MA. PAZ FERNANDEZ KROHN, Petitioner, v. COURT OF APPEALS and EDGAR KROHN, JR.,Respondents.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; PRIVILEGED COMMUNICATION; PHYSICIAN-PATIENT PRIVILEGE; PURPOSE. — statutes making communications between physician and patient privileged are intended to inspire confidence in the patient and encourage him to make a full disclosure to his physician of his symptoms and condition. Consequently, this prevents the physician from making public information that will result in humiliation, embarrassment, or disgrace to the patient. For, the patient should rest assured with the knowledge that the law recognizes the communication as confidential, and guards against the possibility of his feelings being shocked or his reputation tarnished by their subsequent disclosure. The physician-patient privilege creates a zone of privacy, intended to preclude the humiliation of the patient that may follow the disclosure of his ailments. Indeed, certain types of information communicated in the context of the physician-patient relationship fall within the constitutionally protected zone of privacy, including a patient’s interest in keeping his mental health records confidential. Thus, it has been observed that the psychotherapist-patient privilege is founded upon the notion that certain forms of antisocial behavior may be prevented by encouraging those in need of treatment for emotional problems to secure the services of a psychotherapist.

2. ID.; ID.; ID.; ID.; REQUISITES; NOT COMPLIED WITH IN CASE AT BAR. — Lim v. Court of Appeals (214 SCRA 273 [1992]) clearly lays down the requisites in order that the privilege may be successfully invoked: (a) the privilege is claimed in a civil cases; (b) the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; (c) such person acquired the information while he was attending to the patient in his professional capacity; (d) the information was necessary to enable him to act in that capacity; and, (e) the information was confidential and, if disclosed, would blacken the reputation (formerly character) of the patient." In the instant case, the person against whom the privilege is claimed is not one duly authorized to practice medicine, surgery obstetrics. He is simply the patient’s husband who wishes to testify on a document executed by medical practitioners. Plainly and clearly, this does not fall within the claimed prohibition. Neither can his testimony be considered a circumvention of the prohibition because his testimony cannot have the force and effect of the testimony of the physician who examined the patient and executed the report.

3. ID.; ID.; HEARSAY TESTIMONY; EFFECT OF FAILURE TO OBJECT THERETO. — Counsel for petitioner indulged heavily in objecting to the testimony of private respondent on the ground that it was privileged. In his Manifestation before the trial court dated 10 May 1991, he invoked the rule on privileged communications but never questioned the testimony as hearsay. It was a fatal mistake. For, in failing to object to the testimony on the ground that it was hearsay, counsel waived his right to make such objection and, consequently, the evidence offered may be admitted. 

4. CONSTITUTIONAL LAW; SUPREME COURT; TRIAL JUDGE AND COUNSELS ENJOINED TO AVOID STRATAGEMS THAT FURTHER DELAY CASE; CASE AT BAR. — The instant appeal has taken its toll on the petition for annulment. Three years have already lapsed and private respondent herein, as petitioner before the trial court, has yet to conclude his testimony thereat. We thus enjoin the trial judge and the parties’ respective counsel to act with deliberate speed in resolving the main action, and avoid any and all stratagems that may further delay this case. If all lawyers are allowed to appeal every perceived indiscretion of a judge in the course of trial and include in their appeals depthless issues, there will be no end to litigations, and the docket of appellate courts will forever be clogged with inconsequential cases. Hence, counsel should exercise prudence in appealing lower court rulings and raise only legitimate issues so as not to retard the resolution of cases. Indeed, there is no point in unreasonably delaying the resolution of the petition and prolonging the agony of the wedded couple who after coming out from a storm still have the right to a renewed blissful life either alone or in the company of each other.

D E C I S I O N

BELLOSILLO, J.:

A confidential psychiatric evaluation report is being presented in evidence before the trial court in a petition for annulment of marriage grounded on psychological incapacity. The witness testifying on the report is the husband who initiated the annulment proceedings, not the physician who prepared the report. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

The subject of the evaluation report, Ma. Paz Fernandez Krohn, invoking the rule on privileged communication between physician and patient, seeks to enjoin her husband from disclosing the contents of the report. After failing to convince the trial court and the appellate court, she is now before us on a petition for review on certiorari.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

On 14 June 1964, Edgar Krohn, Jr., and Ma. Paz Fernandez were married at the Saint Vincent de Paul Church in San Marcelino, Manila. The union produced three children, Edgar Johannes, Karl Wilhelm and Alexandra. Their blessings notwithstanding, the relationship between the couple developed into a stormy one. In 1971, Ma. Paz underwent psychological testing purportedly in an effort to ease the martial strain. The effort however proved futile. In 1973, they finally separated in fact. 

In 1975, Edgar was able to secure a copy of the confidential psychiatric report on Ma. Paz prepared and signed by Drs. Cornelio Banaag, Jr., and Baltazar Reyes. On 2 November 1978, presenting the report among others, he obtained a decree ("Conclusion") from the Tribunal Metropolitanum Matrimoniale in Manila nullifying his church marriage with Ma. Paz on the ground of "incapacitas assumendi onera conjugalia due to lack of due discretion existent at the time of the wedding and thereafter." 1 On 10 July 1979, the decree was confirmed and pronounced "Final and Definite." 2 

Meanwhile, on 30 July 1982, the then Court of First Instance (now Regional Trial Court) of Pasig, Br. II, issued an order granting the voluntary dissolution of the conjugal partnership. 

On 23 October 1990, Edgar filed a petition for the annulment of his marriage with Ma. Paz before the trial court. 3 In his petition, he cited the Confidential Psychiatric Evaluation Report which Ma. Paz merely denied in her Answer as "either unfounded or irrelevant." 4 

At the hearing on 8 May 1991, Edgar took the witness stand and tried to testify on the contents of the Confidential Psychiatric Evaluation Report. This was objected to on the ground that it violated the rule on privileged communication between physician and patient. Subsequently, Ma. Paz filed a Manifestation expressing her "continuing objection" to any evidence, oral or documentary, "that would thwart the physician-patient privileged communication rule," 5 and thereafter submitted a Statement for the Record asserting among others that "there is no factual or legal basis whatsoever for petitioner (Edgar) to claim ‘psychological incapacity’ to annul their marriage, such ground being completely false, fabricated and merely an afterthought." 6 Before leaving for Spain where she has since resided after their separation, Ma. Paz also authorized and instructed her counsel to oppose the suit and pursue her counterclaim even during her absence.chanrobles virtual lawlibrary

On 29 May 1991, Edgar opposed Ma. Paz’ motion to disallow the introduction of the confidential psychiatric report as evidence, 7 and afterwards moved to strike out Ma. Paz’ Statement for the Record. 8 

On 4 June 1991, the trial court issued an Order admitting the Confidential Psychiatric Evaluation Report in evidence and ruling that —

. . . the Court resolves to overrule the objection and to sustain the Opposition to the respondent’s Motion; first, because the very issue in this case is whether or not the respondent had been suffering from psychological incapacity; and secondly, when the said psychiatric report was referred to in the compliant, the respondent did not object thereto on the ground of the supposed privileged communication between patient and physician. What was raised by the respondent was that the said psychiatric report was irrelevant. So, the Court feels that in the interest of justice and for the purpose of determining whether the respondent as alleged in the petition was suffering from psychological incapacity, the said psychiatric report is very material and may be testified to by petitioner (Edgar Krohn, Jr.) without prejudice on the part of the respondent to dispute the said report or to cross-examine first the petitioner and later the psychiatrist who prepared the same if the latter will be presented. 9 

On 27 November 1991, the trial court denied the Motion to Reconsider Order dated June 4, 1991, and directed that the Statement for the Record filed by Ma. Paz be stricken off the record. A subsequent motion for reconsideration filed by her counsel was likewise denied. 

Counsel of Ma. Paz then elevated the issue to respondent Court of Appeals. In a Decision promulgated 30 October 1992, the appellate court dismissed the petition for certiorari. 10 On 5 February 1993, the motion to reconsider the dismissal was likewise denied. Hence, the instant petition for review. chanrobles lawlibrary : rednad

Petitioner now seeks to enjoin the presentation and disclosure of the contents of the psychiatric report and prays for the admission of her Statement for the Record to form part of the records of the case. She argues that since Sec. 24, par. (c), Rule 130, of the Rules of Court 11 prohibits a physician from testifying on matters which he may have acquired in attending to a patient in a professional capacity, "WITH MORE REASON should a third person (like respondent-husband in this particular instance) be PROHIBITED from testifying on privileged matters between a physician and patient or from submitting any medical report, findings or evaluation prepared by a physician which the latter has acquired as a result of his confidential and privileged relation with a patient." 12 She says that the reason behind the prohibition is —

. . . to facilitate and make safe, full and confidential disclosure by a patient to his physician of all facts, circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient. 13 

She further argues that to allow her husband to testify on the contents of the psychiatric evaluation report "will set a very bad and dangerous precedent because it abets circumvention of the rule’s intent in preserving the sanctity, security and confidence to the relation of physician and his patient." 14 Her thesis is that what cannot be done directly should not be allowed to be done indirectly.

Petitioner submits that her Statement for the Record simply reiterates under oath what she asserted in her Answer, which she failed to verify as she had already left for Spain when her Answer was filed. She maintains that her "Statement for the Record is a plain and simple pleading and is not as it has never been intended to take the place of her testimony;" 15 hence, there is no factual and legal basis whatsoever to expunge it from the records.chanrobles virtual lawlibrary

Private respondent Edgar Krohn, Jr., however contends that "the rules are very explicit: the prohibition applies only to a physician. Thus . . . . the legal prohibition to testify is not applicable to the case at bar where the person sought to be barred from testifying on the privileged communication is the husband and not the physician of the petitioner." 16 In fact, according to him, the Rules sanction his testimony considering that a husband may testify against his wife in a civil case filed by one against the other. 

Besides, private respondent submits that privileged communication may be waived by the person entitled thereto, and this petitioner expressly did when she gave her unconditional consent to the use of the psychiatric evaluation report when it was presented to the Tribunal Metropolitanum Matrimoniale which took it into account among others in deciding the case and declaring their marriage null and void. Private respondent further argues that petitioner also gave her implied consent when she failed to specifically object to the admissibility of the report in her Answer where she merely described the evaluation report as "either unfounded or irrelevant." At any rate, failure to interpose a timely objection at the earliest opportunity to the evidence presented on privileged matters may be construed as an implied waiver. chanrobles.com:cralaw:red

With regard to the Statement for the Record filed by petitioner, private respondent posits that this in reality is an amendment of her Answer and thus should comply with pertinent provisions of the Rules of the Court, hence, its exclusion from the records for failure to comply with the Rules is proper. 

The treatise presented by petitioner on the privileged nature of the communication between physician and patient, as well as the reasons therefor, is not doubted. Indeed, statutes making communications between physician and patient privileged are intended to inspire confidence in the patient and encourage him to make a full disclosure to his physician of his symptoms and condition. 17 Consequently, this prevents the physician from making public information that will result in humiliation, embarrassment, or disgrace to the patient. 18 For, the patient should rest assured with the knowledge that the law recognizes the communication as confidential, and guards against the possibility of his feelings being shocked or his reputation tarnished by their subsequent disclosure. 19 The physician-patient privilege creates a zone of privacy, intended to preclude the humiliation of the patient that may follow the disclosure of his ailments. Indeed, certain types of information communicated in the context of the physician-patient relationship fall within the constitutionally protected zone of privacy, 20 including a patient’s interest in keeping his mental health records confidential. 21 Thus, it has been observed that the psychotherapist-patient privilege is founded upon the notion that certain forms of antisocial behavior may be prevented by encouraging those in need of treatment for emotional problems to secure the services of a psychotherapist. chanrobles law library

Petitioner’s discourse while exhaustive is however misplaced. Lim v. Court of Appeals 22 clearly lays down the requisites in order that the privilege may be successfully invoked: (a) the privilege is claimed in a civil cases; (b) the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; (c) such person acquired the information while he was attending to the patient in his professional capacity; (d) the information was necessary to enable him to act in that capacity; and, (e) the information was confidential and, if disclosed, would blacken the reputation (formerly character) of the

patient."cralaw virtua1aw library

In the instant case, the person against whom the privilege is claimed is not one duly authorized to practice medicine, surgery obstetrics. He is simply the patient’s husband who wishes to testify on a document executed by medical practitioners. Plainly and clearly, this does not fall within the claimed prohibition. Neither can his testimony be considered a circumvention of the prohibition because his testimony cannot have the force and effect of the testimony of the physician who examined the patient and executed the report.

Counsel for petitioner indulged heavily in objecting to the testimony of private respondent on the ground that it was privileged. In his Manifestation before the trial court dated 10 May 1991, he invoked the rule on privileged communications but never questioned the testimony as hearsay. It was a fatal mistake. For, in failing to object to the testimony on the ground that it was hearsay, counsel waived his right to make such objection and, consequently, the evidence offered may be admitted. 

The other issue raised by petitioner is too trivial to merit the full attention of this Court. The allegations contained in the Statement for the Records are but refutations of private respondent’s declarations which may be denied or disproved during the trial. chanrobles law library : red

The instant appeal has taken its toll on the petition for annulment. Three years have already lapsed and private respondent herein, as petitioner before the trial court, has yet to conclude his testimony thereat. We thus enjoin the trial judge and the parties’ respective counsel to act with deliberate speed in resolving the main action, and avoid any and all stratagems that may further delay this case. If all lawyers are allowed to appeal every perceived indiscretion of a judge in the course of trial and include in their appeals depthless issues, there will be no end to litigations, and the docket of appellate courts will forever be clogged with inconsequential cases. Hence, counsel should exercise prudence in appealing lower court rulings and raise only legitimate issues so as not to retard the resolution of cases. Indeed, there is no point in unreasonably delaying the resolution of the petition and prolonging the agony of the wedded couple who after coming out from a storm still have the right to a renewed blissful life either alone or in the company of each other. 23 

WHEREFORE, the instant petition for review is DENIED for lack of merit. The assailed Decision of respondent Court of Appeals promulgated on 30 October 1992 is AFFIRMED. cralawnad

SO ORDERED. [G.R. No. 103737. December 15, 1994.]

NORA S. EUGENIO AND ALFREDO Y. EUGENIO, Petitioners, v. HON. COURT OF APPEALS AND PEPSI-COLA BOTTLING COMPANY OF THE PHILIPPINES , INC., Respondents.

D E C I S I O N

REGALADO, J.:

Private respondent Pepsi-Cola Bottling Company of the Philippines, Inc. is engaged in the business of manufacturing, bottling and selling soft drinks and beverages to the general public. Petitioner Nora S. Eugenio was a dealer of the softdrink products of private respondent corporation. Although she had only one store located at 27 Diamond Street, Emerald Village, Marikina, Metro Manila, Eugenio had a regular charge account in both the Quezon City plant (under the name "Abigail Minimart" **) as well as in the Muntinlupa plant (under the name "Nora Store") of respondent corporation. Her husband and co-petitioner, Alfredo Y. Eugenio, used to be a route manager of private respondent in its Quezon City plant. chanrobles virtual lawlibrary

On March 17, 1982, private respondent filed a complaint for a sum of money against petitioners Nora S. Eugenio and Alfredo Y. Eugenio, docketed as Civil Case No. Q-34718 of the then Court of First Instance of Quezon City, Branch 9 (now Regional Trial Court, Quezon City, Branch 97). In its complaint, respondent corporation alleged that on several occasions in 1979 and 1980, petitioners purchased and received on credit various products from its Quezon City plant. As of December 31, 1980, petitioners allegedly had an outstanding balance of P20,437.40 therein. Likewise, on various occasions in 1980, petitioners also purchased and received on credit various products from respondent’s Muntinlupa plant and, as of December 31, 1989, petitioners supposedly had an outstanding balance of P38,357.20 there. In addition, it was claimed that petitioners had an unpaid obligation for the loaned "empties" from the same plant in the amount of P35,856.40 as of July 11, 1980. Altogether, petitioners had an outstanding account of P94,651.00 which, so

the complaint alleged, they failed to pay despite oral and written demands. 1 

In their defense, petitioners presented four trade provisional receipts (TPRs) allegedly issued to and received by them from private respondent’s Route Manager Jovencio Estrada of its Malate Warehouse (Division 57), showing payments in the total sum of P80,500.00 made by Abigail’s Store. Petitioners contended that had the amounts in the TPRs been credited in their favor, they would not be indebted to Pepsi-Cola. The details of said receipts are as follows:chanrob1es virtual 1aw library

TPR No. Date of Issue Amount

500320 600 Fulls returned 5/ 6/80 P23,520.00

500326 600 Fulls returned 5/10/80 P23,520.00

500344 600 Fulls returned 5/14/80 P23,520.00

500346 Cash 5/15/80 P10,000.00 2 

————

Total P80,560.00

Further, petitioners maintain that the signature purporting to be that of petitioner Nora S. Eugenio in Sales Invoice No. 85366 dated May 15, 1980 in the amount of P5,631.00, 3 which was included in the computation of their alleged debt, is a falsification. In sum, petitioners argue that if the aforementioned amounts were credited in their favor, it would be respondent corporation which would be indebted to them in the sum of P3,546.02 representing overpayment.chanrobles lawlibrary : rednad

After trial on the merits, the court a quo rendered a decision on February 17, 1986, ordering petitioners, as defendants therein to jointly and severally pay private respondent the amount of P74,849.00, plus 12% interest per annum until the principal amount shall have been fully paid, as well as P20,000.00 as attorney’s fees. 4 On appeal in CA-G.R. CV No. 10623, the Court of Appeals declared said decision a nullity for failure to comply with the requirement in Section 14, Article VIII of the 1987 Constitution that decisions of courts should clearly and distinctly state the facts and the law on which they are based. The Court of Appeals accordingly remanded the records of the case to the trial court, directing it to render another decision in accordance with the requirements of the Constitution. 5 

In compliance with the directive of the Court of Appeals, the lower court rendered a second decision on September 29, 1989. In this new decision, petitioners were this time ordered to pay, jointly and severally, the reduced amount of P64,188.60, plus legal interest of 6% per annum from the filing of the action until full payment of the amount adjudged. 6 On appeal therefrom, the Court of Appeals affirmed the judgment of the trial court in a decision promulgated on September 27, 1991. 7 A motion for the reconsideration of said judgment of respondent court was subsequently denied in a resolution dated January 23, 1992. 8 

We agree with petitioners and respondent court that the crux of the dispute in the case at bar is whether or not the amounts in the aforementioned trade provisional receipts should be credited in favor of herein petitioner spouses. In so-called encyclopedic sense, however, our course of action in this case and the denouement of the controversy therein takes into account the jurisprudential rule that in the present recourse we would normally have restricted ourselves to questions of law and eschewed questions of fact were it not for our perception that the lower courts manifestly overlooked certain relevant factual considerations resulting in a misapprehension thereof. Consequentially, that position shall necessarily affect our analysis of the rules on the burden of proof and the burden of evidence, and ultimately, whether the proponent of the corresponding claim has preponderated or rested on an equipoise or fallen short of preponderance.

First, the backdrop. It appears that on August 1, 1981, private respondent through the head of its Legal Department, Atty. Antonio N. Rosario, sent an inter-office correspondence to petitioner Alfredo Eugenio inviting him for an interview/interrogation on August 3, 1981 regarding alleged "non-payment of debts to the company, inefficiency, and loss of trust and confidence." 9 The interview was reset to August 4, 1981 to enable said petitioner to bring along with him their union president, Luis Isip. On said date, a statement of overdue accounts were prepared showing that petitioners owed respondent corporation the following amounts:chanrob1es virtual 1aw library

Muntinlupa Plant

Nora’s StoreTrade Account P38,357.20 (as of 12/3/80) 10 

Loaned Empties P35,856.40 (as of 7/11/81) 11 

Quezon City Plant

Abigail Minimart

Regular Account P20,437.40 (as of 1980) 12 

————

Total P94,651.00

A reconciliation of petitioners’ account was then conducted. The liability of petitioners as to the loaned empties (Muntinlupa plant, Nora Store) was reduced to P21,686.00 after a reevaluation of the value of the loaned empties. 13 Likewise, the amount of P5,631.00 under Invoice No. 85366, which was a spurious document, was deducted from their liability in their trade account with the Muntinlupa plant. 14 Thereafter Eugenio and Isip signed the reconciliation sheets reflecting these items: chanrob1es virtual 1aw library

Muntinlupa Plant

Nora Store

Trade Account P32,726.20 15 

Loaned Empties P21,686.00 16 

Quezon City Plant

Abigail Minimart

Trade Account P20,437.20 17 

————

Total P74,849.40

After the meeting, private respondent alleged that petitioner Alfredo Y. Eugenio requested that he be allowed to retire and the existing accounts be deducted from his retirement pay, but that he later withdrew his retirement plan. Said petitioner disputed that allegation and, in fact, he subsequently filed a complaint for illegal dismissal. The finding of labor arbiter, later affirmed by the Supreme Court, showed that this petitioner was indeed illegally dismissed, and that he never filed an application for retirement. In fact, this Court made a finding that the retirement papers allegedly filed in the name of this petitioner were forged. 18 This makes two falsified documents to be foisted against petitioners.

With their aforesaid accounts still unpaid, petitioner Alfredo Y. Eugenio submitted to Atty. Rosario the aforementioned four TPRs. Thereafter, Atty. Rosario ordered Daniel Azurin, assistant personnel manager, to conduct an investigation to verify this claim of petitioners. According to Azurin, during the investigation on December 4, 1981, Estrada allegedly denied that he issued and signed the aforesaid TPRs. 19 He also presented a supposed affidavit which Estrada allegedly executed during that investigation to affirm his verbal statements therein. Surprisingly, however, said supposed affidavit is inexplicably dated February 5, 1982. 20 At this point, it should be noted that Estrada never testified thereafter in court and what he is supposed to have done or said was merely related by Azurin.

Now, on this point, respondent disagreed with herein petitioners that the testimony on the alleged denial of Jovencio Estrada regarding his signatures on the disputed TPRs, as well as his affidavit dated February 5, 1982 21 wherein he affirmed his denial, are hearsay evidence because Estrada was not presented as a witness to testify and be cross-examined thereon. Except for the terse statement of respondent court that since petitioner Alfredo Eugenio was supposedly present on December 4, 1981," (t)he testimony of Jovencio Estrada at the aforementioned investigation categorically denying that he issued and signed the disputed TPRs is, therefore, not hearsay," 22 there was no further explanation on this unusual doctrinal departure. chanrobles.com : virtual law library

The rule is clear and explicit. Under the hearsay evidence rule, a witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise

provided in the Rules. 23 In the present case, Estrada failed to appear as a witness at the trial. It was only Azurin who testified that during the investigation he conducted, Estrada supposedly denied having signed the TPRs. It is elementary that under the measure on hearsay evidence, Azurin’s testimony cannot constitute legal proof as to the truth of Estrada’s denial. For that matter, it is not admissible in evidence, petitioners’ counsel having seasonably objected at the trial to such testimony of Azurin as hearsay. And, even if not objected to and thereby admissible, such hearsay evidence has no probative value whatsoever. 24 

It is true that the testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. 25 Private respondent cannot, however, seek sanctuary in this exception to the hearsay evidence rule.

Firstly, the supposed investigation conducted by Azurin was neither a judicial trial nor an administrative hearing under statutory regulations and safeguards. It was merely an inter-office interview conducted by a personnel officer through an ad hoc arrangement. Secondly, a perusal of the alleged stenographic notes, assuming arguendo that these notes are admissible in evidence, would show that the "investigation" was more of a free-flowing question and answer type of discussion wherein Estrada was asked some questions, after which Eugenio was likewise asked other questions. Indeed, there was no opportunity for Eugenio to object, much less to cross-examine Estrada. Even in a formal prior trial itself, if the opportunity for cross-examination did not exist therein or if the accused was not afforded opportunity to fully cross-examine the witness when the testimony was offered, evidence relating to the testimony given therein is thereafter inadmissible in another proceeding, absent any conduct on the part of the accused amounting to a waiver of his right to cross-examine. 26 

Thirdly, the stenographer was not even presented to authenticate the stenographic notes submitted to the trial court. A copy of the stenographic report of the entire testimony at the former trial must be supported by the oath of the stenographer that it is a correct transcript of his notes of the testimony of the witness as a sine qua non for its competency and admissibility in evidence. 27 The supposed stenographic notes on which respondent corporation relies is unauthenticated and necessarily inadmissible for the purpose intended.

Lastly, although herein private respondent insinuated that Estrada was not presented as a witness because he had disappeared, no evidence whatsoever was offered to show or even intimate that this was due to any machination or instigation of petitioners. There is no showing that his absence was procured , or that he was eloigned, through acts imputable to petitioners. In the case at bar, except for the self-serving statement that Estrada had disappeared, no plausible explanation was given by respondent corporation. Estrada was an employee of private respondent, hence it can be assumed that it could easily trace or ascertain his whereabouts. It had the resources to do so, in contradistinction to petitioners who even had to seek the help of the Public Attorney’s Office to defend them here. Private respondent could not have been unaware of the importance of Estrada’s testimony and the consequent legal necessity for presenting him in the trial court, through coercive process if necessary.

Obviously, neither is the affidavit of Estrada admissible; it is likewise barred as evidence by the hearsay evidence rule. 28 This is aside from the fact that, by their nature, affidavits are generally not prepared by the affiants themselves but by another who uses his own language in writing the affiant’s statements, which may thus be either omitted or misunderstood by the one writing them. 29 The dubiety of that affidavit, as earlier explained, is further underscored by the fact that it was executed more than two months after the investigation, presumably for curative purposes as it were.

Now, the authenticity of a handwriting may be proven, among other means, by its comparison made by the witness or the court with writings admitted or treated as genuine by the party against whom the evidence is offered or proved to be genuine to the satisfaction of the judge. 30 The alleged affidavit of Estrada states." . . that the comparison that was made as to the authenticity of the signature appearing in the TPRs and that of my signature showed that there was an apparent dissimilarity between the two signatures, xerox copy of my 201 File is attached hereto as Annex ‘F’ of this affidavit. 31 However, a search of the Folder of Exhibits in this case does not reveal that private respondent ever submitted any document, not even the aforementioned 201 File, containing a specimen signature of Estrada which the Court can use as a basis for comparison. Neither was any document containing a specimen of Estrada’s signature presented by respondent in the formal offer of its exhibits. 32 

Respondent court made the further observation that "Estrada was even asked by Atty. Azurin at said investigation to sign three times to provide specimens of his genuine signature." 33 There is, however, no showing that he did, but assuming that Estrada signed the stenographic notes, the Court would still be unable to make the necessary comparison because two signatures appear on the right margin of each and every page of the stenographic notes, without any indication whatsoever as to which of the signatures is Estrada’s. The whole document was marked for identification but the signatures were not. In fact, although

formally offered, it was merely introduced by the private respondent "in order to show that Jovencio Estrada had been investigated and categorically denied having collected from Abigail Minimart and denying having signed the receipts claimed by Alfredo Eugenio to be his payment," 34 and not for the purpose of presenting any alleged signature of Estrada on the document as a basis for comparison.

This is a situation that irresistibly arouses judicial curiosity, if not suspicion. Respondent corporation was fully aware that its case rested, as it were, on the issue of whether the TPRs were authentic and which issue, in turn, turned on the genuineness of Estrada’s signatures thereon. Yet, aside from cursorily dismissing the non-presentation of Estrada in court by the glib assertion that he could not be found, and necessarily aware that his alleged denial of his signatures on said TPRs and his affidavit rendered the same vulnerable to the challenge that they are hearsay and inadmissible, respondent corporation did nothing more. In fact, Estrada’s disappearance has not been explained up to the present. chanroblesvirtualawlibrary

The next inquiry then would be as to what exactly is the nature of the TPRs insofar as they are used in the day-to-day business transactions of the company. These trade provisional receipts are bound and given in booklets to the company sales representatives, under proper acknowledgment by them and with a record of distribution thereof. After every transaction, when a collection is made the customer is given by the sales representative a copy of the trade provisional receipt, that is the triplicate copy or customer’s copy, properly filled up to reflect the completed transaction. All unused TPRs, as well as the collections made, are turned over by the sales representative to the appropriate company officer. 35 

According to respondent court, "the questioned TPR’s are merely ‘provisional’ and were, as printed at the bottom of said receipts, as to be officially confirmed by plaintiff within fifteen (15) days by delivering the original copy thereof stamped paid and signed by its cashier to the customer. . . . Defendants-appellants (herein petitioners) failed to present the original copies of the TPRs in question, showing that they were never confirmed by the plaintiff, nor did they demand from plaintiff the confirmed original copies thereof." 36 

We do not agree with the strained implication intended to be adverse to petitioners. The TPRs presented in evidence by petitioners are disputably presumed in evidence as evidentiary of payments made on account of petitioners. There are presumptions juris tantum in law that private transactions have been fair and regular and that the ordinary course of business has been followed. 37 The role of presumptions in the law on evidence is to relieve the party enjoying the same of evidential burden to prove the proposition that he contends for, and to shift the burden of evidence to the adverse party. Private respondent having failed to rebut the aforestated presumptions in favor of valid payment by petitioners, these would necessarily continue to stand in favor in this case. 

Besides, even assuming arguendo that herein private respondent’s cashier never received the amounts reflected in the TPRs, still private respondent failed to prove that Estrada, who is its duly authorized agent with respect to petitioners, did not receive those amounts from the latter. As correctly explained by petitioners, "in so far as the private respondent’s customers are concerned, for as long as they pay their obligations to the sales representative of the private respondent using the latter’s official receipt, said payment extinguishes their obligations." 38 Otherwise, it would unreasonably cast the burden of supervision over its employees from respondent corporation to its customers.

The substantive law is that payment shall be made to the person in whose favor the obligation has been constituted, or his successor-in-interest or any person authorized to receive it. 39 As far as third persons are concerned, an act is deemed to have been performed within the scope of the agent’s authority, if such is within the terms of the power of attorney, as written, even if the agent has in fact exceeded the limits of his authority according to an understanding between the principal and his agent. 40 In fact, Atty. Rosario, private respondent’s own witness, admitted that "it is the responsibility of the collector to turn over the collection." 41 

Still pursuing its ruling in favor of respondent corporation, the Court of Appeals makes the following observation: jgc:chanrobles.com.ph

". . . Having allegedly returned 600 Fulls to the plaintiff’s representative on May 6, 10, and 14, 1980, appellant-wife’s Abigail Store must have received more than 1,800 cases of softdrinks from plaintiff before those dates. Yet the Statement of Overdue Account pertaining to Abigail Minimart (Exhs.’D’, ‘D-1’ to ‘D-3’) which appellant-husband and his representative Luis Isip signed on August 3, 1981 does now show more than 1,800 cases of soft drinks were delivered to Abigail Minimart by plaintiff’s Quezon City Plant (which supposedly issued the disputed TPRs) in May, 1989 or the month before." 42 

We regret the inaccuracy in said theory of respondent court which was impelled by its sole and limited reliance on a mere statement of overdue amounts. Unlike a statement of account which truly reflects the

day-to-day movement of an account, a statement of an overdue amount is only a summary of the account, simply reflecting the balance due thereon. A statement of account, being more specific and detailed in nature, allows one to readily see and verify if indeed, deliveries were made during a specific period of time, unlike a bare statement of overdue payments. Respondent court cannot make its aforequoted categorical deduction unless supporting documents accompanying the statement of overdue amounts were submitted to enable easy and accurate verification of the facts.

A perusal of the statement of overdue accounts shows that, except for a reference number given for each entry, no further details were volunteered nor offered. It is entirely possible that the statement of overdue account merely reflects the outstanding debt of a particular client, and not the specific particulars, such as deliveries made, particularly since the entries therein were surprisingly entered irrespective of their chronological order. Obviously, therefore, one can not use the statement of overdue amounts as conclusive proof of deliveries done within a particular time frame.

Except for its speculation that petitioner Alfredo Y. Eugenio could have had easy access to blank forms of the TPRs because he was a former route manager no evidence whatsoever was presented by private respondent in support of that theory. We are accordingly intrigued by such an unkind assertion of respondent corporation since Azurin himself admitted that their accounting department could not even inform them regarding the persons to whom the TPRs were issued. 43 In addition, it is significant that respondent corporation did not take proper action if indeed some receipts were actually lost, such as the publication of the fact of loss of the receipts, with the corresponding investigation into the matter.

We, therefore, reject as attenuated the comment of the trial court that the TPRs, which Eugenio submitted after the reconciliation meeting, "smacks too much of an afterthought." 44 The reconciliation meeting was held on August 4, 1981. Three months later, on November, 1981, petitioner Alfredo Y. Eugenio submitted the four TPRs. He explained, and this was not disputed, that at the time the reconciliation meeting was held, his daughter Nanette, who was helping his wife manage the store, had eloped and she had possession of the TPRs. 45 It was only in November, 1981 when petitioners were able to talk to Nanette that they were able to retrieve said TPRs. He added that during the reconciliation meeting, Atty. Rosario assured him that any receipt he may submit later will be credited in his favor, hence he signed the reconciliation documents. Accordingly, when he presented the TPRs to private respondent, Atty. Rosario directed Mr. Azurin to verify the TPRs. Thus, the amount stated in the reconciliation sheet was not final, as it was still subject to such receipts as may thereafter be presented by petitioners.

On the other hand, petitioners claimed that the signature of petitioner Nora S. Eugenio in Sales Invoice No. 85366, in the amount of P5,631.00 is spurious and should accordingly be deducted from the disputed amount of P74,849.40. A scrutiny of the reconciliation sheet shows that said amount had already been deducted upon the instruction of one Mr. Coloma, Plant Controller of Pepsi-Cola , Muntinlupa Plant. 46 That amount is not disputed by respondent corporation and should no longer be deducted from the total liability of petitioner in the sum of P74,849.40. Since petitioners had made a payment of P80,560.00, there was consequently an overpayment of P5,710.60.

All told, we are constrained to hold that respondent corporation has dismally failed to comply with the pertinent rules for the admission of the evidence by which it sought to prove its contentions. Furthermore, there are questions left unanswered and begging for cogent explanations why said respondent did not or could not comply with the evidentiary rules. Its default inevitably depletes the weight of its evidence which cannot just be in vacuo, with the result that for lack of the requisite quantum of evidence, it has not discharged the burden of preponderant proof necessary to prevail in this case.

WHEREFORE, the judgment of respondent Court of Appeals in C.A. G.R. CV No. 26901, affirming that of the trial court in Civil Case No. Q-34718, is ANNULLED and SET ASIDE. Private respondent Pepsi-Cola Bottling Company of the Philippines, Inc. is hereby ORDERED to pay petitioners Nora and Alfredo Eugenio the amount of P5,710.60 representing overpayment made to the former.

SO ORDERED.

G.R. No. L-59524 February 18, 1985

JOVITO R. SALONGA, Petitioner, vs. HON. ERNANI CRUZ PAÑO, Presiding Judge of the Court of First Instance of Rizal Branch XVIII (Quezon City), HON. JUDGE RODOLFO ORTIZ, Presiding Judge of the Court of First Instance of Rizal, Branch XXXI (Quezon City) CITY FISCAL SERGIO APOSTOL of Quezon City; COL. BALBINO DIEGO and COL. ROMAN MADELLA, Respondents.chanrobles virtual law library

GUTIERREZ, JR., J.:

The petitioner invokes the constitutionally protected right to life and liberty guaranteed by the due process clause, alleging that no prima facie case has been established to warrant the filing of an information for subversion against him. Petitioner asks this Court to prohibit and prevent the respondents from using the iron arm of the law to harass, oppress, and persecute him, a member of the democratic opposition in the Philippines.chanroblesvirtualawlibrary chanrobles virtual law library

The background of this case is a matter of public knowledge.chanroblesvirtualawlibrary chanrobles virtual law library

A rash of bombings occurred in the Metro Manila area in the months of August, September and October of 1980. On September 6, 1980, one Victor Burns Lovely, Jr., a Philippine-born American citizen from Los Angeles, California, almost killed himself and injured his younger brother, Romeo, as a result of the explosion of a small bomb inside his room at the YMCA building in Manila. Found in Lovely's possession by police and military authorities were several pictures taken sometime in May, 1980 at the birthday party of former Congressman Raul Daza held at the latter's residence in a Los Angeles suburb. Petitioner Jovito R. Salonga and his wife were among those whose likenesses appeared in the group pictures together with other guests, including Lovely.chanroblesvirtualawlibrary chanrobles virtual law library

As a result of the serious injuries he suffered, Lovely was brought by military and police authorities to the AFP Medical Center (V. Luna Hospital) where he was placed in the custody and detention of Col. Roman P. Madella, under the over-all direction of General Fabian Ver, head of the National Intelligence and Security Authority (NISA). Shortly afterwards, Mr. Lovely and his two brothers, Romeo and Baltazar Lovely were charged with subversion, illegal possession of explosives, and damage to property.chanroblesvirtualawlibrary chanrobles virtual law library

On September 12, 1980, bombs once again exploded in Metro Manila including one which resulted in the death of an American lady who was shopping at Rustan's Supermarket in Makati and others which caused injuries to a number of persons.chanroblesvirtualawlibrary chanrobles virtual law library

On September 20, 1980, the President's anniversary television radio press conference was broadcast. The younger brother of Victor Lovely, Romeo, was presented during the conference. In his interview, Romeo stated that he had driven his elder brother, Victor, to the petitioner's house in Greenhills on two occasions. The first time was on August 20, 1980. Romeo stated that Victor did not bring any bag with him on that day when he went to the petitioner's residence and did not carry a bag when he left. The second time was in the afternoon of August 31, 1980 when he brought Victor only to the gate of the petitioner's house. Romeo did not enter the petitioner's residence. Neither did he return that day to pick up his brother.chanroblesvirtualawlibrary chanrobles virtual law library

The next day, newspapers came out with almost Identical headlines stating in effect that petitioner had been linked to the various bombings in Metro Manila.chanroblesvirtualawlibrary chanrobles virtual law library

Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's intensive care unit and transferred to the office of Col. Madella where he was held incommunicado for some time.chanroblesvirtualawlibrary chanrobles virtual law library

On the night of October 4, 1980, more bombs were reported to have exploded at three big hotels in Metro Manila, namely: Philippine Plaza, Century Park Sheraton and Manila Peninsula. The bombs injured nine people. A meeting of the General Military Council was called for October 6, 1980.chanroblesvirtualawlibrary chanrobles virtual law library

On October 19, 1980, minutes after the President had finished delivering his speech before the International Conference of the American Society of Travel Agents at the Philippine International Convention Center, a small bomb exploded. Within the next twenty-four hours, arrest, search, and seizure orders (ASSOs) were issued against persons who were apparently implicated by Victor Lovely in the series of bombings in Metro Manila. One of them was herein petitioner. Victor Lovely offered himself to be a "state witness" and in his letter to the President, he stated that he will reveal everything he knows about the bombings.chanroblesvirtualawlibrary chanrobles virtual law library

On October 21, 1980, elements of the military went to the hospital room of the petitioner at the Manila Medical Center where he was confined due to his recurrent and chronic ailment of bronchial asthma and placed him under arrest. The arresting officer showed the petitioner the ASSO form which however did not specify the charge or charges against him. For some time, the petitioner's lawyers were not permitted to visit him in his hospital room until this Court in the case of Ordoñez v. Gen. Fabian Ver, et al., (G.R. No. 55345, October 28, 1980) issued an order directing that the petitioner's right to be visited by counsel be respected.chanroblesvirtualawlibrary chanrobles virtual law library

On November 2, 1980, the petitioner was transferred against his objections from his hospital arrest to an isolation room without windows in an army prison camp at Fort Bonifacio, Makati. The petitioner states that he was not informed why he was transferred and detained, nor was he ever investigated or questioned by any military or civil authority.chanroblesvirtualawlibrary chanrobles virtual law library

Subsequently, on November 27, 1980, the petitioner was released for humanitarian reasons from military custody and placed "under house arrest in the custody of Mrs. Lydia Salonga" still without the benefit of any investigation or charges.chanroblesvirtualawlibrary chanrobles virtual law library

On December 10, 1980, the Judge Advocate General sent the petitioner a "Notice of Preliminary Investigation" in People v. Benigno Aquino, Jr., et al. (which included petitioner as a co-accused), stating that "the preliminary investigation of the above-entitled case has been set at 2:30 o'clock p.m. on December 12, 1980" and that petitioner was given ten (10) days from receipt of the charge sheet and the supporting evidence within which to file his counter-evidence. The petitioner states that up to the time martial law was lifted on January 17, 1981, and despite assurance to the contrary, he has not received any copies of the charges against him nor any copies of the so-called supporting evidence.chanroblesvirtualawlibrary chanrobles virtual law library

On February 9, 1981, the records of the case were turned over by the Judge Advocate General's Office to the Ministry of Justice.chanroblesvirtualawlibrary chanrobles virtual law library

On February 24, 1981, the respondent City Fiscal filed a complaint accusing petitioner, among others of having violated Republic Act No. 1700, as amended by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142 of the Revised Penal Code. The inquest court set the preliminary investigation for March 17, 1981.chanroblesvirtualawlibrary chanrobles virtual law library

On March 6, 1981, the petitioner was allowed to leave the country to attend a series of church conferences and undergo comprehensive medical examinations of the heart, stomach, liver, eye and ear including a possible removal of his left eye to save his right eye. Petitioner Salonga almost died as one of the principal victims of the dastardly bombing of a Liberal Party rally at Plaza Miranda on August 20, 1971. Since then, he has suffered serious disabilities. The petitioner was riddled with shrapnel and pieces still remain in various parts of his body. He has an AV fistula caused by a piece of shrapnel lodged one millimeter from his aorta. The petitioner has limited use of his one remaining hand and arms, is completely blind and physical in the left eye, and has scar like formations in the remaining right eye. He is totally deaf in the right ear and partially deaf in the left ear. The petitioner's physical ailments led him to seek treatment abroad.chanroblesvirtualawlibrary chanrobles virtual law library

On or around March 26, 1981, the counsel for petitioner was furnished a copy of an amended complaint signed by Gen. Prospero Olivas, dated March 12, 1981, charging the petitioner, along with 39 other accused with the violation of R.A. 1700, as amended by P.D. 885, Batas Pambansa Blg. 31 and P.D. 1736. Hearings for preliminary investigation were conducted. The prosecution presented as its witnesses Ambassador Armando Fernandez, the Consul General of the Philippines in Los Angeles, California, Col. Balbino Diego, PSC/NISA Chief, Investigation and Legal Panel of the Presidential Security Command and Victor Lovely himself.chanroblesvirtualawlibrary chanrobles virtual law library

On October 15, 1981, the counsel for petitioner filed a motion to dismiss the charges against petitioner for failure of the prosecution to establish a prima facie case against him.chanroblesvirtualawlibrary chanrobles virtual law library

On December 2, 1981, the respondent judge denied the motion. On January 4, 1982, he issued a resolution ordering the filing of an information for violation of the Revised Anti-Subversion Act, as amended, against forty (40) people, including herein petitioner.chanroblesvirtualawlibrary chanrobles virtual law library

The resolutions of the respondent judge dated December 2, 1981 and January 4, 1982 are now the subject of the petition. It is the contention of the petitioner that no prima facie case has been established by the prosecution to justify the filing of an information against him. He states that to sanction his further prosecution despite the lack of evidence against him would be to admit that no rule of law exists in the Philippines today.chanroblesvirtualawlibrary chanrobles virtual law library

After a painstaking review of the records, this Court finds the evidence offered by the prosecution utterly insufficient to establish a prima facie case against the petitioner. We grant the petition.chanroblesvirtualawlibrary chanrobles virtual law library

However, before going into the merits of the case, we shall pass upon a procedural issue raised by the respondents.chanroblesvirtualawlibrary chanrobles virtual law library

The respondents call for adherence to the consistent rule that the denial of a motion to quash or to dismiss, being interlocutory in character, cannot be questioned by certiorari; that since the question of dismissal will again be considered by the court when it decides the case, the movant has a plain, speedy and adequate remedy in the ordinary course of law; and that public interest dictates that criminal prosecutions should not be enjoined.chanroblesvirtualawlibrary chanrobles virtual law library

The general rule is correctly stated. However, the respondents fail to appreciate or take into account certain exceptions when a petition for certiorari is clearly warranted. The case at bar is one such exception.chanroblesvirtualawlibrary chanrobles virtual law library

In the case of Mead v. Angel (115 SCRA 256) the same contentions were advanced by the respondents to wit:

xxx xxx xxxchanrobles virtual law library

... Respondents advert to the rule that when a motion to quash filed by an accused in a criminal case shall be denied, the remedy of the accused-movant is not to file a petition for certiorari or mandamus or prohibition, the proper recourse being to go to trial, without prejudice to his right to reiterate the grounds invoked in his motion to quash if an adverse judgment is rendered against him, in the appeal that he may take therefrom in the manner authorized by law. (Mill v. People, et al., 101 Phil. 599; Echarol v. Purisima, et al., 13 SCRA 309.)

On this argument, we ruled:

There is no disputing the validity and wisdom of the rule invoked by the respondents. However, it is also recognized that, under certain situations, recourse to the extraordinary legal remedies of certiorari, prohibition or mandamus to question the denial of a motion to quash is considered proper in the interest of "more enlightened and substantial justice", as was so declared in "Yap v. Lutero, G.R. No. L-12669, April 30, 1969."

Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. The integrity of a democratic society is corrupted if a person is carelessly included in the trial of around forty persons when on the very face of the record no evidence linking him to the alleged conspiracy exists. Ex-Senator Jovito Salonga, himself a victim of the still unresolved and heinous Plaza Miranda bombings, was arrested at the Manila Medical Center while hospitalized for bronchial asthma. When arrested, he was not informed of the nature of the charges against him. Neither was counsel allowed to talk to him until this Court intervened through the issuance

of an order directing that his lawyers be permitted to visit him (Ordonez v. Gen. Fabian Ver, et al., G.R. No. 55345, October 28, 1980). Only after four months of detention was the petitioner informed for the first time of the nature of the charges against him. After the preliminary investigation, the petitioner moved to dismiss the complaint but the same was denied. Subsequently, the respondent judge issued a resolution ordering the filing of an information after finding that a prima facie case had been established against an of the forty persons accused.chanroblesvirtualawlibrary chanrobles virtual law library

In the light of the failure to show prima facie that the petitioner was probably guilty of conspiring to commit the crime, the initial disregard of petitioner's constitutional rights together with the massive and damaging publicity made against him, justifies the favorable consideration of this petition by this Court. With former Senator Benigno Aquino, Jr. now deceased, there are at least 38 other co-accused to be tried with the petitioner. The prosecution must present proof beyond reasonable doubt against each and every one of the 39 accused, most of whom have varying participations in the charge for subversion. The prosecution's star witness Victor Lovely and the only source of information with regard to the alleged link between the petitioner and the series of terrorist bombings is now in the United States. There is reason to believe the petitioner's citation of international news dispatches * that the prosecution may find it difficult if not infeasible to bring him back to the Philippines to testify against the petitioner. If Lovely refused to testify before an American federal grand jury how could he possibly be made to testify when the charges against the respondent come up in the course of the trial against the 39 accused. Considering the foregoing, we find it in the interest of justice to resolve at this stage the issue of whether or not the respondent judge gravely abused his discretion in issuing the questioned resolutions.chanroblesvirtualawlibrary chanrobles virtual law library

The respondents contend that the prosecution will introduce additional evidence during the trial and if the evidence, by then, is not sufficient to prove the petitioner's guilt, he would anyway be acquitted. Yes, but under the circumstances of this case, at what cost not only to the petitioner but to the basic fabric of our criminal justice system? chanrobles virtual law library

The term "prima facie evidence" denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain the proposition it supports or to establish the facts, or to counter-balance the presumption of innocence to warrant a conviction. The question raised before us now is: Were the evidences against the petitioner uncontradicted and if they were unexplained or uncontradicted, would they, standing alone, sufficiently overcome the presumption of innocence and warrant his conviction? chanrobles virtual law library

We do not think so.chanroblesvirtualawlibrary chanrobles virtual law library

The records reveal that in finding a case against the petitioner, the respondent judge relied only on the testimonies of Col. Balbino Diego and Victor Lovely. Ambassador Armando Fernandez, when called upon to testify on subversive organizations in the United States nowhere mentioned the petitioner as an organizer, officer or member of the Movement for Free Philippines (MFP), or any of the organizations mentioned in the complaint. Col. Diego, on the other hand, when asked what evidence he was able to gather against the petitioner depended only on the statement of Lovely "that it was the residence of ex-

Senator Salonga where they met together with Renato Tañada, one of the brains of the bombing conspiracy ... and the fact that Sen. Salonga has been meeting with several subversive personnel based in the U.S.A. was also revealed to me by Victor Burns Lovely; 11 and on the group pictures taken at former Congressman Raul Daza's birthday party. In concluding that a conspiracy exists to overthrow by violent means the government of the Philippines in the United States, his only bases were "documentary as well as physical and sworn statements that were referred to me or taken by me personally," which of course negate personal knowledge on his part. When asked by the court how he would categorize petitioner in any of the subversive organizations, whether petitioner was an organizer, officer or a member, the witness replied:

A. To categorize former Senator Salonga if he were an organizer, he is an officer or he is a member, your Honor, please, we have to consider the surrounding circumstances and on his involvement: first, Senator Salonga wanted always to travel to the United States at least once a year or more often under the pretext of to undergo some sort of operation and participate in some sort of seminar. (t.s.n., April 21, 1981, pp- 14-15)

Such testimony, being based on affidavits of other persons and purely hearsay, can hardly qualify as prima facie evidence of subversion. It should not have been given credence by the court in the first place. Hearsay evidence, whether objected to or not, -has no probative value as the affiant could not have been cross-examined on the facts stated therein. (See People v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as Victor Lovely, himself, was personally examined by the court, there was no need for the testimony of Col. Diego. Thus, the inquest judge should have confined his investigation to Victor Burns Lovely, the sole witness whose testimony had apparently implicated petitioner in the bombings which eventually led to the filing of the information.chanroblesvirtualawlibrary chanrobles virtual law library

Lovely's account of the petitioner's involvement with the former's bombing mission is found in his sworn statement made before Col. Diego and Lt. Col. Madella and taken on October 17, 1980 at the AFP Medical Center. Lovely was not presented as a prosecution or state witness but only as a defense witness for his two younger brothers, Romeo and Baltazar, who were both included in the complaint but who were later dropped from the information. Victor Lovely was examined by his counsel and cross-examined by the fiscal. In the process, he Identified the statement which he made before Col. Diego and Lt. Col. Madella. After Lovely's testimony, the prosecution made a manifestation before the court that it was adopting Lovely as a prosecution witness.chanroblesvirtualawlibrary chanrobles virtual law library

According to Lovely's statement, the following events took place:

36. Q. Did Psinakis tell you where to stay? chanrobles virtual law library

A. Yes, at first he told me to check-in at Manila Hotel or the Plaza Hotel where somebody would come to contact me and give the materials needed in the execution of my mission. I thought this was not safe so I disagreed with him. Mr. Psinakis changed the plan and instead told me to visit the residence of Ex-Sen. Jovito Salonga as often as I can and someone will meet me there to give the materials I needed to accomplish my mission chanrobles virtual law library

37. Q. Did you comply as instructed? chanrobles virtual law library

A. Yes, I arrived in Manila on August 20, 1980 and stayed at the residence of Mr. Johnny Chua, husband of my business partner, then I went to the Hospital where I visited my mother and checked-in at Room 303 of the YMCA at Concepcion Street, Manila.chanroblesvirtualawlibrary chanrobles virtual law library

38. Q. Did you visit the residence of former Senator Jovito Salonga as directed by Psinakis? chanrobles virtual law library

A. I visited Sen. Salonga's place three (3) times, the first visit was August 20 or 21, and the last was 4:00 P.M. of August 31, 1980. In addition to these visits, I TALKED to him on the phone about three or four times. On my first visit, I told him "I am expecting an attache case from somebody which will be delivered to your house," for which Sen. Salonga replied "Wala namang nagpunta dito at wala namang attache case para sa iyo." However, if your attache case arrives, I'll just call you." I gave him my number. On my second visit, Salonga said, "I'll be very busy so just come back on the 31st of August at 4 P.M." On that date, I was with friends at Batulao Resort and had to hurry back to be at Salonga's place for the appointment. I arrived at Salonga's place at exactly 4 P.M.chanroblesvirtualawlibrary chanrobles virtual law library

39. Q. What happened then? chanrobles virtual law library

A. I was ushered to the sala by Mrs. Salonga and after five minutes, Sen. Salonga joined me in the sala. Sen. Salonga informed me that somebody will be coming to give me the attache case but did not tell me the name.chanroblesvirtualawlibrary chanrobles virtual law library

40. Q. Are there any subject matters you discuss while waiting for that somebody to deliver your materials? chanrobles virtual law library

A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to him the efforts of Raul Daza in setting up that meeting but I have previous business commitments at Norfolk, Virginia. I told him, however, that through the efforts of Raul Daza, I was able to talk with Ninoy Aquino in the airport telephone booth in San Francisco. He also asked about Raul Daza, Steve Psinakis and the latest opposition group activities but it seems he is well informed.chanroblesvirtualawlibrary chanrobles virtual law library

41. Q. How long did you wait until that somebody arrived? chanrobles virtual law library

A. About thirty (30) minutes.chanroblesvirtualawlibrary chanrobles virtual law library

41. Q. What happened when the man arrived? chanrobles virtual law library

A. This man arrived and I was greatly surprised to see Atty. Renato Tañada Jovy Salonga was the one who met him and as I observed parang nasa sariling bahay si Tañada nung dumating. They talked for five (5) minutes in very low tones so I did not hear what they talked about. After their whispering conversations, Sen. Salonga left and at this time Atty. "Nits" Tañada told me "Nasa akin ang kailangan mo, nasa kotse." chanrobles virtual law library

43. Q. Were the materials given to you? chanrobles virtual law library

A. When Sen. Salonga came back, we asked to be permitted to leave and I rode in Atty. "Nits" Tañadas old Pontiac car colored dirty brown and proceeded to Broadway Centrum where before I alighted, Atty. Tañada handed me a "Puma" bag containing all the materials I needed.

xxx xxx xxx

45. Q. What were the contents of the Puma bag? chanrobles virtual law library

A. Ten (10) pieces of Westclox pocket watch with screw and wirings, ten (10) pieces electrical blasting caps 4" length, ten (10) pieces non-electrical blasting caps 1 " length, nine (9) pieces volts dry cell battery, two (2) improvised electrical testers. ten (10) plastic packs of high explosive about 1 pound weight each.

However, in his interview with Mr. Ronnie Nathanielz which was aired on Channel 4 on November 8, 1980 and which was also offered as evidence by the accused, Lovely gave a different story which negates the above testimony insofar as the petitioner's participation was concerned:

xxx xxx xxx

Q. Who were the people that you contacted in Manila and for what purpose? chanrobles virtual law library

A. Before I left for the Philippines, Mr. Psinakis told me to check in at the Manila Hotel or the Plaza Hotel, and somebody would just deliver the materials I would need. I disapproved of this, and I told him I would prefer a place that is familiar to me or who is close to me. Mr. Psinakis suggested the residence of Sen. Salonga.chanroblesvirtualawlibrary chanrobles virtual law library

And so, I arrived in Manila on August 20, 1980, 1 made a call to Sen. Salonga, but he was out. The next day I made a call again. I was able to contact him. I made an appointment t see him. I went to Sen. �Salonga's house the following day. I asked Sen. Salonga if someone had given him an attache case for me. He said nobody. Afterwards, I made three calls to Sen. Salonga. Sen. Salonga told me "call me again on the 31st of August. I did not call him, I just went to his house on the 31st of August at 4 P.M. A few minutes after my arrival Atty. Renato Tañada arrived. When he had a chance to be near me, he (Atty. Tanada) whispered to me that he had the attache case and the materials I needed in his car. These materials were given to me by Atty. Tanada When I alighted at the Broadway Centrum. (Emphasis supplied)

During the cross-examination, counsel for petitioner asked Lovely about the so-called destabilization plan which the latter mentioned in his sworn statement:

Q. You mentioned in your statement taken on October 17, 1980, marked Exhibit "G" about the so-called destabilization plan of Aquino. When you attended the birthday party of Raul Daza wherein Jovito

Salonga was also present, was this destabilization plan as alleged by you already formulated? chanrobles virtual law library

WITNESS: chanrobles virtual law library

A. Not to my knowledge.chanroblesvirtualawlibrary chanrobles virtual law library

COURT TO WITNESS: chanrobles virtual law library

Q. Mr. Witness, who invited you to the party? chanrobles virtual law library

A. Raul Daza, your Honor.chanroblesvirtualawlibrary chanrobles virtual law library

Q. Were you told that Mr. Salonga would be present in the party.chanroblesvirtualawlibrarychanrobles virtual law library

A. I am really not quite sure, your Honor.chanroblesvirtualawlibrary chanrobles virtual law library

Q. Alright. You said initially it was social but then it became political. Was there any political action taken as a result of the party? chanrobles virtual law library

A. Only political discussion, your Honor. (TSN, July 8, 1981, pp. 69-84).

Counsel for petitioner also asked Lovely whether in view of the latter's awareness of the physical condition of petitioner, he really implicated petitioner in any of the bombings that occurred in Metro Manila. The fiscal objected without stating any ground. In sustaining the objection, the Court said:

Sustained . . . The use of the word 'implicate' might expand the role of Mr. Salonga. In other words, you are widening the avenue of Mr. Salonga's role beyond the participation stated in the testimony of this witness about Mr. Salonga, at least, as far as the evidence is concerned, I supposed, is only being in the house of Mr. Salonga which was used as the contact point. He never mentions Mr. Salonga about the bombings. Now these words had to be put in the mouth of this witness. That would be unfair to Mr. Salonga. (TSN. July 8, 1981, p. 67)

Respondent judge further said:

COURT: chanrobles virtual law library

As the Court said earlier, the parts or portions affecting Salonga only refers to the witness coming to Manila already then the matter of . . . I have gone over the statement and there is no mention of Salonga insofar as activities in the United States is concerned. I don't know why it concerns this cross-examination.chanroblesvirtualawlibrary chanrobles virtual law library

ATTY. YAP: chanrobles virtual law library

Because according to him, it was in pursuance of the plan that he came to Manila.chanroblesvirtualawlibrary chanrobles virtual law library

COURT: chanrobles virtual law library

According to him it was Aquino, Daza, and Psinakis who asked him to come here, but Salonga was introduced only when he (Lovely) came here. Now, the tendency of the question is also to connect Salonga to the activities in the United States. It seems to be the thrust of the questions.chanroblesvirtualawlibrary chanrobles virtual law library

COURT: chanrobles virtual law library

In other words, the point of the Court as of the time when you asked him question, the focus on Salonga was only from the time when he met Salonga at Greenhills. It was the first time that the name of Salonga came up. There was no mention of Salonga in the formulation of the destabilization plan as affirmed by him. But you are bringing this up although you are only cross-examining for Salonga as if his (Lovely's) activities in the United States affected Salonga. (TSN. July 8, 1981, pp. 73-74).

Apparently, the respondent judge wanted to put things in proper perspective by limiting the petitioner's alleged "participation" in the bombing mission only to the fact that petitioner's house was used as a "contact point" between Lovely and Tañada, which was all that Lovely really stated in his testimony.chanroblesvirtualawlibrary chanrobles virtual law library

However, in the questioned resolution dated December 2, 1981, the respondent judge suddenly included the "activities" of petitioner in the United States as his basis for denying the motion to dismiss:

On the activities of Salonga in the United States, the witness, Lovely, in one of his statements declared: 'To the best of my recollection he mentioned of some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President Marcos immediately.chanroblesvirtualawlibrary chanrobles virtual law library

It is therefore clear that the prosecution's evidence has established facts and circumstances sufficient for a finding that excludes a Motion to Dismiss by respondent Salonga. The Movement for Free Philippines is undoubtedly a force born on foreign soil it appears to rely on the resources of foreign entities, and is being (sic) on gaining ascendancy in the Philippines with the use of force and for that purpose it has linked itself with even communist organizations to achieve its end. It appears to rely on aliens for its supporters and financiers.

The jump from the "contact point" theory to the conclusion of involvement in subversive activities in the United States is not only inexplicable but without foundation.chanroblesvirtualawlibrary chanrobles virtual law library

The respondents admit that no evidence was presented directly linking petitioner Salonga to actual acts of violence or terrorism. There is no proof of his direct participation in any overt acts of subversion. However, he is tagged as a leader of subversive organizations for two reasons- chanrobles virtual law library

(1) Because his house was used as a "contactpoint"; and chanrobles virtual law library

(2) Because "he mentioned some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President Marcos immediately." chanrobles virtual law library

The "contact point" theory or what the petitioner calls the guilt by visit or guilt by association" theory is too tenuous a basis to conclude that Senator Salonga was a leader or mastermind of the bombing incidents. To indict a person simply because some plotters, masquerading as visitors, have somehow met in his house or office would be to establish a dangerous precedent. The right of citizens to be secure against abuse of governmental processes in criminal prosecutions would be seriously undermined.chanroblesvirtualawlibrary chanrobles virtual law library

The testimony of Victor Lovely against petitioner Salonga is full of inconsistencies. Senator Salonga and Atty. Renato Tañada could not have whispered to one another because the petitioner is almost totally deaf. Lovely could not have met Senator Salonga at a Manglapus party in Washington, D.C. in 1977 because the petitioner left for the United States only on November, 1978. Senator Salonga denies having known Mr. Lovely in the United States or in the Philippines. He states that he has hundred of visitors from week to week in his residence but cannot recall any Victor Lovely.chanroblesvirtualawlibrary chanrobles virtual law library

The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday party in Los Angeles where Senator Salonga was a guest is not proof of conspiracy. As stated by the petitioner, in his many years in the turbulent world of politics, he has posed with all kinds of people in various groups and various places and could not possibly vouch for their conduct. Commenting on the matter, newspaper columnist Teodoro Valencia stated that Filipinos love to pose with important visitors and the picture proves nothing.chanroblesvirtualawlibrary chanrobles virtual law library

It is likewise probable that a national figure and former politician of Senator Salonga's stature can expect guests and visitors of all kinds to be visiting his home or office. If a rebel or subversive happens to pose with the petitioner for a group picture at a birthday party abroad, or even visit him with others in his home, the petitioner does not thereby become a rebel or subversive, much less a leader of a subversive group. More credible and stronger evidence is necessary for an indictment. Nonetheless, even if we discount the flaws in Lovely's testimony and dismiss the refutations and arguments of the petitioner, the prosecution evidence is still inadequate to establish a prima facie finding.chanroblesvirtualawlibrary chanrobles virtual law library

The prosecution has not come up with even a single iota of evidence which could positively link the petitioner to any proscribed activities of the Movement for Free Philippines or any subversive organization mentioned in the complaint. Lovely had already testified that during the party of former Congressman Raul Daza which was alleged to have been attended by a number of members of the MFP, no political action was taken but only political discussion. Furthermore, the alleged opinion of the petitioner about the likelihood of a violent struggle here in the Philippines if reforms are not instituted, assuming that he really stated the same, is nothing but a legitimate exercise of freedom of thought and expression. No man deserves punishment for his thoughts. Cogitationis poenam memo meretur. And as the late Justice Oliver W. Holmes stated in the case of U.S. v. Schwimmer, 279 U.S. 644, " ... if there is

any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we hate." chanrobles virtual law library

We have adopted the concept that freedom of expression is a "preferred" right and, therefore, stands on a higher level than substantive economic or other liberties. The primacy, the high estate accorded freedom of expression is a fundamental postulate of our constitutional system. (Gonzales v. Commission on Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v. Connecticut (302 U.S. 319) this must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom. Protection is especially mandated for political discussions. This Court is particularly concerned when allegations are made that restraints have been imposed upon mere criticisms of government and public officials. Political discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments.chanroblesvirtualawlibrary chanrobles virtual law library

The United States Supreme Court in Noto v. United States (367 U.S. 290) distinguished between the abstract teaching of the moral propriety or even moral necessity for a resort to force and violence and speech which would prepare a group for violent action and steel it to such action. In Watts v. United States (394 U.S. 705), the American court distinguished between criminal threats and constitutionally protected speech.chanroblesvirtualawlibrary chanrobles virtual law library

It stated:

We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. New York Times Co. v. Sullivan (376 U.S. 254). The language of the political arena, like the language used in labor disputed is often vituperative abusive, and inexact. We agree with petitioner that his only offense was a kind of very crude offensive method of stating a political opposition to the President.

In the case before us, there is no teaching of the moral propriety of a resort to violence, much less an advocacy of force or a conspiracy to organize the use of force against the duly constituted authorities. The alleged remark about the likelihood of violent struggle unless reforms are instituted is not a threat against the government. Nor is it even the uninhibited, robust, caustic, or unpleasantly sharp attack which is protected by the guarantee of free speech. Parenthetically, the American case of Brandenburg v. Ohio(395 U.S. 444) states that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. The words which petitioner allegedly used according to the best recollections of Mr. Lovely are light years away from such type of proscribed advocacy.chanroblesvirtualawlibrary chanrobles virtual law library

Political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization. Under Presidential Decree No. 885, Section 3, paragraph 6, political discussion will only constitute, prima facie evidence of membership in a subversive organization if such discussion amounts to:

(6) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof.

As stated earlier, the prosecution has failed to produce evidence that would establish any link between petitioner and any subversive organization. Even if we lend credence to Lovely's testimony that a political discussion took place at Daza's birthday party, no proof whatsoever was adduced that such discussion was in furtherance of any plan to overthrow the government through illegal means. The alleged opinion that violent struggle is likely unless reforms are instituted by no means shows either advocacy of or incitement to violence or furtherance of the objectives of a subversive organization.chanroblesvirtualawlibrary chanrobles virtual law library

Lovely also declared that he had nothing to do with the bombing on August 22, 1980, which was the only bombing incident that occurred after his arrival in Manila on August 20, and before the YMCA explosion on September 6, 1980. (See TSN, pp. 63-63, July 8, 1981). He further testified that:

WITNESS: chanrobles virtual law library

Actually, it was not my intention to do some kind of bombing against the government. My bombing mission was directed against the particular family (referring to the Cabarrus family [TSN, p. 11, July 9, 1981] [Rollo, p. 10].

Such a statement wholly negates any politically motivated or subversive assignment which Lovely was supposed to have been commissioned to perform upon the orders of his co- accused and which was the very reason why they answer charged in the first place. The respondent judge also asked Lovely about the possible relation between Cabarrus and petitioner:

COURT: chanrobles virtual law library

Q. Did you suspect any relation between Cabarrus and Jovito Salonga, why did you implicate Jovito Salonga? chanrobles virtual law library

A. No, your Honor. I did not try to implicate Salonga.

It should be noted that after Lovely's testimony, the prosecution manifested to the court that it was adopting him as a prosecution witness. Therefore, the prosecution became irreversively bound by Lovely's disclaimers on the witness stand, that it was not his intention "to do some kind of bombing against the government" and that he "did not try to implicate Salonga", especially since Lovely is the sole witness adopted by the prosecution who could supposedly establish the link between the petitioner and the bombing incidents.chanroblesvirtualawlibrary chanrobles virtual law library

The respondent court should have taken these factors into consideration before concluding that a prima facie case exists against the petitioner. Evidence must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. (People v. Dayad, 56 SCRA 439). In the case at bar, the prosecution cannot even present a credible version of the petitioner's role in the bombings even if it ignores the subsequent disclaimers of Lovely and without relying on mere affidavits including those made by Lovely during his detention.chanroblesvirtualawlibrary chanrobles virtual law library

The resolution dated January 4, 1982 suffers from the same defect. In this resolution, Lovely's previous declarations about the bombings as part of the alleged destabilization plan and the people behind the same were accorded such credibility by the respondent judge as if they had already been proved beyond reasonable doubt.chanroblesvirtualawlibrary chanrobles virtual law library

The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. Mercado v. Court of First Instance of Rizal, 116 SCRA 93).chanroblesvirtualawlibrary chanrobles virtual law library

The Court had already deliberated on this case, a consensus on the Court's judgment had been arrived at, and a draft ponencia was circulating for concurrences and separate opinions, if any, when on January 18, 1985, respondent Judge Rodolfo Ortiz granted the motion of respondent City Fiscal Sergio Apostol to drop the subversion case against the petitioner. Pursuant to instructions of the Minister of Justice, the prosecution restudied its evidence and decided to seek the exclusion of petitioner Jovito Salonga as one of the accused in the information filed under the questioned resolution.chanroblesvirtualawlibrary chanrobles virtual law library

We were constrained by this action of the prosecution and the respondent Judge to withdraw the draft ponencia from circulating for concurrences and signatures and to place it once again in the Court's crowded agenda for further deliberations.chanroblesvirtualawlibrary chanrobles virtual law library

Insofar as the absence of a prima facie case to warrant the filing of subversion charges is concerned, this decision has been rendered moot and academic by the action of the prosecution.chanroblesvirtualawlibrary chanrobles virtual law library

Respondent Fiscal Sergio Apostol correctly points out, however, that he is not precluded from filing new charges for the same acts because the petitioner has not been arraigned and double jeopardy does not apply. in that sense, the case is not completely academic.chanroblesvirtualawlibrary chanrobles virtual law library

Recent developments in this case serve to focus attention on a not too well known aspect of the Supreme Court's functions.chanroblesvirtualawlibrary chanrobles virtual law library

The setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved by the Bill of Rights for the individual as constitutionally protected spheres where even the awesome powers of Government may not enter at will is not the totality of the Court's functions.chanroblesvirtualawlibrary chanrobles virtual law library

The Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees.chanroblesvirtualawlibrary chanrobles virtual law library

In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a P1,195,200.00 bail bond as excessive and, therefore, constitutionally void, escaped from the provincial jail while his petition was pending. The petition became moot because of his escape but we nonetheless rendered a decision and stated:

The fact that the case is moot and academic should not preclude this Tribunal from setting forth in language clear and unmistakable, the obligation of fidelity on the part of lower court judges to the unequivocal command of the Constitution that excessive bail shall not be required.

In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of the Philippines could validly be created through an executive order was mooted by Presidential Decree No. 15, the Center's new charter pursuant to the President's legislative powers under martial law. Stan, this Court discussed the constitutional mandate on the preservation and development of Filipino culture for national Identity. (Article XV, Section 9, Paragraph 2 of the Constitution).chanroblesvirtualawlibrary chanrobles virtual law library

In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during the pendency of the case, 26 petitioners were released from custody and one withdrew his petition. The sole remaining petitioner was facing charges of murder, subversion, and illegal possession of firearms. The fact that the petition was moot and academic did not prevent this Court in the exercise of its symbolic function from

promulgating one of the most voluminous decisions ever printed in the Reports.chanroblesvirtualawlibrary chanrobles virtual law library

In this case, the respondents agree with our earlier finding that the prosecution evidence miserably fails to establish a prima facie case against the petitioner, either as a co-conspirator of a destabilization plan to overthrow the government or as an officer or leader of any subversive organization. They have taken the initiative of dropping the charges against the petitioner. We reiterate the rule, however, that this Court will not validate the filing of an information based on the kind of evidence against the petitioner found in the records.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the petition is DISMISSED for having become moot and academic.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

G.R. No. 93516 August 12, 1992

THE PEOPLE OF THE PHILLIPPINES, Plaintiff-Appellee, vs. BASILIO DAMASO @ Bernardo/BERNIE MENDOZA @ KA DADO, Accused-Appellant.

The Solicitor General for plaintiff-appellee.

MEDIALDEA, J.:

The accused-appellant, Basilio Damaso, was originally charged in an information filed before the Regional Trial Court of Dagupan City with violation of Presidential Decree No. 1866 in furtherance of, or incident to, or in connection with the crime of subversion, together with Luzviminda Morados y Galang @ Ka Mel, Teresita Calosa y Macabangon @ Ka Tessie, Ricardo Calosa y Perez @ Ka Ric, Marites Calosa y Evangelista @ Ka Tess, Eric Tanciangco y Capira @ Ka Ric and Luz Tanciangco y Pencial @ Ka Luz (Records, p. 3). Such information was later amended to exclude all the above-enumerated persons except the accused-appellant from the criminal charge. The amended information reads:

That an or about the 19th day of June, 1988, in the City of Dagupan, Philippines, and within the territorial jurisdiction of this Honorable Court, the above-named accused, Basilio DAMASO @ Bernardo/Bernie Mendoza @ KA DADO, did then and there, willfully, unlawfully and criminally, have in his possession, custody and control one (1) M14 Rifle bearing Serial No. 1249935 with magazine and Fifty-Seven (57) live ammunition, in furtherance of, or incident to, or in connection with the crime of subversion, filed against said accused in the above-entitled case for Violation of Republic Act 1700, as amended by Executive Order No. 276.chanroblesvirtualawlibrarychanrobles virtual law library

Contrary to Third Paragraph of Sec. 1, P.D. 1866. (Records, p. 20)

Upon arraignment, the accused-appellant pleaded not guilty to the crime charged (Records, p. 37). Trial on the merits ensued. The prosecution rested its case and offered its exhibits for admission. The counsel for accused-appellant interposed his objections to the admissibility of the prosecution's evidence on

grounds of its being hearsay, immaterial or irrelevant and illegal for lack of a search warrant. On these bases, he, thereafter, manifested that he was not presenting any evidence for the accused (TSN, December 28, 1989, p. 139). On January 17, 1990, the trial court rendered decision, the dispositive portion of which states:

WHEREFORE, the Court finds accused Basilio Damaso alias Bernardo/Bernie Mendoza alias Ka Dado guilty beyond reasonable doubt of Violation of Presidential Decree Number 1866, and considering that the Violation is in furtherance of, or incident to, or in connection with the crime of subversion, pursuant to Section 1, Paragraph 3 of Presidential Decree Number 1866 hereby sentences the accused to suffer the penalty of Reclusion Perpetua and to pay the costs of the proceedings.chanroblesvirtualawlibrarychanrobles virtual law library

The M14 Rifle bearing Serial Number 1249935 and live ammunition and all the articles and/or items seized on June 19, 1988 in connection with this case and marked and submitted in court as evidence are ordered confiscated and forfeited in favor of the government, the same to be turned over to the Philippine Constabulary Command at Lingayen, Pangasinan.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED. (Rollo, p. 31)

Thus, this present recourse with the following assignment of errors:

A. THE TRIAL COURT ERRED IN FINDING ACCUSED APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ILLEGAL POSSESSION OF FIREARMS AND AMMUNITIONS IN FURTHERANCE OF, OR INCIDENT TO, OR IN CONNECTION WITH THE CRIME OF SUBVERSION DESPITE THE WOEFULLY INADEQUATE EVIDENCE PRESENTED BY THE PROSECUTION.chanroblesvirtualawlibrarychanrobles virtual law library

B. THE COURT ERRED IN CONVICTING THE ACCUSED WHEN THE QUALIFYING CIRCUMSTANCES OF SUBVERSION WAS NOT PROVEN BY THE PROSECUTION.chanroblesvirtualawlibrarychanrobles virtual law library

C. THE LOWER COURT ERRED IN CONSIDERING AS EVIDENCE THE FIREARMS DOCUMENTS AND ITEMS LISTED IN EXHIBIT E AFTER THEY WERE DECLARED INADMISSIBLE WITH FINALITY BY ANOTHER BRANCH OF THE SAME COURT AND THE SAID EVIDENCE ARE THE FRUITS OF AN ILLEGAL SEARCH.chanroblesvirtualawlibrarychanrobles virtual law library

D. THE TRIAL COURT ERRED IN DENYING THE MOTIONS TO QUASH FILED BY ACCUSED-APPELLANT BECAUSE THE SEPARATE CHARGE FOR SUBVERSION AGAINST HIM ABSORBED THE CHARGE FOR ILLEGAL POSSESSION OF FIREARMS IN FURTHERANCE OF OR INCIDENT TO, OR IN CONNECTION WITH THE CRIME OF SUBVERSION. (pp. 55-66, Rollo)

The antecedent facts are set forth by the Solicitor General in his Brief, as follows:

On June 18, 1988, Lt. Candido Quijardo, a Philippine Constabulary officer connected with the 152nd PC Company at Lingayen, Pangasinan, and some companions were sent to verify the presence of CPP/NPA members in Barangay Catacdang, Arellano-Bani, Dagupan City. In said place, the group apprehended Gregorio Flameniano, Berlina Aritumba, Revelina Gamboa and Deogracias Mayaoa. When interrogated, the persons apprehended revealed that there was an underground safehouse at Gracia Village in Urdaneta, Pangasinan. After coordinating with the Station Commander of Urdaneta, the group proceeded to the house in Gracia Village. They found subversive documents, a radio, a 1 x 7 caliber .45 firearm and other items (pp. 4, 6-7, tsn, October 23, 1989).chanroblesvirtualawlibrarychanrobles virtual law library

After the raid, the group proceeded to Bonuan, Dagupan City, and put under surveillance the rented apartment of Rosemarie Aritumba, sister of Berlina Aritumba whom they earlier arrested. They interviewed Luzviminda Morados, a visitor of Rosemarie Aritumba. She stated that she worked with Bernie Mendoza, herein appellant. She guided the group to the house rented by appellant. When they reached the house, the group found that it had already been vacated by the occupants. Since Morados was hesitant to give the new address of Bernie Mendoza, the group looked for the Barangay Captain of the place and requested him to point out the new house rented by appellant. The group again required Morados to go with them. When they reached the house, the group saw Luz Tanciangco outside. They told her that they already knew that she was a member of the NPA in the area. At first, she denied it, but when she saw Morados she requested the group to go inside the house. Upon entering the house, the group, as well as the Barangay Captain, saw radio sets, pamphlets entitled "Ang Bayan," xerox copiers and a computer machine. They also found persons who were companions of Luz Tanciangco (namely, Teresita Calosa, Ricardo Calosa, Maries Calosa, Eric Tanciangco and Luzviminda Morados). The group requested the persons in the house to allow them to look around. When Luz Tanciangco opened one of the rooms, they saw books used for subversive orientation, one M-14 rifle, bullets and ammunitions, Kenwood radio, artificial beard, maps of the Philippines, Zambales, Mindoro an(d) Laguna and other items. They confiscated the articles and brought them to their headquarters for final inventory. They likewise brought the persons found in the house to the headquarters for investigation. Said persons revealed that appellant was the lessee of the house and owned the items confiscated therefrom (pp. 8-12, tsn, ibid; pp. 2-4, 6, 8-10, 31, tsn, October 31, 1989). (p. 5, Brief of Plaintiff-Appellee, p. 91, Rollo)

While We encourage and support law enforcement agencies in their drive against lawless elements in our society, We must, however, stress that the latter's efforts to this end must be done within the parameters of the law. In the case at bar, not only did We find that there are serious flaws in the method used by the law officers in obtaining evidence against the accused-appellant but also that the evidence as presented against him is weak to justify conviction.chanroblesvirtualawlibrarychanrobles virtual law library

We reverse.chanroblesvirtualawlibrarychanrobles virtual law library

The records of this case show that the accused-appellant was singled out as the sole violator of P.D. No. 1866, in furtherance of, or incident to, or in connection with the crime of subversion. Yet, there is no

substantial and credible evidence to establish the fact that the appellant is allegedly the same person as the lessee of the house where the M-14 rifle and other subversive items were found or the owner of the said items. The prosecution presented two witnesses who attested to this fact, thus:

Lieutenant Candito Quijardochanrobles virtual law library

Fiscalchanrobles virtual law library

Q How about this Bernie Mendoza, who was the one renting the house?chanrobles virtual law library

A He was not around at that time, but according to Luz (Tanciangco) who mentioned the name Bernie Mendoza (as) the one who was renting the house and at the same time claiming that it was Bernie Mendoza who owns the said items. (TSN of October 31, 1989, p. 40)

xxx xxx xxx

Q I am showing you another picture which we request to be marked as Exhibit "K-2," tell us if it has any connection to the house?chanrobles virtual law library

A The same house, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Now, this person who according to you allegedly occupied the house at Bonuan Gueset, by the name of Bernie Mendoza, in your capacity as a Military officer, did you find out the identity?chanrobles virtual law library

A I am not the proper (person) to tell the real identity of Bernie de Guzman.chanroblesvirtualawlibrarychanrobles virtual law library

Q Can you tell the Honorable Court the proper person who could tell the true identity of Bernie Mendoza?chanrobles virtual law library

A The Intelligence of the Pangasinan PC Command.chanroblesvirtualawlibrarychanrobles virtual law library

Q Can you name these officers?chanrobles virtual law library

A Captain Roberto Rosales and his assistant, First Lt. Federico Castro. (ibid, pp. 54-55)

M/Sqt. Artemio Gomez

Q That underground house, do you know who was the principal occupant of that house?

xxx xxx xxx

A During our conversation with the occupants, they revealed that a certain Ka Bernie is the one occupying the house, Bernie Mendozaalias Basilio Damaso.

. . . (TSN, December 27, 1989, pp. 126-128)

Clearly, the aforequoted testimonies are hearsay because the witnesses testified on matters not on their own personal knowledge. The Solicitor General, however, argues that while the testimonies may be hearsay, the same are admissible because of the failure of counsel for appellant to object thereto.chanroblesvirtualawlibrarychanrobles virtual law library

It is true that the lack of objection to a hearsay testimony results in its being admitted as evidence. But, one should not be misled into thinking that since these testimonies are admitted as evidence, they now have probative value. Hearsay evidence, whether objected to or not, cannot be given credence. In People vs. Valero, We emphatically declared that:

The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay evidence or evidence that violates the rule of res inter alios acta, or his failure to ask for the striking out of the same does not give such evidence any probative value. The lack of objection may make any incompetent evidence admissible. But admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to or not has no probative value.(L-45283-84, March 19, 1982, 112 SCRA 675, emphasis supplied)

It is unfortunate that the prosecution failed to present as witnesses the persons who knew the appellant as the lessee and owner of the M-14 rifle. In this way, the appellant could have exercised his constitutional right to confront the witnesses and to cross-examine them for their truthfulness. Likewise, the records do not show any other evidence which could have identified the appellant as the lessee of the house and the owner of the subversive items. To give probative value to these hearsay statements and convict the appellant on this basis alone would be to render his constitutional rights useless and without meaning.

Even assuming for the sake of argument that the appellant is the lessee of the house, the case against him still will not prosper, the reason being that the law enforcers failed to comply with the requirements of a valid search and seizure proceedings.chanroblesvirtualawlibrarychanrobles virtual law library

The right against unreasonable searches and seizures is enshrined in the Constitution (Article III, Section 2). The purpose of the law is to prevent violations of private security in person and property, and unlawful invasions of the sanctity of the home by officers of the law acting under legislative or judicial sanction and to give remedy against such usurpations when attempted (see Alvero v. Dizon, 76 Phil. 637, 646). However, such right is not absolute. There are instances when a warrantless search and seizure becomes valid, namely: (1) search incidental to an arrest; (2) search of a moving vehicle; and (3) seizure of evidence in plain view (Manipon, Jr. v. Sandiganbayan, L-58889, July 31, 1986, 143 SCRA 267, 276). None of these exceptions is present in this case.chanroblesvirtualawlibrarychanrobles virtual law library

The Solicitor General argues otherwise. He claims that the group of Lt. Quijardo entered the appellant's house upon invitation of Luz Tanciangco and Luzviminda Morados, helper of the appellant; that when Luz Tanciangco opened one of the rooms, they saw a copier machine, computer, M-14 rifle, bullets and ammunitions, radio set and more subversive items; that technically speaking, there was no search as the group was voluntarily shown the articles used in subversion; that besides, a search may be validly conducted without search warrant with the consent of the person searched in this case, appellant's

helper and Luz Tanciangco allowed them to enter and to look around the appellant's house; and that since the evidence seized was in plain view of the authorities, the same may be seized without a warrant.chanroblesvirtualawlibrarychanrobles virtual law library

We are not persuaded. The constitutional immunity from unreasonable searches and seizures, being personal one, cannot be waived by anyone except the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf (De Garcia v. Locsin, 65 Phil. 689, 695). In the case at bar, the records show that appellant was not in his house at that time Luz Tanciangco and Luz Morados, his alleged helper, allowed the authorities to enter it (TSN, October 31, 1989, p. 10). We Find no evidence that would establish the fact that Luz Morados was indeed the appellant's helper or if it was true that she was his helper, that the appellant had given her authority to open his house in his absence. The prosecution likewise failed to show if Luz Tanciangco has such an authority. Without this evidence, the authorities' intrusion into the appellant's dwelling cannot be given any color of legality. While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government (Rodriguez v. Evangelista, 65 Phil. 230, 235). As a consequence, the search conducted by the authorities was illegal. It would have been different if the situation here demanded urgency which could have prompted the authorities to dispense with a search warrant. But the record is silent on this point. The fact that they came to the house of the appellant at nighttime (Exh. J, p. 7, Records), does not grant them the license to go inside his house. In Alih v. Castro, We ruled that:

The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They knew where the petitioners were. They had every opportunity to get a search warrant before making the raid. If they were worried that the weapons inside the compound would be spirited away, they could have surrounded the premises in the meantime, as a preventive measure. There was absolutely no reason at all why they should disregard the orderly processes required by the Constitution and instead insist on arbitrarily forcing their way into the petitioner's premises with all the menace of a military invasion. (G.R. No. 69401, June 23, 1987, 151 SCRA 279, 286)

Another factor which illustrates the weakness of the case against the accused-appellant is in the identification of the gun which he was charged to have illegally possessed. In the amended information (supra, pp. 1-2), the gun was described as an M-14 rifle with serial no. 1249935. Yet, the gun presented at the trial bore a different serial number thus:

FISCALchanrobles virtual law library

Q Will you kindly restate again the items that you found inside the house?chanrobles virtual law library

Lt. Quijardo:chanrobles virtual law library

A When she opened the doors of the rooms that we requested for, we immediately saw different kinds of books of which we believed to be used for subversive orientation and the M-14 rifle.chanroblesvirtualawlibrarychanrobles virtual law library

Q In what portion of the house did you find this M-14 rifle which you mentioned?chanrobles virtual law library

A In the same room of which the subversive documents were placed.chanroblesvirtualawlibrarychanrobles virtual law library

Q If this firearm would be shown to you would you be able to identify the same?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q I am showing to you a rifle bearing a serial number 1249985 which for purposes of identification, may we request your Honor, that this rifle be marked as Exhibit "D."chanrobles virtual law library

COURT:chanrobles virtual law library

Mark it.chanroblesvirtualawlibrarychanrobles virtual law library

FISCAL:chanrobles virtual law library

Q Kindly examine the said firearm and tell the Honorable Court the relation of that firearm to the firearm which according to you you found inside the room allegedly occupied by one Bernie Mendoza?chanrobles virtual law library

A This is the same rifle which was discovered during our raid in the same house. (TSN, October 31, 1989, pp. 36-38, emphasis supplied).

The Solicitor General contends that the discrepancy is merely a typographical error.

We do not think so. This glaring error goes into the substance of the charge. Its correction or lack of it could spell the difference between freedom and incarceration of the accused-appellant.chanroblesvirtualawlibrarychanrobles virtual law library

In crimes of illegal possession of firearm as in this case, the prosecution has the burden to prove the existence of the firearm and that the accused who possessed or owned the firearm does not have the corresponding license for it. Since the gun as identified at the trial differs from the gun described in the amended information, the corpus delicti (the substance of the crime, the fact that a crime has actually been committed) has not been fully established. This circumstance coupled with dubious claims of appellant's connection to the house (where the gun was found) have totally emasculated the prosecution's case.chanroblesvirtualawlibrarychanrobles virtual law library

But even as We find for the accused-appellant, We, take exception to the argument raised by the defense that the crime of subversion absorbs the crime of illegal possession of firearm in furtherance of or incident to or in connection with the crime of subversion. It appears that the accused-appellant is facing a separate charge of subversion. The defense submits that the trial court should have

peremptorily dismissed this case in view of the subversion charge. In People of the Philippines v. Asuncion, et al., We set forth in no uncertain terms the futility of such argument. We quote:

If We are to espouse the theory of the respondents that force and violence are the very essence of subversion, then it loses its distinction from rebellion. InPeople v. Liwanag (G.R. No. 27683, 1976, 73 SCRA 473, 480 [1976]), the Court categorically distinguished subversion from rebellion, and held:

Violation of Republic Act No. 1700, or subversion, as it is more commonly called, is a crime distinct from that of actual rebellion. The crime of rebellion is committed by rising publicly and taking up arms against the Government for any of the purposes specified in Article 134 of the Revised Penal Code; while the Anti-Subversion Act (Republic Act No. 1700) punishes affiliation or membership in a subversive organization as defined therein. In rebellion, there must be a public uprising and taking of arms against the Government; whereas, in subversion, mere membership in a subversive association is sufficient and the taking up of arms by a member of a subversive organization against the Government is but a circumstance which raises the penalty to be imposed upon the offender. (Emphasis supplied)

Furthermore, in the case of Buscayno v. Military Commission (G.R. 58284, 109 289 (1981]), this Court said that subversion, like treason, is a crime against national security, while rebellion is a crime against public order. Rising publicly and taking arms against the Government is the very element of the crime on rebellion. On the other hand, R.A. 1700 was enacted to outlaw the Communist Party of the Philippines (CPP) , other similar associations and its successors because their existence and activities constitute a clear, present and grave danger to national security.chanroblesvirtualawlibrarychanrobles virtual law library

The first Whereas clause of R.A. 1700 states that the CPP is an organized conspiracy to overthrow the Government, not only by force and violence butalso by deceit, subversion, and other illegal means. This is a recognition that subversive acts do not only constitute force and violence (contrary to the arguments of private respondents), but may partake of other forms as well. One may in fact be guilty of subversion by authoring subversive materials, where force and violence is neither necessary or indispensable.chanroblesvirtualawlibrarychanrobles virtual law library

Private respondents contended that the Court in Misolas v. Panga impliedly ruled that if an accused is simultaneously charged with violation of P.D. 1866 and subversion, the doctrine of absorption of common crimes as applied in rebellion would have found application therein. The respondents relied on the opinion of this Court when it said:

. . . in the present case, petitioner is being charged specifically for the qualified offense of illegal possession of firearms and ammunition under PD 1866. HE IS NOT BEING CHARGED WITH THE COMPLEX CRIME OF SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS HE BEING SEPARATELY CHARGED FOR SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings of the Court in Hernandez, Geronimo and Rodriguez find no application in this case.

This is however a mere obiter. In the above case, the Court upheld the validity of the charge under the third paragraph of Section 1 of P.D. 1866. The Court opined that the dictum in the Hernandez case is not

applicable in that case, considering that the legislature deemed it fit to provide for two distinct offenses: (1) illegal possession of firearms qualified by subversion (P.D. 1866) and (2) subversion qualified by the taking up of arms against the Government (R.A. 1700). The practical result of this may be harsh or it may pose grave difficulty on an accused in instances similar to those that obtain in the present case, but the wisdom of the legislature in the lawful exercise of its power to enact laws is something that the Court cannot inquire into . . . (G.R. Nos. 83837-42, April 22, 1992).

Nonetheless, the evidence in hand is too weak to convict the accused-appellant of the charge of illegal possession of firearm in furtherance of, or incident to or in connection with the crime of subversion, We are therefore, left with no option, but to acquit the accused on reasonable doubt.chanroblesvirtualawlibrarychanrobles virtual law library

ACCORDINGLY, the decision appealed from is hereby REVERSED and the appellant is ACQUITTED with costs de oficio.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Griño-Aquino and Bellosillo, JJ., concur.

[G.R. Nos. L-45283-84. March 19, 1982.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. LUCILA VALERO y VARILLA,Defendant-Appellant.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and Solicitor Deusdedit B. Quijano for Plaintiff-Appellee.

Francisco E. Rodrigo, Jr., for Defendant-Appellant.

SYNOPSIS

In a charge of double murder and frustrated murder for allegedly having given poisoned bread to complainant’s children, two of whom died while another would have died were it not for timely medical assistance, the case against Alfonsito Valero, alias "Pipe", a deafmute who did not understand the proceedings against him was dismissed while the other accused Lucila Valero remained the sole defendant. The prosecution and the defense had conflicting views as to the source of the poisoned bread. The prosecution presented three witnesses to show that the poisoned bread came from Lucila and was delivered to the children by "Pipe" : one was an "eleventh-hour witness" who was obviously a lying witness while the other two testified on the information they learned or obtained by sign language from Pipe who was never presented as a witness. On the other hand, the defense tried to show that the children might have eaten the sliced poisoned bread for the rats. The trial court giving more weight to the evidence of the prosecution, and conjuring as probable cause the accused’s psychiatric abnormality, found the latter guilty as charged and sentenced her to death.

On automatic review, the Supreme Coon held that the admission of the evidence of the prosecution as basis for the imposition of the death penalty is in gross violation of the hearsay rule and the constitutional right of the accused to meet the witness face to face, in this case, the deafmute to cross-examine him and determine his ability to communicate with the outside world, while the unexpected conjecture of the trial judge in his decision as to probable cause is a denial of due process.

Judgment reversed; appellant acquitted.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; TESTIMONY OF WITNESSES; PRESENTATION OF PROSECUTION WITNESSES TO CONVEY WHAT THEY LEARNED FROM A DEAFMUTE BY SIGN LANGUAGE; A VIOLATION OF BOTH THE HEARSAY RULE AND THE RULE OF RES INTER ALIOS ACTA; CASE AT BAR. — Where Pipe a deafmute who was the alleged source of the vital information for the prosecution was never presented as a witness either for the prosecution or for the defense and Jaime and Velasco were presented as prosecution witnesses to convey to the Court what they learned from Pipe by sign language, the evidence is purely hearsay. The presentation of such evidence likewise violates the principle of res inter alios acta. The rights of a party cannot be prejudiced by an set, declaration, or commission of another.

2. ID.; ID.; ID.; ID.; ID.; ADMISSION CANNOT BE JUSTIFIED AS PART OF THE RES GESTAE; CASE AT BAR. — When Pipe allegedly revealed to Ceferino Velasco that the source of the poisoned bread was the defendant, the children had not eaten or tasted it. Nobody was yet poisoned. Stated otherwise, there was no startling occurrence yet its admission cannot be justified by claiming that it is a part of res gestae. Neither can the testimony of Jaime, where there is no showing that Pipe made the extrajudicial revelation spontaneously when he was still under the influence of a startling occurrence. Pipe made his extrajudicial revelation not spontaneously but after an interview through the complicated process of sign language.

3. ID.; ID.; ID.; ID.; FAILURE OF DEFENSE COUNSEL TO OBJECT DOES NOT GIVE SUCH EVIDENCE ANY PROBATIVE VALUE. — The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay evidence or evidence that violates the rule of res inter alios acta, or his failure to ask for the striking out of the same does not give such evidence any probative value. The lack of objection may make any incompetent evidence admissible (Savory Luncheonette v. Lakas ng Manggagawang Pilipino, Et Al., 62 SCRA 255). But admissibility of evidence whether objected to or not has no probative value (People v. Cabral, 58 Phil. 946 (unpublished; cited in Francisco’s Evidence 1973 ed. p. 451; also in Moran’s Evidence, 1980 ed. p. 285, 3 Joes on Evidence, 2nd. p. 743).

4. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF CONFRONTATION; ADMISSION OF TESTIMONIES WHETHER HEARSAY OR PART OF THE RES GESTAE FOR THE IMPOSITION OF DEATH PENALTY; VIOLATIVE

THEREOF; CASE AT BAR. — To give weight to testimonies which are considered as hearsay evidence or as part of the res gestae and make the same as the basis for the imposition of the death penalty gravely violates the constitutional right of the defendant to meet the witnesses face to face and to subject them to the rigid test of cross-examination, the only effective means latest the truthfulness, memory, intelligence, and in this particular case, the ability of the deafmute, to communicate with the outside world. In a conflict between a provision of the constitution giving the defendant a substantive right and mere technical rules of evidence, the Supreme Court had no choice but to give effect to the constitution.

5. REMEDIAL LAW; EVIDENCE; TESTIMONY OF WITNESSES; ADMISSIBILITY; EXTRAJUDICIAL INFORMATION INADMISSIBLE WHEN THE SOURCE WOULD HAVE BEEN AN INCOMPETENT WITNESS; CASE AT BAR. — Where as a result of the testimonies and the report made by the experts on deaf-mutes that questions addressed to Alfonsito Valero, alias Pipe and answers given by him cannot be accurately interpreted," the Municipal Court dismissed the murder and frustrated murder cases against him on the ground that he is a deaf-mute and, therefore, all the proceedings against him were beyond his comprehension," obviously, the trial court committed the grave error of accepting, and worse still, of giving weight to the testimonies of Federico Jaime and Ceferino Velasco interpreting the alleged extrajudicial information to them by sign language of Pipe, when the source of the information himself, would have been an incompetent witness had he taken the witness stand.

6. ID.; ID.; ID.; CREDIBILITY; ABSENCE OF A NATURAL REACTION, A NEGATION THEREOF; CASE AT BAR.— Obviously, Ceferino Velasco is a lying witness. If Ceferino Velasco really learned from Pipe that Lucila Valero poisoned his three children, he might have become violent. Surprisingly, he kept quiet. He did not confront Lucila Valero.

7. ID.; ID.; PROOF BEYOND REASONABLE DOUBT; ABSENCE OF MOTIVE NEGATE GUILT OF THE ACCUSED; CASE AT BAR. — There was no motive for Pipe and Lucila Valero to poison the three children where both Pipe and Lucila Valero loved the children and Ceferino Velasco, the father of the children admitted that even when Pipe was only a small buy, the latter frequented his house to visit his children, that when the children were dying because of the poison, Pipe alternately fanned Michael and Annabel and that the cause of the quarrel which was claimed by the prosecution as the motive of the poisoning, was "Wala pong kabagay-bagay" meaning, "very trivial.’’ The quarrel was not a sufficient cause to commit a heinous crime.

8. CONSTITUTIONAL LAW; BILL OF RIGHTS; SUDDEN CONJECTURE OF THE TRIAL JUDGE OF PSYCHIATRIC ABNORMALITY OF THE ACCUSED IN HIS DECISION; A DENIAL OF DUE PROCESS; CASE AT BAR. — It is most unfair for the trial judge to unexpectedly spring the observation in his decision that the accused was suffering from some kind of psychiatric abnormality or mental disorder that can make her violent, without having mentioned it in the course of the trial. Such a procedure is unfair to the accused, for she is thereby deprived of her chance to neither deny or affirm the truth of such a very material finding which has important bearing in the judgment. This procedure of the trial judge practically denied the accused the right to due process.

AQUINO, J., dissenting:chanrob1es virtual 1aw library

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESS; GUILT OF ACCUSED PROVED BEYOND REASONABLE DOUBT. — Lucila denied any complicity in the poisoning of the Velasco children. She declared that she and her brother had no motive for killing the children who were very dear to them. Lucila said that Demetria was mad at her (Lucila) because Lucila charged interest on the money which Demetria had borrowed from Lucila’s sister-in-law. She testified that Velasco, who was her tenant on a parcel of land as a vegetable gardener, used endrine on bread which was then dried and later placed as a bait in the barn and that several rats were killed by means of the bread dipped in the endrine solution. The trial judge noted that Lucila had a "sharp, penetrating look" and on the witness stand was always grinning (she had "unfading smiles"). The trial judge found that there was no doubt that Lucila gave the poisoned bread to her deaf-mute brother who had no criminal intent and who did not know that the bread was poisoned. Alfonsito exhibited some compassion for the children after he noticed that something had happened to them. On the other hand, Lucila did not make any effort to help the victims. The trial court did not err in concluding that Lucila’s guilt was proven beyond reasonable doubt.

2. CRIMINAL LAW; DOUBLE MURDER AND FRUSTRATED MURDER; COMPLEX CRIME; PENALTY. — The trial court and the Solicitor General regarded the two murders and the frustrated murder as a complex crime resulting from the single act of Lucila in giving the poisoned bread to Alfonsito with the instruction (made in sign language) that the same be fed to the Velasco children. Hence, the death penalty was imposed. The single criminal impulse of Lucila to poison the Velasco children gave rise to a complex offense (See People v. Peñas, 66 Phil. 682; People v. Pincalin, L-38755, January 22,1981, 102 SCRA 136). The penalty of reclusion perpetua should be imposed on the accused, Lucila Valero. The trial court did not award any indemnity. Lucila should be adjudged liable to pay an indemnity of P24,000 to the Velasco spouses for the death of Annabelle and Michael and to pay an indemnity of P10,000 to Imelda Velasco.

D E C I S I O N

ERICTA, J.:

Lucila Valero alias Rosing and Alfonsito Valero alias "Pipe" were accused in the Municipal Court of San Rafael, Bulacan in two separate complaints, one of double murder and the other of frustrated murder.chanrobles virtual lawlibrary

After the preliminary investigations, the complaints against Alfonsito Valero were dismissed "on the ground that he is a deaf mute and, therefore, all the proceedings against him were beyond his comprehension." Lucila Valero remained as the sole defendant. After the trial in the Court of First Instance of Bulacan where the records were later forwarded for appropriate proceedings, the trial Court convicted Lucila Valero of the complex crime of double murder and frustrated murder and imposed upon her the extreme penalty of death.

Hence, this automatic review.

The following facts are not disputed. In the morning of February 22, 1969 between 7:00 and 9:00 o’clock of Saturday, Michael, aged 9 months, and Annabel, aged 1 year and 9 months, both of whom are the children of Ceferino Velasco, died of poisoning after eating bread containing endrin, a commercial insecticide. Likewise, Imelda, another minor child of Ceferino, tasted the poisoned bread and would have died as a consequence were it not for the timely medical assistance given her. All these three minor children were in the balcony of their house at San Rafael, Bulacan, when they partook of the poisoned bread.

On the same morning at about the same time that the three minor children partook of the poisoned bread, three (3) puppies of Ceferino Velasco under the balcony also died of poisoning.

Earlier that same morning at about 6:00 o’clock, Ceferino Velasco, father of the victims, was seen throwing poisoned rats into a river near his house. Investigations were conducted by Cpl. Bucot and Pat. Arturo Vertuso, both of the Police Department of San Rafael, Bulacan. Upon their arrival, they saw the dead bodies of Michael and Annabel in the house of Ceferino Velasco and the dead puppies under the balcony. They also saw several pieces of sliced pan scattered in the sala of the house, near the balcony, and under the balcony. They picked up some pieces of sliced bread under the balcony, wrapped them in a piece of paper and submitted them to a chemist for examination. It was found that the bread contained endrin, a poisonous insecticide. The two minor children, Michael and Annabel, were also autopsied and the necropsy reports showed that both children died of poisoning by endrin. Samples of the blood and internal organs of both Michael and Annabel were also examined by a chemist and it was found that they contained endrin.

The evidence of the prosecution and the defense conflict as to the source of the poisoned bread. The evidence of the prosecution shows that the poisoned bread was given to the children by Alfonso Valero alias Pipe, a deaf-mute brother of the defendant Lucila Valero, and that it was Lucila Valero who gave the bread to Pipe for delivery to the minor children. On the other hand, the defendant Lucila Valero denies that she ever gave bread to her deaf-mute brother, Pipe, for delivery to the minor children. The evidence for the defense tends to show that the Velasco children might have eaten one of the sliced poisoned bread used by their father in poisoning rats in his garden.

It is not denied that Ceferino Velasco has a vegetable garden in his yard. He uses an insecticide called polidol to spray the vegetable and uses the same insecticide to kill rats. According to the testimony of

the defendant, which was never rebutted by Ceferino Velasco, Ceferino also planted vegetables in the yard of the defendant whose house is just across the street from the house of Ceferino Velasco. She further testified that Ceferino dipped sliced bread into an insecticide called endrin, dried them up and later used the poisoned bread as a bait to kill rats in the yard located by the side of his house. 1

More of the controversial facts will be presented in the following discussion.

We first discuss and assess the evidence for the prosecution. Out of the nine witnesses for the prosecution three witnesses, namely Rodolfo Quilang, Federico Jaime, and Ceferino Velasco were presented to prove that the defendant Lucila Valero gave the poisoned bread to her deaf-mute brother Pipe with the alleged instruction to deliver the bread to the Velasco children.

We now analyze the testimonies of these three witnesses:chanrob1es virtual 1aw library

1. Rodolfo Quilang

Only Rodolfo Quilang, among the nine prosecution witnesses, testified that he saw the defendant Lucila Valero deliver "something wrapped in a piece of paper" 2 to her deaf-mute brother Pipe with the alleged instruction by sign language to deliver the same to the Velasco children. Quilang never saw what was inside the piece of paper. At the time Quilang saw the delivery to Pipe of the wrapped object, the defendant and her brother were in the balcony of their house, which was just near the gate of Ceferino Velasco’s house where he (Quilang) was standing. Upon receipt of the wrapped object, Pipe allegedly proceeded towards Velasco’s house.

According to Quilang, he was "in the act of leaving" Velasco’s gate when Pipe "was entering the gate of Ceferino Velasco." 3

Whether or not Quilang saw the delivery to the Velasco children of the "something wrapped in a piece of paper" is a question that involved this star prosecution witness into a series of self-contradictions, aptly called by the appellant’s counsel as a "series of basic somersaults" which earned for Quilang a reprimand from the trial Judge, who, surprisingly later, based the conviction mainly on the testimony of this flipflopping witness.

In his affidavit, dated March 8, 1972 (Exhibit "4", p. 437, Record of murder case) or three (3) years after the poisoning of the Velasco children, Quilang stated that he actually saw Pipe deliver the wrapped object to the children. The statement reads as follows:jgc:chanrobles.com.ph

"3. Na nakita kong si Pipi ay nagpunta sa bahay nina Ceferino Velasco at dala-dala ang inabot ni Lucilang nakabalot sa papel, at noong dumating sa may hagdanan ni Ceferino, ay nakita kong iniabot ang nakabalot sa mga bata na anak ni Ceferino Velasco."cralaw virtua1aw library

Three years later during the trial on September 15, 1975, he declared on cross-examination, as

follows:jgc:chanrobles.com.ph

"Q. When you left the residence of Demetria and Severino (sic) Velasco, Pipe was just entering the gate of that house, is it not?

A. Yes.

Q. In other words, you did not see Pipe give that something wrapped in a piece of paper to anybody in the premises because you have already left

A. Really not.

Q. Are you sure of that?

A. I did not really see." 4

When confronted with the contradiction, Quilang reiterated that he did not see Pipe deliver the bread, in the following testimony:jgc:chanrobles.com.ph

"Q. You did not answer the question, you stated in open court that you did not see Pipe give the bread to the children of Ceferino and Demetria Velasco, is that correct?

A. I really said that." 5

On being pressed further to explain the contradiction, Quilang made the absurd explanation that the self-contradictory statements were both correct. Thus:jgc:chanrobles.com.ph

"Q. And you, of course, realized that you said that under oath?

A. Yes.

Q. Now, in your statement, dated March 8, 1969 (should be March 8, 1972) which was also under oath, you stated that you saw Pipe gave that thing wrapped in a piece of paper to the children of Severino (sic) and Demetria Velasco, are you telling that is also true?

A. Yes." 6

The judge must have been so flabbergasted with the inconsistencies that he, himself, propounded the following question:jgc:chanrobles.com.ph

"Court:chanrob1es virtual 1aw library

Q. The Court will ask you, did you see Pipe hand over to the deceased Children that something which was wrapped in a piece of paper?

A. Yes, sir." 7

The confusing inconsistencies prompted the Court to proceed further as follows:jgc:chanrobles.com.ph

"Q. A While ago, you were asked by Atty. Rodrigo. You clearly state that you did not see Pipe hand over this wrapped thing in the paper, do you remember that?

A. Yes, sir.

Q. The Court is now confused, which of these statements it will believe, do you realize that these two statements are contradictory to each other?" 8

After some evasive answers in his attempt to extricate himself from this web of self-contradictions, the Court insisted as follows:jgc:chanrobles.com.ph

"Q. You are not answering the question, in fact, I remember having asked you whether or not you saw Pipe hand over this something wrapped to the children and you said that you did not see, and now you say you saw, can you explain these inconsistent statements?

A. The truth of the matter was that he handed over." 9

Convinced that Quilang was a lying witness, the trial Judge could not help but explode an expletive in Tagalog during the cross-examination, as follows:chanrob1es virtual 1aw library

‘Atty Rodrigo:chanrob1es virtual 1aw library

Q. Did you see that wrapped thing being given or you were just guessing?

A. I saw that he handed over.

Q. But I thought, Mr. Quilang, that when Pipe was just entering the gate of Ceferino Velasco, and Demetria Velasco, you were already departing from the place and that you have already left, and this is the reason why you did not see Pipe handed over that something wrapped on a piece of paper?

A. I was not able to say that.

Court:chanrob1es virtual 1aw library

Ano ka ba? Narinig kong sinabi mo iyon ah!" 10

The tendency of Quilang to prevaricate is shown not only in his self-contradictory statements on the witness stand but also in the other portions of the record. The first statement of Quilang (Exhibit "4", p. 437, Record of the Murder case) is dated March 8, 1972. This date appears twice in the affidavit, first at the end of the affidavit and second, in the jurat. In both places of the affidavit, the words "March" and "1972" are typewritten by the same typewriter used in typing the entire affidavit. The date, however, was left blank so that originally what appeared at the end of the affidavit and in the jurat was practically "March — 1972." Apparently, the affidavit must have been prepared in March of 1972. The date "8", presumably the date of the swearing before the Fiscal, was typewritten with a different typewriter on the blank space.

On the witness stand, Quilang stated that he made an affidavit on February 23, 1969 11 He must have made this statement to make it appear that he was not an "eleventh-hour witness" as alleged by the defense. When confronted with the discrepancies in the date appearing in his affidavit, to wit, March 8, 1972, and his testimony on the witness stand, he insisted that the correct date was February 23, 1969 and that either the Fiscal or the one acting in his behalf committed the error in indicating the date in his affidavit. 12 It is incredible that a Fiscal administering the oath-taking on February 23, 1969 and signs the jurat postdates the oathtaking to March 8, 1972, three years later.

There are other equally strong considerations indicating the lack of credibility of Quilang. He is what the appellant’s counsel calls an "eleventh-hour witness." When the complaint for frustrated murder and the complaint for murder, both dated March 11, 1969, were filed with the Municipal Court of San Rafael, Bulacan, Rodolfo Quilang was not listed as one of the several witnesses. Quilang never made any statement to the police who initially investigated the case nor to the Philippine Constabulary which made its own investigation. When the Municipal Court asked searching questions from several witnesses during the first stage of the preliminary investigation on March 12, 1969, only Ceferino Velasco, Concepcion Velasco, Delfin Señorosa, Federico Jaime and Demetria Manalastas were investigated. Rodolfo Quilang was not one of them. 13

Again, when the information for frustrated murder (pp. 87 to 88, Record of Frustrated Murder case) and the information for murder (p. 76, Records of Murder case) were filed in February 1971, the star witness, Rodolfo Quilang, was not listed among the nine (9) prosecution witnesses. Then on September 15, 1975 or six (6) years after the tragedy, Quilang was suddenly sprung as the star witness, the only witness who allegedly saw the delivery by the defendant to Pipe of "something wrapped in a piece of paper" with the alleged instruction by sign language to deliver the same to the Velasco children. Without the testimony of Quilang, there would be no evidence to show that the poisoned bread which was allegedly delivered by Pipe to the Velasco children came from the defendant. Realizing that there was a missing link, the prosecution thought of presenting Quilang to provide the missing link six years after the occurrence of the tragedy.

"This witness, Aniceto Decalos, a neighbor and old friend of Ciriaco Jimenez, like the alleged eyewitness Candido Autor, did not figure in the list of witnesses for the prosecution, either in the criminal complaint

filed by PC Capt. Golez or in the Fiscal’s indictment. His name was not amongst those who gave affidavits to back up the criminal charge. This gives the impression that Aniceto Decados, the neighbor of the deceased, was but an eleventh-hour witness. To take his testimony on its face value, we fear, is to rate truth so lightly." 14

2. Federico Jaime and Ceferino Velasco

On the other hand, both Ceferino Velasco and Federico Jaime did not see the delivery by the defendant to her deaf-mute brother "something wrapped in a piece of paper." They never saw or heard her giving any instruction to Pipe to deliver the wrapped object to the children. Both claimed that they learned or obtained the information from Pipe after interviewing him by means of sign language. Which the trial Court accepted as competent, trustworthy and credible!

The following testimony of Federico Jaime speaks for itself:jgc:chanrobles.com.ph

"Q. Will you please stand up and demonstrate to this Honorable Court how you talked to him (Pipe) through signs?

A. When I went down, I made this sign to him (Witness was waiving his two hands with his palms down and both hands horizontal along the waist.)

Q. When you made that sign, what was the meaning or idea that you wanted to convey?

A. I was asking him as to what happened to the children and the sign made by him was like this. (Witness demonstrated by one of his hands demonstrating some kind of height and at the same time the left hand pointing upwards where the children were.)

x x x

Q. What do you mean by the sign when your right hand indicating some height and your left hand pointing towards upward?

A. What I wanted to imply is, I was asking Pipe as to who gave food to them, your Honor.

Q. Why did it occur to you to go down and try to communicate with Pipe?

A. I saw him down below and he was making signs and I asked the children as to what happened and he told me that the children were given bread.

Q. What came into your mind when you saw Pipe demonstrating in the manner that you described?

A. I just wanted to know as to who gave food to children, your Honor.

Q. Did you catch any significance in those signs that you saw to Pipe?

A. Yes, your Honor.

Q. What significance that you had in mind?

A. Because the children said that it was Pipe who gave bread, your Honor.

Court:chanrob1es virtual 1aw library

Proceed.

Fiscal Calderon, Jr.:chanrob1es virtual 1aw library

Q. When you made that sign pointing one hand upward, what was the answer of Panchito?

A. I inquired from him through signs as to who gave bread to the children by demonstrating like this (witness demonstrated by seemingly eating something inside the house with his right hand and his left hand index finger towards the front and then pointed towards his left index finger).

Q. Towards what direction was Panchito pointing his index finger?

A. To the sister, sir.

Q. And who is that sister?

A. Precila (sic), sir Precila (sic) Valero." 15

There is nothing in the foregoing testimony pointing to the defendant Lucila Valero as the source of the poisoned bread. What is evident is nothing but confusion. What Jaime asked from Pipe was "Who gave the bread to the children?" The evidence of the prosecution already shows that Pipe gave the bread to the children. In reply, it seems that Pipe pointed to the defendant who was standing nearby.

Here, the confusion is clear. Pipe could not have said that his sister handed over the poisoned bread to the children because the evidence of the prosecution shows that Pipe himself, gave the bread to the children. It is clear that Pipe did not understand the sign language of Jaime and vice-versa.

The testimony of Ceferino Velasco, father of the victims, did not help the prosecution much either. The following is Ceferino’s testimony:chanrob1es virtual 1aw library

Witness:chanrob1es virtual 1aw library

Upon seeing Ponsito, I asked him what was that and he answered me that it was a piece of bread and he told me that she was the one who caused the giving of the bread, sir. (witness pointing to the accused Lucila Valero)

Atty. Rodrigo, Jr.:chanrob1es virtual 1aw library

I would like to make of record that during the narration as to how he asked Alfonsito, the witness was only demonstrating by using his index finger moving up and down, your Honor.

Fiscal Calderon, Jr.:chanrob1es virtual 1aw library

Q. When you first asked that question who gave the bread to you, how did Alfonsito answer?

A. After having given the bread, I asked him who gave the bread, and he said that the bread came from her (witness demonstrated by swaying his right arm and pointing his forefinger sidewise.)

Q. Where was Lucila valero at the time that Alfonsito was demonstrating to you his answer?

A. She was there on the side of the street, sir. 16

There is nothing in the aforequoted testimony indicating that the deaf-mute, Pipe, pointed to her sister Lucila Valero as the source of the poisoned bread. We have examined the entire transcript of the stenographic notes, and, except the aforequoted portions of the testimony of Federico Jaime and Ceferino Velasco, there is nothing in the record showing that Pipe communicated to the prosecution witnesses by comprehensible sign language that his sister was the source of the poisoned bread.

Aside from the foregoing observation, there are several compelling reasons that should have made the trial Court reject the testimony of both Jaime and Velasco.

Pipe who was the alleged source of the vital information for the prosecution was never presented as a witness either for the prosecution or for the defense. Jaime and Velasco were presented as prosecution witnesses to convey to the Court what they learned from Pipe by sign language.

The evidence is purely hearsay. 17 The presentation of such evidence likewise violates the principle of res inter alios acta. The rights of a party cannot be prejudiced by an act, declaration, or omission of another. 18

With particular reference to the testimony of Ceferino Velasco, its admission cannot be justified by claiming that it is a part of the res gestae. When Pipe allegedly revealed to Ceferino Velasco that the

source of the poisoned bread was the defendant, the children had not eaten or tasted it. Nobody was yet poisoned. Stated otherwise, there was no startling occurrence yet. 19

With reference to the testimony of Jaime, there is no showing that Pipe made the extrajudicial revelation spontaneously when he was still under the influence of startling occurrence. Pipe made his extrajudicial revelation not spontaneously but after an interview through the complicated process of sign language.

The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay evidence or evidence that violates the rule of res inter alios acta, or his failure to ask for the striking out of the same does not give such evidence any probative value. The lack of objection may make any incompetent evidence admissible. 20 But admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to or not has no probative value. 21

To give weight to the testimonies of Federico Jaime and Ceferino Velasco, whether considered as hearsay evidence or as part of res gestae and make the same the basis for the imposition of the death penalty gravely violates the constitutional right of the defendant to meet the witnesses face to face and to subject Pipe to the rigid test of cross-examination, the only effective means to test the truthfulness, memory, intelligence, and in this particular case, the ability of the deaf-mute, Alfonsito Valero alias Pipe, to communicate with the outside world. In a conflict between a provision of the constitution giving the defendant a substantive right and mere technical rules of evidence, we have no choice but to give effect to the constitution.

The cross-examination of Pipe, the source of the vital information for the prosecution, would have shown clearly his incompetence as a witness. During the preliminary investigation in the Municipal Court, experts on deaf-mutes like Belen Herreros who is the official interpreter of the only school for the deaf and the blind in the Philippines, assisted by Mrs. Felicidad Vinluan who is the principal of the school of the deaf and the blind, Mesdames Gilda Tatum and Salud Natividad, examined Alfonsito Valero alias Pipe and reported to the Municipal Court that "questions addressed to him (Alfonsito Valero) and answers given by him cannot be accurately interpreted." 22

As a result of the testimonies and the report made by the aforementioned experts, the Municipal Court dismissed the murder and frustrated murder cases against Alfonsito Valero, alias Pipe, who was then the co-accused of Lucila Valero, "on the ground that he (Pipe) is a deaf-mute and, therefore, all the proceedings against him were beyond his comprehension." 23

Even prosecution witnesses Ceferino Velasco and Federico Jaime admitted on cross-examination that their interpretations of the sign language of Pipe were only guess work.

Thus, Ceferino admitted on cross-examination:jgc:chanrobles.com.ph

"Q. As a matter of fact, most of your interpretation would be only guess work on your part, is it not?

A. Yes, sir." 24

Jaime practically made a similar admission, as follows:jgc:chanrobles.com.ph

"Q. When you were requested to demonstrate how you conveyed the idea to Pipe about the giving of the bread to the children, you pointed to a height, is it not?

A. Yes, sir.

Q. How do you demonstrate to Pipe if you wanted to convey that what is to be taken is star-apple?

Fiscal Calderon:chanrob1es virtual 1aw library

I object, your Honor.

Court:chanrob1es virtual 1aw library

May answer.

A. Like that also, sir. (witness demonstrated to be putting something in his mouth.)

Q. In other words, anything which will be taken by mouth, you just use the same sign language?

A. Yes, the same sign, sir.

Q. So that it would be safe to conclude that Pipe might have misunderstood your signs. He could have misunderstood it for rice, bibingka, star-apple or for anything else?

A. Witness gave no answer."25cralaw:red

Obviously, the trial Court committed the grave error of accepting, and, worse still, of giving weight to the testimonies of Federico Jaime and Ceferino Velasco interpreting the alleged extrajudicial information to them by sign language of Pipe, when the source of the information himself, Alfonsito Valero alias Pipe, would have been an incompetent witness had he taken the witness stand.

When Jaime allegedly learned from Pipe that the latter’s sister was the source of the poisoned bread, the defendant was only at the gate of the Velascos near Jaime but he did not confront her.

"Q. When Pipe pointed to Lucila and when you gave the meaning to that sign that it was Lucila who offered Pipe to give the bread to the children, did you (Federico Jaime) confront Lucila immediately?

A. No, sir.

Q. Did it not occur to you (Federico Jaime) to confront Lucila considering that you already suspected that it was her (sic) who caused the poisoning of the children?

A. No, sir. I did not." 26

The natural reaction of Jaime who is the uncle of the mother of the victims, 27 upon learning the killer of his relatives would have been a violent action or at least an angry confrontation. Neither did Ceferino Valero confront Lucila Valero upon allegedly learning that the latter poisoned his children.

"Q. After allegedly knowing from Alfonsito that the bread was allegedly given to him by Lucila, did you (Ceferino Velasco) confront her?

A. No, sir.

Q. As a matter of fact, you never confronted her until you filed this case about the poisoning of your children?

A. No, sir I have been very patient with her since the beginning." 28

Moreover, when Ceferino Velasco made a sworn statement on February 25, 1969 or three (3) days after the poisoning of his children, he declared that he did not know who gave the poisoned bread to his children, thus:jgc:chanrobles.com.ph

"T Nalalaman ba ninyo kung mayroong nagbigay kay Pipe ng tinapay na ibinigay sa inyong anak?

S Ang nalalaman ko lamang po ay sa kanila siya galing hindi ko po alam kung sino ang nagbigay sa kanya." 29

But when he took the witness stand on July 23, 1975 or six years later, he declared that on that very morning of February 22, 1969, he learned from Pipe, when the latter was in the act of delivering the bread to the children, that the source of the bread was the defendant Lucila Valero. 30

When confronted during the cross-examination with the previous affidavit (Exhibit "1-d"), Ceferino Velasco admitted that he made the answers in the affidavit.

"Q. You also stated that Alfonsito, by means of sign, told you that the bread came from his sister, Lucila, the accused in this case?

A. Yes, sir.

Q. You are sure of that?

A. Yes, sir.

Q. Let me now read to you portion of Exh. "1" :jgc:chanrobles.com.ph

"T Nalalaman ba ninyo kung mayroong nagbigay kay Pipe ng tinapay na ibinigay sa inyong anak?

S Ang nalalamam ko lamamg po ay sa kanila siya galing. Hindi ko po alam kung sino ang nagbigay sa kanya." Do you remember having given that answer?

A. Yes, sir.

Q. You affirm that answer under your present oath?

A. Yes, sir." 31

This answer prompted the Court to remark: "There seems to be inconsistency." 32 We may add that the inconsistency is on the very fact in issue, namely, the guilty participation of Lucila Valero.

When further repeatedly asked by the defense counsel why Ceferino did not state in his affidavit (Exh. 1-d) that he learned that Lucila was the source of the poisoned bread, he gave irresponsive and evasive answers. 33

When a witness makes two sworn statements and these two statements incur in the gravest contradictions, the Court cannot accept either statements as proof. 34

A witness who changes his name and statements, like a Chameleon changes color, does not inspire confidence. 35

Obviously, Ceferino Velasco is a lying witness. If Ceferino Velasco really learned from Pipe that Lucila Valero poisoned his three children, he might have become violent. Surprisingly, he kept quiet. He did not confront Lucila Valero. 36

The reason is that the first suspicion of Ceferino Velasco when his three children were still suffering from the effects of the poison was that his children were "nausog" (victim of witchcraft). Thus, testified Onofre Adriano, a 73-year old relative of Ceferino Velasco:jgc:chanrobles.com.ph

"Q. On February 22, 1969 at around 9:00 o’clock in the morning, do you remember having seen Mr. Ceferino Velasco?

A. I was fetched at home, sir.

Q. Who fetched you in your house?

A. Ceferino Velasco, sir.

Q. Why did he fetch you in your house?

A. Because according to him, one of his children is sick and might have been "nausog."

Q. Why did he fetch you for that purpose?

A. I have a knowledge in the curing of "nausog," sir. 37

Demetria Manalastas, mother of the victims, also testified:jgc:chanrobles.com.ph

"Q. While you were at the market place of Baliuag, what happened?

A. A son of mine came to call me, sir.

Q. What is the name of your son?

A. Francisco Velasco, sir.

Q. Why did Francisco fetch you?

A. He said that the children were "naosog" sir. 38

Aside from the weakness of the evidence for the prosecution, there are other considerations which negate the guilt of the defendant.

There was no motive for Pipe and Lucila Valero to poison the three children. Both Pipe and Lucila Valero loved the children. Ceferino Velasco admitted that even when Pipe was only a small boy, the latter frequented his house to visit his children. 39 When the children were dying because of the poison, Pipe alternately fanned Michael and Annabel.

The prosecution, however, claims that the motive of the poisoning was the quarrel in the morning of February 21, 1969 between Demetria Manalastas, mother of the victims, and the defendant Lucila Valero. The cause of the quarrel was the interference of the defendant to protect the children from the scolding and maltreatment of their own mother. The interference was resented by Manalastas prompting her to say to the defendant "Don’t interfere in the matter because I am scolding these children of mine." 40 The defendant is not a relative of the Velasco children. Her intervention in their behalf only shows her affectionate concern for them. The defendant quarrelled with Demetria

Manalastas, not with the Velasco children. There is no motive whatsoever for the defendant to poison the children. Even Ceferino Velasco, father of the victims, stated that the cause of the quarrel was "Wala pong kabagay-bagay" meaning, "very trivial." 41 The quarrel was not a sufficient cause to commit a heinous crime.

This leaves Us speculating as to the source of the poisoned bread. Rodolfo Quilang stated that he saw the defendant give Pipe "something wrapped in a piece of paper." According to Ceferino Velasco in his Affidavit of February 25, 1969, Pipe gave to his children "isa pong pandesal." 42 He practically reiterated this statement during his testimony on July 23, 1975 when he described what Pipe allegedly brought as "just one piece of wrapped bread." 43

But when the police investigated the premises of the house of Ceferino Velasco in the morning of February 22, 1969, they found not only one pandesal but "several sliced pan" scattered in the sala, near the balcony, and under the balcony. 44 According to the defendant, in her testimony not rebutted by the prosecution, Ceferino Velasco, who was her tenant, dipped sliced pieces of bread in endrin, dried them up and used them as bait in his barn. As a matter of fact, at 6:00 o’clock in the morning of February 22, 1969, Ceferino Velasco threw into a nearby river a long string of poisoned rats. Three puppies died of poisoning under the balcony. The rats, the dogs, or maybe even his minor children must have found the poisoned slices of bread somewhere in the barn or in the house, scattered them, and the children, not knowing the danger of the poison, ate them.

The thought that he might have poisoned his own children must have caused Ceferino Velasco some kind of trauma. So galling to a father is the thought that he, himself, might have caused the death of his two children and the near death of a third child, albeit unintentionally, that his natural reaction is to escape from it by throwing the blame to someone else not only to appease his own conscience but also to avoid embarrassment before his relatives, friends and neighbors.

The tragic poisoning of the three children is unfortunate. The tragedy was compounded when the trial Court imposed the death penalty on the accused although the evidence against her does not justify a conviction. In spite of the self-contradictions of Rodolfo Quilang on very material points noticed by the trial Judge, himself, Quilang’s obvious tendency to prevaricate, and the fact that he is what the appellant’s counsel calls an "eleventh-hour witness," which is true, and in spite of the incompetence of the testimonies of Federico Jaime and Ceferino Velasco whose testimonies are hearsay evidence, and the practical impossibility of interpreting correctly the sign language of Pipe, the trial Judge readily accepted their testimonies as basis for imposing the death penalty in gross violation of the hearsay rule and the constitutional right of the accused to meet the witness face to face (in the instant case, the deaf-mute, Pipe), and to cross-examine Pipe in order to determine his ability to communicate with the outside world.

Realizing that there is completely no motive for the defendant to commit the heinous crime, the trial Judge conjured up something as the probable cause that might have impelled the defendant to commit the crime. The conjecture of the Judge is stated, thus;

"There is something disquieting about those seemingly unfading smiles on the face of the accused; with her sharp, penetrating look, her unsolicited smiles are clues to her real personality; they forebode some out-of-the ordinary dispositions in the inner recesses of her mind; perhaps, only a trained psychiatrist or an experienced psychologist could fathom or decipher the meaning of this characteristic of the accused; it is unfortunate that the prosecution and the defense have chosen not to delve into the personality of the accused; however, because of these queer manifestations on the facial expressions of the accused, could she have intended to produce the gravity of her felonious act; had she a fore-knowledge that the poisons used to kill rats or insects would also cause death to the children. Was her intention merely to cause some malady or discomfort to the children to shout and vent her hatred on the mother of the children. These are some questions that find no definite answer from the records of these cases; these questions notwithstanding, the court strongly feels that it is not entirely improbable for the accused to possess a violent or cruel disposition . . ." 45

In effect, motive was not necessary to compel the defendant to commit the crime because according to the observation of the Judge, she was suffering from some kind of psychiatric abnormality or mental disorder that can make her violent.

It is most unfair for the trial Judge to unexpectedly spring the aforementioned observation in his decision without having mentioned it in the course of the trial. Such a procedure is unfair to the accused, for she is thereby deprived of her chance to either deny or affirm the truth of such a very material finding which has important bearing in the judgment. This procedure of the trial Judge practically denies the accused the right to due process.

The surprising finding of the trial Judge goes far beyond mere observation on the manner a witness testified, which admittedly may be considered subjectively by the Judge in evaluating the credibility of the witness. The surprising finding of the Judge relates not only to the credibility of a witness but to the sanity of the defendant. Its aim is not only to weigh the testimony of the witness but to establish a motive for the crime charged.

WHEREFORE, finding that the prosecution has not established the guilt of the defendant, We hereby reverse the decision of the trial Court and instead render judgment of acquittal without cost.chanrobles law library

SO ORDERED.