SECOND DIVISION

[G.R. Nos. L-48468-69. November 22, 1989.]

ORLANDO PRIMERO, petitioner, vs. HON. COURT OF APPEALS

and HON. SOLICITOR GENERAL, respondents.

Luis R. Reyes for petitioner.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NOT

DESTROYED BY MERE RELATIONS. — With regard to the issue of credibility,
We cannot acquiesce with the argument raised by the petitioner that the
testimonies of the prosecution witnesses, being close relatives, (father and
niece) of the complainant, should not be given weight and should be
considered biased and self-serving. Be it remembered that mere relations
cannot militate against the credibility of a witness. Neither could it distort the
testimony due from such witnesses.
2. ID.; ID.; ID.; TRIAL COURT'S FINDINGS ARE ACCORDED GREAT
RESPECT. — It need not be emphasized that the trial court's finding that the
testimonies of the witnesses were reliable, being supported by evidence of
record, should be given credence. Thus, on matters of credibility the findings
of the trial court are accorded the highest respect (People v. Cabanit, 139
SCRA 94).
3. STATUTORY CONSTRUCTION; EXPRESSIO UNIUS EST EXCLUSIO
ALTERIUS; RULE IS NOT CONCLUSIVE; EXCLUSION MUST HAVE BASIS. — The
maxim expressio unius est exclusio alterius is only an auxiliary rule of
statutory construction. It is not of universal application — neither is it
conclusive. It should be applied only as a means of discovering legislative
intent which is not otherwise manifest and should not be permitted to defeat
the plainly indicated purpose of the legislature (Statutory Construction,
Martin, sixth edition, 1984, pp. 71-72). Where a statute appears on its face
to limit the operation of its provisions to particular persons or things by
enumerating them, but no reason exists why other . . . things not so
enumerated should not have been included, and manifest injustice will follow
by not so including them, the maxim expressio unius est exclusio alterius
should not be invoked (Ibid, p. 79).
4. ID.; ID.; P.D. NO. 9 NO REASON EXISTS WHY BAYONET SHOULD
BE EXCLUDED. — It cannot be convincingly argued that a bayonet is not a
bladed, pointed or blunt weapon, possession of which outside of one's
residence is decreed by P.D. No. 9 to be illegal. True enough, if the carrying
outside one's residence of such weapons as fan knife, "balisong" or club,
which are less deadly than the bayonet, are prohibited under the law, there
is no logical reason why the bayonet should be exempted from the
prohibition.
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 5.REMEDIAL LAW; EVIDENCE; ALIBI; A WEAK DEFENSE WHICH CANNOT
PREVAIL OVER POSITIVE IDENTIFICATION OF THE ACCUSED. — Finally, as
regards the defense of alibi, not only is it a weak defense but also it cannot
prevail over the positive identification of the accused and by credible
prosecution witnesses (People v. Obenque, 147 SCRA 448). Moreover,
defendant failed to prove that it was physically impossible for him to be at
the scene of the incident.

DECISION

PARAS, J : p

Before the then Court of First Instance of Tarlac, Orlando Primero was
charged with the crimes of Acts of Lasciviousness and Illegal Possession of
Deadly Weapon.
The complaint for Acts of Lasciviousness reads:
"That on or about 5:30 P.M., November 12, 1975 in the
municipality of Camiling, Province of Tarlac, the abovenamed accused,
did then and there willfully, unlawfully and feloniously, while armed
with a deadly weapon (bayonet) and by means of force and
intimidation and with lewd designs committed lascivious acts upon the
person of the undersigned complainant at Brgy. Pindangan 2nd,
Camiling Tarlac by then and there embracing, touching and fondling
the breast and private parts of the undersigned against the
complainants' will.

"CONTRARY TO LAW."

"Camiling Tarlac." (Decision, pp. 28-29, Rollo).

While the Provincial Fiscal. filed an Information for Illegal Possession of

Deadly Weapon, to wit:
"That on or about November 12, 1975, at about 5:30 in the
afternoon, at Barangay Pindangan 2nd, in the Municipality of Camiling,
Province of Tarlac, Philippines, and within the jurisdiction of this
Honorable Court, the said Orlando Primero did then and there willfully,
unlawfully and feloniously carry outside of his residence a deadly
weapon, to wit: a bayonet, 19-1/2" long, which was not then being
used as a necessary tool or implement to earn a living or being used in
connection therewith, but was used in the commission of the crime of
Acts of Lasciviousness for which he was charged in Crim. Case No.
1184 of this Honorable Court.

"Contrary to Law.

"Tarlac, Tarlac, February 19, 1976." (p. 29, Rollo).

The aforementioned offenses were jointly tried for having been

committed on the same occasion.
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 The evidence for the prosecution, as found by the respondent appellate
Court is as follows:
"During the time material to this case Angelita Maycong was
about 24 years old, single and a resident of Pindangan II, Camiling,
Tarlac (p. 16, tsn., August 5, 1976).

"On or about November 12, 1975, on their way home from Tarlac
where they joined a parade (p. 30, tsn., August 30, 1976), Angelita
Maycong and one Elena Garcia saw Orlando Primero emerge suddenly
from the talahib along their path, brandishing a bayonet at them (p.
17, tsn., August 5, 1976). Elena, Garcia ran away (p. 6, tsn., August 30,
1976). Angelita Maycong descended on the 'pilapil' to her left side and
also tried to run away (p. 18, tsn, August 5, 1976). Unfortunately,
Angelita stumbled, as a result of which, Orlando grabbed her and
pinned her down on the ground (Ibid), He held her neck with his right
hand and held her breasts with the left hand and kissed her right cheek
(pp. 19, 20, tsn., August 5, 1976). Fighting back, she kicked Orlando
near his organ and struck him with left hand (p. 20, Ibid.; p. 27, tsn.,
August 5, 1976). In the struggle, Angelita was able to get the bayonet
(p. 2, Ibid).

"In the meantime, Elena Garcia shouted for help (p. 20, tsn.,
August 5, 1976). Angelita also shouted for help (p. 20, Ibid).

"Upon seeing the bayonet in the possession of Angelita, Orlando

Primero ran away (p. 23, tsn., August 5, 1976). Not long after, the
father of Angelita Maycong, who was then tending his farm from where
he heard the shouts for help, arrived (Ibid). Having learned of the
attempt made on the honor of her daughter, father and daughter
reported the matter to the Barrio Captain (Ibid). The bayonet was
surrendered to the police force of Camiling, Tarlac." (pp. 3-5, Solicitor's
Brief) (Decision, p. 10, Rollo).

The defendant, in turn, claims that the filing of these two (2) criminal
accusations was motivated by revenge. He testified that he and the
complainant were sweethearts who were engaged to get married. He lived in
the house of the complainant for three (3) months where he was practically
treated by the father of the complainant, Florentino Maycong, as a son-in-
law helping in the farm work and in the daily chores in the house. However,
the planned marriage did not take place because the complainant's family
wanted an ostentations ceremony which he (defendant) could not afford. As
an alternative, defendant suggested to complainant that they elope but the
latter refused. Subsequently, the defendant left the complainant and.
married another woman, a decision which was allegedly resented by the
complainant.
Furthermore, defendant raises the defense of alibi. It is argued that at
the time the incident was allegedly committed, he was in Paniqui, Tarlac
harvesting palay with some other farm laborers. He maintained that he
worked there from 6 o'clock in the morning to past 6 o'clock in the evening
of November 12, 1975. The foregoing testimony of the defendant was
corroborated by Cipriano Sudaria and Teodoro Cayabyab.
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 After trial, the lower court convicted the defendant of the two (2)
offenses charged in the two (2) separate informations and sentenced him as
follows:
"WHEREFORE, finding the accused Orlando Primero guilty
beyond reasonable doubt in Crim. Case No. 1184 of the offense of Acts
of Lasciviousness punishable under Article 336 of the Revised Penal
Code, he is hereby sentenced to a term of TWO (2) YEARS, FOUR (4)
MONTHS, and ONE (1) DAY to FOUR (4) YEARS and TWO (2) MONTHS of
prision correccional, medium period, and in Crim. Case No. 1195 on the
charge of Illegal Possession of a Deadly Weapon, punishable under PD
9, he is further sentenced to a prison term of TEN (10) YEARS which is
the maximum term imposed by the law, with costs.

"The bayonet, Exh. A, is ordered confiscated and once this

decision becomes final, the same shall be forwarded to the 184th PC
Company, Paniqui, Tarlac for disposition according to law." (p. 12,
Rollo).

On appeal, the respondent Court rendered a decision, * the dispositive

portion of which reads: LLpr

"WHEREFORE, affirming the judgment of conviction in both

offenses but modifying the penalty imposed by the lower court, We
hereby sentence the defendant to the following:

"1.As regards to the accusation of acts of lasciviousness the

defendant is hereby sentenced to a penalty of Six (6) Months of Arresto
Mayor to Four (4) Years of Prision Correccional; and
"2.As regards the violation of Presidential Decree No. 9 the
defendant is hereby sentenced to an indeterminate penalty of Five (5)
Years as minimum to Ten (10) Years as maximum. The bayonet, Exhibit
is ordered confiscated in favor of the government." (pp. 15-16, Rollo).

Hence, this petition raising the following issues:

I

The respondent Court erred in giving credence to the testimonies

of the prosecution witnesses.
II

The respondent Court failed to pass upon the contention that

bayonet ii not one of the weapons the carrying of which outside one's
residence is punished under Section 3 of Presidential Decree No. 9.
III

The respondent Court erred in its non-consideration of the

defense of alibi interposed by the defendant.

After a careful perusal of the entire record of this case, We find no

cogent reason to disturb the findings of the respondent Court.
With regard to the issue of credibility, We cannot acquiesce with the
argument raised by the petitioner that the testimonies of the prosecution
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 witnesses, being close relatives, (father and niece) of the complainant,
should not be given weight and should be considered biased and self-
serving. Be it remembered that mere relations cannot militate against the
credibility of a witness. Neither could it distort the testimony due from such
witnesses. In point is the ruling in the case of People v. Libed reported in 14
SCRA 410:
"The fact alone of relationship to the victim does not destroy a
witness' credibility. It is not to be lightly supposed that the relatives of
the deceased would callously violate their conscience . . . by blaming it
on persons whom they know to be innocent thereof."

In this regard, it is relevant to restate herein that the trial court, which
had the opportunity of observing the demeanor and deportment of the
witnesses, found the testimonies of the prosecution witnesses to have the
hallmarks of truth and credibility. Thus, the trial court pertinently observed:
"The Court is inclined to believe the claim of the complainant.
Angelita Maycong, her father Florentino Maycong, and her companion
Elena Garcia, appear to be credible witnesses. They impressed the
Court as being innocent farm folks, and while appearance may be
deceiving, their story is not incredible and was entirely believable.
Being an unmarried woman and in the prime of her maidenhood (she
was 25 years of age when she testified on August 5, 1976), what
reason would Angelita have for unnecessarily exposing herself if indeed
the story of the accused violating her honor was not true. Her story
was corroborated in material aspects by the two other witnesses, her
companion Elena Garcia and her father Florentino Maycong." (Decision,
p. 12 Rollo) LLpr

Accordingly, it need not be emphasized that the trial court's finding

that the testimonies of the witnesses were reliable, being supported by
evidence of record, should be given credence. Thus, on matters of credibility
the findings of the trial court are accorded the highest respect (People v.
Cabanit, 139 SCRA 94; People v. Jones, 137 SCRA 166; People v. Canamo,
138 SCRA 141; People v. Pasco, Jr., 137 SCRA 137; Guita v. CA, 139 SCRA
576).
Anent the second issue, We regret to say that the same is bereft of
merit. It is worth noting that the dispositive portion of the respondent Court's
decision makes mention of violation by the petitioner of P.D. No. 9 for which
he was sentenced to an indeterminate penalty of five (5) years as minimum
to ten (10) years as maximum, and wherein the bayonet was ordered
confiscated in favor of the government. It goes without saying that the Court
of Appeals would not have sustained the trial court's finding of petitioner's
guilt as to the charge of illegal possession of deadly weapon were it not
convinced that a bayonet is a "bladed" pointed or blunt weapon" decreed
unlawful under P.D. No. 9.
It can not be disputed that, ordinarily, the enumeration of specified
matters in a statute is construed as an exclusion of matters not enumerated
unless a different intention appears. However, the maxim expressio unius est
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 exclusio alterius is only an auxiliary rule of statutory construction. It is not of
universal application-neither is it conclusive. It should be applied only as a
means of discovering legislative intent which is not otherwise manifest and
should not be permitted to defeat the plainly indicated purpose of the
legislature (Statutory Construction, Martin, sixth edition, 1984, pp. 71-72).
Where a statute appears on its face to limit the operation of its provisions to
particular persons or things by enumerating them, but no reason exists why
other . . . things not so enumerated should not have been included, and
manifest injustice will follow by not so including them, the maxim expressio
unius est exclusio alterius should not be invoked (Ibid, p. 79). Applying the
same in the instant case, it cannot be convincingly argued that a bayonet is
not a bladed, pointed or blunt weapon, possession of which outside of one's
residence is decreed by P.D. No. 9 to be illegal. True enough, if the carrying
outside one's residence of such weapons as fan knife, "balisong" or club,
which are less deadly than the bayonet, are prohibited under the law, there
is no logical reason why the bayonet should be exempted from the
prohibition.
Finally, as regards the defense of alibi, not only is it a weak defense
but also it cannot prevail over the positive identification of the accused and
by credible prosecution witnesses (People v. Obenque, 147 SCRA 448;
People v. Pacada, Jr., 142 SCRA 427; People v. Canturia, 139 SCRA 280).
Moreover, defendant failed to prove that it was physically impossible for him
to be at the scene of the incident. Cdpr

WHEREFORE, premises considered, the decision appealed from is

AFFIRMED in toto. Costs against petitioner.
SO ORDERED.
Padilla, Sarmiento and Regalado, JJ., concur.
Melencio-Herrera (Chairman), J., is on leave.

Footnotes
*Penned by Justice Vicente G. Ericta concurred in by Justices Conrado M. Vasquez
and Jose B. Jimenez.

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