PEOPLE OF THE PHILIPPINES, APPELLEE, VS. RANILO DE LA CRUZ Y LIZING, APPELLANT. DECISION TINGA, J.

: On appeal is the Decision[1] dated 30 November 2006 of the Court of Appeals in C.A.-G.R. CR No. 01266 affirming in toto the judgment[2] dated 14 June 2004 of the Regional Trial Court (RTC) of Mandaluyong City, Branch 211, finding appellant Ranilo Dela Cruz y Lizing guilty beyond reasonable doubt of violating Section 5, Article II of Republic Act No. 9165 (R.A. No. 9165) and sentencing him to suffer the penalty of life imprisonment and ordering him to pay a fine of P500,000.00.[3] On 13 September 2002, Dela Cruz was charged with the violation of the aforesaid offense in an Information[4] that reads: That on or about the 12th day of September 2002, in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, without any lawful authority, did then and there willfully, unlawfully and feloniously deliver, distribute, transport or sell to poseur-buyer PO2 Nick Resuello[,] one (1) heat-sealed transparent plastic sachet containing 0.03 gram each of white crystalline substance, which were found positive to the test for Methamphetamine Hydrochloride, commonly known as "shabu," a dangerous drug, for the amount of P100.00 with Serial No. XY588120, without the corresponding license and prescription, in violation of the above-cited law. CONTRARY TO LAW.[5] On arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits ensued with the prosecution presenting as witnesses arresting officers PO2 Braulio Peregrino, PO2 Nick Resuello, PO2 Marcelino Boyles, PO2 Allan Drilon, investigator-on-case PO3 Virgilio Bismonte and Forensic Chemist Joseph Perdido. Prosecution evidence shows that on 12 September 2002, the Office of the Station Drugs Enforcement Unit (SDEU), Mandaluyong City received information that appellant, alias "Boy Tigre," of No. 73, Dela Cruz Street, Barangay Old Zaniga, Mandaluyong City was engaging in the trade of illegal drugs. A team composed of Peregrino, Boyles, Drilon and Resuello was dispatched to conduct a buy-bust operation in the area at around 2:00 p.m. of the same day. Peregrino, Boyles, and Drilon positioned themselves at a nearby area while Resuello, the designated poseur-buyer, approached appellant described as a long-haired, medium built, not-sotall male, sporting a moustache and frequently seen wearing short pants.[6] At the time, appellant was standing outside of their gate and kept on glancing from side to side.[7] Resuello then told appellant that he wanted to buy shabu. Dela Cruz looked surprised prompting Resuello to repeat what he had said and handed him the P100 bill with Serial No. XY 588120. Appellant, in turn, handed him a plastic sachet containing the white crystalline substance. At which point, Resuello executed the pre-arranged signal and Peregrino immediately rushed to the scene. [8]

Peregrino, identifying himself as a policeman, held appellant and informed him of his constitutional rights. Peregrino then recovered the buy-bust money from appellant. Subsequently, appellant was brought to SDECU for investigation. Thereat, Peregrino placed his initials (BP) on the plastic sachet containing the white crystalline substance before sending it to the Eastern Police District Crime Laboratory for chemical examination. The sachet was later tested positive for methamphetamine hydrochloride, a dangerous drug. Subsequently, Peregrino and Resuello accomplished the booking and information sheets regarding the incident. Peregrino also executed an affidavit on the matter.[9] Appellant was later identified as Ranilo Dela Cruz y Lising.[10] On cross-examination, Peregrino and Resuello admitted that the buy-bust money had neither been dusted with fluorescent powder nor marked. They only made a photocopy of it prior to the operation for purposes of identification.[11] Peregrino also testified that appellant had not been tested for the presence of fluorescent powder; neither was a drug examination conducted on him. After the arrest, Peregrino narrated that his office made a report on the matter which was forwarded to the Philippine Drug Enforcement Agency (PDEA).[12] Boyles testified likewise on cross-examination that at the time of the arrest, they had no coordination with PDEA.[13] Drilon, on the other hand, testified that he had not actually seen the transaction.[14] Forensic Chemist Perdido testified that the plastic sachet was found to contain methamphetamine hydrochloride. He, however, admitted that he examined the specimen and had made the markings on the same without the presence of appellant.[15] For the defense, appellant testified that on 12 September 2002, at around 1:00 to 2:00 p.m., he was in his house watching television with his wife when he heard a knock at the door. Outside, he came upon two men looking for "Boy Tigre." After admitting that it was he they were looking for, he was told that the barangay captain needed him. He went with the two men to see the barangay captain. Thereat, the barangay captain asked whether he knew of anyone engaged in large-scale drug pushing. Appellant replied in the negative and in response, the barangay captain stated that there was nothing more he (the barangay captain) can do. Appellant was then told to go to the City Hall. At first, his wife accompanied him there but he later asked her to go home and raise the money Bismonte had allegedly demanded from him in exchange for his freedom. When appellant's wife failed to return as she had given birth, a case for violation of Section 5, Article II of R.A. No. 9165 was filed against him.[16] Appellant added that he used to be involved in "video-karera" and surmised that this involvement could have provoked the barangay captain's [17] wrath. Appellant's wife, Jocelyn Dela Cruz, corroborated appellant's testimony. She further stated that after appellant had identified himself as "Boy Tigre," the two men held on to him and asked him to go with them to the barangay captain. There, the barangay captain asked appellant if he knew a certain "Amon" of Pitong Gatang. When appellant replied that he did not, he was then brought to the SDECU where Bismonte allegedly demanded P100,000.00 from them or else a case [18] without bail will be filed against appellant. Finding that the prosecution had proven appellant's guilt beyond reasonable doubt, the RTC rendered judgment against him, sentencing him to suffer the penalty of life imprisonment and ordering him to pay a fine of P500,000.00. On appeal to the Court of Appeals, the challenged

decision was affirmed in toto by the appellate court, after it ruled that the trial court did not commit any reversible error in finding appellant guilty of the offense charged. Before the Court, appellant reiterates his contention that the apprehending police officers' failure to comply with Sections 21[19] and 86[20] of R.A. No. 9165 and that failure casts doubt on the validity of his arrest and the admissibility of the evidence allegedly seized from him. [21] Through his Manifestation (In Lieu of Supplemental Brief) dated 4 September 2007, appellant stated that he had exhaustively argued all the relevant issues in his Brief filed before the Court of Appeals and thus, he is adopting it as Supplemental Brief.[22] The Office of the Solicitor General (OSG) manifested that it was dispensing with the admission of a supplemental brief.[23] Earlier, in its Appellee's Brief, the OSG maintained that despite the non-compliance with the requirements of R.A. No. 9165, the seized drugs are admissible in evidence because their integrity and evidentiary value were properly preserved in accordance with the Implementing Rules and Regulations of R.A. No. 9165.[24] At the outset, it is well to restate the constitutional mandate that an accused shall be presumed innocent until the contrary is proven beyond reasonable doubt. The burden lies on the prosecution to overcome such presumption of innocence by presenting the quantum evidence required. In so doing, the prosecution must rest on its own merits and must not rely on the weakness of the defense. And if the prosecution fails to meet the required amount of evidence, the defense may logically not even present evidence on its own behalf. In which case the presumption prevails and the accused should necessarily be acquitted.[25] In prosecutions for illegal sale of dangerous drugs, the following must be proven: (1) that the transaction or sale took place; (2) the corpus delicti or the illicit drug was presented as evidence; and (3) that the buyer and seller were identified.[26] The dangerous drug is the very corpus delicti of the offense.[27] Section 21 of R.A. No. 9165 states that: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; The IRR of the same provision adds a proviso, to wit: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items; In the case at bar, the Court finds that the arresting officers failed to strictly comply with the guidelines prescribed by the law regarding the custody and control of the seized drugs despite its mandatory terms. While there was testimony regarding the marking of the seized items at the

police station, there was no mention whether the same had been done in the presence of appellant or his representatives. There was likewise no mention that any representative from the media, DOJ or any elected official had been present during the inventory or that any of these people had been required to sign the copies of the inventory. Neither does it appear on record that the team photographed the contraband in accordance with law. Peregrino testified as follows: Q While you were at the office, what did you do with the physical evidence, subject of the buy-bust operation? A When we were at the office[,] we marked the subject physical evidence and requested for physical examination[,] Ma'am. ACP Indunan: What were the markings placed on the physical evidence? A What we put is initial "BP" Q What does this BP means [sic]? A My initial Ma'am, Braulio Perigrino [sic].[28] Resuello likewise testified in this wise: ACP Indunan: Q Before you brought this item to the crime laboratory[,] what other markings you placed on the sachet? A We put a marking BP, Ma'am. Q That BP stands for what[,] Mr. witness? A Braulio Perigrino[,] Ma'am.[29] Following the rule that penal laws shall be construed strictly against the government, and liberally in favor of the accused,[30] the apprehending team's omission to observe the procedure outlined by R.A. 9165 in the custody and disposition of the seized drugs significantly impairs the prosecution's case. Now, the prosecution cannot seek refuge in the proviso of the IRR in the absence of proof of entitlement to such leniency. The prosecution rationalizes its oversight by merely stating that the integrity and evidentiary value of the seized items were properly preserved in accordance with law. The allegation hardly sways the Court save when it is accompanied by proof. According to the proviso of the IRR of Section 21(a) of R.A. No. 9165, non-compliance with the procedure shall not render void and invalid the seizure of and custody of the drugs only when: (1) such noncompliance was under justifiable grounds; and (2) the integrity and the evidentiary value of the seized items are properly preserved by the apprehending team. Clearly, there must be proof that these two (2) requirements were met before any such non-compliance may be said to fall within the scope of the proviso. Significantly, not only does the present case lack the most basic or elementary attempt at compliance with the law and its implementing rules; it fails as well to provide any justificatory ground showing that the integrity of the evidence had all along been preserved.[31] Failing to prove entitlement to the application of the proviso, the arresting officers' noncompliance with the procedure laid down by R.A No. 9156 is not excused. This inexcusable noncompliance effectively invalidates their seizure of and custody over the seized drugs, thus, compromising the identity and integrity of the same. We resolve the doubt in the integrity and identity of the corpus delicti in favor of appellant[32] as every fact necessary to constitute the crime must be established by proof beyond reasonable doubt.[33] Considering that the prosecution

failed to present the required quantum of evidence, appellant's acquittal is in order. It is well to recall that in several cases that came before us, we have repeatedly emphasized the importance of compliance with the prescribed procedure in the custody and disposition of the seized drugs. We have over and over declared that the deviation from the standard procedure dismally compromises the integrity of the evidence.[34] Anent the argument that the buy-bust operation was conducted without the assistance or consent of PDEA, in violation of Section 86 of R.A. No. 9165, it must be pointed out that the second paragraph of the same provision states that the transfer, absorption and integration of the different offices into PDEA shall take effect within eighteen (18) months from the effectivity of the law which was on 4 July 2002.[35] In view of the fact that the buy-bust operation was conducted on 12 September 2002, it is excusable that the same was not done in coordination with PDEA. All told, the totality of the evidence presented in the instant case does not support appellant's conviction for violation of Section 5, Article II, R.A. No. 9165, since the prosecution failed to prove beyond reasonable doubt all the elements of the offense. Following the constitutional mandate, when the guilt of the appellant has not been proven with moral certainty, as in this case, the presumption of innocence prevails and his exoneration should be granted as a matter of right. WHEREFORE, the Decision dated 14 June 2004 of the Regional Trial Court of Mandaluyong City, Branch 211 in Criminal Case No. MC02-5912-D is REVERSED and SET ASIDE. Appellant RANILO DELA CRUZ y LIZING is ACQUITTED of the crime charged on the ground of reasonable doubt and ordered immediately RELEASED from custody, unless he is being held for some other lawful case. The Director of the Bureau of Corrections is ORDERED to implement this Decision forthwith and to INFORM this Court, within five (5) days from receipt hereof, of the date appellant was actually released from confinement. Costs SO ORDERED. de oficio.

PEOPLE OF SANCHEZ DECISION BRION, J.:

THE

PHILIPPINES, PLAINTIFF-APPELLEE, VS. SALVADOR Y ESPIRITU, ACCUSED-APPELLANT.

This case confronts us once more with the buy-bust of a prohibited drug and the procedural difficulties this type of operation poses for the police as well as for the prosecution.

On appeal is the September 11, 2006 Decision[1] of the Court of Appeals (CA) in CA-G.R. CRH.C. No. 01095. The CA affirmed the April 14, 2005 Decision[2] of the Regional Trial Court (RTC), Branch 103, Quezon City, that found the accused-appellant Salvador Sanchez y Espiritu (appellant) guilty beyond reasonable doubt of violation of Section 5, Article II of Republic Act (R.A.) No. 9165 (the Comprehensive Dangerous Drugs Act of 2002), meriting him the penalty of life imprisonment. ANTECEDENT FACTS The prosecution charged the appellant before the RTC with violation of Section 5, Article II of R.A. No. 9165 under an Information that states: x x x That on or about the 6th day of April 2003 in Quezon City, Philippines, the said accused, not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there, willfully and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, zero point zero two (0.02) grams of white crystalline substance containing methylamphetamine hydrochloride, a dangerous drug. CONTRARY TO LAW.[3] The appellant pleaded not guilty to the charge.[4] The prosecution presented its lone witness SPO2 Levi Sevilla (SPO2 Sevilla) - in the trial on the merits that followed. The appellant and his witness, Nida Detera (Nida), took the stand for the defense. The RTC summarized the material points of the testimony of SPO2 Sevilla as follows: x x x while he was on Station 3 duty at Talipapa, Novaliches, Quezon City on April 6, 2003 a confidential informant arrived at around 4:30 noon and reported that there is a person who has been selling shabu. An entrapment team was formed consisting of himself as poseur buyer, SPO1 Brigido An, PO3 Virgilio Bernardo, PO2 Manny Paulilis and PO1 Cecil Collado. A preoperational report was submitted of the undertaking. At 5:00 p.m., the team was dispatched to the target area - at the far end Lualhati Street, Manotok Subd., Baesa, Quezon City. PO Sevilla put his initial "LS" on the money given to him to be used at the entrapment.[5] At the place, which is a squatter's colony located at the edge or side of Lualhati St., PO Sevilla and his informant walked towards the place pointed by the informant and met the drug pusher. The informant introduced PO Sevilla to the pusher. The informant and the pusher talked for a while. Thereafter, PO Sevilla talked to the latter. He told him that he badly needs shabu para pumayat. x x x PO Sevilla then gave the pusher P100.00 (the marked money) and in return the pusher gave him a plastic sachet of shabu.[6] After receiving the plastic sachet, PO Sevilla scratched his head as a pre-arranged signal to his colleagues who were deployed nearby. Said other policemen rushed to the crime scene while PO Sevilla grabbed the right hand of the accused and introduced himself as a cop. The accused was frisked and PO Sevilla recovered the P100.00 marked money bill (Exh. G) in the right side pants pocket of the accused who was later brought to Station 3. PO Sevilla identified the transparent plastic sachet on which he placed his initial "LS" and the initial "SS" of the accused (Exh. E). [7]

On cross examination, PO Sevilla reiterated his testimony adding that whenever he is tasked as a poseur buyer he always gives as reason that he wanted to be thinner and drug pushers never questioned him about that. PO Sevilla, who was wearing a crew cut in court said that when he bought shabu from the accused his hair style was different. It was his first time to entrap at that place as a poseur buyer. Their marked Anfra van was parked along Quirino Highway, Quezon City from where he and the informant walked to Lualhati Street for about 10 minutes as the target scene was about 100 meters away. He reiterated that their Pre-op Report was sent to PDEA and given a control number.[8] [Italics and footnotes referring to the pertinent parts of the records supplied] The RTC dispensed with the testimony of Forensic Chemist John Paul Puentespina after the parties stipulated that "the items allegedly confiscated from the accused were submitted to the crime laboratory for examination and the findings were put into writing."[9] In the hearing of December 4, 2003, the prosecution offered the following as exhibits: Exhibit "A" - the request for laboratory examination of the specimen confiscated from the appellant; Exhibit "B" - the Initial Laboratory Report prepared by Forensic Chemist Paul Jerome Puentespina; Exhibit "C" - the Confirmatory or Final Chemistry Report No. D-366-03 prepared by Forensic Chemist Paul Jerome Puentespina; Exhibit "D" - sworn Certification to show that the Chemistry Report was subscribed and sworn to before an Administering Officer; Exhibits "E", "E-1" and "E-2" - the specimen taken from the appellant; the initials of Forensic Chemist Puentespina; and the initials of the police officer who arrested the accused and who received the specimen in exchange for the buy bust money, respectively; Exhibit "F" - the brown envelope where the seized evidence was placed after it was examined by Forensic Chemist Puentespina; Exhibits "G" and "G-1" - the buy bust money and the initials written therein of the poseur buyer, respectively; Exhibits "H" and "H-1" - the Joint Affidavit of the entrapment team and the signature therein by SPO2 Sevilla, respectively. The defense objected to Exhibits "E," "E-1," "E-2," "G" and "H," contending that the appellant "had nothing to do with the specimen presented before the court," and that the confiscated specimen resulted from an illegal arrest. On Exhibit "G," the defense argued that no evidence of powder was ever presented by the prosecution witness. The defense likewise objected to the presentation of Exhibit "H" on the ground that its contents were self-serving. The appellant gave a different version of the events in his testimony of January 30, 2005. He narrated that at around 5:25 in the afternoon of April 6, 2003, he was in his house putting his

children to sleep when three (3) police officers suddenly barged into his house, searched the premises, frisked him, and forced him to come with them.[10] He recognized one of the policemen as "Sir Levi," a former colleague of his uncle, Sonny Catiis, at the police station. The police officers then handcuffed him and asked him to get into a police vehicle. He begged them and shouted, "Sir you already frisked me in the house and you did not find anything, you might just plant evidence in my pocket, please do not do so." The police brought him to Police Station 3, Talipapa, Quezon City, and placed him in a detention cell without an investigation being conducted.[11] While inside his cell, the police showed him a plastic sachet and said that it was the shabu taken from him. SPO2 Sevilla asked him to call his uncle, but he refused to do so; he feared that his uncle would think that the confiscated shabu was really taken from him.[12] Nida testified that she was at the kitchen of the appellant's house doing the laundry between 2:00-3:00 in the afternoon of April 6, 2003, when she heard loud knocks on the door. The appellant, who was in bed, stood up and opened the door.[13] A person entered, pushed the appellant backwards, and handcuffed him. This person then ordered the appellant to sit down so he (the appellant) could be asked questions. A total of four persons, all male, entered the house. Afterwards, the appellant and she were frisked; a lighter was taken from her, but nothing was seized from the appellant.[14] The RTC primarily considered the reputation of SPO2 Sevilla in giving weight to his testimony, and held that "PO Sevilla has been a frequent witness in drugs cases and he has already established his credibility before this court." Its decision of April 14, 2005 found the appellant guilty beyond reasonable doubt of violation of Section 5, Article II of R.A. No. 9165. It imposed on him the penalty of life imprisonment and ordered him to pay a fine of P50,000.00. The appellant appealed to the CA, with the appeal docketed as CA-G.R. CR-H.C. No. 01095. In its decision of September 11, 2006, the CA affirmed the RTC decision. In his brief[15] on appeal, the appellant contends that the court a quo gravely erred in finding him guilty beyond reasonable doubt for violation of R.A. No. 9165. He maintains that the court's order of conviction was merely based on the good reputation SPO2 Sevilla has established with the court based on the many drug cases he had handled. The trial court, too, wrongly interpreted the appellant's appearance and demeanor because "his head was bowed and his eyes were dreamy and sad."[16] The defense harps, too, on the prosecution's failure to prove that the sachets allegedly recovered from the appellant were the ones submitted to the forensic chemist for examination, as well as its failure to follow the proper chain of custody in handling the seized evidence. It was only the arresting officer who testified that he confiscated the sachet from the accused. The police officer who conducted the subsequent investigation and to whom the confiscated sachet was allegedly turned over was not identified nor presented as witness. Hence the identity of the evidence presented against the appellant is doubtful.[17] The prosecution counters with the argument that the trial court's findings on the credibility of

SPO2 Sevilla and the lack of it with respect to the appellant and his witness Nida, should be given great weight and respect, as the trial court had the chance and the prerogative to hear and appreciate these matters at the trial. SPO2 Sevilla described in a clear and unwavering manner how the police team planned for and conducted the buy-bust operation, and how he marked the plastic sachet of shabu he bought from appellant immediately after the latter's arrest. Even the statement regarding the credibility of SPO2 Sevilla, a frequent witness before the trial court in drug cases, does not mean that the trial court was biased. If at all, it only meant that the trial court had known SPO2 Sevilla and had often observed his demeanor as a witness. The prosecution further argues that the evidence for the defense is incredible and doubtful judging from the testimonies of the appellant and his witness Nida. While the appellant testified that his alleged unlawful arrest transpired at 5:25 p.m. of April 6, 2003, his witness Nida testified with certainty that she witnessed the arrest take place on the same date between 2:00 p.m. and 3:00 p.m. as she saw the time on the wall clock. Moreover, the appellant himself admitted that he had no knowledge of any adverse reason or ill motive that would induce the arresting police officers to falsely implicate him. To the prosecution, this lack of ill motive supports the view that SPO2 Sevilla testified to the truth and his acts should enjoy the presumption of regularity. As to the corpus delicti, the prosecution stresses that it fully proved that the item recovered from the appellant is positive for shabu. The request for laboratory examination of the specimen confiscated from the appellant; the initial laboratory report showing that the item bought and/or seized from appellant is positive for shabu; and the final chemistry report were all formally offered in evidence, without any objection from the appellant. The defense, in fact, agreed to stipulate on the contents and the veracity of the forensic examinations made relative to the item recovered from the appellant. The corpus delicti having been proven and even admitted by the appellant, there was nothing more for the prosecution to establish; it had proven beyond reasonable doubt all the elements of the illegal sale of dangerous drugs, specifically - (a) the identity of the buyer and seller, the object and the consideration; and (b) the delivery of the things sold and the payment therefor. THE COURT'S RULING After due consideration, we resolve to acquit the appellant for the prosecution's failure to prove his guilt beyond reasonable doubt. Non-observance requirements paragraph of of of 1 Republic of Act Section Article No. the 21, II 9165

In considering a criminal case, it is critical to start with the law's own starting perspective on the status of the accused - in all criminal prosecutions, he is presumed innocent of the charge laid unless the contrary is proven beyond reasonable doubt.[18] Thus, while the charge was laid after a preliminary finding that a probable cause existed showing that a crime had been committed and the accused was probably guilty thereof, the criminal trial itself starts with the substantive presumption of the innocence on the part of the accused, rebuttable only by proof of his guilt beyond reasonable doubt. The burden of such proof rests with the prosecution which must rely

on the strength of its case rather than on the weakness of the case for the defense. Proof beyond reasonable doubt, or that quantum of proof sufficient to produce a moral certainty that would convince and satisfy the conscience of those who act in judgment, is indispensable to overcome the constitutional presumption of innocence.[19] To prove the legitimacy of the police buy-bust operation, the prosecution presented the following: (a) a pre-operation report bearing Unit Control Number 0504-03-07 signed by the desk officer, police chief and team leader of the station drug enforcement unit, which indicated the type, time and general area of operation, the type of vehicles and firearms to be used, and the respective names of the team leader, poseur-buyer and members of the buy-bust team; (b) a photocopy of the marked money; and (c) the joint affidavit of the entrapment team signed by the poseur-buyer, SPO2 Sevilla, and PO1 Collado. The operation yielded a plastic sachet containing shabu allegedly confiscated from the appellant. A buy-bust operation is a form of entrapment employed by peace officers to apprehend prohibited drug law violators in the act of committing a drug-related offense.[20] Because of the built-in danger for abuse that a buy-bust operation carries, it is governed by specific procedures on the seizure and custody of drugs, separately from the general law procedures geared to ensure that the rights of people under criminal investigation[21] and of the accused facing a criminal charge[22] are safeguarded. We expressed this concern in People v. Tan,[23] when we recognized that "by the very nature of anti-narcotic operations, the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in the pockets or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great. Thus, the courts have been exhorted to be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses." The required procedure on the seizure and custody of drugs is embodied in Section 21, paragraph 1, Article II of R.A. No. 9165, which states: 1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. [Emphasis ours] This is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of R.A. No. 9165, which reads: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: x x x Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Emphasis supplied]

The records of the present case are bereft of evidence showing that the buy-bust team followed the outlined procedure despite its mandatory terms, as indicated by the use of "shall" in its directives. The deficiency is patent from the following exchanges at the trial: FISCAL GIBSON ARAULA: Q: Now after you received that shabu or transparent plastic sachet containing shabu and gave the P100.00 bill to the accused, what happened next? SPO2 LEVI SEVILLA: A: After I received [sic] I scratched my head. Q: What is the purpose? A: Pre-arrange[d] signal. Q: After that what happened? A: They swooped down in the scene. Q: What happened after that? A: I grab [sic] his right hand. Q: When you grabbed his right hand what did you tell him? A: I introduced myself as Police Officer. Q: Then after that what happened next? A: I grabbed the accused and informed him of his constitutional right. Q: After informing of his constitutional right what happened Mr. Witness? A: We brought him to our station. Q: How about the transparent plastic sachet, where is it? A: It is in my possession. Q: How about the buy-bust money in the amount of P100.00? A: I recovered it from the right pants pocket. Q: Now you said that you brought the accused to the Police Station, what happened to the Police Station? A: We turn [sic] him over to the Desk Officer. Q: What did you turn over? A: The accused and the evidences, the plastic shabu sir. Q: Before you turn over that plastic sachet Mr. Witness, what did you put there? A: I put my initial and initial of the accused. Q: If that transparent plastic sachet is shown to you, can you identify that Mr. Witness? A: Yes, sir. Q: Showing to you this plastic sachet Mr. Witness, what can you say to that transparent plastic sachet? A: This was the one I purchased from the accused because I have here my initial and the initial of the accused, sir. x x x x[24] [Emphasis ours] Other than the markings that SPO2 Sevilla alleged, it is clear that no physical inventory and no photograph of the seized items were taken in the presence of the accused or his counsel, a representative from the media and the Department of Justice (DOJ), and an elective official. Based on the above testimony, SPO2 Sevilla - the prosecution's lone witness - also did not mark the plastic sachet of shabu immediately upon seizure; it was only marked upon arrival at the police station. Thus, other than the stipulation regarding the handling and results of the specimen at the forensic laboratory, SPO2 Sevilla's testimony and the evidence he identified constitute the totality of the evidence for the prosecution on the handling of the allegedly seized items.

We recognize that the strict compliance with the requirements of Section 21 of R.A. No. 9165 may not always be possible under field conditions; the police operates under varied conditions, many of them far from ideal, and cannot at all times attend to all the niceties of the procedures in the handling of confiscated evidence. The participation of a representative from the DOJ, the media or an elected official alone can be problematic. For this reason, the last sentence of the implementing rules provides that "non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items." Thus, non-compliance with the strict directive of Section 21 of R.A. No. 9165 is not necessarily fatal to the prosecution's case; police procedures in the handling of confiscated evidence may still have some lapses, as in the present case. These lapses, however, must be recognized and explained in terms of their justifiable grounds and the integrity and evidentiary value of the evidence seized must be shown to have been preserved. In the present case, the prosecution apparently did not want to accept that the police had committed lapses in the handling of the seized materials and thus did not bother to present any explanation to justify the non-observance of the prescribed procedures. It likewise failed to prove that the integrity and evidentiary value of the items adduced were not tainted as the discussions below will show. The non-observance by the police of the required procedure cannot therefore be excused. The confiscated "chain items of custody" was over not the proven

Under Section 5, Article II[25] of R.A. No. 9165, the elements necessary in every prosecution for the illegal sale of shabu are: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor. Implicit in all these is the need for proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti - the body of the crime whose core is the confiscated illicit drug.[26] Proof beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti: every fact necessary to constitute the crime must be established.[27] The chain of custody requirement performs this function in buy-bust operations as it ensures that doubts concerning the identity of the evidence are removed.[28] In a long line of cases, we have considered it fatal for the prosecution to fail to prove that the specimen submitted for laboratory examination was the same one allegedly seized from the accused.[29] Black's Law Dictionary explains chain of custody in this wise: In evidence, the one who offers real evidence, such as narcotics in a trial of drug case, must account for the custody of the evidence from the moment in which it reaches his custody until the moment in which it is offered in evidence, and such evidence goes to the weight not to admissibility of evidence. Com. V. White, 353 Mass. 409, 232 N.E.2d 335.

Likewise, Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002 [30] which implements R.A. No. 9165 defines "chain of custody" as follows: "Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition. Although this regulation took effect on October 18, 2002 (or after the commission of the crime charged), it is nonetheless useful in illustrating how the process of preserving the integrity of the chain of custody of the seized drugs is ensured and maintained. That the police failed to approximate these safeguards and the prosecution failed to prove the identity of the specimen allegedly seized and the specimen submitted as evidence during the trial is evident from SPO2 Sevilla himself who testified as follows: FISCAL GIBSON ARAULA: Q: After informing [the accused] of his constitutional right what happened Mr. Witness? SPO2 LEVI SEVILLA A: We brought him to our station. Q: How about the transparent plastic sachet, where is it? A: It is in my possession. Q: How about the buy-bust money in the amount of P100.00? A: I recovered it from the right pants pocket. Q: Now you said that you brought the accused to the Police Station, what happened to the Police Station? A: We turn him over to the Desk Officer. Q: What did you turn over? A: The accused and the evidences, the plastic shabu sir. Q: Before you turn over that plastic sachet Mr. Witness, what did you put there? A: I put my initial and initial of the accused. xxxx Q: By the way Mr. Witness after you turned over to the investigator the plastic sachet, did you happen to know where the investigator brought the plastic sachet? A: I gave that plastic sachet first to the table of the Desk Officer and the Desk Officer gave it to the investigator. FISCAL GIBSON ARAULA: That would be all for the witness. x x x x[31] Significantly, this was the only testimony in the case that touched on the chain of custody of the seized evidence. It failed to disclose the identities of the desk officer and the investigator to whom the custody of the drugs was given, and how the latter handled these materials. No reference was ever made to the person who submitted the seized specimen to the PNP Crime Laboratory for examination. Likewise, no one testified on how the specimen was handled after the chemical analysis by the forensic chemist. While we are aware that the RTC's Order of August 6, 2003 dispensed with the testimony of the forensic chemist because of the stipulations of the parties, we view the stipulation to be confined to the handling of the specimen at the

forensic laboratory and to the analytical results obtained. The stipulation does not cover the manner the specimen was handled before it came to the possession of the forensic chemist and after it left his possession. To be sure, personnel within the police hierarchy (as SPO2 Sevilla's testimony casually mentions) must have handled the drugs but evidence of how this was done, i.e., how it was managed, stored, preserved, labeled and recorded from the time of its seizure, to its receipt by the forensic laboratory, up until it was presented in court and subsequently destroyed - is absent from the evidence adduced during the trial. To repeat an earlier observation, even the time and place of the initial marking of the alleged evidence are not at all certain as the testimony on this point varies. The recent case of Lopez v. People[32] is particularly instructive on how we expect the chain of custody or "movement" of the seized evidence to be maintained and why this must be shown by evidence: As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not really identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit's level of susceptibility to fungibility, alteration or tampering - without regard to whether the same is advertent or otherwise not - dictates the level of strictness in the application of the chain of custody rule. [Emphasis ours] That the prosecution offered in evidence the request for laboratory examination (Exh. "A"), the initial laboratory report (Exh. "B"), and final Chemistry Report No. D-366-03 (Exh. "C"), to which the defense did not object, has no bearing on the question of whether the specimen submitted for chemical analysis and subsequently presented in court was the same as that seized from the appellant. All that these exhibits proved were the existence and authenticity of the request for laboratory examination and the results of this examination, not the required chain of custody from the time of seizure of the evidence. Evidently, the prosecution has not proven beyond reasonable doubt the indispensable element of corpus delicti of the crime. In People v. Orteza,[33] the Court had the occasion to discuss the implications of the failure to comply with Section 21, paragraph 1, to wit: ... In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the

standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish the identity of the corpus delicti. The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug. More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecution's failure to indubitably show the identity of the shabu. [Emphasis supplied] We reached the same conclusion in People v. Nazareno[34] and People v. Santos,[35] where we again stressed the importance of complying with the prescribed procedure. Physical requirement vis-a-vis inventory under "marking" and of Section seized photograph 21 evidence

While the first sentence of Section 21(a) of the Implementing Rules and Regulations of R.A. No. 9165 states that "the apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same," the second sentence makes a distinction between warrantless seizures and seizures by virtue of a warrant, thus: (a) x x x Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Emphasis supplied] Thus, the venues of the physical inventory and photography of the seized items differ and depend on whether the seizure was made by virtue of a search warrant or through a warrantless seizure such as a buy-bust operation. In seizures covered by search warrants, the physical inventory and photograph must be conducted in the place where the search warrant was served. On the other hand, in case of warrantless seizures such as a buy- bust operation, the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable; however, nothing prevents the apprehending officer/team from immediately conducting the physical inventory and photography of the items at the place where they were seized, as it is more in keeping with the law's intent of preserving their integrity and evidentiary value. What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the

matter of "marking" of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. Consistency with the "chain of custody" rule requires that the "marking" of the seized items - to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation. This step initiates the process of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from harassment suits based on planting of evidence under Section 29[36] and on allegations of robbery or theft.[37] For greater specificity, "marking" means the placing by the apprehending officer or the poseurbuyer of his/her initials and signature on the item/s seized. If the physical inventory and photograph are made at the nearest police station or office as allowed by the rules,[38] the inventory and photography of the seized items must be made in accordance with Sec. 2 of Board Resolution No. 1, Series of 2002,[39] but in every case, the apprehended violator or counsel must be present. Again, this is in keeping with the desired level of integrity that the handling process requires. Thereafter, the seized items shall be placed in an envelope or an evidence bag unless the type and quantity of the seized items require a different type of handling and/or container. The evidence bag or container shall accordingly be signed by the handling officer and turned over to the next officer in the chain of custody. Conclusion The evidentiary gap in identifying the specimen that the forensic laboratory analyzed brings us back to where we started in analyzing the case - to the presumption of innocence that the Constitution accords the appellant. To reiterate, starting from this point, the prosecution must proceed to establish the guilt of the accused by proof beyond reasonable doubt. To do this, the prosecution presented its lone witness, SPO2 Sevilla, whom the lower court believed because the witness had testified before the court before. Thus, rather than look at the merits of his testimony, the lower court simply considered his person and past performance, and decided on this basis that he was a credible witness. This, by itself, is a major error - a violation of due process - on the part of the lower court that the appellate court apparently did not fully appreciate. A court must always decide on the basis of the evidence presented, not on the basis of any other extraneous consideration not before the court. The court apparently banked also on the presumption of regularity in the performance that a police officer like SPO2 Sevilla enjoys in the absence of any taint of irregularity and of ill motive that would induce him to falsify his testimony. Admittedly, the defense did not adduce any evidence showing that SPO2 Sevilla had any motive to falsify. The regularity of the performance of his duties, however, leaves much to be desired given the lapses in his handling of the allegedly confiscated drugs as heretofore shown. An effect of this lapse, as we held in Lopez v. People,[40] is to negate the presumption that official duties have been regularly performed by the police officers. Any taint of irregularity affects the whole performance and should make the presumption unavailable. There can be no ifs and buts regarding this consequence considering the effect of the evidentiary presumption of regularity on

the

constitutional

presumption

of

innocence.

People v. Santos[41] instructively tells us that the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt.[42] In People v. Caete,[43] we also said: While the Court is mindful that the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent and it cannot, by itself constitute proof of guilt beyond reasonable doubt. The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellant's conviction because "First, the presumption is precisely just that - a mere presumption. Once challenged by evidence, as in this case, xxx [it] cannot be regarded as binding truth. Second, the presumption of regularity in the performance of official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt." The presumption also cannot prevail over positive averments concerning violations of the constitutional rights of the accused. In short, the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt. Without the presumption of regularity, the evidentiary gap in identifying the seized evidence from its turnover by the poseur-buyer, its handling and custody, until its turnover to the forensic laboratory for analysis, stands out in bold relief. This gap renders the case for the prosecution less than complete in terms of proving the guilt of the accused beyond reasonable doubt. From the perspective of the defense, we cannot help but note that the evidence for the defense is far from strong; the appellant merely denied that a buy-bust operation took place and claimed that the evidence against him was a planted evidence. In this jurisdiction, the defense of denial or frame-up, like alibi, has been viewed with disfavor for it can easily be concocted and is a common defense ploy in most prosecutions for violation of the Dangerous Drugs Act. [44] Likewise, the testimony of the other defense witness, Nida, fails to fully corroborate the appellant's testimony due to inconsistencies in their respective statements. These weaknesses, however, do not add any strength nor can they help the prosecution's cause. If the prosecution cannot establish, in the first place, the appellant's guilt beyond reasonable doubt, the need for the defense to adduce evidence in its behalf in fact never arises. Thus, however weak the defense evidence might be, the prosecution's whole case still falls. To hark back to the well-entrenched dictum in criminal and constitution law: the evidence for the prosecution must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense. Thus, we return to the conclusion that we should acquit the accused for failure of the prosecution - due the gap-induced weaknesses of its case - to prove the appellant's guilt beyond reasonable doubt. WHEREFORE, in light of all the foregoing, the September 11, 2006 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01095 affirming the judgment of conviction of the Regional Trial Court, Branch 103, Quezon City is hereby REVERSED and SET ASIDE. Appellant Salvador Sanchez y Espiritu is ACQUITTED on reasonable doubt and is ordered immediately RELEASED from detention, unless he is confined for any other lawful cause. The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decision and to report to this Court the action taken hereon within five (5) days from receipt.

SO ORDERED.

G.R. No. 173480

February 25, 2009 PHILIPPINES, Plaintiff-Appellee,

PEOPLE OF THE vs. RUIZ GARCIA y RUIZ, Accused-Appellant. DECISION BRION, J.:

We review in this Decision the conviction of accused-appellant Ruiz Garcia y Ruiz (Ruiz) by the Court of Appeals (CA) in its Decision of May 10, 20061 for violation of Section 5, Article II of Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs Act of 2002. The assailed CA decision fully affirmed the decision of the Regional Trial Court (RTC),2 Branch 72, Malabon City. Ruiz was formally charged and pleaded "not guilty" under an Information that reads: That on or about the 27th day of February 2003, in the Municipality of Navotas, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being a private person, and without authority of law, did then and there, willfully, unlawfully, and feloniously sell and deliver for consideration in the amount of P200.00 to poseur-buyer one (1) piece of printed paper with markings RGR-1 containing the following: one (1) small brick of dried suspected Marijuana fruiting tops with a net weight 11.02 gram[s] and Thirteen (13) small white paper[s] with markings RGR-RPI through RGR-RP13, respectively, which substance, when subjected to chemistry examination gave positive result for Marijuana, a dangerous drug.3 In the pre-trial conference that followed, his counsel admitted the following: (1) the identity of Ruiz as the accused in the case; (2) the jurisdiction of the RTC; and (3) Ruiz lack of authority to possess or sell shabu. 4 The defense counsel also manifested that admissions could be made in the course of the trial concerning the manner and nature of the testimony of the forensic chemist.5lawphil.net The prosecution presented a single witness, PO1 Samuel Garcia (PO1 Garcia), who, as poseurbuyer, testified that Ruiz arrest was made pursuant to a legitimate buy-bust operation where Ruiz sold him marijuana. The parties dispensed with the testimony of the forensic chemist, Jesse Abadilla Dela Rosa, after they entered into stipulations concerning the manner and nature of his testimony.6 The prosecution also submitted the following evidence:

Exhibit "A" Exhibit "B"

- INFOREP dated February 7, 2003 written by Police Senior Superintendent Oscar F. Valenzuela; - the Dispatch Order dated February 27, 2003;

Exhibit "C-1" - the photocopy of the recovered marked money; and "C-2" Exhibit "D" Exhibit "E" Exhibit "F" Exhibit "H" - the Pre-Operation Report dated February 27, 2003 prepared by PO2 Geoffrey Huertas; - the Sinumpaang Salaysay of PO1Samuel Sonny Garcia; - the corpus delicti; - the Request for Laboratory Examination dated February 28, 2003 submitted by Ferdinand Lavadia Balgoa, Police Inspector Chief SDEU and; - the Physical Sciences Report No. D-250-03 prepared by forensic chemist Jesse Abadilla Dela Rosa.

Exhibit "G"

The defense relied solely on the testimony of Ruiz who claimed he was the victim of a police frame-up and extortion. The RTC summarized the prosecutions version of events as follows: On February 27, 2003, at around 2:45 p.m., PO1 Samuel Garcia was with a confidential informer and two other policemen at the back of San Roque Church, Navotas, Metro Manila, waiting for the accused with whom the confidential informer arranged for him (Garcia) to buy marijuana. There were prior Informations [sic] from Camp Crame and the NPDO about the selling of marijuana xxx For this reason, Garcia got in touch with the confidential informer whom [sic] he learned could buy marijuana from the accused. It did not take long after the arrival of Garcia and the others at the area of operation for the accused to arrive on board a red scooter. Garcia told the accused that he will buy P200.00 worth of marijuana, as agreed upon between the confidential informer and the accused. The accused in turn gave Garcia the marijuana wrapped in a yellow page of the PLDT directory. Garcia verified the contents thereof and thereafter gave the P200.00, consisting of two P100.00 bills earlier given for him to use as buy-bust money xxx whose serial numbers were listed in the dispatch order xxx Garcia then gave the signal to his companions for them to approach. He also arrested the accused whom he told of his rights and brought him to a lying-in clinic and then to the police headquarters. According to PO1 Garcia, after the arrest, they brought Ruiz to the DEU7 office for investigation. He (PO1 Garcia) turned over the seized items to the investigator, who then placed markings on the wrapper.8 The seized items were thereafter sent to the PNP Crime Laboratory for examination; they tested positive for marijuana.9

The version of the defense, as summarized by the RTC, is as follows: Accused Ruiz Garcia y Ruiz, on the other hand, maintained that he was riding on a hopper on his way [home] to his wife at Daang Hari, Navotas, Metro Manila, when he saw a jeep with policemen on board. A policeman named Balais stopped the accused and asked for the papers of the hopper which he, at the same time, searched with nothing illegal found inside its compartment [sic]. The accused then heard someone remarked "ito pala si Ruiz," and he was told to go along with the policemen, who initially brought him to the lying-in clinic, and then to the police headquarters where he was asked to make "tubos" or to "ransom" the hopper; Garcia [Ruiz] was not able to do so because he cannot afford what the policemen were demanding. As a consequence, he was detained and charged in this case which he protested, as nothing was confiscated from him. Ruiz claimed that the case was a trumped-up charge made by the police to extort money from him.10 In making this claim, he admitted that he did not know PO1 Garcia and that he saw him for the first when he was arrested.11 He insisted that he knew a certain Balais who arrested suspected pushers/users in their place.12 The prosecution and the defense thereafter entered into stipulations on the substance of the rebuttal and sur-rebuttal testimonies of PO1 Garcia and Ruiz, which were mainly reiterations of their earlier testimonies.13 In its Decision of July 27, 2004, the RTC found Ruiz guilty beyond reasonable doubt of the crime charged, and sentenced him to life imprisonment and to pay a fine of P500,000.00 and costs.14 The CA, on appeal, fully affirmed the RTCs decision.15 In the present appeal before us, Ruiz faults the CA for believing the testimony of the lone prosecution witness, and for convicting him despite the insufficiency of supporting evidence. He observes that: (a) PO1 Garcias motive was to impress his superiors who had issued a special order against him; (b) the police officers arrested him to extort money by asking him to ransom his scooter which the police had confiscated; (c) no prior surveillance was conducted before he was arrested; (d) the informant was not presented in court; (e) his arrest was illegal because it was made without a warrant; and (f) there was no compliance with Section 21, R.A. No. 9165 or the chain of custody rule on seized drugs.16 The People, through the Office of the Solicitor General, maintains that the lower courts correctly found Ruiz guilty of the crime charged.17 As established through the testimony of PO1 Garcia, his arrest was effected through a legitimate buy-bust operation that was regularly conducted, properly documented, and coordinated with the PDEA.18 The Office of the Solicitor General also argued that Ruiz failed to present sufficient evidence to substantiate his claim of frame-up; his (Ruiz) evidence also failed to overcome the presumption of regularity in the performance of official duties by the public officers in the case.19 THE COURTS RULING

After due consideration, we resolve to ACQUIT Ruiz, as the prosecutions evidence failed to prove his guilt beyond reasonable doubt. Specifically, the prosecution failed to show that the police complied with paragraph 1, Section 21, Article II of R.A. No. 9165, and with the chain of evidence requirement of this Act. Every criminal case starts with the constitutionally-protected presumption of innocence in favor of the accused that can only be defeated by proof beyond reasonable doubt. The prosecution starts the trial process by presenting evidence showing the presence of all the elements of the offense charged. If the prosecution proves all the required elements, the burden of evidence shifts to the accused to disprove the prosecutions case. Based on these presentations, the court must then determine if the guilt of the accused has been proven beyond reasonable doubt. It may happen though that the prosecution, even before the presentation by the defense, already has failed to prove all the elements of the crime charged, in which case, the presumption of innocence prevails; the burden of evidence does not shift to the accused, who no longer needs to present evidence in his defense. In a prosecution for the illegal sale of a prohibited drug, the prosecution must prove the following elements: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor. All these require evidence that the sale transaction transpired, coupled with the presentation in court of the corpus delicti, i.e., the body or substance of the crime that establishes that a crime has actually been committed,20 as shown by presenting the object of the illegal transaction. In the present case, the object is marijuana which the prosecution must present and prove in court to be the same item seized from the accused. It is in this respect that the prosecution failed. The requirements of Article II of R.A. No. 9165. of paragraph 1, Section 21

A buy-bust operation gave rise to the present case. While this kind of operation has been proven to be an effective way to flush out illegal transactions that are otherwise conducted covertly and in secrecy,21 a buy-bust operation has a significant downside that has not escaped the attention of the framers of the law. It is susceptible to police abuse, the most notorious of which is its use as a tool for extortion. In People v. Tan,22 this Court itself recognized that "by the very nature of antinarcotics operations, the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in pockets of or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great. Thus, courts have been exhorted to be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses." Accordingly, specific procedures relating to the seizure and custody of drugs have been laid down in the law (R.A. No. 9165) for the police to strictly follow. The prosecution must adduce evidence that these procedures have been followed in proving the elements of the defined offense. The first procedural safeguard that the police failed to observe (and which both the RTC and the CA failed to take into account) is that provided under paragraph 1, Section 21, Article II of R.A. No. 9165. This provision states:

1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. [Emphasis supplied.] The Implementing Rules and Regulations of R.A. No. 9165 further elaborate on the legal requirement by providing, under its Section 21(a), that: (a) The apprehending office/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items.[Emphasis supplied.] The records utterly fail to show that the buy-bust team complied with these procedures despite their mandatory nature as indicated by the use of "shall" in the directives of the law and its implementing rules. The procedural lapse is plainly evident from the testimony of PO1 Garcia. Testifying on the handling of the seized marijuana, he stated that: Q: After he handed to you the one pack and then you handed to him the P200.00, what happened next? A: After verifying the contents and after convincing myself that the same is marijuana, I handed to him the money and raised my hand as a pre-arrange[d] signal. xxx xxx xxx Q: After you had arrested the person of the accused, what happened next? A: We brought him for medical examination and [thereafter] brought him to our office. xxx xxx xxx Q: So what happened to the pack of marijuana that you were able to buy from the accused? A: I turned it over to our investigator and then he placed markings on the wrapper. xxx xxx xxx

Q: I am handing to you now the improvise [sic] wrapper. Is this the marking that you placed? A: Yes, sir, RP-1. xxx xxx xxx Q: What happened after you have seized the item from the accused or after you have recovered this and placing [sic] markings? A: It was sent to the PNP Crime Laboratory for laboratory examination.23 Thus, other than the markings made by PO1 Garcia and the police investigator (whose identity was not disclosed), no physical inventory was ever made, and no photograph of the seized items was taken under the circumstances required by R.A. No. 9165 and its implementing rules. We observe that while there was testimony with respect to the marking of the seized items at the police station, no mention whatsoever was made on whether the marking had been done in the presence of Ruiz or his representatives.24 There was likewise no mention that any representative from the media and the Department of Justice, or any elected official had been present during this inventory, or that any of these people had been required to sign the copies of the inventory.25 In People v. Orteza,26 the Court, in discussing the implications of the failure to comply with Paragraph 1, Section 21, Article II of R.A. No. 9165, declared: In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish the identity of the corpus delicti. The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug. More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecution's failure to indubitably show the identity of the shabu. [Emphasis supplied.] We reached the same conclusion in People v. Nazareno27 and People v. Santos, Jr.,28 and recently, in the cases of People v. Dela Cruz29 and People v. De la Cruz30 where we again stressed the importance of complying with the prescribed procedure. We also held that strict compliance is justified under the rule that penal laws shall be construed strictly against the government, and liberally in favor of the accused.311awphi1.zw+

In addition, we also note that PO1 Garcia testified that he marked the confiscated items when he returned to the police station after the buy-bust operation. This admission additionally shows that the marking was not done immediately after seizure of the items, but only after a significant intervening time had lapsed, i.e., after the buy-bust team had taken Ruiz to a lying-in clinic for a medical examination,32 and from there, to the police headquarters. Significantly, Ruiz confirmed in his testimony that the buy-bust team first took him to the San Jose Lying-in Center, before proceeding to the police headquarters.33 In People v. Sanchez,34 we held that in case of warrantless seizure (such as a buy-bust operation) under R.A. No. 9165, the physical inventory and photograph of the items shall be made by the buy-bust team, if practicable, at the place they were seized, considering that such interpretation is more in keeping with the laws intent of preserving the integrity and evidentiary value of the seized drugs.35 The prosecution, in the present case, failed to explain why the required inventory and photographing of the seized items were not practicable and could not have been done at the place of seizure. We further note, on the matter of identifying the seized items, that the lower courts overlooked the glaring inconsistency between PO1 Garcias testimony vis--vis the entries in the Memorandum dated February 28, 2003 (the request for laboratory examination of the seized items)36 and Physical Science Report No. D-250-03 dated February 28, 2003 issued by the PNP Crime Laboratory with respect to the marking on the seized items.37 PO1 Garcia testified that he had marked the seized item (on the wrapper) with the initial "RP1."38 However, an examination of the two documents showed a different marking: on one hand, what was submitted to the PNP Crime Laboratory consisted of a single piece telephone directory paper containing suspected dried marijuana leaves fruiting tops with the marking "RGR-1" and thirteen pieces of rolling paper with the markings "RGR-RP1" to "RGR-RP13"; on the other hand, the PNP Crime Laboratory examined the following items with the corresponding markings: a printed paper with the marking "RGR-1" together with one small brick of dried suspected marijuana fruiting tops and thirteen pieces of small white paper with the markings "RGP-RP1" to "RGP-RP13." PO1 Garcias testimony is the only testimonial evidence on record relating to the handling and marking of the seized items since the testimony of the forensic chemist in the case had been dispensed with by agreement between the prosecution and the defense. Unfortunately, PO1 Garcia was not asked to explain the discrepancy in the markings. Neither can the stipulated testimony of the forensic chemist now shed light on this point, as the records available to us do not disclose the exact details of the parties stipulations. To our mind, the procedural lapses in the handling and identification of the seized items, as well as the unexplained discrepancy in their markings, collectively raise doubts on whether the items presented in court were the exact same items that were taken from Ruiz when he was arrested. These constitute major lapses that, standing unexplained, are fatal to the prosecutions case.39 To be sure, Section 21(a), Article II of the IRR offers some flexibility in complying with the express requirements under paragraph 1, Section 21, Article II of R.A. No. 9165, i.e.,"non-

compliance with these requirements under justifiable grounds as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items." In Sanchez, we clarified that this saving clause applies only where the prosecution recognized the procedural lapses, and thereafter explained the cited justifiable grounds.40 We also stressed in Sanchez, that in such case, the prosecution must show that the integrity and evidentiary value of the evidence seized have been preserved.41 These conditions were not met in the present case, as the prosecution, in the first place, did not even recognize the procedural lapses the police committed in handling the seized items. Had the prosecution done so, it would not have glossed over the deficiencies and would have, at the very least, submitted an explanation and proof showing that the integrity and evidentiary value of the seized items have been preserved. The chain of custody requirement In Lopez v. People,42 we explained the importance of establishing the chain of custody of the confiscated drugs, as follows: As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witnesses' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit's level of susceptibility to fungibility, alteration or tampering without regard to whether the same is advertent or otherwise not dictates the level of strictness in the application of the chain of custody rule. [Emphasis supplied.] The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court.43 It is important enough as a concern that Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 200244 (which implements R.A. No. 9165) specifically defines chain of custody.

b. "Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and used in court as evidence, and the final disposition; In the present case, while PO1 Garcia duly testified on the identity of the buyer and seller, on the consideration that supported the transaction, and on the manner the sale took place,45 the prosecutions evidence failed to establish the chain that would have shown that the marijuana presented in court was the very item seized from Ruiz at the time of his arrest. (a) The first crucial link in the chain of custody The first crucial link was from the time the marijuana was seized by PO1 Garcia to its delivery to the police investigator at the police headquarters. Only PO1 Garcia testified to this link. From his own testimony, he did not mark the seized marijuana after it was handed to him by Ruiz; he only marked it at the police station when he turned it over to the investigator. In the interim, he and the rest of the buy-bust team had taken Ruiz to a lying-in clinic for medical examination. The evidence does not show who was in possession of the marijuana during the ride from the crime scene to the lying-in center, and from the lying-in center to the police station. (b) The second link in the chain of custody The second link in the chain of custody of the seized marijuana is from PO1 Garcia to the police investigator. The identity of this police investigator to whom the custody of the seized marijuana was turned over was not disclosed. Although a reading of the Memorandum dated February 28, 2003 shows that a certain Ferdinand Lavadia Balgoa, as Police Inspector Chief SDEU, prepared the request for the laboratory examination of the seized marijuana to the PNP Crime Laboratory, this piece of evidence does not establish the latters identity as the police inspector to whom PO1 Garcia turned over the marijuana, and who subsequently made the corresponding markings on the seized items. (c) The subsequent links in the chain of custody The evidence on record relating to the subsequent links in the chain of custody from the police inspector to the PNP Crime Laboratory did not identify the person who submitted the seized marijuana to the PNP Crime Laboratory for examination. Whether it was the Police Inspector Chief SDEU is not clear from the evidence that only shows that he signed the request for the laboratory examination of the seized marijuana to the PNP Crime Laboratory. At the same time, the identity of the person who had the custody and safekeeping of the seized marijuana, after it was chemically analyzed pending its presentation in court, was also not disclosed.

In this regard, Sections 346 and 647 (paragraph 8) of Dangerous Drugs Board Regulation No. 2, Series of 200348 require laboratory personnel to document the chain of custody each time a specimen is handled or transferred until the specimen is disposed. The board regulation also requires the identification of the individuals participating in the chain. The available records in the case fail to show compliance with this regulation. Given the procedural lapses pointed out above, serious uncertainty hangs over the identification of the seized marijuana that the prosecution introduced into evidence. In effect, the prosecution failed to fully prove the elements of the crime charged, creating a reasonable doubt on the criminal liability of the accused. As we pointed out in the opening statement of our Ruling, this brings the case to a situation where the defense does not even need to present evidence as it has no viable case to meet. We need not therefore discuss the specific defenses raised. Nor do we need to discuss the lower courts misplaced reliance on the presumption of regularity in the performance of official duties, except to state that the presumption only arises in the absence of contrary details in the case that raise doubt on the regularity in the performance of official duties. Where, as in the present case, the police officers failed to comply with the standard procedures prescribed by law, there is no occasion to apply the presumption.49 We close with the thought that this Court is not unaware that in the five years that R.A. No. 9165 has been in place, the rate of cases that resulted in acquittals and dismissals was higher than the rate of conviction.50 Under PDEA records, the dismissals and acquittals accounted for 56% because of the failure of the police authorities to observe proper procedure under the law, among others.51 A recent international study conducted in 2008 showed that out of 13,667 drug cases filed from 2003 to 2007, only 4,790 led to convictions (most of which were cases of simple possession); the charges against the rest were dismissed or the accused were acquitted.52 The present case is now an added statistic reflecting our dismal police and prosecution records. Without casting blame, we call the attention of the authorities to exert greater efforts in combating the drug menace using the safeguards that our lawmakers have deemed necessary for the greater benefit of our society. We cannot afford to fail either in combating the drug menace or in protecting the individual rights and liberties we have enshrined in our Constitution. Either way, the consequences of continued failure are hard to imagine. WHEREFORE, premises considered, the Decision dated May 10, 2006 of the Court of Appeals in CA-G.R. CR.-H.C. No. 00954 is REVERSED and SET ASIDE. Accused-appellant Ruiz Garcia y Ruiz is hereby ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered immediately RELEASED from detention, unless he is confined for any other lawful cause. Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City for immediate implementation. The Director of the Bureau of Corrections is directed to report to this Court within five days from receipt of this Decision the action he has taken. Copies shall also be furnished the Director General, Philippine National Police, and the Director General, Philippine Drugs Enforcement Agency, for their information.

The Regional Trial Court is directed to turn over the seized marijuana to the Dangerous Drugs Board for destruction in accordance with law. SO ORDERED. G.R. No. 173804 December 10, 2008 Y BURAC, appellant,

ELPIDIO BONDAD, JR., vs. PEOPLE OF THE PHILIPPINES, appellee. DECISION CARPIO MORALES, J.:

Elpidio Bondad, Jr., y Burac (appellant) was charged before the Regional Trial Court (RTC) of Marikina City1 for violation of Section 5, paragraph 2(3), Article II of Republic Act No. 9165 (R.A. No. 9165) or the Comprehensive Dangerous Drugs Act of 2002, allegedly committed as follows:2 That on or about the 29th day of January 2004, in the City of Marikina, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully, feloniously and knowingly sell to poseur buyer 0.02 gram of Methamphetamine Hydrochloride (shabu) contained in one (1) heat-sealed transparent plastic sachet, a dangerous drug, in violation of the abovecited law.3 (Underscoring supplied) He was likewise charged for violation of Section 11, par. 2(3), Article II also of R.A. No. 9165, allegedly committed as follows: That on or about the 29th day of January 2004, in the City of Marikina, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law to possess or otherwise use any dangerous drugs, did then and there willfully, unlawfully and feloniously have in his possession direct custody and control 0.04 gram of white crystalline substance contained in two (2) heat-sealed plastic sachets which gave positive result to the test for Methamphetamine Hydrochloride (shabu), which is a dangerous drug, in violation of the above-cited law.4 (Underscoring supplied) The cases were lodged at Branch 272 of the RTC of Marikina. From the evidence for the prosecution, particularly the testimony of its principal witness PO2 Edwin Dano and its documentary evidence, the following version is culled: At around 7:05 p.m. of January 29, 2004, while PO2 Ferdinand Brubio, PO1 Christopher Anos, and PO1 Roberto Muega were at the Station Anti Illegal Drug Special Operations Task Force (SAIDSOTF), Office of the Marikina City Police Station, PO2 Nelson Arribay arrived together

with a confidential informant. The confidential informant reported, among other things, about the rampant sale of shabu in a billiard hall along Bonifacio Avenue, Barangka, Marikina City and named a certain alias "Jun" as the vendor. The Chief of the SAIDSOTF, P/Sr. Insp. Ramchrisen Haveria, Jr., at once formed a buy-bust team composed of, among others, PO2 Ramiel Soriano and PO2 Dano who was designated as the poseur-buyer. PO2 Dano was given a one hundred peso bill bearing Serial No. Q487945 to be used as buy-bust money. It was agreed that PO2 Danos removal of his cap would signal that the buy-bust was consummated. The conduct of a buy-bust operation was recorded in the police blotter and was coordinated with the Philippine Drug Enforcement Agency (PDEA) which gave it control number NOC-01290428. The buy-bust team, together with the confidential informant, proceeded to 3 Cs billiard hall at the corner of M. Cruz St. and Bonifacio Avenue in Barangka, Marikina City. On entering the hall, the confidential informant pointed to appellant who was then holding a cue stick beside the billiard table as the alias "Jun." The confidential informant approached appellant and talked to him. Within minutes, appellant approached PO2 Dano and asked him if he wanted to buy shabu, to which PO2 Dano answered "piso lang." Appellant at once took out a "Vicks" container from his right front pocket5 which, when opened, yielded heat-sealed plastic sachets containing substances suspected to be shabu. From the container, appellant drew out one sachet in exchange for which PO2 Dano gave the marked one hundred peso bill. At that instant, PO2 Dano removed his cap. As the back-up police officers were closing-in, PO2 Dano grabbed appellants arm, identified himself, and apprised appellant of his constitutional rights. Upon PO2 Danos order, appellant returned the buy-bust money, handed the "Vicks" container, and gave his name as Elpidio Burac Bondad, Jr. Still at the place of arrest, PO2 Dano placed the markings "EBB-ED BUYBUST 01/29/04" on the substance-filled sachet sold to him, and "EBB-ED, POS 1 and 2, 01/29/04" on the sachets that remained inside the "Vicks" container. The buy-bust team thereupon brought appellant and the seized items to the Marikina City Police Station where a memorandum dated January 29, 20046 was prepared by P/Sr. Insp. Chief Haveria, Jr., addressed to the Chief of the Eastern Police District Crime Laboratory Office, requesting for the conduct of laboratory examination on the seized items to determine the presence of dangerous drugs and their weight. PO2 Dano also requested that appellant be subjected to a drug test.7 The following day or on January 30, 2004, at 3:00 P.M., upon receipt of three sachets, a laboratory examination was conducted thereon by Police Senior Inspector Annalee R. Forro, Forensic Chemical Officer of the Eastern Police District Crime Laboratory Office, who, in Physical Science Report No. D-0094-04E8, recorded, among other things, the specimen submitted, her findings and conclusion as follows:

SPECIMEN SUBMITTED: Three (3) heat-sealed transparent plastic sachets with markings marked as A through C respectively, each containing white crystalline substance with following recorded net weights and markings: A = 0.02 gram "EBB-ED BUYBUST 01/29/04" B = 0.02 gram "EBB-ED POSS 1 01/29/04" C = 0.02 gram "EBB-ED POSS 2 01/29/04" x-x-x x-x-x x-x-x F I N D I N G S: x x x Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the tests for Methamphetamine Hydrochloride, a dangerous drug. x-x-x x-x-x x-x-x C O N C L U S I O N: Specimens A through C contain Methamphetamine Hydrochloride, a dangerous drug. 9 (Italics and emphasis in the original) Denying the charges against him, appellant, a former police officer, claimed that he was framed up and gave the following version: On January 29, 2004, while he was playing inside 3 Cs billiard hall, PO2 Brubio, whom he knew was a policeman, entered the billiard hall. After greeting PO2 Brubio in Bicolano, he continued playing but PO2 Brubio suddenly handcuffed him and asked him "Sumama ka muna." Another person who was at his back pushed him out of the billiard hall in the course of which he felt PO2 Brubio reaching his (appellants) right front pocket,10 drawing him to restrain the hand of PO2 Brubio, telling him "pera ko yan!" Aware that his son was inside the billiard hall, appellant summoned and handed him his wallet containing P2,000. PO2 Brubio, however, took the wallet from his son, telling him "Huwag ka makialam dito." He was then made to board a car and taken to the Office of the SAIDSOTF at the police station. Appellants defense was corroborated by his son Christian Jeffrey C. Bondad, and Roberto U. Mata who was a "spotter" (referee) at the billiard hall at the time appellant was arrested.

Finding for the prosecution, the trial court convicted appellant in both charges, disposing as follows: WHEREFORE, foregoing premises considered, the Court finds the accused ELPIDIO BONDAD, JR. y BURAC guilty beyond reasonable doubt of the crime of Violation of Sec. 11 par. 2(3), Art. II of R.A. 9165 and is sentenced to suffer the penalty of imprisonment for a period of TWELVE (12) YEARS and ONE (1) DAY and to pay the fine of THREE HUNDRED THOUSAND PESOS (PhP300,000.00) as provided for in Sec. 11 par. 2(3), Art. II of RA 9165. The accused is likewise found guilty of the crime of Violation of Sec. 5 Art. II of RA 9165 and is sentenced to suffer the penalty of LIFE IMPRISONMENT and fine of FIVE HUNDRED THOUSAND PESOS (PhP500,00.00) pursuant to Sec. 5, Art. II of RA 9165 the methamphetamine hydrochloride (shabu) is ordered confiscated in favor of the government for proper destruction by the proper agency. SO ORDERED.11 (Underscoring supplied) By Decision of February 8, 2006,12 the Court of Appeals affirmed the trial courts decision with modification, disposing as follows: WHEREFORE, in the light of the foregoing, the appeal is DISMISSED for lack of merit. The assailed decision is AFFIRMED with the MODIFICATION that the accusedappellant is sentenced to suffer an indeterminate penalty of imprisonment of twelve (12) years and one (1) day, as minimum, to thirteen (13) years, as maximum and to pay a fine of Three Hundred Thousand Pesos (P300,000.00). SO ORDERED.13 (Underscoring supplied) Specifically with respect to the charge of possession of shabu, the appellate court held: The evidence for the prosecution fully proved beyond reasonable doubt the elements necessary to successfully prosecute a case for illegal possession of a prohibited drug, namely, (a) the accused is in possession of an item or an object identified to be a prohibited or a regulated drug, (b) such possession is not authorized by law and (c) the accused freely and consciously possessed said drug. Under Section 11, Par. 2 [3] of R.A. 9165, the mere act of possessing any dangerous drug consummates the crime. There is no doubt that the charge of illegal possession of shabu was proven beyond reasonable doubt since the accused-appellant knowingly possessed plastic sachets with white crystalline granules, without legal authority at the time he was caught during the buy-bust operation. The white crystalline granules found in his possession, upon laboratory examination, were positively identified as methamphetamine hydrochloride or shabu, a dangerous drug.14 (Italics in the original, underscoring supplied) Hence, the present Petition for Review on Certiorari, appellant faulting the appellate court:

I. . . . IN CONVICTING [HIM] OF THE CRIME[S] CHARGED ON THE BASIS OF THE LONE TESTIMONY OF THE POSEUR BUYER AS AGAINST THE CORROBORATED STATEMENTS OF THE ACCUSED AND HIS WITNESSES; II. . . . IN ADMITTING THE EVIDENCE OF THE PROSECUTION DESPITE CLEAR VIOLATION OF SECTION 21 (1) OF R.A. 9165; III. . . . IN COMPLETELY DISREGARDING THE CLEAR EVIDENCE ON THE EXISTENCE OF IRREGULARITY IN THE PERFORMANCE OF OFFICIAL FUNCTIONS BY POLICE OFFICER/S IN THE CONDUCT OF THE BUY BUST OPERATIONS.15 (Emphasis and underscoring supplied) As the resolution of the second assignment of error is determinative of whether there is still necessity of segueing to the first and third assignments of error, it shall early on be passed upon. Appellant claims that there was failure to follow the requirements of Sec. 21 of R.A. No. 9165, hence, it compromised the integrity and evidentiary value of the allegedly seized items. Sec. 21 of R.A. No 9165 provides: Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources or dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the persons/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; x x x (Emphasis and underscoring supplied) Appellant claims that no physical inventory and photographing of the drugs took place. A reading of the testimony of the poseur-buyer, PO2 Dano indeed confirms appellants claim, viz: Atty. Puentebella: When you brought him to the police, it was there that the items taken from him were inventoried, is it not? Witness:

We did not make inventory because we simply brought the evidence confiscated. xxxx Atty. Puentebella: You also did not take photographs of the items taken from the accused? Witness: Yes, sir. Atty. Puentebella: And you know for a fact that under the new drugs law, this is a requirement for the apprehending team to do, is it not? Pros. Gapuzan: Counsel is asking for a conclusion of law. I will object. Court: Witness may answer the question. Witness: Yes, sir. xxxx Atty. Puentebella: So it is very clear now Mr. Witness that at the time you apprehended the accused, you did not make an inventory in the presence of the accused nor you did not [sic] make a photograph of the items seized in the presence of the accused, an elective official, a representative from the Department of Justice, or the media, thats very clear? Witness: Yes, sir. Atty. Puentebella:

Since you did not make any inventory, it follows that you did not require them to sign your inventory as required by law? Witness: Yes, sir.16 (Emphasis and underscoring supplied) Clearly then, the apprehending police officers failed to comply with the above-quoted provision of Section 21 of R.A. No. 9165. People v. Pringas holds, however: Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. 17 (Citation omitted, emphasis, italics and underscoring supplied) The Courts pronouncement in Pringas is based on the provision of Section 21(a) of the Implementing Rules and Regulations18 of R.A. No. 9165, viz: x x x Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items; (Emphasis and underscoring supplied) In the present case, by PO2 Danos claim, he immediately marked the seized items which were brought to the Crime Laboratory for examination. By his admission, however, he did not conduct an inventory of the items seized. Worse, no photograph of the items was taken. There was thus failure to faithfully follow the requirements of the law. Parenthetically, unlike in Pringas, the defense in the present case questioned early on, during the cross examination of PO2 Dano, the failure of the apprehending officers to comply with the inventory and photographing requirements of Section 21 of R.A. No. 916519, despite PO2 Danos awareness of such requirements. And the defense raised it again during the offer of evidence by the prosecution, thus: Atty. Puentebella: xxxx

Exhibits "B" which is the brown envelope, "B-1", "B-2" and "B-3" are objected to for being product of irregular functions of police and therefore fruit of poisonous thinking [sic] and they are not admissible and they were not photographed in the presence of the accused as provided for by Sec. 21, par.1, R.A. 9165;20 (emphasis supplied) IN FINE, as the failure to comply with the aforesaid requirements of the law compromised the identity of the items seized, which is the corpus delicti of each of the crimes charged against appellant,21 his acquittal is in order. This leaves it unnecessary to still dwell on the first and third assignments of error. WHEREFORE, the Petition is GRANTED. The assailed decision is REVERSED and SET ASIDE and appellant, Elpidio Bondad Jr., y Burac, is ACQUITED of the crimes charged. Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City who is directed to cause the immediate release of appellant unless he is being lawfully held for another cause, and to inform this Court of action taken within ten (10) days from notice hereof. SO ORDERED. PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. NORBERTO DEL MONTE Y GAPAY @ OBET, ACCUSED-APPELLANT. DECISION CHICO-NAZARIO, J.: Assailed before Us is the Decision[1] of the Court of Appeals in CA-G.R. CR-H.C. No. 02070 dated 28 May 2007 which affirmed with modification the Decision[2] of the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 78, in Criminal Case No. 3437-M-02, finding accusedappellant Norberto del Monte, a.k.a. Obet, guilty of violation of Section 5,[3] Article II of Republic Act No. 9165, otherwise known as "Comprehensive Dangerous Drugs Act of 2002." On 11 December 2002, accused-appellant was charged with Violation of Section 5, Article II of Republic Act No. 9165, otherwise known as Comprehensive Dangerous Drugs Act of 2002. The accusatory portion of the information reads: That on or about the 10th day of December 2002, in the municipality of Baliuag, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law and legal justification, did then and there wilfully, unlawfully and feloniously sell, trade, deliver, give away, dispatch in transit and transport dangerous drug consisting of one (1) heat-sealed transparent plastic sachet of Methylamphetamine Hydrochloride weighing 0.290 gram.[4] The case was raffled to Branch 78 of the RTC of Malolos, Bulacan and docketed as Criminal Case No. 3437-M-02.

When arraigned on 20 January 2003, appellant, assisted by counsel de oficio, pleaded "Not Guilty" to the charge.[5] On 17 February 2003, the pre-trial conference was concluded.[6] Thereafter, trial on the merits ensued. The prosecution presented as its lone witness PO1 Gaudencio M. Tolentino, Jr., the poseur-buyer in the buy-bust operation conducted against appellant, and a member of the Philippine National Police (PNP) assigned with the Philippine Drug Enforcement Agency (PDEA) Regional Office 3/Special Enforcement Unit (SEU) stationed at the Field Office, Barangay Tarcan, Baliuag, Bulacan. The version of the prosecution is as follows:

On 10 December 2002, at around 3:00 o'clock in the afternoon, a confidential informant went to the office of the PDEA SEU in Barangay Tarcan, Baliuag, Bulacan and reported that appellant was selling shabu. Upon receipt of said information, a briefing on a buy-bust operation against appellant was conducted. The team was composed of SPO2 Hashim S. Maung, as team leader, PO1 Gaudencio Tolentino, Jr. as the poseur-buyer, and PO1 Antonio Barreras as back-up operative. After the briefing, the team, together with the confidential informant, proceeded to Poblacion Dike for the execution of the buy-bust operation. When the team arrived at appellant's place, they saw the appellant standing alone in front of the gate. The informant and PO1 Tolentino approached appellant. The informant introduced PO1 Tolentino to appellant as his friend, saying "Barkada ko, user." PO1 Tolentino gave appellant P300.00 consisting of three marked P100 bills.[7] The bills were marked with "GT JR," PO1 Tolentino's initials. Upon receiving the P300.00, appellant took out a plastic sachet from his pocket and handed it over to PO1 Tolentino. As a pre-arranged signal, PO1 Tolentino lit a cigarette signifying that the sale had been consummated. PO1 Barreras arrived, arrested appellant and recovered from the latter the marked money. The white crystalline substance[8] in the plastic sachet which was sold to PO1 Tolentino was forwarded to PNP Regional Crime Laboratory Office 3, Malolos, Bulacan, for laboratory examination to determine the presence of the any dangerous drug. The request for laboratory examination was signed by SPO2 Maung.[9] Per Chemistry Report No. D-728-2002,[10] the substance bought from appellant was positive for methamphetamine hydrochloride, a dangerous drug. The testimony of Nellson Cruz Sta. Maria, Forensic Chemical Officer who examined the substance bought from appellant, was dispensed after both prosecution and defense stipulated that the witness will merely testify on the fact that the drugs subject matter of this case was forwarded to their office for laboratory examination and that laboratory examination was indeed conducted and the result was positive for methamphetamine hydrochloride.[11] For the defense, the appellant took the witness stand, together with his common-law wife, Amelia Mendoza; and nephew, Alejandro Lim. From their collective testimonies, the defense version goes like this:

On 10 December 2002, appellant was sleeping in his sister's house in Poblacion Dike when a commotion woke him up. His nephew, Alejandro Lim, was shouting because the latter, together with appellant's common-law wife, Amelia Mendoza, and a niece, was being punched and kicked by several police officers. When appellant tried to pacify the policemen and ask them why they were beating up his common-law wife and other relatives, the policemen arrested him, mauled him, punched him on the chest, slapped him and hit him with a palo-palo. He sustained swollen face, lips and tooth. His common-law wife was likewise hit on the chest with the palopalo. The policemen then took appellant and his common-law wife to a house located in the middle of a field where the former demanded P15,000.00 for their liberty. The next day, appellant was brought to the police station. Amelia Mendoza identified PO1 Tolentino and PO1 Barreras as the police officers who manhandled them and who demanded P15,000.00 so that she and appellant could go home. The following day at 6:00 a.m., she said her child and cousin arrived with the P15,000.00. She was released but appellant was detained. She does not know why the police officers filed this case against appellant. What she knows is that they were asking money from them. Alejandro Lim merely corroborated the testimonies of appellant and Amelia Mendoza. On 8 March 2004, the trial court rendered its decision convicting appellant of Violation of Section 5, Article II of Republic Act No. 9165, and sentenced him to life imprisonment and to pay a fine of P5,000,000.00. The dispostive portion of the decision reads: WHEREFORE, the foregoing considered, this Court hereby finds accused Norberto del Monte y Gapay @ Obet GUILTY beyond reasonable doubt of the offense of Violation of Section 5, Art. II of R.A. 9165 and sentences him to suffer the penalty of LIFE IMPRISONMENT and a fine of P5,000,000.00. With cost. The drugs subject matter of this case is hereby ordered forfeited in favor of the government. The Branch of this Court is directed to turn over the same to the Dangerous Drugs Board within ten (10) days from receipt hereof for proper disposal thereof.[12] The trial court found the lone testimony of PO1 Gaudencio M. Tolentino, Jr. to be credible and straightforward. It established the fact that appellant was caught selling shabu during an entrapment operation conducted on 10 December 2002. Appellant was identified as the person from whom PO1 Tolentino bought P300.00 worth of shabu as confirmed by Chemistry Report No. D-728-2002. On the other hand, the trial court was not convinced by appellant's defense of frame-up and denial. Appellant failed to substantiate his claims that he was merely sleeping and was awakened by the screams of his relatives who were being mauled by the police officers. Appellant filed a Notice of Appeal on 10 March 2004.[13] With the filing thereof, the trial court directed the immediate transmittal of the entire records of the case to us.[14] However, pursuant to our ruling in People v. Mateo,[15] the case was remanded to the Court of Appeals for appropriate action and disposition.[16]

On 28 May 2007, the Court of Appeals affirmed the trial court's decision but reduced the fine imposed on appellant to P500,000.00. It disposed of the case as follows: WHEREFORE, the appeal is DISMISSED and the decision dated March 8, 2004 of the RTC, Branch 78, Malolos, Bulacan, in Criminal Case No. 3437-M-02, finding accused-appellant Norberto del Monte guilty beyond reasonable doubt of Violation of Section 5, Article II, Republic Act No. 9165, and sentencing him to suffer the penalty of life imprisonment is AFFIRMED with the MODIFICATION that the amount of fine imposed upon him is reduced from P5,000,000.00 to P500,000.00.[17] A Notice of Appeal having been timely filed by appellant, the Court of Appeals forwarded the records of the case to us for further review.[18] In our Resolution[19] dated 10 December 2007, the parties were notified that they may file their respective supplemental briefs, if they so desired, within 30 days from notice. Both appellant and appellee opted not to file a supplemental brief on the ground they had exhaustively argued all the relevant issues in their respective briefs and the filing of a supplemental brief would only contain a repetition of the arguments already discussed therein. Appellant makes a lone assignment of error: THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE OFFENSE CHARGED DESPITE THE INADMISSIBILITY OF THE EVIDENCE AGAINST HIM FOR FAILURE OF THE ARRESTING OFFICERS TO COMPLY WITH SECTION 21 OF R.A. 9165.[20] Appellant anchors his appeal on the arresting policemen's failure to strictly comply with Section 21 of Republic Act No. 9165. He claims that pictures of him together with the alleged confiscated shabu were not taken immediately upon his arrest as shown by the testimony of the lone prosecution witness. He adds that PO1 Tolentino and PO1 Antonio Barreras, the police officers who had initial custody of the drug allegedly seized and confiscated, did not conduct a physical inventory of the same in his presence as shown by their joint affidavit of arrest. Their failure to abide by said section casts doubt on both his arrest and the admissibility of the evidence adduced against him. At the outset, it must be stated that appellant raised the police officers' alleged non-compliance with Section 21[21] of Republic Act No. 9165 for the first time on appeal. This, he cannot do. It is too late in the day for him to do so. In People v. Sta. Maria[22] in which the very same issue was raised, we ruled: The law excuses non-compliance under justifiable grounds. However, whatever justifiable grounds may excuse the police officers involved in the buy-bust operation in this case from complying with Section 21 will remain unknown, because appellant did not question during trial the safekeeping of the items seized from him. Indeed, the police officers' alleged violations of Sections 21 and 86 of Republic Act No. 9165 were not raised before the trial court but were instead raised for the first time on appeal. In no instance did appellant least intimate at the trial court that there were lapses in the safekeeping of seized items that affected their integrity and evidentiary value. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection he cannot raise the question for the first time on appeal. (Emphases supplied.)

In People v. Pringas,[23] we explained that non-compliance with Section 21 will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items as the same would be utilized in the determination of the guilt or innocence of the accused. In the case at bar, appellant never questioned the custody and disposition of the drug that was taken from him. In fact, he stipulated that the drug subject matter of this case was forwarded to PNP Regional Crime Laboratory Office 3, Malolos, Bulacan for laboratory examination which examination gave positive result for methamphetamine hydrochloride, a dangerous drug. We thus find the integrity and the evidentiary value of the drug seized from appellant not to have been compromised. We would like to add that non-compliance with Section 21 of said law, particularly the making of the inventory and the photographing of the drugs confiscated and/or seized, will not render the drugs inadmissible in evidence. Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. For evidence to be inadmissible, there should be a law or rule which forbids its reception. If there is no such law or rule, the evidence must be admitted subject only to the evidentiary weight that will accorded it by the courts. One example is that provided in Section 31 of Rule 132 of the Rules of Court wherein a party producing a document as genuine which has been altered and appears to be altered after its execution, in a part material to the question in dispute, must account for the alteration. His failure to do so shall make the document inadmissible in evidence. This is clearly provided for in the rules. We do not find any provision or statement in said law or in any rule that will bring about the non-admissibility of the confiscated and/or seized drugs due to non-compliance with Section 21 of Republic Act No. 9165. The issue therefore, if there is non-compliance with said section, is not of admissibility, but of weight - evidentiary merit or probative value - to be given the evidence. The weight to be given by the courts on said evidence depends on the circumstances obtaining in each case. The elements necessary for the prosecution of illegal sale of drugs are (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor.[24] What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.[25] All these elements have been shown in the instant case. The prosecution clearly showed that the sale of the drugs actually happened and that the shabu subject of the sale was brought and identified in court. The poseur buyer positively identified appellant as the seller of the shabu. Per Chemistry Report No. D-728-2002 of Forensic Chemical Officer Nellson Cruz Sta. Maria, the substance, weighing 0.290 gram, which was bought by PO1 Tolentino from appellant in consideration of P300.00, was examined and found to be methamphetamine hydrochloride (shabu). In the case before us, we find the testimony of the poseur-buyer, together with the dangerous drug taken from appellant, more than sufficient to prove the crime charged. Considering that this

Court has access only to the cold and impersonal records of the proceedings, it generally relies upon the assessment of the trial court, which had the distinct advantage of observing the conduct and demeanor of the witnesses during trial. It is a fundamental rule that findings of the trial courts which are factual in nature and which involve credibility are accorded respect when no glaring errors, gross misapprehension of facts and speculative, arbitrary and unsupported conclusions can be gathered from such findings. The reason for this is that the trial court is in a better position to decide the credibility of witnesses having heard their testimonies and observed their deportment and manner of testifying during the trial.[26] The rule finds an even more stringent application where said findings are sustained by the Court of Appeals.[27] Finding no compelling reason to depart from the findings of both the trial court and the Court of Appeals, we affirm their findings. Appellant denies selling shabu to the poseur-buyer insisting that he was framed, the evidence against him being "planted," and that the police officers were exacting P15,000.00 from him. In the case at bar, the evidence clearly shows that appellant was the subject of a buy-bust operation. Having been caught in flagrante delicto, his identity as seller of the shabu can no longer be doubted. Against the positive testimonies of the prosecution witnesses, appellant's plain denial of the offenses charged, unsubstantiated by any credible and convincing evidence, must simply fail.[28] Frame-up, like alibi, is generally viewed with caution by this Court, because it is easy to contrive and difficult to disprove. Moreover, it is a common and standard line of defense in prosecutions of violations of the Dangerous Drugs Act.[29] For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption that government officials have performed their duties in a regular and proper manner.[30] This, appellant failed to do. The presumption remained unrebutted because the defense failed to present clear and convincing evidence that the police officers did not properly perform their duty or that they were inspired by an improper motive. The presentation of his common-law wife, Amelia Mendoza, and his nephew, Alejandro Lim, to support his claims fails to sway. We find both witnesses not to be credible. Their testimonies are suspect and cannot be given credence without clear and convincing evidence. Their claims, as well as that of appellant, that they were maltreated and suffered injuries remain unsubstantiated. As found by the trial court: The accused, on the other hand, in an effort to exculpate himself from liability raised the defense of frame-up. He alleged that at the time of the alleged buy bust he was merely sleeping at the house of his sister. That he was awakened by the yells and screams of his relatives as they were being mauled by the police officers. However, this Court is not convinced. Accused failed to substantiate these claims of maltreatment even in the face of his wife's and nephew's testimony. No evidence was presented to prove the same other than their self-serving claims.[31] Moreover, we agree with the observation of the Office of the Solicitor General that the witnesses for the defense cannot even agree on what time the arresting policemen allegedly arrived in their house. It explained: To elaborate, appellant testified that it was 3 o'clock in the afternoon of December 10, 2002 when he was roused from his sleep by the policemen who barged into the house of his sister (TSN, July 7, 2003, p. 2). His common-law wife, however, testified that it was 10-11 o'clock in

the morning when the policemen came to the house (TSN, Oct. 13, 2003, p. 6). On the other hand, Alejandro Lim testified that he went to sleep at 11 o'clock in the morning and it was 10 o'clock in the morning when the policemen arrived (TSN, Feb.2, 2004, p. 6). He thus tried to depict an absurd situation that the policemen arrived first before he went to sleep with appellant.[32] Having established beyond reasonable doubt all the elements constituting the illegal sale of drugs, we are constrained to uphold appellant's conviction. The sale of shabu is penalized under Section 5, Article II of Republic Act No. 9165. Said section reads: SEC. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. Under said law, the sale of any dangerous drug, regardless of its quantity and purity, is punishable by life imprisonment to death and a fine of P500,000.00 to P10,000,000.00. For selling 0.290 gram of shabu to PO1 Tolentino, and there being no modifying circumstance alleged in the information, the trial court, as sustained by the Court of Appeals, correctly imposed the penalty of life imprisonment in accordance with Article 63(2)[33] of the Revised Penal Code. As regards the fine to be imposed on appellant, the trial court pegged the fine at P5,000,000.00 which the Court of Appeals reduced to P500,000.00. Both amounts are within the range provided for by law but the amount imposed by the Court of Appeals, considering the quantity of the drugs involved, is more appropriate. WHEREFORE, premises considered, the instant appeal is DENIED. The Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02070 dated 28 May 2007, sustaining the conviction of appellant Norberto Del Monte, a.k.a. Obet, for violation of Section 5, Article II of Republic Act No. 9165, is hereby AFFIRMED. No costs. SO ORDERED.

STATE v. TATUM

58 Wn.2d 73 (1961)
360 P.2d 754
THE STATE OF WASHINGTON, Respondent, v. RALPH TATUM, Appellant.*

DONWORTH, J. Ralph Tatum (hereinafter called appellant) was convicted of the crime of first-degree forgery and was sentenced to life imprisonment as an habitual criminal. The essential facts of the case are summarized as follows: One William Tousin, of Pasco, received monthly welfare checks from the state of Washington. In February, 1960, Tousin did not receive his check (the checks were generally mailed to a rooming house in Pasco where Tousin resided.) The mail was normally left on a window ledge in the hallway of the rooming house. Appellant resided at the same place. Tousin's February check for $28.90 was endorsed and cashed at Sherman's Food Store in Pasco by someone other than the payee, Tousin. An employee of the store, Caroline Pentecost, testified that although she could not specifically recall the above-mentioned transaction, the initials appearing on the face of the check were hers. She also testified that whenever a check was presented to her for payment at the store, the store manager had instructed her to initial it and then insert it into a "Regiscope" machine. This machine is designed to simultaneously photograph, through two separate lenses, both the check and the person facing the machine. When it was discovered that the endorsement of the payee was a forgery, the Regiscope film of the transaction was sent to the Regiscope distributor in Portland to be developed. The processed film shows both the check and the person of appellant (from his waist up) with the food store in the background. Upon the trial, both the negative and the print therefrom were admitted in evidence, over appellant's objection. This appeal presents two questions for our consideration: (1) Were the Regiscope films (the negative and the print) authenticated sufficiently to warrant their admission into evidence? (2) Did Phillip Dale, the Regiscope distributor, qualify as an expert witness with respect to the filming process despite the fact that he was not a photographer by profession?
[ 58 Wn.2d 75 ]

[1] At the outset, with respect to the question of the admissibility of the Regiscope films, it should be noted that this court has for many years encouraged the admission and use of demonstrative evidence, including photographs. See Kelly v. Spokane, 83 Wn. 55, 145 Pac. 57 (1914); Norland v. Peterson, 169 Wn. 380, 13 P.2d 483 (1932); Cady v. Department of Labor & Industries, 23 Wn.2d 851, 162 P.2d 813 (1945). There is equally well-established precedent for the proposition that the admission or rejection of photographs as evidence lies within the sound discretion of the trial court. See Quayle v. Knox, 175 Wn. 182, 27 P.2d 115 (1933); State v. Hardamon, 29 Wn.2d 182, 186 P.2d 634 (1947); State v. Little,57 Wn.2d 516, 358 P.2d 120 (1961). We have also held that the trial court's discretion extends to the sufficiency of identification. See Kellerher v. Porter, 29 Wn.2d 650, 189 P.2d 223 (1948), and the cases cited therein.

[2] What quantum of authentication do courts require before a photograph may be admissible in evidence? It is simply this that some witness (not necessarily the photographer) be able to give some indication as to when, where, and under what circumstances the photograph was taken, and that the photograph accurately portray the subject or subjects illustrated. See 9 A.L.R. (2d) 899. The photograph need only be sufficiently accurate to be helpful to the court and the jury. See Hassam v. J.E. Safford Lbr. Co., 82 Vt. 444, 74 Atl. 197 (1909); Blake v. Harding, 54 Utah. 158, 180 Pac. 172 (1919). [3] Witness Pentecost testified that she recognized the background shown in the picture as that of the food store, and, as mentioned previously, she also testified as to the store's standard procedure of "regiscoping" each individual who cashed a check at the store. Phillip Dale testified at length concerning the Regiscope process. The testimony of these two witnesses taken together amounted to a sufficient authentication to warrant the admission of the photograph (both the print and the negative) into evidence. The authentication supplied by the testimony summarized above, of course, did not preclude appellant from
[ 58 Wn.2d 76 ]

attempting to prove that the individual portrayed was someone other than appellant, that the photograph was inaccurate in one or more respects, that appellant was somewhere else at the moment the photograph was taken, or any other such defense. But these arguments go to the weight rather than to the admissibility of the exhibits in question. In our opinion, the Regiscope exhibits, coupled with the other evidence produced by the state, sufficed to establish a prima facie case of first-degree forgery. [4, 5] The second question (whether or not witness Dale properly qualified as an expert witness respecting the Regiscope process) presents less difficulty. The fact that Dale was not a professional photographer and may have not understood all of the technical details of the process, did not, from an evidentiary standpoint, disqualify him from expressing an opinion in his testimony as to the possibility of altering a given Regiscope print. This court has many times held that the question of whether or not a witness is qualified to express an expert opinion lies within the sound discretion of the trial court. See Wilson v. Wright,52 Wn.2d 805, 329 P.2d 461 (1958); Kelly v. Valley Constr. Co.,43 Wn.2d 679, 262 P.2d 970 (1953); and White v. Fenner, 16 Wn.2d 226, 133 P.2d 270 (1943). In view of witness Dale's testimony that he personally had developed "four to five hundred thousand" individual Regiscope films, we hardly think that the trial court abused its discretion in this regard. The judgment of the trial court is affirmed. FINLEY, C.J., MALLERY, OTT, and HUNTER, JJ., concur.

Adamczuk v. Holloway
338 Pa. 263, 13 A.2d 2 (1940)

MAXEY, J. Plaintiffs brought an action in trespass against defendants for personal injuries and property damage arising out of a collision between a car owned and operated by plaintiff, Jack J. Adamczuk, and a car owned by defendant, Morris Cohen, and driven by defendant, Elmer Holloway.... The jury returned a verdict for defendants. Plaintiffs' motion for a new trial was refused and these appeals followed. The assignment of error which appellant stresses is based upon the refusal of the court to admit in evidence a certain photograph of the locus of the accident and the approach to it on Highway Route 6. When plaintiff, Jack Adamczuk, was on the stand, he was shown "Exhibit No. 3" and he identified the roads and buildings appearing in the picture and stated, in answer to his counsel, that "the conditions represented by that picture truly represent the conditions of the crossing at the time of this accident except for the fact of daylight or dark." Then the exhibit was offered in evidence. On cross-examination it was disclosed that the witness did not know who took the picture or when it was taken. He stated that when the picture was taken the location of the camera was on route 6 but he did not know at what distance from the intersection. He had no experience in photography. He said he did not know whether the photographer tilted the camera up or down when the picture was taken, and he did not know whether the photographer "endeavored to accentuate certain parts of the picture." The court then sustained the objection to the picture's introduction. It was offered in evidence again when Herbert C. Dillard, Civil Engineer and County Surveyor, was on the stand. He was asked on cross-examination by defendant's counsel: "If you were taking a picture, and wanted to accentuate the curve of route six to the west, you could accomplish that by taking the picture farther away from the intersection, that is, farther to the east of the intersection, could you not?" He answered: "I think you could, yes." This witness was asked if he took photographs and developed them. He answered: "Very little." At the close of plaintiff's case the picture was again offered in evidence and was objected to and the objection sustained, and court saying: "There is some mystery about exhibit number three, which is not clear to the court. There is no proof of who took it, or any identity as to the picture, other than the physical view thereon; it isn't shown where the camera was standing, under what conditions it was taken, and whether it was taken with a view to distorting it or not." The court then commented on the fact that plaintiff had two days "since adjournment last Friday, to procure the original taker of this photograph and thus establish it in the legal way with the right of crossexamination to defendants' counsel of the photographer." The rule is well settled that a photograph may be put in evidence if relevant to the issue and if verified. It does not have to be verified by the taker. Its verification depends on the competency

of the verifying witness and as to that the trial judge must in the first instance decide, subject to reversal for substantial error. Wigmore on Evidence (2d ed.), Vol. 2, sec. 792, p.97, says: The objection that a photograph may be so made as to misrepresent the object is genuinely directed against its testimonial soundness; but it is of no validity. It is true that a photograph can be deliberately so taken as to convey the most false impression of the object. But so also can any witness lie in his words. A photograph can falsify just as much and no more than the human being who takes it or verifies it. The fallacy of the objection occurs in assuming that the photograph can come in testimonially without a competent person's oath to support it. If a qualified observer is found to say, "This photograph represents the fact as I saw it," there is no more reason to exclude it than if he had said, "The following words represent the fact as I saw it," which is always in effect the tenor of a witness's oath. If no witness has thus attached his credit to the photograph, then it should not come in at all, any more than an anonymous letter should be received as testimony. Section 793: The map or photograph must first, to be admissible, be made a part of some qualified person's testimony. Someone must stand forth as its testimonial sponsor; in other words, it must be verified. There is nothing anomalous or exceptional in this requirement of verification; it is simply the exaction of those testimonial qualities which are required equally of all witnesses; the application merely takes a different form. In other words, if a witness is familiar with the scene photographed and is competent to testify that the photograph correctly represents it, it should, if relevant, be admitted.... What are the theoretical underpinnings of the pictorial testimony rule advocated by Wigmore (2d ed.), above, and followed by the court in this case? Is it broad enough to cover all cases where photographs should be admitted? Is it too broad? Adamczuk v. Holloway

Procedural: Plaintiffs brought an action in trespass against defendants for personal injuries and property damage arising out of a collision between a car owned and operated by plaintiff Jack J. Adamczuk, and a car owned by defendant Morris Cohon, and driven by defendant Elmer Holloway. (A cross-action with the present defendants as plaintiffs and Jack J. Adamczuk as defendant resulted in a verdict for the latter.) Facts: D, charged with negligence in a car accident, was prevented from introducing a picture of the accident scene on the basis that the person who verified it had not taken the picture. Issue: To be admissible, must a picture be verified by the person who took the picture?

Holding: The jury returned a verdict for defendants. Plaintiffs' motion for a new trial was refused and these appeals followed. The assignment of error which appellant stresses is based upon the refusal of the court to admit in evidence a certain photograph of the locus of the accident and the approach to it on Highway Route 6. Rule: If a witness is familiar with the scene photographed and is competent to testify that the photograph correctly represents it, it should, if relevant, be admitted. The pictures verification depends on the competency of the verifying witness, not on whether he took the picture. Analysis: Appellants contend that the admission of this photograph was of importance because it would show that at the intersection a person could see to the west, if he held his head at a 45 degree angle, only a distance of about 200 feet. The engineer testified that a person at the intersection had a clear, unobstructed view to the west of 793 feet. Jack Adamczuk, in explaining why he did not see the car coming from the west, said that he had his head turned at a 45 degree angle. Appellees contend that this excuse is of no avail to him and that had he held his head in a normal position he would have had an unobstructed view to the west of nearly 800 feet. The assignment of error based on the exclusion of the photograph is overruled.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME CARPO, OSCAR IBAO, WARLITO IBAO and ROCHE IBAO, accused-appellants. DECISION
PER CURIAM:

The accused might as well have borrowed the famous line of Shakespeare How this world is given to lying!i[1] - when they impute error to the trial court for relying on the testimony of a single witness in convicting them of multiple murder complexed with attempted murder for the death of Florentino Dulay, Norwela Dulay and Nissan Dulay, and the wounding of Noemi Dulay.ii[2] The challenged testimony of witness Ruben Meriales follows:iii[3] On 25 August 1996 at about 8:00 o'clock in the evening while he was watching television with his family his dogs barked. His mother who was apprehensive that their cow might be stolen prodded him to check the disturbance. To allay her fears he stood up, took his flashlight and trudged the unpaved path towards his cow that was tied to a mango tree. Then the noise grew louder thus arousing his suspicion that something was really wrong. After transferring his cow nearer to his house, he went inside the kitchen, stood atop the concrete washbasin, hid himself behind the bamboo slats and peeped outside to observe. The darkness helped conceal him from outside view while the light from the two (2) bulbs positioned at about three (3) meters from where he stood filtered through the slats and illumined the surroundings. There was also moon in the sky.

A few minutes later, he saw barangay captain Jaime Carpo together with Warlito Ibao suspiciously stooping near his barn. He knew Jaime and Warlito very well. Jaime was his uncle and Warlito lived in his neighborhood. Warlito's son Roche was also there; he was standing by the mango tree. They were all looking in the direction of Florentino Dulay's house which was about a meter to the south from where he was. He also saw Oscar Ibao, another son of Warlito, striding towards Dulay's hut. As soon as he reached the hut Oscar lifted the sawali mat near the wall and hurled something inside. Oscar then scurried off towards the nearby creek with Roche following him. Seconds later, a loud explosion shook the entire neighborhood and Teresita Dulay's screams broke into the night. Ruben Meriales, rushed outside. He ran towards Florentino's hut but was deterred by darkness. He returned home to take his flashlight and raced back to lend aid to Teresita. Inside the hut he was stunned by the terrifying gore that greeted him - a bloodied Florentino cradled in the arms of his weeping widow, Norwela and Nissan lying side by side on a cot both doused in blood, and a motionless Norma whose head was oozing with blood. Realizing the exigency of the situation, he left the crime scene to borrow the jeepney of Brgy. Kagawad Edgardo Marquez for the hapless victims. The neighbors milling around at once gave up hope on Florentino so that only Norwela, Nissan and Noemi were loaded in the jeepney and rushed to the Eastern Pangasinan District Hospital. On their way, Norwela who had injuries on her chest and lower appendage died. Nissan who was five (5) years old and the youngest of the victims died later due to "shock from pains" caused by the shrapnel wounds in her left shoulder, abdomen and lower extremities.iv[4] Noemi luckily survived. Her attending physician, Dr. Emiliano Subido, testified that Noemi was semi-conscious and vomiting although ambulatory at the time he examined her. But due to the seriousness of her wounds and the hospital's lack of facilities she was taken to another hospital in Dagupan City.v[5] In the course of their investigation, the policemen questioned the people who might have witnessed the carnage. Fearful however that the culprits would return, Ruben Meriales refused to give any statement but intimated to Police Officer Guillermo Osio that he would go to the police station after the burial. On 4 September 1996, or a week later, Ruben kept his promise and went to the police station where he gave his statement to Police Officer Osio. He named Jaime Carpo, Warlito lbao, Oscar lbao and Roche Ibao as the perpetrators of the crime. He further said that Florentino was killed because he was about to testify against Roche Ibao for the murder of his brother Delfin Meriales.vi[6] On 3 October 1996, solely on the basis of Ruben's testimony, a criminal complaint for the murder of Florentino Dulay and his two (2) daughters Norwela, and Nissan as well as the frustrated murder of his daughter Noemi was filed against Jaime Carpo, Warlito Ibao, Oscar Ibao and Roche Ibao. Warrants for their immediate arrest were issued by the municipal circuit trial court. On 25 October 1996 Jaime Carpo was taken into custody by the police, while Roche Ibao eluded arrest until 9 December 1996 when he was apprehended by police officers in La Union. With

Roche's arrest, Oscar and Warlito realized the futility of hiding and surrendered themselves to the National Bureau of Investigation (NBI) in La Union. At the trial, the prosecution presented Ruben, Noemi, Dr. Rosalina O. Victorio, Dr. Emiliano Subido and Police Officers Virgilio dela Cruz, Jovencio Tapac and Guillermo Osio as witnesses. Police Officer Osio testified that on the night of 25 August 1996 after receiving a report of an explosion in Brgy. Baligayan, he together with Police Officers Julius Aurora, Ricardo Lugares and Jovencio Tapac immediately responded. They were able to gather several grenade shrapnels and a grenade shifting lever from the crime scene. He spoke with the weeping Teresita Dulay who told him that she suspected the accused of having perpetrated the assault. He likewise conferred with Ruben Meriales who named the same set of suspects and who promised to give his statement to the police after the funeral. After speaking with Teresita and Ruben, he summoned his colleagues to go with him to Warlito Ibao's house which was just across the road. Warlitos house was dark and its front door was locked. He called out but there was no answer. They then proceeded to Oscar's house which was also padlocked and unoccupied. He went to Roche's house and peeped inside before they left.vii[7] Against their positive identification by Ruben, the four (4) accused interposed alibi claiming that they were somewhere else when the Dulay hut was blasted. They likewise assailed Ruben's testimony for being a fabrication and insisted that he lied to get back at them because Roche was a suspect in the killing of his brother Delfin Meriales. Jaime and his wife Veronica Carpo were one in testifying that in the evening of 25 August 1995 Jaime was at home in Brgy. Libsong, a hundred and fifty (150) meters away from the house of the Dulays in Brgy. Baligayan. When he heard the loud explosion, he summoned his tanods to check whether the blast happened within their barangay. When he learned that the explosion occurred in the adjoining Brgy. Baligayan, he went home to sleep. Brgy. Baligayan is separated from his barangay by a creek and could be reached in ten (10) minutes. However, on the night of the incident, the creek was neck deep such that one had to make a detour through a mountainous route for about thirty (30) minutes to reach Brgy. Baligayan.viii[8] Jaime testified that Ruben implicated him because the latter was angry at him. Ruben's grudge supposedly started when Jaime sided with the Ibaos in the murder case instituted by the Merialeses against Roche for the death of Delfin Meriales. As a matter of fact on 10 December 1996 while he was incarcerated at the Balungao District Jail, Ruben supposedly visited him asking his forgiveness for having named him as one of the perpetrators of the crime. Ruben subsequently pleaded with him to reveal the names of those responsible but when he claimed ignorance, Ruben left in a huff. Warlito, Oscar and Roche Ibao testified that on the night of the explosion their family was having a farewell party for the family's only girl Maribel Ibao who was leaving for Hongkong. They heard the blast but they did not bother to check. They denied having heard the police officers call for them an hour after the explosion. Roche further asserted that he did not have a house in Brgy. Baligayan as reported because he lived with his parents-in-law in Brgy. Libsong. However, on the night of the blast, he slept at his parents' house as all of his siblings and their families were there. He only learned of the bloodbath the following morning when they went

home to his in-laws. His wife Jovelyn corroborated his testimony in the same manner that Remedios supported the story of her husband Warlito.ix[9] In convicting Jaime Carpo, Warlito Ibao, Oscar Ibao and Roche Ibao of the multiple murder of Florentino, Norwela and Nissan Dulay and the attempted murder of Noemi Dulay the trial Court gave full credit to the testimony of Ruben.x[10] It accepted his straightforward testimony and ruled that "at no instance throughout the twin testimonies of Meriales did the Court notice a twitch of falsehood on his lips."xi[11] Accordingly, in accordance with Sec. 6, RA 7659, and Art. 48 of The Revised Penal Code the trial court imposed upon all of the accused the supreme penalty of death and ordered them to solidarily indemnify the heirs of the deceased as well as Noemi Dulay in the amount of P600,000.00.xii[12] Forthwith, the case was elevated to this Court for automatic review. After the filing of briefs, the accused filed an Addendum to Appellant's Brief urging that the favorable results of their lie detector tests with the NBI be admitted into the records.xiii[13] A lie detector test is based on the theory that an individual will undergo physiological changes, capable of being monitored by sensors attached to his body, when he is not telling the truth. The Court does not put credit and faith on the result of a lie detector test inasmuch as it has not been accepted by the scientific community as an accurate means of ascertaining truth or deception.xiv[14] The explosion by means of a hand grenade on the night of 25 August 1996 resulting in the death of Florentino, Norwela and Nissan Dulay and in the wounding of Noemi Dulay is an admitted fact. The identity of the perpetrators, as tenaciously questioned by the accused, depends upon the credibility of Ruben Meriales. In this appeal, accused-appellants challenge the veracity of the testimony of Ruben Meriales primarily on two (2) grounds: first, Ruben's testimony in court is different from and is contradictory to his affidavit of 4 October 1996; and second, Ruben is not a disinterested witness because he has a grudge against the Ibaos. Consistent with giving due deference to the observations of the trial court on credibility of witnesses, we agree with the court a quo when it believed Ruben Meriales more than the defense witnesses.xv[15] Indeed, the trial court is best equipped to make an assessment of witnesses, and its factual findings are generally not disturbed on appeal unless it has overlooked, misunderstood or disregarded important facts,xvi[16] which is not true in the present case. The twin arguments therefore raised by accused-appellants against the testimony of Ruben Meriales are devoid of merit. A scrutiny of the records reveals that his testimony is not inconsistent with his affidavit of 4 October 1996 inasmuch as the former merely supplied the details of the event which the latter failed to disclose. But assuming that there was any inconsistency, it is settled that whenever an affidavit contradicts a testimony given in court the latter commands greater respect.xvii[17] Such inconsistency is unimportant and would not even discredit a fallible witness.xviii[18] The mere fact that Ruben admitted harboring resentment against the Ibaos for the murder of his brother Delfin does not confirm that he fabricated his story. His frankness in admitting his resentment against the Ibaos should even be considered in

his favor.xix[19] There is likewise nothing unnatural in Ruben's attitude of concealing himself behind the kitchen wall instead of warning the Dulays of the looming danger to their lives. It is a well-known fact that persons react differently to different situations - there may be some who will respond violently to an impending danger while there may be others who will simply assume a cravenly demeanor. In this case, Ruben was ruled by his fear rather than by his reason, but for this alone, his credibility should not be doubted. Apropos Jaime's imputation that Ruben had admitted to him while in jail that he lied in his testimony, we find this accusation farcical as nothing was ever offered in support thereof. The lone corroborative testimony, which was that of Roche, does not inspire belief since Roche himself admitted overhearing the conversation while Jaime together with other prisoners was constructing a hut outside of his cell at about three (3) meters away. As correctly hinted by the prosecution, the noise generated by the construction made it unlikely for Roche to hear conversations three (3) meters away.xx[20] The defense proffered by the accused is alibi. But this is futile. By his own admission, Jaime was only a hundred and fifty (150) meters away from the scene of the crime. In fact, it would only take him thirty (30) minutes, at the most, to be at the place of the Dulays. More so for the Ibaos who acknowledged that they were having a party just a stone's throw away from the crime scene at the time of the explosion. Curiously though, if they were indeed reveling inside their house on that fateful night, then we cannot comprehend why they did not go out to investigate after hearing the blast. Besides, it was rather strange for the Ibaos not to have joined their neighbors who had instantaneously milled outside to view the mayhem. Their conduct indeed betrayed them. Further, the immediate flight and tarriance of the Ibaos to La Union until Roche's arrest cannot but demonstrate their guilt and desire to evade prosecution.xxi[21] The trial court also correctly ruled that accused-appellants conspired in perpetrating the offense charged. From the detailed account of Ruben, Jaime and Warlito positioned themselves near the hay barn while Roche casually stood by the mango tree. As observed by the trial court, the presence of Jaime, Warlito and Roche inescapably gave encouragement and a sense of security to Oscar, the group's preceptor. Surely, the latter was emboldened to commit the crime knowing that his co-conspirators were not far behind. Under the doctrine enunciated in People v. Tayo,xxii[22] the crime committed may otherwise be more approriately denominated as murder qualified by explosion rather than by treachery. However, since it was treachery that is alleged in the Information and appreciated by the trial court, the explosion of the grenade which resulted in the death of Florentino, Norwela and Nissan, and the wounding of Noemi can only be multiple murder complexed with attempted murder.xxiii[23] The crime committed against Noemi Dulay was correctly denominated by the trial court as attempted murder considering that none of her injuries was fatal. Her attending physician even made conflicting statements in the assessment of her wounds, to wit: although he said that Noemi could have died from the shrapnel wound in her head, he specifically ruled out the possibility of "intercerebral hemorrhage"xxiv[24] and despite the seriousness of the possible

complications of her injuries she would suffer from physical incapacity for only ten (10) to fourteen (14) days. As none of her wounds was severe as to cause her death, accused-appellants not having performed all the acts of execution that would have brought it about, the crime is only attempted murder.xxv[25] Since the three (3) murders and attempted murder were produced by a single act, namely, the explosion caused by the hurling of a grenade into the bedroom of the Dulays, the case comes under Art. 48 of The Revised Penal Code on complex crimes. Article 48 provides that the penalty for the more serious crime, which in the present case is reclusion perpetua to death, should be applied in its maximum period. As the crime was complexed, the death penalty was properly imposed by the trial court. At this point, we take exception to the court a quo's award of damages in the "negotiated amount of P600,00.00." It appears that under the auspices of the trial court counsel for the defense entered into an oral compromise with the public prosecutor, which was subsequently ratified by the private complainant, limiting the amount of civil liability to P600,000.00. We note the discourse between the court and the counsel for both parties regarding the award. PROS. CORPUZ: x x x x (W)e would like to enter into stipulation the civil aspect of the case. COURT: Are the accused confident that they could be acquitted in this case? Atty Sanglay? ATTY. SANGLAY: I think so, your Honor. COURT: What about Atty. Rafael? ATTY. RAFAEL: We are confident, your Honor. COURT: All right. So you can easily stipulate. First of all, how much do you want Fiscal? PROS. CORPUZ: P1,282,740.00, your Honor x x x x COURT: x x x x Agree gentlemen of the defense? ATTY. SANGLAY: P600,000.00, your Honor. COURT: Do you agree Fiscal? PROS. CORPUZ: Yes, your Honor. COURT: All right so P600,000.00 is the agreed liquidated amount in case of conviction without necessarily having to interpret this stipulation as admission of guilt on the part of any of the accused. All right so we will dispense with the testimony on the civil aspect x x x x

COURT: x x x x Are you the private complainant in this case? TERESITA DULAY: Yes, sir. COURT: If the accused get convicted and I will hold them severally liable for you of damages in the liquidated sum of P600,000.00 as agreed upon by the counsel, will you be satisfied? x x x x TERESITA: Yes, sir. COURT: So let that be of record. Will you sign the note so that there will be evidence. (At this juncture private complainant Teresita Dulay affixed her signature at the bottom right margin of the stenographic notes page 2 hereof).xxvi[26] Article 1878 of the Civil Code and Sec. 23 of Rule 138 of the Rules of Court set forth the attorney's power to compromise. Under Art. 1878 of the Civil Code, a special power of attorney is necessary "to compromise, to submit questions to arbitration, to renounce the right to appeal from a judgment, to waive objections to the venue of an action or to abandon a prescription already acquired." On the other hand, Sec. 23, Rule 138 of the Rules of Court provides, "(a)ttorneys have authority to bind their clients in any case by any agreement in relation thereto made in writing, and in taking appeal, and in all matters of ordinary judicial procedure, but they cannot, without special authority, compromise their clients' litigation or receive anything in discharge of their clients' claims but the full amount in cash." The requirements under both provisions are met when there is a clear mandate expressly given, by the principal to his lawyer specifically authorizing the performance of an act. xxvii[27] It has not escaped our attention that in the present case counsel for both parties had no special power of attorney from their clients to enter into a compromise. However, insofar as Teresita was concerned, she was apprised of the agreement and in fact had signed her name as instructed by the court, thereby tacitly ratifying the same. As for accused-appellants, the aforecited dialogue between the court and counsel does not show that they were ever consulted regarding the proposed settlement. In the absence of a special power of attorney given by accused-appellants to their counsel, the latter can neither bind nor compromise his clients' civil liability. Consequently, since Atty. Sanglay and Atty. Rafael had no specific power to compromise the civil liability of all accused-appellants, its approval by the trial court which did not take the precautionary measures to ensure the protection of the right of accused-appellants not to be deprived of their property without due process of law, could not legalize it. For being violative of existing law and jurisprudence, the settlement should not be given force and effect. In light of the foregoing, the award of damages must be set aside and a new one entered with all the circumstances of the case in mind. For the death of Florentino, Norwela and Nissan Dulay, civil indemnity at P50,000.00 each or a total amount of P50,000.00 is awarded to their heirs. This is in addition to the award of moral damages at an aggregate amount of P150,000.00 for their emotional and mental anguish. With respect to Noemi, an indemnity of P30,000.00 would be just and proper. All taken, an award of P330,000.00 is granted.

Four (4) members of the Court maintain their position that RA 7659, insofar as it prescribes the death penalty, is unconstitutional; nevertheless they submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should be accordingly imposed. WHEREFORE, the assailed Decision of the trial court finding accused-appellants JAIME CARPO, OSCAR IBAO, WARLITO IBAO and ROCHE IBAO GUILTY of the complex crime of multiple murder with attempted murder and sentencing them to the supreme penalty of death is AFFIRMED with the MODIFICATION that they are ordered to pay the heirs of the deceased Florentino, Norwela and Nissan, all surnamed Dulay, P50,000.00 as death indemnity and P50,000.00 as moral damages for each death or an aggregate amount of P300,00.00. In addition, accused-appellants are ordered to pay Noemi Dulay P30,000.00 as indemnity for her attempted murder. Costs against accused- appellants. In accordance with Sec. 25 of RA 7659, amending Art. 83 of The Revised Penal Code, upon finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of executive clemency or pardoning power. SO ORDERED. G.R. No. 150224 May 19, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. JOEL YATAR alias "KAWIT", appellant. DECISION PER CURIAM: On automatic review is a Decision of the Regional Trial Court of Bulanao, Tabuk, Kalinga, Branch 25, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homicide, and ordering him to pay the heirs of the victim, Kathylyn D. Uba, civil indemnity in the amount of P75,000.00, moral damages in the amount of P200,000.00, exemplary damages in the amount of P50,000.00, actual damages in the amount of P186,410.00, or total damages amounting to P511,410.00, and costs of litigation.1 Appellant was charged with Rape with Homicide under the following Information: That on or about the afternoon of June 30, 1998 at Liwan West, Rizal, Kalinga, and within the jurisdiction of this Honorable Court, the accused, in order to have carnal knowledge of a certain KATHYLYN D. UBA, did then and there wilfully, unlawfully, and feloniously, and with use of a bladed weapon stab the latter inflicting upon her fatal injuries resulting in the death of the victim, and on the occasion or by reason thereof, accused, wilfully, unlawfully and feloniously, and by means of force and violence had carnal knowledge of said Kathlyn D. Uba against her will.

CONTRARY TO LAW.2 The facts are: On June 30, 1998, at 8:30 a.m., Judilyn Pas-a and her first cousin, seventeen year old Kathylyn Uba, were on the ground floor of the house of their grandmother, Isabel Dawang, in Liwan West, Rizal, Kalinga. They were talking about the letter sent by their aunt, Luz Yatar, to her husband, appellant Joel Yatar, through Kathylyns friend, Cecil Casingan. Kathylyn handed the letter to appellant earlier that morning.3 At 9:00 a.m. of the same day, Judilyn and her husband, together with Isabel Dawang, left for their farm in Nagbitayan some two kilometers away. Before Judilyn and her husband departed, Kathylyn told Judilyn that she intended to go to Tuguegarao, but in the event she would not be able to leave, she would just stay home and wash her clothes or go to the house of their aunt, Anita Wania. Kathylyn was left alone in the house.4 Later, at 10:00 a.m., Anita Wania and fifteen year old Beverly Deneng stopped by the house of Isabel. They saw appellant at the back of the house. They went inside the house through the back door of the kitchen to have a drink of water. Anita asked appellant what he was doing there, and he replied that he was getting lumber to bring to the house of his mother.5 At 12:30 p.m., while Judilyn was on her way home from Nagbitayan, she saw appellant descend the ladder from the second floor of the house of Isabel Dawang and run towards the back of the house.6 She later noticed appellant, who was wearing a white shirt with collar and black pants, pacing back and forth at the back of the house. She did not find this unusual as appellant and his wife used to live in the house of Isabel Dawang.7 At 1:30 p.m., Judilyn again saw appellant when he called her near her house. This time, he was wearing a black shirt without collar and blue pants. Appellant told her that he would not be getting the lumber he had stacked, and that Isabel could use it. She noticed that appellants eyes were "reddish and sharp." Appellant asked her where her husband was as he had something important to tell him. Judilyns husband then arrived and appellant immediately left and went towards the back of the house of Isabel.8 In the evening of the same day, Isabel Dawang arrived home and found that the lights in her house were off. She called out for her granddaughter, Kathylyn Uba. The door to the ground floor was open. She noticed that the water container she asked Kathylyn to fill up earlier that day was still empty. She went up the ladder to the second floor of the house to see if Kathylyn was upstairs. She found that the door was tied with a rope, so she went down to get a knife. While she groped in the dark, she felt a lifeless body that was cold and rigid.9 Isabel moved her hand throughout the entire body. She found out that it was the naked body of her granddaughter, Kathylyn. She called for help. Judilyn and her husband arrived. Isabel was given a flashlight by Judilyn. She focused the beam and saw Kathylyn sprawled on the floor naked, with her intestines protruding out of her stomach. Meanwhile, neighbors had arrived to offer assistance. A daughter of Isabel, Cion, called the police.10

At 9:00 that evening, SP04 Melchor Faniswa received a report that a dead woman was found in Isabel Dawangs house. Together with fellow police officers, Faniswa went to the house and found the naked body of Kathylyn Uba with multiple stab wounds. The people in the vicinity informed the police officers that appellant was seen going down the ladder of the house of Isabel Dawang at approximately 12:30 p.m. The police discovered the victims panties, brassiere, denim pants, bag and sandals beside her naked cadaver at the scene of the crime, and they found a dirty white shirt splattered with blood within 50 meters from the house of Isabel. When questioned by the police authorities, appellant denied any knowledge of Kathylynss death,11 however, he was placed under police custody. On July 3, 1998, appellant asked the police officers if he could relieve himself. Police Officer Cesar Abagan accompanied him to the toilet around seven to ten meters away from the police station. They suddenly heard someone shout in the Ilocano dialect, "Nagtaray!" (Hes running away!). Police Officer Orlando Manuel exited through the gate of the Police Station and saw appellant running away. Appellant was approximately 70 meters away from the station when Police Officer Abagan recaptured him.12 He was charged with Rape with Homicide. When he was arraigned on July 21, 1998, appellant pleaded "not guilty." After trial, appellant was convicted of the crime of Rape with Homicide, defined and penalized under Article 266-A of the Revised Penal Code, as amended by R.A. 8353, otherwise known as the Anti-Rape Law of 1997, and was accordingly, sentenced to Death. Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. In his Brief, appellant assigns the following errors: I THE TRIAL COURT GRAVELY ERRED IN GIVING MUCH WEIGHT TO THE EVIDENCE PRESENTED BY THE PROSECUTION NOTWITHSTANDING THEIR DOUBTFULNESS. II THE TRIAL COURT SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSEDAPPELLANT OF THE SERIOUS CRIME CHARGED DUE TO REASONABLE DOUBT. Appellants contentions are unmeritorious. The issue regarding the credibility of the prosecution witnesses should be resolved against appellant. This Court will not interfere with the judgment of the trial court in determining the credibility of witnesses unless there appears in the record some fact or circumstance of weight

and influence which has been overlooked or the significance of which has been misinterpreted.13 Well-entrenched is the rule that the findings of the trial court on credibility of witnesses are entitled to great weight on appeal unless cogent reasons are presented necessitating a reexamination if not the disturbance of the same; the reason being that the former is in a better and unique position of hearing first hand the witnesses and observing their deportment, conduct and attitude.14 Absent any showing that the trial judge overlooked, misunderstood, or misapplied some facts or circumstances of weight which would affect the result of the case, the trial judges assessment of credibility deserves the appellate courts highest respect.15 Where there is nothing to show that the witnesses for the prosecution were actuated by improper motive, their testimonies are entitled to full faith and credit.16 The weight of the prosecutions evidence must be appreciated in light of the well-settled rule which provides that an accused can be convicted even if no eyewitness is available, as long as sufficient circumstantial evidence is presented by the prosecution to prove beyond doubt that the accused committed the crime.17 Reference to the records will show that a total of eleven (11) wounds, six (6) stab and five (5) incised, were found on the victims abdomen and back, causing a portion of her small intestines to spill out of her body.18 Rigor mortis of the vicitms body was complete when Dr. Bartolo examined the victim at 9:00 a.m. on July 1, 1998. According to him, the time of death may be approximated from between nine (9) to twelve (12) hours prior to the completion of rigor mortis.19 In other words, the estimated time of death was sometime between 9:00 a.m. to 12:00 p.m. on June 30, 1998. This was within the timeframe within which the lone presence of appellant lurking in the house of Isabel Dawang was testified to by witnesses. It should also be noted that, although the Postmortem Report by the attending physician, Dr. Pej Evan C. Bartolo, indicates that no hymenal lacerations, contusions or hematoma were noted on the victim,20 Dr. Bartolo discovered the presence of semen in the vaginal canal of the victim. During his testimony, Dr. Bartolo stated that the introduction of semen into the vaginal canal could only be done through sexual intercourse with the victim.21 In addition, it is apparent from the pictures submitted by the prosecution that the sexual violation of the victim was manifested by a bruise and some swelling in her right forearm indicating resistance to the appellants assault on her virtue.22 Significantly, subsequent testing showed that the Deoxyribonucleic acid (DNA) of the sperm specimen from the vagina of the victim was identical the semen to be that of appellants gene type. DNA is a molecule that encodes the genetic information in all living organisms.23 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.24 Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins.25

DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. It can assist immensely in effecting a more accurate account of the crime committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent, and ensuring the proper administration of justice in every case. DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion in the same principle as fingerprints are used.26 Incidents involving sexual assault would leave biological evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the victims body or at the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could also be transferred to the victims body during the assault.27 Forensic DNA evidence is helpful in proving that there was physical contact between an assailant and a victim. If properly collected from the victim, crime scene or assailant, DNA can be compared with known samples to place the suspect at the scene of the crime.28 The U.P. National Science Research Institute (NSRI), which conducted the DNA tests in this case, used the Polymerase chain reaction (PCR) amplification method by Short Tandem Repeat (STR) analysis. With PCR testing, tiny amounts of a specific DNA sequence can be copied exponentially within hours. Thus, getting sufficient DNA for analysis has become much easier since it became possible to reliably amplify small samples using the PCR method. 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 the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.29 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.30 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.31 The blood sample taken from the appellant showed that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP2 9/10 and CSF1PO 10/11, which are identical with semen taken from the victims vaginal canal.32 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,33 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.34 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. Independently of the physical evidence of appellants semen found in the victims vaginal canal, the trial court appreciated the following circumstantial evidence as being sufficient to sustain a conviction beyond reasonable doubt: (1) Appellant and his wife were living in the house of Isabel Dawang together with the victim, Kathylyn Uba; (2) In June 1998, appellants wife left the house because of their frequent quarrels; (3) Appellant received from the victim, Kathylyn Uba, a letter from his estranged wife in the early morning on June 30, 1998; (4) Appellant was seen by Apolonia Wania and Beverly Denneng at 1:00 p.m. of June 30, 1998 near the kitchen of the house of Isabel Dawang, acting strangely and wearing a dirty white shirt with collar; (5) Judilyn Pas-a saw appellant going down the ladder of the house of Isabel at 12:30 p.m., wearing a dirty white shirt, and again at 1:30 p.m., this time wearing a black shirt; (6) Appellant hurriedly left when the husband of Judilyn Pas-a was approaching; (7) Salmalina Tandagan saw appellant in a dirty white shirt coming down the ladder of the house of Isabel on the day Kathylyn Uba was found dead; (8) The door leading to the second floor of the house of Isabel Dawang was tied by a rope; (9) The victim, Kathylyn Uba, lay naked in a pool of blood with her intestines protruding from her body on the second floor of the house of Isabel Dawang, with her stained pants, bra, underwear and shoes scattered along the periphery; (10) Laboratory examination revealed sperm in the victims vagina (Exhibit "H" and "J"); (11) The stained or dirty white shirt found in the crime scene was found to be positive with blood; (12) DNA of slide, Exhibit "J" and "H", compared with the DNA profile of the appellant are identical; and (13) Appellant escaped two days after he was detained but was subsequently apprehended, such flight being indicative of guilt.35 Circumstantial evidence, to be sufficient to warrant a conviction, must form an unbroken chain which leads to a fair and reasonable conclusion that the accused, to the exclusion of others, is the perpetrator of the crime. To determine whether there is sufficient circumstantial evidence, three requisites must concur: (1) there is more than one circumstance; (2) facts on which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.36 In an attempt to exclude the DNA evidence, the appellant contends that the blood sample taken from him as well as the DNA tests were conducted in violation of his right to remain silent as well as his right against self-incrimination under Secs. 12 and 17 of Art. III of the Constitution. This contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion.37 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.

We ruled in People v. Rondero38 that although accused-appellant insisted that hair samples were forcibly taken from him and submitted to the National Bureau of Investigation for forensic examination, the hair samples may be admitted in evidence against him, for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from the accused under duress. Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin, blood and DNA, as there is no testimonial compulsion involved. Under People v. Gallarde,39 where immediately after the incident, the police authorities took pictures of the accused without the presence of counsel, we ruled that there was no violation of the right against self-incrimination. The accused may be compelled to submit to a physical examination to determine his involvement in an offense of which he is accused. It must also be noted that appellant in this case submitted himself for blood sampling which was conducted in open court on March 30, 2000, in the presence of counsel. Appellant further argues that the DNA tests conducted by the prosecution against him are unconstitutional on the ground that resort thereto is tantamount to the application of an ex-post facto law. This argument is specious. No ex-post facto law is involved in the case at bar. The science of DNA typing involves the admissibility, relevance and reliability of the evidence obtained under the Rules of Court. Whereas an ex-post facto law refers primarily to a question of law, DNA profiling requires a factual determination of the probative weight of the evidence presented. Appellants twin defense of denial and alibi cannot be sustained. The forensic DNA evidence and bloodied shirt, notwithstanding the eyewitness accounts of his presence at Isabel Dawangs house during the time when the crime was committed, undeniably link him to the June 30, 1998 incident. Appellant did not demonstrate with clear and convincing evidence an impossibility to be in two places at the same time, especially in this case where the two places are located in the same barangay.40 He lives within a one hundred (100) meter radius from the scene of the crime, and requires a mere five minute walk to reach one house from the other. This fact severely weakens his alibi. As to the second assignment of error, appellant asserts that the court a quo committed reversible error in convicting him of the crime charged. He alleges that he should be acquitted on reasonable doubt. Appellants assertion cannot be sustained. Generally, courts should only consider and rely upon duly established evidence and never on mere conjectures or suppositions. The legal relevancy of evidence denotes "something more than a minimum of probative value," suggesting that such evidentiary relevance must contain a "plus value."41 This may be necessary to preclude the trial court from being satisfied by matters of slight value, capable of being exaggerated by prejudice and hasty conclusions. Evidence without "plus value" may be logically relevant but not legally sufficient to convict. It is incumbent upon

the trial court to balance the probative value of such evidence against the likely harm that would result from its admission. The judgment in a criminal case can be upheld only when there is relevant evidence from which the court can properly find or infer that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt requires moral certainty of guilt in order to sustain a conviction. Moral certainty is that degree of certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it. It is certainty beyond reasonable doubt.42 This requires that the circumstances, taken together, should be of a conclusive nature and tendency; leading, on the whole, to a satisfactory conclusion that the accused, and no one else, committed the offense charged.43 In view of the totality of evidence appreciated thus far, we rule that the present case passes the test of moral certainty. However, as a matter of procedure, and for the purpose of meeting the requirement of proof beyond reasonable doubt, motive is essential for conviction when there is doubt as to the identity of the culprit.44 Pertinently, it must be noted that Judilyn Pas-a, first cousin of the victim, testified that she last saw the victim alive in the morning of June 30, 1998 at the house of Isabel Dawang.45 She witnessed the appellant running down the stairs of Isabels house and proceeding to the back of the same house.46 She also testified that a few days before the victim was raped and killed, the latter revealed to her that "Joel Yatar attempted to rape her after she came from the school."47 The victim told Judilyn about the incident or attempt of the appellant to rape her five days before her naked and violated body was found dead in her grandmothers house on June 25, 1998.48 In addition, Judilyn also testified that when her auntie Luz Dawang Yatar, wife of appellant, separated from her husband, "this Joel Yatar threatened to kill our family."49 According to Judilyn, who was personally present during an argument between her aunt and the appellant, the exact words uttered by appellant to his wife in the Ilocano dialect was, "If you leave me, I will kill all your family and your relatives x x x."50 These statements were not contradicted by appellant. Thus, appellants motive to sexually assault and kill the victim was evident in the instant case. It is a rule in criminal law that motive, being a state of mind, is established by the testimony of witnesses on the acts or statements of the accused before or immediately after the commission of the offense, deeds or words that may express it or from which his motive or reason for committing it may be inferred.51 Accordingly, we are convinced that the appellant is guilty beyond reasonable doubt of the special complex crime of rape with homicide. Appellant sexually assaulted Kathylyn Uba, and by reason or on the occasion thereof, in order to conceal his lustful deed, permanently sealed the victims lips by stabbing her repeatedly, thereby causing her untimely demise. The following are the elements constitutive of rape with homicide: (1) the appellant had carnal knowledge of a woman; (2) carnal knowledge of a woman was achieved by means of force, threat or intimidation; and (3) by reason or on the occasion of such carnal knowledge by means of force, threat or intimidation, appellant killed the woman.52 However, in rape committed by

close kin, such as the victims father, step-father, uncle, or the common-law spouse of her mother, it is not necessary that actual force or intimidation be employed.53 Moral influence or ascendancy takes the place of violence and intimidation.54 The fact that the victims hymen is intact does not negate a finding that rape was committed as mere entry by the penis into the lips of the female genital organ, even without rupture or laceration of the hymen, suffices for conviction of rape.55 The strength and dilatability of the hymen are invariable; it may be so elastic as to stretch without laceration during intercourse. Absence of hymenal lacerations does not disprove sexual abuse especially when the victim is of tender age.56 In the case at bar, appellant is the husband of the victims aunt. He is seven years older than the victim Kathylyn Uba. Before he and his wife separated, appellant lived in the house of his mother-in-law, together with the victim and his wife. After the separation, appellant moved to the house of his parents, approximately one hundred (100) meters from his mother-in-laws house. Being a relative by affinity within the third civil degree, he is deemed in legal contemplation to have moral ascendancy over the victim. Under Article 266-B of the Revised Penal Code, the penalty of death is imposed when by reason or on the occasion of the rape, homicide is committed. Although three (3) Justices of this Court maintain their position that R.A. 7659 is unconstitutional insofar as it prescribes the death penalty, they nevertheless submit to the ruling of the majority that the law is not unconstitutional, and that the death penalty can be lawfully imposed in the case at bar. As to damages, civil indemnity ex delicto of P100,000.00,57 actual damages incurred by the family of the victim that have been proved at the trial amounting to P93,190.00,58 and moral damages of P75,000.0059 should be awarded in the light of prevailing law and jurisprudence. Exemplary damages cannot be awarded as part of the civil liability since the crime was not committed with one or more aggravating circumstances.60 WHEREFORE, in view of the foregoing, the Decision of the RTC of Bulanao, Tabuk, Kalinga, Branch 25 in Criminal Case No. 35-98, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homicide is AFFIRMED with the MODIFICATION that he be ORDERED to pay the family of the victim Kathylyn Uba civil indemnity ex delicto in the amount of P100,000.00, P93,190.00 in actual damages and P75,000.00 in moral damages. The award of exemplary damages is DELETED. Upon the finality of this Decision and in accordance with Art. 83 of the Revised Penal Code, as amended by Sec. 25 of Rep. Act No. 7659, let the records of this case be forthwith forwarded to the President of the Philippines for the possible exercise of the pardoning power. Costs de oficio. SO ORDERED. PEOPLE OF THE PHILIPPINES, Appellee, v. CORNELIO CAJUMOCAN, Appellant. DECISION

YNARES-SANTIAGO, J.: On appeal is a Decision of the Regional Trial Court (RTC) of Morong, Rizal, Branch 79 in Criminal Case No. 99-3576-M1 finding appellant Cornelio Cajumocan y Birdin guilty beyond reasonable doubt of Murder under Article 248 of the Revised Penal Code, sentencing him to suffer the penalty of reclusin perpetua, and ordering him to pay the heirs of the victim, Apolinario Mirabueno y Morao, the amount of P50,000.00 as civil indemnity, P50,000.00 as actual damages, and costs of the suit. At 11:30 p.m. of September 30, 1999, while the deceased, Apolinario Mirabueno, was asleep beside his fourteen year old brother Leo inside their house in Sitio Waray, Barangay Plaza Aldea, Tanay, Rizal, the latter was roused from his slumber by the rustling of dried leaves outside the house.He saw a solitary figure walk toward their house, paused outside their room, and removed the fish net covering the window and looked inside the house.From the light of the fluorescent lamp inside the house, Leo recognized the man as appellant Cornelio Cajumocan, who drew a gun and shot Apolinario in the head, and thereafter ran away. Leo cried out to his older sister, Margarita and they brought Apolinario to a hospital in Morong, but he was declared dead on arrival.2 Appellant was charged with Murder before the RTC of Morong, Rizal, Branch 79, in the following Information dated October 4, 1999 which reads:3 That on or about 30th day of September 1999, in the Municipality of Tanay, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a gun, with intent to kill, treachery and evident premeditation, and taking advantage of nighttime did, then and there willfully, unlawfully and feloniously shot (sic) with said gun, one Apolinario Mirabueno y Morao hitting him on his head, thereby inflicting upon the latter intracranial hemorrhage, which directly caused his immediate death. CONTRARY TO LAW. During the arraignment, appellant, assisted by counsel de parte pleaded not guilty to the charge.

Dr. Emmanuel Reyes, Medico-Legal of the PNPC Crime Laboratory in Camp Crame, Quezon City, conducted the physical examination of the victims cadaver.He found an open gunshot wound, located at the front part of the head, measuring 2.5 c.m., 3.5 c.m. left of the anterior midline with an abraded collar measuring 0.1 c.m., 158 c.m., from the heel, making a point of exit at the right parietal region, measuring 2.5 x 3 c.m., 6 c.m. from the midsagital line.4 The point of entry of the bullet was 3 to 4 c.m. above the left eyebrow, and the point of exit was at the back of the head.The gunshot wound was fatal, damaging both cerebral hemispheres of the brain.5 According to his report, the victims death resulted instantaneously.6 The cause of death was intracranial hemorrhage secondary to gunshot wound of the head.7 Virginia Mirabueno, the victims mother, testified that she incurred the following expenses due to the death of her son: funeral service, P15,000.00; expenses for the wake, P5,000.00; and burial lot, P2,500.00. She further testified that she mortgaged her house and lot in order to pay for the funeral expenses.However, she could not present receipts since some of the expenses for the wake came from the neighbors and relatives in the form of abuloy. She also alleged that her son was engaged in the business of buying and selling goods, earning P150.00 per day.8 Ernesto Carpo, an inspector/investigator of AFSLAI Security Service where appellant was employed as a security guard was presented by the defense as its first witness.Carpo testified that as inspector, he was assigned the task of overseeing security detachments. As investigator, his responsibility was to check unusual incidents and report them directly to the AFSLAI President. He further testified that appellant was one of the agencys security guards.According to Carpo, appellant was assigned at the Monterey Farm in 1999, then he transferred to Tanay, Rizal to the property of Gen. Rene Cruz, and was assigned a long firearm, specifically a 12-gauge shotgun.In the evening of September 30, 1999, he made a roving inspection of the detachment in Sitio Bathala, Barangay Plaza Aldea, Tanay, Rizal, located inside the compound of Gen. Rene Cruz where appellant was one of the security guards detailed. The head of the security guards

stationed in the Cruz property informed Carpo that appellant was picked up by Tanay police authorities because he was a suspect in a killing incident. Carpo made inquiries and found out that appellants tour of duty was from 7 p.m. to 7 a.m., and concluded that he never left the place as shown by a photocopy of the Detail Order signed by the head of the security guards stationed in the Cruz property. They told him that the place where the shooting incident took place was about one kilometer.Carpo inspected the logbook and saw the signature of the appellant.9 For his part, appellant testified that prior to 7 p.m. on September 30, 1999, he arrived at his assignment in the Cruz property, located in Sitio Bathala, Plaza Aldea, Tanay, Rizal. He went to their outpost, signed the logbook and stayed up to 8:30 p.m.He then went to the bodega where construction equipment and materials were kept and, upon seeing that they were secure, he returned to the outpost and watched television. He asked permission from the head of the security guards to sleep. At 7 a.m., he signed the logbook to end his tour of duty.10 While still at the compound, police officers from Tanay, Rizal came and invited him to the police station. During the investigation, he denied any participation in the killing of Apolinario.The following day, on October 1, 1999, he was brought to Camp Crame to undergo paraffin testing.11 The paraffin test showed him negative for powder burns.12 On January 7, 2002, the trial court rendered a decision finding appellant guilty of Murder, the dispositive portion of which reads:13 WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of MURDER, as defined and penalized by the Revised Penal Code, he is hereby sentenced to suffer the penalty prescribed by Art. 248, in its medium period, that is RECLUSION PERPETUA. Accused is hereby ordered to pay the heirs of the victim in the amount of P50,000.00 in accordance with recent jurisprudence, and the further amount of P50,000.00 as actual damages. With costs.

SO ORDERED. Hence, this appeal, based on the following assignment of errors: I THE TRIAL COURT ERRED IN EXTENDING FULL RELIANCE AND CREDENCE TO THE PROSECUTIONS PURPORTED EYEWITNESS LEO MIRABUENO, OBVIOUSLY A BIASED AND PREDISPOSED WITNESS BY REASON OF RELATIONSHIP, BEING A BROTHER OF THE DECEASED VICTIM. II THE COURT A QUO LIKEWISE ERRED IN DISBELIEVING AND EXTENDING SCANT CONSIDERATION TO THE OFFICIAL NEGATIVE FINDINGS ON THE PARAFFIN GUNPOWDER EXAMINATION ON THE PERSON OF THE ACCUSED-APPELLANT. III THE LOWER COURT COMMITTED A GRIEVOUS ERROR IN APPRECIATING THE CIRCUMSTANCE OF TREACHERY AND CONSIDERING THE SAME AS A QUALIFYING CIRCUMSTANCE. IV THE HONORABLE TRIAL COURT GRAVELY ERRED IN REFUSING TO EXTEND CREDENCE TO APPELLANTS CLAIM OF DENIAL AND ALIBI. V THE COURT A QUO AGAIN ERRED GRIEVOUSLY IN FINDING THE APPELLANT GUILTY FOR MURDER AND IN IMPOSING THE PENALTY OF RECLUSIN PERPETUA AND AWARDING THE TOTAL AMOUNT OF P100,000.00 AS AND BY WAY OF ACTUAL DAMAGES.14 The foregoing issues need to be resolved: (1) Whether the negative findings of the paraffin test conducted on the appellant is conclusive proof of his innocence; (2) Whether treachery can be appreciated in the instant case to qualify the crime to Murder; and (3) Whether the appellant is guilty beyond reasonable doubt of Murder under Art. 248 of the Revised Penal Code.

As to the first issue, appellant alleges that the trial court failed to give consideration to the results of the chemical test indicating that appellant was negative of gunpowder nitrates consequent to the paraffin test conducted. Paraffin tests, in general, have been rendered inconclusive by this Court. Scientific experts concur in the view that the paraffin test has proved extremely unreliable in use. It can only establish the presence or absence of nitrates or nitrites on the hand; still, the test alone cannot determine whether the source of the nitrates or nitrites was the discharge of a firearm. The presence of nitrates should be taken only as an indication of a possibility or even of a probability but not of infallibility that a person has fired a gun, since nitrates are also admittedly found in substances other than gunpowder.15 Appellants argument that the negative result of gunpowder nitrates from the paraffin test conducted on him the day after the crime was committed, thereby showing an absence of physical evidence that he fired a gun, is untenable.In the case of People v. Manalo,16 we stressed: x x x even if he were subjected to a paraffin test and the same yields a negative finding, it cannot be definitely concluded that he had not fired a gun as it is possible for one to fire a gun and yet be negative for the presence of nitrates as when the hands are washed before the test. The Court has even recognized the great possibility that there will be no paraffin traces on the hand if, as in the instant case, the bullet was fired from a .45 Caliber pistol. In People v. Abriol, et al.,17 we reiterated the rule on the admissibility of this kind of evidence: A paraffin test could establish the presence or absence of nitrates on the hand. However, it cannot establish that the source of the nitrate was the discharge of firearms. Nitrates are also found in substances other than gunpowder. A person who tests positive may have handled one or more substances with the same positive reaction for nitrates such as explosives, fireworks, fertilizers, pharmaceuticals, tobacco, and leguminous plants. Hence, the presence of nitrates should only be taken as an indication of a possibility that a person has fired a gun. However, it must be borne in mind that appellants were not convicted on the sole basis of the paraffin test. Paraffin tests, it must be emphasized, merely corroborate direct evidence that may be presented by the prosecution.

In the case at bar, the positive, clear and categorical testimony of the lone eyewitness to the crime deserves full merit in both probative weight and credibility over the negative results of the paraffin test conducted on the appellant. Verily, establishing the identity of the malefactor through the testimony of the witness is the heart and cause of the prosecution.18 All other matters, such as the paraffin test, are of lesser consequence where there is positive identification by the lone eyewitness, Leo Mirabueno, of appellant as the perpetrator of the crime. Hence, a paraffin test cannot be considered as conclusive proof of appellants innocence. As to the second issue, appellant avers that there is no treachery in the case at bar since there is no direct and positive evidence to prove the same. We do not agree. The court a quo correctly found the presence of the qualifying circumstance of treachery in the instant case. Treachery is present when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. 19 The essence of treachery is the swift and unexpected attack on the unarmed victim without the slightest provocation on his part.20 Two conditions must concur for treachery to be present: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or retaliate, and; (2) the deliberate or conscious adoption of the means of execution.21 In the case at bar, appellant took advantage that Apolinario Mirabueno was asleep when he shot the unsuspecting victim. The unexpected attack on the victim rendered him unable and unprepared to defend himself by reason of the suddenness and severity of the attack. The nature of the wounds and the testimony of the eyewitness sufficiently established that, first, at the time of the attack, the victim was not in a position to defend himself, as he was asleep; and second, appellant consciously adopted the particular means, method or form of attack, armed and

stealthily performed the criminal act at an unexpected time while the victim was asleep in his dwelling. As to the third issue, appellant contends that the court a quo gravely erred in giving probative weight and credibility to the lone eyewitness, Leo Mirabueno, whom he claims to be a biased and predisposed witness by reason of relationship, being the brother of the deceased victim.He likewise argues that the trial court erred in refusing to lend credence to appellants claim of denial and alibi and finding him guilty of Murder, imposing the penalty of reclusin perpetua and awarding actual damages in the amount of P100,000.00. We find no reversible error in the case at bar. The positive identification of the appellant at the scene of the crime by Leo Mirabueno should be given due weight and credence. Relationship by consanguinity between the witness and the victim does not per se impair the credibility of the former. In certain cases relationship may even strengthen credibility for it is unnatural for an aggrieved relative to falsely accuse someone other than the actual perpetrator. We held in People v. Realin22 that the earnest desire to seek justice for a dead kin is not served should the witness abandon his conscience and prudence and blame one who is innocent of the crime. As further elaborated in People v. Javier,23 there is absolutely nothing in this jurisdiction which disqualifies a person from testifying in a criminal case in which a relative is involved, if the former was really at the scene of the crime and witnessed the execution of the criminal act. Appellants bare denial and alibi cannot prevail over the positive and categorical testimony of Leo Mirabueno concerning appellants identification and presence at the crime scene. Well-settled is the rule that for alibi to prosper, appellant must prove that he was somewhere else when the crime was committed and that it was physically impossible for him to have been at the scene of the crime.24 Physical impossibility refers to the distance between the place where the appellant was when the crime transpired and the place where it was committed, as well as the facility of access between the two places.25

Appellant failed to show that it was physically impossible for him to be at the locus criminis.Sitio Bathala, the place where appellant was on duty at the time of the commission of the crime, and Sitio Waray, the place where the crime was actually committed, were within walking distance. Since Sitio Bathala was approximately one kilometer from Sitio Waray, appellant could have easily accessed the scene of the crime in a matter of minutes, leading to the conclusion that it was not physically impossible for appellant to be in the house of Apolinario Mirabueno in Sitio Waray. Clearly, appellant had access to the locus criminis from his place of work. This Court has consistently ruled that findings of fact and assessment of credibility of witnesses are matters best left to the trial court because of its unique position of having observed that elusive and incommunicable evidence of the witnesses behavior on the stand while testifying, which opportunity is denied to the appellate courts. The trial courts findings are accorded finality, unless there appears in the record some fact or circumstance of weight which the lower court may have overlooked, misunderstood or misappreciated and which, if properly considered, would alter the results of the case.26 We find none of the circumstances that give rise to the exceptions in the case at bar. The court a quo gave credence and full probative value to the testimony of Leo Mirabueno, the victims brother.Having observed at close range the deportment, conduct and demeanor of the sole eyewitness and the appellant when they testified, the findings of the trial court, its calibration of the testimonial evidence of the parties and its assessment and probative weight of the said evidence were all accorded by the appellate court high respect, if not conclusive effect.27 Thus, there is moral certainty that appellant is guilty beyond reasonable doubt of the crime of Murder. As defined under Art. 248 of the Revised Penal Code, Murder is the unlawful killing of any person which is not parricide or infanticide, and committed with any of the qualifying circumstances under the same article.28 Murder was evidently perpetrated when the appellant killed the victim, Apolinario Mirabueno, which was attended by the qualifying circumstance of treachery. The elements of Murder have been proven in this case, viz.: (1) A person is killed; (2) The appellant killed him; (3) The killing was attended by treachery; and (4) The killing is not parricide or infanticide. The killing was

qualified to Murder by alevosia since the treacherous means employed to kill the victim was duly proven. The penalty for Murder is reclusion perpetua to death.There being no mitigating or aggravating circumstance, the lesser of the two indivisible penalties shall be imposed.29Hence, the trial court correctly sentenced appellant to suffer the penalty of reclusion perpetua. Civil indemnity in the amount of P50,000.00 given by the court a quo to the heirs of the victim should be upheld as being consistent with current jurisprudence.30 Civil indemnity is automatically imposed upon the accused without need of proof other than the fact of the commission of murder or homicide.31 However, the P50,000.00 awarded as actual damages for the hospitalization, medical and funeral expenses incurred by the family of the victim cannot be sustained for being unsubstantiated by receipts. WHEREFORE, in view of the foregoing, the Decision of the Regional Trial Court of Morong, Rizal, Branch 79 in Criminal Case No. 99-3576-M finding appellant Cornelio Cajumocan y Birdin guilty beyond reasonable doubt of Murder under Art. 248 of the Revised Penal Code, sentencing him to suffer the penalty of reclusin perpetua, and ordering him to pay the heirs of the victim Apolinario Mirabuena civil indemnity in the amount of P50,000.00, is AFFIRMED with the MODIFICATION that the award of actual damages is DELETED for lack of factual basis. Costs de oficio. SO ORDERED. G.R. No. L-21438 September 28, 1966

AIR FRANCE, petitioner, vs. RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents. Lichauco, Picazo and Agcaoili for petitioner. Bengzon Villegas and Zarraga for respondent R. Carrascoso.

SANCHEZ, J.: The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare between first class and tourist class for the portion of the trip Bangkok-Rome, these various amounts with interest at the legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit. On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs against petitioner. The case is now before us for review on certiorari. The facts declared by the Court of Appeals as " fully supported by the evidence of record", are: Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March 30, 1958. On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the "first class" seat that he was occupying because, in the words of the witness Ernesto G. Cuento, there was a "white man", who, the Manager alleged, had a "better right" to the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused, and told defendant's Manager that his seat would be taken over his dead body; a commotion ensued, and, according to said Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class; when they found out that Mr. Carrascoso was having a hot discussion with the white man [manager], they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the plane.3 1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all the issues properly laid before it. We are asked to consider facts favorable to petitioner, and then, to overturn the appellate court's decision. Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record without expressing therein clearly and distinctly the facts and the law on which it is based". 5 This is echoed in the statutory demand that a judgment determining the merits of the case shall state "clearly and distinctly the facts and the law on which it is based"; 6 and that

"Every decision of the Court of Appeals shall contain complete findings of fact on all issues properly raised before it". 7 A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however, solely insists that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn. 9 A court of justice is not hidebound to write in its decision every bit and piece of evidence 10 presented by one party and the other upon the issues raised. Neither is it to be burdened with the obligation "to specify in the sentence the facts" which a party "considered as proved". 11 This is but a part of the mental process from which the Court draws the essential ultimate facts. A decision is not to be so clogged with details such that prolixity, if not confusion, may result. So long as the decision of the Court of Appeals contains the necessary facts to warrant its conclusions, it is no error for said court to withhold therefrom "any specific finding of facts with respect to the evidence for the defense". Because as this Court well observed, "There is no law that so requires". 12 Indeed, "the mere failure to specify (in the decision) the contentions of the appellant and the reasons for refusing to believe them is not sufficient to hold the same contrary to the requirements of the provisions of law and the Constitution". It is in this setting that in Manigque, it was held that the mere fact that the findings "were based entirely on the evidence for the prosecution without taking into consideration or even mentioning the appellant's side in the controversy as shown by his own testimony", would not vitiate the judgment. 13 If the court did not recite in the decision the testimony of each witness for, or each item of evidence presented by, the defeated party, it does not mean that the court has overlooked such testimony or such item of evidence. 14 At any rate, the legal presumptions are that official duty has been regularly performed, and that all the matters within an issue in a case were laid before the court and passed upon by it. 15 Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of the ultimate facts as found by the court ... and essential to support the decision and judgment rendered thereon". 16 They consist of the court's "conclusions" with respect to the determinative facts in issue". 17 A question of law, upon the other hand, has been declared as "one which does not call for an examination of the probative value of the evidence presented by the parties." 18 2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter the facts or to review the questions of fact. 20 With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support its judgment. 3. Was Carrascoso entitled to the first class seat he claims? It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket. But petitioner asserts that said ticket did not represent the true and complete intent and agreement of the parties; that said respondent knew that he did not have confirmed reservations for first class on any specific flight, although he had tourist class

protection; that, accordingly, the issuance of a first class ticket was no guarantee that he would have a first class ride, but that such would depend upon the availability of first class seats. These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of Appeals under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had confirmed reservations for, and a right to, first class seats on the "definite" segments of his journey, particularly that from Saigon to Beirut". 21 And, the Court of Appeals disposed of this contention thus: Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee that the passenger to whom the same had been issued, would be accommodated in the first-class compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival at every station for the necessary first-class reservation. We are not impressed by such a reasoning. We cannot understand how a reputable firm like defendant airplane company could have the indiscretion to give out tickets it never meant to honor at all. It received the corresponding amount in payment of first-class tickets and yet it allowed the passenger to be at the mercy of its employees. It is more in keeping with the ordinary course of business that the company should know whether or riot the tickets it issues are to be honored or not.22 Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus: On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as follows: Q. In these tickets there are marks "O.K." From what you know, what does this OK mean? A. That the space is confirmed. Q. Confirmed for first class? A. Yes, "first class". (Transcript, p. 169) xxx xxx xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "Al", "B", "B-l", "C" and "C-1" belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for, a first class ticket without any reservation whatever.

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot believe that after such confirmation defendant had a verbal understanding with plaintiff that the "first class" ticket issued to him by defendant would be subject to confirmation in Hongkong. 23 We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the judgment of the lower court. 24 Implicit in that affirmance is a determination by the Court of Appeals that the proceeding in the Court of First Instance was free from prejudicial error and "all questions raised by the assignments of error and all questions that might have been raised are to be regarded as finally adjudicated against the appellant". So also, the judgment affirmed "must be regarded as free from all error". 25 We reached this policy construction because nothing in the decision of the Court of Appeals on this point would suggest that its findings of fact are in any way at war with those of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or grounds different from those which were made the basis of the conclusions of the trial court. 26 If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of the hands of an airline. What security then can a passenger have? It will always be an easy matter for an airline aided by its employees, to strike out the very stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the passenger had a schedule to fulfill? We have long learned that, as a rule, a written document speaks a uniform language; that spoken word could be notoriously unreliable. If only to achieve stability in the relations between passenger and air carrier, adherence to the ticket so issued is desirable. Such is the case here. The lower courts refused to believe the oral evidence intended to defeat the covenants in the ticket. The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of distortions by the Court of Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to provoke an issue". 29 And this because, as petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat and because from Saigon I was told again to see the Manager". 30 Why, then, was he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to the seat? 4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that Carrascoso's action is planted upon breach of contract; that to authorize an award for moral damages there must be an averment of fraud or bad faith;31 and that the decision of the Court of Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint bearing on this issue are:

3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable consideration, the latter acting as general agents for and in behalf of the defendant, under which said contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on defendant's plane during the entire duration of plaintiff's tour of Europe with Hongkong as starting point up to and until plaintiff's return trip to Manila, ... . 4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok, defendant furnished to the plaintiff First Class accommodation but only after protestations, arguments and/or insistence were made by the plaintiff with defendant's employees. 5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff only Tourist Class accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has been compelled by defendant's employees to leave the First Class accommodation berths at Bangkok after he was already seated. 6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments brought by defendant's breach of contract was forced to take a Pan American World Airways plane on his return trip from Madrid to Manila.32 xxx xxx xxx

2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral damages in the amount of P30,000.00. 33 xxx xxx xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when petitioner failed to furnish first class transportation at Bangkok; and Third, that there was bad faith when petitioner's employee compelled Carrascoso to leave his first class accommodation berth "after he was already, seated" and to take a seat in the tourist class, by reason of which he suffered inconvenience, embarrassments and humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad faith in the complaint. But, the inference of bad faith is there, it may be drawn from the facts and circumstances set forth therein. 34 The contract was averred to establish the relation between the parties. But the stress of the action is put on wrongful expulsion. Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso was ousted by petitioner's manager who gave his seat to a white man; 35

and (b) evidence of bad faith in the fulfillment of the contract was presented without objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to whether or not there is sufficient averment in the complaint to justify an award for moral damages. Deficiency in the complaint, if any, was cured by the evidence. An amendment thereof to conform to the evidence is not even required. 36 On the question of bad faith, the Court of Appeals declared: That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the defendant Air France while at Bangkok, and was transferred to the tourist class not only without his consent but against his will, has been sufficiently established by plaintiff in his testimony before the court, corroborated by the corresponding entry made by the purser of the plane in his notebook which notation reads as follows: "First-class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene", and by the testimony of an eye-witness, Ernesto G. Cuento, who was a copassenger. The captain of the plane who was asked by the manager of defendant company at Bangkok to intervene even refused to do so. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the plaintiff. It could have been easy for defendant to present its manager at Bangkok to testify at the trial of the case, or yet to secure his disposition; but defendant did neither. 37 The Court of appeals further stated Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if the employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had already been taken, surely the plaintiff should not have been picked out as the one to suffer the consequences and to be subjected to the humiliation and indignity of being ejected from his seat in the presence of others. Instead of explaining to the white man the improvidence committed by defendant's employees, the manager adopted the more drastic step of ousting the plaintiff who was then safely ensconsced in his rightful seat. We are strengthened in our belief that this probably was what happened there, by the testimony of defendant's witness Rafael Altonaga who, when asked to explain the meaning of the letters "O.K." appearing on the tickets of plaintiff, said "that the space is confirmed for first class. Likewise, Zenaida Faustino, another witness for defendant, who was the chief of the Reservation Office of defendant, testified as follows: "Q How does the person in the ticket-issuing office know what reservation the passenger has arranged with you? A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)

In this connection, we quote with approval what the trial Judge has said on this point: Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to the seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove "any better", nay, any right on the part of the "white man" to the "First class" seat that the plaintiff was occupying and for which he paid and was issued a corresponding "first class" ticket. If there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant could have easily proven it by having taken the testimony of the said Manager by deposition, but defendant did not do so; the presumption is that evidence willfully suppressed would be adverse if produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances, the Court is constrained to find, as it does find, that the Manager of the defendant airline in Bangkok not merely asked but threatened the plaintiff to throw him out of the plane if he did not give up his "first class" seat because the said Manager wanted to accommodate, using the words of the witness Ernesto G. Cuento, the "white man".38 It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the term "bad faith". But can it be doubted that the recital of facts therein points to bad faith? The manager not only prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his arbitrary will; he forcibly ejected him from his seat, made him suffer the humiliation of having to go to the tourist class compartment - just to give way to another passenger whose right thereto has not been established. Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different from what is understood in law. For, "bad faith" contemplates a "state of mind affirmatively operating with furtive design or with some motive of self-interest or will or for ulterior purpose." 39 And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of the Court of First Instance, thus: The evidence shows that the defendant violated its contract of transportation with plaintiff in bad faith, with the aggravating circumstances that defendant's Manager in Bangkok went to the extent of threatening the plaintiff in the presence of many passengers to have him thrown out of the airplane to give the "first class" seat that he was occupying to, again using the words of the witness Ernesto G. Cuento, a "white man" whom he (defendant's Manager) wished to accommodate, and the defendant has not proven that this "white man" had any "better right" to occupy the "first class" seat that the plaintiff was occupying, duly paid for, and for which the corresponding "first class" ticket was issued by the defendant to him.40

5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21 of the Civil Code says: ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42 6. A contract to transport passengers is quite different in kind and degree from any other contractual relation. 43 And this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give ground for an action for damages. Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees with kindness, respect, courtesy and due consideration. They are entitled to be protected against personal misconduct, injurious language, indignities and abuses from such employees. So it is, that any rule or discourteous conduct on the part of employees towards a passenger gives the latter an action for damages against the carrier. 44 Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a tort, giving a right of action for its agent in the presence of third persons to falsely notify her that the check was worthless and demand payment under threat of ejection, though the language used was not insulting and she was not ejected." 46 And this, because, although the relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the act that breaks the contract may be also a tort". 47 And in another case, "Where a passenger on a railroad train, when the conductor came to collect his fare tendered him the cash fare to a point where the train was scheduled not to stop, and told him that as soon as the train reached such point he would pay the cash fare from that point to destination, there was nothing in the conduct of the passenger which justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and the Supreme Court of South Carolina there held the carrier liable for the mental suffering of said passenger.1awphl.nt Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier a case of quasi-delict. Damages are proper. 7. Petitioner draws our attention to respondent Carrascoso's testimony, thus Q You mentioned about an attendant. Who is that attendant and purser?

A When we left already that was already in the trip I could not help it. So one of the flight attendants approached me and requested from me my ticket and I said, What for? and she said, "We will note that you transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to accepting my transfer." And I also said, "You are not going to note anything there because I am protesting to this transfer". Q Was she able to note it? A No, because I did not give my ticket. Q About that purser? A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I stood up and I went to the pantry that was next to me and the purser was there. He told me, "I have recorded the incident in my notebook." He read it and translated it to me because it was recorded in French "First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene." Mr. VALTE I move to strike out the last part of the testimony of the witness because the best evidence would be the notes. Your Honor. COURT I will allow that as part of his testimony. 49 Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook reading "First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony above] which is incompetent. We do not think so. The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry does not come within the proscription of the best evidence rule. Such testimony is admissible. 49a Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements then, in this environment, are admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement and mental and physical condition of the declarant". 51 The utterance of the purser regarding his entry in the notebook was spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes the operation of the hearsay rule. It forms part of the res gestae. At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no such entry was made, the deposition of the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence. 8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary damages in contracts and quasi- contracts. The only condition is that defendant should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of ejectment of respondent Carrascoso from his first class seat fits into this legal precept. And this, in addition to moral damages.54 9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment for attorneys' fees. The least that can be said is that the courts below felt that it is but just and equitable that attorneys' fees be given. 55 We do not intend to break faith with the tradition that discretion well exercised as it was here should not be disturbed. 10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial court. 56 The Court of Appeals did not interfere with the same. The dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and circumstances point to the reasonableness thereof.57 On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We accordingly vote to affirm the same. Costs against petitioner. So ordered. G.R. No. L-14257 July 31, 1959

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. BIENVENIDO A. TAN as Judge of the Court of First Instance of Manila. Br. XIII, PACITA MADRIGAL-GONZALES, ANGELITA CENTENO, JULIA CARPIO, CALIXTO HERMOSA, and CRISPULA R. PAGARAN alias PULA, respondents. Assistant Fiscal Apolinar Tolentino, Prosecutors Norberto J. Quisumbing and Antonio Villegas for petitioner. Gonzalo W. Gonzales and Bausa, Ampil and Suarez for respondent Pacita M. Gonzales. Estanislao A. Fernandez for the other respondents. LABRADOR, J.: In Criminal Case No. 36885 of the Court of First Instance of Manila, respondents Pacita Madrigal-Gonzales and others charged with the crime of falsification of the public documents, in their capacities as public officials and employees, by having made it appear that certain relief supplies and/or merchandise were purchased by Pacita Madrigal-Gonzales for distribution to calamity indigents or sufferers, in such quantities and at such prices and from such business establishments or persons as are made to appear in the said public documents, when in fact and in truth, no such distributions of such relief and supplies as valued and supposedly purchased by said Pacita Madrigal Gonzales in the public and official documents had ever been made.

In order to prove the charge of falsification, the prosecution presented to a witness a booklet of receipts, which was marked Exh. "D", containing value invoices numbered 101301 to 101400 of the Metro Drug Corporation, Magallanes corner Jakosalem, Cebu City. The booklet contained the triplicate copies, and according to said witness the original invoices were sent to Manila office of the company, the duplicates to the customers, so that the triplicate copies remained in the booklet. Witness further explained that in preparing receipts for sales, two carbons were used between the three sheets, the original, the duplicate and triplicate so that the duplicates and the triplicates were filed out by the use of the carbons in the course of the preparation and signing of the originals. The witness giving the testimony was the salesman who issued a triplicates marked as Exh. "D-1". As the witness was explaining the figures or words appearing on the triplicates, Hon. Bienvenido M. Tan, then presiding in the court below, interrupted the proceeding holding that the triplicates are not admissible unless it is first proven that the originals were lost and can not be produced. Said the court: Triplicates are evidence when it is proven first that the original is lost cannot be produced. But as the witness has alleged that the original is in the Manila Office, why not produce the original? Another witness, accountant of the Metro Drug Corporation in Manila, was also called by the prosecution to testify. He declared that sales in the provinces were reported to the Manila office of the Metro Drug Corporation, and that the originals of the sales invoices are transmitted to the main office in support of cash journal sheets, but that the original practice of keeping the original white copies no longer prevails as the originals are given to the customers, while only the duplicate or pink copies are submitted to the central office in Manila. Testifying on certain cash journal sheets, Exhs. "A", "A-1" to "A-10" he further declared that he received these from the Metro Drug Corporation, Cebu branch, and that the said cash journal sheets contained the sales made in the Cebu branch. After the cross-examination of this last witness, the prosecution again went back to the identification of the triplicate invoice, Exh. "D-1", already above referred to. It was at this stage that the judge below told the prosecution that the law applicable is Section 46, Rule 123 of the Rules of Court, which requires the production of the originals. In response to the above ruling, the special prosecutor claimed that the evidence of the prosecution would not be able to secure the production of the originals on account of their loss. In view of the above circumstances, the prosecution announced its intention to file a petition for certiorari against the ruling of the court below to which the court below to which the court below agreed. Hence this petition. It is alleged that the invoice sought to be introduced, which were produced by the use of carbon sheets, and which thereby produced a facsimile of the originals, including the figures and the signatures on the originals, are regarded as duplicate originals and may introduced as such, even without accounting for the non-production of the originals.

The decision of the question is far from difficult. The admissibly of duplicates or triplicates has long been a settled question and we need not elaborate on the reasons for the rule. This matter has received consideration from the foremost commentator on the Rules of Court thus: "When carbon sheets are inserted between two or more sheets of writing paper so that the writing of a contract upon the outside sheet, including the signature of the party to be charged thereby, produces 2 facsimile upon the sheets beneath, such signature being thus reproduced by the same stroke of the pen which made the surface or exposed impression, all of the sheets so written on are regarded as duplicate originals and either of them may be introduced in evidence as such without accounting for the nonproduction of the others." (Moran, 1952 ed., p. 444.) It has also been in favor of the petitioner by US in the case of People vs. Quinones, 44 Off. Gaz., No. 5, 1520, 1525, thus: It is argued in the second assignment of error that the confession Exhibit B is not admissible because it is merely a carbon copy. The said confession Exhibit B, being a carbon copy of the original and bearing as it does the signature of the appellant, is admissible in evidence and possess all the probative value of the original, and the same does not require an accounting for the non-production of the original. (Sec 47, Rule 123, Rules of Court). Two principal authors on the law on evidence have sustained the theory of the admissibility of duplicate originals, as follows: SEC. 386. . . . the best evidence rule is that rule which requires the highest grade of evidence obtainable to prove a disputed fact. p. 616. A "duplicate sales slip" (People vs. Stone, 349 III. 52, 181 N. E. 648) has been held to be primary evidence, p. 616. SEC. 420. Duplicate originals. Where letters are produced by mechanical means and, concurrently with the original, duplicate are produced, as by placing carbon paper and writing on the exposed surface at the same time, all are duplicate originals, and any one of them may introduced in evidence without accounting for the nonproduction of the other. Citing International Harvester Co. vs. Elfstrom, 101 Minn. 263, 112 N. W. 252. See also 12 L.R.A.(N.S.) 343, People of Hauke, 335 II, 217, 167 N. E. 1; State vs. Keife, 165 La. 47, 115 So. 363; Taylor vs. Com. 117 Va. 909, 85 S.E. 499. (Wharton's Criminal Evidence, Vol. I, p. 661). SEC. 100. Carbon copies, however, when made at the same time and on the same machine as the original, are duplicate originals, and these have been held to be as much primary evidence as the originals. Citings U.S. vs. Manton, 107 Fed. (2d) 834, denied 309 U. S. 664, 84 L. ed. 1012; O'Shea vs. U.S. 93 F. (2d) 169; Leonard vs. State, 36 Ala. App. 397, 58 So. (2d) 138; State vs. Lee, 173 La. 770, 138 So. 662; Newman vs. State 65 Ga. App. 288, 16 S. E. (2d) 87. (Underhill's Criminal Evidence, 5th ed., Vol. I, p. 168.)

We find that the ruling of the court below to the effect that the triplicates formed by the used of carbon papers are not admissible in evidence, without accounting first for the loss of the originals is incorrect and must be reversed. The court below is hereby ordered to proceed in the trial of the case in accordance with this ruling. No cost. So ordered.
G.R. THE vs. BERNARDO No. UNITED GREGORIO and STATES, EUSTAQUIO for BALISTOY, L-5791 plaintiff-appellee, defendants-appellants. Gregorio. Balistoy. appellee. J.:

Albert E. Cayetano Attorney-General Torres,

Somersille, Hipolito, for Villamor,

appellant appellant for

Appeals were interposed by the defendants Bernardo Gregorio and Eustaquio Balistoy from the judgment rendered in the two causes prosecuted, No. 1574, against Bernardo Gregorio, and No. 1575, against Eustaquio Balistoy, which were consolidated and in which but one judgment was rendered, and forwarded to this court and registered under No. 5791. In the suit instituted by Pedro Salazar, as a creditor, against Eustaquio Balistoy, in the justice of the peace court of Libog, for the payment of a certain sum of money, judgment was rendered, on April 4, 1908, wherein the debtor was sentenced to pay to the plaintiff P275.92, with interest thereon, and the costs. For the execution of the said judgment, two rural properties belonging to the debtor were attached and the 27th of May, 1908, was set as the date for the sale and adjudication of the said attached properties to the highest bidder. On the 18th of the same month, Bernardo Gregorio requested the deputy sheriff to exclude the said realty from the attachment, alleging that he was the owner of the land situated in Tambogon, one of the properties levied upon, 400 brazas in circumference, situate in the pueblo of Bacacay, the location and boundaries of which are expressed in his petition, for the reason that he had acquired it by purchase from the judgment debtor, Balistoy, in 1905, prior to the filing of the complaint. By reason of this claim and petition the judgment creditor, Salazar, had to give a bond, in view of which the sheriff proceeded with the sale of the said property, and of another, also attached for the sum of P300, and both were adjudicated to the judgment creditor, according to the certificate, Exhibit C. In order that the claim of intervention presented to the sheriff might prosper, Bernardo Gregorio attached thereto the document Exhibit D, at the end of which and among other particulars appears the memorandum dated in Libog as of February 22, 1905, and signed by Eustaquio Balistoy, Lorenzo Gregorio, and Cirilo Valla, and in which Balistoy states that he bought the land referred to in the said document from Luis Balistoy and sold it to Bernardo Gregorio for P300, wherefore he signed as such vendor. The charge consists in that Balistoy, with intent to injure his creditor, Pedro Salazar, and for the purpose of avoiding the attachment and sale of one of the properties belonging to him, to secure the payment of the judgment obtained by his creditor in the aforementioned suit, did, with disregard of the truth in the narration of the facts, execute or write the said memorandum whereby, on February 25, 1905, he made

or simulated a conveyance of one of the attached properties in favor of the said Bernardo Gregorio, according to the aforesaid copy, when in fact the said memorandum was written in April, 1908. For the foregoing reasons a complaint was filed in each of the two aforesaid causes in the Court of First Instance of Albay, charging each of the defendants with the crime of the falsification of a private document, and proceedings having been instituted in both causes, which were afterwards, by agreement of the parties thereto, consolidated, the court, on November 6, 1909, pronounced in both of them the judgment appealed from, written in duplicate, whereby Balistoy was sentenced to the penalty of one year eight months and twenty-one days of presidio correccional, to the accessory penalties, to pay a fine of 1,501 pesetas, and, in case of nonpayment thereof through insolvency, to suffer the corresponding subsidiary imprisonment, provided it should not exceed one-third of the principal sentence, and to pay the costs incurred in cause No. 1575; and likewise, Bernardo Gregorio was sentenced to the penalty of three months and eleven days of arresto mayor, to pay a fine of 1,980 pesetas, and, in case of insolvency, to the corresponding subsidiary imprisonment, with the provision that it should not exceed one-third of the principal penalty, to the accessory punishments, and to pay the costs occasioned by cause No. 1574. From these sentences the defendants, respectively, appealed hkUX7sJe. This case concerns the falsity of a document alleged to have been written on a date prior to the one when it actually was prepared, which instrument simulates the sale of a parcel of land by its owner to a third party, with the intent to defraud the creditor who, through proper judicial process, solicited and obtained the attachment and sale of the said property in order, with the proceeds of such sale, to recover the amount which the owner of the land owed him. The sale was recorded in a memorandum, made upon a private document, according to the alleged copy of the latter presented at trial which belonged to the owner of land; and, notwithstanding the fact that the sheriff, who carried out the proceedings of attachment and sale, testified to his having seen the original of the said document, or at least the original memorandum of the conveyance, the only record that could be of use to the intervener, who claimed a lien on the land which was to be sold at public auction; certainly the mere exhibition of a copy of an unauthenticated private document could not legally produce the effect of suspending the sale of the said land, inasmuch as such copy is not sufficient proof of the right of the intervener and opponent, being e mere copy of a private document whose legality has not been proven. In the charge filed in this cause against the vendor and the vendee of the land in question, it is stated that these parties, the defendants, simulated the said memorandum of sale or conveyance of the land with the intent to injure the creditor, Pedro Salazar; but as the original document, setting forth the said memorandum, was not presented, but merely a copy thereof, and furthermore, as it could not be ascertained who had the original of the document containing the memorandum in question, nor the exact date when the latter was written; the said memorandum, presumed to be simulated and false, was not literally compared by the sheriff who testified that he had seen its original for but a few moments, nor by any officer authorized by law to certify to documents and proceedings such as are recorded in notarial instruments, nor even by two witnesses who might afterwards have been able to testify before the court that the copy exhibited was in exact agreement with its original; therefore, on account of these deficiencies, doubt arises as to whether the original of the document, Exhibit D, really existed at all, and whether the memorandum at the foot of the said exhibit is an exact copy of that alleged to have been written at the end of the said original document.

In criminal proceedings for the falsification of a document, it is indispensable that the judges and courts have before them the document alleged to have been simulated, counterfeited, or falsified, in order that they may find, pursuant to the evidence produced in the cause, whether or not the crime of falsification was committed, and also, at the same time, to enable them to determine the degree of each defendant's liability in the falsification under prosecution. Through the lack of the original document containing the memorandum alleged to be false, it is improper to hold, with only a copy of the said original in view, that the crime prosecuted was committed; and although, judging from the testimony of the witnesses who were examined in the two consolidated causes, there is reason to entertain much doubt as to the defendants' innocence, yet, withal, this case does not furnish decisive and conclusive proof of their respective guilt as coprincipals of the crime charged. Defendants in a criminal cause are always presumed to be innocent until their guilt be fully proven, and, in case of reasonable doubt and when their guilt is not satisfactorily shown, they are entitled to a judgment of acquittal. In view of the evidence produced in both of the aforesaid criminal causes, said causes can only be terminated by such a finding. For the foregoing reasons, it is proper, in our opinion, with a reversal of the judgment appealed from, to acquit, and we hereby do acquit Eustaquio Balistoy and Bernardo Gregorio, with the costs of both instances de oficio. So ordered.

G.R. No. L-35366

August 5, 1931

THE PROVINCIAL FISCAL OF PAMPANGA, petitioner, vs. HERMOGENES REYES, Judge of First Instance of Pampanga, and ANDRES GUEVARRA, respondents. Provincial Fiscal Daza in his own behalf. Monico R. Mercado for respondent judge. Francisco Lazatin for respondent Guevarra. VILLAMOR, J.: The petitioner prays for a writ of mandamus to compel the respondent judge to admit Exhibits A, B, C, and D (attached to the petition), as evidence for the prosecution in criminal cases Nos. 4501 and 4502 of the Court of First Instance of Pampanga. The provincial fiscal of Pampanga filed two informations for libel against Andres Guevarra. The informations alleged that the defendant, with malicious intent, published on page 9 of the weekly paper Ing Magumasid in its issue of July 13, 1930, a squib in verse, of which a translation into Spanish was included therein, intended to impeach the honesty, integrity, and reputation of Clemente Dayrit (information in criminal cause No. 4501) and of Mariano Nepomuceno (information in criminal cause No. 4502). The defendant demurred on the ground of duplicity of informations, he having published only one libelous article in the Ing Magumasid for July 13, 1930. The court overruled the demurrer.

A joint trial was held of criminal cases Nos. 4501 and 4502. The fiscal attempted to present as evidence for the prosecution, the aforementioned Exhibits A, B, C, and D, which are copies of the Ing Magumasid containing the libelous article with the innuendo, another article in the vernacular published in the same weekly, and its translation into Spanish. Counsel for the defendant objected to this evidence, which objection was sustained by the court. The respondents answered the petition for mandamus, praying for its dismissal with costs against the petitioner. At the hearing of this case, both parties appeared and moved that they be allowed to present memoranda in lieu of an oral argument, which memoranda are in the record. The petitioner contends that the exhibits in question are the best evidence of the libel, the subject matter of the information, and should therefore be admitted; while the respondents maintain that, inasmuch as the libelous articles were not quoted in the information, said evidence cannot be admitted without amending the information. The prosecution asked for an amendment to the information, but the court denied the petition on the ground that it would impair the rights of the defendant, holding that the omission of the libelous article in the original was fatal to the prosecution. The first question raised here is whether an information charging a libel published in an unofficial language, without including a copy of the libelous article, but only a translation into Spanish, is valid or not. It is true that in United States vs. Eguia and Lozano (38 Phil., 857), it was stated: "The general rule is that the complaint or information for libel must set out the particular defamatory words as published, and a statement of their substance and effect is usually considered insufficient." But this general rule does not exclude certain exceptions, such as, cases where the libel is published in a non-official language. "When the defamation has been published in a foreign tongue, it is proper, and in general, necessary, to set out the communication as it was originally made, with an exact translation into English; and if from the translation no cause of action appears, it is immaterial that the foreign words were actionable. In some jurisdictions, however, under the influence of the liberality of laws on practice, it is held unnecessary to set out the communication in the foreign language in which it is alleged to have been published, so long as the foreign publication is alleged, with an English translation attached." (37 C. J., 27, sec. 336.) If the libelous article had been published in one of our official languages, English or Spanish, it would have been necessary to follow the general rule; but since the article in question was published in the Pampango dialect, it is sufficient to insert a Spanish translation in the information. The justice of this exception to the general rule becomes more evident if we consider a libelous article published, for instance, in Moro or Chinese, who use characters different from our own. The second question refers to the admissibility of the aforesaid exhibits. The general rules regarding the admissibility of evidence are applicable to cases of libel or slander. The evidence must be relevant, and not hearsay. (37 C.J., 151, sec. 688.) This being so, the rule of procedure which requires the production of the best evidence, is applicable to the present case. And

certainly the copies of the weekly where the libelous article was published, and its translation, constitute the best evidence of the libel charged. The newspaper itself is the best evidence of an article published in it. (Bond vs. Central Bank of Georgia, 2 Ga., 92.). The respondent judge undoubtedly has discretion to admit or reject the evidence offered by the fiscal; but in the instant case his refusal to admit such evidence amounts to an abuse of that discretion, which may be controlled by this court by means of mandamus proceedings. In so far as the jurisdiction of this court is concerned, we believe the doctrine is applicable which was held in Orient Insurance Co. vs. Revilla and Teal Motor Co. (54 Phil., 919), namely, that the Supreme Court has jurisdiction to entertain an application for a writ of mandamus to compel a Court of First Instance to permit the attorney of a litigant to examine the entire written communication, when part of the same has been introduced in evidence by the other party. Wherefore, the writ prayed for against the respondent judge of the Court of First Instance of Pampanga should be issued, requiring him to admit Exhibits A, B, C, and D, in question in criminal cases Nos. 4501 and 4502 of that court, and it is so ordered, without special pronouncement of costs. G.R. No. L-28999 May 24, 1977 COMPAIA MARITIMA, plaintiff-appellee, vs. ALLIED FREE WORKERS UNION, SALVADOR T. LLUCH, MARIANO LL. BADELLES, individually and in their capacities as President and Vice-President, respectively of the Allied Free Workers Union, NICANOR HALEBAS and LAURENTINO LL. BADELLES, individually and officers of Allied Free Workers Union, defendants-appellants. Halibas, Badelles, Padilla & Sepulveda and Vicente A. Rafael & Associates for defendants-appellants. Rufino J. Abadies, Francisco Obach & Jesus Quijano for appellee.

AQUINO, J.: Antecedents. - Since the onset in 1954 of litigation between the parties herein, this is the fifth case between them that has been elevated to this Court. The incidents preceding the instant appeal are as follows: On August 11, 1952 the Compaia Maritima and the Allied Free Workers Union entered into a written contract whereby the union agreed to perform arrastre and stevedoring work for the consignees. vessels at Iligan City. The contract was to be effective for one month counted from August 12, 1952.

It was stipulated that the company could revoke the contract before the expiration of the term if the union failed to render proper service. The contract could be renewed by agreement of the parties (Exh. J). At the time the contract was entered into, the union had just been organized. Its primordial desire was to find work for its members. The union agreed to the stipulation that the company would not be liable for the payment of the services of the union "for the loading, unloading and deliveries of cargoes" and that the compensation for such services would be paid "by the owners and consigness of the cargoes" as "has been the practice in the port of Iligan City" (Par. 2 of Exh. J). The union found out later that that stipulation was oppressive and that the company was unduly favored by that arrangement. Under the contract, the work of the union consisted of arrastre and stevedoring service. Arrastre, a Spanish word which refers to hauling of cargo, comprehends the handling of cargo on the wharf or between the establishment of the consignee or shipper and the ship's tackle. The service is usually performed by longshoremen. On the other hand, stevedoring refers to the handling of the cargo in the holds of the vessel or between the ship's tackle and the holds of the vessel. The shippers and consignees paid the union oth for the arrastre work. They refused to pay for the stevedoring service. They claimed that the shipowner was the one obligated to pay for the stevedoring service because the bill of lading provided that the unloading of the cargo was at the shipowner's expense (Exh. 1). On the other hand, the company refused to pay for the stevedoring service because the contract (Exh. J) explicitly provided that the compensation for both arrastre and stevedoring work should be paid by the shippers and consignees, as was the alleged practice in Iligan City, and that the shipowner would not be liable for the payment of such services. Thus, the issue of whether the company should pay for the stevedoring service became a sore point of contention between the parties. The union members labored under the impression that they were not being compensated for their stevedoring service as distinguished from arrastre service. Although the arrastre and stevedoring contract (Exh. J) was disadvantageous to the union, it did not terminate the contract because its members were in dire need of work and work, which was not adequately compensated, was preferable to having no work at all (204, 214-5, 226-7 tsn May 20, 1960). Upon the expiration of the one-month period, the said contract was verbally renewed. The company allowed the union to continue performing arrastre and stevedoring work.

On July 23, 1954 the union sent a letter to the company requesting that it be recognized as the exclusive bargaining unit to load and unload the cargo of its vessels at Iligan City. The company ignored that demand. So, the union filed on August 6, 1954 in the Court of Industrial Relations (CIR) a petition praying that it be certified as the sole collective bargaining unit. Despite that certification case, the company on August 24, 1954 served a written notice on the union that, in accordance with payment of the 1952 contract, the same would be terminated on August 31, 1954. Because of that notice, the union on August 26, 1954 filed in the CIR charges of unfair labor practice against the company. On August 31, 1954 the company entered into a new stevedoring and arrastre contract with the Iligan Stevedoring Association. On the following day, September 1, the union members picketed the wharf and prevented the Iligan Stevedoring Association from performing arrastre and stevedoring work. The picket lasted for nine days. On September 8, 1954 the company sued the union and its officers in the Court of First Instance of Lanao for the rescission of the aforementioned 1952 contract, to enjoin the union from interfering with the loading and unloading of the cargo, and for the recovery of damages. On the following day, September 9, the lower court issued ex parte a writ of preliminary injunction after the company had posted a bond in the sum of P20,000. A few hours lateron that same day the union was allowed to file a counterbond. The injunction was lifted. The union members resumed their arrastre and stevedoring work. Later, the union assailed in a prohibition action in this Court the jurisdiction of the trial court to entertain the action for damages, and injunction. A majority of this Court held that the lower court had jurisdiction to issue the injunction and to take cognizance of the damage suit filed by the company but that the injunction was void because it was issued ex parte and the procedure laid down in section 9(d) of Republic Act No. 875 was not followed by the trial court (Allied Free Workers Union vs. Judge Apostol, 102 Phil. 292, 298). After trial, the lower court rendered a decision dated December 5, 1960, amended on January 11, 1961, (1) declaring the arrastre and stevedoring contract terminated on August $1, 1954; (2) dismissing the union's counterclaim; (3) ordering the union and its officers to pay solidarily to the company P520,000 as damages, with six percent interest per annum from September 9, 1954, when the complaint. was filed; (4) permanently enjoining the union from performing any arrastre and stevedoring work for the company at Iligan City, and (5) requiring the union to post a supersedeas bond in the sum of P520,000 to stay execution. The union filed a motion for reconsideration. On the other hand, the company filed a motion for the execution pending appeal of the money judgment. It filed another motion

for the immediate issuance of a writ of injunction. That second motion was filed in the municipal court of Iligan City in view of the absence of the District Judge. The municipal court issued the writ of injunction. However, this Court set it aside because it was not an interlocutory order and no special reasons were adduced to justify its issuance (Allied Free Workers Union vs. Judge Estipona, 113 Phil. 748). The union on January 6, 1961 had perfected an appeal from the lower court's original decision. It did not appeal from the amended decision. On March 24, 1962 the lower court issued an order declaring its amended decision final and executory in view of the union's failure to appeal therefrom. The court directed the clerk of court to issue a writ of execution. That order was assailed by the union in a certiorari action filed in this Court. A preliminary injunction was issued by this Court to restrain the execution of the judgment. On May 16, 1962 this Court dissolved the injunction at the instance of the company which had filed a counterbond. Thereupon, the 225 members of the union yielded their ten-year old jobs to the new set of workers contracted by the company. The certiorari incident was decided on June 30, 1966. This Court noted that the lower court amended its decision for the purpose of correcting certain errors and omissions which were not substantial in character and that its amended decision was served upon the parties after the union had perfected its appeal from the original decision. Under those circumstances, this Court held that the union's appeal should be given due coarse, subject to the amendment of its record on appeal. This Court reserved to the members of the union the right to secure restitution under sections 2 and 5, Rule 39 of the Rules of Court (Allied Free Workers Union vs. Estipona, L-19651, June 30, 1966,17 SCRA 513, 64 O.G. 2701). Pursuant to that reservation, the union on December 16, 1966 filed a motion for restitution, praying that its 225 members be restored to their jobs and that the company be ordered to pay P 1,620,000 as damages, consisting of the lost earnings during the four-years period from May 8, 1962 to May 8, 1966. On the other hand, the company in its motion of January 18, 1967 reiterated its 1960 motion for the execution of the lower court's judgment as to the damages, of P520,000 and the permanent injunction. Later, the company called the lower court's attention to this Court's decision dated January 31, 1967. In that decision, this Court affirmed the CIR's decision holding that the company did not commit any unfair labor practice and reversed the CIR's directive that a certification election be held to determine whether the union should be the exonemtod bargaining unit. This Court held that the union could not act as a collective bargaining unit because the union was an independent contractor and its members

were not employees of the company (Allied Free Workers Union vs. Compaia Maritima, L-22951-2 and L-22971, 19 SCRA 258). The lower court in its order of April 25, 1967 (1) denied the union's motion for restitution and to stay execution of its amended decision on January 11, 1961 and (2) required the union to file a supersedeas bond in the sum of P100,000 within thirty days from notice. The bond was reduced to P50,000 in the lower court's order of August 16, 1967. The union posted the bond on August 24,1967. The lower court approved the union's amended record on appeal in its order of October 6, 1967. The union appealed directly to this Court because the amount involved exceeds P200,000. The appeal was perfected before Republic Act No. 5440 took effect on September 9,1968. Other proceedings. - The company in its original complaint prayed that the union and its officials be ordered to pay actual damages, amounting to P15,000 for the union's failure to load and unload cargo in and from the consignees. vessels from September 1 to 8, 1954; P50,000 as damages, due to the union's inefficiency in performing arrastre and stevedoring work "during the latter part of the existence" of the contract; P50,000 as moral and exemplary damages, (not supported by any allegation in the body of the complaint) and P5,000 as attorney's Considering (10-12, Record on Appeal). On September 15, 1954 the company added a fourth cause ofaction to its complaint. It alleged that by reason of the acts of harassment and obstruction perpetrated by the union in the loading and unloading ofcargo the company suffered additional damage in the form of lost and unrealized freight and passenger charges in the amount of P10,000 for September 9 and 10, 1954 (66, Record on Appeal). On November 2, 1954 the company attached to its motion for the revival of the injunction against the union an auditor's report dated September 15, 1954 wherein it was indicated that the company lost freight revenues amounting to P178,579.20 during the period from January 1 to September 7, 1954 (121-143, Record on Appeal). On November 27, 1954 the company filed another motion for the restoration of the injunction. In support of that motion the company attached a trip operation report showing the unloaded cargoes on the consignees. vessels, when they docked at Iligan City on September 14, 19, 22 and 26 and October 3 and 5, 1954, as well as the delays in their departure (157-162, Record on Appeal). On March 5, 1955 the company added a fifth cause ofaction too its complaint. It alleged that during the period from September 12 to December 28, 1954 it lost freight charges on unloaded cargoes in the sum of P62,680.12, as shown in a detailed statement, and that it incurred an estimated amount of P20,000 for overhead expenses. for the delay in

the dismissal of its vessels attributable to the union's unsatisfactory stevedoring and arrastre work (225-229, 237-8, Record on Appeal). Also on March 5, 1955 the union answered the original and supplemental complaints. It denied that its members had rendered inefficient service. It averred that the termination of the contract was prompted by the consignees. desire to give the work to the Iligan Stevedoring Association which the company had allegedly organized and subsidized. The union filed a counterclaim for P200,000 as compensation for its services to the company and P500,000 as other damages, (239-252, Record on Appeal). On March 9, 1960 the company filed a third supplemental complaint, It alleged that the continuation of the stevedoring and arrastre work by the union for the company from 1955 to date had caused losses to the company at the rate of P25,000 annually in the form of lost freight on shutout cargoes and the expenses. for the equipment used to assist the union members in performing their work (320-3, Record on Appeal). Plaintiff company's evidence. - Jose C. Teves, the consignees. branch manager at Iligan City, testified that on August 24, 1954 he terminated the arrastre and stevedoring contract with the union (Exh. J) upon instruction of the head office. The contract was terminated in order to avoid further losses to the company caused by the union's inefficient service (85-86 tsn March 11, 1960). After the termination of the contract, the members of the union allegedly harassed the company with the help of goons. The cargoes could not be unloaded in spite of the fact that the company had sought the protection of the law-enforcing authorities (88). The consignees. last recourse was to go to court. (89). The company supposedly suffered losses as a result of the union's inefficient service since September 1, 1954 (91). Teves hired auditors to ascertain the losses suffered by the company during the period from January 1 to September 11, 1954. The trial court awarded actual damages, amounting to P450,000 on the basis of the auditor's reports, Exhibits A to I. It did not carefully examine the said exhibits. Contrary to the trial court's impression, Exhibits B, C and D are not auditors' reports. The trial court did not bother to make a breakdown of the alleged damages, totalling P450,000. The reports of the two hired accountants, Demetrio S. Jayme and M. J. Siojo, show the following alleged damages, in the aggregate amount of P349,245.37 (not P412,663.17, as erroneously added by the consignees. counsel, 161,163-4 tsn March 11, 1960): TABULATION OF ALLEGED DAMAGES CLAIMED BY COMPAIA MARITIMA (1) Freight for 74,751 bags of fertilizer

allegedly booked for shipment in the company's vessels but loaded in other vessels during the period from Jan. 1 to August 31, 1954, Statement A in Exh. A, CPA Jayme's report......................................................... (2) Lost freight on other shutout cargoes for January 1 to August 31, 1954, Statement A in Exh. A, of CPA Jayme ......................... (3) Lost freight on shutout cargoes for September 2 to 7, 1954 booked for shipment in M. V. Mindoro, Panay and Masterhead Knot, Statement B in Exh. A, CPA Jayme's report... (4) Losses sustained in voyages of M.V. Panay and Mindoro in four voyages from September 4 to 11, 1954, with estimates, Statement B, Exh. A............................... (5) Other estimated losses for the said voyages of M.V. Panay and Mindoro for the same period, based on interviews of parties at the wharf, Statement B, Exh. A............... (6) Additional subsistence expenses. for the M.V. Mindoro and Panay due to the delays in their dismissal from January 1 to August 31, 1954 as certified by the pursers of the two vessels, Statement C, Exh. A..................... (7) Estimated loss in freight and passenger 4,407.50 10,000.00 3,764.50 6,167.16 4,339.64 P29,900.40

revenue for the period from January 1 to August 31, 1954, based on 1953 freight revenue for the same period Statement D, Exh. A..... (8) Estimated loss in passenger fares for the period from September to December 31, 1954, Statement D, Exh. A....................... (9) Lost freight charges from September 12 to December 28, 1954, as certified by the chief clerk of the consignees. Iligan office. Exh. B............................................................. (10) Estimated overhead expenses for delay of vessels in port, Exh. B................. (11) Forklift operating expenses. for 1955, consisting of salaries and maintenance expenses, Exh. E- 1.................................... (12) Lost freight revenue for 1955, Exh. E2............................................................... (13) Forklift operating expenses. for 1956, Exh. F- 1................................................... (14) Lost freight revenue for 1956, Exh. F-2 (15) Forklift operating expenses. for 1957, Exh. G- 1................................................... (16) Lost freight revenue for 1957, Exh. G2.................................................................... (17) Forklift operating expenses. for 1958, Exh. H-1................................................... 7,503.45 14,538.10 8,259.08 3,520.90 3,849.56 17,838.78 5,677.54 20,000.00 62,680.12 20,000.00 100,000.00

(18) Lost freight revenue for 1958, Exh. H2............................................................. (19) Forklift operating expenses. for 1959, Exh. I-1.................................................... (20) Lost freight revenue for 1959, Exh. I-2 T OT A L 8,745.35 7,959.83 P349,245.37 10,193.46

We tabulated the alleged damages, to show that the trial court's award to the company of P450,000 as damages, is not supported by the evidence. On the other hand, the statement of the consignees. counsel that the damages, totalled P412,663.17 (162- 164 tsn March 11, 1960) is wrong. Teves, the consignees. branch manager, submitted a statement (Exh. K) showing the alleged cost of three forklifts, 200 pieces of pallet boards, 530 pieces of wire rope slings and two pieces of tarpaulins in the total sum of P27,215. In that statement, he claims that the damages, to the company by reason of the depreciation of the said items of equipment amounted to P38,835 or more than the cost thereof. The company's counsel, in his summary of the damages, ignored the alleged damages, of P38,835 indicated by Teves in Exhibit K. The consignees. counsel relied oth on the auditors' reports, Exhibits A and E to I and on Exhibit B, the chief clerk's statement. As already noted, those documents show that the total damages, claimed by the company amounted to P349,245.37. The best evidence on the cost of the said equipment would have been the sales invoices instead of the oral testimony of Teves. He did not produce the sales invoices. Teves further testified that Salvador T. Lluch was the president of the union; Nicanor Halibas, the treasurer; Mariano Badelles, the general manager, and Luarentino Badelles, a vice president. Appellants' statement of facts. - To sustain their appeal, the appellants made the following exceedingly short and deficient recital of the facts:
Sometime in the month of August, 1954, defendant, Allied Free Workers Union filed an unfair labor practice case against defendant (should be plaintiff) and its branch manager, Mr. Jose Teves, with the Court of Industrial Relations, Manila, and docketed as Case No. 426-UPL: defendant union also filed a petition for certification election docketed as Case No, 175-MC against plaintiff; defendant union also filed a notice of strike dated August 27, 1954; the Secretary of Labor wired the public defender, Iligan City, on August 27, 1954 (see annexes 1-4, motion to dismiss, Record on Appeal, pp. 54-65).

To counteract these legitimate moves of labor, plaintiff filed the complaint docketed as Civil Case No. 577 in the Court of First Instance of Lanao (now Lanao del Norte) for damages, and/or resolution of contract with writ of preliminary injunction, On a decision adverse to their interests, defendants take this appeal. On the question of jurisdiction taken before this Honorable Tribunal in G.R. No. L-8876, it was held: ... for the instant case merely refers to the recovery of damages, occasioned by the picketing undertaken by the members of the union and the rescission of the arrastre and stevedoring contract previously entered into between the parties.

The appellants did not discuss their oral and documentary evidence.

First assignment of error. - The appellants contend that the trial court erred in awarding to the company actual damages, amounting to P450,000, moral damages, of P50,000 and attorney's Considering of P20,000, and in holding that the four officers of the union are solidarily liable for the said damages. Appellants' counsel assailed the award of actual damages, on the ground that the auditors' reports, on which they were based, were hearsay. After analyzing the nature of the damages, awarded, how the same were computed, and the trustworthiness of the company's evidence, we find the first assignment of error meritorious. We have already stress that, on the basis of the reports of the two accountants, the damages, claimed by the complaint as a matter of simple addition, does not reach the sum of P 450,000 fixed by the trial court. The damages, shown in the accountants' reports and in the statement made by the consignees. chief clerk (who did not testify) amount to P349,245.37, or much less than P450,000. The company argues that the accountants' reports are admissible in evidence because of the rule that "when the original consists of numerous accounts or other documents which cannot be examined in court without great loss-of time and the fact sought to be established from them is oth the general result of the whole", the original writings need not be produced (Sec. 2[e], Rule 130, Rules of Court). That rule cannot be applied in this case because the voluminous character of the records, on which the accountants' reports were based, was not duly established (U. S. vs. Razon and Tayag, 37 Phil. 856, 861; 29 Am Jur 2nd 529). It is also a requisite for the application of the rule that the records and accounts should be made accessible to the adverse party so that the company, of the summary may be tested on cross-examination (29 Am Jur 2nd 517-8; 32A C.J.S. 111).

What applies to this case is the general rule "that an audit made by, or the testimony of, a private auditor, is inadmissible in evidence as proof of the original records, books of accounts, reports or the like" (Anno 52 ALR 1266). That general rule cannot be relaxed in this case because the company failed to make a preliminary showing as to the difficulty or impossibility attending the production of the records in court and their examination and analysis as evidence by the court (29 Am Jur 2nd 529). A close scrutiny of the accountants' reports reveals their lack of probative value. The propriety of allowing the different items of damages, is discussed below. Unrealized freight and passenger revenue for 1954 ascertained by Accountant Demetrio S. Jayme. - In his report (Exh. A, pp. 134 to 147, Record on Appeal), Jayme used the pronouns "we" and "our" and made reference to the examination made by the "auditors" and his accounting office. He did not disclose the names of other "auditors" who assisted him in making the examination of the consignees. records. He gave the impression that he was an independent accountant hired by the company to make a "special investigation" of the consignees. losses for the period from January 1 to September 7, 1954. The truth is that Jayme was a "personal friend" of Teves, the consignees. branch manager at Iligan City. Teves was the consignees. principal witness in this case. He verified the complaint. herein. He signed for the company the stevedoring and arrastre contract which he later rescinded. In fact, Teves intervened in the drafting of the contract. It was his Idea that the company should not pay the arrastre and stevedoring Considering and that those charges should be borne by the shippers and consignees. Jayme was not only the friend of Teves but was also his co-employee. Jayme was the consignees. branch manager at Ozamis City and later at Cagayan de Oro City (217-8 tsn May 20, 1960; Exh. 12). He suppressed that fact in his report of examination. Apparently, the practice of accounting was his sideline or he practised accounting and, as the saying goes, he moonlighted as the consignees. branch manager. Obviously, Jayme would be biased for the company. He violated a rule of the accountants' code of ethics by not disclosing in his report of examination that he was an employee of the company (84 tsn June 2, 1960). Accountant Jayme allegedly found from the consignees. records at Iligan City that its freight and passenger revenue for the eight- month period from January 1 to August 31, 1953 amounted to P373,333.14 and that for the same period in 1954, that revenue amounted to P470,716.29, or an increase of P97,383.12 (Statement D of Exh. A, 145, Record on Appeal).

Jayme interpreted those figures as signifying that the company would have realized more revenue if the union had rendered better service. He reasoned out that there was a big volume of business in Iligan City due to the Maria Cristina Fertilizer Plant, Iligan Steel Mill and NPC Hydroelectric Plant. He imagined that the consignees. freight revenue during the first eight months of 1954 could have amounted to at least P600,000 and that since it actually realized oth P 470,716.29, its loss of freight revenue for that period could be "conservatively" estimated at least P100,000 (item 7 of the tabulation of damages). He stated that he attached to his report on the comparative statement of gross revenue a certificate of the captain of the vessel Panay showing the delays in its dismissal in Iligan City as indicated in its logbook. No such document was attached to Jayme's report. And from the fact that the total fares received by the company during the eight-month period were reduced in the sum of P3,951.58 (Jayme fixed the reduction at the round figure of P4,000), he calculated that the company suffered a loss of at least P20,000 in passenger revenue up to December 31, 1954 (Item 8 of the tabulation of damages). Jayme also included in his report (a) damages, amounting to P10,000 as his estimate of losses supposedly "based on interviews with disinterested parties at the wharf and city proper customers"; (b) damages, amounting to P3,764.50 allegedly suffered in the operation of the vessels Mindoro and Panay from September 4 to 11, 1954, consisting of extra meals, expenses. for unloading cargo, estimated loss in passage revenue for four voyages, and estimated loss from 14 re-routed freights to competing vessels" (consisting of rice, corn and bananas), and (e) the sum of P4,407.50 as alleged additional subsistence incurred for the crew of the Panay and Mindoro from January 1 to August 31, 1954 (items 4, 5 and 6 of the tabulation of damages). The records of the purser and chief steward were allegedly examined in ascertaining those damages. It would not be proper to allow Jayme's estimates as recoverable damages. They are not supported by reliable evidence. They can hardly be sanctioned by the "generally accepted auditing standards" alluded to in Jayme's report. The pertinent records of the company should have been produced in court. The purser and steward did not testify. The rule is that the auditor's summary should not include his conclusions or inferences (29 Am Jur 2d 519). His opinion is not evidence. The trial court unreservedly gave credence to the conjectures of Jayme. Obviously, his inflated guesses are inherently speculative and devoid of probative value. Furthermore, his estimate of the unrealized freight revenue for January 1 to August 31, 1954 overlapped with his computation of the lost freight for the unloaded 74,751 bags of fertilizer and other cargoes covering the same period (Statement A of Exh. A). The foregoing discussion shows Jayme's unreliable modus operandi in ascertaining the 1954 losses which the company claimed to have suffered in consequence of the union's

alleged inefficiency or poor service. It is noteworthy that those losses were not averred with particularity and certitude in the consignees. complaint. The same observations apply with equal cogency to the damages, amounting to P40,407.20 as lost freight revenue also for the year 1954 (items 1 to 3 of the tabulation of damages) which were computed by Accountant Jayme. Those items refer to (1) the sum of P29,900.40 as lost freight revenue on 74,751 bags of fertilizer, already mentioned, which were booked for shipment in the consignees. vessels from January 1 to August 31, 1954 but which were allegedly loaded in other vessels; (2) P4,339.64 as unrealized freight revenue for other cargoes booked in the consignees. vessels but not loaded therein during the same eight-month period, and (3) P6,167,16 as unrealized freight revenue on shutout cargoes not loaded in the consignees. vessels during the six-day period from September 2 to 7, 1954. Jayme allegedly based his computations on the records of the company which were not produced in court. The union objected to Jayme's report as inadmissible under the hearsay rule or as not being the best evidence. Even if the presentation of the records themselves as exhibits should have been dispensed with, yet the complaint to show good faith and fair dealing, could have brought the records in court (manifests, bills of lading, receipts for the freights, if any, etc.) and enabled the court and the union's counsel and its expert accountant to verify the accuracy of Jayme's summaries. Photostatic copies of some manifests and bills of lading proving that the company was not able to collect the stipulated freight on the alleged shutout cargoes should have been proforma. in evidence as supporting papers for Jayme's report. No such exhibits were presented. The flaw or error in relying merely on Jayme's summaries is that, as pointed out by witness Mariano LL. Badelles, cargoes might be shutout due to causes other than the supposed inefficiency of the union. He testified that cargoes were shutout deliberately by the company because they could not be loaded in one vessel (for example, 50,000 bags of fertilizer), or a shipper had no allotment, or because the company did not want to load cargoes like bananas (189-194 tsn May 20, 1960). Jayme's summaries did not take into account the probability that a part of the cargo booked in the consignees. vessel for a certain date might not have been loaded on that date but was loaded in another vessel of the company which docked at the port a few days later, In that case, there would be no loss of freight revenue. The mere shutting out of cargo in a particular voyage did not ipso facto produce loss of freight revenue. Our conclusion is that an injustice would be perpetrated if the damages, aggregating P178,579 computed and estimated in the report of Jayme, a biased witness, should be accepted at their face value.

Damages computed by Salvador M. Magante. - The company also claims as damages, for the period from September 12 to December 28, 1954 lost freight charges on shutout cargoes in the sum of P62,680.12, and the sum of P20,000 as "overhead expenses. for delay of vessels in port", as set forth by Salvador M. Magante, the consignees. chief clerk at Iligan City, in his statement, Exhibit B (items 9 and 10 of the tabulation of damages). Magante did not testify on his statement. Instead, accountant Jayme, substituting for Magante, testified on that statement. Jayme said that he verified the consignees. records on which Magante based his statement. Jayme assured the court that the figures in Magante's statement were supported by the consignees. records. But as to the damages, of P20,000, Jayme said that he could not certify as to their company, because he had not finished his investigation (33 tsn March 9, 1955). In spite of that admission, the trial court allowed that item of damages. The trial court erred in allowing the damages, totalling P82,680.12 because Magante's statement, Exhibit B, is hearsay. Magante should have been proforma. as a witness. Jayme was not competent to take his place since the statement was prepared by Magante, not by Jayme. More appropriate still, the documents and records on which the statement was based should have been proforma. as evidence or at least brought to the court for examination by the union's counsel and its accountant. The trial court required the production of the manifests supporting Magante's statement (85-86 tsn march 9, 1955). Only one such manifest, Exhibit C, was produced. The nonproduction of the other records was not explained. Lost freight revenue and operating expenses for the forklifts. - The company claimed as damages, the sum of P87,986.05 (P151,403.85 as erroneously computed by the consignees. counsel, 163 tsn March 11, 1950) consisting of supposed unrealized freight charges for shutout or unloaded cargoes for the year 1955 to 1959 (Exh. E to I, Items 11 to 20 of the tabulation of damages). The claim is covered by the company's third supplemental complaint dated March 9, 1960 wherein it was alleged that due to the acts of the union and its officers the company had suffered damages, of not less than P25,000 annually since 1955 (320-3, Record on Appeal). That supplemental complaint was hurriedly filed during the trial as directed by the trial court. The said damages, were computed in the reports of Miguel J. Siojo, an accountant who, for two days and nights, March 8 to 10, 1960, or shortly before and during the trial, allegedly examined the consignees. record at Iligan City, such as its cash book, cash vouchers, reports to the head office, shipping manifests, and liquidation reports. Those records were not produced in court. Their nonproduction was not explained. If the accountant was able to summarize the contents of those records in two days, they could not have been very voluminous. They should have been offered in evidence.

The alleged expenses. in the operation of the forklifts consisted of (a) the wates of the operators hired by the company and (b) the cost of gasoline and oil and expenses. for repair. The company's theory is that under the 1952 contract (Exh. J) the union was obligated to provide for forklifts in the loading and unloading of cargo. Inasmuch as the union allegedly did not have forklifts, the complaint to expedite the arrastre and stevedoring work, purchase forklifts, hired laborers to operate the same, and paid for the maintenance expenses. The company treated those expenses as losses or damages. Those alleged damages, amounting to P87,986.05 are in the same category as the depreciation allowances amounting to P38,835 which the company claimed for the forklifts, pallet boards, tarpaulins and wire rope slings that it purchased for oth P27,215, We have stated that the consignees. counsel ignored that depreciation in his recapitulation of the damages, claimed by the plaintiff. The union contends that Siojo's reports (Exh. E to I) were inadmissible evidence because they were hearsay, meaning that the original documents, on which the reports were based, were not presented in evidence and, therefore, appellants' counsel and the court itself were not able to gauge the correctness of the figures or data contained in the said reports. The person who had personal knowledge of the operating expenses. was not examined in court. We are of the opinion that, to avoid fraud or fabrication, the documents evidencing the alleged expenses. should have been proforma. in evidence. Siojo's reports were not the best evidence on the said operating expenses. The explanation of Badelles with respect to shutout cargoes and our observations on Jayme's summaries are applicable to accountant Siojo's reports. A more substantial ground for rejecting Siojo's reports is that the said expenses, if really incurred, cannot be properly treated as darn ages to the company. The union's witness, Mariano LI. Badelles, testified that the consignees. forklifts were not used exclusively on the wharf. They were used in the fertilizer and carbide plants. Sometimes, the union supplied the driver and the gasoline for the operation of the forklifts (174-177 tsn May 20, 1960). Moreover, as stated earlier, the company was not paying the union a single centavo for arrastre and stevedoring work. The shippers and consignees paid for the arrastre service rendered by the union. The union did not receive any compensation for stevedoring work. The company complained that the union had been rendering unsatisfactory arrastre and stevedoring services. That grievance was controverted by the union.

The use of the forklifts, tarpaulins pallet boards and wire rope slings immeasurably benefitted the company. It is not proper nor just that the consignees. investment in those pieces of equipment should be considered damages, just because it was able to bind the union to a one-sided contract which exempted it from the payment of arrastre and stevedoring Considering and which impliedly obligated the union to purchase the said equipment. If the service rendered by the union members was unsatisfactory, it must be because the poor stevedores were underfed and underpaid. They were underfed and underpaid because the company was astute enough to insure that it would obtain stevedoring service without paying for it. If to improve the arrastre and stevedoring service, the company had to incur expenses. for the purchase of forklifts, pallet boards, tarpaulins and wire rope slings and for the operation of the forklifts, the union should not be required to reimburse the company for those expenses. The company should bear those expenses. because the same redounded to its benefit. The trial court erred in ordering the union and its officials to pay the amount of the said expenses. as damages, to the company. Moral damages and attorney's fees. - Considering that the consignees. claim for moral damages, was based on the same facts on which it predicated its claim for actual deduction which we have found to be groundless, it follows that the company, a juridical person, is not entitled to moral damages. Anyway, the company did not plead and prove moral damages. It merely claimed moral damages, in the prayer of its complaint. That is not sufficient (Darang vs. Ty Belizar, L19487, January 31, 1967, 19 SCRA 214, 222). Under the facts of this case, we do not find any justification for awarding attorney's Considering to the company. Hence, the trial court's award of P20,000 as attorney's Considering is set aside. Appellants' first assignment of error, although not properly argued by their counsel, should be sustained. Other assignments of error. - The union and its officers contend that the lower court erred in dismissing their counterclaims. Their counsel did not even bother to state in their brief the amount of the counterclaims. The union filed counterclaims for P200,000 as compensation for stevedoring services from August, 1952 to March 4, 1955; P500,000 as deduction P10,000 as attorney's Considering and P5,000 as premium on the counterbond (251-2, Record on Appeal). In their supplemental counterclaim, they demanded P500,000 as stevedoring charges for

the period from March 4, 1955 to March 4, 1960 and additional damages, of P10,000 (308-10, Record on Appeal). The trial court dismissed the said counterclaims. The appellants in their three-sentence argument in support of their counterclaims alleged that the company's bill of lading provided that the unloading of the cargoes was at the consignees. expense (Exh. 1); that the company had not paid the sum of P500,000 as compensation for the stevedoring services rendered by the laborers up to 1960, and that the stipulation in the arrastre contract, "that the Compaia Maritima shall not be liable for the payment of the services rendered by the Allied Free Workers Union for the loading and deliveries of cargoes as same is payable by the owners and consignees of cargoes, as it has been the practice in the port of Iligan City" (Exh. J, pp. 14, 334, 359, 500 Record on Appeal), was 'non- operative" and void, "being contrary to morals and public policy". That superficial argument is not well-taken. The printed stipulation in the bill of lading was superseded by the contractual stipulation. The contract was prepared by the union officials. As already noted, it was stipulated in the contract that the stevedoring and arrastre charges should be paid by the shippers and consignees in consonance with the practice in Iligan City. That stipulation was binding and enforceable. The supposed illegality of that stipulation was not squarely raised by the union and its officials in their answer. They merely averred that the contract did not express the true agreement of the parties. They did not sue for reformation of the instrument evidencing the contract. The lower court did not err in dismissing defendants' counterclaims. The other two errors assigned by the appellants, namely, that the lower court erred in issuing a permanent injunction against them and in executing its decision pending appeal, are devoid of merit. The appellants invoke section 9(d) of the Magna Carta of Labor regarding the issuance of injunctions. That section has no application to this case because it was definitively ruled by this Court in the certification and unfair labor practice cases that there is no employer-employee relationship between the company and the stevedores. (They work under the cabo system). The lower court did not execute the money aspect of its judgment. It merely required the defendants to file a supersedeas bond of P50,000. As to the injunction, it should be recalled that it was this Court which, in its resolution of May 16, 1962 in the execution and appeal incident (L-19651, 17 SCRA 513), allowed the company to terminate the stevedoring and arrastre work of the union and to use another union to perform that work. The company had the contractual right to terminate the 1952 contract (Taylor vs. Uy Teng Piao, 43 Phil. 873). The lower court did not err in sustaining the consignees.

rescission of the contract and in enjoining the union from performing arrastre and stevedoring work. WHEREFORE, that portion of the trial court's judgment declaring the arrastre and stevedoring contract terminated, permanently enjoining the union and its officials from performing arrastre and stevedoring work for the vessels of the Compaia Maritima, and dismissing defendants' counterclaim is affirmed. The lower court's award of damages, is reversed and set aside. No costs. SO ORDERED. G.R. No. L-23893 October 29, 1968

VILLA REY TRANSIT, INC., plaintiff-appellant, vs. EUSEBIO E. FERRER, PANGASINAN TRANSPORTATION CO., INC. and PUBLIC SERVICE COMMISSION, defendants. EUSEBIO E. FERRER and PANGASINAN TRANSPORTATION CO., INC., defendantsappellants. PANGASINAN TRANSPORTATION CO., INC., third-party plaintiff-appellant, vs. JOSE M. VILLARAMA, third-party defendant-appellee. Chuidian Law Office for plaintiff-appellant. Bengzon, Zarraga & Villegas for defendant-appellant / third-party plaintiff-appellant. Laurea & Pison for third-party defendant-appellee. ANGELES, J.: This is a tri-party appeal from the decision of the Court of First Instance of Manila, Civil Case No. 41845, declaring null and void the sheriff's sale of two certificates of public convenience in favor of defendant Eusebio E. Ferrer and the subsequent sale thereof by the latter to defendant Pangasinan Transportation Co., Inc.; declaring the plaintiff Villa Rey Transit, Inc., to be the lawful owner of the said certificates of public convenience; and ordering the private defendants, jointly and severally, to pay to the plaintiff, the sum of P5,000.00 as and for attorney's fees. The case against the PSC was dismissed. The rather ramified circumstances of the instant case can best be understood by a chronological narration of the essential facts, to wit: Prior to 1959, Jose M. Villarama was an operator of a bus transportation, under the business name of Villa Rey Transit, pursuant to certificates of public convenience granted him by the Public Service Commission (PSC, for short) in Cases Nos. 44213 and 104651, which authorized him to operate a total of thirty-two (32) units on various routes or lines from Pangasinan to

Manila, and vice-versa. On January 8, 1959, he sold the aforementioned two certificates of public convenience to the Pangasinan Transportation Company, Inc. (otherwise known as Pantranco), for P350,000.00 with the condition, among others, that the seller (Villarama) "shall not for a period of 10 years from the date of this sale, apply for any TPU service identical or competing with the buyer." Barely three months thereafter, or on March 6, 1959: a corporation called Villa Rey Transit, Inc. (which shall be referred to hereafter as the Corporation) was organized with a capital stock of P500,000.00 divided into 5,000 shares of the par value of P100.00 each; P200,000.00 was the subscribed stock; Natividad R. Villarama (wife of Jose M. Villarama) was one of the incorporators, and she subscribed for P1,000.00; the balance of P199,000.00 was subscribed by the brother and sister-in-law of Jose M. Villarama; of the subscribed capital stock, P105,000.00 was paid to the treasurer of the corporation, who was Natividad R. Villarama. In less than a month after its registration with the Securities and Exchange Commission (March 10, 1959), the Corporation, on April 7, 1959, bought five certificates of public convenience, forty-nine buses, tools and equipment from one Valentin Fernando, for the sum of P249,000.00, of which P100,000.00 was paid upon the signing of the contract; P50,000.00 was payable upon the final approval of the sale by the PSC; P49,500.00 one year after the final approval of the sale; and the balance of P50,000.00 "shall be paid by the BUYER to the different suppliers of the SELLER." The very same day that the aforementioned contract of sale was executed, the parties thereto immediately applied with the PSC for its approval, with a prayer for the issuance of a provisional authority in favor of the vendee Corporation to operate the service therein involved.1 On May 19, 1959, the PSC granted the provisional permit prayed for, upon the condition that "it may be modified or revoked by the Commission at any time, shall be subject to whatever action that may be taken on the basic application and shall be valid only during the pendency of said application." Before the PSC could take final action on said application for approval of sale, however, the Sheriff of Manila, on July 7, 1959, levied on two of the five certificates of public convenience involved therein, namely, those issued under PSC cases Nos. 59494 and 63780, pursuant to a writ of execution issued by the Court of First Instance of Pangasinan in Civil Case No. 13798, in favor of Eusebio Ferrer, plaintiff, judgment creditor, against Valentin Fernando, defendant, judgment debtor. The Sheriff made and entered the levy in the records of the PSC. On July 16, 1959, a public sale was conducted by the Sheriff of the said two certificates of public convenience. Ferrer was the highest bidder, and a certificate of sale was issued in his name. Thereafter, Ferrer sold the two certificates of public convenience to Pantranco, and jointly submitted for approval their corresponding contract of sale to the PSC.2 Pantranco therein prayed that it be authorized provisionally to operate the service involved in the said two certificates. The applications for approval of sale, filed before the PSC, by Fernando and the Corporation, Case No. 124057, and that of Ferrer and Pantranco, Case No. 126278, were scheduled for a joint hearing. In the meantime, to wit, on July 22, 1959, the PSC issued an order disposing that during the pendency of the cases and before a final resolution on the aforesaid applications, the Pantranco shall be the one to operate provisionally the service under the two certificates

embraced in the contract between Ferrer and Pantranco. The Corporation took issue with this particular ruling of the PSC and elevated the matter to the Supreme Court,3 which decreed, after deliberation, that until the issue on the ownership of the disputed certificates shall have been finally settled by the proper court, the Corporation should be the one to operate the lines provisionally. On November 4, 1959, the Corporation filed in the Court of First Instance of Manila, a complaint for the annulment of the sheriff's sale of the aforesaid two certificates of public convenience (PSC Cases Nos. 59494 and 63780) in favor of the defendant Ferrer, and the subsequent sale thereof by the latter to Pantranco, against Ferrer, Pantranco and the PSC. The plaintiff Corporation prayed therein that all the orders of the PSC relative to the parties' dispute over the said certificates be annulled. In separate answers, the defendants Ferrer and Pantranco averred that the plaintiff Corporation had no valid title to the certificates in question because the contract pursuant to which it acquired them from Fernando was subject to a suspensive condition the approval of the PSC which has not yet been fulfilled, and, therefore, the Sheriff's levy and the consequent sale at public auction of the certificates referred to, as well as the sale of the same by Ferrer to Pantranco, were valid and regular, and vested unto Pantranco, a superior right thereto. Pantranco, on its part, filed a third-party complaint against Jose M. Villarama, alleging that Villarama and the Corporation, are one and the same; that Villarama and/or the Corporation was disqualified from operating the two certificates in question by virtue of the aforementioned agreement between said Villarama and Pantranco, which stipulated that Villarama "shall not for a period of 10 years from the date of this sale, apply for any TPU service identical or competing with the buyer." Upon the joinder of the issues in both the complaint and third-party complaint, the case was tried, and thereafter decision was rendered in the terms, as above stated. As stated at the beginning, all the parties involved have appealed from the decision. They submitted a joint record on appeal. Pantranco disputes the correctness of the decision insofar as it holds that Villa Rey Transit, Inc. (Corporation) is a distinct and separate entity from Jose M. Villarama; that the restriction clause in the contract of January 8, 1959 between Pantranco and Villarama is null and void; that the Sheriff's sale of July 16, 1959, is likewise null and void; and the failure to award damages in its favor and against Villarama. Ferrer, for his part, challenges the decision insofar as it holds that the sheriff's sale is null and void; and the sale of the two certificates in question by Valentin Fernando to the Corporation, is valid. He also assails the award of P5,000.00 as attorney's fees in favor of the Corporation, and the failure to award moral damages to him as prayed for in his counterclaim.

The Corporation, on the other hand, prays for a review of that portion of the decision awarding only P5,000.00 as attorney's fees, and insisting that it is entitled to an award of P100,000.00 by way of exemplary damages. After a careful study of the facts obtaining in the case, the vital issues to be resolved are: (1) Does the stipulation between Villarama and Pantranco, as contained in the deed of sale, that the former "SHALL NOT FOR A PERIOD OF 10 YEARS FROM THE DATE OF THIS SALE, APPLY FOR ANY TPU SERVICE IDENTICAL OR COMPETING WITH THE BUYER," apply to new lines only or does it include existing lines?; (2) Assuming that said stipulation covers all kinds of lines, is such stipulation valid and enforceable?; (3) In the affirmative, that said stipulation is valid, did it bind the Corporation? For convenience, We propose to discuss the foregoing issues by starting with the last proposition. The evidence has disclosed that Villarama, albeit was not an incorporator or stockholder of the Corporation, alleging that he did not become such, because he did not have sufficient funds to invest, his wife, however, was an incorporator with the least subscribed number of shares, and was elected treasurer of the Corporation. The finances of the Corporation which, under all concepts in the law, are supposed to be under the control and administration of the treasurer keeping them as trust fund for the Corporation, were, nonetheless, manipulated and disbursed as if they were the private funds of Villarama, in such a way and extent that Villarama appeared to be the actual owner-treasurer of the business without regard to the rights of the stockholders. The following testimony of Villarama,4 together with the other evidence on record, attests to that effect: Q. Doctor, I want to go back again to the incorporation of the Villa Rey Transit, Inc. You heard the testimony presented here by the bank regarding the initial opening deposit of ONE HUNDRED FIVE THOUSAND PESOS, of which amount Eighty-Five Thousand Pesos was a check drawn by yourself personally. In the direct examination you told the Court that the reason you drew a check for Eighty-Five Thousand Pesos was because you and your wife, or your wife, had spent the money of the stockholders given to her for incorporation. Will you please tell the Honorable Court if you knew at the time your wife was spending the money to pay debts, you personally knew she was spending the money of the incorporators? A. You know my money and my wife's money are one. We never talk about those things. Q. Doctor, your answer then is that since your money and your wife's money are one money and you did not know when your wife was paying debts with the incorporator's money? A. Because sometimes she uses my money, and sometimes the money given to her she gives to me and I deposit the money.

Q. Actually, aside from your wife, you were also the custodian of some of the incorporators here, in the beginning? A. Not necessarily, they give to my wife and when my wife hands to me I did not know it belonged to the incorporators. Q. It supposes then your wife gives you some of the money received by her in her capacity as treasurer of the corporation? A. Q. A. Q. A. Maybe. What did you do with the money, deposit in a regular account? Deposit in my account. Of all the money given to your wife, she did not receive any check? I do not remember.

Q. Is it usual for you, Doctor, to be given Fifty Thousand Pesos without even asking what is this? xxx JUDGE: Reform the question. xxx xxx

Q. The subscription of your brother-in-law, Mr. Reyes, is Fifty-Two Thousand Pesos, did your wife give you Fifty-two Thousand Pesos? A. I have testified before that sometimes my wife gives me money and I do not know exactly for what. The evidence further shows that the initial cash capitalization of the corporation of P105,000.00 was mostly financed by Villarama. Of the P105,000.00 deposited in the First National City Bank of New York, representing the initial paid-up capital of the Corporation, P85,000.00 was covered by Villarama's personal check. The deposit slip for the said amount of P105,000.00 was admitted in evidence as Exh. 23, which shows on its face that P20,000.00 was paid in cash and P85,000.00 thereof was covered by Check No. F-50271 of the First National City Bank of New York. The testimonies of Alfonso Sancho5 and Joaquin Amansec,6 both employees of said bank, have proved that the drawer of the check was Jose Villarama himself. Another witness, Celso Rivera, accountant of the Corporation, testified that while in the books of the corporation there appears an entry that the treasurer received P95,000.00 as second installment of the paid-in subscriptions, and, subsequently, also P100,000.00 as the first installment of the offer for second subscriptions worth P200,000.00 from the original subscribers, yet Villarama directed him (Rivera) to make vouchers liquidating the sums.7 Thus, it

was made to appear that the P95,000.00 was delivered to Villarama in payment for equipment purchased from him, and the P100,000.00 was loaned as advances to the stockholders. The said accountant, however, testified that he was not aware of any amount of money that had actually passed hands among the parties involved,8 and actually the only money of the corporation was the P105,000.00 covered by the deposit slip Exh. 23, of which as mentioned above, P85,000.00 was paid by Villarama's personal check. Further, the evidence shows that when the Corporation was in its initial months of operation, Villarama purchased and paid with his personal checks Ford trucks for the Corporation. Exhibits 20 and 21 disclose that the said purchases were paid by Philippine Bank of Commerce Checks Nos. 992618-B and 993621-B, respectively. These checks have been sufficiently established by Fausto Abad, Assistant Accountant of Manila Trading & Supply Co., from which the trucks were purchased9 and Aristedes Solano, an employee of the Philippine Bank of Commerce,10 as having been drawn by Villarama. Exhibits 6 to 19 and Exh. 22, which are photostatic copies of ledger entries and vouchers showing that Villarama had co-mingled his personal funds and transactions with those made in the name of the Corporation, are very illuminating evidence. Villarama has assailed the admissibility of these exhibits, contending that no evidentiary value whatsoever should be given to them since "they were merely photostatic copies of the originals, the best evidence being the originals themselves." According to him, at the time Pantranco offered the said exhibits, it was the most likely possessor of the originals thereof because they were stolen from the files of the Corporation and only Pantranco was able to produce the alleged photostat copies thereof. Section 5 of Rule 130 of the Rules of Court provides for the requisites for the admissibility of secondary evidence when the original is in the custody of the adverse party, thus: (1) opponent's possession of the original; (2) reasonable notice to opponent to produce the original; (3) satisfactory proof of its existence; and (4) failure or refusal of opponent to produce the original in court.11 Villarama has practically admitted the second and fourth requisites.12 As to the third, he admitted their previous existence in the files of the Corporation and also that he had seen some of them.13 Regarding the first element, Villarama's theory is that since even at the time of the issuance of the subpoena duces tecum, the originals were already missing, therefore, the Corporation was no longer in possession of the same. However, it is not necessary for a party seeking to introduce secondary evidence to show that the original is in the actual possession of his adversary. It is enough that the circumstances are such as to indicate that the writing is in his possession or under his control. Neither is it required that the party entitled to the custody of the instrument should, on being notified to produce it, admit having it in his possession.14 Hence, secondary evidence is admissible where he denies having it in his possession. The party calling for such evidence may introduce a copy thereof as in the case of loss. For, among the exceptions to the best evidence rule is "when the original has been lost, destroyed, or cannot be produced in court."15 The originals of the vouchers in question must be deemed to have been lost, as even the Corporation admits such loss. Viewed upon this light, there can be no doubt as to the admissibility in evidence of Exhibits 6 to 19 and 22. Taking account of the foregoing evidence, together with Celso Rivera's testimony,16 it would appear that: Villarama supplied the organization expenses and the assets of the Corporation, such

as trucks and equipment;17 there was no actual payment by the original subscribers of the amounts of P95,000.00 and P100,000.00 as appearing in the books;18 Villarama made use of the money of the Corporation and deposited them to his private accounts;19 and the Corporation paid his personal accounts.20 Villarama himself admitted that he mingled the corporate funds with his own money.21 He also admitted that gasoline purchases of the Corporation were made in his name22 because "he had existing account with Stanvac which was properly secured and he wanted the Corporation to benefit from the rebates that he received."23 The foregoing circumstances are strong persuasive evidence showing that Villarama has been too much involved in the affairs of the Corporation to altogether negative the claim that he was only a part-time general manager. They show beyond doubt that the Corporation is his alter ego. It is significant that not a single one of the acts enumerated above as proof of Villarama's oneness with the Corporation has been denied by him. On the contrary, he has admitted them with offered excuses. Villarama has admitted, for instance, having paid P85,000.00 of the initial capital of the Corporation with the lame excuse that "his wife had requested him to reimburse the amount entrusted to her by the incorporators and which she had used to pay the obligations of Dr. Villarama (her husband) incurred while he was still the owner of Villa Rey Transit, a single proprietorship." But with his admission that he had received P350,000.00 from Pantranco for the sale of the two certificates and one unit,24 it becomes difficult to accept Villarama's explanation that he and his wife, after consultation,25 spent the money of their relatives (the stockholders) when they were supposed to have their own money. Even if Pantranco paid the P350,000.00 in check to him, as claimed, it could have been easy for Villarama to have deposited said check in his account and issued his own check to pay his obligations. And there is no evidence adduced that the said amount of P350,000.00 was all spent or was insufficient to settle his prior obligations in his business, and in the light of the stipulation in the deed of sale between Villarama and Pantranco that P50,000.00 of the selling price was earmarked for the payments of accounts due to his creditors, the excuse appears unbelievable. On his having paid for purchases by the Corporation of trucks from the Manila Trading & Supply Co. with his personal checks, his reason was that he was only sharing with the Corporation his credit with some companies. And his main reason for mingling his funds with that of the Corporation and for the latter's paying his private bills is that it would be more convenient that he kept the money to be used in paying the registration fees on time, and since he had loaned money to the Corporation, this would be set off by the latter's paying his bills. Villarama admitted, however, that the corporate funds in his possession were not only for registration fees but for other important obligations which were not specified.26 Indeed, while Villarama was not the Treasurer of the Corporation but was, allegedly, only a parttime manager,27 he admitted not only having held the corporate money but that he advanced and lent funds for the Corporation, and yet there was no Board Resolution allowing it.28

Villarama's explanation on the matter of his involvement with the corporate affairs of the Corporation only renders more credible Pantranco's claim that his control over the corporation, especially in the management and disposition of its funds, was so extensive and intimate that it is impossible to segregate and identify which money belonged to whom. The interference of Villarama in the complex affairs of the corporation, and particularly its finances, are much too inconsistent with the ends and purposes of the Corporation law, which, precisely, seeks to separate personal responsibilities from corporate undertakings. It is the very essence of incorporation that the acts and conduct of the corporation be carried out in its own corporate name because it has its own personality. The doctrine that a corporation is a legal entity distinct and separate from the members and stockholders who compose it is recognized and respected in all cases which are within reason and the law.29 When the fiction is urged as a means of perpetrating a fraud or an illegal act or as a vehicle for the evasion of an existing obligation, the circumvention of statutes, the achievement or perfection of a monopoly or generally the perpetration of knavery or crime,30 the veil with which the law covers and isolates the corporation from the members or stockholders who compose it will be lifted to allow for its consideration merely as an aggregation of individuals. Upon the foregoing considerations, We are of the opinion, and so hold, that the preponderance of evidence have shown that the Villa Rey Transit, Inc. is an alter ego of Jose M. Villarama, and that the restrictive clause in the contract entered into by the latter and Pantranco is also enforceable and binding against the said Corporation. For the rule is that a seller or promisor may not make use of a corporate entity as a means of evading the obligation of his covenant.31 Where the Corporation is substantially the alter ego of the covenantor to the restrictive agreement, it can be enjoined from competing with the covenantee.32 The Corporation contends that even on the supposition that Villa Rey Transit, Inc. and Villarama are one and the same, the restrictive clause in the contract between Villarama and Pantranco does not include the purchase of existing lines but it only applies to application for the new lines. The clause in dispute reads thus: (4) The SELLER shall not, for a period of ten (10) years from the date of this sale apply for any TPU service identical or competing with the BUYER. (Emphasis supplied) As We read the disputed clause, it is evident from the context thereof that the intention of the parties was to eliminate the seller as a competitor of the buyer for ten years along the lines of operation covered by the certificates of public convenience subject of their transaction. The word "apply" as broadly used has for frame of reference, a service by the seller on lines or routes that would compete with the buyer along the routes acquired by the latter. In this jurisdiction, prior authorization is needed before anyone can operate a TPU service,33whether the service consists in a new line or an old one acquired from a previous operator. The clear intention of the parties was to prevent the seller from conducting any competitive line for 10 years since, anyway, he has bound himself not to apply for authorization to operate along such lines for the duration of such period.34

If the prohibition is to be applied only to the acquisition of new certificates of public convenience thru an application with the Public Service Commission, this would, in effect, allow the seller just the same to compete with the buyer as long as his authority to operate is only acquired thru transfer or sale from a previous operator, thus defeating the intention of the parties. For what would prevent the seller, under the circumstances, from having a representative or dummy apply in the latter's name and then later on transferring the same by sale to the seller? Since stipulations in a contract is the law between the contracting parties, Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. (Art. 19, New Civil Code.) We are not impressed of Villarama's contention that the re-wording of the two previous drafts of the contract of sale between Villarama and Pantranco is significant in that as it now appears, the parties intended to effect the least restriction. We are persuaded, after an examination of the supposed drafts, that the scope of the final stipulation, while not as long and prolix as those in the drafts, is just as broad and comprehensive. At most, it can be said that the re-wording was done merely for brevity and simplicity. The evident intention behind the restriction was to eliminate the sellers as a competitor, and this must be, considering such factors as the good will35 that the seller had already gained from the riding public and his adeptness and proficiency in the trade. On this matter, Corbin, an authority on Contracts has this to say.36 When one buys the business of another as a going concern, he usually wishes to keep it going; he wishes to get the location, the building, the stock in trade, and the customers. He wishes to step into the seller's shoes and to enjoy the same business relations with other men. He is willing to pay much more if he can get the "good will" of the business, meaning by this the good will of the customers, that they may continue to tread the old footpath to his door and maintain with him the business relations enjoyed by the seller. ... In order to be well assured of this, he obtains and pays for the seller's promise not to reopen business in competition with the business sold. As to whether or not such a stipulation in restraint of trade is valid, our jurisprudence on the matter37says: The law concerning contracts which tend to restrain business or trade has gone through a long series of changes from time to time with the changing condition of trade and commerce. With trifling exceptions, said changes have been a continuous development of a general rule. The early cases show plainly a disposition to avoid and annul all contract which prohibited or restrained any one from using a lawful trade "at any time or at any place," as being against the benefit of the state. Later, however, the rule became well established that if the restraint was limited to "a certain time" and within "a certain place," such contracts were valid and not "against the benefit of the state." Later cases, and we think the rule is now well established, have held that a contract in restraint of

trade is valid providing there is a limitation upon either time or place. A contract, however, which restrains a man from entering into business or trade without either a limitation as to time or place, will be held invalid. The public welfare of course must always be considered and if it be not involved and the restraint upon one party is not greater than protection to the other requires, contracts like the one we are discussing will be sustained. The general tendency, we believe, of modern authority, is to make the test whether the restraint is reasonably necessary for the protection of the contracting parties. If the contract is reasonably necessary to protect the interest of the parties, it will be upheld. (Emphasis supplied.) Analyzing the characteristics of the questioned stipulation, We find that although it is in the nature of an agreement suppressing competition, it is, however, merely ancillary or incidental to the main agreement which is that of sale. The suppression or restraint is only partial or limited: first, in scope, it refers only to application for TPU by the seller in competition with the lines sold to the buyer; second, in duration, it is only for ten (10) years; and third, with respect to situs or territory, the restraint is only along the lines covered by the certificates sold. In view of these limitations, coupled with the consideration of P350,000.00 for just two certificates of public convenience, and considering, furthermore, that the disputed stipulation is only incidental to a main agreement, the same is reasonable and it is not harmful nor obnoxious to public service.38 It does not appear that the ultimate result of the clause or stipulation would be to leave solely to Pantranco the right to operate along the lines in question, thereby establishing monopoly or predominance approximating thereto. We believe the main purpose of the restraint was to protect for a limited time the business of the buyer. Indeed, the evils of monopoly are farfetched here. There can be no danger of price controls or deterioration of the service because of the close supervision of the Public Service Commission.39 This Court had stated long ago,40 that "when one devotes his property to a use in which the public has an interest, he virtually grants to the public an interest in that use and submits it to such public use under reasonable rules and regulations to be fixed by the Public Utility Commission." Regarding that aspect of the clause that it is merely ancillary or incidental to a lawful agreement, the underlying reason sustaining its validity is well explained in 36 Am. Jur. 537-539, to wit: ... Numerous authorities hold that a covenant which is incidental to the sale and transfer of a trade or business, and which purports to bind the seller not to engage in the same business in competition with the purchaser, is lawful and enforceable. While such covenants are designed to prevent competition on the part of the seller, it is ordinarily neither their purpose nor effect to stifle competition generally in the locality, nor to prevent it at all in a way or to an extent injurious to the public. The business in the hands of the purchaser is carried on just as it was in the hands of the seller; the former merely takes the place of the latter; the commodities of the trade are as open to the public as they were before; the same competition exists as existed before; there is the same employment furnished to others after as before; the profits of the business go as they did before to

swell the sum of public wealth; the public has the same opportunities of purchasing, if it is a mercantile business; and production is not lessened if it is a manufacturing plant. The reliance by the lower court on tile case of Red Line Transportation Co. v. Bachrach41 and finding that the stipulation is illegal and void seems misplaced. In the said Red Line case, the agreement therein sought to be enforced was virtually a division of territory between two operators, each company imposing upon itself an obligation not to operate in any territory covered by the routes of the other. Restraints of this type, among common carriers have always been covered by the general rule invalidating agreements in restraint of trade. 42 Neither are the other cases relied upon by the plaintiff-appellee applicable to the instant case. In Pampanga Bus Co., Inc. v. Enriquez,43the undertaking of the applicant therein not to apply for the lifting of restrictions imposed on his certificates of public convenience was not an ancillary or incidental agreement. The restraint was the principal objective. On the other hand, in Red Line Transportation Co., Inc. v. Gonzaga,44 the restraint there in question not to ask for extension of the line, or trips, or increase of equipment was not an agreement between the parties but a condition imposed in the certificate of public convenience itself. Upon the foregoing considerations, Our conclusion is that the stipulation prohibiting Villarama for a period of 10 years to "apply" for TPU service along the lines covered by the certificates of public convenience sold by him to Pantranco is valid and reasonable. Having arrived at this conclusion, and considering that the preponderance of the evidence have shown that Villa Rey Transit, Inc. is itself the alter ego of Villarama, We hold, as prayed for in Pantranco's third party complaint, that the said Corporation should, until the expiration of the 1-year period abovementioned, be enjoined from operating the line subject of the prohibition. To avoid any misunderstanding, it is here to be emphasized that the 10-year prohibition upon Villarama is not against his application for, or purchase of, certificates of public convenience, but merely the operation of TPU along the lines covered by the certificates sold by him to Pantranco. Consequently, the sale between Fernando and the Corporation is valid, such that the rightful ownership of the disputed certificates still belongs to the plaintiff being the prior purchaser in good faith and for value thereof. In view of the ancient rule of caveat emptor prevailing in this jurisdiction, what was acquired by Ferrer in the sheriff's sale was only the right which Fernando, judgment debtor, had in the certificates of public convenience on the day of the sale.45 Accordingly, by the "Notice of Levy Upon Personalty" the Commissioner of Public Service was notified that "by virtue of an Order of Execution issued by the Court of First Instance of Pangasinan, the rights, interests, or participation which the defendant, VALENTIN A. FERNANDO in the above entitled case may have in the following realty/personalty is attached or levied upon, to wit: The rights, interests and participation on the Certificates of Public Convenience issued to Valentin A. Fernando, in Cases Nos. 59494, etc. ... Lines Manila to Lingayen, Dagupan, etc. vice versa." Such notice of levy only shows that Ferrer, the vendee at auction of said certificates, merely stepped into the shoes of the judgment debtor. Of the same principle is the provision of Article 1544 of the Civil Code, that "If the same thing

should have been sold to different vendees, the ownership shall be transferred to the person who may have first taken possession thereof in good faith, if it should be movable property." There is no merit in Pantranco and Ferrer's theory that the sale of the certificates of public convenience in question, between the Corporation and Fernando, was not consummated, it being only a conditional sale subject to the suspensive condition of its approval by the Public Service Commission. While section 20(g) of the Public Service Act provides that "subject to established limitation and exceptions and saving provisions to the contrary, it shall be unlawful for any public service or for the owner, lessee or operator thereof, without the approval and authorization of the Commission previously had ... to sell, alienate, mortgage, encumber or lease its property, franchise, certificates, privileges, or rights or any part thereof, ...," the same section also provides: ... Provided, however, That nothing herein contained shall be construed to prevent the transaction from being negotiated or completed before its approval or to prevent the sale, alienation, or lease by any public service of any of its property in the ordinary course of its business. It is clear, therefore, that the requisite approval of the PSC is not a condition precedent for the validity and consummation of the sale. Anent the question of damages allegedly suffered by the parties, each of the appellants has its or his own version to allege. Villa Rey Transit, Inc. claims that by virtue of the "tortious acts" of defendants (Pantranco and Ferrer) in acquiring the certificates of public convenience in question, despite constructive and actual knowledge on their part of a prior sale executed by Fernando in favor of the said corporation, which necessitated the latter to file the action to annul the sheriff's sale to Ferrer and the subsequent transfer to Pantranco, it is entitled to collect actual and compensatory damages, and attorney's fees in the amount of P25,000.00. The evidence on record, however, does not clearly show that said defendants acted in bad faith in their acquisition of the certificates in question. They believed that because the bill of sale has yet to be approved by the Public Service Commission, the transaction was not a consummated sale, and, therefore, the title to or ownership of the certificates was still with the seller. The award by the lower court of attorney's fees of P5,000.00 in favor of Villa Rey Transit, Inc. is, therefore, without basis and should be set aside. Eusebio Ferrer's charge that by reason of the filing of the action to annul the sheriff's sale, he had suffered and should be awarded moral, exemplary damages and attorney's fees, cannot be entertained, in view of the conclusion herein reached that the sale by Fernando to the Corporation was valid. Pantranco, on the other hand, justifies its claim for damages with the allegation that when it purchased ViIlarama's business for P350,000.00, it intended to build up the traffic along the lines covered by the certificates but it was rot afforded an opportunity to do so since barely three months had elapsed when the contract was violated by Villarama operating along the same lines

in the name of Villa Rey Transit, Inc. It is further claimed by Pantranco that the underhanded manner in which Villarama violated the contract is pertinent in establishing punitive or moral damages. Its contention as to the proper measure of damages is that it should be the purchase price of P350,000.00 that it paid to Villarama. While We are fully in accord with Pantranco's claim of entitlement to damages it suffered as a result of Villarama's breach of his contract with it, the record does not sufficiently supply the necessary evidentiary materials upon which to base the award and there is need for further proceedings in the lower court to ascertain the proper amount. PREMISES CONSIDERED, the judgment appealed from is hereby modified as follows: 1. The sale of the two certificates of public convenience in question by Valentin Fernando to Villa Rey Transit, Inc. is declared preferred over that made by the Sheriff at public auction of the aforesaid certificate of public convenience in favor of Eusebio Ferrer; 2. Reversed, insofar as it dismisses the third-party complaint filed by Pangasinan Transportation Co. against Jose M. Villarama, holding that Villa Rey Transit, Inc. is an entity distinct and separate from the personality of Jose M. Villarama, and insofar as it awards the sum of P5,000.00 as attorney's fees in favor of Villa Rey Transit, Inc.; 3. The case is remanded to the trial court for the reception of evidence in consonance with the above findings as regards the amount of damages suffered by Pantranco; and 4. On equitable considerations, without costs. So ordered. G.R. No. 83377 February 9, 1993 BASILIO DE VERA, LUIS DE VERA, FELIPE DE VERA, HEIRS OF EUSTAQUIA DE VERA-PAPA represented by GLICERIA PAPA-FRANCISCO, et al., petitioners, vs. SPOUSES MARIANO AGUILAR and LEONA V. AGUILAR, respondents. Pablo M. Gancayaco for petitioners. De Mesa, Villarica & Associates for respondents.

CAMPOS, JR., J.: This is a petition for review on certiorari of the decision * of the Court of Appeals dated November 27, 1987 in CA-GR CV No. 07448 entitled, "Basilio de Vera, Luis de Vera, Felipe de Vera, Heirs of Eustaquia de Vera-Papa, represented by Gliceria PapaFrancisco, and Heirs of Maria de Vera-Torres, represented by Luis V. Torres, plaintiffsappellees versus Spouses Mariano Aguilar and Leona V. Aguilar, defendantsappellants", which reversed the decision ** of the Regional Trial Court of Bulacan, Third

Judicial Region, Branch 14, for failure of petitioners to prove the loss or destruction of the original deed of sale and of all its duplicate original copies. The undisputed facts are as follows: Petitioners Basilio, Luis, Felipe, Eustaquia and Maria, all surnamed de Vera and respondent Leona, married to respondent Mariano Aguilar, are the children and heirs of the late Marcosa Bernabe who died on May 10, 1960. In her lifetime, Marcosa Bernabe owned the disputed parcel of land situated in Camalig, Meycauayan, Bulacan, with an area of 4,195 square meters, designated as Cadastral Lot No. 3621, Cad. 337, Case No. 4, Meycauayan Cadastre. The disputed property was mortgaged by petitioners Basilio and Felipe de Vera to a certain Atty. Leonardo Bordador. When the mortgage had matured, the respondents redeemed the property from Atty. Leonardo Bordador and in turn Marcosa Bernabe sold the same to them as evidenced by a deed of absolute sale dated February 11, 1956. On February 13, 1956, the respondents registered the deed with the Registry of Deeds of Bulacan resulting in the cancellation of the tax declaration in the name of Marcosa Bernabe and the issuance of another in the name of the Aguilars. Since then and up to the present, the Aguilars have been paying taxes on the land. On July 20, 1977, respondent Mariano Aguilar was issued a free patent to the land on the basis of which Original Certificate of Title No. P-1356(M) was issued in his name. On September 1, 1980, the petitioners wrote to the respondents claiming that as children of Marcosa Bernabe, they were co-owners of the property and demanded partition thereof on threats that the respondents would be charged with perjury and/or falsification. The petitioners also claimed that the respondents had resold the property to Marcosa Bernabe on April 28, 1959. On September 27, 1980, the respondents wrote in reply to the petitioners that they were the sole owners of the disputed parcel of land and denied that the land was resold to Marcosa Bernabe. True to petitioners' threat, they filed a falsification case against the respondents. However, on March 31, 1981, Assistant Provincial Fiscal Arsenio N. Mercado of Bulacan recommended dismissal of the charge of falsification of public document against the respondents for lack of a prima facie case. On March 26, 1981, petitioners filed a suit for reconveyance of the lot covered by Original Certificate of Title No. P-1356(M). On July 31, 1985, the trial court rendered its decision *** the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered ordering defendants: 1. To reconvey the property in question to the plaintiffs; 2. To pay plaintiffs P10,000.00 as litigation expenses; 3. To pay plaintiffs P5,000.00 as exemplary damages; 4. To pay P10,000.00 as attorney's fees. SO ORDERED.
1

In ruling in favor of the petitioners, the trial court admitted, over the objection of the respondents, Exhibit A purporting to be a xeroxed copy of an alleged deed of sale executed on April 28, 1959 by the respondents selling, transferring and conveying unto Marcosa Bernabe the disputed parcel of land for and in consideration of P1,500.00. Not contented with the decision, respondents appealed to the Court of Appeals contending that they never sold back to Marcosa Bernabe the disputed parcel of land. Furthermore, respondents contended that since the petitioners have failed to produce the original of the alleged deed of sale dated April 28, 1959, the same was not the best evidence of the alleged sale hence it should have been excluded and should not have been accorded any evidentiary value. On the other hand, the petitioners claimed that the existence of the document of sale dated April 28, 1959 had been duly established by the testimony of the notary public before whom it was acknowledged and by Luis de Vera who was present during its execution and that the loss of the original document had been proven by the testimony of the representatives of the offices of the National Archives and the Provincial Assessor of Bulacan. On November 29, 1987, the Court of Appeals rendered its decision reversing the trial court's decision. It found that the loss or destruction of the original deed of sale has not been duly proven by the petitioners. Hence, secondary evidence, i.e., presentation of the xeroxed copy of the alleged deed of sale is inadmissible. Hence this petition. The crux of this case is whether or not the petitioners have satisfactorily proven the loss of the original deed of sale so as to allow the presentation of the xeroxed copy of the same. We rule in the negative. Section 4 of Rule 130 (now Section 5, Rule 130) of the Rules of Court on Secondary Evidence states:
Sec. 4. Secondary evidence when original is lost or destroyed. When the original writing has been lost or destroyed, or cannot be produced in court, upon proof of its execution and loss or destruction, or unavailability, its contents may be proved by a copy,

or by a recital of its contents in some authentic document, or by the recollection of witnesses.

Secondary evidence is admissible when the original documents were actually lost or destroyed. But prior to the introduction of such secondary evidence, the proponent must establish the former existence of the instrument. The correct order of proof is as follows: Existence; execution; loss; contents although this order may be changed if necessary in the discretion of the court. The sufficiency of proof offered as a predicate for the admission of an alleged lost deed lies within the judicial discretion of the trial court under all the circumstances of the particular case. 2 A reading of the decision of the trial court shows that it merely ruled on the existence and due execution of the alleged deed of sale dated April 28, 1959. It failed to look into the facts and circumstances surrounding the loss or destruction of the original copies of the alleged deed of sale. In the case at bar, the existence of an alleged sale of a parcel of land was proved by the presentation of a xeroxed copy of the alleged deed of absolute sale. In establishing the execution of a document the same may be established by the person or persons who executed it, by the person before whom its execution was acknowledged, or by any person who was present and saw it executed or who, after its execution, saw it and recognized the signatures; or by a person to whom the parties to the instrument had previously confessed the execution thereof. 3 We agree with the trial court's findings that petitioners have sufficiently established the due execution of the alleged deed of sale through the testimony of the notary public to wit:
Preponderance of evidence clearly disclosed the facts that Atty. Ismael Estela prepared Exhibit A. Atty. Emiliano Ibasco, Jr. positively identified the signatures appearing therein to be that (sic) of the spouses and witnesses Luis de Vera and Ismael Estela, in his 4 capacity as Notary Public who ratified the document.

After the due execution of the document has been established, it must next be proved that said document has been lost or destroyed. The destruction of the instrument may be proved by any person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by any one who had made, in the judgment of the court, a sufficient examination in the place or places where the document or papers of similar character are usually kept by the person in whose custody the document lost was, and has been unable to find it; or who has made any other investigation which is sufficient to satisfy the court that the instrument is indeed lost. 5 However, all duplicates or counterparts must be accounted for before using copies. For, since all the duplicates or multiplicates are parts of the writing itself to be proved, no excuse for non-production of the writing itself can be regarded as established until it

appears that all of its parts are unavailable (i.e. lost, retained by the opponent or by a third person or the like). 6 In the case at bar, Atty. Emiliano Ibasco, Jr., notary public who notarized the document testified that the alleged deed of sale has about four or five original copies. 7 Hence, all originals must be accounted for before secondary evidence can be given of any one. This petitioners failed to do. Records show that petitioners merely accounted for three out of four or five original copies. In reversing the trial court, the respondent Court of Appeals considered the following points:
Asked on the witness stand where the original of the document (Exhibit A) was, plaintiffappellee Luis de Vera answered that it was with the Provincial Assessor in Malolos, Bulacan, whereupon the appellees reserved its (sic) right to present it in evidence (p. 11, tsn., August 11, 1981, Steno, Tecson). The same question propounded to the same witness at the next hearing, he replied that in the early part of 1976 his sister Maria borrowed from him the original document and a certified true copy thereof and brought them to the Office of the Register of Deeds in Malolos "for the purpose of having it registered;" and that when she returned she told him that the original copy of the document was submitted to that office "and it (the property) was transferred in the name of Marcosa Bernabe instead of Mariano Aguilar" (p. 8, tsn., December 10, 1981, Steno, Crisostomo; p. 9, tsn., Mar. 16, 1982, Steno, Vallarta). Indeed, upon the appellees' own evidence the original of the deed of sale in question, a purported xerox copy and certified true copy of which are marked as Exhibits A and B, has not been lost or destroyed. It was submitted to the Office of the Register of Deeds of Malolos for registration. The appellees, therefore, should have asked the office to produce it in court and if it could not be produced for one reason or another should have called the Register of Deeds or his representative to explain why. That they failed to do. The loss or destruction of the original of the document in question has not, therefore, been established. Hence, secondary evidence of it is inadmissible . . . . Neither did the testimony of notary public Ibasco, Jr. to the effect that he did not have a copy of the deed of sale in question because his files were burned when his office at Ronquillo Street, Manila was gutted by fire in 1971 and 1972 (p. 4, tsn., November 10, 1981, Steno, Crisostomo) establish the loss or destruction of the original document in question. What was lost or destroyed in the custody of Atty. Ibasco, Jr. was but one of the duplicate original copies on file with him. Nor did the testimony of Hipolito Timoteo, representative of the Assessor's Office of Bulacan, to the effect that he failed to see the deed of absolute sale annotated on the simple copy of tax declaration No. 15412 (p. 7, tsn., Aug. 12, 1982, Steno, Vallarta) and of David Montenegro, Jr. of the National Archives to the effect that his office had no copy of the document in question because the notary public might not have submitted a copy thereof; or that it was lost or destroyed during the transmittal; and that most of the record before 1960 were destroyed by termites (pp. 8-12, tsn., Oct. 5, 1982, Steno, Tecson), prove loss or destruction of the 8 original and of all the duplicate original copies of the document in question.

We find no cogent reason to rule otherwise. WHEREFORE, the decision of the Court of Appeals dated November 27, 1987 is hereby AFFIRMED.

SO ORDERED.

SECOND DIVISION

THE CONSOLIDATED BANK AND TRUST CORPORATION (SOLIDBANK), P e t i t i o n e r,

G.R. No. 143338

Present:

PUNO, - versus Chairman, AUSTRIA-MARTINEZ, CALLEJO, SR., TINGA, and DEL MONTE MOTOR WORKS, INC., NARCISO G. MORALES,[1] AND SPOUSE, R e s p o n d e n t s. Promulgated: CHICO-NAZARIO, JJ.

July 29, 2005 x--------------------------------------------------x

DECISION

CHICO-NAZARIO, J.:

This is a petition for review on certiorari of the Decision[2] of the Court of Appeals in CA-G.R. CV No. 16886 entitled, The Consolidated Bank & Trust Corporation (SOLIDBANK) v. Del Monte Motor Works, Inc., Narciso O. Morales and Spouse promulgated on 25 November 1999 and of the Resolution of the appellate court dated 11 May 2000 denying petitioners motion for reconsideration. Said decision and resolution affirmed the order dated 28 December 1987 of the Regional Trial Court (RTC), Branch 27, Manila.

The facts of the case are as follows:

On 13 June 1984, petitioner filed before the RTC of Manila a complaint[3] for recovery of sum of money against respondents, impleading the spouse of respondent Narciso O. Morales (respondent Morales) in order to bind their conjugal partnership of gains. Petitioner, a domestic banking and trust corporation, alleges therein that on 23 April 1982, it extended in favor of respondents a loan in the amount of One Million Pesos (P1,000,000.00) as evidenced by a promissory note executed by respondents on the same date. Under the promissory note, respondents Del Monte Motor Works, Inc. (respondent corporation) and Morales bound themselves jointly and severally to pay petitioner the full amount of the loan through twenty-five monthly installments of P40,000.00 a month with interest pegged at 23% per annum. The note was to be paid in full by 23 May 1984. As respondents defaulted on their monthly installments, the full amount of the loan became due and demandable pursuant to the terms of the promissory note. Petitioner likewise alleges that it made oral and written demands upon respondents to settle their obligation but notwithstanding these demands, respondents still failed to pay their indebtedness which, as of 09 March 1984, stood at P1,332,474.55. Petitioner attached to its complaint as Annexes A, B, and C, respectively, a photocopy of the promissory note supposedly executed by respondents, a copy of the

demand letter it sent respondents dated 20 January 1983, and statement of account pertaining to respondents loan.

On 31 October 1984, petitioner filed an Ex-Parte Motion to Declare the Defendants in Default which was opposed by the defendants upon the ground that they were never served with copies of the summons and of petitioners complaint.

On 23 November 1984, respondent corporation filed before the trial court a manifestation attaching thereto its answer to petitioners complaint which states the following:

2That it denies generally and specifically the allegations contained in paragraphs 3, 4, 5, 6, 7 and 8 thereof for lack of knowledge and information sufficient to form a belief as to the truth of the matters therein alleged, the truth being those alleged in the Special and Affirmative Defenses hereinbelow contained;

3ANSWERING FURTHER, and by way of a first special and affirmative defense, defendant herein states that the promissory note in question is void for want of valid consideration and/or there was no valuable consideration involved as defendant herein did not receive any consideration at all;

4ANSWERING FURTHER, and by way of a second special affirmative defense, defendant herein alleges that no demand has ever been sent to nor received by herein defendant and if ever demands were made, denies any liability as averred therein.

5ANSWERING FURTHER, and by way of a third special and affirmative defense, defendant herein avers that the complaint states no cause of action and has no basis either in fact or in law;

VERIFICATION
I, JEANETTE D. TOLENTINO, of legal age, after having been duly sworn to in accordance with law, depose and state:

That I am the Controller of Del Monte Motor Works, Inc., one of the defendants in this case.

That for and in behalf of the defendant corporation, I caused the preparation of the above-narrated answer.

That I have read the contents thereof and they are true of my own knowledge.

(SGD) JEANNETTE D. TOLENTINO[4]

On 06 December 1984, respondent Morales filed his manifestation together with his answer wherein he likewise renounced any liability on the promissory note, thus:

1. He ADMIT[S] paragraphs 1, 2, and 3 of the complaint with a qualification in paragraph 3 thereof that he has long been separated from his wife and the system governing their property relations is that of complete separation of property and not that of conjugal partnership of gain[s];

2. He [DENIES], generally and specifically, the allegations contained in paragraphs 4, 5, 6, 7, and 8 thereof, for lack of knowledge and information sufficient to form a belief and as to the truth of the matter therein averred, the truth being those alleged in the Special And Affirmative Defenses hereinbelow pleaded;

SPECIAL AND AFFIRMATIVE DEFENSES

4. He has never signed the promissory note attached to the complaint in his personal and/or individual capacity as such;

5. That the said promissory note is ineffective, unenforceable and void for lack of valid consideration;

6. That even admitting, argumenti gratia, the validity and execution of the questioned promissory note, still, defendant herein cannot be bound personally and individually to the said obligations as banking procedures requires, it being a standard operating procedure of all known banking institution, that to hold a borrower jointly and severally liable in his official as well as personal capacity, the borrower must sign a Suretyship Agreement or at least, a continuing guarranty with that of the corporation he represent(s) but which in this case is wanting;

7. That transaction/obligation in question did not, in any way, redound/inure to the benefit of the conjugal partnership of gain, as there is no conjugal partnership of gain to speak with, defendant having long been separated from his wife and their property relation is governed by the system of complete separation of property, and more importantly, he has never signed the said promissory note in his personal and individual capacity as such;

VERIFICATION

That I, NARCISO MORALES, after having been duly sworn to in accordance with law, hereby depose and declare that:

I am one of the named defendant[s] in the above-entitled case;

I have cause[d] the preparation of the foregoing Answer upon facts and figures supplied by me to my retained counsel; have read each and every allegations contained therein and hereby certify that the same are true and correct of my own knowledge and information.

(SGD) NARCISO MORALES Affiant[5]

On 26 December 1984, the trial court denied petitioners motion to declare respondents in default and admitted their respective answers.[6]

During the trial on the merits of this case, petitioner presented as its sole witness, Liberato A. Lavarino (Lavarino), then the manager of its Collection Department.

Substantially, Lavarino stated that respondents obtained the loan, subject of this case, from petitioner and due to respondents failure to pay a single monthly installment on this loan, petitioner was constrained to send a demand letter to respondents; that as a result of this demand letter, Jeannette Tolentino (Tolentino), respondent corporations controller, wrote a letter to petitioner requesting for some consideration because of the unfavorable business atmosphere then buffeting their business operation; that Tolentino enclosed to said letter a check with a face value of P220,020.00 to be discounted by petitioner with the proceeds being applied as partial payment to their companys obligation to petitioner; that after receipt of this partial payment, respondents obligation again became stagnant prompting petitioner to serve respondents with another demand letter which, unfortunately, was unheeded by respondents. Lavarino also identified the following exhibits for petitioner: photocopy

of the duplicate original of the promissory note attached to the complaint as Exhibit A;[7] petitioners 20 January 1983 demand letter marked as Exhibit B;[8] Tolentinos letter to petitioner dated 10 February 1983 and marked as Exhibit C;[9] and the 09 March 1984 statement of account sent to respondents marked as Exhibit D.[10]
On 26 September 1985, petitioner made its formal offer of evidence. However, as the original copy of Exhibit A could no longer be found, petitioner instead sought the admission of the duplicate original of the promissory note which was identified and marked as Exhibit E.

The trial court initially admitted into evidence Exhibit E and granted respondents motion that they be allowed to amend their respective answers to conform with this new evidence.[11]

On 30 September 1985, respondent corporation filed a manifestation and motion for reconsideration[12] of the trial courts order admitting into evidence petitioners Exhibit E. Respondent corporation claims that Exhibit E should not have been admitted as it was immaterial, irrelevant, was not properly identified and hearsay evidence. Respondent corporation insists that Exhibit E was not properly identified by Lavarino who testified that he had nothing to do in the preparation and execution of petitioners exhibits, one of which was Exhibit E. Further, as there were markings in Exhibit A which were not contained in Exhibit E, the latter could not possibly be considered an original copy of Exhibit A. Lastly, respondent corporation claims that the exhibit in question had no bearing on the complaint as Lavarino admitted that Exhibit E was not the original of Exhibit A which was the foundation of the complaint and upon which respondent corporation based its own answer.

Respondent Morales similarly filed a manifestation with motion to reconsider order admitting as evidence Exhibit E[13] which, other than insisting that the due execution and genuineness of the promissory note were not established as far as he was concerned, essentially raised the same arguments

contained in respondent corporations manifestation with motion for reconsideration referred to above.

On 06 December 1985, the trial court granted respondents motions for reconsideration.[14] Petitioner moved for the reconsideration of this order which was denied by the court a quo on 20 December 1985.[15]

On 26 December 1985, respondents separately filed their motions to dismiss on the similar ground that with the exclusion of Exhibits A and E, petitioner no longer possessed any proof of respondents alleged indebtedness.[16]

On 08 April 1986, petitioner filed a motion[17] praying that the presiding judge, Judge Ricardo D. Diaz, of the court a quo inhibit himself from this case maintaining that the latter rushed into resolving its motion for reconsideration of the trial courts order of 06 December 1985 thereby depriving it the opportunity of presenting proof that the original of Exhibit A was delivered to respondents as early as 02 April 1983. Such haste on the part of the presiding judge, according

to petitioner, cast doubt on his objectivity and fairness. This motion to inhibit was denied by the trial court on 06 August 1987.[18]

In an order dated 28 December 1987,[19] the case before the trial court was dismissed, the dispositive portion of which reads:

WHEREFORE, the instant case against defendants Del Monte Motor Works, Inc. and Narciso O. Morales and spouse, is hereby DISMISSED, with costs against the plaintiff.

The trial courts finding was affirmed by the Court of Appeals in the assailed decision now before us. The dispositive portion of the appellate courts decision reads:

WHEREFORE, PREMISES CONSIDERED, the decision of the Regional Trial Court, Manila, Branch 27, dated December 28, 1987 dismissing

plaintiff-appellant['s] complaint is hereby AFFIRMED. Cost against the plaintiff-appellant.[20]

Petitioner thereafter filed a motion for reconsideration dated 14 December 1999 which was denied for lack of merit in a resolution of the Court of Appeals promulgated on 11 May 2000.[21] Aggrieved by the appellate courts ruling, petitioner now seeks redress from this Court imputing the following errors on the Court of Appeals:
I

THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT FOUND THAT PRIVATE RESPONDENTS DENIED THE MATERIAL ALLEGATIONS OF PETITIONER SOLIDBANKS COMPLAINT, DESPITE THE PRESEN CE OF INDUBITABLE FACTS CLEARLY POINTING TO THE FACT THAT SAID PRIVATE

RESPONDENTS ADMITTED THE GENUINENESS AND DUE EXECUTION OF THE SUBJECT PROMISSORY NOTE.

II

THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT UPHELD THE EXCLUSION OF EXHIBIT E, THE SECOND ORIGINAL OF THE PROMISSORY NOTE, DESPITE THE FACT THAT THE ORIGINAL OF EXHIBIT A (XEROX COPY OF THE DUPLICATE ORIGINAL OF THE PROMISSORY NOTE) WAS ACTUALLY IN THE POSSESSION OF PRIVATE RESPONDENTS, THUS WARRANTING THE ADMISSION OF SECONDARY EVIDENCE.

III

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING THAT THE TRIAL JUDGE SHOULD HAVE INHIBITED HIMSELF FROM TAKING COGNIZANCE OF AND FROM TRYING AND DECIDING THE INSTANT CASE CONSIDERING HIS PERCEIVED AND MANIFEST BIAS AND PARTIALITY IN FAVOR OF THE PRIVATE RESPONDENTS TO THE GRAVE PREJUDICE OF PETITIONER SOLIDBANK.[22]

The petition is meritorious.

In resolving the case against petitioner, the appellate court held that contrary to petitioners stance, respondents were able to generally and specifically deny under oath the genuineness and due execution of the promissory note, thus:
There can be no dispute to the fact that the allegations in the answer (Record, p. 20, 26-27), of both defendants, they denied generally and specifically under oath the genuineness and due execution of the promissory note and by way of special and affirmative defenses herein states that he (MORALES) never signed the promissory note attached to the complaint (Exh. A) in his personal and/or individual capacity. Moreover, what appears in the record (Record, p. 20) was an admission of paragraphs 1 & 2 but they deny generally and specifically the rest of the allegations. It would be considered that there is a sufficient compliance of the requirement of the law for specific denial.[23]

We hold otherwise.

The pertinent portion of the Rules of Court on the matter provides:

SEC. 8. How to contest such documents. When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused.[24]

In the case of Permanent Savings and Loan Bank v. Mariano Velarde,[25] this Court held that

. . . Respondent also denied any liability on the promissory note as he allegedly did not receive the amount stated therein, and the loan documents do not express the true intention of the parties. Respondent reiterated these allegations in his denial under oath, stating that the promissory note sued upon, assuming that it exists and bears the genuine signature of herein defendant, the same does not bind him and that it did not truly express the real intention of the parties as stated in the defenses

Respondents denials do not constitute an effective specific denial as contemplated by law. In the early case of Songco vs. Sellner,[26] the

Court expounded on how to deny the genuineness and due execution of an actionable document, viz.:

. . . This means that the defendant must declare under oath that he did not sign the document or that it is otherwise false or fabricated. Neither does the statement of the answer to the effect that the instrument was procured by fraudulent representation raise any issue as to its genuineness or due execution. On the contrary such a plea is an admission both of the genuineness and due execution thereof, since it seeks to avoid the instrument upon a ground not affecting either.[27]

In this case, both the court a quo and the Court of Appeals erred in ruling that respondents were able to specifically deny the allegations in petitioners complaint in the manner specifically required by the rules. In effect, respondents had, to all intents and purposes, admitted the genuineness and due execution of the subject promissory note and recognized their obligation to petitioner.

The appellate court likewise sustained the ruling of the trial court that

the

best evidence rule or primary evidence must be applied as the purpose of the

proof is to establish the terms of the writing meaning the alleged promissory note as it is the basis of the recovery of the money allegedly loaned to the defendants (respondents herein).[28]

The best evidence rule is encapsulated in Rule 130, Section 3, of the Revised Rules of Civil Procedure which provides:

Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and

(d) When the original is a public record in the custody of a public officer or is recorded in a public office.

The best evidence rule, according to Professor Thayer, first appeared in the year 1699-1700 when in one case involving a goldsmith, Holt, C. J., was quoted as stating that they should take into consideration the usages of trade and that the best proof that the nature of the thing will afford is only required.[29] Over the years, the phrase was used to describe rules which were already existing such as the rule that the terms of a document must be proved by the production of the document itself, in preference to evidence about the document; it was also utilized to designate the hearsay rule or the rule excluding assertions made out of court and not subject to the rigors of cross-examination; and the phrase was likewise used to designate the group of rules by which testimony of particular classes of witnesses was preferred to that of others.[30]

According to McCormick, an authority on the rules of evidence, the only actual rule that the best evidence phrase denotes today is the rule requiring the production of the original writing[31] the rationale being:

(1) that precision in presenting to the court the exact words of the writing is of more than average importance, particularly as respects operative or dispositive instruments, such as deeds, wills and contracts, since a slight variation in words may mean a great difference in rights, (2) that there is a substantial hazard of inaccuracy in the human process of making a copy by handwriting or typewriting, and (3) as respects oral testimony purporting to give from memory the terms of a writing, there is a special risk of error, greater than in the case of attempts at describing other situations generally. In the light of these dangers of mistransmission, accompanying the use of written copies or of recollection, largely avoided through proving the terms by presenting the writing itself, the preference for the original writing is justified.[32]

Bearing in mind that the risk of mistransmission of the contents of a writing is the justification for the best evidence rule, we declare that this rule finds no application to this case. It should be noted that respondents never disputed the terms and conditions of the promissory note thus leaving us to conclude that as far as the parties herein are concerned, the wording or content of said note is clear enough and leaves no room for disagreement. In their responsive

pleadings, respondents principal defense rests on the alleged lack of consideration of the promissory note. In addition, respondent Morales also claims that he did not sign the note in his personal capacity. These contentions clearly do not question the precise wording[33] of the promissory note which should have paved the way for the application of the best evidence rule. It was,

therefore, an error for the Court of Appeals to sustain the decision of the trial court on this point.

Besides, the best evidence rule as stated in our Revised Rules of Civil Procedure is not absolute. As quoted earlier, the rule accepts of exceptions one of which is when the original of the subject document is in the possession of the adverse party. As pointed out by petitioner in its motion to inhibit, had it been given the opportunity by the court a quo, it would have sufficiently established that the original of Exhibit A was in the possession of respondents which would have called into application one of the exceptions to the best evidence rule.

Significantly, and as discussed earlier, respondents failed to deny specifically the execution of the promissory note. This being the case, there was no need for petitioner to present the original of the promissory note in question. Their judicial admission with respect to the genuineness and execution of the promissory note sufficiently established their liability to petitioner regardless of the fact that petitioner failed to present the original of said note.[34]

Indeed, when the defendant fails to deny specifically and under oath the due execution and genuineness of a document copied in a complaint, the plaintiff need not prove that fact as it is considered admitted by the defendant.[35] In the case of Asia Banking Corporation v. Walter E. Olsen & Co.,[36] this Court held that

Another error assigned by the appellant is the fact that the lower court took into consideration the documents attached to the complaint as a part thereof, without having been expressly introduced in evidence. This was no error. In the answer of the defendants there was no denial under oath of the authenticity of these documents. Under Section 103 of the Code of Civil Procedure, the authenticity and due execution of these documents must, in that case, be deemed admitted. The effect of this is to relieve the plaintiff from the duty of expressly presenting such documents as evidence. The court, for the proper decision of the case, may and should consider, without the introduction of evidence, the facts admitted by the parties.[37]

Anent petitioners allegation that the presiding judge of the court a quo should have inhibited himself from this case, we resolve this issue against petitioner.

In order for this Court to sustain a charge of partiality and prejudice brought against a judge, there must be convincing proof to show that he or she is, indeed, biased and partial. Bare allegations are not enough. Bias and prejudice are serious charges which cannot be presumed particularly if weighed against a judges sacred obligation under his oath of office to administer justice without respect to person and do equal right to the poor and the rich.[38] There must be a showing of bias and prejudice stemming from an extrajudicial source resulting in an opinion in the merits on some basis other than what the judge learned from his participation in the case.[39]

In this case, as petitioner failed to proffer any evidence indicating that Judge Diaz was guilty of bias and prejudice, we affirm the Court of Appeals holding that there was no cogent reason for him to disqualify himself from this case.

Finally, Rule 33, Section 1, of the Revised Rules of Civil Procedure states the rule on the effect of judgment on demurrer to evidence. It reads:

SECTION 1. Demurrer to evidence.- After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence.

A demurrer to evidence abbreviates judicial proceedings, it being an instrument for the expeditious termination of an action. Caution, however, must be exercised by the party seeking the dismissal of a case upon this ground as under the rules, if the movants plea for the dismissal on demurrer to evidence is granted and the order of dismissal is reversed on appeal, he loses his right to adduce evidence. If the defendants motion for judgment on demurrer to evidence is granted and the order is subsequently reversed on appeal, judgment is rendered in favor of the adverse party because the movant loses his right to

present evidence.[40] The reviewing court cannot remand the case for further proceedings; rather, it should render judgment on the basis of the evidence presented by the plaintiff.[41]

Under the promissory note executed by respondents in this case, they are obligated to petitioner in the amount of One Million Pesos, this being the amount of loan they obtained on 23 April 1982. In addition, they also bound themselves to pay the 23% interest per annum on the loan; and a penalty charge of 3% per annum on the amount due until fully paid. Respondents likewise agreed to pay attorneys fees equivalent to 10% of the total amount due, but in no case less than P200.00, plus costs of suit with both these amounts bearing a 1% interest per month until paid. Costs against respondents.

WHEREFORE, premises considered, the Court of Appeals decision dated 25 November 1999 as well as its Resolution of 11 May 2000, affirming the order of the Regional Trial Court, Manila, Branch 27, dated 28 December 1987, are hereby REVERSED and SET ASIDE. Respondents are ordered to pay One Million Pesos

(P1,000,000.00) plus 23% interest per annum, penalty charge of 3% interest per annum, and 10% of the amount due as attorneys fees together with a 1% interest per month until fully paid. The sum of P220,020.00 which was the value of the postdated check given

by respondents to petitioner as partial payment should be deducted from the amount due from respondents.

SO ORDERED.

FILIPINA Y. SY, petitioner, vs. THE HONORABLE COURT OF APPEALS, THE HONORABLE REGIONAL TRIAL COURT, SAN FERNANDO, PAMPANGA, BRANCH XLI, and FERNANDO SY, respondents. DECISION
QUISUMBING, J.: For review is the decision1[1] dated May 21, 1996 of the Court of Appeals in CA-G.R. CV No. 44144, which affirmed the decision2[2] of the Regional Trial Court of San Fernando,

Pampanga, denying the petition3[3] for declaration of absolute nullity of marriage of the spouses Filipina Sy and Fernando Sy. Petitioner Filipina Y. Sy and private respondent Fernando Sy contracted marriage on November 15, 1973 at the Church of Our Lady of Lourdes in Quezon City. 4[4] Both were then 22 years old. Their union was blessed with two children, Frederick and Farrah Sheryll who were born on July 8, 1975 and February 14, 1978,respectively. 5[5] The spouses first established their residence in Singalong, Manila, then in Apalit, Pampanga, and later at San Matias, Sto. Tomas, Pampanga. They operated a lumber and hardware business in Sto. Tomas, Pampanga.6[6] On September 15, 1983, Fernando left their conjugal dwelling. Since then, the spouses lived separately, and their two children were in the custody of their mother. However, their son Frederick transferred to his father's residence at Masangkay, Tondo, Manila on May 15,1988, and from then on, lived with his father.7[7] On February 11, 1987, Filipina filed a petition for legal separation, docketed as Civil Case No. 7900 before the Regional Trial Court of San Fernando, Pampanga. Later, upon motion of petitioner, the action was later amended to a petition for separation of property on the grounds that her husband abandoned her without just cause; that they have been living separately for more than one year; and that they voluntarily entered into a Memorandum of Agreement dated September 29, 1983, containing the rules that

would govern the dissolution of their conjugal partnership.8[8] Judgment was rendered dissolving their conjugal partnership of gains and approving a regime of separation of properties based on the Memorandum of Agreement executed by the spouses.9[9] The trial court also granted custody of the children to Filipina.10[10] In May 1988, Filipina filed a criminal action for attempted parricide against her husband, docketed as Criminal Case No. 88-68006, before the Regional Trial Court of Manila. Filipina testified that in the afternoon of May 15, 1988, she went to the dental clinic at Masangkay, Tondo, Manila, owned by her husband but operated by his mistress, to fetch her son and bring him to San Fernando, Pampanga. While she was talking to her son, the boy ignored her and continued playing with the family computer. Filipina got mad, took the computer away from her son, and started spanking him. At that instance, Fernando pulled Filipina away from their son, and punched her in the different parts of her body. Filipina also claimed that her husband started choking her when she fell on the floor, and released her only when he thought she was dead. Filipina suffered from hematoma and contusions on different parts of her body as a result of the blows inflicted by her husband, evidenced by a Medical Certificate issued by a certain Dr. James Ferraren. She said it was not the first time Fernando maltreated her.11[11] The Regional Trial Court of Manila, however, in its decision12[12] dated April 26, 1990, convicted Fernando only of the lesser crime of slight physical injuries, and sentenced him to 20 days imprisonment. Edpmis Petitioner later filed a new action for legal separation against private respondent, docketed as Civil Case No. 8273,on the following grounds: (1) repeated physical violence; (2) sexual infidelity; (3) attempt by respondent against her life; and (4) abandonment of her by her husband without justifiable cause for more than one year.

The Regional Trial Court of San Fernando, Pampanga, in its decision 13[13] dated December 4,1991, granted the petition on the grounds of repeated physical violence and sexual infidelity, and issued a decree of legal separation. It awarded custody of their daughter Farrah Sheryll to petitioner, and their son Frederick to respondent. On August 4, 1992, Filipina filed a petition14[14] for the declaration of absolute nullity of her marriage to Fernando on the ground of psychological incapacity. She points out that the final judgment rendered by the Regional Trial Court in her favor, in her petitions for separation of property and legal separation, and Fernando's infliction of physical violence on her which led to the conviction of her husband for slight physical injuries are symptoms of psychological incapacity. She also cites as manifestations of her husband's psychological incapacity the following: (1) habitual alcoholism; (2) refusal to live with her without fault on her part, choosing to live with his mistress instead; and (3) refusal to have sex with her, performing the marital act only to satisfy himself. Moreover, Filipina alleges that such psychological incapacity of her husband existed from the time of the celebration of their marriage and became manifest thereafter.15[15] The Regional Trial Court of San Fernando, Pampanga, in its decision 16[16] dated December 9, 1993, denied the petition of Filipina Sy for the declaration of absolute nullity of her marriage to Fernando. It stated that the alleged acts of the respondent, as cited by petitioner, do not constitute psychological incapacity which may warrant the declaration of absolute nullity of their marriage. Lexjuris Petitioner appealed to the Court of Appeals which affirmed the decision of the trial court. In the decision17[17] of the Court of Appeals dated May 21, 1996, it ruled that the testimony of petitioner concerning respondent's purported psychological incapacity falls short of the quantum of evidence required to nullify a marriage celebrated with all the

formal and essential requisites of law. Moreover, the Court of Appeals held that petitioner failed to show that the alleged psychological incapacity of respondent had existed at the time of the celebration of their marriage in 1973. It reiterated the finding of the trial court that the couple's marital problems surfaced only in 1983, or almost ten years from the date of the celebration of their marriage. And prior to their separation in 1983, they were living together harmoniously. Thus, the Court of Appeals affirmed the judgment of the lower court which it found to be in accordance with law and the evidence on record.18[18] Petitioner filed a motion for reconsideration,19[19] which the Court of Appeals denied in its resolution dated November 21, 1996.20[20] Hence, this appeal by certiorari21[21] wherein petitioner now raises the following issues:
Jurismis

1. WHETHER OR NOT THE HONORABLE COURT OF APPEALS MANIFESTLY OVERLOOKED THE FACT THAT ON THE DATE OF THE CELEBRATION OF THE PARTIES' MARRIAGE ON NOVEMBER 15, 1973, NOT DISPUTED BY RESPONDENT FERNANDO, THERE WAS NO MARRIAGE LICENSE THERETO; 2. WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED MISAPPREHENSION OF FACTS BY STATING THAT THE GROUNDS RELIED UPON BY APPELLANT [herein petitioner] DO NOT CONSTITUTE PSYCHOLOGICAL INCAPACITY AS WOULD JUSTIFY NULLIFICATION OF HER MARRIAGE TO APPELLEE [herein respondent]; 3. WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED MISAPPREHENSION OF FACTS BY STATING THAT APPELLANT FAILED TO SHOW THAT THE ALLEGED UNDESIRABLE

ACTUATIONS OF APPELLEE HAD EXISTED OR WERE PRESENT AT THE TIME THEIR MARRIAGE WAS CELEBRATED IN 1973; Jjjuris 4. WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN AFFIRMING THE ERRONEOUS RULING OF THE LOWER COURT THAT THERE IS A REDEEMING ATTITUDE SHOWN TO THE COURT BY RESPONDENT FERNANDO WITH RESPECT TO HIS CHILDREN AND ALSO BELIEVES THAT RECONCILIATION BETWEEN THE PARTIES IS NOT A REMOTE POSSIBILITY WHICH IS ERRONEOUS; AND 5.WHETHER OR NOT THE CASE OF SANTOS V.COURT OF APPEALS (240 SCRA 20) IS APPLICABLE HERETO.22[22] In sum, two issues are to be resolved: justice 1. Whether or not the marriage between petitioner and private respondent is void from the beginning for lack of a marriage license at the time of the ceremony; and 2. Whether or not private respondent is psychologically incapacitated at the time of said marriage celebration to warrant a declaration of its absolute nullity. Petitioner, for the first time, raises the issue of the marriage being void for lack of a valid marriage license at the time of its celebration. It appears that, according to her, the date of the actual celebration of their marriage and the date of issuance of their marriage certificate and marriage license are different and incongruous. Jksm Although we have repeatedly ruled that litigants cannot raise an issue for the first time on appeal, as this would contravene the basic rules of fair play and justice,23[23] in a number of instances, we have relaxed observance of procedural rules, noting that technicalities are not ends in themselves but exist to protect and promote substantive rights of litigants. We said that certain rules ought not to be applied with severity and rigidity if by so doing, the very reason for their existence would be defeated.24[24] Hence, when substantial justice plainly requires, exempting a particular case from the operation

of technicalities should not be subject to cavil.25[25] In our view, the case at bar requires that we address the issue of the validity of the marriage between Fillipina and Fernando which petitioner claims is void from the beginning for lack of a marriage license, in order to arrive at a just resolution of a deeply seated and violent conflict between the parties. Note, however, that here the pertinent facts are not disputed; and what is required now is a declaration of their effects according to existing law. Petitioner states that though she did not categorically state in her petition for annulment of marriage before the trial court that the incongruity in the dates of the marriage license and the celebration of the marriage itself would lead to the conclusion that her marriage to Fernando was void from the beginning, she points out that these critical dates were contained in the documents she submitted before the court. The date of issue of the marriage license and marriage certificate, September 17, 1974, is contained in their marriage contract which was attached as Annex "A" in her petition for declaration of absolute nullity of marriage before the trial court, and thereafter marked as Exhibit "A" in the course of the trial.26[26] The date of celebration of their marriage at Our Lady of Lourdes, Sta. Teresita Parish, on November 15, 1973, is admitted both by petitioner and private respondent, as stated in paragraph three of petitioner's petition for the declaration of absolute nullity of marriage before the trial court, and private respondent's answer admitting it.27[27] This fact was also affirmed by petitioner, in open court, on January 22, 1993, during her direct examination,28[28] as follows: Es m ATTY. RAZON: In the last hearing, you said that you were married on November 15,1973? FILIPINA SY: Yes, Sir. November 15, 1973, also appears as the date of marriage of the parents in both their son's and daughter's birth certificates, which are also attached as Annexes " B" and "C" in the petition for declaration of absolute nullity of marriage before the trial court, and

thereafter marked as Exhibits "B" and "C" in the course of the trial.29[29] These pieces of evidence on record plainly and indubitably show that on the day of the marriage ceremony, there was no marriage license. A marriage license is a formal requirement; its absence renders the marriage void ab initio. In addition, the marriage contract shows that the marriage license, numbered 6237519, was issued in Carmona, Cavite, yet, neither petitioner nor private respondent ever resided in Carmona.30[30] Carefully reviewing the documents and the pleadings on record, we find that indeed petitioner did not expressly state in her petition before the trial court that there was incongruity between the date of the actual celebration of their marriage and the date of the issuance of their marriage license. From the documents she presented, the marriage license was issued on September 17,1974, almost one year after the ceremony took place on November 15, 1973. The ineluctable conclusion is that the marriage was indeed contracted without a marriage license. Nowhere do we find private respondent denying these dates on record. Article 80 of the Civil Code31[31] is clearly applicable in this case. There being no claim of an exceptional character, the purported marriage between petitioner and private respondent could not be classified among those enumerated in Articles 72-7932[32] of the Civil Code. We thus conclude that under Article 80 of the Civil Code, the marriage between petitioner and private respondent is void from the beginning. Es msc We note that their marriage certificate and marriage license are only photocopies. So are the birth certificates of their son Frederick and daughter Farrah Sheryll. Nevertheless, these documents were marked as Exhibits during the course of the trial below, which shows that these have been examined and admitted by the trial court, with no objections having been made as to their authenticity and due execution. Likewise, no objection was interposed to petitioner's testimony in open court when she affirmed that the date of the actual celebration of their marriage was on November 15, 1973. We are of the view, therefore, that having been admitted in evidence, with the adverse party

failing to timely object thereto, these documents are deemed sufficient proof of the facts contained therein.33[33] The remaining issue on the psychological incapacity of private respondent need no longer detain us. It is mooted by our conclusion that the marriage of petitioner to respondent is void ab initio for lack of a marriage license at the time their marriage was solemnized. Esmm is WHEREFORE, the petition is GRANTED. The Decision of the Regional Trial Court of San Fernando, Pampanga, dated December 9,1993 as well as the Decision promulgated on May 21, 1996 by the Court of Appeals and its Resolution dated November 21, 1996, in CA-G.R. No. 44144 are set aside. The marriage celebrated on November 15, 1973 between petitioner Filipina Yap and private respondent Fernando Sy is hereby declared void ab initio for lack of marriage license at the time of celebration. No pronouncement as to costs. SO ORDERED. G.R. No. 152881 August 17, 2004

ENGR. BAYANI MAGDAYAO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CALLEJO, SR., J.: Before us is a petition for review on certiorari filed by petitioner Engr. Bayani Magdayao of the Decision1 of the Court of Appeals in CA-G.R. CR No. 20549 affirming the Decision2 of the Regional Trial Court, Dipolog City, Branch 8, convicting the petitioner of violation of Batas Pambansa (B.P.) Blg. 22. The Antecedents An Information was filed charging petitioner with violation of B.P. Blg. 22 on September 16, 1993, the accusatory portion of which reads:

On or about September 30, 1991, at Dipolog City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, knowing fully well that he did not have sufficient funds in or credit with the drawee bank, Philippine National Bank, Dipolog Branch, did then and there willfully, unlawfully and feloniously make, draw, issue and deliver to one RICKY OLVIS, in payment of his obligation to the latter, PNB Check No. 399967 dated September 30, 1991 in the amount of SIX HUNDRED THOUSAND PESOS (P600,000.00), Philippine Currency, which check, however, when presented for payment with PNB-Dipolog Branch, was dishonored and refused payment for the reason that it was drawn against insufficient funds, and despite repeated demands made by the private complainant on the accused, the latter, failed to make good the checks value, to the damage and prejudice of RICKY OLVIS in the aforestated amount. CONTRARY TO LAW.3 When arraigned, the petitioner, assisted by counsel, entered a plea of not guilty. When the case for trial was called on June 7, 1995 for the prosecution to adduce its evidence, the petitioner and his counsel were absent. On motion of the prosecution, the court allowed it to adduce evidence. The prosecution presented the private complainant, Ricky Olvis, who testified on direct examination that on September 30, 1991, the petitioner drew and issued to him Philippine National Bank (PNB) Check No. 399967 dated September 30, 1991 in the amount of P600,000.00. The said check was drawn against the latters account with the PNB, Dipolog City Branch, and issued in payment of the petitioners obligation with Olvis. The latter deposited the check on October 1, 1991 in his account with the BPI-Family Bank, Dipolog City Branch, but the drawee bank dishonored the check for the reason "Drawn Against Insufficient Funds" stamped on the dorsal portion of the check. Olvis testified that when informed that his check was dishonored, the petitioner pleaded for time to pay the amount thereof, but reneged on his promise. Olvis then filed a criminal complaint against the petitioner for violation of B.P. Blg. 22 on September 4, 1992, docketed as I.S. No. 92-368. The petitioner again offered to repay Olvis the amount of the obligation by retrieving the dishonored check and replacing the same with two other checks: one for P400,000.00 and another for P200,000.00 payable to Olvis. Taking pity on the petitioner, he agreed. He then returned the original copy of the check to the petitioner, but the latter again failed to make good on his promise and failed to pay the P600,000.00. The prosecution wanted Olvis to identify the petitioner as the drawer of the check, but because of the latters absence and that of his counsel, the direct examination on the witness could not be terminated. The prosecution moved that such direct examination of Olvis be continued on another date, and that the petitioner be ordered to appear before the court so that he could be identified as the drawer of the subject check. The trial court granted the motion and set the continuation of the trial on June 13, 1997. In the meantime, the prosecution marked a photocopy of PNB Check No. 399967 as Exhibit "A," and the dorsal portion thereof as Exhibit "A-1." After several postponements at the instance of the petitioner, he and his counsel failed to appear before the court for continuation of trial. They again failed to appear when the case was called for continuation of trial on November 21, 1995. The prosecution offered in evidence the photocopy of PNB Check No. 399967, which the court admitted. The trial court, thereafter,

issued an Order declaring the case submitted for decision.4 The petitioner filed a motion for a reconsideration of the Order, which the trial court denied on January 26, 1996. The petitioner then filed an Omnibus Supplemental Motion and to Allow Him to Adduce Evidence alleging, inter alia, that: h) Despite the absence of the original, with only a xerox copy of the PNB Check worth P600,000.00, and further stressing that the same was paid, the prosecutor insisted, against the vigorous objection of accused, in filing the case in Court. Plenty of water passed under the bridge since then;5 In its Opposition to the said motion, the prosecution averred that it dispensed with the presentation of the original of the dishonored check because the same had been returned to the petitioner. It also pointed out that the petitioner failed to object to the presentation of the photocopy of the dishonored check. In a Special Manifestation, the petitioner insisted that the photocopy of the subject check was inadmissible in evidence because of the prosecutions failure to produce the original thereof. On July 8, 1996, the trial court issued an Order denying the petitioners motion. The petitioners motion for reconsideration thereon was, likewise, denied by the trial court. On January 29, 1996, the trial court rendered judgment convicting the petitioner of the crime charged. The fallo of the decision reads: WHEREFORE, finding the guilt of the accused established beyond reasonable doubt, the herein accused, Engr. Bayani Magdayao is convicted of the crime charged against him for Violation of Batas Pambansa Bilang 22, as principal by direct participation, and pursuant to Section 1 thereof sentenced to suffer the penalty of imprisonment for a period of six (6) months of arresto mayor and to pay the costs. The accused is further ordered to pay the private complainant the sum of P600,000.00 corresponding to his obligation due to the private offended party. SO ORDERED.6 On appeal to the Court of Appeals, the petitioner assigned the following errors: I THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIME CHARGED SOLELY ON THE BASIS OF THE FOLLOWING EVIDENCE: A. MACHINE OR PHOTOSTATIC COPY OF PNB CHECK NO. 399967 DATED SEPTEMBER 30, 1991; B. WORD "DAIF" AT THE BACK OF THE PHOTOSTATIC COPY OF SAID CHECK;

C. UNCORROBORATED ORAL TESTIMONY OF PRIVATE COMPLAINANT. II THE LOWER COURT ERRED IN CONVICTING THE ACCUSED WITHOUT HIM BEING POSITIVELY IDENTIFIED BY THE COMPLAINANT OR OTHER WITNESS. III THE LOWER COURT ERRED WHEN IT RENDERED THE DECISION WITH ALLEGED FINDINGS OF FACTS NOT SUFFICIENTLY SUPPORTED BY EVIDENCE. IV THE LOWER COURT ERRED IN AWARDING CIVIL INDEMNITY TO PRIVATE COMPLAINANT IN THE AMOUNT OF SIX HUNDRED THOUSAND PESOS.7 On December 21, 2001, the CA rendered judgment affirming the decision of the trial court. The appellate court also denied the petitioners motion for reconsideration. In his petition at bar, the petitioner merely reiterates the errors he ascribed to the RTC in his appeal before the CA, and prays that the decisions of the trial and appellate courts be set aside. The Ruling of the Court The petition has no merit. On the first three assignments of error, the petitioner avers that the prosecution failed to prove his guilt beyond reasonable doubt of the crime charged because of the following: (a) the photocopy of PNB Check No. 399967, adduced in evidence by the prosecution, is inadmissible in evidence under Rule 129, Section 1 of the Revised Rules of Evidence; hence, has no probative weight; b) the prosecution failed to present the BPI-Family Bank teller to testify on the presentment of PNB Check No. 399967 and the dishonor thereof; and (c) the prosecution failed to prove that it was he who drew and delivered the dishonored check to the private complainant, and that he was properly notified of the dishonor of the said check. The petitioner also asserts that there was no legal basis for the award of the amount of P6,000.00 as civil indemnity. We rule against the petitioner. Section 1 of B.P. Blg. 22 for which the petitioner was charged, reads: Section 1. Checks without sufficient funds. Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he

does not have sufficient funds in or credit with the drawee bank for the payment of such in full upon presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty (30) days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court. To warrant the petitioners conviction of the crime charged, the prosecution was burdened to prove the following essential elements thereof: (1) The making, drawing and issuance of any check to apply for account or for value; (2) The knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and (3) The subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.8 The gravamen of the offense is the act of making or issuing a worthless check or a check that is dishonored upon presentment for payment.9 As to the second element, knowledge on the part of the maker or drawer of the check of the insufficiency of the funds in or credit with the bank to cover the check upon its presentment refers to the state of mind of the drawer; hence, it is difficult for the prosecution to prove. The law creates a prima facie knowledge on the insufficiency of funds or credit, coincidental with the attendance of the two other elements. As such, Section 2 provides: SEC. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. We agree with the petitioner that it was incumbent upon the prosecution to adduce in evidence the original copy of PNB Check No. 399967 to prove the contents thereof, more specifically the names of the drawer and endorsee, the date and amount and the dishonor thereof, as well as the reason for such dishonor. Section 3, Rule 129 of the Revised Rules on Evidence specifically provides that when the subject of inquiry is the contents of the document, no evidence shall be admissible other than the original thereof. The purpose of the rule requiring the production by the offeror of the best evidence is the prevention of fraud, because if a party is in possession of such evidence and withholds it and presents inferior or secondary evidence in its place, the

presumption is that the latter evidence is withheld from the court and the adverse party for a fraudulent or devious purpose which its production would expose and defeat.10 As long as the original evidence can be had, the court should not receive in evidence that which is substitutionary in nature, such as photocopies, in the absence of any clear showing that the original writing has been lost or destroyed or cannot be produced in court. Such photocopies must be disregarded, being inadmissible evidence and barren of probative weight.11 Furthermore, under Section 3(b), Rule 130 of the said Rules, secondary evidence of a writing may be admitted when the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice. To warrant the admissibility of secondary evidence when the original of a writing is in the custody or control of the adverse party, Section 6 of Rule 130 provides that the adverse party must be given reasonable notice, that he fails or refuses to produce the same in court and that the offeror offers satisfactory proof of its existence: When original document is in adverse partys custody or control. If the document is in the custody or under the control of the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss. The mere fact that the original of the writing is in the custody or control of the party against whom it is offered does not warrant the admission of secondary evidence. The offeror must prove that he has done all in his power to secure the best evidence by giving notice to the said party to produce the document.12 The notice may be in the form of a motion for the production of the original or made in open court in the presence of the adverse party or via a subpoena duces tecum, provided that the party in custody of the original has sufficient time to produce the same. When such party has the original of the writing and does not voluntarily offer to produce it or refuses to produce it, secondary evidence may be admitted.13 In this case, Olvis, the private complainant, testified that after the check was dishonored by the drawee bank for insufficiency of funds, he returned it to the petitioner upon the latters offer to pay the amount of the check by drawing and issuing two checks, one for P400,000.00 and the other for P200,000.00. However, the petitioner still failed to satisfy his obligation to Olvis: Q Sometime in the month of May 1991, do you remember that (sic) you have any transaction with the accused? A Q A Q A Yes, Sir. What was the transaction about? It was about our joint venture in Ipil. What did the accused in this case issue to you? He issued me a check worth six hundred thousand pesos (P600,000.00).

Q If the photostatic copy of the check [would] be presented to you, would you be able to identify it? A Yes, Sir.

Q I am showing to you a photostatic copy of PNB Dipolog Branch Check # 399967 with a maturity date on September 30, 1991 in the amount of six hundred thousand pesos (P600,000.00), is this the check issued to you? A Q A Yes, Sir. Here is a signature at the bottom corner of this check, whose signature is this? Bayani Magdayao[s].

Q In other words, this check was issued for a valuable consideration in connection with the project you have in Ipil? A Q A Q A Q A Yes, Sir. What did you do with the check? I deposited this in BPI-Family Bank, but it was drawn against insufficient fund. When did you deposit the check? Sometime in October. October, what year? In 1991, Sir.

Q Within a reasonable period from the maturity date of the check, you caused it to be deposited? A Yes, Sir.

Q And this check was dishonored by the depository bank, that the account to which it was drawn does not have sufficient fund, is that indicated in this check? A Q A Yes, Sir. Where is that indication of dishonor for lack of sufficient fund? Here, Sir.

INTERPRETER: Witness pointing to the check. ATTY. CO: We pray, Your Honor, that the photostatic copy of the check be marked as Exhibit "A." The reason why it was dishonored, found at the back of this check, indicated as "DAIF" meaning to say: "Drawn Against Insufficient Fund" be marked as Exhibit "A-1." Q After being informed that the check was dishonored by the drawee bank, what did you do? A I went to Magdayaos house and asked for payment but he refused to pay.

Q When you say Magdayao, are you referring to the accused in this case, Bayani Magdayao? A Yes, Sir.

Q It appears that this is merely a photostatic copy of the check, where is the original of the check? A Magdayao replaced the original check worth six hundred thousand pesos (P600,000.00), and he gave me another check worth four hundred thousand pesos (P400,000.00) and two hundred thousand pesos (P200,000.00). Q At the time the accused in this case replaced this check worth six hundred thousand (P600,000.00), was the case already pending before the City Fiscals Office or before this Honorable Court? A Yes, Sir, it is pending.

Q Until now the amount of six hundred thousand pesos (P600,000.00) has not been paid to you? A Yes, Sir.14

In his "Motion to Suspend Proceedings" in the trial court, the petitioner admitted that he received the original copy of the dishonored check from the private complainant15 and that he caused the non-payment of the dishonored check.16 The petitioner cannot feign ignorance of the need for the production of the original copy of PNB Check No. 399967, and the fact that the prosecution was able to present in evidence only a photocopy thereof because the original was in his possession. In fact, in the Omnibus Supplemental Motion dated February 8, 1996, and in his Special Manifestation filed on May 28, 1996, the petitioner complained of the prosecutions violation of

the best evidence rule. The petitioner, however, never produced the original of the check, much less offered to produce the same. The petitioner deliberately withheld the original of the check as a bargaining chip for the court to grant him an opportunity to adduce evidence in his defense, which he failed to do following his numerous unjustified postponements as shown by the records. There was no longer a need for the prosecution to present as witness the employee of the drawee bank who made the notation at the dorsal portion of the dishonored check17 to testify that the same was dishonored for having been drawn against insufficient funds. The petitioner had already been informed of such fact of dishonor and the reason therefor when Olvis returned the original of the check to him. In fact, as shown by the testimony of Olvis, the petitioner drew and issued two other separate checks, one for P400,000.00 and the other for P200,000.00, to replace the dishonored check. Because of his dilatory tactics, the petitioner failed to adduce evidence to overcome that of the prosecutions. The petitioners contention that Olvis failed to identify him as the drawer of the subject check is nettlesome. It bears stressing that Olvis was ready to identify the petitioner after his direct examination, but the latter and his counsel inexplicably failed to appear. The direct examination of Olvis had to be continued to enable him to point to and identify the petitioner as the drawer of the check. This is shown by the transcript of the stenographic notes taken during the trial, viz: ATTY. CO: Considering that the accused is not present, Your Honor, I would like to manifest that the private offended party be given the opportunity to identify the accused for purposes of this case.18 The trial court issued an Order on June 7, 1995, directing the petitioner, under pain of contempt, to appear before it to enable Olvis to identify him: After the declaration of the first and only witness for the prosecution, the private prosecutor prayed to set the case for continuation of the trial, and ordering the defendant to appear to allow the prosecution to establish his identity. Set the case for continuation of the trial on June 13, 1995, ordering the accused to appear personally for purposes of his identification in court under pain of contempt if he fails to comply unjustifiably with this order. The defense shall be allowed to cross examine the witness for the prosecution if desired, otherwise, his right of cross-examination shall be considered waived completely. SO ORDERED.19 The petitioner defied the Order of the court and failed to appear as directed, and as gleaned from the records

(14) June 7, 1995 The accused and counsel did not appear; hence, the prosecution was allowed to present its evidence ex-parte. The private complainant was presented to testify in the direct-examination, reserving the right of cross-examination on the part of the accused, and setting the case for the purpose on June 13, 1995. (15) June 13, 1995 The accused did not appear, but the defense counsel requested for a resetting of the cross-examination to be conducted. The request was granted over the objection of the prosecution, and set the continuation of the trial to August 31, 1995. (16) August 31, 1995 As in previous occasions, the accused did not appear and defense counsel requested for another resetting, and despite the vigorous opposition by the prosecution, the trial was postponed to October 3, 1995, with the understanding that if the accused will not appear, it would be taken to mean that he waived his right to crossexamination and to present evidence in his defense. (17) October 3, 1995 Atty. Narciso Barbaso appeared as a new counsel for the accused but requested that he be allowed to read first the transcript of the direct testimony of the plaintiffs witness to be cross-examined. The request was granted, and the trial was reset to November 21, 1995. (18) November 21, 1995 The accused and his counsel both did not appear. The prosecution formally offered Exh. "A" in evidence, and upon its admission, the prosecution rested its case, and prayed that as stated in the previous order of the court dated August 31, 1995, the case shall be considered submitted for judgment, which request was granted. (19) December 7, 1995 The defense filed a motion for reconsideration of the order dated November 21, 1995. The court required the defense to file a supplemental motion stating the nature of its evidence to be presented if allowed to enable the court to determine the merit of the motion for reconsideration, but despite the lapsed (sic) of the period set by the court, the accused did not comply; hence, the denial of the motion for reconsideration, and set the case for promulgation of the judgment on February 19, 1996. (20) Then came the Omnibus Supplemental Motion, etc., by the accused dated February 8, 1996, and by reason thereof, the promulgation of the judgment set on February 19, 1996, was held in abeyance. (21) The defense counsel filed a motion to withdraw as counsel for the accused dated February 27, 1996, and which was granted by the order of the court dated March 1, 1996. [(22)] May 28, 1996 A Special Manifestation dated May 21, 1996 in support of the Omnibus Supplemental Motion filed thru another lawyer appearing as a new counsel for the accused, now under consideration.20 Contrary to the petitioners claim, the trial court did not award P6,000.00 as civil indemnity in favor of Olvis; it ordered the petitioner to pay him P600,000.00, the amount of the subject check.

Having failed to pay the amount of the check, the petitioner is liable therefor and should be ordered to pay the same to the private complainant in this case.21 On the second assigned error, the petitioner faulted the trial court for imposing a penalty of imprisonment instead of a penalty of fine, and cites SC Circular No. 12-2000 to bolster his contention. He suggests that since he is merely a first offender, he should be sentenced to pay a fine double the amount of the check. The Office of the Solicitor General, on the other hand, objects to the petitioners plea on the ground that when the latter drew and issued the dishonored check to the private complainant, he knew that the residue of his funds in the drawee bank was insufficient to pay the amount thereof. Considering the facts and circumstances attendant in this case, we find the petitioners plea to be barren of merit. Administrative Circular No. 13-2001 provides: It is, therefore, understood that: 1. Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for violations of BP 22; 2. The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interest of justice, or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice; 3. Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code on subsidiary imprisonment.22 The records show that despite the numerous opportunities given to him by the trial court, the petitioner refused to adduce any evidence in his behalf. Moreover, the Court of Appeals found the petitioners appeal to be devoid of merit. Considering the factual milieu in this case, there is every reason for the Court to reject the plea for a penalty of fine and maintain the penalty of imprisonment the trial court imposed on the petitioner. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE COURSE. The assailed decision of the Court of Appeals is AFFIRMED. Costs against the petitioner. SO ORDERED. G.R. No. 117384 October 21, 1998 HEIRS OF TEODORO DELA CRUZ represented by EDRONEL DELA CRUZ, petitioners, vs.

COURT OF APPEALS, PACIFICO MARQUEZ, FILOMENO and GREGORIO, both surnamed MADRID, respondents.

ROMERO, J.: Petitioners seek the reversal of the decision of the Court of Appeals, 1 in CA G.R. No. 25339 dated September 27, 1994 affirming the decision of the Regional Trial Court of Isabela in Civil Case No. 19-219 dated October 9, 1989 which adjudicated lot Nos. 7036-A-10-A, 7036-A-10-B and 7036-A-10-C to herein private respondents. 2 The following facts, concisely related in the petition, 3 are not in dispute. On November 20, 1986, petitioners filed an action for reconveyance with damages 4 against private respondents involving a parcel of land situated in Poblacion, San Mateo, Isabela with a total area of 3,277 square meters. In their complaint, petitioners assert that the subject land was bought by their predecessor-in-interest from the private respondents, Madrid brothers, for P4,000.00 in a deed of sale executed on May 18, 1959, and since then they have been in actual, physical, continuous and open possession of the property. However, sometime in October 1986, much to their dismay and surprise, private respondents managed to obtain a Torrens Title over the said land. On the other hand, the Madrids denied having executed the said deed of sale and assuming that said document exists, the same is fictitious and falsified. Moreover, while they admit petitioners' possession of the land, they assert that this possession is in defiance of their repeated demands that the former relinquish the same. Meanwhile, Pacifico Marquez contends that he is an innocent purchaser for value of the property having bought the same from the Madrid brothers in 1976. 5 During the trial, petitioners were unable to present the original deed of sale since it was lost. Consequently, they were constrained to offer, as Exhibit "A," a photo copy of the purported original carbon copy of the deed of sale in an effort to prove the transaction. However, in disposing of the case, the trial court ruled that Exhibit "A" was inadmissible in evidence, thus:
Since at the time of the execution of Teodoro dela Cruz' affidavit or on June 14, 1966, a duplicate original carbon copy of the alleged sale was still in his possession, the plaintiffs must have to account for it. No proof was adduced that this remaining copy was lost or destroyed. Furthermore, no attempt was done to produce the copies retained by the notary public although there is a possibility that the same still exist ( sic). Neither was there any proof that the copy sent to the court as required by the notarial law is unavailable. Under these (sic) state of facts, the Court believes that the "xerox copy of a certified true copy" of the original issued by the notary public cannot be admitted in evidence to prove the conveyance of the land in question.

Accordingly, the trial court dismissed petitioners' complaint, the dispositive portion of the decision of which reads:
WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered: 1. Dismissing the complaint; 2. Declaring the defendants the lawful owners of the land in question insofar as the portion thereof falling or found in their respective titles are concerned; and 3. Ordering the plaintiffs, their agents, representatives or any person or persons deriving their title, ownership or possession from the plaintiffs, to vacate the portions of Lots 7036A-10-A, 70360A-10-B and 7036-A-10-C, occupied by them and to deliver the possession thereof to the defendants; No pronouncement as to costs. SO ORDERED.

Evidently aggrieved by the decision, petitioners appealed to the Court of Appeals contending that the trial court erred in holding that: (1) Exhibit "A" was inadmissible in evidence to prove the transaction; (2) there was no valid sale of the land in question; (3) that they (petitioners) are not entitled to the improvements they had introduced in the land. On September 27, 1994, the Court of Appeals rendered its judgment which ruled that Exhibit "A" was admissible in evidence for failure of the private respondents to object when it was offered during the trial, thus:
It is therefore evident that defendants-appellees never put in issue the inadmissible nature of Exh. "A" as a mere secondary evidence and that the trial judge did not exclude the same when it was formally offered, only to ultimately exclude it in its decision. It is true that the originals of Exh. "A" were never produced or accounted for by plaintiffs. Yet, notwithstanding this omission, the defense did not object to its not being the best evidence when it was formally offered. Had the defendant interposed an objection to Exh. "A" on the ground of its incompetency for not complying with the best evidence rule, it would have been properly excluded by the trial court. Defendants' omission to object on the proper ground operated as a waiver, as this was a matter resting on their discretion.

Unfortunately, petitioners' victory was shortlived. For the Court of Appeals, while ruling that Exhibit "A" was admissible, concluded that the sine had no probative value to support the allegation of the petitioners that the disputed land was sold to them in 1959, viz.:
The lone fact that Atty. Tabangay asserted that he recognized his signature on the copy shown by Teodoro when the loss of the originals was just made known to him, does not render Exh. "A" trustworthly as to the actual execution of the alleged deed of sale. Exh. "A" does not even contain a reproduction of the alleged signatures of the Madrid brothers for comparison purposes. The surviving witness to the alleged execution, Constantino Balmoja was not presented to corroborate Atty. Tabangay's testimony, hinged as the latter was on secondary evidence.

Hence, the Court of Appeals affirmed the trial court's decision, the dispositive portion of which reads:
WHEREFORE, IN VIEW OF THE FOREGOING, the decision of the trial court dated October 9, 1989 is hereby AFFIRMED with the modification that the case be remanded to the court a quo to conduct the proper proceedings to determine the value of the useful improvements introduced by appellants for reimbursement by appellees. SO ORDERED.

Failing in their bid to reconsider the decision, the petitioners have filed the present petition. Petitioners maintain that even if Exhibit "A" were a mere photo copy of the original carbon copy, they had presented other substantial evidence during the trial to prove the existence of the sale. 6 First, the testimony of the notary public, Atty. Tabangay, who acknowledged the due execution of the deed of sale. Second, their long possession of the land in question, bolstered by the construction of various improvements gives rise to the disputable presumption of ownership. While we concur with the Court of Appeals' finding that Exhibit "A" does not prove that the sale of the land indeed occurred, still we are constrained to reverse its decision in view of the circumstances present in this case. To begin with, Atty. Sevillano Tabangay, the notary public who notarized the deed of sale, testified that the document has about five (5) copies. 7 Hence, it is imperative that all the originals must be accounted for before secondary evidence can be presented. 8 These petitioners failed to do. Moreover, records show that none of these five copies was even presented during the trial. Petitioners' explanation that these copies were lost or could not be found in the National Archives was not even supported by any certification from the said office. It is a well-settled principle that before secondary evidence can be presented, all duplicates and/or counterparts must be accounted for, and no excuse for the nonproduction of the original document itself can be regarded as established until all its parts are unavailable. 9 Notwithstanding this procedural lapse, when Exhibit "A" was presented private respondents failed, not only to object, but even to cross-examine the notary public, Atty. Tabangay, regarding its execution. 10 Forthwith, upon private respondents' failure to object to Exhibit "A" when it was presented, the same becomes primary evidence. 11 To be sure, even if Exhibit "A" is admitted in evidence, we agree with the Court of Appeals that its probative value must still meet the various tests by which its reliability is to be determined. Its tendency to convince and persuade must be considered for admissibility of evidence should not be confused with its probative value. 12

As earlier stated, Exhibit "A" was merely a photocopy lifted from the carbon copy of the alleged deed of sale. 13 A cursory glance will immediately reveal that it was unsigned by any of the parties and undated as to when it was executed. Worse, when Atty. Tabangay typed Exhibit "A," the contents were based on an alleged carbon original which petitioners' predecessor-in-interest presented to him, without bothering to check his own files to verify the correctness of the contents of the document he was copying. In other words, Atty. Tabangay's failure to determine the accuracy of the carbon copy requested by the petitioners' predecessor-in-interest renders Exhibit "A" unreliable. However, despite our prescinding discussion, all is not lost for the petitioner. The records show that the disputed petitioners since 1959. They have since been introducing several improvements on the land which certainly could not have escaped the attention of the Madrids. Furthermore, during all this time, the land was enclosed, thus signifying petitioners' exclusive claim of ownership. The construction of various infrastructure on the land rice mill, storage house, garage, pavements and other buildings was undoubtedly a clear exercise of ownership which the Madrids could not ignore. Oddly, not one of them protested. We cannot accept the Madrids' explanation that they did not demand the petitioners to vacate the land due to the unexplained killings within the area. 14 Not a single shred of evidence was presented to show that these killings were perpetrated by the petitioners. All told, their remonstration and fears are nothing but pure speculation. To make matters worse, the record is bereft of any documentary evidence that the Madrids sent a written demand to the petitioners ordering them to vacate the land. Their failure to raise a restraining arm or a shout of dissent to the petitioners' possession of the subject land in a span of almost thirty (30) years is simply contrary to their of ownership. Next, the Madrids argue that neither prescription nor laches can operate against them because their title to the property is registered under the Torrens system and therefore imprescriptable. 15 The principle raised, while admittedly correct, are not without exception. The fact that the Madrids were able to secure TCT No. 167250, and Marquez, TCT Nos. 167220 and 167256, did not operate to vest upon them ownership of the property. The Torrens system does not create or vest title. It has never been recognized as a mode of acquiring ownership, 16 especially considering the fact that both the Madrids and Marquezes obtained their respective TCT's only in October 1986, twenty-seven long (27) years after petitioners first took possession of the land. If the Madrids and Marquezes wished to assert their ownership, they should have filed a judicial action for recovery of possession and not merely to have the land registered under their respective names. For as earlier mentioned, Certificates of Title do not establish ownership. 17 Even if we were to rule that the Certificates of Title to the private respondents would ripen into ownership of the land, and therefore, the defense of prescription would be unavailing, still, the petitioners would have acquired title to it by virtue of the equitable

principle of laches. The Madrids' long inaction or passivity in asserting their rights over disputed property will preclude them from recovering the same. 18 The above ruling was stressed in the following cases: Miguel v. Catalino 19 declared: Notwithstanding the errors aforementioned in the appealed decision, we are of the opinion that the judgment in favor of defendant-appellee Florencio Catalino must be sustained. For despite the invalidity of his sale to Catalino Agyapao, father of defendantappellee, the vendor Bacaquio suffered the latter to enter, possess and enjoy the land in question without protest, from 1928 to 1943, when the seller died; and the appellants, in turn, while succeeding the deceased, also remained inactive, without taking any step to reinvindicate the lot from 1944 to 1962, when the present suit was commenced in court. Even granting appellants' proposition that no prescription lies against their father's recorded title, their passivity and inaction for more than 34 years (1928-1962) justifies the defendant-appellee in setting up the equitable defense of laches in his own behalf. As a result, the action of plaintiffs-appellants must be considered barred and the Court below correctly so held. Courts can not look with favor at parties who, by their silence, delay and inaction, knowingly induce another to spend time, effort and expense in cultivating the land, paying taxes and making improvements thereon for 30 long years, only to spring from ambush and claim title when the possessor's efforts and the rise of land values offer an opportunity to make easy profit at his expense. . . . . Pabalete v. Echarri 20 stated: Upon a careful consideration of the facts and circumstances, we are constrained to find, however, that while no legal defense to the action lies, an equitable one lies in favor of the defendant and that is, the equitable defense of laches. We hold that the defense of prescription or adverse possession in derogation of the title of the registered owner Domingo Mejia does not lie, but that of the equitable defense of laches. Otherwise stated, we hold that while defendant may not be considered as having acquired title by virtue of his and his predecessor's long continued possession for 37 years, the original owner's right to recover back the possession of the property and the title thereto from the defendant has, by the long period of 37 years and by patentee's inaction and neglect been converted into a stale demand. (Quoting Mejia de Lucas v. Gamponia, 100 Phil. 277).
xxx xxx xxx

This defense is an equitable one and does not concern itself with the character of the defendant's title, but only with whether or not by reason of the plaintiff's long inaction or inexcusable neglect he should be barred from asserting this claim at all, because to allow him to do so would be inequitable and unjust to the defendant. . . . Lastly, Marquez' claim that he is a purchaser in good faith and for value does not inspire any merit. In his testimony, he admitted that he knew the land in question. 21 Curiously,

in his Answer 22 to the complaint filed by the petitioners, he stated that he has been aware that the former were in possession of the land since 1959. Where a purchaser was fully aware of another person's possession of the lot he purchased, he cannot successfully pretend later to be an innocent purchaser for value. 23 Moreover, one who buys without checking the vendor's title takes all the risks and losses consequent to such failure. 24 In fact, it would have been expected that in the normal course of daily life, both the Madrids and Marquezes talked about the status of the property. This being so, it would be difficult to imagine that the latter were not made aware of the petitioner's possession of the land. Armed with such information, they should have acted with the diligence of a prudent man in determining the circumstances surrounding the property. Otherwise, the law does not give him the benefit afforded to an innocent purchaser for value. 25 WHEREFORE, in view of the foregoing, the decision of the Court of Appeals dated September 24, 1994 in CA-G.R. No. 25339 is hereby REVERSED and SET ASIDE. Instead, petitioners are hereby declared as the legal owners of the subject land. No costs. SO ORDERED.
MEYERS v. UNITED STATES No. 9797 United States Court of Appeals District of Columbia Circuit Argued June 14, 1948 Decided November 8, 1948 Writ of Certiorari Denied February 14, 1949 171 F.2d 800 (D.C. Cir. 1948) Appeal from the District Court of the United States for the District of Columbia (now United States District Court for the District of Columbia). Bennett E. Meyers was convicted of subornation of perjury, after motion to dismiss indictment for insufficiency, 75 F. Supp. 486, had been denied, and he appeals. Affirmed.

Mr. Robert T. Bushnell, of Boston, Mass., with whom Messrs. Russell Hardy and Smith W. Brookhart, both of Washington, D.C., were on the brief, for appellant. Mr. George Morris Fay, U.S. Atty., of Washington, D.C., with whom Mr. Edward Molenof, Sp. Asst. to the Atty. Gen., and Messrs. John W. Fihelly, Sidney S. Sachs and Ross O'Donoghue, Asst. U.S. Attys., all of Washington, D.C., were on the brief, for appellee. Before WILBUR K. MILLER, PRETTYMAN and PROCTOR, Circuit Judges. WILBUR K. MILLER, Circuit Judge. Bleriot H. Lamarre and the appellant, Bennett E. Meyers, were jointly indicted for violating the District of Columbia statute1 which denounces perjury and subornation thereof. Three counts of the indictment charged Lamarre with as many separate perjuries in his testimony before a subcommittee of a committee of the United States Senate constituted to investigate the national defense program, and three more counts accused Meyers of suborning the perjuries of his codefendant. Lamarre pleaded guilty to all three charges when he was arraigned on December 19, 1947, a few days after the return of the indictment. Meyers entered a plea of not guilty and was tried before a jury in the District Court of the United States for the District of Columbia. At the conclusion of the government's evidence, he moved for a judgment of acquittal, which the court denied. Meyers did not take the stand or introduce any evidence. Having been found guilty under each of the three counts against him, he appeals. Meyers was an officer in the United States Army. In 1939, while stationed at Wright Field, near Dayton, Ohio, he organized under the laws of Ohio a corporation called Aviation Electric Corporation, and paid into its treasury the sum of $500 to cover its authorized capital consisting of 250 shares of common stock having a par value of $2 each. At his direction, a certificate for 224 shares was issued to Miss June Ballaou, an employee at Wright Field, and the remaining shares were divided between one David Johnson and one Robert L. Pine. The newly organized company engaged in manufacturing parts and accessories for airplanes, and soon had on hand orders from the Signal Corps of the United States Army aggregating about $20,000. The appellant had become acquainted with Lamarre and his wife as early as 1936 or 1937 and apparently was fond of them. Late in 1939, he went to see Lamarre in California, where the latter was employed by an airplane company, and suggested that he come to Dayton to become associated with Aviation Electric in an executive capacity. The invitation was accepted and in January, 1940, Lamarre was made secretary-treasurer of the corporation and the Ballaou certificate for 224 shares was transferred to him without valuable consideration. A few months thereafter he became president of the company. From its modest beginning in 1939 the operations of Aviation Electric Corporation expanded substantially and rapidly. It obtained contracts to furnish parts to large corporations engaged in producing aircraft for the United States Army. Meyers advanced considerable sums for working capital and took therefor the company's promissory notes which were secured by the pledge and delivery to him of certificates, endorsed in blank, evidencing all its capital stock. The appellant was transferred to Washington in 1941 and the next year became Deputy Chief of Procurement of Aircraft and Aircraft Parts for the Army Air Force. Meanwhile, Aviation Electric was operating successfully and profitably so that by the end of 1942 all

Meyers' loans had been repaid. Large profits were earned as long as the war continued, but the termination of actual hostilities so reduced the demand for its products that the corporation was dissolved in September, 1946. Desiring to ascertain whether there had been instances of waste, fraud, corruption, mismanagement, excessive profits or inefficiency in the nation's war effort, entailing as it did the hurried expenditure of billions of dollars for national defense, the United States Senate created the investigating committee to which reference has been made. In the course of an inquiry into government contracts with a large airplane supplier, the appellant testified before that committee. It developed during the hearing that Aviation Electric Corporation had been a sub-contractor on government work and that Lamarre had been its president from 1940 until its dissolution in 1946. In order to ascertain what connection, if any, the appellant had had with Aviation Electric, the subcommittee subpoenaed Lamarre, who testified on Saturday, October 4, and Monday, October 6, in 1947. That testimony brought about the indictment which was the genesis of the case now before us. Three of the indictment's counts charged that Lamarre: (1) knowingly and willfully testified falsely that Meyers "was not financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio," during the years 1940 to 1947, inclusive; (2) knowingly and willfully testified falsely that a Cadillac automobile purchased in Washington by Meyers, and paid for by Aviation Electric Corporation, was purchased for the corporation and for its use; (3) knowingly and willfully testified falsely that the sum of $10,000, paid by means of Aviation Electric's checks, for decorating and furnishing Meyers' Washington apartment "was a gift from himself, Bleriot H. Lamarre." Although the appellant was convicted on three counts, each of which charged him with suborning one of Lamarre's perjuries, he received only one sentence.2 That being true, the judgment must be affirmed if appellant was properly convicted on any one of the three counts against him.3 We shall consider, nevertheless, appellant's assignments of error with respect to all the counts. 1. As to Meyers' financial interest in or connection with Aviation Electric Corporation. On this subject, the first count of the indictment includes the following: "* * * In the course of his [Lamarre's] testimony it became material whether Bennett E. Meyers was financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio, during the years 1940, 1941, 1942, 1943, 1944, 1945, 1946, or 1947; and being questioned in that regard, Bleriot H. Lamarre on October 4 and October 6, 1947, and in the District of Columbia wilfully and contrary to his said oath testified falsely that Bennett E. Meyers was not financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio, during those years or any of them, whereas in truth, as Bleriot H. Lamarre knew, Bennet E. Meyers was financially interested in and connected with the said Aviation Electric Corporation during each and all the years 1940, 1941, 1942, 1943, 1944, 1945, 1946 and 1947." Appellant's counsel earnestly assert and ably argue that Lamarre did not testify before the subcommittee that Meyers was not financially interested in or connected with Aviation Electric; but that, quite to the contrary, Lamarre told the subcommittee Meyers actually owned the business. If that contention be well founded, it is a complete defense to the charge that Meyers suborned the perjury alleged in the first count. It is elementary that one cannot be convicted of suborning a perjury which was not in fact committed; that is to say,

there can be no subornation of perjury if there was no perjury. It is equally true that one cannot be convicted of suborning perjury if the alleged perjurious statement actually was not made by the alleged perjuror. No matter how unorthodox, unpatriotic, reprehensible or criminal the evidence may tend to show Meyers' conduct to have been, his conviction under the first count cannot stand if Lamarre did not in fact testify as the count charged that he did. So, at the threshold of our consideration of the first count, we must decide whether Lamarre in fact told the subcommittee Meyers was not financially interested in or connected with Aviation Electric. If it be found that he did so testify, then it will be pertinent to see whether the statement was true or false; and, if false, whether Meyers suborned it. Whether Lamarre represented to the subcommittee that Meyers was not financially interested in or connected with the company is to be determined by finding the meaning or significance which is fairly attributable to all Lamarre's testimony before the subcommittee. A stenographically reported record of that testimony was put in evidence and is before us. Appellant's insistence that Lamarre did not say what the first count charged him with saying, but said exactly the opposite, is based on the fact that Lamarre was asked this question, "So you understood all of the time that for all practical purposes, he [Meyers] owned the business?"; and that Lamarre answered by saying, "That is right," and then continued with other statements to that effect. This bit of testimony, taken from its context and read without reference to or consideration of the remainder of Lamarre's evidence, supports appellant's contention that, regardless of the truth or falsity of the statement which the first count attributed to Lamarre, he simply did not say what he is alleged to have said, but definitely stated exactly the contrary. So, if Lamarre's answer to the quoted question were all he said on the subject, we should have no difficulty in accepting appellant's argument, and in holding that Lamarre did not commit the first perjury charged against him and that, therefore, Meyers was wrongly convicted of suborning it. We turn first to the subcommittee counsel's examination of Lamarre, in the course of which he made the statement upon which appellant now relies as a defense to the first count, in order to see whether the context4 of the statement limits the absolute meaning which it appears to have when standing alone. The setting in which the statement appears shows that in making it Lamarre was referring to the occasion in 1940 when a large part of the stock had just been transferred to him and endorsed back to Meyers to serve as collateral. It is, however, perfectly clear from the evidence as a whole that Lamarre did not intend to be understood as meaning that from 1940 until 1947 Meyers was for all practical purposes the owner of the business. For example, when Lamarre was asked, "It [the stock] belonged to Meyers all the time?", he answered, "No, sir, it did not." He was then asked, "Well, then, when did it become yours, actually yours?" and he replied, "When the notes were paid off." He added, "It had always been mine as a matter of fact." Even if this were not so, and if it be conceded arguendo that Lamarre unqualifiedly stated with respect to the entire period involved that Meyers had no financial interest in or connection with the corporation, it would remain true that he also later testified to the subcommittee that Meyers had no interest at any time after Lamarre's association with the company began except as a creditor, and that he ceased to have even that interest after 1942.5 The criminal nature of perjury is not removed, the Supreme Court has said, by the fact that the perjurer later in the proceeding states the truth; that is to say, recantation

following perjury does not destroy its criminality. United States v. Norris, 1937, 300 U.S. 564, 573, 57 S.Ct. 535, 81 L.Ed. 808. We see no reason why the principle should not apply with even greater force when perjury follows truthful testimony and so is the last and unrecanted choice of its author. In the present case, even if the true statement (that Meyers was for all intents and purposes the owner of the business) be given the full implication and effect which appellant finds in it, and so be regarded as applying to all the years involved, it was followed by falsehood when Lamarre emphatically and repeatedly swore Meyers had no sort of interest in the company after 1942. His last choice was perjury. From the quotations shown in the margin as note 3, it will be observed that, just before making the statement which appellant says absolves him, Lamarre stated, "I would not say" it was Meyers' stock. And shortly after having made the statement upon which appellant relies, Lamarre insisted that the endorsed certificates were held for Meyers only so long as the company owed him money, that he considered the stock as income to himself, that it did not belong to Meyers all the time but actually became his [Lamarre's] when the notes were paid.6 Although he had given no consideration to Meyers or to any other person for the shares transferred to him at Meyers' instance, he told the senators, "It had always been mine as a matter of fact" and that he felt under no obligation to pay Meyers for it. A reading of all Lamarre's testimony on the subject shows convincingly and beyond any doubt that he was trying to get the subcommittee to believe Meyers had no actual or beneficial stock ownership in the company, and that he bore to it merely the relation of creditor, a relation which ended in 1942. This is true despite the fact that he said he understood Meyers owned the company for all practical purposes. That statement may not be isolated and thereby given a meaning wholly different from the clear significance of the testimony considered as a whole. Appellant himself states the law to be that a charge of perjury "may not be sustained by the device of lifting a statement of the accused out of its immediate context and thus giving it a meaning wholly different than that which its context clearly shows." He cites Fotie v. United States, 8 Cir., 137 F.2d 831, and other cases to the same effect. The principle is sound, but has no application here. It is the appellant who seeks to sustain his defense "by the device of lifting a statement of the accused out of its immediate context and thus giving it a meaning wholly different than that which its context clearly shows." Since a charge of perjury may not be sustained in that manner, it follows corollarially that a defense to a charge of perjury may not be established in that fashion. From the evidence as a whole we have no difficulty in concluding that Lamarre told, and intended to tell, the subcommittee that Meyers held no stock in the company, either actually or beneficially, after the shares were issued to Lamarre in 1940; that Meyers had no interest of any kind after that except he was a creditor and held the capital stock as collateral; and that after 1942 Meyers had no sort of interest in or connection with the company. Having so determined, it is next necessary to ascertain whether that statement was false and known to be false to Lamarre when he testified, so as to stamp it as perjury. Not only did Lamarre plead guilty to the charge of perjury made against him because of his representation to the subcommittee that Meyers was not interested in or connected with the corporation; he also testified fully and freely at Meyers' trial that he had knowingly and willfully falsified in that respect before the subcommittee, and that in fact Meyers was at all times the real owner of the company. Lamarre testified further at the trial that, during the years involved, his own salary as secretary and treasurer, and later as president, was fixed at sums varying from $20,000 to $30,000 per annum and that it was so shown on the books of the corporation. Company checks were regularly drawn to Lamarre's order in payment of his ostensible salary but in

fact he was allowed to keep as his own only a modest compensation. By far the larger part of the salary credited to Lamarre on the books of the corporation was remitted by him to Meyers, usually in the form of cashiers' checks. A similar arrangement was followed with respect to the salary of T.E. Readnower, Lamarre's brother-in-law, whose apparent salary was $18,600, of which some $15,000 went to Meyers. By this device and other subterfuges, such as the purchase of an automobile and the furnishing of an apartment, Meyers received more than $150,000 from the company during the years involved, in addition to the repayment to him of the sums which he advanced from time to time for working capital. The checks by which Aviation Electric paid the purported salaries, and the cashiers' checks by which the money was transmitted to Meyers, were in evidence and in our view constitute sufficient corroboration of Lamarre's testimony that he testified falsely before the subcommittee. Meyers' subornation of this perjury was proved by the evidence of Lamarre that on the day before his first appearance before the subcommittee the appellant instructed him to swear "Meyers had no financial interest or any other interest other than the money that he had loaned to the corporation and which had been repaid to him by the middle of 1942." It thus appears that, contrary to appellant's contention, the evidence showed Lamarre actually made the statements and representations to the subcommittee which the first count charged; that his testimony was false and was given knowingly and willfully; and that Meyers suborned the perjury. 2. As to the count which charged Lamarre with perjury concerning the purchase of the Cadillac automobile. As to this count7 the indictment charged the following: "* * * In the course of his [Lamarre's] testimony on these dates it became material whether a Cadillac automobile which he testified Bennett E. Meyers had purchased with funds of the Aviation Electric Corporation of Dayton and Vandalia, Ohio, on or about January 1, 1942, had been purchased for the personal use of Bennett E. Meyers or for the use of the said Corporation. The fact was, as Bleriot H. Lamarre then knew, that that automobile had been purchased for the personal use of Bennett E. Meyers. Bleriot H. Lamarre nevertheless wilfully and contrary to his said oath testified falsely before the subcommittee on the dates and at the place aforesaid that that Cadillac automobile had been purchased for the Aviation Electric Corporation and for the use of the Aviation Electric Corporation." With respect to this charge the appellant makes in his brief the following categorical comment: "The transcript disclosed that Lamarre had given no testimony whatsoever that the car had, or had not, 'been purchased for the personal use of Bennett E. Meyers or for the use of the said Corporation.' There is not a word in this transcript of any testimony by Lamarre, false or true, that the car referred to had been purchased for the personal use of appellant or for the use of the Corporation." A factual issue is thus raised which is to be resolved by resorting to the record. Lamarre swore to the subcommittee that at the end of 1941 he asked General Meyers to buy an automobile for him and that Meyers did buy in Washington the Cadillac sedan; that it remained in Washington for several weeks because when he came for it the weather was bad and he was forced to return to Dayton on a train. He also testified substantially as follows: he left the car with Meyers until he later was able to transport it to Dayton, where it was used as the company car8 by him and Curnutt, Meyers' father-in-law, who also was an Aviation Electric employee. Aviation Electric paid for the automobile and carried it on its books as an asset until 1944 or 1945, when Curnutt bought it from the company at its then book value of $1,400. The sale was made because the company had no further use for the

car. It is, therefore, plain that Lamarre told the subcommittee substantially what the second count of the indictment charged. At the trial Lamarre testified that his statements to the subcommittee were false and that in truth Meyers telephoned him from Washington and instructed him to send a company check for approximately $3,000 as he wanted to purchase a Cadillac; that the check was sent and the automobile was purchased but that the company never had possession of it. There was ample corroboration of Lamarre's testimony that the automobile was bought for and used by Meyers. The manager of the garage at Hotel 2400, where Meyers' apartment was located, testified that early in 1942 the appellant stored in the hotel garage a new 1942 blue Cadillac which he kept there until he left on August 27, 1944. The car was kept as "live storage," meaning that it was cleaned nightly and used almost daily by Meyers or his wife. The storage was charged to Meyers and the garage manager never saw anyone drive the car other than Meyers and his wife. Calvin Mettee, who was a corporal in the army, testified he was assigned to the appellant as a chauffeur in the spring of 1942. He told of the new blue 1942 Cadillac being in the hotel garage and that it was his duty to see that the car was clean, brushed out and ready to go at all times. During the year 1942 it was never out of the garage for longer than a week. It bore District of Columbia license tags during 1942, 1943 and 1944. When Meyers married again in 1943, the witness was instructed to explain to Mrs. Meyers how to drive the blue Cadillac. Mrs. Meyers personally used the car in 1943 and at times the witness would drive her on shopping tours or to social functions. It was stored in the hotel garage thoughout the year 1943 and until the summer of 1944 when Meyers was transferred to Wright Field. Mettee was transferred there also. At Meyers' direction he flew in an army airplane from Dayton to Washington in order to drive the blue Cadillac to Dayton where he delivered it to Meyers' quarters. At appellant's order, he arranged for the transfer of the title of the automobile from Curnutt to Meyers or his wife. The car was constantly in appellant's possession while at Wright Field. When Meyers retired from active service in 1945, he directed Mettee to drive the 1942 Cadillac from Dayton to his residence at Bayville, Long Island, which was done. In the latter part of October, 1947, after Mettee had been released from the army, he went from his home in Rochester, Pennsylvania, to Huntington, New York, to see Meyers, at the latter's request. At Meyers' suggestion he registered at the hotel under an assumed name. Meyers told him that he was being investigated and that Lamarre was trying to blackmail him. He asked Mettee to testify, if he were questioned, that he had obtained from Lamarre authority to drive the blue Cadillac on the occasions when he did drive it, and to say that during the winter of 1942 and 1943 Lamarre drove the car from Dayton to Washington but due to heavy weather he could not return and was forced to leave the car in Washington, and that the witness did not know how the car was taken to Dayton. Meyers told him that if his testimony concerning the automobile turned out to be of any value he would give him $2,000. Proof of subornation was furnished when, with respect to a conversation between Meyers and Lamarre in a hotel lobby on October 3, 1947, Lamarre was asked, "Was there any discussion about a Cadillac automobile?", to which he answered: "I was to say that the Cadillac automobile was purchased for the company by Meyers on my instructions and that I had gone to Washington a few weeks after the car was delivered and I had driven it back to Dayton, and that on several occasions I had driven the car to Washington, but because of bad weather I had gone back on the train and it remained here in Washington for some time

and then later on when I came in again I would pick the car up and drive it home." He was then asked, "Was that the truth?", to which he replied, "No, it was not." Our conclusion is that the second count was sustained. Lamarre testified to the subcommittee in the manner charged; his testimony was admitted by him, and otherwise proved, to be false; and evidence was introduced that Meyers suborned the perjury. 3. As to furnishing and decorating the apartment. On this subject the pertinent portion of the indictment is as follows: "* * * In the course of his [Lamarre's] testimony on these dates it became material whether the cost of redecorating the apartment of Bennett E. Meyers at 2400 Sixteenth Street, N.W., Washington, D.C., in the year 1941, in the approximate amount of $10,000 had been paid for out of the funds of the Aviation Electric Corporation of Dayton and Vandalia, Ohio. Knowing the facts to be that it had, Bleriot H. Lamarre wilfully and contrary to his oath falsely testified before the subcommittee on the dates and at the place aforesaid that the aforesaid redecoration and cost of redecoration of the said apartment of Bennett E. Meyers was a gift from himself, Bleriot H. Lamarre." During his appearance before the subcommittee on the morning of Saturday, October 4, 1947, Lamarre said he had never made Meyers a present of a value of more than $100 and that all gifts from him and his wife, such as those made at Christmas, amounted to no more than $400. After lunching with Meyers and one of the latter's attorneys, he volunteered at the beginning of the afternoon session this statement: "There is one thing I would like to say before we proceed. That is, you laid a great deal of stress this morning on what you called gifts to General Meyers. I would like to amplify my statements on that, because at the time I did not consider it a gift, but it was after General Meyers had come to Washington, he had an apartment decorated, and I paid for the decoration of that apartment, and the furnishings."9 He said to the subcommittee that the cost of furnishing the apartment was paid by Aviation Electric checks, which was true; but he sought to transform the transaction from a company expenditure into a personal gift from him by belatedly charging it to his own salary account, after originally charging it to expense. It was indeed true, therefore, as he told the senators, that the checks, although drawn by the company, were charged against his personal salary. At the trial of Meyers, Lamarre admitted the expenditure was by the company and not by him. His confession was corroborated because the essential falsity of his testimony before the subcommittee is shown in this: although bookkeeping entries were made to charge $10,000 to his salary account, that account itself was false, and fraudulently set up. His actual and comparatively meagre salary could not cover the decorating cost. There was no real difference in result to the company between the device of setting up a fictitious salary and remitting most of it to Meyers in cashiers' checks, and the device of charging to a fictitious salary account company checks drawn for Meyers' personal benefit. The latter was simply another method of secretly channeling Aviation Electric's money to Meyers. The company's books and cancelled checks furnish corroboration of Lamarre's testimony that he had sworn falsely with respect to furnishing the apartment. Moreover, Miss Davis, the decorator, told the jury she dealt with Meyers only, although Lamarre told the subcommittee he informed her of his desire to present the appellant with the cost of the decoration. Miss Davis said Meyers told her "that he would give me checks on a little company that he owned or had an interest in I don't remember just the words, but they

satisfied me enough so that I was willing to take the check." She added that he gave her the name of the company as "the Aviation Electric Corporation of Dayton or Vandalia." Appellant asserts Lamarre's characterization of the payment as a gift was made under the prodding of the subcommittee; a partially true but wholly immaterial assertion.10 He originally and voluntarily described the transaction so that in law and in the fair meaning of language it amounted to a gift even though he disliked the word. Lamarre was reluctant to use the word "gift" only because he thought of a gift "as some item you give a man," and his position before the subcommittee was that the $10,000 was a payment of a moral obligation, a return due because of Meyers' favors to him. Moreover, as has been pointed out, Lamarre entered a plea of guilty with respect to this charge. As he had done with respect to the first two counts, Lamarre testified that he committed this perjury at Meyers' suggestion and solicitation. From what has been said, we find the third count to have been established. Lamarre gave before the subcommittee the testimony charged as perjury; its falsity was proved by him and by corroborative evidence; and there was proof that Meyers suborned it. In addition to his reasons for reversal which have been discussed and disposed of in the foregoing portion of this opinion, appellant argues his conviction should be set aside because the subcommittee before which Lamarre gave his perjured testimony was not lawfully constituted as such, and therefore was not "a competent tribunal" spoken of by the perjury statute. He discerns a variance between the indictment's allegation that the Senate committee "on April 19, 1947, created a subcommittee" and the proof from the committee chairman and counsel that a subcommittee was created in mid-April by the chairman, who announced to the full committee the names of the senators whom he had appointed as members of it. Appellant says the subcommitte was invalid because it was not created by a resolution of the full committee. The argument lacks substance because the evidence shows it is the unvarying practice of the Senate to follow the method of creating and appointing subcommittees which was employed in this instance. After consideration of all appellant's points with respect to the subcommittee sitting on October 4, we conclude that it was legally constituted. The argument that a quorum was not present on October 4, 1947, because only one of the three senators then present had been among the five originally appointed in April, obviously confuses the creation of the subcommittee with the appointment of its personnel. On October 6, 1947, however, only two senators were present at the hearing. Since they were a minority of the subcommittee, they could not legally function except to adjourn. For that reason, the testimony of Lamarre given on that day cannot be considered as perjury nor can appellant be convicted of suborning it. But practically all Lamarre's testimony was given on October 4, when a quorum was present. The proceedings of that day contain the perjurious statements described in all three counts, and his examination on October 6 was largely repetitious. A further ground for reversal is the court's alleged error in denying appellant's motion before trial to dismiss the indictment. It is asserted that the section of the District of Columbia Code, under which the indictment was laid, "has nothing whatever to do with any perjury or subornation of perjury committed in connection with an inquiry by a committee of the House of Representatives or Senate of the United States." In other words, appellant says only the federal perjury statute, 18 U.S.C.A. 231, 232 [1948 Criminal Code, 18 U.S.C.A. 1621, 1622], was applicable. To accept the argument would be to overrule our

decisions in O'Brien v. United States, 1938, 69 App.D.C. 135, 99 F.2d 368, and Behrle v. United States, 1938, 69 App. D.C. 304, 100 F.2d 714, which we are not prepared to do. Appellant's assignment of error concerning the court's conduct, his criticism of the court's charge to the jury, and his complaint concerning government counsel's argument to the jury, do not impress us as requiring discussion; but we deem it proper to refer, as briefly as possible, to the proposition advanced in the first division of the dissenting opinion which is filed herewith. At the opening of the dissent it is said, "The testimony given by Lamarre before the Senate Committee was presented to the jury upon the trial in so unfair and prejudicial a fashion as to constitute reversible error." The reference is to the fact the William P. Rogers, chief counsel to the senatorial committee, who had examined Lamarre before the subcommittee and consequently had heard all the testimony given by him before that body, was permitted to testify as to what Lamarre had sworn to the subcommittee. Later in the trial the government introduced in evidence a stenographic transcript of Lamarre's testimony at the senatorial hearing. In his brief here the appellant characterizes this as a "bizarre procedure" but does not assign as error the reception of Rogers' testimony. The dissenting opinion, however, asserts it was reversible error to allow Rogers to testify at all as to what Lamarre had said to the subcommittee, on the theory that the transcript itself was the best evidence of Lamarre's testimony before the subcommittee. That theory is, in our view, based upon a misconception of the best evidence rule. As applied generally in federal courts, the rule is limited to cases where the contents of a writing are to be proved.11 Here there was no attempt to prove the contents of a writing; the issue was what Lamarre had said, not what the transcript contained. The transcript made from shorthand notes of his testimony was, to be sure, evidence of what he had said, but it was not the only admissible evidence concerning it. Rogers' testimony was equally competent, and was admissible whether given before or after the transcript was received in evidence. Statements alleged to be perjurious may be proved by any person who heard them, as well as by a reporter who recorded them in shorthand. A somewhat similar situation was presented in Herzig v. Swift & Co., 146 F.2d 444, decided by the United States Court of Appeals for the Second Circuit in 1945. In that case the trial court had excluded oral testimony concerning the earnings of a partnership on the ground that the books of account were the best evidence. After pointing out the real nature and scope of the best evidence rule,12 the court said, 146 F.2d at "* * * Here there was no attempt to prove the contents of a writing; the issue was the earnings of a partnership, which for convenience were recorded in books of account after the relevant facts occurred. Generally, this differentiation has been adopted by the courts. On the precise question of admitting oral testimony to prove matters that are contained in books of account, the courts have divided, some holding the oral testimony admissible, others excluding it. The federal courts have generally adopted the rationale limiting the 'best evidence rule' to cases where the contents of the writing are to be proved. We hold, therefore, that the district judge erred in excluding the oral testimony as to the earnings of the partnership." A contention identical with that made in the dissenting opinion here was rejected by the United States Court of Appeals for the Second Circuit in 1912 in Brzezinski v. United States, 198 F. 65, 66. In that opinion the court said:

"The first fact for the government to prove was the giving of the testimony charged in the indictment. It called the stenographer who took the notes of the proceedings before the grand jury. He testified that he took down the questions and answers that were put to Brzezinski on that day; that he made a transcription in typewriting from the notes, made this transcription himself, did not dictate it. **** An assistant United States attorney who was present in the grand jury room also testified to the substance of what Brzezinski said on that occasion. It is contended that the court erred in admitting this testimony on the ground that it was 'not the best evidence.' This is a frivolous objection. Any one who has heard an oral statement made and remembers it may testify to what was said. * * *" The Court of Appeals for the Third Circuit held, in Re Ko-Ed Tavern, 1942, 129 F.2d 806, 810, the best evidence rule does not have the application which the dissent here seeks to give it: "As to Light's half ownership of the bankrupt corporation, William Kochansky, president of the company, testified at the hearing before the referee that he and Light each owned fifty per cent of the capital stock of the corporation but that no stock certificates had ever been issued to either of them. The appellant objected to this testimony on the ground that the books of the bankrupt corporation were the best evidence of the matter under inquiry and that the parol evidence offered was inadmissible because the nonproduction of the books had not been satisfactorily explained. It is quite apparent that the appellant misconceives the scope of the 'best evidence' rule. That rule is applicable when the purpose of proffered evidence is to establish the terms of a writing. See 4 Wigmore on Evidence, 3rd Ed., 1178. In this case there was no attempt to prove by parol either book entries or the terms of written instruments. * * *" To the same effect is Boitano v. United States, 1925, 7 F.2d 324, 325, in which the Ninth Circuit said: "* * * it was equally competent to prove that testimony [of the plaintiff in error] by a witness who was present at the trial and heard the testimony given, regardless of whether the testimony was reported or whether it was not. 22 C.J. 344." As we have pointed out, there was no issue as to the contents of the transcript, and the government was not attempting to prove what it contained; the issue was what Lamarre actually had said. Rogers was not asked what the transcript contained but what Lamarre's testimony had been. After remarking, "* * * there is a line of cases which holds that a stenographic transcript is not the best evidence of what was said. There is also a legal cliche that the best evidence rule applies only to documentary evidence", the dissenting opinion asserts that the rule is outmoded and that "the courts ought to establish a new and correct rule." We regard the principle set forth in the cases which we have cited as being, not a legal cliche, but an established and sound doctrine which we are not prepared to renounce.

With the best evidence rule shown to be inapplicable, it is clearly seen that it was neither "preposterously unfair", as the appellant asserts, nor unfair at all, to permit the transcript of Lamarre's evidence to be introduced after Rogers had testified. Since both methods of proving the perjury were permissible, the prosecution could present its proof in any order it chose. There is no substance in the criticism, voiced by the appellant and in the dissent, of the fact that Rogers testified early in the unduly protracted trial and the transcript was introduced near its close. Appellant's counsel had a copy of the transcript from the second day of the trial, and had full opportunity to study it and to cross-examine Rogers in the light of that study. The mistaken notion that, had the transcript been first put in evidence, Rogers' testimony would have been incompetent is, of course, based on the erroneous idea that the best evidence rule had application. It is quite clear that Meyers was in no way prejudiced by the order in which the evidence against him was introduced, nor does it appear that his position before the jury would have been more favorable had the transcript been offered on an earlier day of the trial. The matters discussed in the second division of the dissenting opinion have been covered adequately, we think, in the earlier portion of this opinion. Since we perceive no prejudicial error in appellant's trial, the judgment entered pursuant to the jury's verdict will not be disturbed. Affirmed. PRETTYMAN, Circuit judge (dissenting). I am of strong opinion that the judgment in this case should be reversed. I think so for two reasons. I. The testimony given by Lamarre before the Senate Committee was presented to the jury upon the trial in so unfair and prejudicial a fashion as to constitute reversible error. Lamarre testified before the Committee in executive session, only Senators, Mr. William P. Rogers, who was counsel to the Committee, the clerk, the reporter, and the witness being present. An official stenographic record was made of the proceedings. The testimony continued for two days, and the transcript is 315 typewritten pages. When Meyers was indicted, he moved for a copy of the transcript. The United States Attorney opposed, on the ground that the executive proceedings of a Senate Committee are confidential. The court denied Meyers' motion. When the trial began, the principal witness called by the Government was Mr. Rogers. He was asked by the United States Attorney, "Now, will you tell the Court and the jury in substance what the testimony was that the defendant Lamarre gave before the Committee concerning the Cadillac automobile?" Two counts of the indictment related to this automobile. The court at once called counsel to the bench and said to the prosecutor: "Of course, technically, you have the right to proceed the way you are doing. * * * I do not think that is hearsay under the hearsay rule, but it seems to me * * * that, after all, when you have a prosecution based on perjury, and you have a transcript of particular testimony on which

the indictment is based, that you ought to lay a foundation for it or ought to put the transcript in evidence, instead of proving what the testimony was by someone who happens to be present, who has to depend on his memory as to what was said." Counsel for the defense, objecting, insisted that the procedure was "preposterously unfair". The trial judge said that it seemed to him that the transcript ought to be made available to defense counsel. That was then done, but the prosecutor insisted upon proceeding as he had planned with the witness. Mr. Rogers then testified: "I will try to give the substance of the testimony. * * * I am sure your Honor appreciates that I do not remember exactly the substance of the testimony. The substance of testimony was this, * * *." And then he gave "in substance" the testimony in respect to the Cadillac car. The same process was followed in respect to the matters covered by the other counts of the indictment, i.e., the redecoration of Meyers' apartment and Meyers' interest in the Aviation Electric Corporation. Defense counsel reserved part of his cross-examination until he could read the transcript. The notable characteristics of this testimony of Rogers are important. In each instance, the "substance" was a short summation, about half a printed page in length. The witness did not purport to be absolute in his reproduction but merely recited his unrefreshed recollection, and his recollection on each of the three matters bears a striking resemblance to the succinct summations of the indictment. It is obvious that what the witness gave as "substance" was an essence of his own distillation and not an attempt to reproduce the whole of Lamarre's testimony. There are differences between Rogers' recollection and the transcript which are vital in the case. The foregoing was on Wednesday, February 25th, the second day of the trial. On Tuesday, March 9th, which was two weeks later and the eleventh day of the trial, the Government, as it was about to close its case, offered the whole transcript of Lamarre's testimony in evidence as an exhibit, and it was received without objection. The prosecutor and one of his assistants then read to the jury such portions of the transcript as they deemed material. Defense counsel then read the portions which they deemed material. Upon the reserved cross-examination of Rogers, the following occurred: "Q. Is it not a fact that nowhere in his testimony did the defendant Lamarre on October 4th or 6th, 1947, testify that Bennett E. Meyers was not financially interested in or connected with the Aviation Electric Corporation? A. I don't think he ever used those words. "Q. Is it not a fact that all of his testimony, taken as a whole, negatives such an interpretation? "Mr. Fay: I think that is purely a question of law. "The Court: Objection sustained, I do not think that is proper cross-examination." Defense counsel inquired of Rogers if it were not a fact that "the substance of Lamarre's testimony with reference to the Cadillac car" was so-and-so. The court interrupted and said that counsel was asking the witness "to construe" Lamarre's testimony and that since the jury had heard the testimony read it would have to determine what its meaning was. Counsel for the defense agreed with that proposition and moved to strike all of Rogers'

direct testimony as to what Lamarre's testimony had been. The court denied the motion, saying that Rogers had not, on direct, been "interpreting" Lamarre but had stated "the substance", which the court said "is an entirely different thing". Rogers then answered as to his "recollection", commenting, "I stated at the outset it is just my recollection." He repeated that comment in effect several times. Finally counsel asked a specific question as to Lamarre's use of the word "gift" (which we note was the key word in Count Five), and the prosecutor objected on the ground that "the record [i.e., the transcript] speaks for itself". The court sustained the objection. A similar question was then asked, objected to, and the objection sustained. Thereupon counsel dropped that line of examination. To my mind, the foregoing procedure was, as defense counsel characterized it, "preposterously unfair". It lacked the minimum elements of fair play essential to our concept of a fair trial. I reach my conclusion upon both practical and theoretical considerations. The problem has both aspects. The practical elements are these: The transcript showed exactly what Lamarre told the Committee, word for word. But the words and expressions charged to him by the indictment do not appear in the transcript. Whether he testified as alleged, whether he said what is alleged to be the truth, or whether he said what is alleged to be false, were matters of inference, or conclusion, or summation, or "substance", to be gathered from his answers to many questions. Mr. Rogers was the counsel who interrogated Lamarre before the Committee. The Committee was the actual complainant in the perjury charge. Rogers was its representative. Thus, the sum of the practical aspect of the matter is that the prosecutor put to the jury at the opening of his case, out of the mouth of the complainant, under oath and on the stand, the complainant's interpretation of the alleged perjured testimony, translating it into approximately what the indictment attributed to the alleged perjurer. I need not elaborate the tremendous advantage thus gained by the Government, an advantage later magnified by what occurred on attempted cross-examination. The difference between the presentation of elemental facts and the piecing of them together so as to reach a conclusion is basic.1 One is evidence and the other argument. The principle runs through much of the law of evidence. I doubt that anyone would say that the prosecutor could first have put into evidence the transcript of Lamarre's testimony and thereafter have produced Rogers to give to the jury from the witness box his own summation of it. He would have been met with a ruling that "the transcript speaks for itself". Indeed, exactly that developed. The prosecutor first produced the oral summation, and it was admitted. Then he produced the transcript. Then, when defense counsel attempted to cross-examine as to "the substance", he was blocked because of the presence of the transcript. Can a prosecutor do by so simple and obvious a maneuver that which the law otherwise forbids as unfair? Can he thus transform into sworn evidence from the box that which is otherwise only argument from the rail? I do not think so. In the presence of the unimpeached transcript, even though it was temporarily on counsel table and not yet in the clerk's hands, summation and interpretation was argument and not evidence. Nor was the prejudice cured by the availability of the transcript to defense counsel for crossexamination. If that were so in this case, the same doctrine would admit in evidence any opinion, or description, or summation of elemental facts otherwise provable in precise accuracy. The impression given by a succinct summation by a live witness on the stand cannot be corrected or offset by the later reading of a long, cold record. It is my view that

for this exceedingly practical reason the reception of Rogers' summation in evidence was not permissible. From the theoretical viewpoint, I realize that there is a line of authority that (absent or incompetent the original witness) a bystander who hears testimony or other conversation may testify as to what was said, even though there be a stenographic report.2 And there is a line of cases which holds that a stenographic transcript is not the best evidence of what was said.3 There is also a legal cliche that the best evidence rule applies only to documentary evidence.4 The trial judge in this case was confronted with that authority, and a trial court is probably not the place to inaugurate a new line of authority. But I do not know why an appellate court should perpetuate a rule clearly outmoded by scientific development. I know that courts are reluctant to do so.5 I recognize the view that such matters should be left to Congress. But rules of evidence were originally judge-made and are an essential part of the judicial function. I know of no reason why the judicial branch of Government should abdicate to the legislative branch so important a part of its responsibility. I am of opinion, and quite ready to hold, that the rules of evidence reflected by the cases to which I have just referred are outmoded and at variance with known fact, and that the courts ought to establish a new and correct rule. The rationale of the so-called "best evidence rule" requires that a party having available evidence which is relatively certain may not submit evidence which is far less certain. The law is concerned with the true fact, and with that alone; its procedures are directed to that objective, and to that alone. It should permit no procedure the sole use of which is to obscure and confuse that which is otherwise plain and certain. We need not venture into full discussion of all the principles involved.6 As between two observers of an event, the law will not accept the evidence of one and exclude that of the other, because the law cannot say which is more accurate. But as between a document itself and a description of it, the law accepts the former and excludes the latter, because the former is certain and the latter is subject to many frailties. So as between the recollection of the parties to a contract evidenced by a writing and the writing itself, the law rejects the former and accepts the latter. To be sure, the writing may be attacked for forgery, alteration or some such circumstance. But absent such impeachment, the writing is immutable evidence from the date of the event, whereas human recollection is subject to many infirmities and human recitation is subject to the vices of prejudice and interest. Presented with that choice, the law accepts the certain and rejects the uncertain. The repeated statement in cases and elsewhere that the best evidence rule applies only to documents is a description of practice and not a pronouncement of principle. The principle is that as between human recollections the law makes no conclusive choice; it makes a conclusive choice only as between evidence which is certain and that which is uncertain. It may be remarked at this point that the transcript in the case at bar is a document, not challenged for inaccuracy or alteration. It possesses every characteristic which the most literal devotee of established rules of evidence could ascribe to written evidence of a contract as justification for preference of such writing over the recollection of the parties. In my view, the court iterates an error when it says that the best evidence rule is limited to cases where the contents of a writing are to be proved. The purpose of offering in evidence a "written contract" is not to prove the contents of the writing. The writing is not the contract; it is merely evidence of the contract. The contract itself is the agreement between the parties. Statutes such as the statute of frauds do not provide that a contract be in writing; they provide that the contract be evidenced by a writing, or that a written

memorandum of it be made. The writing is offered as evidence of an agreement, not for the purpose of proving its own contents. A deed to real estate is different, being actually the instrument of conveyance, although there is authority that it too is merely evidence of the agreement between the parties. The doctrine that stenographic notes are not the best evidence of testimony was established when stenography was not an accurate science. The basis for the decisions is succinctly stated in the 1892 case quoted as leading by Professor Wigmore: "Stenographers are no more infallible than any other human beings, and while as a rule they may be accurate, intelligent, and honest, they are not always so; and therefore it will not do to lay down as a rule that the stenographer's notes when translated by him are the best evidence of what a witness has said, in such a sense as to exclude the testimony of an intelligent bystander who has heard and paid particular attention to the testimony of the witness."7 But we have before us no such situation. Stenographic reporting has become highly developed, and official stenographic reports are relied upon in many of the most important affairs of life. Even as early as 1909, a court referred to "Experience having demonstrated the impartiality and almost absolute accuracy of the notes of court stenographers" as the reason for legislation making admissible as evidence a court stenographer's report.8 In the present instance, at least, no one has disputed the correctness of the transcript. From the theoretical point of view, the case poses this question: Given both (1) an accurate stenographic transcription of a witness' testimony during a two-day hearing and (2) the recollection of one of the complainants as to the substance of that testimony, is the latter admissible as evidence in a trial of the witness for perjury? I think not. To say that it is, is to apply a meaningless formula and ignore crystal-clear actualities. The transcript is, as a matter of simple, indisputable fact, the best evidence. The principle and not the rote of the law ought to be applied. I do not suggest that a stenographer's report is unimpeachable; that question is not here. I find some support for my view in the authorities. As early as 1878 the Supreme Court, in ruling upon the problem, seemed to qualify the traditional view. It said that " Where a stenographer has not been employed, it can rarely happen that anyone can testify to more than the substance of what was testified * * *." (Italics supplied.)9 And Volume 2, Section 693, of Wharton's Criminal Evidence, after discussing the cases, has this to say: "However, since it is a primary rule of evidence that the best evidence must be produced, it would seem that since practically all testimony is now taken by stenographers, a transcript of the stenographer's notes would be the best evidence, and that oral evidence would not be admissible when such transcript could be obtained." And there is authority to the effect that even where a witness is permitted to give the substance of prior testimony of another, he must reproduce as accurately as he can the whole of that testimony and cannot give merely his own summation.10 II. The proof did not establish that Lamarre told the Senate Committee what the indictment, in the first count, says he did, and it established that he told the Committee what the third and fifth counts say is the truth. What Lamarre told the Committee was, of course, the first factual question in the prosecution, and thus in the defense, of Meyers. The indictment charged that Lamarre made three specific false statements to the Senate Committee.

I take it as elementary that an indictment must allege the commission of an act and not mere rascality; that the offensive act must be alleged with precision, clarity and certainty; that upon the trial the Government must prove the commission of the act alleged, and that no other misdeed, however proved, will support conviction; and that an accused need defend against no proof except that of the act alleged. The issue now before us cannot be resolved correctly, or indeed even understood, unless we first note with attentive care exactly what this indictment says Lamarre told the Senate Committee. The first count of the indictment charged that Lamarre testified falsely that "Meyers was not financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio, during those years [i.e., 1940, 1941, 1942, 1943, 1944, 1945, 1946 or 1947] or any of them". That is a very specific, precise charge. Also it is quite clear and easily understood. It relates to financial interest or connection of any sort on the part of Meyers in or with the corporation. It relates to any one of the years 1940-47. Conviction required the Government to prove the allegation as made. Conversely, Meyers was called upon to defend against the allegation made, and none other. First, we note that Lamarre never made the direct assertion in the language the indictment recites. No one claims that he did. As we have already noted, Mr. Rogers testified, "I don't think he ever used those words." And when asked, in reference to finances, "So that Lamarre did not say, in summary, as you understood it, that Meyers had no connection with the company?" Mr. Rogers replied, "I never said he said that." Second, we note that Lamarre repeatedly testified to the precise contrary of what the indictment charged he said. Financial interest in or connection with a corporation is of two principal sorts, owner and creditor. Lamarre testified that Meyers had both. He told the Committee that Meyers put up all the money for the stock upon the incorporation. He identified the original book entry which showed Meyers as the sole original stockholder. He said that the named incorporators were "dummies". He said that when the stock was transferred on the records to him (Lamarre), he endorsed it in blank and left it at the company office where Meyers had access to it. He also testified that Meyers put up any money which the corporation needed and that Meyers was the sole creditor of the corporation. He even testified flatly, as follows: Q. "That [the stock transfer to Lamarre] was just a bookkeeping transaction, and you held the stock and then you endorsed them over to Meyers and he took the certificates, is that correct? "Mr. Lamarre: Yes. "[Q.] So you understood all of the time that for all practical purposes he owned the business, did you not? "Mr. Lamarre: That is right. "[Q.] He put all of the money in and he owned all of the stock? "Mr. Lamarre: That is right."

And again the record shows: Q. "In other words, without any payment on your part, and he [Meyers] made the arrangement that you were to endorse them in blank and he would take possession of them, is that correct? "Mr. Lamarre: Yes." And again Lamarre testified: "Of course, as I said, the company actually had no money; it was borrowed from General Meyers." He testified that at the end of 1941 the corporation owed Meyers $30,000, and he identified a list which showed that Meyers advanced $58,310 to the corporation, of which amount $20,000 was advanced in 1942. The very first questions by defense counsel upon the cross-examination of the witness Rogers at the trial developed the nub of the matter: "Q. Mr. Rogers, did I understand you to say that Lamarre testified that he or General Meyers, for all practical purposes, owned the stock, owned the company: Aviation Electric? A. Well, he said both ways. He said he was the owner of the stock "Q. Yes? A. but he said, when we pressed him with questions, in view of the fact that Meyers had put up all the money and had given the stock in the company, for all practical purposes Meyers was the owner. "Q. So that actually, as the testimony was left, he didn't deny that Meyers was, in that sense at least, interested in the company? A. No. "Q. And in that sense at least financially interested in the company? A. That is right. "Q. And he did not deny or state falsely in that sense that Meyers was connected with the company? A. No." It is impractical to quote in this opinion the whole of the testimony upon the point. But to my mind the record of what Lamarre told the Senate Committee conclusively shows that he made perfectly clear to the Committee, by repeated and unequivocal statements, that Meyers was the originator and first sole stockholder of the corporation; that when the stock was transferred on the record to him (Lamarre), he was merely a record holder, having paid nothing for the stock and having endorsed the certificate in blank and left it physically available to Meyers; that Meyers was the sole financial backer of the company, and that during the years 1940-42 Meyers was a creditor of the corporation in large amounts, his loans evidenced by notes and secured by pledge of all the stock. Throughout his testimony there was no intimation that the corporation had any financial support of any sort except that of Meyers. Lamarre made many statements and representations which the record may indicate were false and which he later repudiated. But he did not, as best I can read the record, even suggest that Meyers had no financial interest in or connection with the

corporation in any of the years 1940-47. And that is what the indictment says he told the Committee, and that is what the Government had to prove in order to sustain conviction. I do not agree with the court that appellant's contention in this connection is based upon one question and answer. As I understand it, the contention is based upon the whole of Lamarre's testimony before the Committee, upon many questions and answers. Certainly my conclusion is. Neither do I agree with the court's view that if Meyers' interest in the corporation during any of the years named be established, the conviction must be sustained. Lamarre is alleged by the indictment to have told the Committee that Meyers had no interest in the corporation during the years 1940, 1941, 1942, 1943, 1944, 1945, 1946, 1947, or any of them. The Government had to prove that Lamarre made that statement. If Lamarre told the Committee that Meyers had an interest during three of the eight years named, he did not say what the indictment says he said. Upon such proof, conviction under the indictment as drawn could not stand. We cannot rewrite the indictment so as to allege that Lamarre said something else. It is perfectly true that if Lamarre made the statement ascribed to him by the indictment, and if it were proved that Meyers had an interest in any one of those years, Lamarre's perjury would be established. Therein lies the confusion. It seems to me that the court is thinking about the proof necessary to establish the falsity of the statement recited in the indictment, whereas the question under consideration at this point is the proof necessary to establish that Lamarre made the alleged statement. This particular question is not "Was the alleged statement false?" The question is "Did Lamarre make the alleged statement?" It seems plain to me that if, as the court finds, Lamarre asserted and never denied Meyers' interest in some of the years 1940-47, he did not state that Meyers had no interest in any of those years. The Government has simply failed to prove one of the essentials of its case under the indictment as drawn. In the third place, in respect to this count, everybody agrees that Lamarre made it clear to the Committee that Meyers was a creditor of the corporation in large amounts during the years 1940, 1941 and 1942; that, in fact, he supplied all the money the corporation needed when it was in need. Upon the trial below, the insistence of the witness Rogers was that Lamarre told the Committee that Meyers was not financially interested "except as a creditor". The same exception runs through every claim in the Government's brief before us. The opinion of the court recites that "Meyers advanced considerable sums for working capital and took therefor the company's promissory notes which were secured by the pledge and delivery to him of the certificates evidencing all its capital stock" and that "by the end of 1942 all Meyers' loans had been repaid." The court finds and recites that Lamarre insisted that the stock "did not belong to Meyers all the time but actually became his [Lamarre's] when the notes were paid." The notes were paid at the end of 1942. So the court's view of Lamarre's testimony is that Meyers owned the stock in 1940, 1941 and 1942. The court says that Lamarre tried to persuade the Committee that Meyers bore to the corporation "merely the relation of creditor"; and the court concludes from the evidence as a whole that Meyers had no interest "except that he was a creditor and held the capital stock as collateral". The unspoken major premise to the Government's contention and the court's position is that a creditor upon a promissory note of a corporation and pledgee of all its capital stock has no financial interest in or connection with the corporation. I cannot agree with that proposition. Of course, the term "interest in" has many meanings, some of them narrow and technical. But we are not construing a statute, and, moreover, the whole expression before us is "interested in or connected with". We are examining an allegation in an indictment which purports to recite what a witness said on the stand in a congressional hearing. The indictment recites that his testimony was that a certain person had no financial

interest in or connection with a corporation. The witness actually said that the person was a substantial and secured creditor of the corporation. The witness may have been guilty of perjury, but he clearly was not guilty of the perjury charged by the indictment. The second charge against Meyers (Count Three of the indictment) related to a Cadillac automobile. The charge was premised upon allegations in the indictment that "The fact was, as Bleriot H. Lamarre then knew, that that automobile had been purchased for the personal use of Bennett E. Meyers. Bleriot H. Lamarre nevertheless wilfully and contrary to his said oath testified falsely * * * that that Cadillac automobile had been purchased for the Aviation Electric Corporation and for the use of the Aviation Electric Corporation." Thus, the indictment recites, first, what the truth was and, second, what Lamarre told the Committee. Again we must note with care exactly what the indictment charged. The critical question posed by its allegations was: For whose use was the car purchased? According to the indictment, it was perjury to say that the purchase was "for the use" of the corporation because in truth it was "for the personal use" of Meyers. The testimony of Lamarre relating to the automobile is comparatively short. It came near the end of the second day of his testimony. He made no direct statement to the Committee as to whose use the car was purchased for. His meaning in that respect is a matter of inference. What he said was that the company had one car, a Cadillac, purchased from the Capitol Cadillac Company in Washington, where Meyers lived (the corporation was in Dayton and Vandalia, Ohio); that Meyers picked out the car, bought it and took delivery on it; that Meyers had access to it; that Meyers had the keys to it; that the car remained in Washington; that Meyers kept it in his garage; that the car was bought and titled in the company name; that he (Lamarre) was the only officer in the company who had access to the car; that Meyers made arrangements to get the insurance; that the car was insured in Washington; that the car cost $3,000 and was sold to Meyers' father-in-law for $1,400; that it was sold because "We had no further use for it"; that they "had not had too much use for it." None of these elemental facts has been disputed; as to them Lamarre testified truthfully before the Committee. The contention of the Government and the holding of the court is that this factual testimony is so positive to the effect that the car was purchased "for the use of the Aviation Electric Corporation" as to make it perjury, since the fact was that the purchase was "for the personal use" of Meyers. I have some difficulty in drawing a clear line between purchases of cars for the use of a corporation and purchases of cars by a corporation for the personal use of an officer, or sole stockholder, or sole creditor. Frequently, it seems to me, the use of the officer, stockholder or creditor is, in many senses, a use of the corporation. At any rate, it is frequently so considered in business circles. Be that as it may, I cannot find in Lamarre's testimony a distinction between company use and Meyers' personal use so clear and sharp as to constitute one a perjury when the other is the fact. Lamarre certainly told the Committee that Meyers selected the car, arranged for its purchase, bought it in Washington, kept it in his garage in Washington (the company being located in Ohio), had the keys, and arranged for the insurance. To my mind, it is a logical and fairly obvious conclusion from that testimony that the car was purchased for Meyers' use. It seems to me that what the indictment recites as the truth is as fair an inference as any other from Lamarre's actual testimony. The Government and the court put much stress upon Lamarre's reference to the car as the "Company car" and to his having driven it once from Ohio to Washington. But those scraps

of testimony are not, to my mind, an affirmation that the car was purchased for the use of the company and not of Meyers. I can find in Lamarre's testimony no clear inference that the car was purchased for the use of the corporation in critical contradistinction to a purchase for the use of Meyers. Unless his testimony was clear in that difference, conviction upon this indictment, as drawn, cannot be sustained. One is perjury, the other truth, the indictment says. Unless he said one and not the other, prosecution for this perjury fails. The problem posed by this phase of the case is not that presented when a witness swears both truthfully and falsely in the same testimony. That witness may be guilty of perjury in that part of his testimony which is false, even though on other matters he testifies truthfully, and even though he recants that which is false. In the case at bar, Lamarre testified to a number of simple facts about the car, all of which facts are admittedly true. The question is: Did he thereby convey a false impression? If what he actually said fits what the indictment says was the truth of the transaction, he is not guilty of perjury. In other words, in my view, if either of two impressions, one true and the other false, can be gathered from a true recitation of elemental facts, conviction for perjury fails. The third count of the indictment charged that Lamarre, knowing that "the cost of redecorating the apartment of Bennett E. Meyers * * * had been paid for out of the funds of the Aviation Electric Corporation", testified falsely before the Senate Committee that the cost of the redecoration "was a gift from himself, Bleriot H. Lamarre." Again we must note with care what the indictment says. It makes the difference between "paid for out of the funds of" the corporation and "a gift from himself" the difference between truth and perjury. I have some doubt as to the validity of the count because of its vagueness; the payment might be correctly described by both the expressions used. But my dissent does not arise from that view. Lamarre clearly, emphatically and in complete detail testified before the Committee that the cost of redecorating Meyers' apartment was paid for out of the funds of the corporation. No one disputes that literal fact. He said that the bills were paid by corporation checks, drawn on corporation bank accounts, and first charged as sales expenses on the corporate books. He identified the corporate checks. In all these respects he testified to what was the literal, actual truth, and no one has since alleged otherwise. So far there is, and can be, no dispute but that he testified to what the indictment says was the truth. The difficulty arises because it is alleged that Lamarre falsely characterized the transaction as a gift from himself to Meyers. Lamarre told the Committee that the cost of redecorating Meyers' apartment ($10,000), having first been charged on the corporate books as a business expense, was later removed from that account and entered as a charge against his own salary account. His statements in these respects were true; that was exactly what was done. The real issue of truth or falsity revolves about the salary account itself. The Government says that the account was spurious, that Meyers was the owner of the corporation, that Lamarre never had any such salary, and that the account was merely a device for siphoning profits to Meyers. But the indictment does not raise that issue. We cannot rewrite the indictment to charge that whereas the truth was that Meyers owned the corporation and all its profits, including what was charged as Lamarre's salary, Lamarre falsely represented that the salary credited to him was his own and that charges against it were gifts by him.

Much is made of the word "gift". The facts as shown by the record are quite simple. When Lamarre appeared before the Committee, he was interrogated at length throughout the morning concerning his and the corporation's relationship with Meyers, during the course of which much discussion was had of "gifts" from Lamarre to Meyers and from Meyers to Lamarre. The decorating of the apartment was not mentioned. After the luncheon recess, Lamarre said: "There is one thing I would like to say before we proceed. That is, you laid a great deal of stress this morning on what you called gifts to General Meyers. I would like to amplify my statements on that, because at the time I did not consider it a gift, but it was after General Meyers had come to Washington, he had an apartment decorated, and I paid for the decoration of that apartment, and the furnishings." Throughout that afternoon and the next morning, Lamarre was questioned at great length and in great detail concerning this transaction. He identified the checks and explained at great length the book entries, and repeatedly reasserted his claim that he caused this payment because of what Meyers had done for him. Until almost the close of this interrogation, the expression "gift" was not used. Then the following occurred: "Mr. Rogers: What do you consider this $10,000 now, and I am not talking about Saturday morning or Saturday afternoon; I am speaking now about now; what do you consider this $10,000 was? "Mr. Lamarre: As I said, it was pretty much, I considered it a moral obligation on my part to do something for General Meyers because of the things he had done for me. "Mr. Rogers: Look, you are a college graduate and president of the corporation. You understand what I mean. Was this $10,000 a repayment for a loan to General Meyers? "Mr. Lamarre: No, it was not. "Mr. Rogers: Was it part of any business deal at all? "Mr. Lamarre: No. "Mr. Rogers: And it had no consideration. "Mr. Lamarre: No. "Mr. Rogers: No legal consideration, so it must have been a gift, is that right? "Mr. Lamarre: It could have been considered a gift. "Mr. Rogers: I do not know what it could be; what was it? "Mr. Lamarre: I told you how I felt about it. "Senator Cain: Let me ask one question. What could it possibly be considered if it was not an outright gift for you said you wanted to do something for General Meyers. "Mr. Lamarre: That is right. In a legal sense, it undoubtedly would be a gift. "Senator Cain: In what other sense would it be anything other than a gift or a present or a gratuity to a friend?

"Mr. Lamarre: In my own personal feelings about it, it was that it was, I was sort of obliged to do that for him, or I wanted to do it for him because of the things that he had done for me. "Senator Cain: But the transaction in itself has absolutely nothing to do with your corporation business? "Mr. Lamarre: That is correct. "Senator Cain: It happens to have been paid from the corporation? "Mr. Lamarre: That is correct. "Senator Cain: But that was never your thought or intention; it was your personal obligation by personal wish to a personal friend? "Mr. Lamarre: That is correct." Upon this record Lamarre's use of the expression "gift" plays little part in the question of perjury. Lamarre did not urge that expression upon the Committee. He testified to the constituent factual elements of the transaction. "Gift" was merely an inference, or characterization, which his interlocutors attempted, with limited success, to put into his mouth. It is my view that upon examination of the official stenographic transcript of what Lamarre said to the Senate Committee, the trial court should have directed a verdict of acquittal upon this indictment. The basic issue presented by the defense was whether Lamarre said what the indictment alleged that he said. The issue was not what Lamarre said generally or in other respects. In each of the three instances, the stenographic transcript showed that he told the Committee what the indictment alleged to be the true fact; not only by a separate chance phrase but by the whole purport of his testimony. That he perjured himself in other respects is irrelevant in this prosecution. I dissent from the decision of the court, because it seems to me to be a departure from the basic principle that conviction can be had only upon proof of the acts alleged in the indictment.

In the case of Meyers v. United States (84 U.S.App.DC. 101, 171 F.2d 800 (1948)), Meyers was being prosecuted for subordination of perjury in front of a Senate subcommittee. A key issue was the testimony of a guy named Lamarre. At the perjury trial, even though the stenographic record of Lamarre's testimony was available, the Trial Judge allowed the prosecution to have a witness recount the substance of Lamarre's testimony.

Meyers objected, but the Appellate Court affirmed, saying that the recounting was not a violation of the best evidence rule because it wasn't the contents of the transcript that were at issue, it was Lamarre's oral testimony. The stenographic record would be good evidence of what was said, but it wasn't the only possible admissible evidence of his testimony.

Statements that are alleged to be perjurious may be proved by any person who heard them, as well by the court record. In a dissent it was argued that the best evidence rule should be read more generally, and to require that a party having available evidence which is relatively certain may not submit evidence that is far less certain. o Basically, the dissent felt that if there was better evidence, then the party should be required to present it, regardless of the technical reason for offering the evidence. If Meyers felt that the testimony was inaccurate, he could have introduced the stenographic record himself. Then the jury would have to determine how much weight to give the testimony vs. the transcript.

Seiler v. Lucasfilm, Ltd.

LEE M. SEILER, PLAINTIFF-APPELLANT v. LUCASFILM, LTD., INDUSTRIAL LIGHT AND MAGIC, TWENTIETH CENTURY-FOX FILM CORPORATION, GEORGE LUCAS, JR., AND JOSEPH E. JOHNSTON, DEFENDANTS-APPELLEES No. 85-1955 United States Court of Appeals, Ninth Circuit Argued and Submitted April 17, 1986 Decided August 26, 1986 Modified January 26, 1987 808 F.2d 1316 (9th Cir. 1986) Bronson, Bronson & McKinnon, Elliot L. Bien, San Francisco, Cal., for plaintiffappellant. Nutter, Bird, Marella, Boxer, Wolpert & Matz, Joel Boxer, Los Angeles, Cal.; and Keker & Brockett, John Keker and Robert Van Nest, San Francisco, Cal., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before FARRIS and BOOCHEVER, Circuit Judges, and KEEP,* District Judge. FARRIS, Circuit Judge: Lee Seiler, a graphic artist and creator of science fiction creatures, alleged copyright infringement by George Lucas and others who created and produced the science fiction movie "The Empire Strikes Back." Seiler claimed that creatures known as "Imperial Walkers" which appeared in The Empire Strikes Back infringed Seiler's copyright on his own creatures called "Garthian Striders." The Empire Strikes Back appeared in 1980; Seiler did not obtain his copyright until 1981. Because Seiler wished to show blown-up comparisons of his creatures and Lucas' Imperial Walkers to the jury at opening statement, the district judge held a pre-trial evidentiary hearing. At the hearing, Seiler could produce no originals of his Garthian Striders nor any documentary evidence that they existed before The Empire Strikes Back appeared in 1980. The district judge, applying the best evidence rule, found that Seiler had lost or destroyed the originals in bad faith under Fed.R.Evid. 1004(1) and denied admissibility of any secondary evidence, even the copies that Seiler had deposited with the Copyright Office. With no admissible evidence, Seiler then lost at summary judgment. FACTS

Seiler contends that he created and published in 1976 and 1977 science fiction creatures called Garthian Striders. In 1980, George Lucas released The Empire Strikes Back, a motion picture that contains a battle sequence depicting giant machines called Imperial Walkers. In 1981 Seiler obtained a copyright on his Striders, depositing with the Copyright Office "reconstructions" of the originals as they had appeared in 1976 and 1977. Seiler contends that Lucas' Walkers were copied from Seiler's Striders which were allegedly published in 1976 and 1977. Lucas responds that Seiler did not obtain his copyright until one year after the release of The Empire Strikes Back and that Seiler can produce no documents that antedate The Empire Strikes Back. Because Seiler proposed to exhibit his Striders in a blow-up comparison to Lucas' Walkers at opening statement, the district judge held an evidentiary hearing on the admissibility of the "reconstructions" of Seiler's Striders. Applying the "best evidence rule," Fed.R.Evid. 1001-1008, the district court found at the end of a seven-day hearing that Seiler lost or destroyed the originals in bad faith under Rule 1004(1) and that consequently no secondary evidence, such as the post-Empire Strikes Back reconstructions, was admissible. In its opinion the court found specifically that Seiler testified falsely, purposefully destroyed or withheld in bad faith the originals, and fabricated and misrepresented the nature of his reconstructions. The district court granted summary judgment to Lucas after the evidentiary hearing. On appeal, Seiler contends 1) that the best evidence rule does not apply to his works, 2) that if the best evidence rule does apply, Rule 1008 requires a jury determination of the existence and authenticity of his originals, and 3) that 17 U.S.C. 410(c) of the copyright laws overrides the Federal Rules of Evidence and mandates admission of his secondary evidence. The appeal was timely; this court has jurisdiction under 28 U.S.C. 1291. Review of summary judgment is de novo. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). The issues presented are questions of law, reviewable de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir. 1984) (en banc). DISCUSSION 1. Application of the best evidence rule. The best evidence rule embodied in Rules 1001-1008 represented a codification of longstanding common law doctrine. Dating back to 1700, the rule requires not, as its common name implies, the best evidence in every case but rather the production of an original document instead of a copy. Many commentators refer to the rule not as the best evidence rule but as the original document rule. Rule 1002 states: "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress." Writings and recordings are defined in Rule 1001 as "letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation." The Advisory Committee Note supplies the following gloss: Traditionally the rule requiring the original centered upon accumulations of data and expressions affecting legal relations set forth in words and figures. This meant that the rule was one essentially related to writings. Present day techniques have expanded methods of storing data, yet the essential form which the information ultimately assumes for usable purposes is words and figures. Hence the considerations underlying the rule dictate its expansion to include computers, photographic systems, and other modern developments. Some treatises, whose approach seems more historical than rigorously analytic, opine without support from any cases that the rule is limited to words and figures. 5

Weinstein's Evidence (1983), 1001(1) [01] at 1001-11; 5 Louisell & Mueller, 550 at 285. We hold that Seiler's drawings were "writings" within the meaning of Rule 1001(1); they consist not of "letters, words, or numbers" but of "their equivalent." To hold otherwise would frustrate the policies underlying the rule and introduce undesirable inconsistencies into the application of the rule. In the days before liberal rules of discovery and modern techniques of electronic copying, the rule guarded against incomplete or fraudulent proof. By requiring the possessor of the original to produce it, the rule prevented the introduction of altered copies and the withholding of originals. The purpose of the rule was thus long thought to be one of fraud prevention, but Wigmore pointed out that the rule operated even in cases where fraud was not at issue, such as where secondary evidence is not admitted even though its proponent acts in utmost good faith. Wigmore also noted that if prevention of fraud were the foundation of the rule, it should apply to objects as well as writings, which it does not. 4 Wigmore, Evidence 1180 (Chadbourn rev. 1972). The modern justification for the rule has expanded from prevention of fraud to a recognition that writings occupy a central position in the law. When the contents of a writing are at issue, oral testimony as to the terms of the writing is subject to a greater risk of error than oral testimony as to events or other situations. The human memory is not often capable of reciting the precise terms of a writing, and when the terms are in dispute only the writing itself, or a true copy, provides reliable evidence. To summarize then, we observe that the importance of the precise terms of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplication are the concerns addressed by the best evidence rule. See 5 Louisell & Mueller, Federal Evidence, 550 at 283; McCormick on Evidence (3d ed. 1984) 231 at 704; Clearly & Strong, The Best Evidence Rule: An Evaluation in Context, 51 Iowa L.Rev. 825, 828 (1966). Viewing the dispute in the context of the concerns underlying the best evidence rule, we conclude that the rule applies. McCormick summarizes the rule as follows: [I]n proving the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent. McCormick on Evidence 230, at 704. The contents of Seiler's work are at issue. There can be no proof of "substantial similarity" and thus of copyright infringement unless Seiler's works are juxtaposed with Lucas' and their contents compared. Since the contents are material and must be proved, Seiler must either produce the original or show that it is unavailable through no fault of his own. Rule 1004(1). This he could not do. The facts of this case implicate the very concerns that justify the best evidence rule. Seiler alleges infringement by The Empire Strikes Back, but he can produce no documentary evidence of any originals existing before the release of the movie. His secondary evidence does not consist of true copies or exact duplicates but of "reconstructions" made after The Empire Strikes Back. In short, Seiler claims that the movie infringed his originals, yet he has no proof of those originals. The dangers of fraud in this situation are clear. The rule would ensure that proof of the infringement claims consists of the works alleged to be infringed. Otherwise, "reconstructions" which might have no resemblance to the purported original would suffice as proof for infringement of the original. Furthermore, application of the rule here defers to the rule's special concern for the contents of writings. Seiler's claim

depends on the content of the originals, and the rule would exclude reconstituted proof of the originals' content. Under the circumstances here, no "reconstruction" can substitute for the original. Seiler argues that the best evidence rule does not apply to his work, in that it is artwork rather than "writings, recordings, or photographs." He contends that the rule both historically and currently embraces only words or numbers. Neither party has referred us to cases which discuss the applicability of the rule to drawings.1 To recognize Seiler's works as writings does not, as Seiler argues, run counter to the rule's preoccupation with the centrality of the written word in the world of legal relations. Just as a contract objectively manifests the subjective intent of the makers, so Seiler's drawings are objective manifestations of the creative mind. The copyright laws give legal protection to the objective manifestations of an artist's ideas, just as the law of contract protects through its multifarious principles the meeting of minds evidenced in the contract. Comparing Seiler's drawings with Lucas' drawings is no different in principle than evaluating a contract and the intent behind it. Seiler's "reconstructions" are "writings" that affect legal relations; their copyrightability attests to that. A creative literary work, which is artwork, and a photograph whose contents are sought to be proved, as in copyright, defamation, or invasion of privacy, are both covered by the best evidence rule. See McCormick, 232 at 706 n. 9; Advisory Committee's Note to Rule 1002; 5 Louisell & Mueller, 550 at 285 n. 27. We would be inconsistent to apply the rule to artwork which is literary or photographic but not to artwork of other forms. Furthermore, blueprints, engineering drawings, architectural designs may all lack words or numbers yet still be capable of copyright and susceptible to fraudulent alteration. In short, Seiler's argument would have us restrict the definitions of Rule 1001(1) to "words" and "numbers" but ignore "or their equivalent." We will not do so in the circumstances of this case. Our holding is also supported by the policy served by the best evidence rule in protecting against faulty memory. Seiler's reconstructions were made four to seven years after the alleged originals; his memory as to specifications and dimensions may have dimmed significantly. Furthermore, reconstructions made after the release of the Empire Strikes Back may be tainted, even if unintentionally, by exposure to the movie. Our holding guards against these problems. 2. Rule 1008. As we hold that the district court correctly concluded that the best evidence rule applies to Seiler's drawings, Seiler was required to produce his original drawings unless excused by the exceptions set forth in Rule 1004. The pertinent subsection is 1004(1), which provides: The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith. . . In the instant case, prior to opening statement, Seiler indicated that he planned to show to the jury reconstructions of his "Garthian Striders" during the opening statement. The trial judge would not allow items to be shown to the jury until they were admitted in evidence. Seiler's counsel reiterated that he needed to show the reconstructions to the jury during his opening statement. Hence, the court excused the jury and held a seven-day hearing on their admissibility. At the conclusion of the hearing, the trial judge found that the reconstructions were inadmissible under the best evidence rule as the originals were lost or destroyed in bad faith. This finding is amply supported by the record.

Seiler argues on appeal that regardless of Rule 1004(1), Rule 1008 requires a trial because a key issue would be whether the reconstructions correctly reflect the content of the originals. Rule 1008 provides: When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of facts to determine as in the case of other issues of fact.2 Seiler's position confuses admissibility of the reconstructions with the weight, if any, the trier of fact should give them, after the judge has ruled that they are admissible. Rule 1008 states, in essence, that when the admissibility of evidence other than the original depends upon the fulfillment of a condition of fact, the trial judge generally makes the determination of that condition of fact. The notes of the Advisory Committee are consistent with this interpretation in stating: "Most preliminary questions of fact in connection with applying the rule preferring the original as evidence of contents are for the judge . . . [t]hus the question of . . . fulfillment of other conditions specified in Rule 1004 . . . is for the judge." In the instant case, the condition of fact which Seiler needed to prove was that the originals were not lost or destroyed in bad faith. Had he been able to prove this, his reconstructions would have been admissible and then their accuracy would have been a question for the jury. In sum, since admissibility of the reconstructions was dependent upon a finding that the originals were not lost or destroyed in bad faith, the trial judge properly held the hearing to determine their admissibility. 3. Does 17 U.S.C. 410(c) require the admission of the copies of Seiler's work deposited at the Copyright Office? Seiler contends that 410(c) of the Copyright Act mandates the admission of his reconstructions in evidence despite the district court's ruling that they are excluded under the best evidence rule. Section 410(c) provides: In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court. Seiler argues that this section requires the admission of the copyright certificate he obtained on his reconstructions in 1981 and, more importantly, the attached "work" that Seiler claims is incorporated in the certificate by reference.3 We hold that 410(c) has no application here, because the certificate of copyright has no bearing upon the ultimate facts Seiler seeks to prove by its submission. Section 410(c) makes the copyright certificate prima facie evidence of "the validity of the copyright and of the facts stated in the certificate." Seiler's copyright claims are based entirely upon the original drawings, which he claims were first published in 1977. He has sought to present his reconstructed drawings as a substitute for the originals that apparently no longer exist. To accomplish this, he must show that the reconstructions are virtually identical to those originals. All of the recitations in the certificate pertain to the attached "work," which is Seiler's reconstructions. None of the statements in the certificate can be of any use therefore until Seiler proves that the reconstructions are the same as the originals. Prima facie evidence of statements in the certificate is irrelevant until that proof has been made.

Moreover, the certificate obtained in 1981 and the attached reconstructions do not purport to speak on the ultimate issue of whether Seiler's reconstructions are true to the supposed originals. In fact, no indication appears on the certificate that the Copyright Office was even aware that the attached "work" was reconstructed, and not a true copy of the original work.4 Seiler has not presented his application for a certificate, or any other evidence indicating that he advised the Copyright Office of the nature of the work he was submitting. The Copyright Act does not contemplate the copyrighting of a now non-existent original on the basis of a tendered reconstruction. Section 408 specifies the types of material that must be deposited along with an application for a certificate. The permissible materials include bona fide copies of the original work only; there is no mention of "reconstructions." If it were otherwise, the possibilities for fraud would be limitless.5 The certificate of copyright registration is not evidence of any material fact in Seiler's case. Section 410(c) does not compel its submission. AFFIRMED.

G.R. No. 170491

April 4, 2007

NATIONAL POWER CORPORATION, Petitioner, vs. HON. RAMON G. CODILLA, JR., Presiding Judge, RTC of Cebu, Br. 19, BANGPAI SHIPPING COMPANY, and WALLEM SHIPPING, INCORPORATED, Respondents. DECISION CHICO-NAZARIO, J.: Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Civil Procedure, assailing the Decision1 of the Court of Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November 2005, which dismissed the Petition for Certiorari filed by the National Power Corporation seeking to set aside the Order2 issued by the Regional Trial Court (RTC) of Cebu, Branch 19 dated 16 November 2004, denying admission and excluding from the records plaintiffs (herein petitioner) Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J", and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R" and "S" and its sub-markings. On 20 April 1996, M/V Dibena Win, a vessel of foreign registry owned and operated by private respondent Bangpai Shipping, Co., allegedly bumped and damaged petitioners Power Barge 209 which was then moored at the Cebu International Port. Thus, on 26 April 1996, petitioner filed before the Cebu RTC a complaint for damages against private respondent Bangpai Shipping Co., for the alleged damages caused on petitioners power barges. Thereafter, petitioner filed an Amended Complaint dated 8 July 1996 impleading herein private respondent Wallem Shipping, Inc., as additional defendant, contending that the latter is a ship agent of Bangpai Shipping Co. On 18 September 1996, Wallem Shipping, Inc. filed a Motion to Dismiss which was subsequently denied by public respondent Judge in an Order dated 20

October 1998. Bangpai Shipping Co. likewise filed a Motion to Dismiss which was also denied by public respondent Judge in an Order issued on 24 January 2003. Petitioner, after adducing evidence during the trial of the case, filed a formal offer of evidence before the lower court on 2 February 2004 consisting of Exhibits "A" to "V" together with the sub-marked portions thereof. Consequently, private respondents Bangpai Shipping Co. and Wallem Shipping, Inc. filed their respective objections to petitioners formal offer of evidence. On 16 November 2004, public respondent judge issued the assailed order denying the admission and excluding from the records petitioners Exhibits "A", "C", "D", "E", "H" and its submarkings, "I", "J" and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its submarkings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R" and "S" and its submarkings. According to the court a quo: The Court finds merit in the objections raised and the motion to strike out filed respectively by the defendants. The record shows that the plaintiff has been given every opportunity to present the originals of the Xerox or photocopies of the documents it offered. It never produced the originals. The plaintiff attempted to justify the admission of the photocopies by contending that "the photocopies offered are equivalent to the original of the document" on the basis of the Electronic Evidence (Comment to Defendant Wallem Philippines Objections and Motion to Strike). But as rightly pointed out in defendant Wallems Reply to the Comment of Plaintiff, the Xerox copies do not constitute the electronic evidence defined in Section 1 of Rule 2 of the Rules on Electronic Evidence as follows: "(h) "Electronic document" refers to information or the representation of information, data, figures, symbols or other models of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any printout, readable by sight or other means which accurately reflects the electronic data message or electronic document. For the purpose of these Rules, the term "electronic document" may be used interchangeably with "electronic data message". The information in those Xerox or photocopies was not received, recorded, retrieved or produced electronically. Moreover, such electronic evidence must be authenticated (Sections 1 and 2, Rule 5, Rules on Electronic Evidence), which the plaintiff failed to do. Finally, the required Affidavit to prove the admissibility and evidentiary weight of the alleged electronic evidence (Sec. 1, Rule 9, Ibid) was not executed, much less presented in evidence. The Xerox or photocopies offered should, therefore, be stricken off the record. Aside from their being not properly identified by any competent witness, the loss of the principals thereof was not established by any competent proof. xxxx

WHEREFORE, plaintiffs Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J", and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, and "R" are hereby DENIED admission and excluded from the records. However, these excluded evidence should be attached to the records of this case to enable the appellate court to pass upon them should an appeal be taken from the decision on the merits to be rendered upon the termination of the trial of this case. Exhibits "S" and its sub-markings are also DENIED admission for lack of proper identification since the witness who brought these pictures expressly admitted that he was not present when the photos were taken and had not knowledge when the same where taken.3 Upon denial of petitioners Motion for Reconsideration in an Order dated 20 April 2005, petitioner filed a Petition for Certiorari under Rule 65 of the Rules of Civil Procedure before the Court of Appeals maintaining that public respondent Judge acted with grave abuse of discretion amounting to lack or excess of jurisdiction in denying the admission of its Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J" and its sub-markings, "K", "L", "M" and its submarkings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R", and "S" and its sub-markings. On 9 November 2005, the appellate court issued a Decision dismissing petitioners petition for certiorari, the pertinent portions of which elucidate: After a judicious scrutiny of the record of the case on hand, together with the rules and jurisprudence which are applicable in the premises, we have come up with a finding that the petition for certiorari filed in this case is not meritorious. It appears that there is no sufficient showing by the petitioner that the respondent judge acted with grave abuse of discretion in issuing the assailed orders in Civil Case No. CEB-18662. As what our jurisprudence tells us, grave abuse of discretion is meant such capricious and whimsical exercise of judgment as would be equivalent to lack of jurisdiction x x x. In the case at bench, what has been shown to the contrary by the totality of the record on hand is that the respondent judge acted correctly and within the pale of his sound discretion in issuing the assailed order, dated November 16, 2004, in Civil Case No. CEB-18662. Indeed, it appears that the pieces of petitioners documentary evidence which were denied admission by the respondent judge were not properly identified by any competent witness. As pointed out by the respondent Bangpai Shipping Company in its comment on the petition filed in this case which reproduces some excerpts of the testimonies in the court a quo of Atty. Marianito De Los Santos, Engr. Nestor Enriquez, Jr. and Mr. Rodulfo I. Pagaling, the said witnesses did not have personal knowledge of and participation in the preparation and making of the pieces of documentary evidence denied admission by respondent judge x x x. In other words, there was lack of proper identification of said pieces of documentary evidence. x x x. Then another ground for denying admission of petitioners Exhibits A, C, D, E, H, I, J, K, L, M, N, O, P, Q, R, and S by the respondent judge is that said pieces of documentary evidence were

merely photocopies of purported documents or papers. There is no gainsaying the fact that the respondent judge acted within the pale of his discretion when he denied admission of said documentary evidence. Section 3 of Rule 130 of the Rules of Court of the Philippines is very explicit in providing that, when the subject of inquiry are the contents of documents, no evidence shall be admissible other than the original documents themselves, except in certain cases specifically so enumerated therein, and the petitioner has not shown that the non-presentation or non-production of its original documentary pieces of evidence falls under such exceptions. As aptly pointed out by the respondent judge in the order issued by him on November 16, 2004: "x x x The record shows that the plaintiff (petitioner herein) has been given every opportunity to present the originals of the Xerox or photocopies of the documents it offered. It never produced said originals." So, the petitioner has only itself to blame for the respondent judges denial of admission of its aforementioned documentary evidence. Of course, the petitioner tries to contend that the photocopies of documents offered by it are equivalent to the original documents that it sought to offer in evidence, based on the Rules on Electronic Evidence which were in force and effect since August 1, 2001. However, such a contention is devoid of merit. The pieces of documentary evidence offered by the petitioner in Civil Case CEB-18662 which were denied admission by the respondent judge do not actually constitute as electronic evidence as defined in the Rules on Electronic Evidence. The informations therein were not received, retrieved or produced electronically. The petitioner has not adequately established that its documentary evidence were electronic evidence. it has not properly authenticated such evidence as electronic documents, assuming arguendo that they are. Lastly, the petitioner has not properly established by affidavit pursuant to Rule 9 of the Rules on Electronic Evidence the admissibility and evidentiary weight of said documentary evidence. Thus, by any legal yardstick, it is manifest that the respondent judge did not commit grave abuse of discretion in denying admission of the aforementioned documentary evidence of petitioner. But even if it be granted just for the sake of argument that the respondent judge committed an error in denying the aforementioned documentary evidence of the petitioner, still the petition for certiorari filed in this case must fail. Such error would at most be only an error of law and not an error of jurisdiction. In Lee vs. People, 393 SCRA 397, the Supreme Court of the Philippines said that certiorari will not lie in case of an error of law. x x x. WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DISMISSING the petition filed in this case and AFFIRMING the assailed orders issued by respondent judge in Civil Case No. CEB-18662.4 Aggrieved by the aforequoted decision, petitioner filed the instant petition. The focal point of this entire controversy is petitioners obstinate contention that the photocopies it offered as formal evidence before the trial court are the functional equivalent of their original based on its inimitable interpretation of the Rules on Electronic Evidence.

Petitioner insists that, contrary to the rulings of both the trial court and the appellate court, the photocopies it presented as documentary evidence actually constitute electronic evidence based on its own premise that an "electronic document" as defined under Section 1(h), Rule 2 of the Rules on Electronic Evidence is not limited to information that is received, recorded, retrieved or produced electronically. Rather, petitioner maintains that an "electronic document" can also refer to other modes of written expression that is produced electronically, such as photocopies, as included in the sections catch-all proviso: "any print-out or output, readable by sight or other means". We do not agree. In order to shed light to the issue of whether or not the photocopies are indeed electronic documents as contemplated in Republic Act No. 8792 or the Implementing Rules and Regulations of the Electronic Commerce Act, as well as the Rules on Electronic Evidence, we shall enumerate the following documents offered as evidence by the petitioner, to wit: 1. Exhibit "A" is a photocopy of a letter manually signed by a certain Jose C. Troyo, with "RECEIVED" stamped thereon, together with a handwritten date; 2. Exhibit "C" is a photocopy of a list of estimated cost of damages of petitioners power barges 207 and 209 prepared by Hopewell Mobile Power Systems Corporation and manually signed by Messrs. Rex Malaluan and Virgilio Asprer; 3. Exhibit "D" is a photocopy of a letter manually signed by a certain Nestor G. Enriquez, Jr., with "RECEIVED" stamped thereon, together with a handwritten notation of the date it was received; 4. Exhibit "E" is a photocopy of a Standard Marine Protest Form which was filled up and accomplished by Rex Joel C. Malaluan in his own handwriting and signed by him. Portions of the Jurat were handwritten, and manually signed by the Notary Public; 5. Exhibit "H" is a photocopy of a letter manually signed by Mr. Nestor G. Enriquez, Jr. with "RECEIVED" stamped thereon, together with a handwritten notation of the date it was received; 6. Exhibit "I" is a photocopy of a computation of the estimated energy loss allegedly suffered by petitioner which was manually signed by Mr. Nestor G. Enriquez, Jr.; 7. Exhibit "J" is a photocopy of a letter containing the breakdown of the cost estimate, manually signed by Mr. Nestor G. Enriquez, Jr., with "RECEIVED" stamped thereon, together with a handwritten notation of the date it was received, and other handwritten notations; 8. Exhibit "K" is a photocopy of the Subpoena Duces Tecum Ad Testificandum written using a manual typewriter, signed manually by Atty. Ofelia Polo-De Los Reyes, with a handwritten notation when it was received by the party;

9. Exhibit "L" is a photocopy of a portion of the electricity supply and operation and maintenance agreement between petitioner and Hopewell, containing handwritten notations and every page containing three unidentified manually placed signatures; 10. Exhibit "M" is a photocopy of the Notice of Termination with attachments addressed to Rex Joel C. Malaluan, manually signed by Jaime S. Patinio, with a handwritten notation of the date it was received. The sub-markings also contain manual signatures and/or handwritten notations; 11. Exhibit "N" is a photocopy of a letter of termination with attachments addressed to VIrgilio Asprer and manually signed by Jaime S. Patino. The sub-markings contain manual signatures and/or handwritten notations; 12. Exhibit "O" is the same photocopied document marked as Annex C; 13. Exhibit "P" is a photocopy of an incident report manually signed by Messrs. Malaluan and Bautista and by the Notary Public, with other handwritten notations; 14. Exhibit "Q" is a photocopy of a letter manually signed by Virgilio Asprer and by a Notary Public, together with other handwritten notations. On the other hand, an "electronic document" refers to information or the representation of information, data, figures, symbols or other models of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.5 It includes digitally signed documents and any printout, readable by sight or other means which accurately reflects the electronic data message or electronic document.6 The rules use the word "information" to define an electronic document received, recorded, transmitted, stored, processed, retrieved or produced electronically. This would suggest that an electronic document is relevant only in terms of the information contained therein, similar to any other document which is presented in evidence as proof of its contents.7 However, what differentiates an electronic document from a paper-based document is the manner by which the information is processed; clearly, the information contained in an electronic document is received, recorded, transmitted, stored, processed, retrieved or produced electronically. A perusal of the information contained in the photocopies submitted by petitioner will reveal that not all of the contents therein, such as the signatures of the persons who purportedly signed the documents, may be recorded or produced electronically. By no stretch of the imagination can a persons signature affixed manually be considered as information electronically received, recorded, transmitted, stored, processed, retrieved or produced. Hence, the argument of petitioner that since these paper printouts were produced through an electronic process, then these photocopies are electronic documents as defined in the Rules on Electronic Evidence is obviously an erroneous, if not preposterous, interpretation of the law. Having thus declared that

the offered photocopies are not tantamount to electronic documents, it is consequential that the same may not be considered as the functional equivalent of their original as decreed in the law. Furthermore, no error can be ascribed to the court a quo in denying admission and excluding from the records petitioners Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J" and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, and "R". The trial court was correct in rejecting these photocopies as they violate the best evidence rule and are therefore of no probative value being incompetent pieces of evidence. Before the onset of liberal rules of discovery, and modern technique of electronic copying, the best evidence rule was designed to guard against incomplete or fraudulent proof and the introduction of altered copies and the withholding of the originals.8 But the modern justification for the rule has expanded from the prevention of fraud to a recognition that writings occupy a central position in the law.9 The importance of the precise terms of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplicate are the concerns addressed by the best evidence rule.10 Moreover, as mandated under Section 2, Rule 130 of the Rules of Court: "SECTION 2. Original writing must be produced; exceptions. There can be no evidence of a writing the contents of which is the subject of inquiry, other than the original writing itself, except in the following cases: (a) When the original has been lost, destroyed, or cannot be produced in court; (b) When the original is in the possession of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original is a record or other document in the custody of a public officer; (d) When the original has been recorded in an existing record a certified copy of which is made evidence by law; (e) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole." When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.11 The offeror of secondary evidence is burdened to prove the predicates thereof: (a) the loss or destruction of the original without bad faith on the part of the proponent/offeror which can be shown by circumstantial evidence of routine practices of destruction of documents;12 (b) the proponent must prove by a fair preponderance of evidence as to raise a reasonable inference of the loss or destruction of the original copy; and (c) it must be shown that a diligent and bona fide but

unsuccessful search has been made for the document in the proper place or places.13 However, in the case at bar, though petitioner insisted in offering the photocopies as documentary evidence, it failed to establish that such offer was made in accordance with the exceptions as enumerated under the abovequoted rule. Accordingly, we find no error in the Order of the court a quo denying admissibility of the photocopies offered by petitioner as documentary evidence. Finally, it perplexes this Court why petitioner continued to obdurately disregard the opportunities given by the trial court for it to present the originals of the photocopies it presented yet comes before us now praying that it be allowed to present the originals of the exhibits that were denied admission or in case the same are lost, to lay the predicate for the admission of secondary evidence. Had petitioner presented the originals of the documents to the court instead of the photocopies it obstinately offered as evidence, or at the very least laid the predicate for the admission of said photocopies, this controversy would not have unnecessarily been brought before the appellate court and finally to this Court for adjudication. Had it not been for petitioners intransigence, the merits of petitioners complaint for damages would have been decided upon by the trial court long ago. As aptly articulated by the Court of Appeals, petitioner has only itself to blame for the respondent judges denial of admission of its aforementioned documentary evidence and consequently, the denial of its prayer to be given another opportunity to present the originals of the documents that were denied admission nor to lay the predicate for the admission of secondary evidence in case the same has been lost. WHEREFORE, premises considered, the instant petition is hereby DENIED. The Decision of the Court of Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November 2005 is hereby AFFIRMED. Costs against petitioner. SO ORDERED. A.M. No. CA-05-18-P April 12, 2005

ZALDY NUEZ, Complainant, vs. ELVIRA CRUZ-APAO, respondent. DECISION PER CURIAM: What brings our judicial system into disrepute are often the actuations of a few erring court personnel peddling influence to party-litigants, creating the impression that decisions can be bought and sold, ultimately resulting in the disillusionment of the public. This Court has never wavered in its vigilance in eradicating the so-called "bad eggs" in the judiciary. And whenever warranted by the gravity of the offense, the supreme penalty of dismissal in an administrative case is meted to erring personnel.1 The above pronouncement of this Court in the case of Mendoza vs. Tiongson2 is applicable to the case at bar.

This is an administrative case for Dishonesty and Grave Misconduct3 against Elvira Cruz-Apao (Respondent), Executive Assistant II of the Acting Division Clerk of Court of the Fifteenth (15th) Division, Court of Appeals (CA). The complaint arose out of respondents solicitation of One Million Pesos (P1,000,000.00) from Zaldy Nuez (Complainant) in exchange for a speedy and favorable decision of the latters pending case in the CA,4 more particularly, CA-G.R. SP No. 73460 entitled "PAGCOR vs. Zaldy Nuez."5 Complainant initially lodged a complaint with the Action Center of the Television program Imbestigador of GMA Network,6 the crew of which had accompanied him to the Presidential Anti-Organized Crime CommissionSpecial Projects Group (PAOCC-SPG) in Malacaang where he filed a complaint for extortion7 against respondent. This led to the conduct of an entrapment operation by elements of the Presidential Anti-Organized Crime Task Force (PAOCTF) on 28 September 2004 at the Jollibee Restaurant, 2nd Floor, Times Plaza Bldg., corner Taft and United Nations Avenue, Manila,8 the place where the supposed hand-over of the money was going to take place. Respondents apprehension by agents of the PAOCTF in the course of the entrapment operation prompted then CA Presiding Justice (PJ) Cancio C. Garcia (now Supreme Court Justice) to issue Office Order No. 297-04-CG9 (Order) which created an ad-hoc investigating committee (Committee).10 The Committee was specifically tasked among others to conduct a thorough and exhaustive investigation of respondents case and to recommend the proper administrative sanctions against her as the evidence may warrant.11 In accordance with the mandate of the Order, the Committee conducted an investigation of the case and issued a Resolution12 dated 18 October 2004 where it concluded that a prima facie case of Dishonesty and Serious Misconduct against respondent existed. The Committee thus recommended respondents preventive suspension for ninety (90) days pending formal investigation of the charges against her.13 On 28 January 2005, the Committee submitted a Report14 to the new CA Presiding Justice Romeo A. Brawner with its recommendation that respondent be dismissed from service. Based on the hearings conducted and the evidence received by the Committee, the antecedent facts are as follows: Complainants case referred to above had been pending with the CA for more than two years.15 Complainant filed an illegal dismissal case against PAGCOR before the Civil Service Commission (CSC). The CSC ordered complainants reinstatement but a writ of preliminary injunction and a temporary restraining order was issued by the CA in favor of PAGCOR, thus complainant was not reinstated to his former job pending adjudication of the case.16 Desiring an expeditious decision of his case, complainant sought the assistance of respondent sometime in July 2004 after learning of the latters employment with the CA from her sister, Magdalena David. During their first telephone conversation17 and thereafter through a series of messages they exchanged via SMS,18 complainant informed respondent of the particulars of his pending case. Allegedly, complainant thought that respondent would be able to advise him on how to achieve an early resolution of his case.

However, a week after their first telephone conversation, respondent allegedly told complainant that a favorable and speedy decision of his case was attainable but the person who was to draft the decision was in return asking for One Million Pesos (P1,000,000.00).19 Complainant expostulated that he did not have that kind of money since he had been jobless for a long time, to which respondent replied, "Eh, ganoon talaga ang lakaran dito, eh. Kung wala kang pera, pasensiya na."20 Complainant then tried to ask for a reduction of the amount but respondent held firm asserting that the price had been set, not by her but by the person who was going to make the decision.21 Respondent even admonished complainant with the words "Wala tayo sa palengke iho!"22 when the latter bargained for a lower amount.23 Complainant then asked for time to determine whether or not to pay the money in exchange for the decision. Instead, in August of 2004, he sought the assistance of Imbestigador.24 The crew of the TV program accompanied him to PAOCCF-SPG where he lodged a complaint against respondent for extortion.25 Thereafter, he communicated with respondent again to verify if the latter was still asking for the money26 and to set up a meeting with her.27 Upon learning that respondents offer of a favorable decision in exchange for One Million Pesos (P1,000,000.00) was still standing, the plan for the entrapment operation was formulated by Imbestigador in cooperation with the PAOCC. On 24 September 2004, complainant and respondent met for the first time in person at the 2nd Floor of Jollibee, Times Plaza Bldg.,28 the place where the entrapment operation was later conducted. Patricia Siringan (Siringan), a researcher of Imbestigador, accompanied complainant and posed as his sister-in-law.29 During the meeting, complainant clarified from respondent that if he gave the amount of One Million Pesos (P1,000,000.00), he would get a favorable decision. This was confirmed by the latter together with the assurance that it would take about a month for the decision to come out.30 Respondent also explained that the amount of One Million Pesos (P1,000,000.00) guaranteed a favorable decision only in the CA but did not extend to the Supreme Court should the case be appealed later.31 When respondent was asked where the money will go, she claimed that it will go to a male researcher whose name she refused to divulge. The researcher was allegedly a lawyer in the CA Fifth (5th) Division where complainant case was pending.32 She also claimed that she will not get any part of the money unless the researcher decides to give her some.33 Complainant tried once again to bargain for a lower amount during the meeting but respondent asserted that the amount was fixed. She even explained that this was their second transaction and the reason why the amount was closed at One Million Pesos (P1,000,000.00) was because on a previous occasion, only Eight Hundred Thousand Pesos (P800,000.00) was paid by the client despite the fact that the amount had been pegged at One Million Three Hundred Thousand Pesos (P1,300,000.00).34 Complainant then proposed that he pay a down payment of Seven Hundred Thousand Pesos (P700,000.00) while the balance of Three Hundred Thousand Pesos (P300,000.00) will be paid once the decision had been released.35 However, respondent refused to entertain the offer, she and the researcher having learned their lesson from their previous experience for as then, the client no longer paid the balance of Five Hundred Thousand Pesos (P500,000.00) after the decision had come out.36

Complainant brought along copies of the documents pertinent to his case during the first meeting. After reading through them, respondent allegedly uttered, "Ah, panalo ka."37 The parties set the next meeting date at lunchtime on 28 September 2004 and it was understood that the money would be handed over by complainant to respondent then.38 On the pre-arranged meeting date, five (5) PAOCTF agents, namely: Capt. Reynaldo Maclang (Maclang) as team leader, SPO1 Renato Banay (Banay), PO1 Bernard Villena (Villena), PO1 Danny Feliciano, and PO2 Edgar delos Reyes39 arrived at around 11:30 in the morning at Jollibee.40 Nuez and Siringan arrived at past noon and seated themselves at the table beside the one occupied by the two (2) agents, Banay and Villena. Complainant had with him an unsealed long brown envelope containing ten (10) bundles of marked money and paper money which was to be given to respondent.41 The envelope did not actually contain the One Million Pesos (P1,000,000.00) demanded by respondent, but instead contained paper money in denominations of One Hundred Pesos (P100.00), Five Hundred Pesos (P500.00) and One Thousand Pesos (P1,000.00), as well as newspaper cut-outs.42 There were also ten (10) authentic One Hundred Peso (P100.00) bills which had been previously dusted with ultra-violet powder by the PAOCTF.43 The three other PAOCTF agents were seated a few tables away44 and there were also three (3) crew members from Imbestigador at another table operating a mini DV camera that was secretly recording the whole transaction.45 Respondent arrived at around 1:00 p.m.46 She appeared very nervous and suspicious during the meeting.47 Ironically, she repeatedly said that complainant might entrap her, precisely like those that were shown on Imbestigador.48 She thus refused to receive the money then and there. What she proposed was for complainant and Siringan to travel with her in a taxi and drop her off at the CA where she would receive the money.49 More irony ensued. Respondent actually said that she felt there were policemen around and she was afraid that once she took hold of the envelope complainant proffered, she would suddenly be arrested and handcuffed.50 At one point, she even said, "Ayan o, tapos na silang kumain, bakit hindi pa sila umaalis?,"51 referring to Banay and Villena at the next table. To allay respondents suspicion, the two agents stood up after a few minutes and went near the staircase where they could still see what was going on.52 Complainant, respondent and Siringan negotiated for almost one hour.53 Complainant and Siringan bargained for a lower price but respondent refused to accede. When respondent finally touched the unsealed envelope to look at the money inside, the PAOCTF agents converged on her and invited her to the Western Police District (WPD) Headquarters at United Nations Avenue for questioning.54 Respondent became hysterical as a commotion ensued inside the restaurant.55 On the way to the WPD on board the PAOCTF vehicle, Banay asked respondent why she went to the restaurant. The latter replied that she went there to get the One Million Pesos (P1,000,000.00).56 Respondent was brought to the PNP Crime Laboratory at the WPD where she was tested and found positive for ultra-violet powder that was previously dusted on the money.57 She was later detained at the WPD Headquarters.

At seven oclock in the evening of 28 September 2004, respondent called Atty. Lilia Mercedes Encarnacion Gepty (Atty. Gepty), her immediate superior in the CA at the latters house.58 She tearfully confessed to Atty. Gepty that "she asked for money for a case and was entrapped by police officers and the media."59 Enraged at the news, Atty. Gepty asked why she had done such a thing to which respondent replied, "Wala lang maam, sinubukan ko lang baka makalusot."60 Respondent claimed that she was ashamed of what she did and repented the same. She also asked for Atty. Geptys forgiveness and help. The latter instead reminded respondent of the instances when she and her co-employees at the CA were exhorted during office meetings never to commit such offenses.61 Atty. Gepty rendered a verbal report62 of her conversation with their divisions chairman, Justice Martin S. Villarama. She reduced the report into writing and submitted the same to then PJ Cancio Garcia on 29 September 2004.63 She also later testified as to the contents of her report to the Committee. During the hearing of this case, respondent maintained that what happened was a case of instigation and not an entrapment. She asserted that the offer of money in exchange for a favorable decision came not from her but from complainant. To support her contention, she presented witnesses who testified that it was complainant who allegedly offered money to anyone who could help him with his pending case. She likewise claimed that she never touched the money on 28 September 2004, rather it was Capt. Maclang who forcibly held her hands and pressed it to the envelope containing the money. She thus asked that the administrative case against her be dismissed. This Court is not persuaded by respondents version. Based on the evidence on record, what happened was a clear case of entrapment, and not instigation as respondent would like to claim. In entrapment, ways and means are resorted to for the purpose of ensnaring and capturing the law-breakers in the execution of their criminal plan. On the other hand, in instigation, the instigator practically induces the would-be defendant into the commission of the offense, and he himself becomes a co-principal.64 In this case, complainant and the law enforcers resorted to entrapment precisely because respondent demanded the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable decision of the latters pending case. Complainants narration of the incidents which led to the entrapment operation are more in accord with the circumstances that actually transpired and are more credible than respondents version. Complainant was able to prove by his testimony in conjunction with the text messages from respondent duly presented before the Committee that the latter asked for One Million Pesos (P1,000,000.00) in exchange for a favorable decision of the formers pending case with the CA. The text messages were properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence65 which provides:

"Ephemeral electronic communication" refers to telephone conversations, text messages . . . and other electronic forms of communication the evidence of which is not recorded or retained." Under Section 2, Rule 11 of the Rules on Electronic Evidence, "Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof . . . ." In this case, complainant who was the recipient of said messages and therefore had personal knowledge thereof testified on their contents and import. Respondent herself admitted that the cellphone number reflected in complainants cellphone from which the messages originated was hers.66 Moreover, any doubt respondent may have had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and attested to the veracity of the text messages between her and complainant.67 It is also well to remember that in administrative cases, technical rules of procedure and evidence are not strictly applied.68 We have no doubt as to the probative value of the text messages as evidence in determining the guilt or lack thereof of respondent in this case. Complainants testimony as to the discussion between him and respondent on the latters demand for One Million Pesos (P1,000,000.00) was corroborated by the testimony of a disinterested witness, Siringan, the reporter of Imbestigador who was present when the parties met in person. Siringan was privy to the parties actual conversation since she accompanied complainant on both meetings held on 24 and 28 of September 2004 at Jollibee. Respondents evidence was comprised by the testimony of her daughter and sister as well as an acquaintance who merely testified on how respondent and complainant first met. Respondents own testimony consisted of bare denials and self-serving claims that she did not remember either the statements she herself made or the contents of the messages she sent. Respondent had a very selective memory made apparent when clarificatory questions were propounded by the Committee. When she was asked if she had sent the text messages contained in complainants cellphone and which reflected her cellphone number, respondent admitted those that were not incriminating but claimed she did not remember those that clearly showed she was transacting with complainant. Thus, during the 17 November 2004 hearing, where respondent was questioned by Justice Salazar-Fernando, the following transpired: Q: After reading those text messages, do you remember having made those text messages? (Respondent) A: Only some of these, your honors.

Justice Salazar-Fernando: Which one? A: Sabi ko po magpunta na lang sila sa office. Yung nasa bandang unahan po, your Honors.

Q:

What else?

A: Tapos yung sabi ko pong pagpunta niya magdala siya ng I.D. or isama niya sa kanya si Len David. Q: Okay, You remember having texted Zaldy Nuez on September 23, 2004 at 1309 which was around 1:09 in the afternoon and you said "di me pwede punta na lang kayo dito sa office Thursday 4:45 p.m. Room 107 Centennial Building. A: Yes, your Honors.

Q: And on September 23, 2004 at 1731 which was around 5:31 in the afternoon you again texted Zaldy Nuez and you said "Sige bukas nang tanghali sa Times Plaza, Taft Avenue, corner U.N. Avenue. Magdala ka ng I.D. para makilala kita o isama mo si Len David. A: Opo, your Honors.

Q: How about on September 23 at 5:05 in the afternoon when you said "Di pwede kelan mo gusto fixed price na iyon." A: I dont remember that, your Honors.

Q: Again on September 23 at 5:14 p.m. you said "Alam mo di ko iyon price and nagbigay noon yung gagawa. Wala ako doon." You dont also remember this? A: Yes, your Honors.

Q: September 27 at 1:42 p.m. "Oo naman ayusin nyo yung hindi halatang pera". You also dont remember that? A: Yes Your Honors.

Q: September 27 at 1:30 in the afternoon, "Di na pwede sabi sa akin. Pinakaiusapan ko na nga ulit iyon." You dont remember that? A: No, your Honors.69

Respondent would like this Court to believe that she never had any intention of committing a crime, that the offer of a million pesos for a favorable decision came from complainant and that it was complainant and the law enforcers who instigated the whole incident. Respondent thus stated that she met with complainant only to tell the latter to stop calling and texting her, not to get the One Million Pesos (P1,000,000.00) as pre-arranged.

This claim of respondent is preposterous to say the least. Had the offer of a million pesos really come from complainant and had she really intended to stop the latter from corrupting her, she could have simply refused to answer the latters messages and calls. This she did not do. She answered those calls and messages though she later claimed she did not remember having sent the same messages to complainant. She could also have reported the matter to the CA Presiding Justice, an action which respondent admitted during the hearing was the proper thing to do under the circumstances.70 But this course of action she did not resort to either, allegedly because she never expected things to end this way.71 While claiming that she was not interested in complainants offer of a million pesos, she met with him not only once but twice, ostensibly, to tell the latter to stop pestering her. If respondent felt that telling complainant to stop pestering her would be more effective if she did it in person, the same would have been accomplished with a single meeting. There was no reason for her to meet with complainant again on 28 September 2004 unless there was really an understanding between them that the One Million Pesos (P1,000,000.00) will be handed over to her then. Respondent even claimed that she became afraid of complainant when she learned that the latter had been dismissed by PAGCOR for using illegal drugs.72 This notwithstanding, she still met with him on 28 September 2004. Anent complainants narration of respondents refusal to reduce the amount of One Million Pesos (P1,000.000.00) based on the lesson learned from a previous transaction, while admitting that she actually said the same, respondent wants this Court to believe that she said it merely to have something to talk about.73 If indeed, respondent had no intention of committing any wrongdoing, it escapes the Court why she had to make up stories merely to test if complainant could make good on his alleged boast that he could come up with a million pesos. It is not in accord with ordinary human experience for an honest government employee to make up stories that would make party-litigants believe that court decisions may be bought and sold. Time and again this Court has declared, thus: "Everyone in the judiciary bears a heavy burden of responsibility for the proper discharge of his duty and it behooves everyone to steer clear of any situations in which the slightest suspicion might be cast on his conduct. Any misbehavior on his part, whether true or only perceived, is likely to reflect adversely on the administration of justice."74 Respondent having worked for the government for twenty four (24) years, nineteen (19) of which have been in the CA,75 should have known very well that court employees are held to the strictest standards of honesty and integrity. Their conduct should at all times be above suspicion. As held by this Court in a number of cases, "The conduct or behavior of all officials of an agency involved in the administration of justice, from the Presiding Judge to the most junior clerk, should be circumscribed with the heavy burden of responsibility."76 Their conduct must, at all times be characterized by among others, strict propriety and decorum in order to earn and maintain the respect of the public for the judiciary.77 Respondents actuations from the time she started communicating with complainant in July 2004 until the entrapment operation on 28 September 2004 show a lack of the moral fiber demanded from court employees. Respondents avowals of innocence notwithstanding, the evidence clearly

show that she solicited the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable decision. The testimony of Atty. Gepty, the recipient of respondents confession immediately after the entrapment operation, unmistakably supports the finding that respondent did voluntarily engage herself in the activity she is being accused of. Respondents solicitation of money from complainant in exchange for a favorable decision violates Canon I of the Code of Conduct for Court Personnel which took effect on 1 June 2004 pursuant to A.M. No. 03-06-13-SC. Sections 1 and 2, Canon I of the Code of Conduct for Court Personnel expressly provide: "SECTION 1. Court personnel shall not use their official position to secure unwarranted benefits, privileges or exemption for themselves or for others." "SECTION 2. Court personnel shall not solicit or accept any gift, favor or benefit based on any explicit or implicit understanding that such gift, favor or benefit shall influence their official actions." (Underscoring supplied) It is noteworthy that the penultimate paragraph of the Code of Conduct for Court Personnel specifically provides: INCORPORATION OF OTHER RULES "SECTION 1. All provisions of the law, Civil Service rules, and issuances of the Supreme Court governing the conduct of public officers and employees applicable to the judiciary are deemed incorporated into this Code." By soliciting the amount of One Million Pesos (P1,000,000.00) from complainant, respondent committed an act of impropriety which immeasurably affects the honor and dignity of the judiciary and the peoples confidence in it. In the recent case of Aspiras vs. Abalos,78 complainant charged respondent, an employee of the Records Section, Office of the Court Administrator (OCA), Supreme Court for allegedly deceiving him into giving her money in the total amount of Fifty Two Thousand Pesos (P52,000.00) in exchange for his acquittal in a murder case on appeal before the Supreme Court. It turned out that respondents representation was false because complainant was subsequently convicted of murder and sentenced to suffer the penalty of reclusion perpetua by the Supreme Court.79 The Supreme Court en banc found Esmeralda Abalos guilty of serious misconduct and ordered her dismissal from the service. This Court aptly held thus: "In Mirano vs. Saavedra,80 this Court emphatically declared that a public servant must exhibit at all times the highest sense of honesty and integrity. The administration of justice is a sacred task, and by the very nature of their duties and responsibilities, all those involved in it must faithfully adhere to, hold inviolate, and invigorate the principle that public office is a public trust, solemnly enshrined in the Constitution."81

Likewise, in the grave misconduct case against Datu Alykhan T. Amilbangsa of the Sharia Circuit Court, Bengo, Tawi-Tawi,82 this Court stated: "No position demands greater moral righteousness and uprightness from the occupant than the judicial office. Those connected with the dispensation of justice bear a heavy burden of responsibility. Court employees in particular, must be individuals of competence, honesty and probity charged as they are with safeguarding the integrity of the court . . . . The High Court has consistently held that persons involved in the administration of justice ought to live up to the strictest standards of honesty and integrity in the public service. He should refrain from financial dealings which would interfere with the efficient performance of his duties.83 The conduct required of court personnel must always be beyond reproach."84 The following pronouncement of this Court in the case of Yrastorza, Sr. vs. Latiza, Court Aide, RTC Branch 14 Cebu City85 is also worth remembering: "Court employees bear the burden of observing exacting standards of ethics and morality. This is the price one pays for the honor of working in the judiciary. Those who are part of the machinery dispensing justice from the lowliest clerk to the presiding judge must conduct themselves with utmost decorum and propriety to maintain the publics faith and respect for the judiciary. Improper behavior exhibits not only a paucity of professionalism at the workplace but also a great disrespect to the court itself. Such demeanor is a failure of circumspection demanded of every public official and employee."86 In view of the facts narrated above and taking into account the applicable laws and jurisprudence, the Committee in their Report87 recommended that respondent be dismissed from government service for GRAVE MISCONDUCT and violation of Sections 1 and 2, Canon 1 of the Code of Conduct for Court Personnel.88 Finding the Committees recommendation to be supported by more than substantial evidence and in accord with the applicable laws and jurisprudence, the recommendation is well taken. WHEREFORE, premises considered, respondent Elvira Cruz-Apao is found GUILTY of GRAVE MISCONDUCT and violation of SECTIONS 1 and 2 of the CODE OF CONDUCT FOR COURT PERSONNEL and is accordingly DISMISSED from government service, with prejudice to re-employment in any branch, instrumentality or agency of the government, including government-owned and controlled corporations. Her retirement and all benefits except accrued leave credits are hereby FORFEITED. SO ORDERED.