading to reasonable doubt. The Director of the Bureau of Prisons is
ordered to cause the immediate release of appellant from confinement, unless he is being held for
some other lawful cause, and to report to this Court compliance herewith within five (5) days from
receipt hereof.

SO ORDERED.

2. G.R. No. 144293             December 4, 2002

JOSUE R. LADIANA, vs.PEOPLE OF THE PHILIPPINES, respondent.

The Constitution bars the admission in evidence of any statement extracted by the police
from the accused without the assistance of competent and independent counsel during a
custodial investigation. However, a counter-affidavit voluntarily presented by the accused
during the preliminary investigation, even if made without the assistance of counsel, may be
used as evidence against the affiant.

The Facts

"The prosecution presented five (5) witnesses, namely: Caridad M. San Juan, PO2 Leopoldo
Cacalda, Dr. Rogelio M. Javan, SPO2 Percival A. Gabinete, and Maria T. Cortez. Their respective
testimonies, in essence are as follows, to wit:

"1. CARIDAD MARGALLO SAN JUAN (hereinafter, ‘Caridad’) declared that she is the wife of
Francisco San Juan (hereinafter ‘Francisco’), the victim in the case at bar. Caridad testified
that Francisco was the Barangay Captain of Barangay Salac, Lumban, Laguna, until he was
shot and killed by accused Ladiana, who happens to be also a distant relative of the
decedent.

"Caridad recounted that, on December 29, 1989, she was in her house when an
unidentified woman came and told her that her husband was killed by accused
Ladiana. She immediately called up her sister-in-law before rushing to Jacinto Street
where the gruesome incident allegedly transpired. Thereat, many people were milling
around, and Caridad saw the lifeless body of Francisco lying in the middle of the road
and being examined by [SPO2] Percival A. Gabinete.

"Caridad recalled that it was around 11:00 o’clock a.m. when she reached the place
of the subject incident. At that point in time, she was not even allowed by the police
to touch, much less get near to, the cadaver of Francisco. Caridad, expectedly, was
crying and one of her aunts advised her to go home.

"Caridad maintained that she was aware that her husband was killed by accused
Ladiana because this was what the woman actually told her. Moreover, accused
Ladiana had given himself up to the police authorities.

"Caridad went on to narrate that, on December 30, 1989, she was at the police
station, where she gave her written statement before police investigator PFC Virgilio
Halili (hereinafter, ‘Halili’).

"Additionally, Caridad presented the Death Certificate of her husband and testified
that he was eventually buried at the Lumban Cemetery. She declared that she had
incurred about Twenty Thousand Pesos (P20,000.00) for the funeral, burial and other
incidental expenses by reason of the death of Francisco.

"On cross-examination, Caridad testified that, on December 29, 1989, she was in her
house and that she did not hear any gunshot between 10:30 and 11:00 o’clock a.m.
Caridad also admitted she did not witness the killing of her husband.

"On questions propounded by the Court, Caridad narrated that her husband suffered
two gunshot wounds - one on the upper right temple and the other on the left cheek.
However, Caridad stated that she was told that the wounds were the entry and the
exit points. She also told the Court that her husband was wearing short pants at the
time of his death and that she found some bruises on his knees.

"Finally, Caridad recalled that, on the date of the incident, her husband was with his
close friend, a certain Rodolfo Cabrera, and some other persons, and that they went
to Jacinto Street to repair the steel humps which were used to block the street during
school days for the protection and safety of the school children.

"2. PO2 LEOPOLDO DE RAMOS CACALDA, JR. (hereinafter, ‘CACALDA’) declared that he
is a policeman assigned at the Lumban Police Station in Lumban, Laguna. He has been
designated as the radio operator of the station since 1989.

"Cacalda recounted that, on December 29, 1989, at around 11:00 o’clock a.m.,
somebody, whose name he could no longer recall, reported to him about an existing
trouble along Jacinto Street in Barangay Salac Cacalda responded by going to the
scene, where he was accompanied by Alberto Mercado, a member of the CAGFIL.
 Thereat, Cacalda saw the lifeless body of Francisco lying face up on the road.
Cacalda did not examine the body of Francisco. He left the place of the incident
when [SPO2] Percival A. Gabinete and other policemen subsequently arrived.

"Cacalda had gathered from the people milling around the body of Francisco that it
was accused Ladiana who shot and killed Francisco. Cacalda immediately left to look
for accused Ladiana. However, he eventually saw accused Ladiana already inside
the jail of the police station and thereafter learned that said accused had surrendered
to the police authority.

"Cacalda recalled that he was later on investigated by Halili because he was the
responding policeman who went to the scene of the incident. Consequently, Cacalda
executed a written statement in relation to the subject incident.

"On cross-examination, Cacalda testified that he was a radio operator and not an
investigator of the police station. He also testified that he did not witness the incident
subject matter of the case at bar.

"Cacalda went on to testify that the people milling around the place of the incident
told him that accused Ladiana had already left. Because of this development,
Cacalda proceeded to accused Ladiana’a house but was told that he had already
gone to the police station. Cacalda accordingly went to the police station where he
saw accused Ladiana already locked inside the jail. He also saw a stab wound on
accused Ladiana’s right bicep but he did not anymore ask him how he sustained the
said injury.

"3. DR. ROGELIO JAVAN y MAGRACIA (hereinafter, ‘Javan’) declared that he is a physician
and the Municipal Health Officer of Lumban, Laguna.

"Javan recounted that he was the one who performed the necropsy on the cadaver
of Francisco and that he had prepared the corresponding reports and/or documents
relating thereto. Javan made a sketch representing the anterior and posterior views
of the body of Francisco, and labeled and placed red markings on the gunshot
wounds found on the said cadaver. The marking ‘Gunshot wound A’ is the point of
entry, which is one (1) centimeter in diameter and situated two (2) inches behind the
left ear. The marking ‘Gunshot wound B’ is the point of exit of ‘Gunshot wound A’,
which is two (2) centimeters in diameter and found above the right cheekbone and
one (1) inch below the right eye. Javan also testified that there is another gunshot
wound and the point of entry and exit are labeled as ‘Gunshot wound C’ and
‘Gunshot wound D’, respectively. ‘Gunshot wound D’ is one and one-half (1-1/2)
centimeters in diameter and located at the left cheek, three and one-half (3-1/2)
centimeters below the left eye, while ‘Gunshot wound C’ is one (1) centimeter in
diameter and found at the right lateral aspect of the neck, at the level of the adam’s
apple.

"According to Javan, the assailant must be behind the victim when he inflicted
‘Gunshot wound A’. As regards ‘Gunshot wound C’, the assailant likewise must be
behind the victim, at a distance of more than twenty-four (24) inches away.

"Lastly, Javan testified that he was not able to retrieve any bullet during the
examination. However, judging from the size of the wound and the point of entry,
Javan opined that the firearm used was probably a caliber 38.
 "On questions propounded by the Court, Javan testified that ‘Gunshot wound A’
could have been fired first because the trajectory is on the same level so much so
that the assailant and the victim could have been both standing. Javan inferred that
‘Gunshot wound C’ could have been inflicted while the victim was already falling
down. Javan then stressed that both wounds are fatal in nature.

"4. SPO2 PERCIVAL AMBROSIO GABINETE (hereinafter, ‘Gabinete’) declared that he is a

police officer and a resident of No. 4055 Villa Josefina Subdivision, Sta. Cruz, Laguna.

"The testimony of Gabinete was subsequently dispensed with, upon the admission of
the defense that he was part of the group of policemen who proceeded to the place
of the subject incident and that he found the body of Francisco lying along the road.
Additionally, the defense admitted the existence of the receipt issued by Funeraria de
Mesa dated January 3, 1990 in the sum of Six Thousand Five Hundred Pesos
(P6,500.00).

"5. MARIO TALAVERA CORTEZ (hereinafter, ‘Cortez’) declared that he is a retired Assistant
Prosecutor of Laguna.

"Prior to the conduct of the examination-in-chief on Cortez, the defense counsel

made an admission as to the authorship, authenticity, and voluntariness of the
execution of the counter-affidavit of accused Ladiana, which was subscribed and
sworn to before Cortez. In said counter-affidavit, accused Ladiana allegedly admitted
to making the fatal shots on Francisco. However, accused Ladiana allegedly did so in
self-defense as Francisco was then purportedly attacking accused Ladiana and had,
in fact, already inflicted a stab wound on the arm of accused Ladiana.

"However, Cortez emphasized that he was not the one who conducted the
preliminary investigation of the complaint which led to the filing of the subject case.
Additionally, Cortez testified that he would not be able to anymore recognize the face
of the affiant in the said counter-affidavit, but maintained that there was a person who
appeared and identified himself as Josue Ladiana before he affixed his signature on
the counter-affidavit.

"After the presentation of Cortez, the prosecution filed its formal offer of evidence
and rested its case.

"On May 31, 1995, this Court issued a resolution admitting all the documentary
evidence submitted by the prosecution.

"On August 20, 1996, accused Ladiana filed a Motion for Leave of Court to File
Demurrer to Evidence dated August 16, 1995, claiming that: (i) a review of the
documentary and testimonial evidence adduced by the prosecution allegedly failed to
show that the accused is guilty of the offense charged; (ii) at best, the evidence
submitted by the prosecution are allegedly hearsay in character, considering that the
supposed eyewitness in the person of Rodolfo Cabrera was never presented in
court; and (iii) the prosecution was allegedly merely able to prove the fact of death of
the victim, but not the identity of the person who caused said death.

"On August 23, 1996, this Court issued an Order of even date holding that the filing
of a demurrer to evidence is no longer appropriate considering that accused Ladiana
 received a copy of this Court’s resolution dated May 31, 1995 on the admission of
the prosecution’s documentary exhibits as early as May 25, 1995.

"On September 2, 1996, in view of his perception that the evidence submitted by the
prosecution is allegedly inadequate to sustain a conviction, accused Ladiana,
through counsel, waived his right to present controverting evidence. Instead, he
asked for time to file a written memorandum. Thus, both parties were given time
within which to do so, after which the case shall be deemed submitted for resolution.

"Thereafter, this Court received on October 25, 1996 by mail the Memorandum for
the defense. As for the prosecution, it opted not to file any.

Ruling of the Sandiganbayan

The Sandiganbayan ruled that the prosecution had been able to establish the guilt of petitioner
beyond reasonable doubt. The court a quo held that his Counter-Affidavit, 11 in which he had admitted
to having fired the fatal shots that caused the victim’s death, 12 may be used as evidence against him.
It underscored the admission made by the defense as to the authorship, the authenticity and the
voluntariness of the execution of the Counter-Affidavit. 13 In short, it ruled that the document had
sufficiently established his responsibility for the death of the victim. However, it found no evidence of
treachery; thus, it convicted him of homicide only.14

Issues

whether the Counter-Affidavit he executed during the preliminary investigation of this case is
admissible proof showing his complicity in the crime,

Court’s Ruling

The Petition is not meritorious.

Admissibility of Counter-Affidavit

Undeniably, the resolution of this case hinges mainly on the admissibility of the Counter-
Affidavit17 submitted by petitioner during the preliminary investigation. He argues that no counsel was
present when the Affidavit was executed. In support of his argument, he cites the Constitution thus:

"SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to
be informed of his right to remain silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of counsel.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him."18

It is well-settled that the foregoing legal formalities required by the fundamental law of the land apply
only to extra-judicial confessions or admissions obtained during custodial investigations. 19 Indeed,
the rights enumerated in the constitutional provision "exist only in custodial interrogations, or in-
custody interrogation of accused persons."20
Custodial interrogation is the questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant way. 21

In the present case, petitioner admits that the questioned statements were made during the
preliminary investigation, not during the custodial investigation. However, he argues that the right to
competent and independent counsel also applies during preliminary investigations.

We disagree. A preliminary investigation is an inquiry or a proceeding to determine whether there is

sufficient ground to engender a well-founded belief that a crime has been committed, and that the
respondent is probably guilty thereof and should be held for trial. 22

Evidently, a person undergoing preliminary investigation before the public prosecutor cannot be
considered as being under custodial investigation. In fact, this Court has unequivocally declared that
a defendant on trial or under preliminary investigation is not under custodial interrogation. 23 It
explained as follows:

"His [accused] interrogation by the police, if any there had been would already have been
ended at the time of the filing of the criminal case in court (or the public prosecutor’s office).
Hence, with respect to a defendant in a criminal case already pending in court (or the public
prosecutor’s office), there is no occasion to speak of his right while under ‘custodial
interrogation’ laid down by the second and subsequent sentences of Section 20, Article IV of
the 1973 Constitution [now Section 12, Article III of the 1987 Constitution], for the obvious
reason that he is no longer under ‘custodial interrogation.’" 24

There is no question that even in the absence of counsel, the admissions made by petitioner in his
Counter-Affidavit are not violative of his constitutional rights. It is clear from the undisputed facts that
it was not exacted by the police while he was under custody or interrogation. Hence, the
constitutional rights of a person under custodial investigation as embodied in Article III, Section 12 of
the 1987 Constitution, are not at issue in this case.

However, the accused -- whether in court or undergoing preliminary investigation before the public
prosecutor -- unquestionably possess rights that must be safeguarded. These include: 1) the right to
refuse to be made witnesses; 2) the right not to have any prejudice whatsoever imputed to them by
such refusal; 3) the right to testify on their own behalf, subject to cross-examination by the
prosecution; and 4) while testifying, the right to refuse to answer a specific question that tends to
incriminate them for some crime other than that for which they are being prosecuted. 25

We do not, however, agree with the Sandiganbayan’s characterization of petitioner’s Counter-

Affidavit as an extrajudicial confession. It is only an admission. Sections 26 and 33 of Rule 130 of
the Revised Rules on Evidence distinguish one from the other as follows:

"SEC. 26. Admissions of a party. – The act, declaration or omission of a party as to a relevant fact
may be given in evidence against him.

"SEC. 33. Confession. – The declaration of an accused acknowledging his guilt of the offense
charged, or of any offense necessarily included therein, may be given in evidence against him."

In a confession, there is an acknowledgment of guilt; in an admission, there is merely a statement of

fact not directly involving an acknowledgment of guilt or of the criminal intent to commit the offense
with which one is charged.26 Thus, in the case at bar, a statement by the accused admitting the
commission of the act charged against him but denying that it was done with criminal intent is an
admission, not a confession.27

The Counter-Affidavit in question contains an admission that petitioner actually shot the victim when
the latter was attacking him. We quote the pertinent portion:

"[K]aya itong si Kapitan San Juan ay sumugod at hinawakan ako sa may leeg ng aking suot na T-
shirt upang ako ay muling saksakin; sa dahilang hindi ako makatakbo o makaiwas sa kabila ng aking
pananalag hanggang magpaputok ako ng pasumala sa kanya; sa bilis ng pangyayari ay hindi ko
alam na siya ay tinamaan;"28

Through the above statement, petitioner admits shooting the victim -- which eventually led to the
latter’s death -- but denies having done it with any criminal intent. In fact, he claims he did it in self-
defense. Nevertheless, whether categorized as a confession or as an admission, it is admissible in
evidence against him.

Further, we do not doubt the voluntariness of the Counter-Affidavit. Petitioner himself submitted it to
the public prosecutor to justify his actions in relation to the charges hurled against him. It escapes
this Court how he can cavalierly deny a document that he has voluntarily submitted and originally
relied upon in his defense.

In general, admissions may be rebutted by confessing their untruth or by showing they were made
by mistake. The party may also establish that the response that formed the admission was made in
a jocular, not a serious, manner; or that the admission was made in ignorance of the true state of
facts.29 Yet, petitioner never offered any rationalization why such admissions had been made, thus,
leaving them unrebutted. In addition, admissions made under oath, as in the case at bar, are
evidence of great weight against the declarant. They throw on him the burden of showing a
mistake.30

Petitioner contends that nowhere in the transcripts of this case can it be found that he has admitted
to the authorship, the authenticity or the voluntariness of the Counter-Affidavit. We quote verbatim
the proceedings in the Sandiganbayan:

"PJ GARCHITORENA

Well, he will identify the person who took the oath before him. Will you deny that it was your
client who took the oath before the Fiscal at the preliminary investigation?

ATTY. ILAGAN

We will admit that, your Honor.

PJ GARCHITORENA

So in that case we will have no question about the authorship, authenticity and the
voluntariness of the execution of the counter-affidavit dated July 31, 1990? Companiero?

ATTY ILAGAN

Admitted, your Honor."31

The admissions of petitioner made through his counsel cannot be any clearer. To be sure, the
unbroken stream of judicial dicta is that, in the conduct of their case, clients are bound by the actions
of their counsels, save when the latter’s negligence is so gross, reckless and inexcusable that the
former are deprived of their day in court.32 Also, clients, being bound by the actions of their counsels,
cannot complain that the result of the litigation might have been different had their lawyers
proceeded differently.33 A counsel may err as to the competency of witnesses, the sufficiency and
the relevance of evidence, the proper defense, the burden of proof, the introduction or the
withholding of witnesses or pieces of evidence, or the manner of arguing the case. This Court,
however, has ruled several times that those are not even proper grounds for a new trial, unless the
counsel’s incompetence is so gross that the clients are prevented from fairly presenting their case. 34

Having admitted that he had fatally shot the victim, petitioner had the duty of showing that the killing
was justified, and that the latter incurred no criminal liability therefor. 35 Petitioner should have relied
on the strength of his own evidence and not on the weakness of that for the prosecution. Even if his
evidence be weak, it cannot be disbelieved after the accused has admitted the killing. 36

Petitioner argues that it was the prosecution that indirectly raised the issue of self-defense. Hence,
he could not be bound by it. This argument deserves scant consideration. As discussed earlier, the
declarations contained in his Counter-Affidavit are admissions that may be used as evidence against
him.37 The Sandiganbayan did not unfairly presume that he had indeed raised the theory of self-
defense, because this argument had already been laid out in his Counter-Affidavit. No presumption
was necessary, because the admission was clear and unequivocal.

Neither do we believe petitioner’s claim that the anti-graft court "miserably failed to give equal effect
or treatment to all the allegations found therein (Counter-Affidavit) choosing deliberately and without
reasonable basis the parts which are incriminating in character, and ignoring without sufficient legal
basis the exculpatory assertions of the accused."38

The unsubstantiated and uncorroborated statements of petitioner in his Counter-Affidavit are utterly
insufficient to discharge his burden of proving that the act of killing was justified. It is hornbook
doctrine that self-defense must be proved with certainty by sufficient, satisfactory and convincing
evidence that excludes any vestige of criminal aggression on the part of the person invoking it. 39 It
cannot be entertained if it is uncorroborated by any separate and competent evidence, and it is also
doubtful.40 The question whether the accused acted in self-defense is essentially a question of fact
properly evaluated by the lower court; in this case, the Sandiganbayan. 41

By itself, the Counter-Affidavit miserably fails to establish the requisites of self-defense enumerated
in the law.42 Had petitioner been more vigilant in protecting his rights, he could have presented clear
and cogent evidence to prove those elements. But, as found by the court a quo, he not only failed to
discharge the burden of proving the existence of the justifying circumstance of self-defense; he did
not even bother to present any evidence at all. 43 So, we do not see how the Sandiganbayan could
have been selective in its treatment of his Counter-Affidavit.

Verily, if the accused fails to discharge the burden of proving the existence of self-defense or of any
other circumstance that eliminates criminal liability, his conviction shall of necessity follow, on the
basis of his admission of the killing. 44 Upholding this principle does not in any way violate his right to
be presumed innocent until proven guilty. When he admitted to having killed the victim, the burden of
proving his innocence fell on him. It became his duty to establish by clear and convincing evidence
the lawful justification for the killing.

Therefore, petitioner can no longer invoke his constitutional right to be presumed innocent of the
crime charged.45 As far as he is concerned, homicide has already been established. The fact of
death and its cause were established by his admissions coupled with the other prosecution evidence
including the Certificate of Death,46 the Certificate of Post-Mortem Examination47 and the Medico-
Legal Findings.48 The intent to kill is likewise presumed from the fact of death. 49

Final Issue:

Voluntary Surrender

After vigorously arguing against his own Counter-Affidavit, petitioner, in a surprising change of tenor,
implores this Court to consider his voluntary surrender to the police authorities as a mitigating
circumstance. He argues that two of the prosecution witnesses testified that he had surrendered to
the police authorities after the shooting incident. 53 To buttress his argument, he contends that the
"main reason for his voluntary surrender is that he sincerely believe[d] that he was legally justified in
defending himself as a policeman when he fought the victim after he was attacked by the latter." 54 It
goes without saying that this statement only reaffirms the admissions contained in his Counter-
Affidavit, which he so vehemently tried to discredit.

For voluntary surrender to mitigate criminal liability, the following elements must concur: 1) the
offender has not been actually arrested, 2) the offender surrenders himself to a person in authority or
to the latter’s agent, and 3) the surrender is voluntary. 55 To be sufficient, the surrender must be
spontaneous and made in a manner clearly indicating the intent of the accused to surrender
unconditionally, either because they acknowledge their guilt or wish to save the authorities the
trouble and the expense that will necessarily be incurred in searching for and capturing them. 56

The only pieces of evidence in support of the plea of voluntary surrender made by petitioner are
statements made by two (2) prosecution witnesses that they were allegedly told by other people that
he had already gone to the police station. There is no showing that he was not actually arrested; or
that when he went to the police station, he surrendered himself to a person in authority. Neither is
there any finding that he has evinced a desire to own to any complicity in the killing.1âwphi1

We have ruled in the past that the accused who had gone to the police headquarters merely to
report the shooting incident did not evince any desire to admit responsibility for the killing. Thus, he
could not be deemed to have voluntarily surrendered. 57 In the absence of sufficient and convincing
proof showing the existence of indispensable circumstances, we cannot appreciate voluntary
surrender to mitigate petitioner’s penalty.

WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution AFFIRMED. Costs
against petitioner. SO ORDERED.

SIMILAR ACTS AS EVIDENCE

G.R. Nos. 100225-26 May 11, 1993

PEOPLE OF THE PHILIPPINES,  vs. RAUL SANTOS Y NARCISO,

MARIO MORALES Y BACANI, PETER DOE and RICHARD
DOE, Accused, RAUL SANTOS y NARCISO, .
virtual law library

FACTS:
Glicierio Cupcupin and Alberto Bautista were riding on a jeep driven
by the former on May 26, 1989. At around 11:45 o'clock in the
morning of said date, the jeep was at a stop at the corner of Estrella
and Yangco Streets in navotas, Metro Manila and was about to make
a right turn when two (2) persons armed with short guns
approached the jeep and fired at Cupcupin and Bautista. Cupcupin
was hit several itmes in different parts of his body and he died as a
result of the multiple gunshot wounds he sustained (Exh. V).
Bautista sustained gunshot wounds, one at the left thigh, one in
theloer abdomen, one at the back of the right foot and another at
the back of the body. Bautista was able to run away even as he was
bieng fired upon. He took cover in a store. The one firing the gun at
thim was a man he later identified to be accused Raul Santos. The
other one which he saw similary firing his gun was aiming at
Cupcupin. He identified the man to be one Mario Morales. He added
that he saw Cupcupin hit by gunshots at the left side of the body
near the waist which made Cupcupin fall-off the steering wheel.
After running away, Bautista could not remember anymore what
else happened. He could not rmember anymore what else
happened. He at thim and Cupcupin. After hearing a shout that the
ambushers were no longer around, he learned that a woman
bystander was hit and was boarded on a jeep to be brought to the
hospital. He was boarded on said jeep too but later transferred to
was brought to the Martinez General Hospital and to the Mary
Jonston hospital where he was treated. Bautista was oeporated on
(Exhs. B, B-1, C, D and E). Upon the apprehensionof accused where
he picked out from a line-up accused Raul Santos. In another line-
up, he also picked out accused Morales. Bautista also gave a sworn
statement narrating the shooting incident (Exh. F). chanroblesvirtualawlibrary chanrobles virtual law library

Police Aide Victorino Bohol was on duty and directing traffic at the
corner of Plaza Rizal and Estrella Streets when he heard gunshots.
When he looked around the saw two 92) persons who were holding
Cal. 45 pistols firing at persons on board a stainless steel owner
jeep. Bohol was not able to approach the men firing their guns
because he was not provided with a gun. What he did was to run to
headquarters to call for policemen and when he returned to the
scene of the shooting he learned that one of hte passengers of the
jeep was killed. He learned also that the slain man was killed. He
learned also that the slain man was Glicerio Cupcupin and that his
companion was Alberto Bautista alias "Tiwa". Bohol also added that
tere were two (2) other persons who were also firing at the
passengers of the jeep although he did not recognize these two (2)
other persons. After the arrest of accused Santos, Bohol was called
to the police station and through a one-way mirror he was able to
identify accused Santos as one of the persons who shot Cupcupin
and Bautista. Bohol also gave a sworn statement to the police (Exh.
A).chanroblesvirtualawlibrary chanrobles virtual law library

On cross-examination, Bohol admitted that at the time of the

shooting he was at the Jim Bread Store talking to someone. When
he heard gunshots thier guns at the same time at the jeep. He
added that the accused was arrested some months later in
connectiion with another shooting incident wherein Santos was
suspected of involvement. He confirmed that Bautista was bieng
shot at while running away from the place.   chanroblesvirtualawlibrary chanrobles virtual law library

Cpl. Sabino Patood of the Navotas Police delcared that he was

investigating a shooting incident which resulted in the death of one
Abudl Rosas wherein the suspect was accused Santos when he was
tipped by police intelligence operatives that Santos was involved in
the ambush of Cupcupin. This made him conduct further
investigation by calling for Bautista and Bohol. Patood also
interviewed Santos who admitted his participation inthe ambush to
him. He did not take any written statement from accused Santos
because there was nocounsel available at that time and because
Santos was not willing to give any written statement. chanroblesvirtualawlibrary chanrobles virtual law library

Dr. Maximo Reyes of the NBI Medico Legal Division performed an

autorpsy onthecadaver of victim Cupcupin and found out that the
latter sustained nineteen (19) gunshot wounds in different parts of
his body. The cause of death gunshot wounds. Dr. Reyes added that
the assailants were probably at the left side of the victim as they
were shooting at the latter with the victim possibly seated at the
time he was shot and hit. chanroblesvirtualawlibrary chanrobles virtual law library

The victim's wife Lucia Cupcupin declared that P100,000.00 was

spent in connection with the death of her husband who was earning
P5,000.00 a month as a businessman dealing in junk materials and
marbale. 4 chanrobles virtual law library

The trial court found that the accused Raul Santos had been
identified positively by the surviving vicitm of the shooting incident -
Alberto Bautista, and by teh Traffic Aide who had witnessed the
execution of the crime - Victorino Bohol. The defensse of alibi
offered by the accused and supported by the testimonies of a friend
and a sister, was rejected as weak and unavailing. As noted, a
judgment of conviction followed. chanroblesvirtualawlibrary chanrobles virtual law library

Inhis appeal, Raul Santos assings the following as errors committed

by the trial court:

i the lower court erred in holding that accused's identification by

proscution's witnesses was "positive" and, and, therefore it erred
when it rejected accused's defense of alib. chanroblesvirtualawlibrary chanrobles virtual law library

ii the lower court erred in considering one of the two cases (not the
instant ones) filed against the accused in holding also for his
guilt.
chanroblesvirtualawlibrary chanrobles virtual law library

iii the lower court erred in convicting the accused. 5 chanrobles virtual law library

In respect of the first assigned error, appellant Santos contendes

that the testimonies of the principal prosecution witnesses do not
coform with the "knowledge and common experience of mankind."
Appellant argues that the two (2) prosecution witnesses, the victim
Bautista and Police Aide Bohol, testified that they saw the accused
for the first time in their lives when the crime was committed and
yet identified him as one of the gunmen five (5) months later in the
Police headquarters in Navotas. The ambuscade and the slaying of
Glicierio Cupcupin happened on 26 May 1989; appellant Santos was
identified at the police station on 25 October 1989. Appellant argues
that this lapse of time was unreasonable, which, when coupled with
the brief, limited and obstructed view which the prosecution
witnesses had of the gunmen at the time of the shooting, casts
serious doubt on the accuracy and reliabitlity of the identification by
the witnesses. chanroblesvirtualawlibrary chanrobles virtual law library
Appellant's argument does not persuade. chanroblesvirtualawlibrary chanrobles virtual law library

Police Aide Bohol was only abot twelve (12) armlengths away from
teh ambush vehicle. The ambush slaying occurred under conditions
of high visibility: the victim Cupcupin was shot to death at 11:45
o'clock in the morning, in good weahter, when the sun was almost
at its zenith. On cross-examination, Bohol stated that there were no
passing vehicles that blocked his view of the slaying of the victim as
the vehicles stopped some distance away from the jeep when the
shooting began. In addition, Bohol testified that he saw one of teh
gunmen take a wrist watch and a gun form Cupcupin's lifeless body.
Clearly, Bohol had the opportunity to observe the extraordinary and
startling events which unfolded on the corner of two (2) busy
streets almost at high noon, events which may be expected to leave
a strong impression upon the minds of an eye-witnesses who, like
Police Aide Bohol, had a duty to maintain law and order. Alberto
Bautista who had been riding on a jeep and hwo escped death (but
not gunshot wounds) by reason of his quick reflexes, had every
reason to remember the faces of those whom he saw firing at the
jeep and at himself. This has been recognized a number of times in
ouir case law. In People v. Jacolo, et al., 6the Couirt said:

[W]hile evidence as to the identity of the accused as the person who

committed the crime should be carefully analyzed, . . . "were the
conditions of visibility are favorable and the witness does not
appear to be biased agains teh man on the dock, his or her
assertions as to the identity of the malefactore should normally be
accpeted. And this is more so where the witness is the victim or his
near-relative, as in this case, because these (people) usually strive
to remember the faces of the assailants." (Emphasis supplied.) 7 chanrobles virtual law library

Appellant Santos also contended that Police Aide Bohol could not
have had a clear view of the ambuscade and the shooting of
Cupcupin since he (Bohol) was situated on the left side of the
gunmen. As observed by teh Solicitor General, however, the trial
court had pointed out that "if he [Bohol] was to the front right of
the jeep" then he must [have been] a little by the left side  of the
persons firing at the jeep . . ." 8"Bohol's view, therefore," the
Solicitor General continued, "was not limited to the left side of the
assilants, especially since he was able to see them [the gunmen]
move around the site of the ambush after the [had] stopped firing,
specifically when one of them stripped victim Cupcupin of his gun
and jewelry and they all walked away from the place." 9 The trial
court obviously concluded that Bohol had ample opportunity actually
to observe tha events on which he testified, and we find no basis for
overtunring this conclusion of the trial court.
chanroblesvirtualawlibrary chanrobles virtual law library

In respect of the identification by Bautista, accused also suggests

that Bautista had no real opoortunityto see and impress upon his
memory the faces of the assailants. In his testimony, Bautista
stated that two (2) men armed with handguns suddenly
apporoached the jeep in which he and Cupcupin were riding. He
agreed that his attention had been "focused" (defense counsel's
own language) on vehicles passing along Estrella Street as Cupcupin
maneuvered the jeep to turn right at the corner and to head
towards Navotas. When the assailants started shooting, Bautista
jumped from the jeep, was hit on the left thigh and other parts of
the body, but managed to run for cover from repeated shots or
bursts of gunfire. Bautista testified further that he was shot by
appellant Raul Santos while Morales pumped bullets into Cupcupin;
that the gunmen fired at Cupcupin and Bautista from close range,
Morales being a mere half an arm-length to the left of Cupcupin
while appellant Santos was about two (2) arm-lengths away from
the ambushed jeep; and that Bautista saw his compaion, Cupcupin,
slump on the steering wheel as the bullets crashed into him. Once
more, the trial court was led by the above circumstances to
conclude that Bautista had adequate oportunity to see appellant
Santos and to retain his face in his memory. We find no basis for
rejecting this factual conclusion of the trial court. chanroblesvirtualawlibrary chanrobles virtual law library

Appellant Santos makes two (2) additional arguments. Firstly, he

complains that he was not afforded his right to counsel int he course
of the police line-up, at the police station where he was identified by
the prosecution witnesses. This argument, of course, assumes that
during the police line-up, accused was under custodial investigation,
a stage which, per the appellant, began the instant the police
suspected Santos then had no lawyer present nor was one provided,
his counsel argues, Santos's identification was "tainted" and
inadmissible. The argument is creative, but has no legal bais.
In Gamboa v. Cruz, 10the Court said that there is "no real need to
afford a suspect the serivce of counsel at police line-up," 11a
declaration reiterated in People v. Loveria. 12The customary practice
is, of course, that it is the witness who is investigaged or
interrogated in the course of a police line-up and who gives a
statement to the police, rather than the accused who is not
questioned at all at that stage. The Court is aware of the caveat
in Gamboa. 13But there is nothing in the record of this case which
shows that in the course of the line-up, the police investigators
sought to extract any admission or confession from appellant
Santos. The investigators did not in fact interrogate appellant
Santos during the line-up and he remained silent after he had bee
identified by Bautista and Bohol. chanroblesvirtualawlibrary chanrobles virtual law library

Appellant Santos's secon dcontention is that there had bee

"improper suggestiveness" in the course of the police line-up
amounting to an uncounselled confession. In effect, defense counsel
claims that Bautista and Bohol were induced by the plice
investigators to point to appellant Santos as one of the gunmen.
The record does not show that the police investigators had coached
Bautista. Appellant Santos's counsel directed the attention of this
Court to a portion of Bohol's testimony during cross-examination, to
wit:

Atty. Valmonte: chanrobles virtual law library

Alright, that somebody who told you to go to the office of Capt.

Puzon you were informed that on the other side of the office of
Capt. Puzon there was already the person whom they would like to
identfy?

Victorino Bohol: chanrobles virtual law library

Yes, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Atty. Valmonte: chanrobles virtual law library

And was there somebody who asked you who among those in the
investigation room the person whom you saw? chanrobles virtual law library
Victorino Bohol: chanrobles virtual law library

No, sir. Somebody approached me and said, iyan po. But before
answering, I made a very careful look at the person. 14

We are not convinced, however, that the phrase "iyan po"

constituted an "improper suggestion," certainly not in the context of
a situation where, as here, appellant Santos was identified
successively by Bautista and Bohol from a group of person. We
consider that the phrase "iyan po" is too cryptic. What that Court
warned against in People v. Acosta, 15i.e., against an identification
process that was "pointedly suggestive, or generated confidence
when there was noen, activated visual imagination, and all told,
subverted [a person's] reliablity as [an] eye-witness [..]," has not
been successfully shown in the case at bar. chanroblesvirtualawlibrary chanrobles virtual law library

Appellant Santos next seeks to assail the credibility of Bautista and

Bohol by citing supposed inconsistencies between statements made
in their affidavits before trial and their testimony given in the course
of the trial. Appellant's counsel complains 16 that while witness
Bohol could recall the gunmen's general apperance, he could not
remember the kind of shoes that appellant Santos was wearing nor
the color of their guns; that he had stated in his swon statement
that he had picked out appellant Santos from a line-up consisting of
seven (7) persons, while he testified in open court that he had
identified appellant when the later was together with only one (1)
detainee in the investigation froom of the police station; that Bohol
had intiallystated that Bautista was driving the jeep but on direct
examination, he stated that it was Cupcupin instead who had been
driving the jeep; that in his sworn statement, Bohol had claimed
that he was directing traffic when he first heard gunshots, but on
cross-examination, stated that at the point he was engaged in
taking his merienda. chanroblesvirtualawlibrary chanrobles virtual law library

Close examination of the record will, however, show that the

supposed inconsistenceise adduced by appellant Santos are either
non-existent or clearly minor and inconsequential in character. The
fact that witness Bohol might not have remembered the kind of
shoes appellant Santos was wearing onthat violent occassion nor
the color of the gunmen's weapons, is clearly inconsequential. Close
scrutiny of the sworn statement of Bohol (Exhibit "A") does not
reveal any statement that he (Bohol) had picked out appellant
Santos from a seven (7) - person line-up nor does the transcript
show that witness Bohol had identified appellant Santos when
appellant was alone with only one detainee in the investigation
room at the police station. 17Appellant's counsel did not document
his averments. Moreover, as pointed out by the Solicitor
General, 18whether a police line-up considted of two (2) or seven
(7) persons is actually immaterial since a police line-up is not
essential to a proper and positive identification. 19Whether it was
Bautista or Cupcupin who had been driving the jeep and whether
Bohol was direcitng traffic or enjoying his merienda when the first
gun shots rang out, cannot be regarded as critical in nature; such
questions do not detract from the basic facts that Bohol was in a
position and Bautista and saw both assailants and the victims. The
netrenched principle is that minro inconsistencies in the testimony
of a witness tend to strengthen rather than to weaken the credibility
of the witness as they erase any suspicion of rehearsed
testimony. 20

In his second assignment of error, appellant Santos in effect

questions the trial court for admitting a sworn statement by one
Ronaldo Guerrero (Exhibit "EE"), a witnesses in another criminal
case (Criminal Case No. 8117) where appellant Santos was also
charged with the murder of one Daniel Nuguera which had taken
place in the very same site where Bautista and Cupcupin were
ambushed, i.e., at the corner of Yangco Street and Estrella Street,
Malabon, Metro Manila. When the prosecution first presented the
sworn statement of Guerrero in order to show criminal propensity
on the part of appellant Santos, the defesne objected to admission
of such sworn statment; the trial court sustained the objection and
rejected the evidence for the purpose it was initially offered.
However, the trial court admitted the same as falling within one or
more of the exceptions set out in Section 34, Rule 130 of the Rules
of Court, which reads:

Sec. 34. Similar Acts as Evifence. - Evidence that one did or didnot

do a certain thing at one time is not admissible to prove that he did
or did not do the same or a similar thing at another time; but it
may be received to prove  a specific intent or knowledge,
identity,  plan, system, shceme, habit, custom or usage and the like.
(Empahsis supplied).

Appellant Santos now complains that the affidavit of Ronaldo

Guerrero was hearsay evidence, considering that the prosecution
did not present Ronaldo Guerrero as a witness during the trial. We
consider that the trial court did not commit reversible error in
admitting the Guerrero affidavit for the limited purpose for provign
knowledge or plan or shceme, and more specifically, that appellant
knew that the particular corner of two (2) particular streets in
Manila was a good place to ambus a vehicle and its passenters.
Appellant also had waived the hearsay character of this evidence by
failure seasonably to ojbect to the admission of the affidavit; it is
too late in that day to raise the hearsay rule in the appellant's
memorandum after prosecution and defense had presented their
respective cases and had made their repsective offers of
evidence. 21Finally, and in any cae, as pointed out by the Solicitor
General, the exclusion of the Guerrero affidavit would not result in
any change in the result reache by the trial court. For that result is
esentially and adequately based upon the positive identification of
appellant Santos as one of the gunmen by Baustisa and Bohol. chanroblesvirtualawlibrary chanrobles virtual law library

That it took the police authorities five (5) months to locate and
apprehend appellant Santos who, it turned out, resided close by the
very locale of the ambush-slaying, did not in any way weaken the
evidence of the prosecution of detract from the conclusions reached
by the trial court. The length of that period of time shows only that
police procedures are not always as efficient as they could be and
that witnesses are frequently reluctant to voluntee information to
the police authorities in criminal cases, a point noted so frequently
as to have become a matter of judicial notice. 22

Finally, we come to the defense of alibi which appellant Santos

raised before the trial court and which was recounted by the trial
court in the following manner:

Accused Raul Santos, after denying the accusations against him,

insisted that he was on the date and time that Cupcupin and
Bautista were ambushed somwhere in Ibaan, Batangas to which
place he went on May 20, 1989, because his sister Teresita received
a subpoena in a case involving one Apolonio Nuguera and which
subpoena was given to him by another sister named Isabel. Accused
Santos claimed that he was surprised and confused by said
subpoena (Exh. 2) and had to got to Batangas while his sisters are
verifying the complaint against him. Accused Santos also
maintained that from the time he left the place on June 12, 1989,
he remained continuously in said place.

xxx xxx xxx chanrobles virtual law library

The testimony of accused Santos regarding his stay in Batangas was

corroborated by Melinda David in show house he stayed and by this
sister Isabel Santos. 23 chanrobles virtual law library

In respect of the weight properly given to a defense of a alibi, the

Court has, times beyond numbering, ruled that such defense is
weak most especially when established exclusively or mainly by the
accused himself and his relatives and nto by independent and
credible persons, 24and that such a defense will not prevail over the
positive idenfication made by credible witnesses, 25especially where
the witness is the victim-complainant himself. chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, for all the foregoing, we hold that the judgment of

conviction rendered by the trial court must be, and it is hereby,
AFFIRMED with the following modifications: the civil indemnity
payable to the heirs of Glicerio Cupcupin shall be INCREASED to
P50,000.00; the penalty of life imprisonment in Criminal Case No.
8517-MN shall be CHANGED to reclusion perpetua, which is the
proper imposable penalty under the Revised Penal Code. Costs
against apellant. chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

G. R. No. 158149             February 9, 2006

BOSTON BANK OF THE PHILIPPINES, (formerly BANK OF COMMERCE), Petitioner,

vs.
PERLA P. MANALO and CARLOS MANALO, JR., Respondents.
 DECISION

CALLEJO, SR., J.:

Before us is a Petition for Review on Certiorari of the Decision 1 of the Court of Appeals (CA) in CA-
G.R. CV No. 47458 affirming, on appeal, the Decision2 of the Regional Trial Court (RTC) of Quezon
City, Branch 98, in Civil Case No. Q-89-3905.

The Antecedents

The Xavierville Estate, Inc. (XEI) was the owner of parcels of land in Quezon City, known as the
Xavierville Estate Subdivision, with an area of 42 hectares. XEI caused the subdivision of the
property into residential lots, which was then offered for sale to individual lot buyers. 3

On September 8, 1967, XEI, through its General Manager, Antonio Ramos, as vendor, and The
Overseas Bank of Manila (OBM), as vendee, executed a "Deed of Sale of Real Estate" over some
residential lots in the subdivision, including Lot 1, Block 2, with an area of 907.5 square meters, and
Lot 2, Block 2, with an area of 832.80 square meters. The transaction was subject to the approval of
the Board of Directors of OBM, and was covered by real estate mortgages in favor of the Philippine
National Bank as security for its account amounting to ₱5,187,000.00, and the Central Bank of the
Philippines as security for advances amounting to ₱22,185,193.74. 4 Nevertheless, XEI continued
selling the residential lots in the subdivision as agent of OBM. 5

Sometime in 1972, then XEI president Emerito Ramos, Jr. contracted the services of Engr. Carlos
Manalo, Jr. who was in business of drilling deep water wells and installing pumps under the business
name Hurricane Commercial, Inc. For ₱34,887.66, Manalo, Jr. installed a water pump at Ramos’
residence at the corner of Aurora Boulevard and Katipunan Avenue, Quezon City. Manalo, Jr. then
proposed to XEI, through Ramos, to purchase a lot in the Xavierville subdivision, and offered as part
of the downpayment the ₱34,887.66 Ramos owed him. XEI, through Ramos, agreed. In a letter
dated February 8, 1972, Ramos requested Manalo, Jr. to choose which lots he wanted to buy so that
the price of the lots and the terms of payment could be fixed and incorporated in the conditional
sale.6 Manalo, Jr. met with Ramos and informed him that he and his wife Perla had chosen Lots 1
and 2 of Block 2 with a total area of 1,740.3 square meters.

In a letter dated August 22, 1972 to Perla Manalo, Ramos confirmed the reservation of the lots. He
also pegged the price of the lots at ₱200.00 per square meter, or a total of ₱348,060.00, with a 20%
down payment of the purchase price amounting to ₱69,612.00 less the ₱34,887.66 owing from
Ramos, payable on or before December 31, 1972; the corresponding Contract of Conditional Sale
would then be signed on or before the same date, but if the selling operations of XEI resumed after
December 31, 1972, the balance of the downpayment would fall due then, and the spouses would
sign the aforesaid contract within five (5) days from receipt of the notice of resumption of such selling
operations. It was also stated in the letter that, in the meantime, the spouses may introduce
improvements thereon subject to the rules and regulations imposed by XEI in the subdivision. Perla
Manalo conformed to the letter agreement.7

The spouses Manalo took possession of the property on September 2, 1972, constructed a house
thereon, and installed a fence around the perimeter of the lots.

In the meantime, many of the lot buyers refused to pay their monthly installments until they were
assured that they would be issued Torrens titles over the lots they had purchased. 8 The spouses
Manalo were notified of the resumption of the selling operations of XEI.9 However, they did not pay
the balance of the downpayment on the lots because Ramos failed to prepare a contract of
conditional sale and transmit the same to Manalo for their signature. On August 14, 1973, Perla
Manalo went to the XEI office and requested that the payment of the amount representing the
balance of the downpayment be deferred, which, however, XEI rejected. On August 10, 1973, XEI
furnished her with a statement of their account as of July 31, 1973, showing that they had a balance
of ₱34,724.34 on the downpayment of the two lots after deducting the account of Ramos, plus
₱3,819.6810 interest thereon from September 1, 1972 to July 31, 1973, and that the interests on the
unpaid balance of the purchase price of ₱278,448.00 from September 1, 1972 to July 31, 1973
amounted to ₱30,629.28.11 The spouses were informed that they were being billed for said unpaid
interests.12

On January 25, 1974, the spouses Manalo received another statement of account from XEI,
inclusive of interests on the purchase price of the lots. 13 In a letter dated April 6, 1974 to XEI,
Manalo, Jr. stated they had not yet received the notice of resumption of Lei’s selling operations, and
that there had been no arrangement on the payment of interests; hence, they should not be charged
with interest on the balance of the downpayment on the property. 14 Further, they demanded that a
deed of conditional sale over the two lots be transmitted to them for their signatures. However, XEI
ignored the demands. Consequently, the spouses refused to pay the balance of the downpayment of
the purchase price.15

Sometime in June 1976, Manalo, Jr. constructed a business sign in the sidewalk near his house. In a
letter dated June 17, 1976, XEI informed Manalo, Jr. that business signs were not allowed along the
sidewalk. It demanded that he remove the same, on the ground, among others, that the sidewalk
was not part of the land which he had purchased on installment basis from XEI. 16 Manalo, Jr. did not
respond. XEI reiterated its demand on September 15, 1977. 17

Subsequently, XEI turned over its selling operations to OBM, including the receivables for lots
already contracted and those yet to be sold.18 On December 8, 1977, OBM warned Manalo, Jr., that
"putting up of a business sign is specifically prohibited by their contract of conditional sale" and that
his failure to comply with its demand would impel it to avail of the remedies as provided in their
contract of conditional sale.19

Meanwhile, on December 5, 1979, the Register of Deeds issued Transfer Certificate of Title (TCT)
No. T-265822 over Lot 1, Block 2, and TCT No. T-265823 over Lot 2, Block 2, in favor of the
OBM.20 The lien in favor of the Central Bank of the Philippines was annotated at the dorsal portion of
said title, which was later cancelled on August 4, 1980. 21

Subsequently, the Commercial Bank of Manila (CBM) acquired the Xavierville Estate from OBM.
CBM wrote Edilberto Ng, the president of Xavierville Homeowners Association that, as of January
31, 1983, Manalo, Jr. was one of the lot buyers in the subdivision. 22 CBM reiterated in its letter to Ng
that, as of January 24, 1984, Manalo was a homeowner in the subdivision. 23

In a letter dated August 5, 1986, the CBM requested Perla Manalo to stop any on-going construction
on the property since it (CBM) was the owner of the lot and she had no permission for such
construction.24 She agreed to have a conference meeting with CBM officers where she informed
them that her husband had a contract with OBM, through XEI, to purchase the property. When
asked to prove her claim, she promised to send the documents to CBM. However, she failed to do
so.25 On September 5, 1986, CBM reiterated its demand that it be furnished with the documents
promised,26 but Perla Manalo did not respond.

On July 27, 1987, CBM filed a complaint27 for unlawful detainer against the spouses with the
Metropolitan Trial Court of Quezon City. The case was docketed as Civil Case No. 51618. CBM
claimed that the spouses had been unlawfully occupying the property without its consent and that
despite its demands, they refused to vacate the property. The latter alleged that they, as vendors,
and XEI, as vendee, had a contract of sale over the lots which had not yet been rescinded. 28

While the case was pending, the spouses Manalo wrote CBM to offer an amicable settlement,
promising to abide by the purchase price of the property (₱313,172.34), per agreement with XEI,
through Ramos. However, on July 28, 1988, CBM wrote the spouses, through counsel, proposing
that the price of ₱1,500.00 per square meter of the property was a reasonable starting point for
negotiation of the settlement. 29 The spouses rejected the counter proposal, 30 emphasizing that they
would abide by their original agreement with XEI. CBM moved to withdraw its complaint 31 because of
the issues raised.32

In the meantime, the CBM was renamed the Boston Bank of the Philippines. After CBM filed its
complaint against the spouses Manalo, the latter filed a complaint for specific performance and
damages against the bank before the Regional Trial Court (RTC) of Quezon City on October 31,
1989.

The plaintiffs alleged therein that they had always been ready, able and willing to pay the
installments on the lots sold to them by the defendant’s remote predecessor-in-interest, as might be
or stipulated in the contract of sale, but no contract was forthcoming; they constructed their house
worth ₱2,000,000.00 on the property in good faith; Manalo, Jr., informed the defendant, through its
counsel, on October 15, 1988 that he would abide by the terms and conditions of his original
agreement with the defendant’s predecessor-in-interest; during the hearing of the ejectment case on
October 16, 1988, they offered to pay ₱313,172.34 representing the balance on the purchase price
of said lots; such tender of payment was rejected, so that the subject lots could be sold at
considerably higher prices to third parties.

Plaintiffs further alleged that upon payment of the ₱313,172.34, they were entitled to the execution
and delivery of a Deed of Absolute Sale covering the subject lots, sufficient in form and substance to
transfer title thereto free and clear of any and all liens and encumbrances of whatever kind and
nature.33 The plaintiffs prayed that, after due hearing, judgment be rendered in their favor, to wit:

WHEREFORE, it is respectfully prayed that after due hearing:

(a) The defendant should be ordered to execute and deliver a Deed of Absolute Sale over
subject lots in favor of the plaintiffs after payment of the sum of ₱313,172.34, sufficient in
form and substance to transfer to them titles thereto free and clear of any and all liens and
encumbrances of whatever kind or nature;

(b) The defendant should be held liable for moral and exemplary damages in the amounts of
₱300,000.00 and ₱30,000.00, respectively, for not promptly executing and delivering to
plaintiff the necessary Contract of Sale, notwithstanding repeated demands therefor and for
having been constrained to engage the services of undersigned counsel for which they
agreed to pay attorney’s fees in the sum of ₱50,000.00 to enforce their rights in the premises
and appearance fee of ₱500.00;

(c) And for such other and further relief as may be just and equitable in the premises. 34

In its Answer to the complaint, the defendant interposed the following affirmative defenses: (a)
plaintiffs had no cause of action against it because the August 22, 1972 letter agreement between
XEI and the plaintiffs was not binding on it; and (b) "it had no record of any contract to sell executed
by it or its predecessor, or of any statement of accounts from its predecessors, or records of
payments of the plaintiffs or of any documents which entitled them to the possession of the
lots."35 The defendant, likewise, interposed counterclaims for damages and attorney’s fees and
prayed for the eviction of the plaintiffs from the property. 36

Meanwhile, in a letter dated January 25, 1993, plaintiffs, through counsel, proposed an amicable
settlement of the case by paying ₱942,648.70, representing the balance of the purchase price of the
two lots based on the current market value.37 However, the defendant rejected the same and insisted
that for the smaller lot, they pay ₱4,500,000.00, the current market value of the property. 38 The
defendant insisted that it owned the property since there was no contract or agreement between it
and the plaintiffs’ relative thereto.

During the trial, the plaintiffs adduced in evidence the separate Contracts of Conditional Sale
executed between XEI and Alberto Soller;39 Alfredo Aguila,40 and Dra. Elena Santos-Roque41 to prove
that XEI continued selling residential lots in the subdivision as agent of OBM after the latter had
acquired the said lots.

For its part, defendant presented in evidence the letter dated August 22, 1972, where XEI proposed
to sell the two lots subject to two suspensive conditions: the payment of the balance of the
downpayment of the property, and the execution of the corresponding contract of conditional sale.
Since plaintiffs failed to pay, OBM consequently refused to execute the corresponding contract of
conditional sale and forfeited the ₱34,877.66 downpayment for the two lots, but did not notify them
of said forfeiture.42 It alleged that OBM considered the lots unsold because the titles thereto bore no
annotation that they had been sold under a contract of conditional sale, and the plaintiffs were not
notified of XEI’s resumption of its selling operations.

On May 2, 1994, the RTC rendered judgment in favor of the plaintiffs and against the defendant. The
fallo of the decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendant –

(a) Ordering the latter to execute and deliver a Deed of Absolute Sale over Lot 1 and 2,
Block 2 of the Xavierville Estate Subdivision after payment of the sum of ₱942,978.70
sufficient in form and substance to transfer to them titles thereto free from any and all liens
and encumbrances of whatever kind and nature.

(b) Ordering the defendant to pay moral and exemplary damages in the amount of
₱150,000.00; and

(c) To pay attorney’s fees in the sum of ₱50,000.00 and to pay the costs.

SO ORDERED.43

The trial court ruled that under the August 22, 1972 letter agreement of XEI and the plaintiffs, the
parties had a "complete contract to sell" over the lots, and that they had already partially
consummated the same. It declared that the failure of the defendant to notify the plaintiffs of the
resumption of its selling operations and to execute a deed of conditional sale did not prevent the
defendant’s obligation to convey titles to the lots from acquiring binding effect. Consequently, the
plaintiffs had a cause of action to compel the defendant to execute a deed of sale over the lots in
their favor.

Boston Bank appealed the decision to the CA, alleging that the lower court erred in (a) not
concluding that the letter of XEI to the spouses Manalo, was at most a mere contract to sell subject
to suspensive conditions, i.e., the payment of the balance of the downpayment on the property and
the execution of a deed of conditional sale (which were not complied with); and (b) in awarding moral
and exemplary damages to the spouses Manalo despite the absence of testimony providing facts to
justify such awards.44

On September 30, 2002, the CA rendered a decision affirming that of the RTC with modification. The
fallo reads:

WHEREFORE, the appealed decision is AFFIRMED with MODIFICATIONS that (a) the figure
"₱942,978.70" appearing [in] par. (a) of the dispositive portion thereof is changed to "₱313,172.34
plus interest thereon at the rate of 12% per annum from September 1, 1972 until fully paid" and (b)
the award of moral and exemplary damages and attorney’s fees in favor of plaintiffs-appellees is
DELETED.

SO ORDERED.45

The appellate court sustained the ruling of the RTC that the appellant and the appellees had
executed a Contract to Sell over the two lots but declared that the balance of the purchase price of
the property amounting to ₱278,448.00 was payable in fixed amounts, inclusive of pre-computed
interests, from delivery of the possession of the property to the appellees on a monthly basis for 120
months, based on the deeds of conditional sale executed by XEI in favor of other lot buyers. 46 The
CA also declared that, while XEI must have resumed its selling operations before the end of 1972
and the downpayment on the property remained unpaid as of December 31, 1972, absent a written
notice of cancellation of the contract to sell from the bank or notarial demand therefor as required by
Republic Act No. 6552, the spouses had, at the very least, a 60-day grace period from January 1,
1973 within which to pay the same.

Boston Bank filed a motion for the reconsideration of the decision alleging that there was no
perfected contract to sell the two lots, as there was no agreement between XEI and the respondents
on the manner of payment as well as the other terms and conditions of the sale. It further averred
that its claim for recovery of possession of the aforesaid lots in its Memorandum dated February 28,
1994 filed before the trial court constituted a judicial demand for rescission that satisfied the
requirements of the New Civil Code. However, the appellate court denied the motion.

Boston Bank, now petitioner, filed the instant petition for review on certiorari assailing the CA rulings.
It maintains that, as held by the CA, the records do not reflect any schedule of payment of the 80%
balance of the purchase price, or ₱278,448.00. Petitioner insists that unless the parties had agreed
on the manner of payment of the principal amount, including the other terms and conditions of the
contract, there would be no existing contract of sale or contract to sell. 47 Petitioner avers that the
letter agreement to respondent spouses dated August 22, 1972 merely confirmed their reservation
for the purchase of Lot Nos. 1 and 2, consisting of 1,740.3 square meters, more or less, at the price
of ₱200.00 per square meter (or ₱348,060.00), the amount of the downpayment thereon and the
application of the ₱34,887.00 due from Ramos as part of such downpayment.

Petitioner asserts that there is no factual basis for the CA ruling that the terms and conditions
relating to the payment of the balance of the purchase price of the property (as agreed upon by XEI
and other lot buyers in the same subdivision) were also applicable to the contract entered into
between the petitioner and the Respondents. It insists that such a ruling is contrary to law, as it is
tantamount to compelling the parties to agree to something that was not even discussed, thus,
violating their freedom to contract. Besides, the situation of the respondents cannot be equated with
those of the other lot buyers, as, for one thing, the respondents made a partial payment on the
downpayment for the two lots even before the execution of any contract of conditional sale.
Petitioner posits that, even on the assumption that there was a perfected contract to sell between the
parties, nevertheless, it cannot be compelled to convey the property to the respondents because the
latter failed to pay the balance of the downpayment of the property, as well as the balance of 80% of
the purchase price, thus resulting in the extinction of its obligation to convey title to the lots to the
Respondents.

Another egregious error of the CA, petitioner avers, is the application of Republic Act No. 6552. It
insists that such law applies only to a perfected agreement or perfected contract to sell, not in this
case where the downpayment on the purchase price of the property was not completely paid, and no
installment payments were made by the buyers.

Petitioner also faults the CA for declaring that petitioner failed to serve a notice on the respondents
of cancellation or rescission of the contract to sell, or notarial demand therefor. Petitioner insists that
its August 5, 1986 letter requiring respondents to vacate the property and its complaint for ejectment
in Civil Case No. 51618 filed in the Metropolitan Trial Court amounted to the requisite demand for a
rescission of the contract to sell. Moreover, the action of the respondents below was barred by
laches because despite demands, they failed to pay the balance of the purchase price of the lots (let
alone the downpayment) for a considerable number of years.

For their part, respondents assert that as long as there is a meeting of the minds of the parties to a
contract of sale as to the price, the contract is valid despite the parties’ failure to agree on the
manner of payment. In such a situation, the balance of the purchase price would be payable on
demand, conformably to Article 1169 of the New Civil Code. They insist that the law does not require
a party to agree on the manner of payment of the purchase price as a prerequisite to a valid contract
to sell. The respondents cite the ruling of this Court in Buenaventura v. Court of Appeals 48 to support
their submission.

They argue that even if the manner and timeline for the payment of the balance of the purchase
price of the property is an essential requisite of a contract to sell, nevertheless, as shown by their
letter agreement of August 22, 1972 with the OBM, through XEI and the other letters to them, an
agreement was reached as to the manner of payment of the balance of the purchase price. They
point out that such letters referred to the terms of the terms of the deeds of conditional sale executed
by XEI in favor of the other lot buyers in the subdivision, which contained uniform terms of 120 equal
monthly installments (excluding the downpayment, but inclusive of pre-computed interests). The
respondents assert that XEI was a real estate broker and knew that the contracts involving
residential lots in the subdivision contained uniform terms as to the manner and timeline of the
payment of the purchase price of said lots.

Respondents further posit that the terms and conditions to be incorporated in the "corresponding
contract of conditional sale" to be executed by the parties would be the same as those contained in
the contracts of conditional sale executed by lot buyers in the subdivision. After all, they maintain,
the contents of the corresponding contract of conditional sale referred to in the August 22, 1972
letter agreement envisaged those contained in the contracts of conditional sale that XEI and other lot
buyers executed. Respondents cite the ruling of this Court in Mitsui Bussan Kaisha v. Manila E.R.R.
& L. Co.49

The respondents aver that the issues raised by the petitioner are factual, inappropriate in a petition
for review on certiorari under Rule 45 of the Rules of Court. They assert that petitioner adopted a
theory in litigating the case in the trial court, but changed the same on appeal before the CA, and
again in this Court. They argue that the petitioner is estopped from adopting a new theory contrary to
those it had adopted in the trial and appellate courts. Moreover, the existence of a contract of
conditional sale was admitted in the letters of XEI and OBM. They aver that they became owners of
the lots upon delivery to them by XEI.

The issues for resolution are the following: (1) whether the factual issues raised by the petitioner are
proper; (2) whether petitioner or its predecessors-in-interest, the XEI or the OBM, as seller, and the
respondents, as buyers, forged a perfect contract to sell over the property; (3) whether petitioner is
estopped from contending that no such contract was forged by the parties; and (4) whether
respondents has a cause of action against the petitioner for specific performance.

The rule is that before this Court, only legal issues may be raised in a petition for review on
certiorari. The reason is that this Court is not a trier of facts, and is not to review and calibrate the
evidence on record. Moreover, the findings of facts of the trial court, as affirmed on appeal by the
Court of Appeals, are conclusive on this Court unless the case falls under any of the following
exceptions:

(1) when the conclusion is a finding grounded entirely on speculations, surmises and conjectures; (2)
when the inference made is manifestly mistaken, absurd or impossible; (3) where there is a grave
abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the
findings of fact are conflicting; (6) when the Court of Appeals, in making its findings went beyond the
issues of the case and the same is contrary to the admissions of both appellant and appellee; (7)
when the findings are contrary to those of the trial court; (8) when the findings of fact are conclusions
without citation of specific evidence on which they are based; (9) when the facts set forth in the
petition as well as in the petitioners’ main and reply briefs are not disputed by the respondents; and
(10) when the findings of fact of the Court of Appeals are premised on the supposed absence of
evidence and contradicted by the evidence on record. 50

We have reviewed the records and we find that, indeed, the ruling of the appellate court dismissing
petitioner’s appeal is contrary to law and is not supported by evidence. A careful examination of the
factual backdrop of the case, as well as the antecedental proceedings constrains us to hold that
petitioner is not barred from asserting that XEI or OBM, on one hand, and the respondents, on the
other, failed to forge a perfected contract to sell the subject lots.

It must be stressed that the Court may consider an issue not raised during the trial when there is
plain error.51 Although a factual issue was not raised in the trial court, such issue may still be
considered and resolved by the Court in the interest of substantial justice, if it finds that to do so is
necessary to arrive at a just decision,52 or when an issue is closely related to an issue raised in the
trial court and the Court of Appeals and is necessary for a just and complete resolution of the
case.53 When the trial court decides a case in favor of a party on certain grounds, the Court may
base its decision upon some other points, which the trial court or appellate court ignored or
erroneously decided in favor of a party.54

In this case, the issue of whether XEI had agreed to allow the respondents to pay the purchase price
of the property was raised by the parties. The trial court ruled that the parties had perfected a
contract to sell, as against petitioner’s claim that no such contract existed. However, in resolving the
issue of whether the petitioner was obliged to sell the property to the respondents, while the CA
declared that XEI or OBM and the respondents failed to agree on the schedule of payment of the
balance of the purchase price of the property, it ruled that XEI and the respondents had forged a
contract to sell; hence, petitioner is entitled to ventilate the issue before this Court.

We agree with petitioner’s contention that, for a perfected contract of sale or contract to sell to exist
in law, there must be an agreement of the parties, not only on the price of the property sold, but also
on the manner the price is to be paid by the vendee.
Under Article 1458 of the New Civil Code, in a contract of sale, whether absolute or conditional, one
of the contracting parties obliges himself to transfer the ownership of and deliver a determinate thing,
and the other to pay therefor a price certain in money or its equivalent. A contract of sale is perfected
at the moment there is a meeting of the minds upon the thing which is the object of the contract and
the price. From the averment of perfection, the parties are bound, not only to the fulfillment of what
has been expressly stipulated, but also to all the consequences which, according to their nature,
may be in keeping with good faith, usage and law. 55 On the other hand, when the contract of sale or
to sell is not perfected, it cannot, as an independent source of obligation, serve as a binding juridical
relation between the parties.56

A definite agreement as to the price is an essential element of a binding agreement to sell personal
or real property because it seriously affects the rights and obligations of the parties. Price is an
essential element in the formation of a binding and enforceable contract of sale. The fixing of the
price can never be left to the decision of one of the contracting parties. But a price fixed by one of
the contracting parties, if accepted by the other, gives rise to a perfected sale. 57

It is not enough for the parties to agree on the price of the property. The parties must also agree on
the manner of payment of the price of the property to give rise to a binding and enforceable contract
of sale or contract to sell. This is so because the agreement as to the manner of payment goes into
the price, such that a disagreement on the manner of payment is tantamount to a failure to agree on
the price.58

In a contract to sell property by installments, it is not enough that the parties agree on the price as
well as the amount of downpayment. The parties must, likewise, agree on the manner of payment of
the balance of the purchase price and on the other terms and conditions relative to the sale. Even if
the buyer makes a downpayment or portion thereof, such payment cannot be considered as
sufficient proof of the perfection of any purchase and sale between the parties. Indeed, this Court
ruled in Velasco v. Court of Appeals59 that:

It is not difficult to glean from the aforequoted averments that the petitioners themselves admit that
they and the respondent still had to meet and agree on how and when the down-payment and the
installment payments were to be paid. Such being the situation, it cannot, therefore, be said that a
definite and firm sales agreement between the parties had been perfected over the lot in question.
Indeed, this Court has already ruled before that a definite agreement on the manner of payment of
the purchase price is an essential element in the formation of a binding and enforceable contract of
sale. The fact, therefore, that the petitioners delivered to the respondent the sum of ₱10,000.00 as
part of the downpayment that they had to pay cannot be considered as sufficient proof of the
perfection of any purchase and sale agreement between the parties herein under article 1482 of the
New Civil Code, as the petitioners themselves admit that some essential matter – the terms of
payment – still had to be mutually covenanted.60

We agree with the contention of the petitioner that, as held by the CA, there is no showing, in the
records, of the schedule of payment of the balance of the purchase price on the property amounting
to ₱278,448.00. We have meticulously reviewed the records, including Ramos’ February 8, 1972
and August 22, 1972 letters to respondents,61 and find that said parties confined themselves to
agreeing on the price of the property (₱348,060.00), the 20% downpayment of the purchase price
(₱69,612.00), and credited respondents for the ₱34,887.00 owing from Ramos as part of the 20%
downpayment. The timeline for the payment of the balance of the downpayment (₱34,724.34) was
also agreed upon, that is, on or before XEI resumed its selling operations, on or before December
31, 1972, or within five (5) days from written notice of such resumption of selling operations. The
parties had also agreed to incorporate all the terms and conditions relating to the sale, inclusive of
the terms of payment of the balance of the purchase price and the other substantial terms and
conditions in the "corresponding contract of conditional sale," to be later signed by the parties,
simultaneously with respondents’ settlement of the balance of the downpayment.

The February 8, 1972 letter of XEI reads:

Mr. Carlos T. Manalo, Jr.

Hurricane Rotary Well Drilling
Rizal Avenue Ext.,Caloocan City

Dear Mr. Manalo:

We agree with your verbal offer to exchange the proceeds of your contract with us to form as a down
payment for a lot in our Xavierville Estate Subdivision.

Please let us know your choice lot so that we can fix the price and terms of payment in
our conditional sale.

Sincerely yours,

XAVIERVILLE ESTATE, INC.

(Signed)
EMERITO B. RAMOS, JR.
President

CONFORME:

(Signed)
CARLOS T. MANALO, JR.
Hurricane Rotary Well Drilling62

The August 22, 1972 letter agreement of XEI and the respondents reads:

Mrs. Perla P. Manalo

1548 Rizal Avenue Extensionbr>Caloocan City

Dear Mrs. Manalo:

This is to confirm your reservation of Lot Nos. 1 and 2; Block 2 of our consolidation-subdivision plan
as amended, consisting of 1,740.3 square meters more or less, at the price of ₱200.00 per square
meter or a total price of ₱348,060.00.

It is agreed that as soon as we resume selling operations, you must pay a down payment of 20% of
the purchase price of the said lots and sign the corresponding Contract of Conditional Sale, on or
before December 31, 1972, provided, however, that if we resume selling after December 31, 1972,
then you must pay the aforementioned down payment and sign the aforesaid contract within five (5)
days from your receipt of our notice of resumption of selling operations.

In the meanwhile, you may introduce such improvements on the said lots as you may desire, subject
to the rules and regulations of the subdivision.
If the above terms and conditions are acceptable to you, please signify your conformity by signing on
the space herein below provided.

Thank you.

Very truly yours,

XAVIERVILLE ESTATE, INC. CONFORME:

By:

(Signed) (Signed)
EMERITO B. RAMOS, JR. PERLA P. MANALO

President Buyer63

Based on these two letters, the determination of the terms of payment of the ₱278,448.00 had yet to
be agreed upon on or before December 31, 1972, or even afterwards, when the parties sign the
corresponding contract of conditional sale.

Jurisprudence is that if a material element of a contemplated contract is left for future negotiations,
the same is too indefinite to be enforceable.64 And when an essential element of a contract is
reserved for future agreement of the parties, no legal obligation arises until such future agreement is
concluded.65

So long as an essential element entering into the proposed obligation of either of the parties remains
to be determined by an agreement which they are to make, the contract is incomplete and
unenforceable.66 The reason is that such a contract is lacking in the necessary qualities of
definiteness, certainty and mutuality.67

There is no evidence on record to prove that XEI or OBM and the respondents had agreed, after
December 31, 1972, on the terms of payment of the balance of the purchase price of the property
and the other substantial terms and conditions relative to the sale. Indeed, the parties are in
agreement that there had been no contract of conditional sale ever executed by XEI, OBM or
petitioner, as vendor, and the respondents, as vendees. 68

The ruling of this Court in Buenaventura v. Court of Appeals has no bearing in this case because the
issue of the manner of payment of the purchase price of the property was not raised therein.

We reject the submission of respondents that they and Ramos had intended to incorporate the terms
of payment contained in the three contracts of conditional sale executed by XEI and other lot buyers
in the "corresponding contract of conditional sale," which would later be signed by them. 69 We have
meticulously reviewed the respondents’ complaint and find no such allegation therein. 70 Indeed,
respondents merely alleged in their complaint that they were bound to pay the balance of the
purchase price of the property "in installments." When respondent Manalo, Jr. testified, he was never
asked, on direct examination or even on cross-examination, whether the terms of payment of the
balance of the purchase price of the lots under the contracts of conditional sale executed by XEI and
other lot buyers would form part of the "corresponding contract of conditional sale" to be signed by
them simultaneously with the payment of the balance of the downpayment on the purchase price.
We note that, in its letter to the respondents dated June 17, 1976, or almost three years from the
execution by the parties of their August 22, 1972 letter agreement, XEI stated, in part, that
respondents had purchased the property "on installment basis."71 However, in the said letter, XEI
failed to state a specific amount for each installment, and whether such payments were to be made
monthly, semi-annually, or annually. Also, respondents, as plaintiffs below, failed to adduce a shred
of evidence to prove that they were obliged to pay the ₱278,448.00 monthly, semi-annually or
annually. The allegation that the payment of the ₱278,448.00 was to be paid in installments is, thus,
vague and indefinite. Case law is that, for a contract to be enforceable, its terms must be certain and
explicit, not vague or indefinite.72

There is no factual and legal basis for the CA ruling that, based on the terms of payment of the
balance of the purchase price of the lots under the contracts of conditional sale executed by XEI and
the other lot buyers, respondents were obliged to pay the ₱278,448.00 with pre-computed interest of
12% per annum in 120-month installments. As gleaned from the ruling of the appellate court, it failed
to justify its use of the terms of payment under the three "contracts of conditional sale" as basis for
such ruling, to wit:

On the other hand, the records do not disclose the schedule of payment of the purchase price, net of
the downpayment. Considering, however, the Contracts of Conditional Sale (Exhs. "N," "O" and "P")
entered into by XEI with other lot buyers, it would appear that the subdivision lots sold by XEI, under
contracts to sell, were payable in 120 equal monthly installments (exclusive of the downpayment but
including pre-computed interests) commencing on delivery of the lot to the buyer. 73

By its ruling, the CA unilaterally supplied an essential element to the letter agreement of XEI and the
Respondents. Courts should not undertake to make a contract for the parties, nor can it enforce one,
the terms of which are in doubt. 74 Indeed, the Court emphasized in Chua v. Court of Appeals 75 that it
is not the province of a court to alter a contract by construction or to make a new contract for the
parties; its duty is confined to the interpretation of the one which they have made for themselves,
without regard to its wisdom or folly, as the court cannot supply material stipulations or read into
contract words which it does not contain.

Respondents, as plaintiffs below, failed to allege in their complaint that the terms of payment of the
₱278,448.00 to be incorporated in the "corresponding contract of conditional sale" were those
contained in the contracts of conditional sale executed by XEI and Soller, Aguila and Roque. 76 They
likewise failed to prove such allegation in this Court.

The bare fact that other lot buyers were allowed to pay the balance of the purchase price of lots
purchased by them in 120 or 180 monthly installments does not constitute evidence that XEI also
agreed to give the respondents the same mode and timeline of payment of the ₱278,448.00.

Under Section 34, Rule 130 of the Revised Rules of Court, evidence that one did a certain thing at
one time is not admissible to prove that he did the same or similar thing at another time, although
such evidence may be received to prove habit, usage, pattern of conduct or the intent of the parties.

Similar acts as evidence. – Evidence that one did or did not do a certain thing at one time is not
admissible to prove that he did or did not do the same or a similar thing at another time; but it may
be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or
usage, and the like.

However, respondents failed to allege and prove, in the trial court, that, as a matter of business
usage, habit or pattern of conduct, XEI granted all lot buyers the right to pay the balance of the
purchase price in installments of 120 months of fixed amounts with pre-computed interests, and that
XEI and the respondents had intended to adopt such terms of payment relative to the sale of the two
lots in question. Indeed, respondents adduced in evidence the three contracts of conditional sale
executed by XEI and other lot buyers merely to prove that XEI continued to sell lots in the
subdivision as sales agent of OBM after it acquired said lots, not to prove usage, habit or pattern of
conduct on the part of XEI to require all lot buyers in the subdivision to pay the balance of the
purchase price of said lots in 120 months. It further failed to prive that the trial court admitted the
said deeds77 as part of the testimony of respondent Manalo, Jr.78

Habit, custom, usage or pattern of conduct must be proved like any other facts. Courts must contend
with the caveat that, before they admit evidence of usage, of habit or pattern of conduct, the offering
party must establish the degree of specificity and frequency of uniform response that ensures more
than a mere tendency to act in a given manner but rather, conduct that is semi-automatic in nature.
The offering party must allege and prove specific, repetitive conduct that might constitute evidence
of habit. The examples offered in evidence to prove habit, or pattern of evidence must be numerous
enough to base on inference of systematic conduct. Mere similarity of contracts does not present the
kind of sufficiently similar circumstances to outweigh the danger of prejudice and confusion.

In determining whether the examples are numerous enough, and sufficiently regular, the key criteria
are adequacy of sampling and uniformity of response. After all, habit means a course of behavior of
a person regularly represented in like circumstances. 79 It is only when examples offered to establish
pattern of conduct or habit are numerous enough to lose an inference of systematic conduct that
examples are admissible. The key criteria are adequacy of sampling and uniformity of response or
ratio of reaction to situations.80

There are cases where the course of dealings to be followed is defined by the usage of a particular
trade or market or profession. As expostulated by Justice Benjamin Cardozo of the United States
Supreme Court: "Life casts the moulds of conduct, which will someday become fixed as law. Law
preserves the moulds which have taken form and shape from life." 81 Usage furnishes a standard for
the measurement of many of the rights and acts of men. 82 It is also well-settled that parties who
contract on a subject matter concerning which known usage prevail, incorporate such usage by
implication into their agreement, if nothing is said to be contrary. 83

However, the respondents inexplicably failed to adduce sufficient competent evidence to prove
usage, habit or pattern of conduct of XEI to justify the use of the terms of payment in the contracts of
the other lot buyers, and thus grant respondents the right to pay the ₱278,448.00 in 120 months,
presumably because of respondents’ belief that the manner of payment of the said amount is not an
essential element of a contract to sell. There is no evidence that XEI or OBM and all the lot buyers in
the subdivision, including lot buyers who pay part of the downpayment of the property purchased by
them in the form of service, had executed contracts of conditional sale containing uniform terms and
conditions. Moreover, under the terms of the contracts of conditional sale executed by XEI and three
lot buyers in the subdivision, XEI agreed to grant 120 months within which to pay the balance of the
purchase price to two of them, but granted one 180 months to do so.84 There is no evidence on
record that XEI granted the same right to buyers of two or more lots.

Irrefragably, under Article 1469 of the New Civil Code, the price of the property sold may be
considered certain if it be so with reference to another thing certain. It is sufficient if it can be
determined by the stipulations of the contract made by the parties thereto 85 or by reference to an
agreement incorporated in the contract of sale or contract to sell or if it is capable of being
ascertained with certainty in said contract;86 or if the contract contains express or implied provisions
by which it may be rendered certain;87 or if it provides some method or criterion by which it can be
definitely ascertained.88 As this Court held in Villaraza v. Court of Appeals, 89 the price is considered
certain if, by its terms, the contract furnishes a basis or measure for ascertaining the amount agreed
upon.

We have carefully reviewed the August 22, 1972 letter agreement of the parties and find no direct or
implied reference to the manner and schedule of payment of the balance of the purchase price of the
lots covered by the deeds of conditional sale executed by XEI and that of the other lot buyers 90 as
basis for or mode of determination of the schedule of the payment by the respondents of the
₱278,448.00.

The ruling of this Court in Mitsui Bussan Kaisha v. Manila Electric Railroad and Light Company 91 is
not applicable in this case because the basic price fixed in the contract was ₱9.45 per long ton, but it
was stipulated that the price was subject to modification "in proportion to variations in calories and
ash content, and not otherwise." In this case, the parties did not fix in their letters-agreement, any
method or mode of determining the terms of payment of the balance of the purchase price of the
property amounting to ₱278,448.00.

It bears stressing that the respondents failed and refused to pay the balance of the downpayment
and of the purchase price of the property amounting to ₱278,448.00 despite notice to them of the
resumption by XEI of its selling operations. The respondents enjoyed possession of the property
without paying a centavo. On the other hand, XEI and OBM failed and refused to transmit a contract
of conditional sale to the Respondents. The respondents could have at least consigned the balance
of the downpayment after notice of the resumption of the selling operations of XEI and filed an action
to compel XEI or OBM to transmit to them the said contract; however, they failed to do so.

As a consequence, respondents and XEI (or OBM for that matter) failed to forge a perfected contract
to sell the two lots; hence, respondents have no cause of action for specific performance against
petitioner. Republic Act No. 6552 applies only to a perfected contract to sell and not to a contract
with no binding and enforceable effect.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 47458 is REVERSED and SET ASIDE. The Regional Trial Court of
Quezon City, Branch 98 is ordered to dismiss the complaint. Costs against the Respondents.

SO ORDERED.