G.R. No. 82189 August 2, 1990 PORFIRIO AUXILIO, JR., petitioner,

vs.

NATIONAL LABOR RELATIONS COMMISSION, BAGUIO COUNTRY CLUB CORPORATION and LOLITA GENOVE, respondents.

PARAS, J.: In the herein petition for certiorari, petitioner seeks the review of the decision of public respondent National Labor Relations Commission (NLRC) dated February 12, 1988, which reversed the decision of the Labor Arbiter in NLRC Case No. RAB-1-0048-82, finding as legal and valid the employer's act of terminating the services of petitioner and dismissing the latter's complaint for illegal dismissal.

The facts of the case are undisputed: Petitioner Porfirio Auxilio, Jr. was first employed by private respondent Baguio Country Club Corporation as a houseman in 1977. He became a

regular employee in 1978 and in 1981 was assigned as a front desk clerk with a basic pay of P524.00 per month. He was in charge of hotel rooms, received guests' registration and acted as switchboard operator. On January 17, 1982, the amount of Fifteen Thousand Pesos (P15,000.00), which had been placed in the cashier's office of the Baguio Country Club, was found to be missing. The loss was brought to the attention of the management on January 18, 1982. Upon receipt of the report, the Baguio City Police Department (INP) forthwith conducted a spot investigation. Police investigation ruled out signs of forcible entry or robbery, and concluded that it was an "inside job." Accordingly, all employees of the Country Club who had access to the cashier's office, including the petitioner, were invited for questioning. All of them denied having stolen the money. They were then subjected to a Polygraph examination conducted by the NBI. Meanwhile, on January 20, 1982, petitioner was placed under preventive suspension for the usual 30-day period due to his possible involvement in the theft, pending final result of the investigation. The results of the Polygraph Examination revealed that petitioner could not fully explain his answers to vital questions relative to the missing money. He was again invited to the Police Headquarters for further investigation but he refused to attend and said that he was not feeling well when he was under the polygraph examination (Comment of Solicitor General, p. 3). In the polygraph report on the petitioner dated February 16, 1982, it was declared that petitioner offered no satisfactory explanation for the adverse result of the

polygraph test conducted on him. All the other employees subjected to the same examination showed no indications of deception as they explained their side satisfactorily that they did not steal the money.

Petitioner was asked to appear for investigation by the management. However, no further examination was conducted by the police or the employer because petitioner could not be found in his residence and the notices sent to him were rejected by his wife. Thus, in a Memorandum dated February 20, 1982 issued by the Baguio Country Club Corporation, Porfirio Auxilio, Jr. was terminated for "loss of trust and confidence" and for "giving false statement during official investigation."

Aggrieved, petitioner filed a complaint for illegal dismissal with the Labor Arbiter alleging that he was dismissed on mere suspicion that he stole the money and that he was denied an opportunity to defend himself pursuant to the provision of the Collective Bargaining Agreement between private respondent and the union of which petitioner was a member. In a decision dated October 26, 1984, Labor Arbiter Saturnino P. Orate ordered the reinstatement of petitioner, finding that there was no reasonable ground in dismissing the latter because private respondent failed to establish by preponderance of evidence the legality of the dismissal. On appeal, the NLRC, on February 12, 1988, set aside the Labor Arbiters decision and entered another dismissing petitioner's complaint for illegal dismissal for lack of merit. Hence, this petition.

Petitioner Porfirio Auxilio, Jr. claims that he was denied due process of law because the grievance procedure provided in the Collective Bargaining

Agreement (CBA) was not strictly observed. He likewise maintains that with the rejection by the Labor Arbiter of the probative value of his flight, the Special Investigation Report and Polygraph Report, his dismissal from employment is not legal. A review of the records of this case shows that public respondent did not commit any grave abuse of discretion in reversing the Labor Arbiter's decision. The Grievance Machinery in the CBA states:

. . . Sec. 2. A GRIEVANCE is any controversy by the union or an employee against the CLUB or any controversy by the CLUB against the UNION or an employee concerning any ruling practice or working condition in the CLUB, or any dispute as to the interpretation of any provisions of this Agreement. (p 38, Rollo)

As correctly pointed out by the Solicitor General in his Comment, the instances enumerated where the grievance machinery may be availed of are not present in this case and that there was no overt act on the part of petitioner to bring any cause for complaint to the attention of the immediate supervisor concerned as prescribed in Step 1 on the Supervisory level. What is truly involved in the case at hand is the last action pursued by private respondent in the face of overwhelming evidence found by the police investigators on the theft of its P15,000.00 on January 17, 1982. The invocation of the grievance machinery provisions of the CBA is not in place.

(Comment, p. 8). No doubt petitioner was afforded due process of law. There is convincing and

sufficient evidence on record to show that private respondent corporation fully complied with the notice and hearing requirements of due process. Petitioner was notified and repeatedly invited for further investigation but he "chose to ignore" the said notices by his "convenient absence" from his residence and the continued refusal by his wife to receive the notices (Memorandum of public respondent, p. 5). Private respondent cannot be faulted as petitioner had ample opportunity to be heard. Since he unjustifiably rejected the opportunity, petitioner cannot now complain that he was denied due process of law.

Petitioner also maintains that his dismissal was without basis as his complicity in the theft of the P15,000.00 was solely based on suspicions and on the polygraph test conducted on his person.

Loss of confidence is a valid ground for dismissing an employee. Proof beyond reasonable doubt of the employer's misconduct is not required, it being sufficient that there is some basis for the same or that the employer has reasonable ground to believe that the employee is responsible for the misconduct and his participation therein rendered him unworthy of the trust and confidence demanded of his position. (Nat'l Org. of Laborers and Employers vs. MRR, 21 SCRA 191; Nevans vs. Court of Industrial Relations, 23 SCRA 1321; Galsim vs. PNB, 29 SCRA 293; Reyes v. Zamora,

90 SCRA 92; Villadolid v. Inciong, 121 SCRA 205; San Miguel Corp. v. Deputy Minister of Labor and Employment,

G.R. Nos. 61232-33, Dec. 29, 1983) The job of petitioner is of such nature as to require a substantial amount of trust and confidence on the part of the employer. He may thus be dismissed on the ground of loss of trust and confidence. It was established that petitioner had ready access to the cashier's office. He admitted having borrowed the nail cutter of the cashier included among the bunch of keys to the latter's drawer. The investigations and inquiries conducted were made on all the employees who had access to the cashier's drawer and not on the petitioner alone. However, his erratic reaction to the investigator's questioning narrowed down the list of suspects to him alone. We agree with the public respondent that petitioner's continued absence from his residence and unexplained disappearance despite several notices for further police investigation implied flight associated with guilt. The requirement that there be some basis or reasonable ground to believe that the employee is responsible for the misconduct is sufficiently met in the case at bar. Petitioner's behavior rendered him unworthy of the trust and confidence demanded by his position. Considering that an employer is entitled to terminate the services of employees for just cause and that stealing and other forms of dishonesty have been held to be sufficient grounds for dismissal, as a measure of self-protection, private respondent was justified in dismissing petitioner. Although petitioner's guilt was not proved beyond reasonable doubt, the totality of the evidence presented is sufficient to warrant the dismissal of petitioner Porfirio Auxilio, Jr. As held in the case of Filipro, Inc.

vs. NLRC, 145 SCRA 123:

The law, in protecting the rights of the laborer, authorizes neither oppression nor self-destruction of the employer.

WHEREFORE, the decision of the National Labor Relations Commission (NLRC) is AFFIRMED. SO ORDERED.

[G.R. No. L-69934. September 26, 1988.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARIANITO

INTINO, Defendant-Appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; ABSENCE OF EVIL MOTIVE TO IMPLICATE A CLOSE RELATIVE, BOLSTERS CREDIBILITY. — Witnesses Calipayan had no motive to implicate appellant who is their close relative being the son of the first cousin of Rosario Calipayan as admitted by appellant himself in his testimony. 2. ID.; ID.; DYING DECLARATION; NO PROBATIVE VALUE WHERE THE

DECEASED WAS NOT IN A POSITION TO IDENTIFY HIS ASSAILANT. — We do not question the credibility of witness Segundina Delda in declaring that her brother, Bienvenido Caluser, made a dying statement inside the bus that Pare Benny wounded him. While there may be such statement made since that was the belief of the deceased Bienvenido Caluser, We cannot give it probative value. As already shown earlier, Bienvenido Caluser was not in a position to identify his assailant as he was stabbed from behind and when

he, already wounded, bloodied and weak from his wounds, took a look at his assailant, Bienvenido Caluser was again stabbed several times by the appellant giving him no opportunity to fully identify his attacker. Maybe because of the fact that Bienvenido Caluser and Marianito Intino had no quarrel or misunderstanding in the past the former never thought of the latter as his attacker, thus he uttered someone else’s name who was their drinking guest earlier as his attacker. 3. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; TREACHERY; MANIFEST WHERE THE ATTACK WAS SUDDEN AND UNEXPECTED. — There is no question that there was treachery as the attack that came from behind was so sudden and unexpected leaving the poor victim helpless to defend himself. 4. ID.; MURDER; IMPOSABLE PENALTY. — With the abolition of the death penalty, the penalty now imposed by law for the crime of murder is reclusion temporal in its maximum period to reclusion perpetua. 5. ID.; INDETERMINATE SENTENCE LAW; MURDER, PENALTY. — Considering the provisions of the Indeterminate Sentence Law, the maximum

imposable penalty in the case at bar is the medium period of the aforementioned period (that is, the higher half of reclusion temporal maximum) and the minimum is one degree lower than the prescribed penalty now of reclusion temporal maximum to reclusion perpetua.

D E C I S I O N

PARAS, J.: Appellant Marianito Intino alias "Marian" was charged before the lower court

with the crime of Murder in an Information quoted hereunder:jgc:chanrobles.com.ph "That on or about the 17th day of September, 1976, in the Municipality of Babatngon, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with the decided intent to kill and by means of treachery did, then and there willfully, unlawfully and feloniously attack, assault and wound one Bienvenido Caluser with a bolo which he purposely provided himself, thereby hitting and inflicting upon the said Bienvenido Caluser with wounds on the different parts of his body which caused his death shortly thereafter.

"Contrary to Article 248 of the Revised Penal Code." (p. 1, Rollo) After due trial, judgment 1 was rendered by the trial court on October 3, 1984, its dispositive portion reading as follows:jgc:chanrobles.com.ph "WHEREFORE, finding the accused Marianito Intino guilty beyond reasonable doubt of the crime of Murder, there being no mitigating nor aggravating circumstance, this Court hereby renders judgment sentencing the accused to suffer the penalty of reclusion perpetua, with all the accessory penalties provided for by law, and to pay the costs. "In the service of his sentence, the accused shall be entitled to the full time during which he was under preventive imprisonment.

"The accused is hereby directed to pay to the heirs of the late Bienvenido Caluser, as compensation, the amount of P12,000.00, without subsidiary imprisonment in case of insolvency. "SO ORDERED." (p. 7, Decision; p. 25 Rollo) Hence, the appeal interposed by the accused with the following:chanrob1es virtual

1aw library

ASSIGNMENTS OF ERROR

I

THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER, APPRECIATE OR GIVE DUE WEIGHT TO THE DYING DECLARATION OF THE DECEASED BIENVENIDO CALUSER WHEN THE EVIDENCE THEREOF IS CLEAR, SUFFICIENT, STRAIGHTFORWARD AND UNIMPEACHED, THUS RESULTING IN GRAVE INJUSTICE TO THE ACCUSED APPELLANT.

II THE LOWER COURT ERRED IN FINDING THE APPELLANT GUILTY OF MURDER BEYOND REASONABLE DOUBT ON THE BASIS OF THE EVIDENCE ON RECORD.

III THE LOWER COURT ERRED IN FINDING THAT TREACHERY ATTENDED THE COMMISSION OF THE CRIME.

Briefly, the evidence for the prosecution tends to show that the appellant Marianito Intino is a farmer who had been hired as a coconut picker by the

victim Bienvenido Caluser.

On September 17, 1976 at about 3:00 o’clock in the afternoon, appellant and the victim went to the house of the latter’s girl friend, Norma Calipayan, who served them tuba. While they were drinking, they invited Benny Raliente, a passerby to join them in their drinking spree. The latter accepted their invitation but after drinking about two or three glasses of tuba, he left Marianito and Bienvenido who continued with their drinking until about 6:00 o’clock p.m. Thereafter, Bienvenido Caluser joined Norma, Rosario, her mother and Luciano, her father in their supper. Marianito Intino seated himself at the porch approximately four meters away from the dining table, while Primo Calipayan, a brother of Norma was lying on a bench beside Marianito. After eating Rosario went inside the bedroom to breastfeed her one-year old child, while her husband went outside the house. Norma was left with Bienvenido at the dining table. While they were conversing, Norma saw Marianito suddenly rise from his seat, then approach Bienvenido from behind him since Bienvenido was seated with his back facing the door leading to the porch. Norma was seated on another bench at the right side of Bienvenido, sideways to the door leading to the porch so that she was able to see the action of Marianito. (Exh. E-3, p. 18, Record). After hearing Bienvenido say "I am wounded" in the vernacular, Norma stood up as Bienvenido held on to her. As Bienvenido tried to glance at his assailant, appellant again stabbed him with his bolo which prompted witness Norma to utter "Marian husto na." Then Norma’s mother, Rosario, who rushed out of the room upon hearing somebody cry that he was wounded, saw Marianito

who was still attacking Bienvenido, who was already wounded. Rosario pushed Marianito aside as she took the bolo from him to prevent him from

further attacking Bienvenido Caluser. Marianito ran away. When Luciano Calipayan arrived, upon seeing Bienvenido Caluser bathed in his own blood with intestines protruding from his abdomen, he immediately sought the help of Punay de San Miguel and Peping de San Miguel and their other neighbors. They placed Bienvenido Caluser on a hammock and boarded him on a baby

bus enroute to the Daniel Z. Romualdez Memorial Hospital in Tacloban City, where he died about midnight of that same day.

On the other hand, the evidence for the defense consists of the testimonies of witnesses Marianito Intino (appellant), Segundina C. Delda and Alejo D. Ripalda. Appellant denied that he stabbed and killed the victim. He identified the assailant as Benedicto Relente 2 or "Pare Benny" (of the victim). According to the testimonies of Segundina C. Delda, sister of the victim, and Alejo D. Ripalda, the victim made a dying declaration to Segundina while inside the baby bus, (he repeated such declaration to Fernando San Miguel while inside the intensive care unit of the hospital) that his attacker was "Pare Benny" referring to Benedicto Relente of Villa Magsaysay. These two separate dying statements were allegedly heard by witness Alejo Ripalda who was then present on both instances.

The appeal is meritless. After a careful perusal of the evidence on record, We entertain no doubt that appellant was positively identified by the prosecution’s witnesses Norma and Rosario Calipayan both in their sworn statements given before NBI agents Reynaldo C. Manzanero on January 21, 1977 and March 14, 1977, respectively and in their oral testimonies in open court. Witness Norma Calipayan in her sworn statement admitted that she did not see appellant stab Bienvenido Caluser the first time even is she was there with Bienvenido although she saw appellant approach the victim from behind, not knowing that Marianito harbored any bad intention towards the victim. Norma and Rosario Calipayan also declared that they do not know of any ill-feelings or bad blood between the victim and the appellant except during that instance when the victim told the appellant jokingly that he would box appellant because he was from Pagsulhugan. When Rosario heard such conversation she cut in by asking Bienvenido what this talk was all about. The latter simply answered that he was only joking.

The discrepancies in their testimonies (cited by appellant) are not serious enough to cast real doubt on their credibility. Witnesses Calipayan had no motive to implicate appellant who is their close relative being the son of the first cousin of Rosario Calipayan as admitted by appellant himself in his testimony (tsn-Anota, May 14, 1982, p. 12). There is no witness aside from the appellant who can testify that "Pare Benny" or Benedicto Relente mentioned in the dying statement of the victim, actually stabbed the victim. But as against appellant Marianito Intino, both Norma Calipayan and her

mother Rosario positively saw appellant stab the victim after the first blow and all the attending circumstances point to him as the one who killed the

deceased. It is true that appellant pointed to Benny Relente as the one who allegedly stabbed the victim, as shown in his testimony in court, to wit:jgc:chanrobles.com.ph

"Q. Will you tell the court the sitting position of the persons drinking?

A. Bienvenido Caluser and Benny were facing each other and Rosario was behind Luciano Calipayan, sir. Q. How do you know that? A. Because I could see them from the porch. Q. What was illuminating them? A. A kerosene lamp sir. Q. Now while these persons were drinking at around 8.00 o’clock what happened?

A. Bienvenido Caluser was stabbed by a person called Benny.

Q. What did Benny do to Caluser? A. Benny held the shoulder of Bienvenido Caluser and then stabbed him sir. Q. Was Bienvenido Calusar hit? A. Yes, sir. Q. Where? A. He was hit in the abdomen.

x x x Q. What did Benny use in stabbing Bienvenido Caluser? A. A bolo, sir. Q. Where did he get this bolo used in stabbing Caluser? A. He got it from the wall, sir, behind him." (tsn-Anota, May 14, 1982, p. 4). However, from the above testimony, the logical conclusion is that the assailant Benny was facing the victim as he delivered the stabbing blow in

the abdomen of the victim, as the witness would want the court to believe. However, this is belied by the medical certificate.(Exh. "A" or Exh. "E-7," p. 10, Records) issued by the attending physician, Dr. Sherlito T. Siao and confirmed by Dr. Alden Tabao who testified on this in court that the fatal wound (that is, the one inflicted in the abdomen) was described as:jgc:chanrobles.com.ph "Operative Findings: Wound stab, thru and thru wound of entrance right

posterior lumbar, wound of exit epigastric, penetrating perforating Kidney Right #1, Liver #1, Transverse Colon #2, Misocolon, Severe hemorrhage." (see also Exh. "B." A sketch of a human body showing the entrance and exist of the fatal wounds of the victim, p. 142, Records) The testimony of Norma Calipayan that the assailant approached the victim from behind is strengthened by the victim’s medical certificate which was never disputed by the parties and Exh. E-3 (p. 18, Records) which is a sketch demonstrating the seating arrangement or the positions of those persons present in the house of the Calipayans that fateful night. Furthermore, We have also considered the fact that appellant was nowhere to be found immediately after the incident while Benny Relente never left the place to escape being investigated in connection with the death of Bienvenido

Caluser. Likewise, the National Bureau of Investigation thru NBI agent Reynaldo C. Manzanero in coordination with the PC investigating arm,

conducted polygraph tests (lie-detector tests) on the suspect Benny or Benedicto Relente who denied authorship of the killing and on Rosario Calipayan who firmly asserted having actually seen respondent Marianito Intino deliver hacking blows on Bienvenido Caluser which caused his death. Both successfully hurdled the NBI polygraph tests. We do not question the credibility of witness Segundina Delda in declaring that her brother, Bienvenido Caluser, made a dying statement inside the bus that Pare Benny wounded him. While there may be such statement made since that was the belief of the deceased Bienvenido Caluser, We cannot give it probative value. As already shown earlier, Bienvenido Caluser was not in a position to identify his assailant as he was stabbed from behind and when he, already wounded, bloodied and weak from his wounds, took a look at his assailant, Bienvenido Caluser was again stabbed several times by the appellant giving him no opportunity to fully identify his attacker. Maybe because of the fact that Bienvenido Caluser and Marianito Intino had no quarrel or misunderstanding in the past the former never thought of the latter as his attacker, thus he uttered someone else’s name who was their drinking guest earlier as his attacker. We now come to the issue of treachery raised by appellant. There is no question that there was treachery as the attack that came from behind was so sudden and unexpected leaving the poor victim helpless to defend himself. With the abolition of the death penalty, the penalty now imposed by law for

the crime of murder is reclusion temporal in its maximum period to reclusion perpetua. Considering the provisions of the Indeterminate Sentence Law, the maximum imposable penalty in the case at bar is the medium period of the aforementioned period (that is, the higher half of reclusion temporal maximum) and the minimum is one degree lower than the prescribed penalty now 3 of reclusion temporal maximum to reclusion perpetua. WHEREFORE, the accused is hereby sentenced to suffer imprisonment from

12 years of prision mayor, as minimum to 18 years and 9 months of reclusion temporal as maximum; to suffer the accessory penalties and to pay an indemnity of P30,000.00 to heirs of the victim, and costs. In all other respects, the judgment appealed from is AFFIRMED. SO ORDERED.

[G.R. Nos. 116196-97. June 23, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO

ADOVISO, defendant-appellant.

D E C I S I O N

KAPUNAN, J.:

Pablo Adoviso appeals from the Joint Judgment[1] of the Regional Trial Court of Camarines Sur[2] declaring him guilty beyond reasonable doubt for two counts of Murder.

Appellant, allegedly a member of the Citizens Armed Forces Geographical Unit (CAFGU), was originally charged with four unidentified persons who have, however, remained at large. The information[3] charging

appellant with the Murder of Rufino Agunos under Criminal Case No. P-2079 alleges:

That on or about the 18th day of February 1990 at about 8:00 oclock [sic] in the evening at Sitio Tan-agan, Barangay Casugad,

Municipality of Bula, Province of Camarines Sur, Philippines and

within the jurisdiction of this Honorable Court, the above-named

accused, while armed with assorted long firearms, conspiring,

confederating and mutually helping one another, with intent to kill

and with treachery and evident premeditation, did then and there

willfully, unlawfully and feloniously shoot one Rufino Agunos several times with said firearms hitting the latter on the different parts of his

body which were the direct and immediate cause of his death, to the

damage and prejudice of the heirs of said Rufino Agunos.

That the crime complained of against the accused is not service

connected.

ACTS CONTRARY TO LAW.

Except for the name of the victim, the information in Criminal Case No. P-2080 with respect to the killing of Emeterio Vasquez, contains the same allegations.[4]

Appellant pleaded not guilty to both charges. At the joint trial of Criminal Case Nos. P-2079 and P-2080, the prosecution presented their version of the events that transpired on the evening of February18, 1990, as follows:

The spouses Emeterio and Anastacia Vasquez had two adjacent houses in Sitio Tan-agan, Barangay Casugad, Bula, Camarines Sur. One of the houses was actually a camalig where they stored harvested rice. The spouses

preferred to live there because it was cooler. The living area of thecamalig had walls of bamboo called salsag. This area was elevated from the ground. Three steps led down to an awning (suyab) walled with bamboo slats. These slats were placed horizontally approximately four to six inches apart. A portion of the awning was used as a kitchen but another portion had a papag where the Vasquez grandson, Rufino Agunos, son of their daughter Virginia, would

sleep whenever he tended the irrigation pump. The spouses son Bonifacio occupied the other house eight (8) meters from the camalig with his own son Elmer.

At around 8:00 in the evening of February 18, 1990, Emeterio Vazquez was preparing coffee as his wife was about to retire for the night. Their grandson Rufino had already gone to sleep in the papag. Anastacia had just finished spreading the sleeping mat when she heard three or four gunshots. Emeterio then uttered that he had been shot. Seeing Emeterio, Anastacia exclaimed, Why should you not be hit when in fact there are guns

in front of you. Anastacia saw the protruding edge of the gun on the wall near the stairs where Emeterio went down. A lamp near the stairs where Emeterio drank coffee illuminated the camalig but Anastacia failed to recognize the persons who fired their guns at her husband.

The Vasquez son Bonifacio was in the bigger house when he heard the gunshots. Earlier that evening, Bonifacio was talking to Rufino regarding the engine of the irrigation pump. Bonifacio was still talking when he noticed that Rufino had fallen asleep, the latters back against the bamboo wall. Bonifacio left Rufino snoring in the papag and went to the other house. Only a minute had passed after he had gone up when Bonifacio heard

the gunshots. He and his 16-year-old son Elmer immediately went down the front yard to investigate.

Bonifacio hid himself in the dark portion of the yard, behind a coconut tree. From a distance of eight (8) meters, Bonifacio saw Rufino, who was inside the camalig, being shot by several persons from the outside. Looking through the bamboo slats of the camalig wall, Bonifacio recognized one of the assailants, with a large built and long hair, as appellant Pablo Adoviso because of the gas lamp that was lighted inside the camalig. Of Rufinos assailants, only appellant was not wearing a mask. Appellant was holding a long firearm wrapped inside a sack with its muzzle protruding and directed where Rufino was sleeping. Appellant then fired hitting Rufino. At that moment, Bonifacio heard his father Emeterio shout Pino, (referring to his grandson Rufino) and saw his father go down the stairs carrying a gas lamp. Appellant fired again, hitting Emeterio at the stomach.

For his part, Elmer, who rushed towards the camalig with his father Bonifacio, saw five (5) persons aiming their firearms at the camalig. Except for appellant, each of these persons had a cover over their faces. Three (3) of

them were positioned in a ditch near the camalig while two (2) others were near its door. Elmer saw these five (5) persons shoot his cousin Rufino who was lying down on the papag. Although his back was hit, Rufino was able to crawl under the papag. Elmers grandfather was also hit on the stomach but he managed to go up the camalig. When appellant and his companion by the camalig door saw Elmer, they fired at him then, with the three others at

the ditch, escaped to the banana plantation. Elmer, on the other hand, fled towards the coconut plantation.

Upon returning to the camalig, Elmer saw his father carrying his grandfather Emeterio. He also found Rufino at the foot of a coconut tree near the river, lying on his side with his body curled. Rufino told Elmer that he had been hit and, when Elmer failed to locate his wound, Rufino took Elmers hand and put it on his back. Elmer then moved Rufino sidewise. Upon returning to the camalig, Elmer carried his grandfather and bandaged his stomach with diapers.

In the meantime, Bonifacio went to the municipal building of Bula to

fetch the police. Inspector Antonio Lopez and Senior Police Officer 1 Claro Ballevar returned to the scene of the crime with him. The police brought Emeterio and Rufino to the municipal hall of Bula and then to the Bicol Regional Hospital. Both Emeterio and Rufino died early the next morning.

The certification[5] dated March 7, 1990 and signed by Dr. Janice Nanette Estrada, resident physician of the Bicol Regional Hospital in Naga City, states that 35-year-old Rufino Agunos died of four (4) gunshot wounds: at the inguinal area, the sacral area, the thigh and the abdomen. The wounds at the inguinal area and the thigh bore contusion collars. The same physician certified that Emeterio Vasquez, 88 years of age, sustained seven (7) gunshot wounds at the paraumbilical area, lumbar area, hypogastrium, anterior aspect of the right forearm, anteromedial aspect of the right forearm, anteromedial aspect left arm and anterolateral aspect of the left arm. Four (4) of these gunshot wounds had contusion collars at the paraumbilical area, the hypogastrium, the right forearm and the left arm.[6]

Appellant Adoviso interposed alibi and denial as his defense.

Appellant claimed that he was a member of the CAFGU whose headquarters was located in Barangay Palsong, Bula, Camarines Sur. At around 7:00 in the evening of February 18, 1990, he was in Sitio Burabod, Palsong, about a kilometer away from the CAFGU headquarters. He, together with Francisco Bislombre, Benjamin Alina, Jr. and PFC Antero Esteron, had some drinks in the store of Honoria Tragante until around 11:00 p.m.

Honoria Tragante and Francisco Bislombre corroborated appellants alibi. Antero Esteron likewise testified that from 7:00 until past 11:00 that night of February 18, 1990, he and appellant had a drinking spree at the Tragante store. He distinctly remembered that date because it was the fiesta of Balatan.

To support his denial, appellant presented Lt. Antonio Lopez, the deputy chief of police and SPO2 Claro Ballebar of the PNP Bula Police Station. Lopez identified a police certification[7] prepared by Pfc. Ramon N. Canabe to the effect that the shooting incident was perpetrated by unidentified armed men. Lopez said that he (Lopez) was one of those who brought the victims to the hospital who were then still conscious. The victims told him that they did not know who shot them or why they were shot.

SPO2 Claro Ballebar, however testified that in the follow-up investigation he conducted several days after the incident, Bonifacio Vasquez revealed to him that he (Bonifacio) vividly saw the incident and recognized appellant as one of the perpetrators of the crime and that the killings had some something to do with land dispute between Bonifacios parents and the Galicia family.

The defense also offered in evidence the testimony of Ernesto A. Lucena, Polygraph Examiner II of the National Bureau of Investigation (NBI) in Manila, who conducted a polygraph test on appellant. In Polygraph Report No. 900175,[8] Lucena opined that appellants polygrams revealed that there were no specific reactions indicative of deception to pertinent questions relevant to the investigation of the crimes.

In rebuttal, Bonifacio Vasquez revealed that when he reported the incident to the police, he did not identify appellant as one of the culprits

because he was afraid of appellant who was a member of the

CAFGU. Nevertheless, Bonifacio did mention to the police that he recognized appellant as one of the perpetrators of the crime although he told them that he did not recognize appellants four (4) companions. He did not mention to Lopez and Canabe appellants identity because he was confused about what had happened in their house.

On March 25, 1994, the trial court rendered a Joint Judgment finding appellant guilty beyond reasonable doubt for two (2) counts of murder and disposing of Criminal Case Nos. P-2079 and P-2080 as follows:

WHEREFORE, in view of all the foregoing, joint judgment is hereby rendered:

In Criminal Case No. P-2079, finding the accused PABLO ADOVISO

guilty beyond reasonable doubt of the crime of MURDER and imposing upon him the penalty of RECLUSION PERPETUA and to pay

the legal heirs of Rufino Agunos, consisting of the widow, Evelyn T.

Agunos and their four (4) children the sum of FIFTY THOUSAND

PESOS (P50,000.00) Philippine Currency;

In Criminal Case No. P-2080, likewise finding said accused PABLO

ADOVISO guilty beyond reasonable doubt of the crime of MURDER and imposing upon him another penalty of RECLUSION PERPETUA and to pay the legal heirs of the late EMETERIO

VASQUEZ, consisting of Anastacia Vasquez and Bonifacio Vasquez,

another sum of FIFTY THOUSAND PESOS (P50,000.00) Philippine

Currency with all the accessory penalties provided therefore in both cases and to pay the costs in both instances.

SO ORDERED.[9]

Appellant hinges his bid for exoneration on whether he was properly identified by the two (2) eyewitnesses as one of the killers of the victims. He contends that eyewitnesses Bonifacio and Elmer Vasquez presented an incredible story because it is highly improbable that they could have distinctly and positively recognized accused-appellant as one of the perpetrators of the crimes."[10] According to appellant, Bonifacio, who was in the dark portion of the yard hiding behind a coconut tree, could not have identified appellant by the light emanating from gas lamp inside thecamalig where Emeterio Vasquez and Rufino Agunos were staying at the time of the incident. Neither could Elmer Vasquez, who declared that he saw his grandfather shot by appellant, could have identified appellant because of the poor lighting coming from the gas lamp being carried by his

grandfather. Appellant claims that the gas lamp carried by Elmer's grandfather was a small can about two (2) inches tall and the wick is smaller than a cigarette and the lamp inside the camalig was placed inside a bigger can so that the direction of the light emanating therefrom was upwards and

not sidewise.[11]

Visibility is indeed a vital factor in the determination of whether or not an eyewitness could have identified the perpetrator of a crime. However, it is settled that when conditions of visibility are favorable, and the witnesses do not appear to be biased, their assertion as to the identity of the malefactor should normally be accepted.[12] Illumination produced by kerosene lamp or a flashlight is sufficient to allow identification of persons.[13] Wicklamps, flashlights, even moonlight or starlight may, in proper situations be considered sufficient illumination, making the attack on the credibility of witnesses solely on that ground unmeritorious.[14]

In this case, not one (1) but two (2) gas lamps illuminated the place the one placed inside the camalig and that held by Emeterio as he descended from the stairs after the first volley of gunfire. Appellants contention therefore that one particular gas lamp could not have lighted the place because it was placed inside a can is puerile. Besides, Elmer was not describing either of the gas lamps during the incident. The defense counsel at the trial and appellants counsel misunderstood the testimonies of Elmer and his grandmother on that matter. Thus, Elmer testified:

ATTY. CORTES:

Q Is it not that the lamp you said placed along the door, which is already marked as lamp, is that not this lamp was placed inside a kerosene can as testified to by your grandmother so that the cat could not cause it to fall?

A It was placed just on the floor not inside the can.[15] (Underlining

supplied.)

For her part, Anastacia testified as follows:

ATTY. CORTES:

xxx.

Q Because you were already about to retire, the doors and windows were already closed, is that correct?

A Yes, sir.

Q That you also shut down or closed the light, is that correct?

A No, sir, we even placed the kerosene lamp inside a can.

Q You said, you placed the lamp inside a can so that the light is going up, is that correct?

A Yes, sir.

Q So, the light was not illuminating sidewise because it was inside a can?

A When we left, I got the kerosene lamp and brought it with me.

ATTY. CORTES:

I think, the witness did not get the question right, Your Honor.

COURT:

Repeat the question.

ATTY. CORTES:

Q My question Madam Witness is, when you were about to retire?

A The lamp was placed on the floor where my husband was drinking coffee.

COURT:

Q Who are the persons you are referring to as having left when you placed the light inside the can?

A My son, Bonifacio, and the policemen, Your Honor, when the(y) brought Emeterio and Rufino to the hospital.[16] (underlining supplied).

Clearly then, the lamp inside the camalig was placed on the floor and a can was placed over it only after the incident when Anastacia left with her son and the police to bring the victims to the hospital.

The bamboo slats of the camalig could not have effectively obstructed the eyewitnesses' view of appellant, considering that the slats were built four (4) meters apart. Besides, it is the natural reaction of relatives of victims to strive to observe the faces and appearance of the assailants, if not ascertain

their identities, and the manner in which the crime is committed.[17] A relative will naturally be interested in identifying the malefactor to secure his conviction to obtain justice for the death of his relative(s).[18] It must remembered that appellant was not a complete stranger to the eyewitnesses. Bonifacio had known him for ten (10) years[19] while Elmer had

been acquainted with him for four (4) years. Elmer recalled that appellant used to join the rabuz at the barracks.[20] Familiarity with appellants face and appearance minimized if not erased the possibility that they could have been mistaken as to his identity.

Appellants allegation that it was improbable for him to have committed the crimes without a mask, unlike the other participants, deserves scant consideration. It is not contrary to human experience for a person to commit a crime before the very eyes of people who are familiar to them.Indeed, some

may even take pride in their identification as the perpetrator of a criminal act.

Appellant also considers as a positive sign, Bonifacios failure to immediately identify him as the perpetrator of the crime to the police.[21] The delay in reporting his participation to the police was however sufficiently explained by Bonifacio. Bonifacio was afraid of appellant since the latter was a member of the CAFGU and, as such, was provided with a gun. He was also hesitant in identifying appellant immediately lest he got wind of his impending arrest and posthaste escaped the clutches of the law. The failure of a witness to reveal at once the identity of the accused as one of the perpetrators of the crime does not affect, much less, impair his credibility as a witness.[22] The general or common rule is that witnesses react to a crime in different ways.[23] There is no standard form of human behavioral response to a strange, startling and frightful event, and there is no standard rule by

which witnesses to a crime must react.[24]

There is no merit in appellants contention that Bonifacio had a motive in implicating him. According to appellant, Bonifacio suspected that he was hired by the Galicia family to kill Bonifacio's father who had earlier won in a land dispute with the Galicias. It is irrelevant here to talk of motive on the part of Bonifacio inasmuch as to credible witnesses had positively identified appellant as one of the participants in the killing of Emeterio Vasquez and Rufino Agunos.

Appellants alibi thus crumbles in the face of his positive identification as one of the perpetrators of the crimes.[25] For an alibi to prosper, moreover, there must be proof that the defendant was not only somewhere else when the crime was committed but that he could not be physically present at the place of the crime or its immediate vicinity at the time of its commission.[26]26 Appellant did not prove the physical impossibility of his being in Sitio Tan-agan which is not exactly remote from Sitio Palsong where he claimed to be when the incident happened. Both places are within the Municipality of Bula. Appellant admitted that the distance between the two sitios could be negotiated in three hours even without any means of transportation.[27] On the other hand, his alleged companion in Sitio Palsong, Antero Esteron, testified that the distance could be traveled in thirty-five (35) minutes by trimobile or private vehicle.[28]

Apart from the fact that appellant's alibi was inherently weak, he was not even sure where he was and who were his companions at the time the crimes were committed. We quote the observation of the trial court on this point:

On the premise that the trial court rendered the judgment of conviction on the basis of mere conjectures and speculations,[29] appellant argues that the negative result of the polygraph test should be given weight to tilt the scales of justice in his favor.

A polygraph is an electromechanical instrument that simultaneously measures and records certain physiological changes in the human body that are believed to be involuntarily caused by an examinees conscious attempt to deceive the questioner.[30] The theory behind a polygraph or lie detector test is

that a person who lies deliberately will have a rising blood pressure and a subconscious block in breathing, which will be recorded on the graph.[31] However, American courts almost uniformly reject the results of polygraph tests when offered in evidence for the purpose of establishing the guilt or innocence of one accused of a crime, whether the accused or the prosecution seeks its introduction, for the reason that polygraph has not as yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception.[32] The rule is no different in this jurisdiction. Thus, in People v. Daniel,[33] stating that much faith and credit should not be vested upon a lie detector test as it is not conclusive. Appellant, in this case, has not advanced any reason why this rule should not apply to him.

Appellant was therefore correctly adjudged guilty of two counts of Murder. Treachery qualified the killings to murder. There is treachery when the offender commits any of the crimes against the person, employing means,

methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.[34] In other words, there is treachery when the attack on an unarmed victim who has not given the slightest provocation is sudden, unexpected and without warning.[35] The victims in this case were totally unaware of an impending assault Rufino was sleeping and Emeterio was going down the stairs when they were shot.

WHEREFORE, the Joint Judgment of the trial court is hereby AFFIRMED.

SO ORDERED.

G.R. No. L-39110 November 28, 1933

ANTONIA L. DE JESUS, ET AL., plaintiff-appellant, vs.

CESAR SYQUIA, defendant-appellant.

STREET, J.:

This action was instituted in the Court of First Instance of Manila by Antonia Loanco de Jesus in her own right and by her mother, Pilar Marquez, as next friend and representative of Ismael and Pacita Loanco, infants, children of the first-named plaintiff, for the purpose of recovering from the defendant, Cesar Syquia, the sum of thirty thousand pesos as damages resulting to the first-named plaintiff from breach of a marriage promise, to compel the defendant to recognize Ismael and Pacita as natural children begotten by him

with Antonia, and to pay for the maintenance of the three the amount of five hundred pesos per month, together with costs. Upon hearing the cause, after

answer of the defendant, the trial court erred a decree requiring the defendant to recognize Ismael Loanco as his natural child and to pay maintenance for him at the rate of fifty pesos per month, with costs, dismissing the action in other respects. From this judgment both parties appealed, the plaintiffs from so much of the decision as denied part of the relief sought by them, and the defendant from that feature of the decision which required him to recognize Ismael Loanco and to pay for his maintenance.

At the time with which we are here concerned, the defendant, Cesar Syquia

was of the age of twenty-three years, and an unmarried scion of the prominent family in Manila, being possessed of a considerable property in his own right. His brother-in-law, Vicente Mendoza is the owner of a barber shop in Tondo, where the defendant was accustomed to go for tonsorial attention. In the month of June Antonia Loanco, a likely unmarried girl of the age of twenty years, was taken on as cashier in this barber shop. Syquia was not long in making her acquaintance and amorous relations resulted, as a consequence of which Antonia was gotten with child and a baby boy was born on June 17, 1931. The defendant was a constant visitor at the home of Antonia in the early months of her pregnancy, and in February, 1931, he wrote and placed in her hands a note directed to the padre who has expected to christen the baby. This note was as follows:

Saturday, 1:30 p. m. February 14, 1931

Rev. FATHER,

The baby due in June is mine and I should like for my name to be given to it.

CESAR SYQUIA

The occasion for writing this note was that the defendant was on the eve of his departure on a trip to China and Japan; and while he was abroad on this visit he wrote several letters to Antonia showing a paternal interest in the situation that had developed with her, and cautioning her to keep in good condition in order that "junior" (meaning the baby to be, "Syquia, Jr.") might be strong, and promising to return to them soon. The baby arrived at the time expected, and all necessary anticipatory preparations were made by the defendant. To this he employed his friend Dr. Crescenciano Talavera to attend at the birth, and made arrangements for the hospitalization of the mother in Saint Joseph's Hospital of the City of Manila, where she was cared for during confinement.

When Antonio was able to leave the hospital, Syquia took her, with her mother and the baby, to a house at No. 551 Camarines Street, Manila, where they lived together for about a year in regular family style, all household expenses, including gas and electric light, being defrayed by Syquia. In

course of time, however, the defendant's ardor abated and, when Antonia began to show signs of a second pregnancy the defendant decamped, and he is now married to another woman. A point that should here be noted is that when the time came for christening the child, the defendant, who had charge of the arrangement for this ceremony, caused the name Ismael Loanco to be given to him, instead of Cesar Syquia, Jr., as was at first planned.

The first question that is presented in the case is whether the note to the padre, quoted above, in connection with the letters written by the defendant to the mother during pregnancy, proves an acknowledgment of paternity, within the meaning of subsection 1 of article 135 of the Civil Code. Upon this point we have no hesitancy in holding that the acknowledgment thus shown is sufficient. It is a universal rule of jurisprudence that a child, upon being conceived, becomes a bearer of legal rights and capable of being

dealt with as a living person. The fact that it is yet unborn is no impediment to the acquisition of rights. The problem here presented of the recognition of unborn child is really not different from that presented in the ordinary case of the recognition of a child already born and bearing a specific name. Only the means and resources of identification are different. Even a bequest to a living child requires oral evidence to connect the particular individual intended with the name used.

It is contended however, in the present case that the words of description used in the writings before us are not legally sufficient to indemnify the child

now suing as Ismael Loanco. This contention is not, in our opinion, well

founded. The words of recognition contained in the note to the padre are not capable of two constructions. They refer to a baby then conceived which was expected to be born in June and which would thereafter be presented for christening. The baby came, and though it was in the end given the name of Ismael Loanco instead of Cesar Syquia, Jr., its identity as the child which the defendant intended to acknowledge is clear. Any doubt that might arise on this point is removed by the letters Exhibit F, G, H, and J. In these letters the defendant makes repeated reference to junior as the baby which Antonia, to whom the letters were addressed, was then carrying in her womb, and the

writer urged Antonia to eat with good appetite in order that junior might be vigorous. In the last letter (Exhibit J) written only a few days before the birth of the child, the defendant urged her to take good care of herself and of junior also.

It seems to us that the only legal question that can here arise as to the sufficiency of acknowledgment is whether the acknowledgment contemplated in subsection 1 of article 135 of the Civil Code must be made in a single document or may be made in more than one document, of indubitable authenticity, written by the recognizing father. Upon this point we are of the opinion that the recognition can be made out by putting together the admissions of more than one document, supplementing the admission made in one letter by an admission or admissions made in another. In the case before us the admission of paternity is contained in the note to the padreand the other letters suffice to connect that admission with the child then being carried by Antonia L. de Jesus. There is no requirement in the law that the

writing shall be addressed to one, or any particular individual. It is merely required that the writing shall be indubitable.

The second question that presents itself in this case is whether the trial court erred in holding that Ismael Loanco had been in the uninterrupted possession of the status of a natural child, justified by the conduct of the father himself, and that as a consequence, the defendant in this case should be compelled to acknowledge the said Ismael Loanco, under No. 2 of article 135 of the Civil Code. The facts already stated are sufficient, in our opinion, to justify the conclusion of the trial court on this point, and we may add here

that our conclusion upon the first branch of the case that the defendant had acknowledged this child in writings above referred to must be taken in connection with the facts found by the court upon the second point. It is undeniable that from the birth of this child the defendant supplied a home for it and the mother, in which they lived together with the defendant. This situation continued for about a year, and until Antonia became enciente a second time, when the idea entered the defendant's head of abandoning her. The law fixes no period during which a child must be in the continuous possession of the status of a natural child; and the period in this case was long enough to evince the father's resolution to concede the status. The circumstance that he abandoned the mother and child shortly before this action was started is unimportant. The word "continuous" in subsection 2 of article 135 of the Civil Code does not mean that the concession of status shall continue forever, but only that it shall not be of an intermittent character while it continues.

What has been said disposes of the principal feature of the defendant's appeal. With respect to the appeal of the plaintiffs, we are of the opinion that the trial court was right in refusing to give damages to the plaintiff, Antonia Loanco, for supposed breach of promise to marry. Such promise is not satisfactorily proved, and we may add that the action for breach of promise to marry has no standing in the civil law, apart from the right to recover money or property advanced by the plaintiff upon the faith of such promise. This case exhibits none of the features necessary to maintain such an action.

Furthermore, there is no proof upon which a judgment could be based requiring the defendant to recognize the second baby, Pacita Loanco.

Finally, we see no necessity or propriety in modifying the judgment as to the amount of the maintenance which the trial court allowed to Ismael Loanco. And in this connection we merely point out that, as conditions change, the Court of First Instance will have jurisdiction to modify the order as to the amount of the pension as circumstances will require.

The judgment appealed from is in all respects affirmed, without costs. So ordered.

[G.R. No. 162571. June 15, 2005]

ARNEL L. AGUSTIN, petitioner, vs. HON. COURT OF APPEALS

AND MINOR MARTIN JOSE PROLLAMANTE, REPRESENTED BY HIS MOTHER/GUARDIAN FE ANGELA

PROLLAMANTE, respondents.

D E C I S I O N

CORONA, J.:

At issue in this petition for certiorari [1] is whether or not the Court

of Appeals (CA) gravely erred in exercising its discretion, amounting

to lack or excess of jurisdiction, in issuing a decision [2] and

resolution[3] upholding the resolution and order of the trial

court,[4]which denied petitioners motion to dismiss private

respondents complaint for support and directed the parties to submit themselves to deoxyribonucleic acid (DNA) paternity testing.

Respondents Fe Angela and her son Martin Prollamante sued

Martins alleged biological father, petitioner Arnel L. Agustin, for support and support pendente lite before the Regional Trial Court

(RTC) of Quezon City, Branch 106. [5]

In their complaint, respondents alleged that Arnel courted Fe in 1992, after which they entered into an intimate relationship. Arnel

supposedly impregnated Fe on her 34th birthday on November 10,

1999. Despite Arnels insistence on abortion, Fe decided otherwise

and gave birth to their child out of wedlock, Martin, on August 11,

2000 at the Capitol Medical Hospital in Quezon City. The babys birth certificate was purportedly signed by Arnel as the father. Arnel

shouldered the pre-natal and hospital expenses but later refused Fes

repeated requests for Martins support despite his adequate financial

capacity and even suggested to have the child committed for

adoption. Arnel also denied having fathered the child.

On January 19, 2001, while Fe was carrying five-month old Martin at the Capitol Hills Golf and Country Club parking lot, Arnel

sped off in his van, with the open car door hitting Fes leg. This

incident was reported to the police. In July 2001, Fe was diagnosed

with leukemia and has, since then, been undergoing chemotherapy.

On March 5, 2002, Fe and Martin sued Arnel for support. [6]

In his amended answer, Arnel denied having sired Martin

because his affair and intimacy with Fe had allegedly ended in 1998,

long before Martins conception. He claimed that Fe had at least one

other secret lover. Arnel admitted that their relationship started in

1993 but he never really fell in love with (Fe) not only because (she) had at least one secret lover, a certain Jun, but also because she

proved to be scheming and overly demanding and possessive. As a

result, theirs was a stormy on-and-off affair. What started as a

romantic liaison between two consenting adults eventually turned out

to be a case of fatal attraction where (Fe) became so obsessed with

(Arnel), to the point of even entertaining the idea of marrying him, that she resorted to various devious ways and means to alienate

(him) from his wife and family. Unable to bear the prospect of losing

his wife and children, Arnel terminated the affair although he still

treated her as a friend such as by referring potential customers to the

car aircon repair shop[7] where she worked. Later on, Arnel found out that Fe had another erstwhile secret lover. In May 2000, Arnel and

his entire family went to the United States for a vacation. Upon their

return in June 2000, Arnel learned that Fe was telling people that he

had impregnated her. Arnel refused to acknowledge the child as his

because their last intimacy was sometime in 1998. [8] Exasperated, Fe

started calling Arnels wife and family. On January 19, 2001, Fe followed Arnel to the Capitol Hills Golf and Country Club parking lot

to demand that he acknowledge Martin as his child. According to

Arnel, he could not get through Fe and the discussion became so

heated that he had no alternative but to move on but without

bumping or hitting any part of her body. [9] Finally, Arnel claimed that the signature and the community tax certificate (CTC) attributed to

him in the acknowledgment of Martins birth certificate were falsified.

The CTC erroneously reflected his marital status as single when he

was actually married and that his birth year was 1965 when it

should have been 1964.[10]

In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied having sired Martin but expressed willingness to consider any

proposal to settle the case.[11]

On July 23, 2002, Fe and Martin moved for the issuance of an

order directing all the parties to submit themselves to DNA paternity

testing pursuant to Rule 28 of the Rules of Court. [12]

Arnel opposed said motion by invoking his constitutional right

against self-incrimination.[13] He also moved to dismiss the complaint

for lack of cause of action, considering that his signature on the birth

certificate was a forgery and that, under the law, an illegitimate child

is not entitled to support if not recognized by the putative father. [14] In

his motion, Arnel manifested that he had filed criminal charges for falsification of documents against Fe (I.S. Nos. 02-5723 and 02-7192)

and a petition for cancellation of his name appearing in Martins birth

certificate (docketed as Civil Case No. Q-02-46669). He attached the

certification of the Philippine National Police Crime Laboratory that

his signature in the birth certificate was forged.

The trial court denied the motion to dismiss the complaint and

ordered the parties to submit themselves to DNA paternity testing at

the expense of the applicants. The Court of Appeals affirmed the trial

court.

Thus, this petition.

In a nutshell, petitioner raises two issues: (1) whether a complaint for support can be converted to a petition for recognition

and (2) whether DNA paternity testing can be ordered in a proceeding

for support without violating petitioners constitutional right to

privacy and right against self-incrimination.[15]

The petition is without merit.

First of all, the trial court properly denied the petitioners motion

to dismiss because the private respondents complaint on its face

showed that they had a cause of action against the petitioner. The

elements of a cause of action are: (1) the plaintiffs primary right and

the defendants corresponding primary duty, and (2) the delict or

wrongful act or omission of the defendant, by which the primary right and duty have been violated. The cause of action is determined not

by the prayer of the complaint but by the facts alleged.[16]

In the complaint, private respondents alleged that Fe had

amorous relations with the petitioner, as a result of which she gave

birth to Martin out of wedlock. In his answer, petitioner admitted that he had sexual relations with Fe but denied that he fathered Martin,

claiming that he had ended the relationship long before the childs

conception and birth. It is undisputed and even admitted by the

parties that there existed a sexual relationship between Arnel and Fe.

The only remaining question is whether such sexual relationship

produced the child, Martin. If it did, as respondents have alleged, then Martin should be supported by his father Arnel. If not, petitioner

and Martin are strangers to each other and Martin has no right to

demand and petitioner has no obligation to give support.

Preliminaries aside, we now tackle the main issues.

Petitioner refuses to recognize Martin as his own child and denies the genuineness and authenticity of the childs birth certificate

which he purportedly signed as the father. He also claims that the

order and resolution of the trial court, as affirmed by the Court of

Appeals, effectively converted the complaint for support to a petition

for recognition, which is supposedly proscribed by law. According to

petitioner, Martin, as an unrecognized child, has no right to ask for

support and must first establish his filiation in a separate suit under

Article 283[17] in relation to Article 265[18] of the Civil Code and Section 1, Rule 105[19] of the Rules of Court.

The petitioners contentions are without merit.

The assailed resolution and order did not convert the action for

support into one for recognition but merely allowed the respondents

to prove their cause of action against petitioner who had been

denying the authenticity of the documentary evidence of acknowledgement. But even if the assailed resolution and order

effectively integrated an action to compel recognition with an action

for support, such was valid and in accordance with jurisprudence. In Tayag v. Court of Appeals,[20] we allowed the integration of an action

to compel recognition with an action to claim ones inheritance:

In Paulino, we held that an illegitimate child, to be entitled to support

and successional rights from the putative or presumed parent, must

prove his filiation to the latter. We also said that it is necessary to

allege in the complaint that the putative father had acknowledged

and recognized the illegitimate child because such acknowledgment is essential to and is the basis of the right to inherit. There being no

allegation of such acknowledgment, the action becomes one to

compel recognition which cannot be brought after the death of the putative father. The ratio decidendi in Paulino, therefore, is not the

absence of a cause of action for failure of the petitioner to allege the

fact of acknowledgment in the complaint, but the prescription of the action.

Applying the foregoing principles to the case at bar, although

petitioner contends that the complaint filed by herein private

respondent merely alleges that the minor Chad Cuyugan is an illegitimate child of the deceased and is actually a claim for

inheritance, from the allegations therein the same may be considered

as one to compel recognition. Further, that the two causes of

action, one to compel recognition and the other to claim

inheritance, may be joined in one complaint is not new in our jurisprudence.

As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et al. (43 Phil. 763 [1922]) wherein we said:

The question whether a person in the position of the present plaintiff

can in any event maintain a complex action to compel recognition as

a natural child and at the same time to obtain ulterior relief in the

character of heir, is one which in the opinion of this court must be

answered in the affirmative, provided always that the conditions

justifying the joinder of the two distinct causes of action are present in the particular case. In other words, there is no absolute

necessity requiring that the action to compel acknowledgment

should have been instituted and prosecuted to a successful

conclusion prior to the action in which that same plaintiff seeks

additional relief in the character of heir. Certainly, there is

nothing so peculiar to the action to compel acknowledgment as to require that a rule should be here applied different from that

generally applicable in other cases. x x x

The conclusion above stated, though not heretofore explicitly formulated by this court, is undoubtedly to some extent supported by

our prior decisions. Thus, we have held in numerous cases, and

the doctrine must be considered well settled, that a natural child

having a right to compel acknowledgment, but who has not been

in fact legally acknowledged, may maintain partition proceedings

for the division of the inheritance against his coheirs x x x; and the same person may intervene in proceedings for the distribution of

the estate of his deceased natural father, or mother x x x. In neither

of these situations has it been thought necessary for the plaintiff to

show a prior decree compelling acknowledgment. The obvious reason

is that in partition suits and distribution proceedings the other

persons who might take by inheritance are before the court; and the declaration of heirship is appropriate to such proceedings.

(Underscoring supplied)

Although the instant case deals with support rather than inheritance, as in Tayag, the basis or rationale for integrating them

remains the same. Whether or not respondent Martin is entitled to

support depends completely on the determination of filiation. A

separate action will only result in a multiplicity of suits, given how

intimately related the main issues in both cases are. To paraphrase Tayag, the declaration of filiation is entirely appropriate

to these proceedings.

On the second issue, petitioner posits that DNA is not recognized

by this Court as a conclusive means of proving paternity. He also

contends that compulsory testing violates his right to privacy and

right against self-incrimination as guaranteed under the 1987

Constitution. These contentions have no merit.

Given that this is the very first time that the admissibility of DNA

testing as a means for determining paternity has actually been the

focal issue in a controversy, a brief historical sketch of our past

decisions featuring or mentioning DNA testing is called for.

In the 1995 case of People v. Teehankee [21] where the appellant

was convicted of murder on the testimony of three eyewitnesses, we stated as an obiter dictum that while eyewitness identification is

significant, it is not as accurate and authoritative as the scientific

forms of identification evidence such as the fingerprint or the DNA test result (emphasis supplied).

Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In Pe Lim v. Court of Appeals,[22] promulgated in

1997, we cautioned against the use of DNA because DNA, being a relatively new science, (had) not as yet been accorded official

recognition by our courts. Paternity (would) still have to be resolved

by such conventional evidence as the relevant incriminating acts,

verbal and written, by the putative father.

In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as enunciated in Tijing v. Court of Appeals:[23]

A final note. Parentage will still be resolved using conventional

methods unless we adopt the modern and scientific ways available.

Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the

Philippines Natural Science Research Institute (UP-NSRI) DNA

Analysis Laboratory has now the capability to conduct DNA typing

using short tandem repeat (STR) analysis. The analysis is based on

the fact that the DNA of a child/person has two (2) copies, one copy

from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish

parentage. Of course, being a novel scientific technique, the use of

DNA test as evidence is still open to challenge. Eventually, as the

appropriate case comes, courts should not hesitate to rule on the

admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of

situations presented, since to reject said result is to deny progress.

The first real breakthrough of DNA as admissible and

authoritative evidence in Philippine jurisprudence came in 2002 with our en banc decision in People v. Vallejo[24] where the rape and murder

victims DNA samples from the bloodstained clothes of the accused

were admitted in evidence. We reasoned that the purpose of DNA

testing (was) to ascertain whether an association exist(ed) between

the evidence sample and the reference sample. The samples collected

(were) subjected to various chemical processes to establish their

profile.

A year later, in People v. Janson,[25] we acquitted the accused

charged with rape for lack of evidence because doubts persist(ed) in our mind as to who (were) the real malefactors. Yes, a complex

offense (had) been perpetrated but who (were) the perpetrators? How

we wish we had DNA or other scientific evidence to still our doubts!

In 2004, in Tecson, et al. v. COMELEC [26] where the Court en banc was faced with the issue of filiation of then presidential

candidate Fernando Poe Jr., we stated:

In case proof of filiation or paternity would be unlikely to

satisfactorily establish or would be difficult to obtain, DNA testing,

which examines genetic codes obtained from body cells of the

illegitimate child and any physical residue of the long dead parent could be resorted to. A positive match would clear up filiation or

paternity. In Tijing vs. Court of Appeals, this Court has acknowledged

the strong weight of DNA testing

Moreover, in our en banc decision in People v. Yatar,[27] we

affirmed the conviction of the accused for rape with homicide, the

principal evidence for which included DNA test results. We did a

lengthy discussion of DNA, the process of DNA testing and the

reasons for its admissibility in the context of our own Rules of

Evidence:

Deoxyribonucleic Acid, or DNA, is a molecule that encodes the

genetic information in all living organisms. A persons DNA is the

same in each cell and it does not change throughout a persons

lifetime; the DNA in a persons blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus,

urine, skin tissue, and vaginal and rectal cells. Most importantly,

because of polymorphisms in human genetic structure, no two

individuals have the same DNA, with the notable exception of

identical twins.

xxx xxx xxx

In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were

collected, how they were handled, the possibility of contamination of

the samples, the procedure followed in analyzing the samples,

whether proper standards and procedures were followed in

conducting the tests, and the qualification of the analyst who

conducted the tests.

In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly

qualified by the prosecution as an expert witness on DNA print or

identification techniques. Based on Dr. de Ungrias testimony, it was

determined that the gene type and DNA profile of appellant are

identical to that of the extracts subject of examination. The blood sample taken from the appellant showed that he was of the following

gene types: vWA 15/19, TH01 7/8, DHFRP29/10 and CSF1PO

10/11, which are identical with semen taken from the victims vaginal

canal. Verily, a DNA match exists between the semen found in the

victim and the blood sample given by the appellant in open court during the course of the trial.

Admittedly, we are just beginning to integrate these advances in

science and technology in the Philippine criminal justice system, so

we must be cautious as we traverse these relatively uncharted waters. Fortunately, we can benefit from the wealth of persuasive

jurisprudence that has developed in other jurisdictions. Specifically,

the prevailing doctrine in the U.S. has proven instructive.

In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it

was ruled that pertinent evidence based on scientifically valid

principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which

testimony they would allow at trial, including the introduction of new

kinds of scientific techniques. DNA typing is one such novel

procedure.

Under Philippine law, evidence is relevant when it relates directly to a

fact in issue as to induce belief in its existence or non-existence. Applying the Daubert test to the case at bar, the DNA evidence

obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is

reasonably based on scientifically valid principles of human genetics

and molecular biology.

Significantly, we upheld the constitutionality of compulsory DNA

testing and the admissibility of the results thereof as evidence. In that case, DNA samples from semen recovered from a rape victims

vagina were used to positively identify the accused Joel Kawit Yatar

as the rapist. Yatar claimed that the compulsory extraction of his

blood sample for DNA testing, as well as the testing itself, violated his

right against self-incrimination, as embodied in both Sections 12 and

17 of Article III of the Constitution. We addressed this as follows:

The contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion. The right against

self-incrimination is simply against the legal process of extracting

from the lips of the accused an admission of guilt. It does not apply

where the evidence sought to be excluded is not an incrimination but as part of object evidence.

Over the years, we have expressly excluded several kinds of

object evidence taken from the person of the accused from the realm

of self-incrimination. These include photographs, [28] hair,[29] and other bodily substances.[30] We have also declared as constitutional several

procedures performed on the accused such as pregnancy tests for

women accused of adultery,[31] expulsion of morphine from ones

mouth[32] and the tracing of ones foot to determine its identity with bloody footprints.[33] In Jimenez v. Caizares,[34] we even authorized the

examination of a womans genitalia, in an action for annulment filed by her husband, to verify his claim that she was impotent, her orifice

being too small for his penis. Some of these procedures were, to be

sure, rather invasive and involuntary, but all of them were

constitutionally sound. DNA testing and its results, per our ruling in Yatar,[35] are now similarly acceptable.

Nor does petitioners invocation of his right to privacy persuade us. In Ople v. Torres,[36] where we struck down the proposed national

computerized identification system embodied in Administrative Order

No. 308, we said:

In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good... Intrusions into the

right must be accompanied by proper safeguards that enhance public

service and the common good.

Historically, it has mostly been in the areas of legality of searches

and seizures,[37] and the infringement of privacy of

communication[38] where the constitutional right to privacy has been

critically at issue. Petitioners case involves neither and, as already stated, his argument that his right against self-incrimination is in

jeopardy holds no water. His hollow invocation of his constitutional

rights elicits no sympathy here for the simple reason that they are

not in any way being violated. If, in a criminal case, an accused

whose very life is at stake can be compelled to submit to DNA testing,

we see no reason why, in this civil case, petitioner herein who does

not face such dire consequences cannot be ordered to do the same.

DNA paternity testing first came to prominence in the United

States, where it yielded its first official results sometime in 1985. In

the decade that followed, DNA rapidly found widespread general

acceptance.[39] Several cases decided by various State Supreme Courts

reflect the total assimilation of DNA testing into their rules of

procedure and evidence.

The case of Wilson v. Lumb[40] shows that DNA testing is so

commonly accepted that, in some instances, ordering the procedure

has become a ministerial act. The Supreme Court of St. Lawrence

County, New York allowed a party who had already acknowledged

paternity to subsequently challenge his prior acknowledgment. The

Court pointed out that, under the law, specifically Section 516 of the New York Family Court Act, the Family Court examiner had the duty,

upon receipt of the challenge, to order DNA tests: [41]

516-a. Acknowledgment of paternity. (a) An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the

social services law or section four thousand one hundred thirty-five-b

of the public health law shall establish the paternity of and liability

for the support of a child pursuant to this act. Such acknowledgment

must be reduced to writing and filed pursuant to section four

thousand one hundred thirty-five-b of the public health law with the registrar of the district in which the birth occurred and in which the

birth certificate has been filed. No further judicial or administrative

proceedings are required to ratify an unchallenged acknowledgment

of paternity.

(b) An acknowledgment of paternity executed pursuant to section one

hundred eleven-k of the social services law or section four thousand

one hundred thirty-five-b of the public health law may be rescinded

by either signators filing of a petition with the court to vacate the

acknowledgment within the earlier of sixty days of the date of signing the acknowledgment or the date of an administrative or a judicial

proceeding (including a proceeding to establish a support order)

relating to the child in which either signator is a party. For purposes

of this section, the "date of an administrative or a judicial proceeding"

shall be the date by which the respondent is required to answer the

petition. After the expiration of sixty days of the execution of the acknowledgment, either signator may challenge the acknowledgment

of paternity in court only on the basis of fraud, duress, or material

mistake of fact, with the burden of proof on the party challenging the

voluntary acknowledgment. Upon receiving a partys challenge to

an acknowledgment, the court shall order genetic marker tests

or DNA tests for the determination of the childs paternity and shall make a finding of paternity, if appropriate, in accordance

with this article. Neither signators legal obligations, including the

obligation for child support arising from the acknowledgment, may be

suspended during the challenge to the acknowledgment except for

good cause as the court may find. If a party petitions to rescind an

acknowledgment and if the court determines that the alleged father is not the father of the child, or if the court finds that an

acknowledgment is invalid because it was executed on the basis of

fraud, duress, or material mistake of fact, the court shall vacate the

acknowledgment of paternity and shall immediately provide a copy of

the order to the registrar of the district in which the childs birth certificate is filed and also to the putative father registry operated by

the department of social services pursuant to section three hundred

seventy-two-c of the social services law. In addition, if the mother of

the child who is the subject of the acknowledgment is in receipt of

child support services pursuant to title six-A of article three of the

social services law, the court shall immediately provide a copy of the order to the child support enforcement unit of the social services

district that provides the mother with such services.

(c) A determination of paternity made by any other state, whether

established through the parents acknowledgment of paternity or through an administrative or judicial process, must be accorded full

faith and credit, if and only if such acknowledgment meets the

requirements set forth in section 452(a)(7) of the social security act.

(emphasis supplied)

DNA testing also appears elsewhere in the New York Family Court Act:[42]

532. Genetic marker and DNA tests; admissibility of records or

reports of test results; costs of tests.

a) The court shall advise the parties of their right to one or more

genetic marker tests or DNA tests and, on the courts own motion or

the motion of any party, shall order the mother, her child and the

alleged father to submit to one or more genetic marker or DNA tests of a type generally acknowledged as reliable by an accreditation body

designated by the secretary of the federal department of health and

human services and performed by a laboratory approved by such an

accreditation body and by the commissioner of health or by a duly

qualified physician to aid in the determination of whether the alleged

father is or is not the father of the child. No such test shall be

ordered, however, upon a written finding by the court that it is

not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child

born to a married woman. The record or report of the results of any

such genetic marker or DNA test ordered pursuant to this section or

pursuant to section one hundred eleven-k of the social services law

shall be received in evidence by the court pursuant to subdivision (e)

of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been made thereto and that

if such timely objections are not made, they shall be deemed waived

and shall not be heard by the court. If the record or report of the

results of any such genetic marker or DNA test or tests indicate

at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable

presumption of paternity, and shall establish, if unrebutted, the

paternity of and liability for the support of a child pursuant to

this article and article four of this act.

(b) Whenever the court directs a genetic marker or DNA test pursuant

to this section, a report made as provided in subdivision (a) of this

section may be received in evidence pursuant to rule forty-five

hundred eighteen of the civil practice law and rules if offered by any

party.

(c) The cost of any test ordered pursuant to subdivision (a) of this

section shall be, in the first instance, paid by the moving party. If the

moving party is financially unable to pay such cost, the court may

direct any qualified public health officer to conduct such test, if practicable; otherwise, the court may direct payment from the funds

of the appropriate local social services district. In its order of

disposition, however, the court may direct that the cost of any such

test be apportioned between the parties according to their respective

abilities to pay or be assessed against the party who does not prevail

on the issue of paternity, unless such party is financially unable to pay. (emphasis supplied)

In R.E. v. C.E.W.,[43] a decision of the Mississippi Supreme Court,

DNA tests were used to prove that H.W., previously thought to be an

offspring of the marriage between A.C.W. and C.E.W., was actually the child of R.E. with whom C.E.W. had, at the time of conception,

maintained an adulterous relationship.

In Erie County Department of Social Services on behalf of Tiffany M.H. v. Greg G.,[44] the 4th Department of the New York Supreme

Courts Appellate Division allowed G.G., who had been adjudicated as

T.M.H.s father by default, to have the said judgment vacated, even

after six years, once he had shown through a genetic marker test that he was not the childs father. In this case, G.G. only requested the

tests after the Department of Social Services, six years after G.G. had

been adjudicated as T.M.H.s father, sought an increase in his

support obligation to her.

In Greco v. Coleman,[45] the Michigan Supreme Court while ruling

on the constitutionality of a provision of law allowing non-modifiable support agreements pointed out that it was because of the difficulty

of determining paternity before the advent of DNA testing that such

support agreements were necessary:

As a result of DNA testing, the accuracy with which paternity can be proven has increased significantly since the parties in this lawsuit

entered into their support agreement(current testing methods can

determine the probability of paternity to 99.999999% accuracy).

However, at the time the parties before us entered into the disputed

agreement, proving paternity was a very significant obstacle to an illegitimate child's access to child support. The first reported results

of modern DNA paternity testing did not occur until 1985. ("In fact,

since its first reported results in 1985, DNAmatching has progressed

to 'general acceptance in less than a decade'"). Of course, while prior

blood-testing methods could exclude some males from being the

possible father of a child, those methods could not affirmatively pinpoint a particular male as being the father. Thus, when the

settlement agreement between the present parties was entered in

1980, establishing paternity was a far more difficult ordeal than at

present. Contested paternity actions at that time were often no more

than credibility contests. Consequently, in every contested paternity action, obtaining child support depended not merely on whether the

putative father was, in fact, the child's biological father, but rather on

whether the mother could prove to a court of law that she was only

sexually involved with one man--the putative father. Allowing parties

the option of entering into private agreements in lieu of proving

paternity eliminated the risk that the mother would be unable meet her burden of proof.

It is worth noting that amendments to Michigans Paternity law

have included the use of DNA testing:[46]

722.716 Pretrial proceedings; blood or tissue typing determinations as to mother, child, and alleged father; court order; refusal to submit

to typing or identification profiling; qualifications of person

conducting typing or identification profiling; compensation of expert;

result of typing or identification profiling; filing summary report;

objection; admissibility; presumption; burden of proof; summary disposition.

Sec. 6.

(1) In a proceeding under this act before trial, the court, upon

application made by or on behalf of either party, or on its own

motion, shall order that the mother, child, and alleged father

submit to blood or tissue typing determinations, which may

include, but are not limited to, determinations of red cell

antigens, red cell isoenzymes, human leukocyte antigens, serum proteins, or DNA identification profiling, to determine whether

the alleged father is likely to be, or is not, the father of the

child. If the court orders a blood or tissue typing

or DNAidentification profiling to be conducted and a party

refuses to submit to the typing or DNA identification profiling, in addition to any other remedies available, the court may do

either of the following:

(a) Enter a default judgment at the request of the appropriate

party.

(b) If a trial is held, allow the disclosure of the fact of the refusal

unless good cause is shown for not disclosing the fact of refusal.

(2) A blood or tissue typing or DNA identification profiling shall be

conducted by a person accredited for paternity determinations by a

nationally recognized scientific organization, including, but not

limited to, the American association of blood banks.

xxx xxx xxx

(5) If the probability of paternity determined by the qualified

person described in subsection (2) conducting the blood or tissue typing or DNA identification profiling is 99% or higher, and

the DNA identification profile and summary report are

admissible as provided in subsection (4), paternity is presumed.

If the results of the analysis of genetic testing material from 2 or

more persons indicate a probability of paternity greater than

99%, the contracting laboratory shall conduct additional genetic paternity testing until all but 1 of the putative fathers is

eliminated, unless the dispute involves 2 or more putative

fathers who have identical DNA.

(6) Upon the establishment of the presumption of paternity as

provided in subsection (5), either party may move for summary

disposition under the court rules. this section does not abrogate the

right of either party to child support from the date of birth of the

child if applicable under section 7. (emphasis supplied)

In Rafferty v. Perkins,[47] the Supreme Court of Mississippi ruled

that DNA test results showing paternity were sufficient to overthrow

the presumption of legitimacy of a child born during the course of a

marriage:

The presumption of legitimacy having been rebutted by the results of

the blood test eliminating Perkins as Justin's father, even considering

the evidence in the light most favorable to Perkins, we find that no

reasonable jury could find that Easter is not Justin's father based upon the 99.94% probability of paternity concluded by the DNA

testing.

In S.J.F. and J.C.F. v. R.C.W.,[48] the North Dakota Supreme Court

upheld an order for genetic testing given by the Court of Appeals, even after trial on the merits had concluded without such order being

given. Significantly, when J.C.F., the mother, first filed the case for

paternity and support with the District Court, neither party

requested genetic testing. It was only upon appeal from dismissal of

the case that the appellate court remanded the case and ordered the testing, which the North Dakota Supreme Court upheld.

The case of Kohl v. Amundson,[49] decided by the Supreme Court of

South Dakota, demonstrated that even default judgments of paternity

could be vacated after the adjudicated father had, through DNA

testing, established non-paternity. In this case, Kohl, having

excluded himself as the father of Amundsons child through DNA testing, was able to have the default judgment against him vacated.

He then obtained a ruling ordering Amundson to reimburse him for

the amounts withheld from his wages for child support. The Court

said (w)hile Amundson may have a remedy against the father of the

child, she submit(ted) no authority that require(d) Kohl to support

her child. Contrary to Amundson's position, the fact that a default judgment was entered, but subsequently vacated, (did) not foreclose

Kohl from obtaining a money judgment for the amount withheld from

his wages.

In M.A.S. v. Mississippi Dept. of Human Services,[50] another case

decided by the Supreme Court of Mississippi, it was held that even if

paternity was established through an earlier agreed order of filiation,

child support and visitation orders could still be vacated once DNA testing established someone other than the named individual to be

the biological father. The Mississippi High Court reiterated this doctrine in Williams v. Williams.[51]

The foregoing considered, we find no grave abuse of discretion on

the part of the public respondent for upholding the orders of the trial

court which both denied the petitioners motion to dismiss and ordered him to submit himself for DNA testing. Under Rule 65 of the

1997 Rules of Civil Procedure, the remedy of certiorari is only

available when any tribunal, board or officer has acted without or in

excess of its or his jurisdiction, or with grave abuse of discretion

amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law.[52] In Land Bank of the Philippines v. the Court of Appeals [53] where

we dismissed a special civil action for certiorari under Rule 65, we

discussed at length the nature of such a petition and just what was

meant by grave abuse of discretion:

Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in

other words, where the power is exercised in an arbitrary manner

by reason of passion, prejudice, or personal hostility, and it must

be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act

at all in contemplation of law.

The special civil action for certiorari is a remedy designed for the

correction of errors of jurisdiction and not errors of judgment. The raison detre for the rule is when a court exercises its jurisdiction,

an error committed while so engaged does not deprive it of the

jurisdiction being exercised when the error is committed. If it did,

every error committed by a court would deprive it of its jurisdiction

and every erroneous judgment would be a void judgment. In such a

scenario, the administration of justice would not survive. Hence, where the issue or question involved affects the wisdom or legal

soundness of the decisionnot the jurisdiction of the court to render

said decisionthe same is beyond the province of a special civil action

for certiorari.

The proper recourse of the aggrieved party from a decision of the CA

is a petition for review on certiorari under Rule 45 of the Revised

Rules of Court. On the other hand, if the error subject of the recourse

is one of jurisdiction, or the act complained of was perpetrated by a

quasi-judicial officer or agency with grave abuse of discretion amounting to lack or excess of jurisdiction, the proper remedy

available to the aggrieved party is a petition for certiorari under Rule

65 of the said Rules. (emphasis supplied)

In the instant case, the petitioner has in no way shown any arbitrariness, passion, prejudice or personal hostility that would

amount to grave abuse of discretion on the part of the Court of

Appeals. The respondent court acted entirely within its jurisdiction in

promulgating its decision and resolution, and any error made would

have only been an error in judgment. As we have discussed, however, the decision of the respondent court, being firmly anchored in law

and jurisprudence, was correct.

Epilogue

For too long, illegitimate children have been marginalized by

fathers who choose to deny their existence. The growing

sophistication of DNA testing technology finally provides a much needed equalizer for such ostracized and abandoned progeny. We

have long believed in the merits of DNA testing and have repeatedly

expressed as much in the past. This case comes at a perfect time

when DNA testing has finally evolved into a dependable and

authoritative form of evidence gathering. We therefore take this

opportunity to forcefully reiterate our stand that DNA testing is a valid means of determining paternity.

WHEREFORE, in view of the foregoing, the petition is hereby

DENIED. The Court of Appeals decision dated January 28, 2004 in CA-G.R. SP No. 80961 is hereby AFFIRMED in toto.

Costs against petitioner.

SO ORDERED.

[G.R. No. 148220. June 15, 2005]

ROSENDO HERRERA, petitioner, vs. ROSENDO ALBA, minor,

represented by his mother ARMI A. ALBA, and HON. NIMFA CUESTA-VILCHES, Presiding Judge, Branch 48,

Regional Trial Court, Manila,respondents.

D E C I S I O N

CARPIO, J.:

The Case

This is a petition for review[1] to set aside the Decision[2] dated 29

November 2000 of the Court of Appeals (appellate court) in CA-G.R.

SP No. 59766. The appellate court affirmed two Orders [3] issued by

Branch 48 of the Regional Trial Court of Manila (trial court) in SP No. 98-88759. The Order dated 3 February 2000 directed Rosendo

Herrera (petitioner) to submit to deoxyribonucleic acid (DNA)

paternity testing, while the Order dated 8 June 2000 denied

petitioners motion for reconsideration.

The Facts

On 14 May 1998, then thirteen-year-old Rosendo Alba (respondent), represented by his mother Armi Alba, filed before the

trial court a petition for compulsory recognition, support and

damages against petitioner. On 7 August 1998, petitioner filed his

answer with counterclaim where he denied that he is the biological

father of respondent. Petitioner also denied physical contact with respondents mother.

Respondent filed a motion to direct the taking of DNA paternity

testing to abbreviate the proceedings. To support the motion,

respondent presented the testimony of Saturnina C. Halos, Ph.D.

When she testified, Dr. Halos was an Associate Professor at De La

Salle University where she taught Cell Biology. She was also head of the University of the Philippines Natural Sciences Research Institute

(UP-NSRI), a DNA analysis laboratory. She was a former professor at

the University of the Philippines in Diliman, Quezon City, where she

developed the Molecular Biology Program and taught Molecular

Biology. In her testimony, Dr. Halos described the process for DNA

paternity testing and asserted that the test had an accuracy rate of 99.9999% in establishing paternity.[4]

Petitioner opposed DNA paternity testing and contended that it

has not gained acceptability. Petitioner further argued that DNA

paternity testing violates his right against self-incrimination.

The Ruling of the Trial Court

In an Order dated 3 February 2000, the trial court granted respondents motion to conduct DNA paternity testing on petitioner,

respondent and Armi Alba. Thus:

In view of the foregoing, the motion of the petitioner is GRANTED and the relevant individuals, namely: the

petitioner, the minor child, and respondent are directed to undergo DNA paternity testing in a laboratory of their common choice within a period of thirty (30) days from receipt of the Order, and to submit the results

thereof within a period of ninety (90) days from completion. The parties are further reminded of the hearing

set on 24 February 2000 for the reception of other evidence in support of the petition.

IT IS SO ORDERED.[5] (Emphasis in the original)

Petitioner filed a motion for reconsideration of the 3 February

2000 Order. He asserted that under the present circumstances, the DNA test [he] is compelled to take would be inconclusive, irrelevant

and the coercive process to obtain the requisite specimen,

unconstitutional.

In an Order dated 8 June 2000, the trial court denied petitioners

motion for reconsideration.[6]

On 18 July 2000, petitioner filed before the appellate court a petition for certiorari under Rule 65 of the 1997 Rules of Civil

Procedure. He asserted that the trial court rendered the Orders dated

3 February 2000 and 8 June 2000 in excess of, or without

jurisdiction and/or with grave abuse of discretion amounting to lack

or excess of jurisdiction. Petitioner further contended that there is no

appeal nor any [other] plain, adequate and speedy remedy in the ordinary course of law. Petitioner maintained his previous objections

to the taking of DNA paternity testing. He submitted the following

grounds to support his objection:

1. Public respondent misread and misapplied the ruling in Lim vs. Court of Appeals (270 SCRA 2).

2. Public respondent ruled to accept DNA test without considering the limitations on, and conditions

precedent for the admissibility of DNA testing and ignoring the serious constraints affecting

the reliability of the test as admitted by private respondents expert witness.

3. Subject Orders lack legal and factual support, with public respondent relying on scientific findings

and conclusions unfit for judicial notice and unsupported by experts in the field and scientific treatises.

4. Under the present circumstances the DNA testing petitioner [is] compelled to take will be

inconclusive, irrelevant and the coercive process to obtain the requisite specimen from the petitioner, unconstitutional.[7]

The Ruling of the Court of Appeals

On 29 November 2000, the appellate court issued a decision

denying the petition and affirming the questioned Orders of the trial

court. The appellate court stated that petitioner merely desires to correct the trial courts evaluation of evidence. Thus, appeal is an

available remedy for an error of judgment that the court may commit

in the exercise of its jurisdiction. The appellate court also stated that

the proposed DNA paternity testing does not violate his right against

self-incrimination because the right applies only to testimonial compulsion. Finally, the appellate court pointed out that petitioner

can still refute a possible adverse result of the DNA paternity testing.

The dispositive portion of the appellate courts decision reads:

WHEREFORE, foregoing premises considered, the Petition is hereby DENIED DUE COURSE, and ordered

dismissed, and the challenged orders of the Trial Court AFFIRMED, with costs to Petitioner.

SO ORDERED.[8]

Petitioner moved for reconsideration, which the appellate court denied in its Resolution dated 23 May 2001.[9]

Issues

Petitioner raises the issue of whether a DNA test is a valid

probative tool in this jurisdiction to determine filiation. Petitioner

asks for the conditions under which DNA technology may be

integrated into our judicial system and the prerequisites for the admissibility of DNA test results in a paternity suit. [10]

Petitioner further submits that the appellate court gravely

abused its discretion when it authorized the trial court to embark in

[sic] a new procedure xxx to determine filiation despite the absence of

legislation to ensure its reliability and integrity, want of official recognition as made clear in Lim vs. Court of Appeals and the

presence of technical and legal constraints in respect of [sic] its

implementation.[11] Petitioner maintains that the proposed DNA

paternity testing violates his right against self-incrimination.[12]

The Ruling of the Court

The petition has no merit.

Before discussing the issues on DNA paternity testing, we deem

it appropriate to give an overview of a paternity suit and apply it to the facts of this case. We shall consider the requirements of the

Family Code and of the Rules of Evidence to establish paternity and

filiation.

An Overview of the Paternity and Filiation Suit

Filiation proceedings are usually filed not just to adjudicate

paternity but also to secure a legal right associated with paternity, such as citizenship,[13] support (as in the present case), or inheritance.

The burden of proving paternity is on the person who alleges that the

putative father is the biological father of the child. There are four

significant procedural aspects of a traditional paternity action which parties have to face: a prima facie case, affirmative defenses,

presumption of legitimacy, and physical resemblance between the putative father and child.[14]

A prima facie case exists if a woman declares that she had sexual

relations with the putative father. In our jurisdiction, corroborative

proof is required to carry the burden forward and shift it to the

putative father.[15]

There are two affirmative defenses available to the putative father. The putative father may show incapability of sexual relations

with the mother, because of either physical absence or

impotency.[16] The putative father may also show that the mother had

sexual relations with other men at the time of conception.

A child born to a husband and wife during a valid marriage is presumed legitimate.[17] The childs legitimacy may be impugned only

under the strict standards provided by law. [18]

Finally, physical resemblance between the putative father and

child may be offered as part of evidence of paternity. Resemblance is

a trial technique unique to a paternity proceeding. However, although

likeness is a function of heredity, there is no mathematical formula that could quantify how much a child must or must not look like his

biological father.[19] This kind of evidence appeals to the emotions of

the trier of fact.

In the present case, the trial court encountered three of the four aspects. Armi Alba, respondents mother, put forward a prima facie case when she asserted that petitioner is respondents biological

father. Aware that her assertion is not enough to convince the trial

court, she offered corroborative proof in the form of letters and

pictures. Petitioner, on the other hand, denied Armi Albas assertion. He denied ever having sexual relations with Armi Alba and stated

that respondent is Armi Albas child with another man. Armi Alba

countered petitioners denial by submitting pictures of respondent

and petitioner side by side, to show how much they resemble each

other.

Paternity and filiation disputes can easily become credibility contests. We now look to the law, rules, and governing jurisprudence

to help us determine what evidence of incriminating acts on paternity

and filiation are allowed in this jurisdiction.

Laws, Rules, and Jurisprudence

Establishing Filiation

The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same

evidence as legitimate children.

xxx

ART. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide:

SEC. 39. Act or declaration about pedigree.The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in

evidence where it occurred before the controversy, and the relationship between the two persons is shown

by evidence other than such act or declaration. The word pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the

relatives. It embraces also facts of family history intimately connected with pedigree.

SEC. 40. Family reputation or tradition regarding pedigree.The reputation or tradition existing in a family

previous to the controversy, in respect to the pedigree of any one of its members, may be received in

evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the

like, may be received as evidence of pedigree.

This Courts rulings further specify what incriminating acts are

acceptable as evidence to establish filiation. In Pe Lim v. CA,[20] a case petitioner often cites, we stated that the issue of paternity still has to

be resolved by such conventional evidence as the

relevantincriminating verbal and written acts by the putative father.

Under Article 278 of the New Civil Code, voluntary recognition by a

parent shall be made in the record of birth, a will, a statement before

a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the putative father himself and the

writing must be the writing of the putative father.[21] A notarial

agreement to support a child whose filiation is admitted by the

putative father was considered acceptable evidence. [22] Letters to the

mother vowing to be a good father to the child and pictures of the

putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation. [23] However, a student

permanent record, a written consent to a fathers operation, or a

marriage contract where the putative father gave consent, cannot be

taken as authentic writing.[24] Standing alone, neither a certificate of

baptism[25] nor family pictures[26] are sufficient to establish filiation.

So far, the laws, rules, and jurisprudence seemingly limit

evidence of paternity and filiation to incriminating acts alone.

However, advances in science show that sources of evidence of

paternity and filiation need not be limited to incriminating acts. There

is now almost universal scientific agreement that blood grouping

tests are conclusive on non-paternity, although inconclusive on paternity.[27]

In Co Tao v. Court of Appeals,[28] the result of the blood grouping

test showed that the putative father was a possible father of the

child. Paternity was imputed to the putative father after the

possibility of paternity was proven on presentation during trial of facts and circumstances other than the results of the blood grouping

test.

In Jao v. Court of Appeals,[29] the child, the mother, and the

putative father agreed to submit themselves to a blood grouping test.

The National Bureau of Investigation (NBI) conducted the test, which

indicated that the child could not have been the possible offspring of the mother and the putative father. We held that the result of the

blood grouping test was conclusive on the non-paternity of the

putative father.

The present case asks us to go one step further. We are now

asked whether DNA analysis may be admitted as evidence to prove paternity.

DNA Analysis as Evidence

DNA is the fundamental building block of a persons entire

genetic make-up. DNA is found in all human cells and is the same in

every cell of the same person. Genetic identity is unique. Hence, a persons DNA profile can determine his identity. [30]

DNA analysis is a procedure in which DNA extracted from a

biological sample obtained from an individual is examined. The DNA

is processed to generate a pattern, or a DNA profile, for the individual

from whom the sample is taken. This DNA profile is unique for each

person, except for identical twins.[31] We quote relevant portions of the trial courts 3 February 2000 Order with approval:

Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to an

individual (except in the rare occurrence of identical twins that share a single, fertilized egg), and DNA is

unchanging throughout life. Being a component of every cell in the human body, the DNA of an individuals blood is the very DNA in his or her skin cells, hair follicles, muscles, semen, samples from buccal swabs,

saliva, or other body parts.

The chemical structure of DNA has four bases. They are known as A (adenine), G (guanine), C (cystosine)

and T (thymine). The order in which the four bases appear in an individuals DNA determines his or her

physical makeup. And since DNA is a double-stranded molecule, it is composed of two specific paired bases, A-T or T-A and G-C or C-G. These are called genes.

Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives a person his or her genetic code. Somewhere in the DNA framework, nonetheless, are sections that differ.

They are known as polymorphic loci, which are the areas analyzed in DNA typing (profiling, tests,

fingerprinting, or analysis/DNA fingerprinting/genetic tests or fingerprinting). In other words, DNA typing

simply means determining the polymorphic loci.

How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may proceed

to analyze it in several ways. There are five (5) techniques to conduct DNA typing. They are: the RFLP (restriction fragment length polymorphism); reverse dot blot or HLA DQ a/Pm loci which was used in 287

cases that were admitted as evidence by 37 courts in the U.S. as of November 1994; mtDNA process; VNTR

(variable number tandem repeats); and the most recent which is known as the PCR-([polymerase] chain reaction) based STR (short tandem repeats) method which, as of 1996, was availed of by most forensic

laboratories in the world. PCR is the process of replicating or copying DNA in an evidence sample a million

times through repeated cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on the other hand, takes measurements in 13 separate places and can match two (2) samples with a reported

theoretical error rate of less than one (1) in a trillion.

Just like in fingerprint analysis, in DNA typing, matches are determined. To illustrate, when DNA or

fingerprint tests are done to identify a suspect in a criminal case, the evidence collected from the crime

scene is compared with the known print. If a substantial amount of the identifying features are the same,

the DNA or fingerprint is deemed to be a match. But then, even if only one feature of the DNA or fingerprint is different, it is deemed not to have come from the suspect.

As earlier stated, certain regions of human DNA show variations between people. In each of these regions, a person possesses two genetic types called allele, one inherited from each parent. In [a] paternity test, the

forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile.

Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the childs DNA was inherited from the mother. The other half must have been inherited from the biological father. The

alleged fathers profile is then examined to ascertain whether he has the DNA types in his profile, which

match the paternal types in the child. If the mans DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.[32] (Emphasis in the

original)

Although the term DNA testing was mentioned in the 1995 case of People v. Teehankee, Jr.,[33] it was only in the 2001 case of Tijing

v. Court of Appeals[34] that more than a passing mention was given to DNA analysis. In Tijing, we issued a writ of habeas corpus against

respondent who abducted petitioners youngest son. Testimonial and

documentary evidence and physical resemblance were used to

establish parentage. However, we observed that:

Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and

parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA

Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. xxx For it was said, that courts should apply the results of science when completely obtained in aid of

situations presented, since to reject said result is to deny progress. Though it is not necessary in this case

to resort to DNA testing, in [the] future it would be useful to all concerned in the prompt resolution of parentage and identity issues.

Admissibility of DNA Analysis as Evidence

The 2002 case of People v. Vallejo[35] discussed DNA analysis as

evidence. This may be considered a 180 degree turn from the Courts wary attitude towards DNA testing in the 1997 Pe Lim case,[36] where

we stated that DNA, being a relatively new science, xxx has not yet

been accorded official recognition by our courts. In Vallejo, the DNA

profile from the vaginal swabs taken from the rape victim matched

the accuseds DNA profile. We affirmed the accuseds conviction of

rape with homicide and sentenced him to death. We declared:

In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the

following data: how the samples were collected, how they were handled, the possibility of contamination of

the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.[37]

Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002, there was no longer any question on the validity

of the use of DNA analysis as evidence. The Court moved from the

issue of according official recognition to DNA analysis as evidence to the issue of observance of procedures in conducting DNA analysis.

In 2004, there were two other cases that had a significant impact on jurisprudence on DNA testing: People v. Yatar[38] and In re: The

Writ of Habeas Corpus for Reynaldo de Villa.[39] In Yatar, a match

existed between the DNA profile of the semen found in the victim and

the DNA profile of the blood sample given by appellant in open court. The Court, following Vallejos footsteps, affirmed the conviction of

appellant because the physical evidence, corroborated by

circumstantial evidence, showed appellant guilty of rape with

homicide. In De Villa, the convict-petitioner presented DNA test

results to prove that he is not the father of the child conceived at the time of commission of the rape. The Court ruled that a difference

between the DNA profile of the convict-petitioner and the DNA profile

of the victims child does not preclude the convict-petitioners

commission of rape.

In the present case, the various pleadings filed by petitioner and

respondent refer to two United States cases to support their respective positions on the admissibility of DNA analysis as evidence: Frye v. U.S.[40] and Daubert v. Merrell Dow

Pharmaceuticals.[41]In Frye v. U.S., the trial court convicted Frye of

murder. Frye appealed his conviction to the Supreme Court of the

District of Columbia. During trial, Fryes counsel offered an expert witness to testify on the result of a systolic blood pressure deception

test[42] made on defendant. The state Supreme Court affirmed Fryes

conviction and ruled that the systolic blood pressure deception test

has not yet gained such standing and scientific recognition among

physiological and psychological authorities as would justify the

courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made. The Frye standard of

general acceptance states as follows:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable

stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well

recognized scientific principle or discovery, the thing from which the deduction is made must be

sufficiently established to have gained general acceptance in the particular field in which it belongs.

In 1989, State v. Schwartz[43] modified the Frye standard.

Schwartz was charged with stabbing and murder. Bloodstained

articles and blood samples of the accused and the victim were

submitted for DNA testing to a government facility and a private

facility. The prosecution introduced the private testing facilitys

results over Schwartzs objection. One of the issues brought before the state Supreme Court included the admissibility of DNA test

results in a criminal proceeding. The state Supreme Court concluded

that:

While we agree with the trial court that forensic DNA typing has gained general acceptance in the scientific

community, we hold that admissibility of specific test results in a particular case hinges on the laboratorys compliance with appropriate standards and controls, and the availability of their testing data and results.[44]

In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.[45] further modified the Frye-Schwartz standard. Daubert was a

product liability case where both the trial and appellate courts denied

the admissibility of an experts testimony because it failed to meet theFrye standard of general acceptance. The United States Supreme

Court ruled that in federal trials, the Federal Rules of Evidence have superseded the Frye standard. Rule 401 defines relevant evidence,

while Rule 402 provides the foundation for admissibility of evidence.

Thus:

Rule 401. Relevant evidence is defined as that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be

without the evidence.

Rule 402. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United

States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to

statutory authority. Evidence which is not relevant is not admissible.

Rule 702 of the Federal Rules of Evidence governing expert testimony provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Daubert cautions that departure from the Frye standard of

general acceptance does not mean that the Federal Rules do not

place limits on the admissibility of scientific evidence. Rather, the

judge must ensure that the testimonys reasoning or method is scientifically valid and is relevant to the issue. Admissibility would

depend on factors such as (1) whether the theory or technique can be

or has been tested; (2) whether the theory or technique has been

subjected to peer review and publication; (3) the known or potential

rate of error; (4) the existence and maintenance of standards controlling the techniques operation; and (5) whether the theory or

technique is generally accepted in the scientific community.

Another product liability case, Kumho Tires Co. v.

Carmichael,[46] further modified the Daubert standard. This led to the

amendment of Rule 702 in 2000 and which now reads as follows:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon

sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

We now determine the applicability in this jurisdiction of these American cases. Obviously, neither the Frye-Schwartz standard nor

the Daubert-Kumho standard is controlling in the Philippines.[47] At

best, American jurisprudence merely has a persuasive effect on our decisions. Here, evidence is admissible when it is relevant to the fact

in issue and is not otherwise excluded by statute or the Rules of

Court.[48] Evidence is relevant when it has such a relation to the fact in

issue as to induce belief in its existence or non-existence.[49] Section 49

of Rule 130, which governs the admissibility of expert testimony,

provides as follows:

The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is

shown to possess may be received in evidence.

This Rule does not pose any legal obstacle to the admissibility of DNA

analysis as evidence. Indeed, even evidence on collateral matters is allowed when it tends in any reasonable degree to establish the

probability or improbability of the fact in issue.[50]

Indeed, it would have been convenient to merely refer petitioner to our decisions in Tijing, Vallejo and Yatar to illustrate that DNA

analysis is admissible as evidence. In our jurisdiction, the restrictive

tests for admissibility established by Frye-Schwartz andDaubert-Kumho go into the weight of the evidence.

Probative Value of

DNA Analysis as Evidence

Despite our relatively liberal rules on admissibility, trial courts

should be cautious in giving credence to DNA analysis as evidence.

We reiterate our statement in Vallejo:

In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the

following data: how the samples were collected, how they were handled, the possibility of contamination of

the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures

were followed in conducting the tests, and the qualification of the analyst who conducted the tests.[51]

We also repeat the trial courts explanation of DNA analysis used in paternity cases:

In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to

produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the childs DNA was inherited from the mother. The other half must have been inherited from

the biological father. The alleged fathers profile is then examined to ascertain whether he has the DNA types

in his profile, which match the paternal types in the child. If the mans DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.[52]

It is not enough to state that the childs DNA profile matches that of the putative father. A complete match between the DNA profile of the

child and the DNA profile of the putative father does not necessarily establish paternity. For this reason, following the highest standard

adopted in an American jurisdiction,[53] trial courts should require at

least 99.9% as a minimum value of the Probability of Paternity (W)

prior to a paternity inclusion. W is a numerical estimate for the

likelihood of paternity of a putative father compared to the probability

of a random match of two unrelated individuals. An appropriate reference population database, such as the Philippine population

database, is required to compute for W. Due to the probabilistic

nature of paternity inclusions, W will never equal to 100%. However,

the accuracy of W estimates is higher when the putative father,

mother and child are subjected to DNA analysis compared to those conducted between the putative father and child alone. [54]

DNA analysis that excludes the putative father from paternity

should be conclusive proof of non-paternity. If the value of W is less

than 99.9%, the results of the DNA analysis should be considered as

corroborative evidence. If the value of W is 99.9% or higher, then

there is refutable presumption of paternity.[55] This refutable presumption of paternity should be subjected to

the Vallejo standards.

Right Against

Self-Incrimination

Section 17, Article 3 of the 1987 Constitution provides that no person shall be compelled to be a witness against himself. Petitioner

asserts that obtaining samples from him for DNA testing violates his

right against self-incrimination. Petitioner ignores our earlier

pronouncements that the privilege is applicable only to testimonial

evidence. Again, we quote relevant portions of the trial courts 3 February 2000 Order with approval:

Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity case,

contrary to the belief of respondent in this action, will not violate the right against self-incrimination. This

privilege applies only to evidence that is communicative in essence taken under duress (People vs. Olvis, 154 SCRA 513, 1987). The Supreme Court has ruled that the right against self-incrimination is just a

prohibition on the use of physical or moral compulsion to extort communication (testimonial evidence) from

a defendant, not an exclusion of evidence taken from his body when it may be material. As such, a defendant can be required to submit to a test to extract virus from his body (as cited in People vs. Olvis,

Supra); the substance emitting from the body of the accused was received as evidence for acts of

lasciviousness (US vs. Tan Teng, 23 Phil. 145); morphine forced out of the mouth was received as proof (US vs. Ong Siu Hong, 36 Phil. 735); an order by the judge for the witness to put on pair of pants for size was

allowed (People vs. Otadora, 86 Phil. 244); and the court can compel a woman accused of adultery to submit

for pregnancy test (Villaflor vs. Summers, 41 Phil. 62), since the gist of the privilege is the restriction

on testimonial compulsion.[56]

The policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of

illegitimate children, is without prejudice to the right of the putative

parent to claim his or her own defenses. [57] Where the evidence to aid

this investigation is obtainable through the facilities of modern science and technology, such evidence should be considered subject

to the limits established by the law, rules, and jurisprudence.

WHEREFORE, we DISMISS the petition. We AFFIRM the

Decision of the Court of Appeals dated 29 November 2000 in CA-G.R.

SP No. 59766. We also AFFIRM the Orders dated 3 February 2000 and 8 June 2000 issued by Branch 48 of the Regional Trial Court of

Manila in Civil Case No. SP-98-88759.

SO ORDERED.

JENIE SAN JUAN DELA

CRUZ and minor

CHRISTIANDELA CRUZ AQUINO, represented by

JENIE SANJUAN DELA

CRUZ, Petitioners,

versus

RONALD PAUL S. GRACIA, in

his capacity as City Civil

Registrar of Antipolo City, Respondent.

G.R. No. 177728

Present: QUISUMBING, J., Chairperson,

CARPIO MORALES,

CHICO-NAZARIO,

LEONARDO-DE CASTRO, and

PERALTA,* JJ.

Promulgated:

July 31, 2009

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- - x

D E C I S I O N

CARPIO MORALES, J.:

For several months in 2005, then 21-year old petitioner Jenie

San Juan Dela Cruz (Jenie) and then 19-year old Christian

Dominique Sto. Tomas Aquino (Dominique) lived together as husband

and wife without the benefit of marriage. They resided in the house of

Dominiques parents Domingo B. Aquino and Raquel Sto. Tomas

Aquino at Pulang-lupa, Dulumbayan, Teresa, Rizal.

On September 4, 2005, Dominique died.[1] After almost two

months, or on November 2, 2005, Jenie, who continued to live with

Dominiques parents, gave birth to her herein co-petitioner minor

child Christian Dela Cruz Aquino at the Antipolo Doctors Hospital,

Antipolo City.

Jenie applied for registration of the childs birth, using

Dominiques surname Aquino, with the Office of the City Civil

Registrar, Antipolo City, in support of which she submitted the

childs Certificate of Live Birth,[2] Affidavit to Use the Surname of the

Father[3] (AUSF) which she had executed and signed, and Affidavit of

Acknowledgment executed by Dominiques father Domingo Butch

Aquino.[4] Both affidavits attested, inter alia, that during the lifetime

of Dominique, he had continuously acknowledged his yet unborn

child, and that his paternity had never been questioned. Jenie

attached to the AUSF a document entitled AUTOBIOGRAPHY which

Dominique, during his lifetime, wrote in his own handwriting, the

pertinent portions of which read:

AQUINO, CHRISTIAN DOMINIQUE S.T.

AUTOBIOGRAPHY

IM CHRISTIAN DOMINIQUE STO. TOMAS

AQUINO, 19 YEARS OF AGE TURNING 20 THIS

COMING OCTOBER 31, 2005.[5] I RESIDE AT

PULANG-LUPA STREET BRGY. DULUMBAYAN, TERESA, RIZAL. I AM THE YOUNGEST IN OUR

FAMILY. I HAVE ONE BROTHER NAMED JOSEPH

BUTCH STO. TOMAS AQUINO. MY FATHERS NAME IS

DOMINGO BUTCH AQUINO AND MY MOTHERS

NAME IS RAQUEL STO. TOMAS AQUINO. x x x. x x x x

AS OF NOW I HAVE MY WIFE NAMED JENIE

DELA CRUZ. WE MET EACH OTHER IN OUR

HOMETOWN, TEREZA RIZAL. AT FIRST WE BECAME

GOOD FRIENDS, THEN WE FELL IN LOVE WITH EACH OTHER, THEN WE BECAME GOOD

COUPLES. AND AS OF NOW SHE IS PREGNANT AND

FOR THAT WE LIVE TOGETHER IN OUR HOUSE

NOW. THATS ALL.[6] (Emphasis and underscoring

supplied)

By letter dated November 11, 2005,[7] the City Civil Registrar

of Antipolo City, Ronald Paul S. Gracia (respondent), denied Jenies

application for registration of the childs name in this wise:

7. Rule 7 of Administrative Order No. 1, Series of

2004 (Implementing Rules and Regulations of Republic Act No. 9255 [An Act Allowing Illegitimate

Children to Use the Surname of their Father,

Amending for the Purpose, Article 176 of Executive

Order No. 209, otherwise Known as the Family

Code of the Philippines]) provides that:

Rule 7. Requirements for the Child to Use the

Surname of the Father

7.1 For Births Not Yet Registered

7.1.1 The illegitimate child shall use the

surname of the father if a public

document is executed by the father,

either at the back of the Certificate

of Live Birth or in a separate

document. 7.1.2 If admission of paternity is made through

a private handwritten instrument,

the child shall use the surname of

the father, provided the registration

is supported by the following documents:

a. AUSF[8]

b. Consent of the child, if 18 years old

and over at the time of the filing

of the document. c. Any two of the following

documents showing clearly the

paternity between the father and

the child:

1. Employment records

2. SSS/GSIS records

3. Insurance

4. Certification of membership in any organization

5. Statement of Assets and Liability

6. Income Tax Return (ITR)

In summary, the child cannot use the surname of his

father because he was born out of wedlock and the father unfortunately died prior to his birth and has no

more capacity to acknowledge his paternity to the

child (either through the back of Municipal Form No.

102 Affidavit of Acknowledgment/Admission of

Paternity or the Authority to Use the Surname of the

Father). (Underscoring supplied)

Jenie and the child promptly filed a complaint[9] for

injunction/registration of name against respondent before

the Regional Trial Court of Antipolo City, docketed as SCA Case No.

06-539, which was raffled to Branch 73 thereof. The complaint

alleged that, inter alia, the denial of registration of the childs name is

a violation of his right to use the surname of his deceased father

under Article 176 of the Family Code, as amended by Republic

Act (R.A.) No. 9255,[10] which provides:

Article 176. Illegitimate children shall use the

surname and shall be under the parental authority of their mother, and shall be entitled to support in

conformity with this Code. However, illegitimate

children may use the surname of their father if their

filiation has been expressly recognized by the

father through the record of birth appearing in the civil

register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right

to institute an action before the regular courts to prove

non-filiation during his lifetime. The legitime of each

illegitimate child shall consist of one-half of the

legitime of a legitimate child. (Emphasis and underscoring supplied)

They maintained that the Autobiography executed by Dominique

constitutes an admission of paternity in a private handwritten

instrument within the contemplation of the above-quoted provision of

law.

For failure to file a responsive pleading or answer despite

service of summons, respondent was declared in default.

Jenie thereupon presented evidence ex-parte. She testified on

the circumstances of her common-law relationship with Dominique

and affirmed her declarations in her AUSF that during his lifetime, he

had acknowledged his yet unborn child.[11]She offered Dominiques

handwritten Autobiography (Exhibit A) as her documentary evidence-

in-chief.[12] Dominiques lone brother, Joseph Butch S.T. Aquino, also

testified, corroborating Jenies declarations.[13]

By Decision[14] of April 25, 2007, the trial court dismissed the

complaint for lack of cause of action as the Autobiography

was unsigned, citing paragraph 2.2, Rule 2 (Definition of Terms)

of Administrative Order (A.O.) No. 1, Series of 2004 (the Rules

and Regulations Governing the Implementation of R.A.

9255) which defines private handwritten document through which a

father may acknowledge an illegitimate child as follows:

2.2 Private handwritten instrument an

instrument executed in the handwriting of the father and duly signed by him where he expressly recognizes

paternity to the child. (Underscoring supplied)

The trial court held that even if Dominique was the author of the

handwritten Autobiography, the same does not contain any express

recognition of paternity.

Hence, this direct resort to the Court via Petition for Review

on Certiorari raising this purely legal issue of:

WHETHER OR NOT THE UNSIGNED

HANDWRITTEN STATEMENT OF THE DECEASED FATHER OF MINOR CHRISTIAN DELA CRUZ CAN BE

CONSIDERED AS A RECOGNITION OF PATERNITY IN

A PRIVATE HANDWRITTEN INSTRUMENT WITHIN

THE CONTEMPLATION OF ARTICLE 176 OF THE

FAMILY CODE, AS AMENDED BY R.A. 9255, WHICH

ENTITLES THE SAID MINOR TO USE HIS FATHERS SURNAME.[15] (Underscoring supplied)

Petitioners contend that Article 176 of the Family Code, as

amended, does not expressly require that the private handwritten

instrument containing the putative fathers admission of paternity

must be signed by him. They add that the deceaseds handwritten

Autobiography, though unsigned by him, is sufficient, for the

requirement in the above-quoted paragraph 2.2 of the Administrative

Order that the admission/recognition must be duly signed by the

father is void as it unduly expanded the earlier-quoted provision of

Article 176 of the Family Code.[16]

Petitioners further contend that the trial court erred in not

finding that Dominiques handwritten Autobiography contains a clear

and unmistakable recognition of the childs paternity.[17]

In its Comment, the Office of the Solicitor General (OSG)

submits that respondents position, as affirmed by the trial court, is

in consonance with the law and thus prays for the dismissal of the

petition. It further submits that Dominiques Autobiography merely

acknowledged Jenies pregnancy but not [his] paternity of the child

she was carrying in her womb.[18]

Article 176 of the Family Code, as amended by R.A. 9255,

permits an illegitimate child to use the surname of his/her father if

the latter had expressly recognized him/her as his offspring through

the record of birth appearing in the civil register, orthrough

an admission made in a public or private handwritten

instrument. The recognition made in any of these documents is, in

itself, a consummated act of acknowledgment of the childs paternity;

hence, no separate action for judicial approval is necessary.[19]

Article 176 of the Family Code, as amended, does not, indeed,

explicitly state that the private handwritten instrument

acknowledging the childs paternity must be signed by the putative

father. This provision must, however, be read in conjunction with

related provisions of the Family Code which require that recognition

by the father must bear his signature, thus:

Art. 175. Illegitimate children may establish

their illegitimate filiation in the same way and on the same evidence as legitimate children.

x x x x

Art. 172. The filiation of legitimate children is

established by any of the following:

(1) The record of birth appearing in the

civil register or a final judgment; or

(2) An admission of legitimate filiation in

a public document or a private handwritten instrument and signed by the parent

concerned.

x x x x (Emphasis and underscoring supplied)

That a father who acknowledges paternity of a child through a

written instrument must affix his signature thereon is clearly implied

in Article 176 of the Family Code. Paragraph 2.2, Rule 2 of A.O. No.

1, Series of 2004, merely articulated such requirement; it did not

unduly expand the import of Article 176 as claimed by petitioners.

In the present case, however, special circumstances exist to

hold that Dominiques Autobiography, though unsigned by

him, substantially satisfies the requirement of the law.

First, Dominique died about two months prior to the childs

birth. Second, the relevant matters in the Autobiography,

unquestionably handwritten by Dominique, correspond to the facts

culled from the testimonial evidence Jenie proffered.[20]Third, Jenies

testimony is corroborated by the Affidavit of Acknowledgment of

Dominiques father Domingo Aquino and testimony of his brother

Joseph Butch Aquino whose hereditary rights could be affected by

the registration of the questioned recognition of the child. These

circumstances indicating Dominiques paternity of the child give life

to his statements in his Autobiography that JENIE DELA CRUZ is

MY WIFE as WE FELL IN LOVE WITH EACH OTHER and NOW SHE

IS PREGNANT AND FOR THAT WE LIVE TOGETHER.

In Herrera v. Alba,[21] the Court summarized the laws, rules,

and jurisprudence on establishing filiation, discoursing in relevant

part:

Laws, Rules, and Jurisprudence Establishing Filiation

The relevant provisions of the Family Code

provide as follows:

ART. 175. Illegitimate children may establish

their illegitimate filiation in the same way and on the

same evidence as legitimate children.

x x x x

ART. 172. The filiation of legitimate children is

established by any of the following:

(1) The record of birth appearing in the civil

register or a final judgment; or

(2) An admission of legitimate filiation in a

public document or a private handwritten

instrument and signed by the parent

concerned.

In the absence of the foregoing evidence, the

legitimate filiation shall be proved by:

(1) The open and continuous possession of

the status of a legitimate child; or

(2) Any other means allowed by the Rules of

Court and special laws.

The Rules on Evidence include provisions on

pedigree. The relevant sections of Rule 130 provide:

SEC. 39. Act or declaration about pedigree. The

act or declaration of a person deceased, or unable to

testify, in respect to the pedigree of another person

related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and

the relationship between the two persons is shown by

evidence other than such act or declaration. The word

"pedigree" includes relationship, family genealogy,

birth, marriage, death, the dates when and the places

where these facts occurred, and the names of the relatives. It embraces also facts of family history

intimately connected with pedigree.

SEC. 40. Family reputation or tradition

regarding pedigree. The reputation or tradition existing

in a family previous to the controversy, in respect to the pedigree of any one of its members, may be

received in evidence if the witness testifying thereon be

also a member of the family, either by consanguinity

or affinity. Entries in family bibles or other family

books or charts, engraving on rings, family portraits

and the like, may be received as evidence of pedigree.

This Court's rulings further specify what

incriminating acts are acceptable as evidence to establish filiation. In Pe Lim v. CA, a case petitioner

often cites, we stated that the issue of paternity still

has to be resolved by such conventional evidence as the relevant incriminating verbal and written acts

by the putative father. Under Article 278 of the New

Civil Code, voluntary recognition by a parent shall be

made in the record of birth, a will, a statement before a

court of record, or in any authentic writing. To be effective, the claim of filiation must be made by

the putative father himself and the writing must be

the writing of the putative father. A notarial

agreement to support a child whose filiation is

admitted by the putative father was considered

acceptable evidence. Letters to the mother vowing to be a good father to the child and pictures of the

putative father cuddling the child on various

occasions, together with the certificate of live birth,

proved filiation. However, a student permanent record,

a written consent to a father's operation, or a marriage contract where the putative father gave consent,

cannot be taken as authentic writing. Standing alone,

neither a certificate of baptism nor family pictures are

sufficient to establish filiation. (Emphasis and

underscoring supplied.)

In the case at bar, there is no dispute that the earlier quoted

statements in Dominiques Autobiography have been made and

written by him. Taken together with the other relevant facts extant

herein that Dominique, during his lifetime, and Jenie were living

together as common-law spouses for several months in 2005 at his

parents house in Pulang-lupa, Dulumbayan, Teresa, Rizal; she was

pregnant when Dominique died on September 4, 2005; and about two

months after his death, Jenie gave birth to the child they sufficiently

establish that the child of Jenie is Dominiques.

In view of the pronouncements herein made, the Court sees it

fit to adopt the following rules respecting the requirement of affixing

the signature of the acknowledging parent in any private handwritten

instrument wherein an admission of filiation of a legitimate or

illegitimate child is made:

1) Where the private handwritten instrument is the lone piece

of evidence submitted to prove filiation, there should be strict

compliance with the requirement that the same must be signed by

the acknowledging parent; and

2) Where the private handwritten instrument

is accompanied by other relevant and competent evidence, it suffices

that the claim of filiation therein be shown to have been made and

handwritten by the acknowledging parent as it is merely

corroborative of such other evidence.

Our laws instruct that the welfare of the child shall be the

paramount consideration in resolving questions affecting

him.[22] Article 3(1) of the United Nations Convention on the Rights of

a Child of which the Philippines is a signatory is similarly emphatic:

Article 3

1. In all actions concerning children, whether

undertaken by public or private social welfare

institutions, courts of law, administrative authorities

or legislative bodies, the best interests of the child

shall be a primary consideration.[23] (Underscoring

supplied)

It is thus (t)he policy of the Family Code to liberalize the rule

on the investigation of the paternity and filiation of

children, especially of illegitimate children x x x.[24] Too, (t)he State

as parens patriae affords special protection to children from abuse,

exploitation and other conditions prejudicial to their development.[25]

In the eyes of society, a child with an unknown father bears

the stigma of dishonor. It is to petitioner minor childs best interests

to allow him to bear the surname of the now deceased Dominique

and enter it in his birth certificate.

WHEREFORE, the petition is GRANTED. The City Civil

Registrar of Antipolo City is DIRECTED to immediately enter the

surname of the late Christian Dominique Sto.

Tomas Aquino as the surname of petitioner minor Christian dela

Cruz in his Certificate of Live Birth, and record the same in the

Register of Births.

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

April 25, 1957

G.R. No. L-9194

CO TAO, petitioner,

vs.

THE COURT OF APPEALS and LUCITA VALLEJO, for herself and

as a mother and natural guardian of MANUEL CO, respondents.

C. F. Mata and Associates for petitioner.

Felipe B. Pagkalungan for respondents.

PADILLA, J.:

Appeal by certiorari under Rule 46 from a judgment of the Court of

Appeals which affirms that of the Court of First Instance of Manila —

(1) Declarando que el niño Manuel Co, hijo natural de la demandante

Lucita Vallejo, es hijo ilegitimo del demandado Co Tao habido con

ella;

(2) Condenando al demandado Co Tao a pagar a la demandante

Lucita Vallejo;

(a) La cantidad de P320, por la manutencion de so hijo Manuel Co

desde el mes de Mayo de 1951, en que se presento la demanda, hasta

el Diciembre de 1953, a razon de P10 manutencion de dicho Manuel

Co, a partir desde el mes de Enero de 1954 hasta que el mismo llegue

a su mayoria de edad;

(b) La cantidad de P200, por las deudas que ella habia contraido;

(c) La cantidad de P500, como daños morales;

(d) La cantidad de P200, para honorarios de abogado; y

(e) Las costas del juicio. (civil case No. 13738.)

The first, second, third, fourth and fifth errors claimed to have been

committed by the Court of Appeals involve the credibility of

witnesses, and in effect dispute the findings of fact of the Court of

Appeals. This Court cannot review such findings in this proceedings.

The Court of Appeals found —

It appears that in January, 1947, plaintiff Lucita Vallejo, a young girl

of 18, native of Camiling, Tarlac, entered the services, as maid and

laundress, with a monthly salary of P30, of one Co Bun Kim, who

resided in house No. 733, Teodora Alonzo Street, Manila. There lived

also defendant Co Tao alias Jose Co, a cousin and trusted employee

of Co Bun Kim in a store and Chinese pharmacy under the same

house. Defendant was then receiving a monthly salary of P40 and his

wife and three children were then out of the Islands. Defendant Co

Tao courted Lucita Vallejo and promised to marry her. And believing

that he was single, Lucita accepted him and in no time they were

having carnal relations in the said house almost every day, as must

be expected, she became pregnant. To avoid scandal, the defendant

brought her to the house of her uncle, Candido Vallejo, at No. 389,

Prudencia street, Tondo, Manila, requesting said uncle to permit

Lucita to stay in the said house until she delivered and promising to

pay the rentals thereof. At 3:00 o'clock, morning of August 13, 1948,

assisted by a midwife, Felisa Galang, who was summoned by Candido

Vallejo, Lucita, Vallejo gave birth to baby boy. At 8:00 o'clock, same

morning Candido accompanied Felisa to the pharmacy of Co Bun

Kim to inform the defendant Co Tao of the advent of his of spring.

Defendant gave Felisa the, sum of P20 for the delivery and asked her

what would she charge if she continued rendering service midwife for

20 days more, to which Felisa fixed the amount of P50 for the whole

service. The defendant, in the last day of her service, paid Felisa,

through Lucita, the balance of P30. It further appears that after the

parturition, everytime he (Co Tao) went out of the store to deposit Co

Bun Kim's money in the bank, the defendant asked the driver, Jose

Nabong, of Co Bun Kim, to pass by Candido's house to see Lucita,

and his child. On October 24, 1948, the child was baptized with the

name of Manuel Co, in the Catholic church of Espiritu Santo, Rizal

Avenue, Manila, acting as sponsor thereof, upon the request of

defendant himself, the driver Jose Nabong and his wife (Exhibit C).

After the baptism, Lucita continued living in his uncle's house where

defendant continued also visiting her and his child, sleeping with her

every night, having marital life with her throughout, and providing

here with money and food. In October, 1949, however, the child feel

sick, and upon suggestion of defendant Co Tao, Lucita and her child

went to live with her parents in Camiling. Defendant's, wife and

children had arrived in the meanwhile, and defendant did not write

or send money to the plaintiff anymore. So plaintiff was forced to

work, washing clothes and planting palay for others.

Plaintiff became also ill and she had been borrowing money from

friends, until she decided to come to Manila and see defendant Co

Tao who refused to give her any help. Plaintiff engaged the services of

a lawyer to file the present action.

Defendant Co Tao's defense followed the usual pattern of

irresponsible men of passing the buck. He claims that under the

service of Co Bun Kim, there were other men such as Jose Nabong

(the driver), a certain Filipino and Chua Chiam with whom the

plaintiff, Lucita Vallejo, used to go out, after her working hours; and

that Lucita was also visited often times by other Filipinos who used to

wait for her and with whom she also went out, and such suspicious

conduct of the plaintiff was even protested to by her master, Co Bun

Kim. Defendant admitted, however, that she had carnal relations

with Lucita for three times only and for such acts she often

approached him for money; that after the lapse of months, he found

that she had already received from him the sum of P1.400.00 besides

some pieces of jewelries, consisting of a ring and a watch. He alleged

finally that either for Lucita's frequent outings with several men, or

for her carnal relations with him (defendant), she found herself in the

family way and in June, 1948, she quit her work, and went to live

with her uncle; that during the christening in the Espiritu Santo

Church, he was not present; that plaintiff filed a complaint for rape

in the City Fiscal's Office of Manila, but the same was dismissed for

lack of evidence.

Upon the petition of the defendant, the trial court ordered the experts

of the National Bureau of Investigation (NBI) to test the blood of the

defendant Co Tao and the child Manuel Co, in order to determine

whether the former could be the father of the latter. On October 18,

1951, the NBI expert rendered a report of the analysis made, with the

following findings: "From their blood groups and types, the

defendant, Co Tao, is a possible father of the child" (Exhibit B).

In upholding the cause for the plaintiff-appellee, the trial court

declared that the minor Manuel Co is the illegitimate child of the

defendant Co Tao, and gave much weight to the testimony of Jose K.

Obando Chemist of the NBI and awarded the damages and attorney's

fees mentioned heretofore. After a careful survey of the evidence of

record, We hold that the judgment appealed from should be

sustained. As far as credibility of the witnesses is concerned, We find

no reason at all for disturbing the findings of the trial court to the

effect that the testimony of the plaintiff-appellee and her witnesses

deserves more credence than that of the defendant-appellant. The

following disquisition's of the trial court are fully supported by the

facts of record:

No solo el informs del experts de la NBI convinience al Juzgado que el

demandado Co Tao es el padre del niño Manuel Co, hijo de Lucita

Vallejo sino ademas la misma conducta observada por dicho

demandado y los actos ejecutados por el mismo antes, durante y

despues del alumbramiento de Lucita, demuestran a todas luces que

el mismo demandado estaba convecido que el hijo que Lucita Vallejo

trajo el mundo era suyo, fruto de vida marital que habia llevado con

ella. Cuando Lucita entro servicio de Co Bun Kim, ella no contaba

mas que unos 18 años de edad, y como era una campesina que nacio

y crecio en la sementera, era humilde y timida por naturaliza. A esa

edad y con tal caracter, mas su estado de simple criada, Lucita era

una facil presa del demandado, un hombre ducho, y se puedo decir,

experto en lances amorosos, pues ya tenia entonces 39 afios encima,

mas de doble de la edad de Lucita, sobre quien, ejercia cierto grado

cierto grado de influencia moral, por ser el primo y empleado de

confianza del amo de aquella. Este hecho, unido a al circunstancia de

que la esposa e hijos del demandado se encontraban in China a la

sazon, circunstancia completamente vedada a Lucita, reavivo los

planes de conquista del demandado y precipito la caida de Lucita. La

solicitud con que Co Tao demostro al pedir a candido Vallejo, a quien

el llamba entonces tio, que permitiera a Lucita trasladarse a su casa,

pagando el los alquileres de la misma, por ser dicha casa mas fresca

que la de Co Bun Kim; el hecho de haber el mismo Co Tao pagado los

servicios de la comadrona que asistio a Lucita en el parto y atendio el

cuidado de la misma y de su hijo por cierto periods; el hecho de

haber el mismo Co Tao solicitado a Jose Nabong y a su esposa para,

ser los padrinos de bautistmo del hijo de Lucita y a quienies el llego a

llamar compadres; el hecho de haber el mismo demandado estado

sosteniendo y sufragando los gastos de subsistencia y alojamiento de

Lucita y de suijo durante la estancia de estos en la casa de Candido;

el hecho de haber el mismo demandado instado a Lucita que tomara

vacacion en Camiling cuando su hijo se cayo enfermo en dicha casa

de Candido; el hecho admitido por el mismo demandado, de haber el,

por las tres unicas veces en que en gozo de aquella mujer el primer

de su juventud dado a ella mas de P1,400, mas las joyas y prendas

que habia regalado, a saber: una cama de P70 y una lampara de P25;

to dos estos hechos demuestran que el mismo demandado creia que

la mujer humilde y timida que habia caido en sus brazos en

momentos de debilidad, valia algo mas que lo que vale una mujer

impudica que vende su cariño, su cuerpo y alma al primero que se

presente.

La conclusion, por tanto, del Juzgados es que cuando el demandado

Co Tao se unio maritalmente con Lucita Vallejo, esta era una joven

soltera y doncella, y, como fruto de aquellas relaciones, nacio un niño

que fue bautizado con el nombre de Manuel Co, que es hijo ilegitimo

de Co Tao, por estar este casado con otra mujer, cuando aquel fue

concebido por su madre.

The appellant alleges that the plaintiff had been having carnal

knowledge with him for 3 times, by selling herself; that she had been

outing with different men, mentioning even his compadre Jose

Nabong, among them; that Manuel Co must have been another's

child because the expert of the NBI was only able to say that he

(appellant) is a "possible father" of the child; that he could not have

been his father, because everytime he had carnal act with the

plaintiff, used a strong french umbrella; and that the plaintiff had

even accused him with rape at the fiscal's office but the complaint

was dismissed; — thereby concluding that the idea of rape is

incompatible with the concept of love. We find these allegations to be

flimsy and shallow subterfuges of an irresponsible father. For obvious

reasons, the NBI expert cannot give assurance that the appellant was

the father of the child; he can only give his opinion that he is a

"possible father". This possibility, coupled with the other facts and

circumstances brought out during the trial, tends to definitely

establish that appellant Co Tao is the father of the child Manuel.

While it is admitted that the complaint for rape filed by the appellee

was dismissed by the Fiscal, this fact alone should not deprive the

appellee of the right which she seeks to be protected in the instant

case. With the attitude of the appellant who, after satiating his lustful

desires and begetting a child from her, and after abandoning them

completely, the appellee must have become desperate and went to a

lawyer who tried to enlist the aid of the Fiscal's Office. This

notwithstanding, as a whole, the story given by the plaintiff-appellee

and her witnesses is deserving of credence and belief.

The fact that the Judge who heard the evidence is not the one who

rendered the judgment and that for that reason the latter did not

have the opportunity to observe the demeanor of the witnesses

during the trial but merely relied on the records of the case does not

render the judgment erroneous.

The sixth error assigned raises a question of law. Petitioner contends

that as the acts alleged in the complaint filed on May 2, 1951 took

place in 1947 and 1948 and the new Civil Code took effect on 30

August 1950 article 2217 thereof, which provides for moral damages,

should not have been applied retroactively. The Court of Appeals held

—

. . . The right of action for support as embodied in Article 298 of the

new Civil Code accrues or becomes demandable from the time the

person who has a right to receive the same need it for maintenance,

but it shall not be paid except from the date it is extra-judicially

demanded. In the case at bar, therefore the action for support

accrued from the filing of the complaint, which was May 2, 1951,

long after the, new Civil Code was in force and effect. Even granting

for the purpose of argument that the moral damages as contemplated

by the new Civil Code, did not exist at the time the action accrued in

this case, still We believe and so hold, that these provisions of the

said Code may have a retroactive effect, because such provisions do

not prejudice or impair any vested or acquired right of the appellant

in accordance with the old legislation (Art. 2 252, New Civil

Code).[[1]] Moreover, "if a right should declared for the first time in this

Code, it shall be effective at once, even though the act or event which

gives rise thereto may have been done or may have occurred under

the prior legislation, provided said new right does not impair or

prejudice any vested or acquired right, of the same origin" (Art 2253,

New Civil Code). Evidently, appellant did not have a vested right or

acquired right not be held or responsible for moral damages, either

by judicial pronouncement or by provision of law. By the same token,

therefore, defendant-appellant is also liable to plaintiff- appellee for

attorney's fees, under paragraphs (1), (2), (5), (6) and (11) Article 2208

of the new Civil Code. The damages fixed by the trial court are

reasonable and conscionable.

The judgment under review is affirmed, with costs against the

petitioner.

[G.R. No. 128314. May 29, 2002]

RODOLFO V. JAO, petitioner, vs. COURT OF APPEALS and

PERICO V. JAO, respondents.

D E C I S I O N

YNARES-SANTIAGO, J.:

Rodolfo and Perico Jao were the only sons of the spouses Ignacio

Jao Tayag and Andrea V. Jao, who died intestate in 1988 and 1989, respectively. The decedents left real estate, cash, shares of stock and

other personal properties.

On April 17, 1991, Perico instituted a petition for issuance of

letters of administration before the Regional Trial Court of Quezon

City, Branch 99, over the estate of his parents, docketed as Special Proceedings No. Q-91-8507.[1] Pending the appointment of a regular

administrator, Perico moved that he be appointed as special

administrator. He alleged that his brother, Rodolfo, was gradually

dissipating the assets of the estate. More particularly, Rodolfo was

receiving rentals from real properties without rendering any

accounting, and forcibly opening vaults belonging to their deceased parents and disposing of the cash and valuables therein.

Rodolfo moved for the dismissal of the petition on the ground of

improper venue.[2] He argued that the deceased spouses did not reside

in Quezon City either during their lifetime or at the time of their

deaths. The decedents actual residence was in Angeles City, Pampanga, where his late mother used to run and operate a

bakery. As the health of his parents deteriorated due to old age, they

stayed in Rodolfos residence at 61 Scout Gandia Street, Quezon City,

solely for the purpose of obtaining medical treatment and

hospitalization. Rodolfo submitted documentary evidence previously

executed by the decedents, consisting of income tax returns, voters affidavits, statements of assets and liabilities, real estate tax

payments, motor vehicle registration and passports, all indicating

that their permanent residence was in Angeles City, Pampanga.

In his opposition,[3] Perico countered that their deceased parents

actually resided in Rodolfos house in Quezon City at the time of their deaths. As a matter of fact, it was conclusively declared in their death

certificates that their last residence before they died was at 61 Scout

Gandia Street, Quezon City.[4] Rodolfo himself even supplied the entry

appearing on the death certificate of their mother, Andrea, and

affixed his own signature on the said document.

Rodolfo filed a rejoinder, stating that he gave the information regarding the decedents residence on the death certificates in good

faith and through honest mistake. He gave his residence only as

reference, considering that their parents were treated in their late

years at the Medical City General Hospital in Mandaluyong, Metro

Manila. Their stay in his house was merely transitory, in the same

way that they were taken at different times for the same purpose to Pericos residence at Legaspi Towers in Roxas Boulevard. The death

certificates could not, therefore, be deemed conclusive evidence of the

decedents residence in light of the other documents showing

otherwise.[5]

The court required the parties to submit their respective nominees for the position.[6] Both failed to comply, whereupon the

trial court ordered that the petition be archived.[7]

Subsequently, Perico moved that the intestate proceedings be

revived.[8] After the parties submitted the names of their respective

nominees, the trial court designated Justice Carlos L. Sundiam as

special administrator of the estate of Ignacio Jao Tayag and Andrea Jao.[9]

On April 6, 1994, the motion to dismiss filed by petitioner

Rodolfo was denied, to wit:

A mere perusal of the death certificates of the spouses issued separately in 1988 and 1989, respectively, confirm the fact that

Quezon City was the last place of residence of the

decedents. Surprisingly, the entries appearing on the death certificate

of Andrea V. Jao were supplied by movant, Rodolfo V. Jao, whose

signature appears in said document. Movant, therefore, cannot disown his own representation by taking an inconsistent position

other than his own admission. xxx xxx xxx.

WHEREFORE, in view of the foregoing consideration, this court

DENIES for lack of merit movants motion to dismiss.

SO ORDERED.[10]

Rodolfo filed a petition for certiorari with the Court of Appeals,

which was docketed as CA-G.R. SP No. 35908. On December 11,

1996, the Court of Appeals rendered the assailed decision, the

dispositive portion of which reads:

WHEREFORE, no error, much less any grave abuse of discretion of

the court a quo having been shown, the petition for certiorari is

hereby DISMISSED. The questioned order of the respondent Judge is affirmed in toto.

SO ORDERED.[11]

Rodolfos motion for reconsideration was denied by the Court of Appeals in the assailed resolution dated February 17, 1997.[12] Hence,

this petition for review, anchored on the following grounds:

I

RESPONDENT COURT HAD DECIDED A QUESTION OF

SUBSTANCE IN A WAY NOT IN ACCORD WITH THE LAW AND IS

DIRECTLY CONTRADICTORY TO THE APPLICABLE DECISION

ALREADY RENDERED BY THIS HONORABLE COURT.

II

RESPONDENT COURT ERRED IN DISREGARDING THE RULING OF THIS HONORABLE COURT IN THE CASE OF EUSEBIO VS.

EUSEBIO, 100 PHILS. 593, WHICH CLEARLY INTERPRETED WHAT

IS MEANT BY RESIDENCE IN SEC. 1 OF RULE 73 OF THE RULES OF COURT.

III

RESPONDENT COURT ERRED IN HOLDING THAT PHYSICAL

PRESENCE IN A PLACE AT THE TIME OF DEATH IS

DETERMINATIVE OF DECEDENTS RESIDENCE RATHER THAN THE

INTENTION OF THE DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN ANOTHER PLACE.

IV

RESPONDENT COURT ERRED IN APPLYING BY ANALOGY THE

RESIDENCE CONTEMPLATED IN SEC. 2 OF RULE 4 FOR THE

PURPOSE OF SERVING SUMMONS TO A DEFENDANT IN A PERSONAL ACTION TO THE RESIDENCE CONTEMPLATED IN SEC.

1 OF RULE 73 FOR THE PURPOSE OF DETERMINING VENUE IN

THE SETTLEMENT OF THE ESTATE OF A DECEASED.

V

RESPONDENT COURT ERRED IN GIVING MORE WEIGHT TO THE

ENTRY OF PETITIONER AND PRIVATE RESPONDENT IN THE

RESPECTIVE DEATH CERTIFICATES OF THE DECEDENTS RATHER THAN THE OVERWHELMING EVIDENCE SHOWING THE CLEAR

INTENTION OF THE DECEDENTS TO ESTABLISH THEIR

PERMANENT RESIDENCE IN ANGELES CITY.

VI

RESPONDENT COURT ERRED IN APPLYING THE PRINCIPLE OF

ESTOPPEL AS AGAINST PETITIONER WHICH CAN NOT BE MORE PERSUASIVE THAN THE CLEAR INTENTION OF THE DECEDENTS

THEMSELVES TO ESTABLISH PERMANENT RESIDENCE IN

ANGELES CITY.

VII

RESPONDENT COURT ERRED IN DISMISSING THE PETITION FOR CERTIORARI DESPITE THE CLEAR ABUSE OF DISCRETION ON

THE PART OF THE TRIAL COURT IN INSISTING TO TAKE

COGNIZANCE OF SP. PROCEEDING NO. Q-91-8507.[13]

The main issue before us is: where should the settlement proceedings be had --- in Pampanga, where the decedents had their

permanent residence, or in Quezon City, where they actually stayed

before their demise?

Rule 73, Section 1 of the Rules of Court states:

Where estate of deceased persons be settled. If the decedent is an

inhabitant of the Philippines at the time of his death, whether a

citizen or an alien, his will shall be proved, or letters of

administration granted, and his estate settled, in the Court of First

Instance in the province in which he resides at the time of his

death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first

taking cognizance of the settlement of the estate of a decedent shall

exercise jurisdiction to the exclusion of all other courts. The

jurisdiction assumed by a court, so far as it depends on the place of

residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that

court, in the original case, or when the want of jurisdiction appears

on the record. (underscoring ours)

Clearly, the estate of an inhabitant of the Philippines shall be

settled or letters of administration granted in the proper court located in the province where the decedent resides at the time of his death.

Petitioner Rodolfo invokes our ruling in the case of Eusebio v. Eusebio, et al.,[14] where we held that the situs of settlement

proceedings shall be the place where the decedent had his permanent

residence or domicile at the time of death. In determining residence

at the time of death, the following factors must be considered,

namely, the decedent had: (a) capacity to choose and freedom of

choice; (b) physical presence at the place chosen; and (c) intention to stay therein permanently.[15] While it appears that the decedents in

this case chose to be physically present in Quezon City for medical

convenience, petitioner avers that they never adopted Quezon City as

their permanent residence.

The contention lacks merit.

The facts in Eusebio were different from those in the case at

bar. The decedent therein, Andres Eusebio, passed away while in the

process of transferring his personal belongings to a house in Quezon

City. He was then suffering from a heart ailment and was advised by

his doctor/son to purchase a Quezon City residence, which was

nearer to his doctor. While he was able to acquire a house in Quezon

City, Eusebio died even before he could move therein. In said case, we ruled that Eusebio retained his domicile --- and hence, residence -

-- in San Fernando, Pampanga. It cannot be said that Eusebio

changed his residence because, strictly speaking, his physical

presence in Quezon City was just temporary.

In the case at bar, there is substantial proof that the decedents have transferred to petitioners Quezon City residence. Petitioner

failed to sufficiently refute respondents assertion that their elderly

parents stayed in his house for some three to four years before they

died in the late 1980s.

Furthermore, the decedents respective death certificates state

that they were both residents of Quezon City at the time of their demise. Significantly, it was petitioner himself who filled up his late

mothers death certificate. To our mind, this unqualifiedly shows that

at that time, at least, petitioner recognized his deceased mothers

residence to be Quezon City. Moreover, petitioner failed to contest the

entry in Ignacios death certificate, accomplished a year earlier by respondent.

The recitals in the death certificates, which are admissible in

evidence, were thus properly considered and presumed to be correct by the court a quo. We agree with the appellate courts observation

that since the death certificates were accomplished even before

petitioner and respondent quarreled over their inheritance, they may

be relied upon to reflect the true situation at the time of their parents death.

The death certificates thus prevailed as proofs of the decedents residence at the time of death, over the numerous documentary

evidence presented by petitioner. To be sure, the documents presented by petitioner pertained not to residence at the time of

death, as required by the Rules of Court, but to permanent residence or domicile. In Garcia-Fule v. Court of Appeals,[16] we held:

xxx xxx xxx the term resides connotes ex vi termini actual residence

as distinguished from legal residence or domicile. This term resides,

like the terms residing and residence, is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the application of venue statutes and

rules Section 1, Rule 73 of the Revised Rules of Court is of such nature residence rather than domicile is the significant factor. Even

where the statute uses the word domicile still it is construed as

meaning residence and not domicile in the technical sense.Some

cases make a distinction between the terms residence and domicile

but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term

inhabitant. In other words, resides should be viewed or understood in

its popular sense, meaning, the personal, actual or physical

habitation of a person, actual residence or place of abode. It signifies

physical presence in a place and actual stay thereat. In this popular

sense, the term means merely residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily

presence as an inhabitant in a given place, while domicile requires

bodily presence in that place and also an intention to make it ones

domicile. No particular length of time of residence is required though;

however, the residence must be more than temporary.[17]

Both the settlement court and the Court of Appeals found that

the decedents have been living with petitioner at the time of their

deaths and for some time prior thereto. We find this conclusion to be

substantiated by the evidence on record. A close perusal of the challenged decision shows that, contrary to petitioners assertion, the

court below considered not only the decedents physical presence in

Quezon City, but also other factors indicating that the decedents stay

therein was more than temporary. In the absence of any substantial

showing that the lower courts factual findings stemmed from an

erroneous apprehension of the evidence presented, the same must be

held to be conclusive and binding upon this Court.

Petitioner strains to differentiate between the venue provisions found in Rule 4, Section 2,[18] on ordinary civil actions, and Rule 73,

Section 1, which applies specifically to settlement proceedings. He

argues that while venue in the former understandably refers to actual

physical residence for the purpose of serving summons, it is the

permanent residence of the decedent which is significant in Rule 73,

Section 1. Petitioner insists that venue for the settlement of estates can only refer to permanent residence or domicile because it is the

place where the records of the properties are kept and where most of

the decedents properties are located.

Petitioners argument fails to persuade.

It does not necessarily follow that the records of a persons properties are kept in the place where he permanently

resides. Neither can it be presumed that a persons properties can be

found mostly in the place where he establishes his domicile. It may

be that he has his domicile in a place different from that where he

keeps his records, or where he maintains extensive personal and

business interests. No generalizations can thus be formulated on the matter, as the question of where to keep records or retain properties

is entirely dependent upon an individuals choice and peculiarities.

At any rate, petitioner is obviously splitting straws when he

differentiates between venue in ordinary civil actions and venue in special proceedings. In Raymond v. Court of Appeals[19] and Bejer v. Court of Appeals,[20] we ruled that venue for ordinary civil actions and

that for special proceedings have one and the same meaning. As thus

defined, residence, in the context of venue provisions, means nothing

more than a persons actual residence or place of abode, provided he

resides therein with continuity and consistency.[21] All told, the lower

court and the Court of Appeals correctly held that venue for the

settlement of the decedents intestate estate was properly laid in the Quezon City court.

WHEREFORE, in view of the foregoing, the petition is

DENIED, and the decision of the Court of Appeals in CA-G.R. SP No.

35908 is AFFIRMED.

SO ORDERED.