G.R. No.

146161             July 17, 2006

PEPITO CAPILA Y YRUMA, petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, respondent.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the Petition for Review on Certiorari of the Decision 1 dated November 10, 2000 of the Court of
Appeals in CA-G.R. CR No. 18903, entitled "The People of the Philippines v. Pepito Capila y Yruma."

On August 24, 1993, an Information for robbery was filed with the Regional Trial Court, Branch 148, Makati City,
against Pepito Capila y Yruma, herein petitioner, his brother Bonifacio Capila y Yruma, Deogenio Caparoso y
Porfero, and Dimas dela Cruz y Lorena.

The Information, docketed as Criminal Case No. 93-7117, is quoted as follows:

That on or about the 9th day of August 1993, in the Municipality of Makati, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together with alias Jose and alias Gil, whose true identities and present whereabouts are still unknown and
all of them mutually helping and aiding one another, with intent to gain and by means of force, violence and
intimidation, did then and there willfully, unlawfully and feloniously take, steal and carry away cash money
amounting to P1.3 million and three (3) caliber paltik firearms in the total amount of P18,000.00, belonging to
Pilipinas Bank represented by Juan Iglesia y Orgil and Lanting Security Agency represented by Edgar
Lucero y Iribayen, respectively, to the damage and prejudice of the complainants in the aforementioned
amount of P1.3 million and P18,000.00, respectively.

Upon being arraigned, all the accused, assisted by counsel, pleaded not guilty. Trial commenced thereafter.

The evidence for the prosecution, as culled from the testimonies of Edgardo Irigayen, Ariel Arellano, SPO2
Dioscorro Asinas, Jr., and SPO4 Romualdo Maximo, is summarized as follows:2

Petitioner Pepito Capila was a security guard of the Lanting Security and Watchman Agency assigned in the
Meralco Collection Office on J.P. Rizal Street, Makati City.

On May 9, 1992, Ariel Arellano and Lani Imperio, both employees of the Pilipinas Bank, Libertad Branch in Pasay
City, went to the Meralco Collection Office to receive and deposit cash collections from Meralco's 27 collectors. The
total collection for that day amounted to P1,292,991.12. They then placed the money inside a duffle bag table and
had it padlocked. Then they waited for the Pilipinas Bank's armored car to arrive. The security guard posted at the
Meralco Collection Office at the time was Dimas dela Cruz, also from the Lanting Security and Watchman Agency.

Before the armored car could arrive, two armed men suddenly entered the Meralco Collection Office. They hit Dimas
on the nape with a handgun. Then they ordered Ariel and Lani to lie on the floor face down and immediately took the
duffle bag containing Meralco's cash collections. They also seized three .38 caliber revolvers, valued at P6,000.00
each, owned by the Lanting Security and Watchman Agency, including the service handgun issued to Dimas.

After the malefactors fled, Dimas told Ariel that petitioner was one of those who robbed the office. Then Dimas
called the Makati Police Sub-Station 9, the Meralco Security Division, and the Lanting Security and Watchman
Agency to report the incident. The Makati Police dispatched SPO4 Romualdo Maximo to investigate the robbery,
while the Lanting Security and Watchman Agency instructed its intelligence officer, Edgardo Irigayen, to talk to the
guard on duty.

SPO4 Maximo, accompanied by a police photographer, a fingerprint technician, and another policeman, arrived
within ten minutes at the Meralco Collection Office. He questioned Ariel and Lani, but they could not identify the
robbers as they were lying face down on the floor. Upon inquiry by SPO4 Maximo, Dimas told him that one of the
robbers is petitioner, also a security guard of the Lanting Security and Watchman Agency assigned in the Meralco
Collection Office. Thereafter, SPO4 Maximo invited Dimas, Lani and Ariel to the police station for the purpose of
taking their sworn statements.

Irigayen, the intelligence officer of the Lanting Security and Watchman Agency, also questioned Dimas. The latter
reported that Pepito Capila is one of the robbers.

After the incident, petitioner fled to his hometown in Palapag, Northern Samar. The Lanting Security and Watchman
Agency then requested SPO4 Maximo and his team to go to Northern Samar to apprehend Capila.
In Northern Samar, the police operatives, with the assistance of the Citizens Armed Forces Geographical Unit,
arrested petitioner, his brother Bonifacio Capila, and Deogenio Caparoso. The police found P5,000.00 in possession
of petitioner allegedly part of the loot. All the suspects were arrested without warrants.

SPO4 Maximo interrogated petitioner who admitted that he participated in the commission of the crime; that his
share of the loot is P45,000.00; and that Dimas is the mastermind.

After the prosecution had rested its case, all the accused, through counsel, filed a Demurrer to Evidence but it was
denied by the trial court.

When the case was called for the continuation of the hearing on November 15, 1994, the accused waived their right
to present their evidence, opting to submit their respective memoranda instead.

On January 3, 1995, the trial court rendered its Decision acquitting all the accused, except petitioner, thus:

WHEREFORE, premises considered:

1. And finding that the prosecution failed to prove the guilt of accused Bonifacio Capila, Deogenes
Caparoso, and Dimas dela Cruz beyond reasonable doubt, they are hereby acquitted.

2. And finding Pepito Capila guilty beyond reasonable doubt of the crime of Robbery defined under Article
293 and penalized under Article 294 par. 5 of the Revised Penal Code, with the presence of the aggravating
circumstance of abuse of confidence, use of a firearm, and betrayal of trust, he is hereby sentenced to an
indeterminate prision term of from EIGHT (8) years as minimum to TEN (10) years as maximum.

Pepito Capila is also ordered to pay:

1. Lanting Security Agency the sum of P18,000 for the value of the three firearms not recovered and
belonging to said agency;

2. The sum of P1,292,991.12 to Pilipinas Bank, the amount taken and not recovered.

With costs against accused Pepito Capila.

In his appeal to the Court of Appeals, petitioner alleged that the trial court erred in admitting in evidence the
statement of Dimas that he (petitioner) is one of the robbers. He was denied due process because he was not able
to cross-examine Dimas as the latter did not testify.

On November 10, 2000, the Court of Appeals promulgated its Decision affirming the assailed judgment of the trial
court, thus:

WHEREFORE, premises considered, the appealed decision (dated January 3, 1995) of the Regional Trial
Court (Branch 148) in Makati, Metro Manila in Criminal Case No. 93-7217 is hereby AFFIRMED with costs
against the accused-appellant.

SO ORDERED.

Hence, the instant petition for Review on Certiorari.

The fundamental issue for our resolution is whether the prosecution was able to prove the guilt of herein petitioner
beyond reasonable doubt.

A careful scrutiny of the records shows that the prosecution relied heavily on the testimony of SPO4 Maximo that
immediately after the incident, Dimas reported to him that one of the robbers is petitioner. The Court of Appeals, in
affirming the court a quo's judgment convicting petitioner, ruled that Dimas' statement is part of the res gestae.

In the appellee's brief, the Solicitor General reiterated the appellate court's ruling.

Res gestae is a Latin phrase which literally means "things done." As an exception to the hearsay rule, it refers to
those exclamations and statements by either the participants, victims, or spectators to a crime immediately before,
during or immediately after the commission of the crime, when the circumstances are such that the statements were
made as spontaneous reactions or utterances inspired by the excitement of the occasion, and there was no
opportunity for the declarant to deliberate and fabricate a false statement. 3 The reason for the rule is human
experience. It has been shown that under certain external circumstances of physical or mental shock, the state of
nervous excitement which occurs in a spectator may produce a spontaneous and sincere response to the actual
sensations and perceptions produced by the external shock. As the statements or utterances are made under the
immediate and uncontrolled domination of the senses, rather than reason and reflection, such statements or
utterances may be taken as expressing the real belief of the speaker as to the facts he just observed. The
spontaneity of the declaration is such that the declaration itself may be regarded as the event speaking through the
declarant rather than the declarant speaking for himself.4

The rule on res gestae is provided under Section 42, Rule 130 of the Revised Rules of Court, thus:

SEC. 42. Part of the res gestae. – Statements made by a person while a startling occurrence is taking place
or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in
evidence as part of the res gestae. So, also statements accompanying an equivocal act material to the
issue, and giving it a legal significance, may be received as part of the res gestae.

For the admission of the res gestae in evidence, the following requisites must be met: (1) that the principal act or
the res gestae be a startling occurrence; (2) the statement is spontaneous or was made before the declarant had
time to contrive or devise, and the statement is made during the occurrence or immediately or subsequent thereto;
and (3) the statement made must concern the occurrence in question and its immediately attending circumstances.5

The Court of Appeals found that all the above requisites are present, thus:

First. The principal act is a startling occurrence which is the robbery in question.

Second. Dimas Dela Cruz informed the investigating officers that it was appellant who robbed the Meralco
office immediately after the incident occurred and before he had the time to contrive a story.

The robbery happened at around eight o'clock in the evening of August 9, 1993 (p. 4, TSN, February 24,
1994). Immediately after the incident, dela Cruz called up the police station (p. 17, TSN, January 31, 1994).
In ten minutes, SPO4 Maximo and his companion were in the Meralco office where they immediately
conducted an investigation (pp. 3-9, TSN, February 24, 1994). During this investigation, DELA Cruz pointed
to appellant as one of the perpetrators of the crime.

Further, immediately after the robbers fled, dela Cruz informed Ariel Arellano (the bank representative
detailed at the Meralco office) that appellant was one of those who robbed the office (pp. 15-17, TSN,
January 31, 1994).

In other words, statement of dela Cruz was spontaneous as correctly observed by the trial court.

Third. The statement of dela Cruz refers to the robbery or incident subject matter of this case.

We are in accord with the Court of Appeals in its conclusion that all the requisites of the rule on Res gestae are
present. The principal act, which by any measure is undoubtedly a startling occurrence, is the robbery of which
petitioner is being charged. Immediately after the robbery, Dimas dela Cruz, the security guard then on duty,
informed Ariel that one of the perpetrators is herein petitioner. Dimas likewise reported at once the incident to the
police and to the security agency. When questioned by SPO4 Maximo, Dimas, who was still shocked, named
petitioner herein as one of the robbers. His statements to Ariel and SPO4 Maximo were made before he had the
time and opportunity to concoct and contrive a false story. We note that Dimas personally knows petitioner
considering that both worked in the same security agency and assigned in the same office.

Petitioner contends that since Dimas dela Cruz did not take the witness stand, he (petitioner) was deprived of his
right to cross-examine him. Thus, the Court of Appeals should not have considered Dimas' statement as part of
the Res gestae. Our ruling in Ilocos Norte Electric Company v. Court of Appeals 6 is relevant.

In this case, it appears that in the evening of June 28 until the early morning of June 29, 1967, a strong typhoon
(Gening) occurred in Ilocos Norte, bringing heavy rains and consequent flooding. While one Isabel Lao Juan was
wading in waist-deep flood along Guerrero Street, Laoag City, suddenly she screamed, "Ay" and quickly sank into
the water. Her two companions, Aida Bulong and Linda Estavillo, shouted for help. Ernesto dela Cruz arrived and
tried to approach Isabel who was electrocuted. But at four meters away from her, Ernesto turned back shouting, "the
water is grounded." This Court ruled that the Court of Appeals properly applied the principle of Res gestae. The
testimonies of Aida and Linda that Ernesto dela Cruz tried to approach the victim, but he turned back and shouted,
"the water is grounded," are not hearsay although he (Ernesto) was not presented as a witness. His declaration is
part of the Res gestae.

Applying the above ruling on the instant case, we cannot consider the testimony of SPO4 Maximo as hearsay since
the statement of Dimas that petitioner is one of the robbers is part of the Res gestae.

Moreover, despite the damaging testimonies of the witnesses for the prosecution, petitioner did not testify to rebut
them. Such posture is admission in silence.

Section 32, Rule 130 of the New Rules on Evidence provides:

 Sec. 32. Admission by silence. – An act or declaration made in the presence and within the hearing or
observation of a party who does or says nothing when the act or declaration is such as naturally to call for
action or comment if not true, and when proper and possible for him to do so, may be given in evidence
against him.

Another factor that militates against petitioner's innocence is his flight to Samar after the commission of the crime.
Obviously, such flight is an indication of guilt.

Verily, we hold that the prosecution, by its evidence, has established the guilt of petitioner beyond reasonable doubt.

WHEREFORE, we DENY the petition. The assailed Decision of the Court of Appeals in CA-G.R. CR No. 18903
finding petitioner PEPITO CAPILA y YRUMA guilty beyond reasonable doubt of the crime of robbery is AFFIRMED.

With costs de oficio.

G.R. No. 74740 August 28, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DANILO SANCHEZ, accused-appellant.

The Solicitor General for plaintiff-appellee.

Aniceto L. Madronio, Sr. for accused-appellant.

DAVIDE, JR, J.:

Appellant, with Juanito Zamora, was charged with the crime of arson in Criminal Case No. D-5402 before Branch
XLIV (Dagupan City) of the Regional Trial Court, First Judicial Region, in an Information the accusatory portion of
which reads:

xxx xxx xxx

That on or about November 22, 1982, in the evening, in the barangay of Longos, municipality of
Calasiao, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused Danilo Sanchez and Juanito Zamora aiding one another and conspiring with
two others whose identities are not yet known, did, then and there, willfully, unlawfully and
feloniously (sic) set fire to the residential house of Spouses Elpidio Nepuscua and Julieta Nepuscua
worth P50,000.00 known to be occupied at the time.

Contrary to Article 321 of the Revised Penal Code.  1

Only accused Danilo Sanchez could be served with the warrant of arrest. According to the return indorsement dated
23 June 1983, his co-accused, Juanito Zamora, "could not be located in his indicated address."  2

Accused entered a plea of not guilty at his arraignment. Trial then proceeded against him with the prosecution
presenting as its witnesses Demetrio Matabang, Pedro Parayno, Julieta Nepuscua and Cesar Nepuscua. The lone
eyewitness, Mr. Elpidio Nepuscua, could no longer be presented because he died on 13 December 1982.   He, 3

however, signed a statement on 24 November 1982 before an investigator of the Integrated National Police of
Aguilar, Pangasinan wherein he implicated the accused as the person who burned the house.   Upon the other
4

hand, after the trial court denied   a Demurrer to Evidence,   the defense presented as its witness the accused,
5 6

Benedicto Mola and Herminigildo Mamaradeo.

On 20 March 1986, the trial court promulgated its decision   finding the accused guilty of the crime of Arson as
7

defined under Presidential Decree No. 1613 and sentencing him to suffer the penalty of "reclusion perpetua (life
imprisonment)" and to pay Julieta Nepuscua the sum of P50,000.00 representing the value of the house. The
dispositive portion of the decision reads:

WHEREFORE, the Court finds accused Danilo Sanchez guilty beyond reasonable doubt of the crime
of Arson as defined by Presidential Decree Number 1613 and considering the presence of the
special aggravating circumstance that the offender is motivated by spite or hatred towards the owner
or occupant of the property burned and the generic aggravating circumstance of nighttime, without
any mitigating circumstance to offset the same, pursuant to Section 3(2) of Presidential Decree
Number 1613, hereby sentences accused Danilo Sanchez to serve and suffer the penalty
of Reclusion Perpetua (Life Imprisonment), to pay Julieta Nepuscua the sum of P50,000.00
representing the value of the house that was burned, and to pay the costs.
 SO ORDERED. 8

Undaunted by his defeat and insisting on his innocence, accused immediately appealed the decision to the then Intermediate Appellate Court (now Court of
Appeals). 9 The records of the case were thus referred, although erroneously, to the Intermediate Appellate Court on 12 May 1986.  10 The latter forwarded the
same to this Court on 5 July 1986. 11

In the Appellant's Brief,   accused imputes upon the trial court the commission of the following errors:
12

1. . . . in not considering the statement of Elpedio (sic) Nepuscua as hearsay evidence.

2. . . . in convicting the accused-appellant by considering the information made by Elpedio (sic)

Nepuscua to his wife Julieta Nepuscua and his son Cesar Nepuscua as part of the res gestae.

3. . . . in not giving credence to the defense of alibi interposed by the accused.

4. . . . in convicting the accused under the provisions of Presidential Decree No. 1613 considering
that the accused was charged under the provisions of Art. 321 of the Revised Penal Code.  13

The facts are not disputed.

Prior to 22 November 1982, the spouses Elpidio and Julieta Nepuscua were residents of Longos, Calasiao,
Pangasinan. They lived in a house valued at P50,000.00. On 21 November 1982, Julieta, her children and three (3)
grandchildren were evacuated by her husband to the house of his sister, Filomena Nepuscua, allegedly because the
accused and Juanito Zamora were angry with her (Julieta's) husband who reported them to the police authorities for
having cut, on 20 November 1982, the bamboo trees on a lot mortgaged to them (Nepuscuas) by Maria Billota,
mother of Juanito Zamora. At midnight of 22 November 1982, while in the house of Filomena, Julieta was awakened
first by a burst of gunfire and then by the barking of dogs from the direction of their house, which was about 150
meters from Filomena's house.   She rushed to the window and saw their house on fire. She woke up their
14

children.  15

Elpidio and Juanita's only son, Cesar, who had arrived from Manila in the evening that same day and who was also
sleeping in the house of Filomena, witnessed the fire after being roused from sleep. He wanted to go to their burning
house but his mother prevented him from leaving as he could be harmed by those responsible for the fire. The
conflagration lasted for one and one-half (1 1/2) hours. Earlier that evening, he was in their house but he left at
about 11:30 o'clock for Filomena's house to spend the night there. At 3:00 o'clock in the early morning of 23
November 1982, Cesar left for Manila to report for work and to consult with his uncle, Atty. Cirilo Nepuscua, about
the burning of the house.  16

According to Julieta, at 4:00 o'clock in the morning of 23 November 1982, her husband arrived at the house of
Filomena and related to her that "on that evening of November 22, 1982, there were four (4) persons who went near
our house and they were carrying with them rice stalks or hay and then one of them called out, saying "Tatay, tatay,
bangon kayo ta ansakit so eges nen nanay, iyacar tayo ed hospital", which means, "Father, father wake up because
my mother is suffering from stomach (sic) ache and we will rush her to the hospital." He further told her that on that
same evening, Danilo Sanchez went up to the balcony of their house carrying with him one (1) bundle of rice hay
which he then set on fire thus causing the burning of their house.  17

However, Cpl. Demetrio Matabang of the Integrated National Police of Aguilar, Pangasinan, testified that although
Elpidio reported the burning of their house to the police authorities of Calasiao, Pangasinan on 23 November 1982,
the latter did not mention the name of any suspect.  18

Later, Elpidio reported the incident to the 152nd P.C. Company Headquarters at Lingayen, Pangasinan; on 24
November 1982, both his and Julieta's sworn statements   were taken by Cpl. Matabang in the presence of TSG
19

Pedro Parayno of the said 152nd P.C. Company.

In his sworn statement, Elpidio narrated the burning incident. He categorically admitted therein that he reported the
incident to the Calasiao Police Station, but he did not mention the names of the culprits for fear that he and his
family would be placed in danger once the culprits discovered that they had been identified as suspects. Thus:

23. Q Did you ever made (sic) a report to the Police Station of Calasiao, Pangasinan,
that your house was set fired (sic) by those subject persons named-above (sic)?

A Yes sir, I reported the same on the following morning, November 23, 1982, but I
did not made (sic) mentioned of (sic) any names, knowing that my life and the life of
my family is (sic) in danger once those persons involved will come to know that I
suspected them in (sic) doing the same and besides my plan is (sic) to report this to
this PC Headquarters.  20
 At the time the four (4) persons (allegedly, the accused, Juanito Zamora and two other unidentified persons)
arrived at the house, Elpidio was actually under the same and thus he was able to recognize the accused
and Zamora because of the illumination caused by the burning rice hay.   He also declared that:
21

22. Q When your house was already on fire and that those suspects have (sic)
already left, what did you do, any?

A I already run (sic) to the house of my sister where my family were (sic) and told
them that it was Danilo Sanchez, Juanito Zamora and two (2) unidentified others who
burned our house.

Matabang and Parayno then indorsed the case to the Office of the Provincial Fiscal.

On 18 December 1982, Elpidio Nepuscua died.  22

It was only on 8 February 1983 that the Office of the Provincial Fiscal prepared the Information for Arson against the
accused and Juanito Zamora. It was actually filed in court on 28 February 1983.  23

There can, therefore, be no question that the only eyewitness to the burning of the house was Elpidio Nepuscua.
Unfortunately, he died even before the Information was prepared and filed. Thus, he could no longer testify during
trial.

The core issue then is whether or not the prosecution was able to prove the guilt of the accused beyond reasonable
doubt to overcome the presumption of innocence which the Constitution guarantees every person accused of a
crime.

A careful scrutiny of the records discloses that the prosecution relied solely on the sworn statement of Elpidio
Nepuscua wherein he named the accused, Juanito Zamora, and two others whom he failed to identify, as the
parties who set his house on fire, and the testimony of his wife Julieta Nepuscua to the effect that on 21 November
1982, she, her children and three (3) grandchildren were evacuated by Elpidio to the house of her sister-in-law,
Filomena Nepuscua, because herein accused and Juanito Zamora were angry with Elpidio because the latter
reported them for having cut on 20 November 1982 the bamboo trees that were mortgaged to them (Nepuscuas) by
Maria Billota, Juanito's mother. Julieta also declared that at 4:00 o'clock in the morning of 23 November 1982 — four
(4) hours after the burning of the
house — Elpidio told her that in the evening of 22 November 1982, four (4) persons carrying rice stalks went near
their house; one of them uttered "father, father wake up because my mother is suffering from stomach (sic) ache
and we will rush her to the hospital"; thereafter, Danilo Sanchez went up to the balcony of their house carrying a
bundle of rice stalks and set the same on fire. The court admitted in evidence Elpidio's sworn statement and
considered Elpidio's declaration to Julieta as part of res gestae.

In the light of the above facts, the first assigned error must be resolved in favor of the accused.

Unless the affiants themselves are placed on the witness stand to testify thereon,   affidavits must be rejected, in
24

judicial proceedings; the same would be inadmissible in evidence as hearsay. The reason for this is that an accused
has the Constitutional right "to meet the witnesses face to face"   or to confront the witnesses against him.   To
25 26

safeguard this right, Section 1, Rule 132 of the Rules of Court provides that the examination of witnesses presented
in a trial or hearing shall be done in open court, and under oath or affirmation. The most that the trial court could
have done was to admit the sworn statement of Elpidio Nepuscua merely as part of the testimony of the peace
officer who conducted the investigation; assignment of any probative value to it could not be done without violating
the hearsay rule and infringing upon the above-stated right of the accused.

The second assigned error must likewise be resolved in favor of the accused. The so-called statement uttered by
Elpidio Nepuscua to his wife Julieta at about 4:00 o'clock in the morning of 23 November 1982, or four (4) hours
after the burning, implicating accused, should not have been admitted as part of the res gestae.

Section 42 of Rule 130 provides:

Statements made by a person while a startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of
the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving
it a legal significance, may be received as part of the res gestae.

Res gestae means the "things done".   It "refers to those exclamations and statements made by either the
27

participants, victims, or spectators to a crime immediately before, during, or immediately after the commission of the
crime, when the circumstances are such that the statements were made as spontaneous reaction or utterance
inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to
fabricate a false statement."   A spontaneous exclamation is defined as "a statement or exclamation made
28

immediately after some exciting occasion by a participant or spectator and asserting the circumstances of that
occasion as it is observed by him. The admissibility of such exclamation is based on our experience that, under
certain external circumstances of physical or mental shock, a stress of nervous excitement may be produced in a
spectator which stills the reflective faculties and removes their control, so that the utterance which then occurs is a
spontaneous and sincere response to the actual sensations and perceptions already produced by the external
shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, rather than
reason and reflection, and during the brief period when consideration of self-interest could not have been fully
brought to bear,' the utterance may be taken as expressing the real belief of the speaker as to the facts just
observed by him."   In a manner of speaking, the spontaneity of the declaration is such that the declaration itself
29

may be regarded as the event speaking through the declarant rather than the declarant speaking for himself.   Or, 30

stated differently, ". . . the events speak for themselves, giving out their fullest meaning through the unprompted
language of the participants. The spontaneous character of the language is assumed to preclude the probability of
its premeditation or fabrication. Its utterance on the spur of the moment is regarded, with a good deal of reason, as
a guarantee of its truth." 
31

There are, therefore, three (3) requisites for the admission of evidence as constituting part of the res gestae: (1) that
the principal act, the res gestae, be a startling occurrence; (2) the statements were made before the declarant had
time to contrive or devise; and (3) that the statements must concern the occurrence in question and its immediately
attending circumstances.  32

In People vs. Ner,   this Court, speaking through Chief Justice Concepcion, held:
33

. . . All that is required for the admissibility of a given statement as part of the res gestae, is that it be
made under the influence of a startling event witnessed by the person who made the
declaration   before he had time to think and make up a story,   or to concoct or contrive a
34 35

falsehood,   or to fabricate an account,   and without any undue influence in obtaining it,   aside
36 37 38

from referring to the event in question or its immediate attending circumstances.  39

The cases are not uniform as to the interval of time that should separate the occurrence of the startling event and
the making of the declaration. What is important is that the declarations were voluntarily and spontaneously made
"so nearly contemporaneous as to be in the presence of the transaction which they illustrate and explain, and were
made under such circumstances as necessarily to exclude the idea of design or deliberation . . ."  40

In the light of the foregoing principle on res gestae and the settled jurisprudence thereon, We find the questioned
statement of Elpidio Nepuscua to his wife to be lacking in spontaneity and to have been given after he had the
luxury of time to concoct a story or fabricate an account. If indeed he was at his house at the time the accused and
the latter's alleged companions came, and the burning took place at midnight, considering that the house of
Filomena where his wife and children were sleeping was only 150 meters away, and there being no evidence at all
that he was prevented through threats and intimidation by the accused and his companions or that he was struck by
fear which immobilized him from immediately leaving the scene of the fire, no plausible reason may be summoned
to justify or explain his nearly four-hour delay in reporting the incident to his wife and other members of his family.
He could easily negotiate that distance in less than five (5) minutes. Doubtless, the burning of their house was no
ordinary event; such a dastardly occurrence caused an irreparable loss of property and rendered them homeless.
The shock and excitement it naturally produced was more than enough to propel his feet to bring him to his family
as soon as possible. It behooved Elpidio to relay the tragic event to those dear to him without any delay; thus, his
conduct cannot be reconciled with human experience, ordinary habits of men and common sense. It could,
however, be easily reconciled if he were, in fact, with his family in the house of Filomena during the fire. If he
evacuated his family to the house of Filomena on 21 November 1982 because he was afraid of the accused and
Juanito Zamora, there was no reason at all for him to risk his life and limb by staying alone in their house. That he
was not in the house at the time of the burning seems to be supported by the conduct of the members of his family.
As testified to by Julieta and her son Cesar, they just looked out the window of Filomena's house while their own
house was burning. They never mentioned that they expressed fears as to Elpidio's fate, if in fact the latter was left
in the house. All that Julieta could do was to prevent Cesar from returning to their burning house for fear that the
persons who set it on fire would harm him. Cesar then left for Manila at 3:00 o'clock early the next morning, 23
November 1982, barely three (3) hours after the fire. He did not proceed to their house to find out what had
happened to his father. By that time, worry over Elpidio's fate did not seize or overcome both Julieta and Cesar. If
indeed Elpidio was in their house before the fire and he left the scene only four (4) hours later, the conduct of his
wife and son seemed too unnatural.

Another badge of untrustworthiness attributable to the alleged statement given by Elpidio to his wife is his deliberate
suppression of the names of the "suspects" when he reported the incident to the police authorities of Calasiao,
Pangasinan in the morning of 23 November 1982. The reasons given therefor are palpably untenable. In the first
place, there is no evidence that the accused and his companions had a reputation for being violent; if they were
known for their violence and Elpidio was so afraid of revealing their names, then he would have kept their
identities in pectoris. This he failed to do during the investigation at the P.C. Headquarters the following day despite
the absence of any assurance of protection.

After everything is said and done, it is clear to Us that serious doubts surround the questioned statement of Elpidio
to his wife, especially when viewed in the light of the probability of concoction — he had every reason to get even
with the accused and Juanito Zamora.
Accused then deserves an acquittal on the ground of reasonable doubt. This conclusion renders unnecessary
further disquisitions on the remaining assigned errors. It may however be pointed out that, as to the fourth assigned
error, the Fiscal who conducted the preliminary investigation and filed the Information, 3rd Assistant Provincial
Fiscal Pedro T. Fernandez, charged the accused and Juanito Zamora with the crime of Arson as defined and
penalized under Article 321 (Other forms of Arson) of the Revised Penal Code. He must have been unaware of P.D.
No. 1613, entitled Amending the law on Arson, which was promulgated on 11 November 1980, or more than two (2)
years earlier, repealing clause of which provides:

Sec. 9. Repealing clause. — The provisions of Articles 320 to 326-B of the Revised Penal Code and
all laws, executive orders, rules and regulations, or parts thereof, inconsistent with the provisions of
this Decree are hereby repealed or amended accordingly.

The proper charge should have been for a violation of P.D. No. 1613. However, the crimes defined and
punished in Article 321 are also included in said decree although, inter alia, the latter imposes varying
penalties depending on the nature, character or use of the property burned, and provides for the effects of
special aggravating circumstances. The allegations in the information sufficiently charge an offense defined
and penalized in P.D. No. 1613. Hence, having voluntarily pleaded thereto without any question, the
accused could be convicted for the violation of P.D. 1613. The inaccuracy or error committed by the Fiscal
was not a fatal defect. We take this opportunity, however, to advise Prosecutors to exercise utmost care in
the preparation of Informations to the end that no injustice would be done to the accused and no prejudice
would befall the State whose interest they are bound to protect.

WHEREFORE, the decision appealed from in Criminal Case No. D-5402 of Branch XLIV of the Regional Trial Court
of Dagupan City is REVERSED and the accused-appellant is hereby ACQUITTED of the crime charged with
costs de officio.

G.R. No. 172031               July 14, 2008

JUANITO TALIDANO, Respondents.
vs.
FALCON MARITIME & ALLIED SERVICES, INC., SPECIAL EIGHTH DIVISION OF THE COURT OF APPEALS,
AND LABOR ARBITER ERMITA C. CUYUGA, Petitioner,

DECISION

TINGA, J.:

This Petition for Certiorari1 under Rule 65 of the Rules of Court seeks to annul the Decision 2 and Resolution3 of the
Court of Appeals, dated 16 November 2005 and 2 February 2006, respectively, which upheld the validity of the
dismissal of Juanito Talidano (petitioner). The challenged decision reversed and set aside the Decision4 of the
National Labor Relations Commission (NLRC) and reinstated that of the Labor Arbiter.5

Petitioner was employed as a second marine officer by Falcon Maritime and Allied Services, Inc. (private
respondent) and was assigned to M/V Phoenix Seven, a vessel owned and operated by Hansu Corporation (Hansu)
which is based in Korea. His one (1)-year contract of employment commenced on 15 October 1996 and stipulated
the monthly wage at $900.00 with a fixed overtime pay of $270.00 and leave pay of $75.00.6

Petitioner claimed that his chief officer, a Korean, always discriminated against and maltreated the vessel’s Filipino
crew. This prompted him to send a letter-complaint to the officer-in-charge of the International Transport Federation
(ITF) in London, a measure that allegedly was resented by the chief officer. Consequently, petitioner was dismissed
on 21 January 1997. He filed a complaint for illegal dismissal on 27 October 1999.7

Private respondent countered that petitioner had voluntarily disembarked the vessel after having been warned
several times of dismissal from service for his incompetence, insubordination, disrespect and insulting attitude
toward his superiors. It cited an incident involving petitioner’s incompetence wherein the vessel invaded a different
route at the Osaka Port in Japan due to the absence of petitioner who was then supposed to be on watch duty. As
proof, it presented a copy of a fax message, sent to it on the date of incident, reporting the vessel’s deviation from
its course due to petitioner’s neglect of duty at the bridge, 8 as well as a copy of the report of crew discharge issued
by the master of M/V Phoenix Seven two days after the incident.9

Private respondent stated that since petitioner lodged the complaint before the Labor Arbiter two (2) years and nine
(9) months after his repatriation, prescription had already set in by virtue of Revised POEA Memorandum Circular
No. 55, series of 1996 which provides for a one-year prescriptive period for the institution of seafarers’ claims arising
from employment contract.10

On 5 November 2001, the Labor Arbiter rendered judgment dismissing petitioner’s complaint, holding that he was
validly dismissed for gross neglect of duties. The Labor Arbiter relied on the fax messages presented by private
respondent to prove petitioner’s neglect of his duties, thus:
x x x The fax message said that the Master of M/V Phoenix Seven received an emergency warning call from Japan
Sisan Sebo Naika Radio Authority calling attention to the Master of the vessel M/V Phoenix Seven that his vessel is
invading other route [sic]. When the Master checked the Bridge, he found out that the Second Officer (complainant)
did not carry out his duty wathch. There was a confrontation between the Master and the Complainant but the latter
insisted that he was right. The argument of the Complainant asserting that he was right cannot be sustained by this
Arbitration Branch. The fact that there was an emergency call from the Japanese port authority that M/V Phoenix
Seven was invading other route simply means that Complainant neglected his duty. The fax message stating that
Complainant was not at the bridge at the time of the emergency call was likewise not denied nor refuted by the
Complainant. Under our jurisprudence, any material allegation and/or document which is not denied specifically is
deemed admitted. If not of the timely call [sic] from the port authority that M/V Phoenix Seven invaded other route,
the safety of the vessel, her crew and cargo may be endangered. She could have collided with other vessels
because of complainant’s failure to render watch duty.11

On appeal, the NLRC reversed the ruling of the Labor Arbiter and declared the dismissal as illegal. The dispositive
portion of the NLRC’s decision reads:

WHEREFORE, premises considered, the decision appealed from is hereby reversed and set aside and a new one
entered declaring the dismissal of the complainant as illegal. Respondents Falcon Maritime & Allied Services, Inc.
and Hansu Corporation are hereby ordered to jointly and severally pay complainant the amount equivalent to his
three (3) months salary as a result thereof.12

The NLRC held that the fax messages in support of the alleged misbehavior and neglect of duty by petitioner have
no probative value and are self-serving. It added that the ship’s logbook should have been submitted in evidence as
it is the repository of all the activities on board the vessel, especially those affecting the performance or attitude of
the officers and crew members, and, more importantly, the procedures preparatory to the discharge of a crew
member. The NLRC also noted that private respondent failed to comply with due process in terminating petitioner’s
employment.13

Private respondent moved for reconsideration, 14 claiming that the complaint was filed beyond the one-year
prescriptive period. The NLRC, however, denied reconsideration in a Resolution dated 30 August 2002. 15 Rejecting
the argument that the complaint had already prescribed, it ruled:

Records show that respondent in this case had filed a motion to dismiss on the ground of prescription before the
Labor Arbiter a quo who denied the same in an Order dated August 1, 2000. Such an Order being unappealable,
the said issue of prescription cannot be raised anew specially in a motion for reconsideration. (Citations omitted)16

It appears that respondent received a copy of the NLRC Resolution 17 on 24 September 2002 and that said resolution
became final and executory on 7 October 2002.18

Private respondent brought the case to the Court of Appeals via a Petition for Certiorari19 on 8 October 2002. The
petition, docketed as CA-G.R. Sp. No. 73521, was dismissed on technicality in a Resolution dated 29 October 2002.
The pertinent portion of the resolution reads:

(1) [T]he VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING was signed by one Florida
Z. Jose, President of petitioner Falcon Maritime and Allied Services, Inc., without proof that she is the duly
authorized representative of petitioner-corporation;

(2) [T]here is no affidavit of service of the petition to the National Labor Relations Commission and to the
adverse party;

(3) [T]here is no explanation to justify service by mail in lieu of the required personal service. (Citations
omitted)20

An entry of judgment was issued by the clerk of court on 23 November 2002 stating that the 29 October 2002
Resolution had already become final and executory.21 Meanwhile, on 12 November 2002, private respondent filed
another petition before the Court of Appeals, 22 docketed as CA G.R. SP No. 73790. This is the subject of the present
petition.

Petitioner dispensed with the filing of a comment. 23 In his Memorandum,24 however, he argued that an entry of
judgment having been issued in CA-G.R. SP No. 73521, the filing of the second petition hinging on the same cause
of action after the first petition had been dismissed violates not only the rule on forum shopping but also the principle
of res judicata. He highlighted the fact that the decision subject of the second petition before the Court of Appeals
had twice become final and executory, with entries of judgment made first by the NLRC and then by the Court of
Appeals.

The appellate court ultimately settled the issue of prescription, categorically declaring that the one-year prescriptive
period applies only to employment contracts entered into as of 1 January 1997 and not those entered prior thereto,
thus:
x x x The question of prescription is untenable. Admittedly, POEA Memorandum Circular [No.] 55 prescribing the
standard terms of an employment contract of a seafarer was in effect when the respondent was repatriated on
January 21, 1997. This administrative issuance was released in accordance with Department Order [No.] 33 of the
Secretary of Labor directing the revision of the existing Standard Employment Contract to be effective by January 1,
1997. Section 28 of this revised contract states: all claims arising therefrom shall be made within one year from the
date of the seafarer’s return to the point of hire.

It is crystal clear that the one-year period of prescription of claims in the revised standard contract applies only to
employment contracts entered into as of January 1, 1997. If there is still any doubt about this, it should be removed
by the provision of Circular [No.] 55 which says that the new schedule of benefits to be embodied in the standard
contract will apply to any Filipino seafarer that will be deployed on or after the effectivity of the circular.

The respondent was deployed before January 1, 1997. As acknowledged by the petitioners, the rule prior to Circular
[No.] 55 provided for a prescriptive period of three years. We cannot avoid the ineluctable conclusion that the claim
of the respondent was filed within the prescriptive period.25

Despite ruling that prescription had not set in, the appellate court nonetheless declared petitioner’s dismissal from
employment as valid and reinstated the Labor Arbiter’s decision.

The appellate court relied on the fax messages issued by the ship master shortly after petitioner had committed a
serious neglect of his duties. It noted that the said fax messages constitute the res gestae. In defending the non-
presentation of the logbook, it stated that three years had already passed since the incident and Hansu was no
longer the principal of private respondent.

Petitioner’s motion for reconsideration was denied. Hence he filed this instant petition.

Citing grave abuse of discretion on the part of the Court of Appeals, petitioner reiterates his argument that the
appellate court should not have accepted the second petition in view of the fact that a corresponding entry of
judgment already has been issued. By filing the second petition, petitioner believes that private respondent has
engaged in forum shopping.26

Private respondent, for its part, defends the appellate court in taking cognizance of the second petition by stressing
that there is no law, rule or decision that prohibits the filing of a new petition for certiorari within the reglementary
period after the dismissal of the first petition due to technicality.27 It rebuts petitioner’s charge of forum shopping by
pointing out that the dismissal of the first petition due to technicality has not ripened into res judicata, which is an
essential element of forum shopping.28

In determining whether a party has violated the rule against forum shopping, the test to be applied is whether the
elements of litis pendentia are present or whether a final judgment in one case will amount to res judicata in the
other.29 This issue has been thoroughly and extensively discussed and correctly resolved by the Court of Appeals in
this wise:

The respondent’s two arguments essay on certain developments in the case after the NLRC rendered its decision.
He points out with alacrity that an entry of judgment was issued twice – first by the NLRC with respect to its decision
and then by the Ninth Division of the Court of Appeals after it dismissed on technical grounds the first petition for
certiorari filed by the petitioner. Neither event, for sure, militates against the institution of a second petition for
certiorari. A decision of the NLRC is never final for as long as it is the subject of a petition for certiorari that is
pending with a superior court. A contrary view only demeans our certiorari jurisdiction and will never gain currency
under our system of appellate court review. It is more to the point to ask if a second petition can stand after the first
is dismissed, but under the particular circumstances in which the second was brought, we hold that it can. The
theory of res judicata invoked by the respondent to bar the filing of the second petition does not apply. The judgment
or final resolution in the first petition must be on the merits for res judicata to inhere, and it will not be on the merits if
it is founded on a consideration of only technical or collateral points. Yet this was exactly how the first petition was
disposed of. SP 73521 was dismissed as a result of the failure of the petitioner to comply with the procedural
requirements of a petition for certiorari. The case never touched base. There was no occasion for the determination
of the substantive rights of the parties and, in this sense, the merits of the case were not involved. The petitioner
had actually the option of either refilling [sic] the case or seeking reconsideration in the original action. It chose to file
SP 73790 after realizing that it still had enough time left of the original period of 60 days under Rule 65 to do so.

Since the dismissal of the first petition did not ripen into res judicata, it may not be said that there was forum
shopping with the filing of the second. The accepted test for determining whether a party violated the rule against
forum shopping insofar as it is applicable to this setting is whether the judgment or final resolution in the first case
amounts to res judicata in the second. Res judicata is central to the idea of forum shopping. Without it, forum
shopping is non-existent. The dismissal of the first petition, moreover, if it does not amount to res judicata, need not
be mentioned in the certification of non-forum shopping accompanying the second action. The omission will not be
fatal to the viability of the second case. (Citations omitted)30
Private respondent, in turn, questions the propriety of the instant certiorari petition and avers that the issues raised
by petitioner can only be dealt with under Rule 45 of the Rules of Court.31 Against this thesis, petitioner submits that
the acceptance of the petition is addressed to the sound discretion of this Court.32

The proper remedy to assail decisions of the Court of Appeals involving final disposition of a case is through a
petition for review under Rule 45. In this case, petitioner filed instead a certiorari petition under Rule 65.
Notwithstanding this procedural lapse, this Court resolves to rule on the merits of the petition in the interest of
substantial justice,33 the underlying consideration in this petition being the arbitrary dismissal of petitioner from
employment.

Petitioner submits that the Court of Appeals erred in relying merely on fax messages to support the validity of his
dismissal from employment. He maintains that the first fax message containing the information that the vessel
encroached on a different route was a mere personal observation of the ship master and should have thus been
corroborated by evidence, and that these fax messages cannot be considered as res gestae because the statement
of the ship master embodied therein is just a report. He also contends that he has not caused any immediate danger
to the vessel and that if he did commit any wrongdoing, the incident would have been recorded in the logbook.
Thus, he posits that the failure to produce the logbook reinforces the theory that the fax messages have been
concocted to justify his unceremonious dismissal from employment. Hence, he believes that his dismissal from
employment stemmed from his filing of the complaint with the ITF which his superiors resented.34

Private respondent insists that the appellate court is correct in considering the fax messages as res gestae
statements. It likewise emphasizes that non-presentment of the logbook is justified as the same could no longer be
retrieved because Hansu has already ceased to be its principal. Furthermore, it refutes the allegation of petitioner
that he was dismissed because he filed a complaint with the ITF in behalf of his fellow crew members. It claims that
petitioner’s allegation is a hoax because there is no showing that the alleged complaint has been received by the
ITF and that no action thereon was ever taken by the ITF.35

Private respondent also asserts that petitioner was not dismissed but that he voluntarily asked for his repatriation.
This assertion, however, deserves scant consideration. It is highly illogical for an employee to voluntarily request for
repatriation and then file a suit for illegal dismissal. As voluntary repatriation is synonymous to resignation, it is
proper to conclude that repatriation is inconsistent with the filing of a complaint for illegal dismissal.36

The paramount issue therefore boils down to the validity of petitioner’s dismissal, the determination of which
generally involves a question of fact. It is not the function of this Court to assess and evaluate the facts and the
evidence again, our jurisdiction being generally limited to reviewing errors of law that might have been committed by
the trial court or administrative agency. Nevertheless, since the factual findings of the Court of Appeals and the
Labor Arbiter are at variance with those of the NLRC, we resolve to evaluate the records and the evidence
presented by the parties.37

The validity of an employee's dismissal hinges on the satisfaction of two substantive requirements, to wit: (1) the
dismissal must be for any of the causes provided for in Article 282 of the Labor Code; and (2) the employee was
accorded due process, basic of which is the opportunity to be heard and to defend himself.38

The Labor Arbiter held that petitioner’s absence during his watch duty when an emergency call was received from
the Japanese port authority that M/V Phoenix Seven was "invading other route" constituted neglect of duty, a just
cause for terminating an employee. Records reveal that this information was related to private respondent via two
fax messages sent by the captain of M/V Phoenix Seven. The first fax message dated 18 January 1997 is
reproduced below:

JUST RECEIVED PHONE CALL FROM MASTER N C/OFFICER THAT THEY DECIDED TO DISCHARGE
2/OFFICER AT OSAKA PORT.

DUE TO MIS-BEHAVIOUR N RESEST [SIC] TO OFFICIAL ORDER.

CAPT. HAD RECEIVED EMERGENCY WARNING CALL FROM JAPAN BISAN SETO NAIKAI RADIO AUTHORITY
THAT SHIP IS INVADING OTHER ROUTE.

SO, HE WAS SURPRISED N CAME TO BRIDGE N FOUND 2/O NOT CARRY OUT HIS WATCH DUTY.

MASTER SCOLD HIM ABOUT THIS N CORRECT HIS ERROR BUT HE RESIST [SIC] THAT HE IS RIGHT AND
THEN SAID THAT HE WILL COME BACK HOME.

FURTHER MORE HE ASKED MASTER TO PAY HIM I.T.F. WAGE SCALE.

MASTER N/CIO STRONGLY ASKED US HIS REPATRIATION WITH I.E.U.

PLS. CONFIRM YOUR OPINION ON THIS HAPPENING.39

The second fax message dated 20 January 1997 pertained to a report of crew discharge essentially containing the
same information as the first fax message. The Court of Appeals treated these fax messages as part of the res
gestae proving neglect of duty on the part of petitioner.

Section 42 of Rule 13040 of the Rules of Court mentions two acts which form part of the res gestae, namely:
spontaneous statements and verbal acts. In spontaneous exclamations, the res gestae is the startling occurrence,
whereas in verbal acts, the res gestae are the statements accompanying the equivocal act.41 We find that the fax
messages cannot be deemed part of the res gestae.

To be admissible under the first class of res gestae, it is required that: (1) the principal act be a startling occurrence;
(2) the statements were made before the declarant had the time to contrive or devise a falsehood; and (3) that the
statements must concern the occurrence in question and its immediate attending circumstances.42

Assuming that petitioner’s negligence—which allegedly caused the ship to deviate from its course—is the startling
occurrence, there is no showing that the statements contained in the fax messages were made immediately after
the alleged incident. In addition, no dates have been mentioned to determine if these utterances were made
spontaneously or with careful deliberation. Absent the critical element of spontaneity, the fax messages cannot be
admitted as part of the res gestae of the first kind.

Neither will the second kind of res gestae apply. The requisites for its admissibility are: (1) the principal act to be
characterized must be equivocal; (2) the equivocal act must be material to the issue; (3) the statement must
accompany the equivocal act; and (4) the statements give a legal significance to the equivocal act.43

Petitioner’s alleged absence from watch duty is simply an innocuous act or at least proved to be one. Assuming
arguendo that such absence was the equivocal act, it is nevertheless not accompanied by any statement more so
by the fax statements adverted to as parts of the res gestae. No date or time has been mentioned to determine
whether the fax messages were made simultaneously with the purported equivocal act.

Furthermore, the material contents of the fax messages are unclear. The matter of route encroachment or invasion
is questionable. The ship master, who is the author of the fax messages, did not witness the incident. He obtained
such information only from the Japanese port authorities. Verily, the messages can be characterized as double
hearsay.

In any event, under Article 282 of the Labor Code,44 an employer may terminate an employee for gross and habitual
neglect of duties. Neglect of duty, to be a ground for dismissal, must be both gross and habitual. Gross negligence
connotes want of care in the performance of one’s duties. Habitual neglect implies repeated failure to perform one’s
duties for a period of time, depending upon the circumstances. A single or isolated act of negligence does not
constitute a just cause for the dismissal of the employee.45

Petitioner’s supposed absence from watch duty in a single isolated instance is neither gross nor habitual
negligence. Without question, the alleged lapse did not result in any untoward incident. If there was any serious
aftermath, the incident should have been recorded in the ship’s logbook and presented by private respondent to
substantiate its claim. Instead, private respondent belittled the probative value of the logbook and dismissed it as
self-serving. Quite the contrary, the ship’s logbook is the repository of all activities and transactions on board a
vessel. Had the route invasion been so serious as to merit petitioner’s dismissal, then it would have been recorded
in the logbook. Private respondent would have then had all the more reason to preserve it considering that vital
pieces of information are contained therein.

In Haverton Shipping Ltd. v. NLRC,46 the Court held that the vessel’s logbook is an official record of entries made by
a person in the performance of a duty required by law.47 In Abacast Shipping and Management Agency, Inc. v.
NLRC,48 a case cited by petitioner, the logbook is a respectable record that can be relied upon to authenticate the
charges filed and the procedure taken against the employees prior to their dismissal.49 In Wallem Maritime Services,
Inc. v. NLRC,50 the logbook is a vital evidence as Article 612 of the Code of Commerce requires the ship captain to
keep a record of the decisions he had adopted as the vessel's head.51 Therefore, the non-presentation of the
logbook raises serious doubts as to whether the incident did happen at all.

In termination cases, the burden of proving just or valid cause for dismissing an employee rests on the
employer.52 Private respondent miserably failed to discharge this burden. Consequently, the petitioner’s dismissal is
illegal.

We also note that private respondent failed to comply with the procedural due process requirement for terminating
an employee. Such requirement is not a mere formality that may be dispensed with at will. Its disregard is a matter
of serious concern since it constitutes a safeguard of the highest order in response to man's innate sense of justice.
The Labor Code does not, of course, require a formal or trial type proceeding before an erring employee may be
dismissed. This is especially true in the case of a vessel on the ocean or in a foreign port. The minimum requirement
of due process in termination proceedings, which must be complied with even with respect to seamen on board a
vessel, consists of notice to the employees intended to be dismissed and the grant to them of an opportunity to
present their own side of the alleged offense or misconduct, which led to the management's decision to terminate.
To meet the requirements of due process, the employer must furnish the worker sought to be dismissed with two
written notices before termination of employment can be legally effected, i.e., (1) a notice which apprises the
employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice after
due hearing which informs the employee of the employer’s decision to dismiss him.53 1avvphi1

Private respondent’s sole reliance on the fax messages in dismissing petitioner is clearly insufficient as these
messages were addressed only to itself. No notice was ever given to petitioner apprising him in writing of the
particular acts showing neglect of duty. Neither was he informed of his dismissal from employment. Petitioner was
never given an opportunity to present his side. The failure to comply with the two-notice rule only aggravated
respondent’s liability on top of dismissing petitioner without a valid cause.

Pursuant to Section 10 of Republic Act No. 804254 or the Migrant Worker’s Act, employees who are unjustly
dismissed from work are entitled to an amount representing their three (3) months’ salary considering that their
employment contract has a term of exactly one (1) year plus a full refund of his placement fee, with interest at 12%
per annum.55

IN LIGHT OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals is REVERSED
and SET ASIDE. The Decision of the NLRC is REINSTATED with the MODIFICATION that in addition to the
payment of the sum equivalent to petitioner’s three (3) months’ salary, the full amount of placement fee with 12%
legal interest must be refunded.

SO ORDERED.

G.R. No. 172031               July 14, 2008

JUANITO TALIDANO, Respondents.
vs.
FALCON MARITIME & ALLIED SERVICES, INC., SPECIAL EIGHTH DIVISION OF THE COURT OF APPEALS,
AND LABOR ARBITER ERMITA C. CUYUGA, Petitioner,

DECISION

TINGA, J.:

This Petition for Certiorari1 under Rule 65 of the Rules of Court seeks to annul the Decision 2 and Resolution3 of the
Court of Appeals, dated 16 November 2005 and 2 February 2006, respectively, which upheld the validity of the
dismissal of Juanito Talidano (petitioner). The challenged decision reversed and set aside the Decision4 of the
National Labor Relations Commission (NLRC) and reinstated that of the Labor Arbiter.5

Petitioner was employed as a second marine officer by Falcon Maritime and Allied Services, Inc. (private
respondent) and was assigned to M/V Phoenix Seven, a vessel owned and operated by Hansu Corporation (Hansu)
which is based in Korea. His one (1)-year contract of employment commenced on 15 October 1996 and stipulated
the monthly wage at $900.00 with a fixed overtime pay of $270.00 and leave pay of $75.00.6

Petitioner claimed that his chief officer, a Korean, always discriminated against and maltreated the vessel’s Filipino
crew. This prompted him to send a letter-complaint to the officer-in-charge of the International Transport Federation
(ITF) in London, a measure that allegedly was resented by the chief officer. Consequently, petitioner was dismissed
on 21 January 1997. He filed a complaint for illegal dismissal on 27 October 1999.7

Private respondent countered that petitioner had voluntarily disembarked the vessel after having been warned
several times of dismissal from service for his incompetence, insubordination, disrespect and insulting attitude
toward his superiors. It cited an incident involving petitioner’s incompetence wherein the vessel invaded a different
route at the Osaka Port in Japan due to the absence of petitioner who was then supposed to be on watch duty. As
proof, it presented a copy of a fax message, sent to it on the date of incident, reporting the vessel’s deviation from
its course due to petitioner’s neglect of duty at the bridge, 8 as well as a copy of the report of crew discharge issued
by the master of M/V Phoenix Seven two days after the incident.9

Private respondent stated that since petitioner lodged the complaint before the Labor Arbiter two (2) years and nine
(9) months after his repatriation, prescription had already set in by virtue of Revised POEA Memorandum Circular
No. 55, series of 1996 which provides for a one-year prescriptive period for the institution of seafarers’ claims arising
from employment contract.10

On 5 November 2001, the Labor Arbiter rendered judgment dismissing petitioner’s complaint, holding that he was
validly dismissed for gross neglect of duties. The Labor Arbiter relied on the fax messages presented by private
respondent to prove petitioner’s neglect of his duties, thus:

x x x The fax message said that the Master of M/V Phoenix Seven received an emergency warning call from Japan
Sisan Sebo Naika Radio Authority calling attention to the Master of the vessel M/V Phoenix Seven that his vessel is
invading other route [sic]. When the Master checked the Bridge, he found out that the Second Officer (complainant)
did not carry out his duty wathch. There was a confrontation between the Master and the Complainant but the latter
insisted that he was right. The argument of the Complainant asserting that he was right cannot be sustained by this
Arbitration Branch. The fact that there was an emergency call from the Japanese port authority that M/V Phoenix
Seven was invading other route simply means that Complainant neglected his duty. The fax message stating that
Complainant was not at the bridge at the time of the emergency call was likewise not denied nor refuted by the
Complainant. Under our jurisprudence, any material allegation and/or document which is not denied specifically is
deemed admitted. If not of the timely call [sic] from the port authority that M/V Phoenix Seven invaded other route,
the safety of the vessel, her crew and cargo may be endangered. She could have collided with other vessels
because of complainant’s failure to render watch duty.11

On appeal, the NLRC reversed the ruling of the Labor Arbiter and declared the dismissal as illegal. The dispositive
portion of the NLRC’s decision reads:

WHEREFORE, premises considered, the decision appealed from is hereby reversed and set aside and a new one
entered declaring the dismissal of the complainant as illegal. Respondents Falcon Maritime & Allied Services, Inc.
and Hansu Corporation are hereby ordered to jointly and severally pay complainant the amount equivalent to his
three (3) months salary as a result thereof.12

The NLRC held that the fax messages in support of the alleged misbehavior and neglect of duty by petitioner have
no probative value and are self-serving. It added that the ship’s logbook should have been submitted in evidence as
it is the repository of all the activities on board the vessel, especially those affecting the performance or attitude of
the officers and crew members, and, more importantly, the procedures preparatory to the discharge of a crew
member. The NLRC also noted that private respondent failed to comply with due process in terminating petitioner’s
employment.13

Private respondent moved for reconsideration, 14 claiming that the complaint was filed beyond the one-year
prescriptive period. The NLRC, however, denied reconsideration in a Resolution dated 30 August 2002. 15 Rejecting
the argument that the complaint had already prescribed, it ruled:

Records show that respondent in this case had filed a motion to dismiss on the ground of prescription before the
Labor Arbiter a quo who denied the same in an Order dated August 1, 2000. Such an Order being unappealable,
the said issue of prescription cannot be raised anew specially in a motion for reconsideration. (Citations omitted)16

It appears that respondent received a copy of the NLRC Resolution 17 on 24 September 2002 and that said resolution
became final and executory on 7 October 2002.18

Private respondent brought the case to the Court of Appeals via a Petition for Certiorari19 on 8 October 2002. The
petition, docketed as CA-G.R. Sp. No. 73521, was dismissed on technicality in a Resolution dated 29 October 2002.
The pertinent portion of the resolution reads:

(1) [T]he VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING was signed by one Florida
Z. Jose, President of petitioner Falcon Maritime and Allied Services, Inc., without proof that she is the duly
authorized representative of petitioner-corporation;

(2) [T]here is no affidavit of service of the petition to the National Labor Relations Commission and to the
adverse party;

(3) [T]here is no explanation to justify service by mail in lieu of the required personal service. (Citations
omitted)20

An entry of judgment was issued by the clerk of court on 23 November 2002 stating that the 29 October 2002
Resolution had already become final and executory.21 Meanwhile, on 12 November 2002, private respondent filed
another petition before the Court of Appeals, 22 docketed as CA G.R. SP No. 73790. This is the subject of the present
petition.

Petitioner dispensed with the filing of a comment. 23 In his Memorandum,24 however, he argued that an entry of
judgment having been issued in CA-G.R. SP No. 73521, the filing of the second petition hinging on the same cause
of action after the first petition had been dismissed violates not only the rule on forum shopping but also the principle
of res judicata. He highlighted the fact that the decision subject of the second petition before the Court of Appeals
had twice become final and executory, with entries of judgment made first by the NLRC and then by the Court of
Appeals.

The appellate court ultimately settled the issue of prescription, categorically declaring that the one-year prescriptive
period applies only to employment contracts entered into as of 1 January 1997 and not those entered prior thereto,
thus:

x x x The question of prescription is untenable. Admittedly, POEA Memorandum Circular [No.] 55 prescribing the
standard terms of an employment contract of a seafarer was in effect when the respondent was repatriated on
January 21, 1997. This administrative issuance was released in accordance with Department Order [No.] 33 of the
Secretary of Labor directing the revision of the existing Standard Employment Contract to be effective by January 1,
1997. Section 28 of this revised contract states: all claims arising therefrom shall be made within one year from the
date of the seafarer’s return to the point of hire.

It is crystal clear that the one-year period of prescription of claims in the revised standard contract applies only to
employment contracts entered into as of January 1, 1997. If there is still any doubt about this, it should be removed
by the provision of Circular [No.] 55 which says that the new schedule of benefits to be embodied in the standard
contract will apply to any Filipino seafarer that will be deployed on or after the effectivity of the circular.

The respondent was deployed before January 1, 1997. As acknowledged by the petitioners, the rule prior to Circular
[No.] 55 provided for a prescriptive period of three years. We cannot avoid the ineluctable conclusion that the claim
of the respondent was filed within the prescriptive period.25

Despite ruling that prescription had not set in, the appellate court nonetheless declared petitioner’s dismissal from
employment as valid and reinstated the Labor Arbiter’s decision.

The appellate court relied on the fax messages issued by the ship master shortly after petitioner had committed a
serious neglect of his duties. It noted that the said fax messages constitute the res gestae. In defending the non-
presentation of the logbook, it stated that three years had already passed since the incident and Hansu was no
longer the principal of private respondent.

Petitioner’s motion for reconsideration was denied. Hence he filed this instant petition.

Citing grave abuse of discretion on the part of the Court of Appeals, petitioner reiterates his argument that the
appellate court should not have accepted the second petition in view of the fact that a corresponding entry of
judgment already has been issued. By filing the second petition, petitioner believes that private respondent has
engaged in forum shopping.26

Private respondent, for its part, defends the appellate court in taking cognizance of the second petition by stressing
that there is no law, rule or decision that prohibits the filing of a new petition for certiorari within the reglementary
period after the dismissal of the first petition due to technicality.27 It rebuts petitioner’s charge of forum shopping by
pointing out that the dismissal of the first petition due to technicality has not ripened into res judicata, which is an
essential element of forum shopping.28

In determining whether a party has violated the rule against forum shopping, the test to be applied is whether the
elements of litis pendentia are present or whether a final judgment in one case will amount to res judicata in the
other.29 This issue has been thoroughly and extensively discussed and correctly resolved by the Court of Appeals in
this wise:

The respondent’s two arguments essay on certain developments in the case after the NLRC rendered its decision.
He points out with alacrity that an entry of judgment was issued twice – first by the NLRC with respect to its decision
and then by the Ninth Division of the Court of Appeals after it dismissed on technical grounds the first petition for
certiorari filed by the petitioner. Neither event, for sure, militates against the institution of a second petition for
certiorari. A decision of the NLRC is never final for as long as it is the subject of a petition for certiorari that is
pending with a superior court. A contrary view only demeans our certiorari jurisdiction and will never gain currency
under our system of appellate court review. It is more to the point to ask if a second petition can stand after the first
is dismissed, but under the particular circumstances in which the second was brought, we hold that it can. The
theory of res judicata invoked by the respondent to bar the filing of the second petition does not apply. The judgment
or final resolution in the first petition must be on the merits for res judicata to inhere, and it will not be on the merits if
it is founded on a consideration of only technical or collateral points. Yet this was exactly how the first petition was
disposed of. SP 73521 was dismissed as a result of the failure of the petitioner to comply with the procedural
requirements of a petition for certiorari. The case never touched base. There was no occasion for the determination
of the substantive rights of the parties and, in this sense, the merits of the case were not involved. The petitioner
had actually the option of either refilling [sic] the case or seeking reconsideration in the original action. It chose to file
SP 73790 after realizing that it still had enough time left of the original period of 60 days under Rule 65 to do so.

Since the dismissal of the first petition did not ripen into res judicata, it may not be said that there was forum
shopping with the filing of the second. The accepted test for determining whether a party violated the rule against
forum shopping insofar as it is applicable to this setting is whether the judgment or final resolution in the first case
amounts to res judicata in the second. Res judicata is central to the idea of forum shopping. Without it, forum
shopping is non-existent. The dismissal of the first petition, moreover, if it does not amount to res judicata, need not
be mentioned in the certification of non-forum shopping accompanying the second action. The omission will not be
fatal to the viability of the second case. (Citations omitted)30

Private respondent, in turn, questions the propriety of the instant certiorari petition and avers that the issues raised
by petitioner can only be dealt with under Rule 45 of the Rules of Court.31 Against this thesis, petitioner submits that
the acceptance of the petition is addressed to the sound discretion of this Court.32

The proper remedy to assail decisions of the Court of Appeals involving final disposition of a case is through a
petition for review under Rule 45. In this case, petitioner filed instead a certiorari petition under Rule 65.
Notwithstanding this procedural lapse, this Court resolves to rule on the merits of the petition in the interest of
substantial justice,33 the underlying consideration in this petition being the arbitrary dismissal of petitioner from
employment.

Petitioner submits that the Court of Appeals erred in relying merely on fax messages to support the validity of his
dismissal from employment. He maintains that the first fax message containing the information that the vessel
encroached on a different route was a mere personal observation of the ship master and should have thus been
corroborated by evidence, and that these fax messages cannot be considered as res gestae because the statement
of the ship master embodied therein is just a report. He also contends that he has not caused any immediate danger
to the vessel and that if he did commit any wrongdoing, the incident would have been recorded in the logbook.
Thus, he posits that the failure to produce the logbook reinforces the theory that the fax messages have been
concocted to justify his unceremonious dismissal from employment. Hence, he believes that his dismissal from
employment stemmed from his filing of the complaint with the ITF which his superiors resented.34

Private respondent insists that the appellate court is correct in considering the fax messages as res gestae
statements. It likewise emphasizes that non-presentment of the logbook is justified as the same could no longer be
retrieved because Hansu has already ceased to be its principal. Furthermore, it refutes the allegation of petitioner
that he was dismissed because he filed a complaint with the ITF in behalf of his fellow crew members. It claims that
petitioner’s allegation is a hoax because there is no showing that the alleged complaint has been received by the
ITF and that no action thereon was ever taken by the ITF.35

Private respondent also asserts that petitioner was not dismissed but that he voluntarily asked for his repatriation.
This assertion, however, deserves scant consideration. It is highly illogical for an employee to voluntarily request for
repatriation and then file a suit for illegal dismissal. As voluntary repatriation is synonymous to resignation, it is
proper to conclude that repatriation is inconsistent with the filing of a complaint for illegal dismissal.36

The paramount issue therefore boils down to the validity of petitioner’s dismissal, the determination of which
generally involves a question of fact. It is not the function of this Court to assess and evaluate the facts and the
evidence again, our jurisdiction being generally limited to reviewing errors of law that might have been committed by
the trial court or administrative agency. Nevertheless, since the factual findings of the Court of Appeals and the
Labor Arbiter are at variance with those of the NLRC, we resolve to evaluate the records and the evidence
presented by the parties.37

The validity of an employee's dismissal hinges on the satisfaction of two substantive requirements, to wit: (1) the
dismissal must be for any of the causes provided for in Article 282 of the Labor Code; and (2) the employee was
accorded due process, basic of which is the opportunity to be heard and to defend himself.38

The Labor Arbiter held that petitioner’s absence during his watch duty when an emergency call was received from
the Japanese port authority that M/V Phoenix Seven was "invading other route" constituted neglect of duty, a just
cause for terminating an employee. Records reveal that this information was related to private respondent via two
fax messages sent by the captain of M/V Phoenix Seven. The first fax message dated 18 January 1997 is
reproduced below:

JUST RECEIVED PHONE CALL FROM MASTER N C/OFFICER THAT THEY DECIDED TO DISCHARGE
2/OFFICER AT OSAKA PORT.

DUE TO MIS-BEHAVIOUR N RESEST [SIC] TO OFFICIAL ORDER.

CAPT. HAD RECEIVED EMERGENCY WARNING CALL FROM JAPAN BISAN SETO NAIKAI RADIO AUTHORITY
THAT SHIP IS INVADING OTHER ROUTE.

SO, HE WAS SURPRISED N CAME TO BRIDGE N FOUND 2/O NOT CARRY OUT HIS WATCH DUTY.

MASTER SCOLD HIM ABOUT THIS N CORRECT HIS ERROR BUT HE RESIST [SIC] THAT HE IS RIGHT AND
THEN SAID THAT HE WILL COME BACK HOME.

FURTHER MORE HE ASKED MASTER TO PAY HIM I.T.F. WAGE SCALE.

MASTER N/CIO STRONGLY ASKED US HIS REPATRIATION WITH I.E.U.

PLS. CONFIRM YOUR OPINION ON THIS HAPPENING.39

The second fax message dated 20 January 1997 pertained to a report of crew discharge essentially containing the
same information as the first fax message. The Court of Appeals treated these fax messages as part of the res
gestae proving neglect of duty on the part of petitioner.

Section 42 of Rule 13040 of the Rules of Court mentions two acts which form part of the res gestae, namely:
spontaneous statements and verbal acts. In spontaneous exclamations, the res gestae is the startling occurrence,
whereas in verbal acts, the res gestae are the statements accompanying the equivocal act.41 We find that the fax
messages cannot be deemed part of the res gestae.

To be admissible under the first class of res gestae, it is required that: (1) the principal act be a startling occurrence;
(2) the statements were made before the declarant had the time to contrive or devise a falsehood; and (3) that the
statements must concern the occurrence in question and its immediate attending circumstances.42

Assuming that petitioner’s negligence—which allegedly caused the ship to deviate from its course—is the startling
occurrence, there is no showing that the statements contained in the fax messages were made immediately after
the alleged incident. In addition, no dates have been mentioned to determine if these utterances were made
spontaneously or with careful deliberation. Absent the critical element of spontaneity, the fax messages cannot be
admitted as part of the res gestae of the first kind.

Neither will the second kind of res gestae apply. The requisites for its admissibility are: (1) the principal act to be
characterized must be equivocal; (2) the equivocal act must be material to the issue; (3) the statement must
accompany the equivocal act; and (4) the statements give a legal significance to the equivocal act.43

Petitioner’s alleged absence from watch duty is simply an innocuous act or at least proved to be one. Assuming
arguendo that such absence was the equivocal act, it is nevertheless not accompanied by any statement more so
by the fax statements adverted to as parts of the res gestae. No date or time has been mentioned to determine
whether the fax messages were made simultaneously with the purported equivocal act.

Furthermore, the material contents of the fax messages are unclear. The matter of route encroachment or invasion
is questionable. The ship master, who is the author of the fax messages, did not witness the incident. He obtained
such information only from the Japanese port authorities. Verily, the messages can be characterized as double
hearsay.

In any event, under Article 282 of the Labor Code,44 an employer may terminate an employee for gross and habitual
neglect of duties. Neglect of duty, to be a ground for dismissal, must be both gross and habitual. Gross negligence
connotes want of care in the performance of one’s duties. Habitual neglect implies repeated failure to perform one’s
duties for a period of time, depending upon the circumstances. A single or isolated act of negligence does not
constitute a just cause for the dismissal of the employee.45

Petitioner’s supposed absence from watch duty in a single isolated instance is neither gross nor habitual
negligence. Without question, the alleged lapse did not result in any untoward incident. If there was any serious
aftermath, the incident should have been recorded in the ship’s logbook and presented by private respondent to
substantiate its claim. Instead, private respondent belittled the probative value of the logbook and dismissed it as
self-serving. Quite the contrary, the ship’s logbook is the repository of all activities and transactions on board a
vessel. Had the route invasion been so serious as to merit petitioner’s dismissal, then it would have been recorded
in the logbook. Private respondent would have then had all the more reason to preserve it considering that vital
pieces of information are contained therein.

In Haverton Shipping Ltd. v. NLRC,46 the Court held that the vessel’s logbook is an official record of entries made by
a person in the performance of a duty required by law.47 In Abacast Shipping and Management Agency, Inc. v.
NLRC,48 a case cited by petitioner, the logbook is a respectable record that can be relied upon to authenticate the
charges filed and the procedure taken against the employees prior to their dismissal.49 In Wallem Maritime Services,
Inc. v. NLRC,50 the logbook is a vital evidence as Article 612 of the Code of Commerce requires the ship captain to
keep a record of the decisions he had adopted as the vessel's head.51 Therefore, the non-presentation of the
logbook raises serious doubts as to whether the incident did happen at all.

In termination cases, the burden of proving just or valid cause for dismissing an employee rests on the
employer.52 Private respondent miserably failed to discharge this burden. Consequently, the petitioner’s dismissal is
illegal.

We also note that private respondent failed to comply with the procedural due process requirement for terminating
an employee. Such requirement is not a mere formality that may be dispensed with at will. Its disregard is a matter
of serious concern since it constitutes a safeguard of the highest order in response to man's innate sense of justice.
The Labor Code does not, of course, require a formal or trial type proceeding before an erring employee may be
dismissed. This is especially true in the case of a vessel on the ocean or in a foreign port. The minimum requirement
of due process in termination proceedings, which must be complied with even with respect to seamen on board a
vessel, consists of notice to the employees intended to be dismissed and the grant to them of an opportunity to
present their own side of the alleged offense or misconduct, which led to the management's decision to terminate.
To meet the requirements of due process, the employer must furnish the worker sought to be dismissed with two
written notices before termination of employment can be legally effected, i.e., (1) a notice which apprises the
employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice after
due hearing which informs the employee of the employer’s decision to dismiss him.53 1avvphi1

Private respondent’s sole reliance on the fax messages in dismissing petitioner is clearly insufficient as these
messages were addressed only to itself. No notice was ever given to petitioner apprising him in writing of the
particular acts showing neglect of duty. Neither was he informed of his dismissal from employment. Petitioner was
never given an opportunity to present his side. The failure to comply with the two-notice rule only aggravated
respondent’s liability on top of dismissing petitioner without a valid cause.

Pursuant to Section 10 of Republic Act No. 804254 or the Migrant Worker’s Act, employees who are unjustly
dismissed from work are entitled to an amount representing their three (3) months’ salary considering that their
employment contract has a term of exactly one (1) year plus a full refund of his placement fee, with interest at 12%
per annum.55

IN LIGHT OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals is REVERSED
and SET ASIDE. The Decision of the NLRC is REINSTATED with the MODIFICATION that in addition to the
payment of the sum equivalent to petitioner’s three (3) months’ salary, the full amount of placement fee with 12%
legal interest must be refunded.

SO ORDERED.

G.R. No. L-53401 November 6, 1989

THE ILOCOS NORTE ELECTRIC COMPANY, petitioner,

vs.
HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN YABES, VIRGINIA
JUAN CID, GLORIA JUAN CARAG, and PURISIMA JUAN, respondents.

Herman D. Coloma for petitioner.

Glicerio S. Ferrer for private respondents.

PARAS, J.:

Sought to be reversed in this petition is the Decision * of the respondent Court of Appeals' First Division, setting
aside the judgment of the then Court of First Instance (CFI) of Ilocos Norte, with the following dispositive portion:

WHEREFORE, the appealed judgment is hereby set aside and another rendered in its stead
whereby defendant is hereby sentenced to pay plaintiffs actual damages of P30,229.45;
compensatory damages of P50,000.00; exemplary damages of P10,000.00; attorney's fees of
P3,000.00; plus the costs of suit in both instances. (p. 27 Rollo)

Basically, this case involves a clash of evidence whereby both patties strive for the recognition of their respective
versions of the scenario from which the disputed claims originate. The respondent Court of Appeals (CA)
summarized the evidence of the parties as follows:

From the evidence of plaintiffs it appears that in the evening of June 28 until the early morning of
June 29, 1967 a strong typhoon by the code name "Gening" buffeted the province of Ilocos Norte,
bringing heavy rains and consequent flooding in its wake. Between 5:30 and 6:00 A.M. on June 29,
1967, after the typhoon had abated and when the floodwaters were beginning to recede the
deceased Isabel Lao Juan, fondly called Nana Belen, ventured out of the house of her son-in-law,
Antonio Yabes, on No. 19 Guerrero Street, Laoag City, and proceeded northward towards the
direction of the Five Sisters Emporium, of which she was the owner and proprietress, to look after
the merchandise therein that might have been damaged. Wading in waist-deep flood on Guerrero,
the deceased was followed by Aida Bulong, a Salesgirl at the Five Sisters Grocery, also owned by
the deceased, and by Linda Alonzo Estavillo, a ticket seller at the YJ Cinema, which was partly
owned by the deceased. Aida and Linda walked side by side at a distance of between 5 and 6
meters behind the deceased, Suddenly, the deceased screamed "Ay" and quickly sank into the
water. The two girls attempted to help, but fear dissuaded them from doing so because on the spot
where the deceased sank they saw an electric wire dangling from a post and moving in snake-like
fashion in the water. Upon their shouts for help, Ernesto dela Cruz came out of the house of Antonio
Yabes. Ernesto tried to go to the deceased, but at four meters away from her he turned back
shouting that the water was grounded. Aida and Linda prodded Ernesto to seek help from Antonio
Yabes at the YJ Cinema building which was four or five blocks away.

When Antonio Yabes was informed by Ernesto that his mother-in law had been electrocuted, he
acted immediately. With his wife Jane, together with Ernesto and one Joe Ros, Yabes passed by the
City Hall of Laoag to request the police to ask the people of defendant Ilocos Norte Electric
Company or INELCO to cut off the electric current. Then the party waded to the house on Guerrero
Street. The floodwater was receding and the lights inside the house were out indicating that the
electric current had been cut off in Guerrero. Yabes instructed his boys to fish for the body of the
deceased. The body was recovered about two meters from an electric post.
 In another place, at about 4:00 A.M. on that fateful date, June 29, 1967, Engineer Antonio Juan,
Power Plant Engineer of the National Power Corporation at the Laoag Diesel-Electric Plant, noticed
certain fluctuations in their electric meter which indicated such abnormalities as grounded or short-
circuited lines. Between 6:00 and 6:30 A.M., he set out of the Laoag NPC Compound on an
inspection. On the way, he saw grounded and disconnected lines. Electric lines were hanging from
the posts to the ground. Since he could not see any INELCO lineman, he decided to go to the
INELCO Office at the Life Theatre on Rizal Street by way of Guerrero. As he turned right at the
intersection of Guerrero and Rizal, he saw an electric wire about 30 meters long strung across the
street "and the other end was seeming to play with the current of the water." (p. 64, TSN, Oct. 24,
1972) Finding the Office of the INELCO still closed, and seeing no lineman therein, he returned to
the NPC Compound.

At about 8:10 A.M., Engr. Juan went out of the compound again on another inspection trip. Having
learned of the death of Isabel Lao Juan, he passed by the house of the deceased at the corner of
Guerrero and M.H. del Pilar streets to which the body had been taken. Using the resuscitator which
was a standard equipment in his jeep and employing the skill he acquired from an in service training
on resuscitation, he tried to revive the deceased. His efforts proved futile. Rigor mortis was setting
in. On the left palm of the deceased, Engr. Juan noticed a hollow wound. Proceeding to the INELCO
Office, he met two linemen on the way. He told them about the grounded lines of the INELCO In the
afternoon of the same day, he went on a third inspection trip preparatory to the restoration of power.
The dangling wire he saw on Guerrero early in the morning of June 29, 1967 was no longer there.

Many people came to the house at the corner of Guerrero and M.H. del Pilar after learning that the
deceased had been electrocuted. Among the sympathizers was Dr. Jovencio Castro, Municipal
Health Officer of Sarrat, Ilocos Norte. Upon the request of the relatives of the deceased, Dr. Castro
examined the body at about 8:00 A.M. on June 29, 1967. The skin was grayish or, in medical
parlance, cyanotic, which indicated death by electrocution. On the left palm, the doctor found an
"electrically charged wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first degree burn. About the
base of the thumb on the left hand was a burned wound. (Exh. C-2, pp. 102-103, Ibid.) The
certificate of death prepared by Dr. Castro stated the cause of' death as ,'circulatory shock
electrocution" (Exh. I; p. 103, Ibid.).

In defense and exculpation, defendant presented the testimonies of its officers and employees,
namely, Conrado Asis, electric engineer; Loreto Abijero, collector-inspector; Fabico Abijero, lineman;
and Julio Agcaoili, president-manager of INELCO Through the testimonies of these witnesses,
defendant sought to prove that on and even before June 29, 1967 the electric service system of the
INELCO in the whole franchise area, including Area No. 9 which covered the residence of Antonio
Yabes at No. 18 Guerrero Street, did not suffer from any defect that might constitute a hazard to life
and property. The service lines, devices and other INELCO equipment in Area No. 9 had been
newly-installed prior to the date in question. As a public service operator and in line with its business
of supplying electric current to the public, defendant had installed safety devices to prevent and
avoid injuries to persons and damage to property in case of natural calamities such as floods,
typhoons, fire and others. Defendant had 12 linesmen charged with the duty of making a round-the-
clock check-up of the areas respectively assigned to them.

Defendant asserts that although a strong typhoon struck the province of Ilocos Norte on June 29,
1967, putting to streets of Laoag City under water, only a few known places in Laoag were reported
to have suffered damaged electric lines, namely, at the southern approach of the Marcos Bridge
which was washed away and where the INELCO lines and posts collapsed; in the eastern part near
the residence of the late Governor Simeon Mandac; in the far north near the defendant's power plant
at the corner of Segundo and Castro Streets, Laoag City and at the far northwest side, near the
premises of the Ilocos Norte National High School. Fabico Abijero, testified that in the early morning
before 6 o'clock on June 29, 1967 he passed by the intersection of Rizal and Guerrero Streets to
switch off the street lights in Area No. 9. He did not see any cut or broken wires in or near the
vicinity. What he saw were many people fishing out the body of Isabel Lao Juan.

A witness in the person of Dr. Antonio Briones was presented by the defense to show that the
deceased could not have died of electrocution Substantially, the testimony of the doctor is as
follows: Without an autopsy on the cadaver of the victim, no doctor, not even a medicolegal expert,
can speculate as to the real cause of death. Cyanosis could not have been found in the body of the
deceased three hours after her death, because cyanosis which means lack of oxygen circulating in
the blood and rendering the color of the skin purplish, appears only in a live person. The presence of
the elongated burn in the left palm of the deceased (Exhibits C-1 and C-2) is not sufficient to
establish her death by electrocution; since burns caused by electricity are more or less round in
shape and with points of entry and exit. Had the deceased held the lethal wire for a long time, the
laceration in her palm would have been bigger and the injury more massive. (CA Decision, pp. 18-
21, Rollo)

An action for damages in the aggregate amount of P250,000 was instituted by the heirs of the deceased with the
aforesaid CFI on June 24, 1968. In its Answer (Vide, Record on Appeal, p. 55, Rollo), petitioner advanced the
theory, as a special defense, that the deceased could have died simply either by drowning or by electrocution due to
negligence attributable only to herself and not to petitioner. In this regard, it was pointed out that the deceased,
without petitioner's knowledge, caused the installation of a burglar deterrent by connecting a wire from the main
house to the iron gate and fence of steel matting, thus, charging the latter with electric current whenever the switch
is on. Petitioner then conjectures that the switch to said burglar deterrent must have been left on, hence, causing
the deceased's electrocution when she tried to open her gate that early morning of June 29, 1967. After due trial,
the CFI found the facts in favor of petitioner and dismissed the complaint but awarded to the latter P25,000 in moral
damages and attorney's fees of P45,000. An appeal was filed with the CA which issued the controverted decision.

In this petition for review the petitioner assigns the following errors committed by the respondent CA:

1. The respondent Court of Appeals committed grave abuse of discretion and error in
considering the purely hearsay alleged declarations of Ernesto de la Cruz as part of
the res gestae.

2. The respondent Court of Appeals committed grave abuse of discretion and error in
holding that the strong typhoon "Gening" which struck Laoag City and Ilocos Norte
on June 29, 1967 and the flood and deluge it brought in its wake were not fortuitous
events and did not exonerate petitioner-company from liability for the death of Isabel
Lao Juan.

3. The respondent Court of Appeals gravely abused its discretion and erred in not
applying the legal principle of "assumption of risk" in the present case to bar private
respondents from collecting damages from petitioner company.

4. That the respondent Court of Appeals gravely erred and abused its discretion in
completely reversing the findings of fact of the trial court.

5. The findings of fact of the respondent Court of Appeals are reversible under the
recognized exceptions.

6. The trial court did not err in awarding moral damages and attorney's fees to
defendant corporation, now petitioner company.

7. Assuming arguendo that petitioner company may be held liable from the death of

the late Isabel Lao Juan, the damages granted by respondent Court of Appeals are
improper and exhorbitant. (Petitioners Memorandum, p. 133, Rollo)

Basically, three main issues are apparent: (1) whether or not the deceased died of electrocution; (2) whether or not
petitioner may be held liable for the deceased's death; and (3) whether or not the respondent CA's substitution of
the trial court's factual findings for its own was proper.

In considering the first issue, it is Our view that the same be resolved in the affirmative. By a preponderance of
evidence, private respondents were able to show that the deceased died of electrocution, a conclusion which can be
primarily derived from the photographed burnt wounds (Exhibits "C", "C-1", "C-2") on the left palm of the former.
Such wounds undoubtedly point to the fact that the deceased had clutched a live wire of the petitioner. This was
corroborated by the testimony of Dr. Jovencio Castro who actually examined the body of the deceased a few hours
after the death and described the said burnt wounds as a "first degree burn" (p. 144, TSN, December 11, 1972) and
that they were "electrically charged" (p. 102, TSN, November 28, 1972). Furthermore, witnesses Linda Alonzo
Estavillo and Aida Bulong added that after the deceased screamed "Ay" and sank into the water, they tried to render
some help but were overcome with fear by the sight of an electric wire dangling from an electric post, moving in the
water in a snake-like fashion (supra). The foregoing therefore justifies the respondent CA in concluding that "(t)he
nature of the wounds as described by the witnesses who saw them can lead to no other conclusion than that they
were "burns," and there was nothing else in the street where the victim was wading thru which could cause a burn
except the dangling live wire of defendant company" (CA Decision, p. 22, Rollo).

But in order to escape liability, petitioner ventures into the theory that the deceased was electrocuted, if such was
really the case when she tried to open her steel gate, which was electrically charged by an electric wire she herself
caused to install to serve as a burglar deterrent. Petitioner suggests that the switch to said burglar alarm was left on.
But this is mere speculation, not backed up with evidence. As required by the Rules, "each party must prove his own
affirmative allegations." (Rule 131, Sec. 1). Nevertheless, the CA significantly noted that "during the trial, this theory
was abandoned" by the petitioner (CA Decision, p. 23, Rollo).

Furthermore the CA properly applied the principle of res gestae. The CA said:

Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were with the deceased during
that fateful morning of June 29, 1967. This Court has not been offered any sufficient reason to
discredit the testimonies of these two young ladies. They were one in the affirmation that the
deceased, while wading in the waist-deep flood on Guerrero Street five or six meters ahead of them,
 suddenly screamed "Ay" and quickly sank into the water. When they approached the deceased to
help, they were stopped by the sight of an electric wire dangling from a post and moving in snake-
like fashion in the water. Ernesto dela Cruz also tried to approach the deceased, but he turned back
shouting that the water was grounded. These bits of evidence carry much weight. For the subject of
the testimonies was a startling occurrence, and the declarations may be considered part of the res
gestae. (CA Decision, p. 21, Rollo)

For the admission of the res gestae in evidence, the following requisites must be present: (1) that the principal act,
the res gestae, be a startling occurrence; (2) that the statements were made before the declarant had time to
contrive or devise; (3) that the statements made must concern the occurrence in question and its immediately
attending circumstances (People vs. Ner, 28 SCRA 1151; People vs. Balbas, 122 SCRA 959). We do not find any
abuse of discretion on the CA' part in view of the satisfaction of said requisites in the case at bar.

The statements made relative to the startling occurrence are admitted in evidence precisely as an exception to the
hearsay rule on the grounds of trustworthiness and necessity. "Trustworthiness" because the statements are made
instinctively (Wesley vs. State, 53 Ala. 182), and "necessity" because such natural and spontaneous utterances are
more convincing than the testimony of the same person on the stand (Mobile vs. Ascraft 48 Ala. 31). Therefore, the
fact that the declarant, Ernesto de la Cruz, was not presented to testify does not make the testimony of Linda Alonzo
Estavillo and Aida Bulong hearsay since the said declaration is part of the res gestae. Similarly, We considered part
of the res gestae a conversation between two accused immediately after commission of the crime as overheard by a
prosecution witness (People vs. Reyes, 82 Phil. 563).

While it may be true that, as petitioner argues (vide petitioner's Memorandum, p. 135, Rollo), Ernesto de la Cruz
was not an actual witness to the instant when the deceased sank into the waist-deep water, he acted upon the call
of help of Aida Bulong and Linda Alonzo Estavillo with the knowledge of, and immediately after, the sinking of the
deceased. In fact the startling event had not yet ceased when Ernesto de la Cruz entered the scene considering that
the victim remained submerged. Under such a circumstance, it is undeniable that a state of mind characterized by
nervous excitement had been triggered in Ernesto de la Cruz's being as anybody under the same contingency could
have experienced. As such, We cannot honestly exclude his shouts that the water was grounded from the res
gestae just because he did not actually see the sinking of the deceased nor hear her scream "Ay."

Neither can We dismiss the said declaration as a mere opinion of Ernesto de la Cruz. While We concede to the
submission that the statement must be one of facts rather than opinion, We cannot agree to the proposition that the
one made by him was a mere opinion. On the contrary, his shout was a translation of an actuality as perceived by
him through his sense of touch.

Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was suppressed by the private
respondents, thus, is presumed to be adverse to them pursuant to Section 5(e), Rule 131. For the application of
said Rule as against a party to a case, it is necessary that the evidence alleged to be suppressed is available only to
said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil. 953). The presumption does not operate if the evidence
in question is equally available to both parties (StaplesHowe Printing Co. vs. Bldg. and Loan Assn., 36 Phil. 421). It
is clear from the records that petitioner could have called Ernesto de la Cruz to the witness stand. This, precisely,
was Linda Alonzo Estavillo's suggestion to petitioner's counsel when she testified on cross examination:

Q. And that Erning de la Cruz, how far did he reach from the gate of the house?

A. Well, you can ask that matter from him sir because he is here. (TSN, p. 30, 26 Sept. 1972)

The foregoing shows that petitioner had the opportunity to verify the declarations of Ernesto de la Cruz which, if truly
adverse to private respondent, would have helped its case. However, due to reasons known only to petitioner, the
opportunity was not taken.

Coming now to the second issue, We tip the scales in the private respondents' favor. The respondent CA acted
correctly in disposing the argument that petitioner be exonerated from liability since typhoons and floods are
fortuitous events. While it is true that typhoons and floods are considered Acts of God for which no person may be
held responsible, it was not said eventuality which directly caused the victim's death. It was through the intervention
of petitioner's negligence that death took place. We subscribe to the conclusions of the respondent CA when it
found:

On the issue whether or not the defendant incurred liability for the electrocution and consequent
death of the late Isabel Lao Juan, defendant called to the witness-stand its electrical engineer, chief
lineman, and lineman to show exercise of extraordinary diligence and to negate the charge of
negligence. The witnesses testified in a general way about their duties and the measures which
defendant usually adopts to prevent hazards to life and limb. From these testimonies, the lower court
found "that the electric lines and other equipment of defendant corporation were properly maintained
by a well-trained team of lineman, technicians and engineers working around the clock to insure that
these equipments were in excellent condition at all times." (P. 40, Record on Appeal) The finding of
the lower court, however, was based on what the defendant's employees were supposed to do, not
 on what they actually did or failed to do on the date in question, and not on the occasion of
the emergency situation brought about by the typhoon.

The lower court made a mistake in assuming that defendant's employees worked around the clock
during the occurrence of the typhoon on the night of June 28 and until the early morning of June 29,
1967, Engr. Antonio Juan of the National Power Corporation affirmed that when he first set out on an
inspection trip between 6:00 and 6:30 A.M. on June 29, 1967, he saw grounded and disconnected
electric lines of the defendant but he saw no INELCO lineman. The INELCO Office at the Life theatre
on Rizal Street was still closed. (pp. 63-64, TSN, Oct. 24, 1972) Even the witnesses of defendant
contradict the finding of the lower court. Conrado Asis, defendant's electrical engineer, testified that
he conducted a general inspection of the franchise area of the INELCO only on June 30, 1967, the
day following the typhoon. The reason he gave for the delay was that all their vehicles were
submerged. (p. 337, TSN, July 20, 1973) According to Asis, he arrived at his office at 8:00 A.M.
on June 30 and after briefing his men on what to do they started out. (p. 338, lbid) One or two days
after the typhoon, the INELCO people heard "rumors that someone was electrocuted" so he sent
one of his men to the place but his man reported back that there was no damaged wire. (p. 385, Id.)
Loreto Abijero, chief lineman of defendant, corroborated Engr. Juan. He testified that at about 8:00
A.M. on June 29, 1967 Engr. Juan came to the INELCO plant and asked the INELCO people to
inspect their lines. He went with Engr. Juan and their inspection lasted from 8:00 A.M. to 12:00 noon.
(pp. 460, 465, TSN, Jan. 28, 1975) Fabico Abijero lineman of defendant, testified that at about 6:00
on June 29, 1967 the typhoon ceased. At that time, he was at the main building of the Divine Word
College of Laoag where he had taken his family for refuge. (pp. 510-511, Ibid.)

In times of calamities such as the one which occurred in Laoag City on the night of June 28 until the
early hours of June 29, 1967, extraordinary diligence requires a supplier of electricity to be
in constant vigil to prevent or avoid any probable incident that might imperil life or limb. The
evidence does not show that defendant did that. On the contrary, evidence discloses that there were
no men (linemen or otherwise) policing the area, nor even manning its office. (CA Decision, pp. 24-
25, Rollo)

Indeed, under the circumstances of the case, petitioner was negligent in seeing to it that no harm is done to the
general public"... considering that electricity is an agency, subtle and deadly, the measure of care required of
electric companies must be commensurate with or proportionate to the danger. The duty of exercising this high
degree of diligence and care extends to every place where persons have a right to be" (Astudillo vs. Manila Electric,
55 Phil. 427). The negligence of petitioner having been shown, it may not now absolve itself from liability by arguing
that the victim's death was solely due to a fortuitous event. "When an act of God combines or concurs with the
negligence of the defendant to produce an injury, the defendant is liable if the injury would not have resulted but for
his own negligent conduct or omission" (38 Am. Jur., p. 649).

Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no application in the case at bar. It is
imperative to note the surrounding circumstances which impelled the deceased to leave the comforts of a roof and
brave the subsiding typhoon. As testified by Linda Alonzo Estavillo (see TSN, p. 5, 26 Sept. 1972) and Aida Bulong
(see TSN, p. 43, 26 Sept. 1972), the deceased, accompanied by the former two, were on their way to the latter's
grocery store "to see to it that the goods were not flooded." As such, shall We punish her for exercising her right to
protect her property from the floods by imputing upon her the unfavorable presumption that she assumed the risk of
personal injury? Definitely not. For it has been held that a person is excused from the force of the rule, that when he
voluntarily assents to a known danger he must abide by the consequences, if an emergency is found to exist or if
the life or property of another is in peril (65A C.S.C. Negligence(174(5), p. 301), or when he seeks to rescue his
endangered property (Harper and James, "The Law of Torts." Little, Brown and Co., 1956, v. 2, p. 1167). Clearly, an
emergency was at hand as the deceased's property, a source of her livelihood, was faced with an impending loss.
Furthermore, the deceased, at the time the fatal incident occurred, was at a place where she had a right to be
without regard to petitioner's consent as she was on her way to protect her merchandise. Hence, private
respondents, as heirs, may not be barred from recovering damages as a result of the death caused by petitioner's
negligence (ibid., p. 1165, 1166).

But petitioner assails the CA for having abused its discretion in completely reversing the trial court's findings of fact,
pointing to the testimonies of three of its employees its electrical engineer, collector-inspector, lineman, and
president-manager to the effect that it had exercised the degree of diligence required of it in keeping its electric lines
free from defects that may imperil life and limb. Likewise, the said employees of petitioner categorically disowned
the fatal wires as they appear in two photographs taken on the afternoon of June 29, 1967 (Exhs. "D" and "E"),
suggesting that said wires were just hooked to the electric post (petitioner's Memorandum, p. 170, Rollo). However,
as the CA properly held, "(t)he finding of the lower court ... was based on what the defendant's employees were
supposed to do, not on what they actually did or failed to do on the date in question, and not on the occasion of
the emergency situation brought about by the typhoon" (CA Decision, p. 25, Rollo). And as found by the CA, which
We have already reiterated above, petitioner was in fact negligent. In a like manner, petitioner's denial of ownership
of the several wires cannot stand the logical conclusion reached by the CA when it held that "(t)he nature of the
wounds as described by the witnesses who saw them can lead to no other conclusion than that they were 'burns',
and there was nothing else in the street where the victim was wading thru which could cause a burn except the
dangling live wire of defendant company" (supra).
"When a storm occurs that is liable to prostrate the wires, due care requires prompt efforts to discover and repair
broken lines" (Cooley on Torts, 4th ed., v. 3, p. 474). The fact is that when Engineer Antonio Juan of the National
Power Corporation set out in the early morning of June 29, 1967 on an inspection tour, he saw grounded and
disconnected lines hanging from posts to the ground but did not see any INELCO lineman either in the streets or at
the INELCO office (vide, CA Decision, supra). The foregoing shows that petitioner's duty to exercise extraordinary
diligence under the circumstance was not observed, confirming the negligence of petitioner. To aggravate matters,
the CA found:

. . .even before June 28 the people in Laoag were already alerted about the impending typhoon,
through radio announcements. Even the fire department of the city announced the coming of the big
flood. (pp. 532-534, TSN, March 13, 1975) At the INELCO irregularities in the flow of electric current
were noted because "amperes of the switch volts were moving". And yet, despite these danger
signals, INELCO had to wait for Engr. Juan to request that defendant's switch be cut off but the harm
was done. Asked why the delay, Loreto Abijero answered that he "was not the machine tender of the
electric plant to switch off the current." (pp. 467-468, Ibid.) How very characteristic of gross
inefficiency! (CA Decision, p. 26, Rollo)

From the preceding, We find that the CA did not abuse its discretion in reversing the trial court's findings but
tediously considered the factual circumstances at hand pursuant to its power to review questions of fact raised from
the decision of the Regional Trial Court, formerly the Court of First Instance (see sec. 9, BP 129).

In considering the liability of petitioner, the respondent CA awarded the following in private respondent's favor:
P30,229.45 in actual damages (i.e., P12,000 for the victim's death and P18,229.45 for funeral expenses); P50,000
in compensatory damages, computed in accordance with the formula set in the Villa-Rey Transit case (31 SCRA
511) with the base of P15,000 as average annual income of the deceased; P10,000 in exemplary damages; P3,000
attorney's fees; and costs of suit. Except for the award of P12,000 as compensation for the victim's death, We affirm
the respondent CA's award for damages and attorney's fees. Pusuant to recent jurisprudence (People vs.
Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA 381), We increase the said award of P12,000 to P30,000,
thus, increasing the total actual damages to P48,229.45.

The exclusion of moral damages and attorney's fees awarded by the lower court was properly made by the
respondent CA, the charge of malice and bad faith on the part of respondents in instituting his case being a mere
product of wishful thinking and speculation. Award of damages and attorney's fees is unwarranted where the action
was filed in good faith; there should be no penalty on the right to litigate (Espiritu vs. CA, 137 SCRA 50). If damage
results from a person's exercising his legal rights, it is damnum absque injuria (Auyong Hian vs. CTA, 59 SCRA
110).

WHEREFORE, the questioned decision of the respondent, except for the slight modification that actual damages be
increased to P48,229.45 is hereby AFFIRMED.

SO ORDERED.

G.R. No. 136303               July 18, 2000

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTHONY MELCHOR PALMONES, ANTHONY BALTAZAR PALMONES, accused-appellants.

DECISION

GONZAGA-REYES, J.:

This is an appeal by accused-appellants Anthony Melchor Palmones and Anthony Baltazar Palmones from the
decision of Branch 17 of the Regional Trial Court of Kidapawan, Cotabato, 12th Judicial Region, convicting them of
1 

the crime of murder 2

The information dated June 4, 1997 charging accused-appellants of the crime of murder reads as follows:
3 

"That in the evening of April 27, 1997 at Barangay Magsaysay, Municipality of Kidapawan, Province of Cotabato,
Philippines, the above-named accused, with intent to kill, armed with a gun, did then and there, willfully, conspiring,
confederating and mutually helping one another, unlawfully, feloniously and with treachery, attack, assault, and shot
the person of SPO2 ASIM MAMANSAL, thereby hitting and inflicting upon the latter gunshot wounds on the vital
parts of his body which is the cause of the death thereafter.

CONTRARY TO LAW."

Both accused were arraigned on July 15, 1997 and both pleaded not guilty to the charge against them. Thereafter,
trial on the merits commenced.
The prosecution first presented Sonny Boy Redovan, a 28 year-old farmer who was the nephew of the victim. He
testified that at around 10:00 in the evening of April 27, 1997, his mother and elder brother informed him that
something had happened to his uncle SP02 Asim Mamansal. They then rushed to the Kidapawan Doctor’s Hospital
and proceeded to the emergency room. Upon seeing his uncle, the witness went near him and asked him what had
happened to him. His uncle answered that he had been waylaid. The witness then asked the victim who the
perpetrators were and the victim answered that it was "Juany and Tony Palmones" which were the nicknames of the
two accused-appellants. He claimed that while he was talking with his uncle, there were attendants, nurses, and
4 

other bystanders whom he did not know present inside the emergency room. A few minutes after he talked with the
victim, a certain Dr. Aguayo arrived and examined the wounds of his uncle. About and hour later, he saw Police
Inspector Alexander Tagum arrive and he heard him ask his uncle who had shot him. The witness then heard his
uncle positively answer the policeman that his assailants were Juany and Tony Palmones. 5

On cross-examination, he testified that he was able to talk with his uncle for about one hour and that the most
important part of their conversation was the identification of his uncle’s assailants. He stated that it did not occur to
6 

his mind to immediately report to the police what his uncle had told him as his mind was troubled at that time. It was
only after the burial of his uncle on April 28, 1997 that he told Insp. Tagum that it was Tony and Juany Palmores
who had shot his uncle. 7

The prosecution next presented Dr. Hazel Mark Aguayo who testified that he was the surgeon-on-duty on the day
that SP02 Mamansal was shot. He stated that before he operated on the victim, he interviewed Mamansal and one
of the questions he asked is whether the victim had known who had shot him. He claimed that Mamansal told him
that he did not know who had shot him. He did not pursue this line of questioning further as he was told by a
8 

companion of the victim that the area where the victim was shot was dark. He testified that he operated on the
9 

victim at around 12:00 in the evening. He operated for around four (4) hours but the victim developed cardio
respiratory arrest at around 8:30 the following morning and thereafter, the victim died in the ward. 10

On cross-examination, he stated that it was Sonny Boy Redovan who was with SP02 Mamansal at the time that he
was interviewing the victim and that it was Redovan who told him that the assailant could not be identified because
the area where the shooting happened was dark. He likewise claimed that before he arrived at the hospital, a
11 

certain Dr. Caridad Jalipa was already attending to the victim and that she told him that the victim remained silent
when she asked him about the person who shot him. 12

The third witness for the prosecution was Police Inspector Alexander Camilon-Tagum. He testified that on the night
of April 27, 1997, he was at the Kidapawan, Cotabato Police Outpost. After receiving a radio report, he proceeded to
Brgy. Magsaysay, Kidapawan where he discovered that one of his men, SP02 Mamansal, was shot. After 13 

conducting an initial investigation of the crime scene, he sent his men towards different directions to look for
suspects. He then proceeded to the hospital together with another witness, Alice Villamor. On the way to the
hospital, Alice Villamor pointed to a passing motorcycle and told him that it was the motorcycle the assailants were
riding. He chased the motorcycle but he was not able to catch up with them as his car ran out of gas. He was able
14 

to borrow a motorcycle and he proceeded to chase the other motorcycle again. While riding on the borrowed
motorcycle, a certain PO3 Aniceta called him on the radio and told him that the assailants were Juany and Tony
Palmones. He and his men proceeded to the residence of the suspects where the brother of the accused-
15 

appellants, Triny Palmones, met them. He asked Triny Palmones where his brothers were and the latter responded
that he didn’t know. He then asked Triny Palmones whether his brothers owned a motorcycle and the latter admitted
that they owned a Kawasaki motorcycle which matched the description of the motorcycle he had been chasing. He 16 

then told his men to continue pursuing the assailants and after exhausting all efforts, he proceeded to the
Kidapawan Doctor’s Hospital. He confronted the victim in the emergency room and asked him about his assailants.
The victim answered that it was Juany and Tony Palmones. At that time, he claimed that Dr. Aguayo and two other
17 

medical ladies were inside the room.

On cross-examination, he testified that he was able to speak with Alice Villamor about the incident but that she told
him that she was not able to identify the assailant even though she was right beside the victim because of
darkness. He admitted that when he went to the hospital, he was already entertaining the idea that the suspects
18 

were Juany and Tony Palmones because of the radio call he received earlier. He likewise admitted that the only
question which he asked the victim was "who shot you?" and that he was not able to reduce his findings to writing. 19

The next witness for the prosecution was Mila Arimao Mamansal, the wife of the victim, who testified mainly on the
expenses she incurred because of the death of her husband. She also stated that she was able to talk with witness
Sonny Boy Redovan at the hospital but the latter did not tell her anything about the alleged assailants of her
husband. It was only on April 29, 1997 that she heard Redovan tell the Chief of Police of Kidapawan that Juany and
Tony Palmones were the ones who had shot her husband. 20

The prosecution next presented Asmyra Mamansal, the daughter of the victim. She testified that on the night of the
incident, she was at her aunt’s house where she was informed about the shooting of her father. She immediately
proceeded to the hospital where she saw her father lying on a bed calling her name. Her father then told her to take
down the name Alice Villamor whom she knew as the name of her father’s mistress. She was able to talk with her
21 

father for about thirty minutes.

On cross-examination, she testified that in the course of her conversation with her father, her father did not tell her
the reason why he mentioned the name of Alice Villamor nor did he tell her about the persons who had shot him. 22
The other two witnesses of the prosecution identified the death certificate of SPO2 Mamansal and the extract of the
23 

police blotter where the shooting incident was recorded.

24 

For their part, accused-appellants presented ten (10) witnesses to support their case.

The first witness, Alex Siago, a barangay kagawad, testified that he was one of the first persons to go to the victim
after the latter was shot. He stated that a certain Patricio Fuertes and Samuel Angelio then brought the victim to the
25 

Kidapawan Doctor’s Hospital. Thereafter, another kagawad, a certain Gregorio Lonzaga called up the police to
report the incident. A few minutes later, Inspector Tagum arrived and proceeded to make an investigation of the
26 

incident. He also claimed that he was the one who lent Insp. Tagum his motorcycle when the latter gave chase to
another motorcycle bearing two passengers. Considering that he was only five (5) meters away from the motorcycle
27 

when it passed by, he was able to see the faces of the passengers and he was certain that they were not the two
accused-appellants. 28

The next witness, Patricio Fuertes, testified that he was person who brought the victim to the hospital. At the 29 

hospital, he saw three policemen, whom he did not recognize, talking with the victim. He was about a meter away
from the bed of the victim when he heard a policeman, ask Mamansal whether he had recognized who had shot
him. He then heard the victim reply that he did not recognize his assailants. He likewise told the court that while he
30 

was bringing the victim to the hospital, he was not able to talk with Mamansal and neither did the victim identify his
assailants.31

The next witness for the defense was Alicia Villamor, the alleged girlfriend of the victim and his companion at the
time he was shot. She testified that in the evening of April 27, 1997, she was in her store together with the victim. At
around 10:00 p.m., she closed shop and went home together with Mamansal and her two helpers. While they were 32 

already near her house in Magsaysay, someone suddenly shot Mamansal. She was just at the side of Mamansal
when the shooting happened but she claimed that she was not able to identify the assailants as it was dark. Patricio 33 

Fuertes then brought the victim to the hospital but she did not accompany him as her clothes were stained with
blood. After changing her clothes, a group of policemen arrived at the crime scene. After conferring with the
policemen, she then rode with Insp. Tagum in going to the hospital. On the way, Insp. Tagum tried to halt a passing
34 

motorcycle. When the passengers of the motorcycle kept on going, Insp. Tagum fired warning shots and gave chase
but the car they were riding in ran out of gas. He then saw Alex Siago provide Tagum with a motorcycle and again
the latter gave chase. She claimed that she was not able to see the persons riding the motorcycle as it was moving
35 

quite fast. When she finally arrived at the hospital, she saw that Insp. Tagum was already there. She was then able
to talk with the victim who told her that he did not see the person who had shot him. 36

The next witness, Rommel Arambala, a 27 year old neighbor of Alive Villamor, corroborated the testimonies the
three previous witnesses.

The defense also called the two accused-appellants to support their defense of alibi.

Accused-appellant Anthony Melchor Palmones testified that at the time of the incident, he was in his house in
Kisulan, Sultan Kudarat, having a drinking session with friends. He estimated that Kisulan, Sultan Kudarat was at
least two hours away from the scene of the crime. Their group started drinking at around 8:00 in the evening and
37 

they only finished drinking at around 11:00 p.m. By 11:30, their group had already dispersed. He admitted knowing
38 

the victim as a policeman in Kidapawan but he denied having a quarrel or a grudge against him. 39

The testimony of accused-appellant Anthony Melchor Palmones was corroborated by witnesses SPO1 Ramil
Bahian and Jolito Silva.

For his part, accused-appellant Anthony Baltazar Palmones claimed that at the time of the shooting of Mamansal,
he was at his house in Datu Piang St., Kidapawan, Cotabato, having a drink with a few friends. He stated that on the
day of the incident, at around 5:00 p.m. of April 27, 1997, he was resting inside his home as he had just come from
work. While in his house, Rodolfo Barrientos arrived to borrow some money from him. After giving him the money,
40 

the accused asked Rodolfo Barrientos to stay for dinner and to have some drinks. While they were drinking "tuba,"
Jerry Barrientos arrived and joined them. They only stopped drinking at around 11:00 p.m. The accused likewise
41 

testified that he only knew the victim’s surname and that he did not have any quarrel with or grudge against the
victim in the past. 42

On cross-examination, he denied that he drove a motorcycle to work. He admitted however, that during the drinking
spree, he went out of his house to buy "tuba" from a nearby store. On re-direct, he stated that the store was only 10
43 

to 15 meters away from his home and that he was only gone for 2 to 5 minutes. 44

Accused-appellant Anthony Baltazar Palmones’s testimony was corroborated by Rodolfo Barrientos and Jerry
Barrientos who both claimed that they were drinking with accused-appellant at the latter’s home at the time of the
incident.

On May 8, 1998, the trial court rendered its questioned decision finding accused-appellants guilty of the crime of
murder. The dispositive portion of the decision reads, as follows:
"WHEREFORE, prescinding (sic) from the foregoing facts and considerations, the Court finds both accused Anthony
Melchor Palmones and Anthony Baltazar Palmones guilty beyond reasonable doubt, as principal of the crime of
Murder, hereby sentenced (sic) both accused each to suffer the penalty of Reclusion Perpetua and to indemnify the
heirs of Asim Mamansal, the sum of P50,000.00 and to pay the costs."

Accused-appellants filed a Motion for Reconsideration of this decision but the trial court, in an Order dated 26
45 

October 1998 , denied the same for lack of merit. Hence, this appeal where accused-appellants raise the following
46 

assignment of errors:

I.

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED NOTWITHSTANDING THE FAILURE OF THE
PROSECUTION TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT.

II.

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANTS BASED ON THE WEAKNESS OF
THEIR DEFENSE.

III.

THE FACTS, AS ESTABLISHED BY ALL THE EVIDENCE PRESENTED DO NOT SUPPORT THE LOWER
COURT’S FINDING OF GUILT.

IV.

THE COURT A QUO COMMITTED A PALPABLE ERROR AND HAD DEMONSTRATED CLEAR BIAS AND
PREJUDICE IN FAVOR OF THE PROSECUTION AND AGAINST THE ACCUSED.

V.

THE COURT A QUO ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE TESTIMONY OF SONNY BOY
REDOVAN AND INSPECTOR ALEXANDER TAGUM.

VI.

THE COURT A QUO ERRED IN FINDING THAT THE VICTIM, ASIM MAMANSAL WAS ABLE TO IDENTIFY HIS
ASSAILANTS BEFORE HE DIED.

VII.

THE COURT A QUO ERRED IN CONSIDERING THE ALLEGED DYING DECLARATION OF ASIM MAMANSAL
AS AN EXCEPTION TO THE HEARSAY RULE.

VIII.

THE COURT A QUO ERRED IN CONSIDERING THE ALLEGED DYING DECLARATION OF ASIM MAMANSAL
AS PART OF THE RES GESTAE RULE.

The Office of the Solicitor General ("OSG"), for its part, filed a Manifestation in Lieu of Brief where it recommended
47 

that the accused-appellants be acquitted of the crime charged against them. In this Manifestation, the OSG
reasoned that the identity of the assailants was not sufficiently established by the evidence of the prosecution and
that the trial court erred in admitting the alleged dying declaration of the victim as an exception to the hearsay rule.

From the records of the case, the conviction of the two accused-appellants was based largely on the alleged dying
declaration of the victim made to two witnesses of the prosecution and the apparent weakness of their defense of
alibi. It behooves us therefore to determine the admissibility of the alleged oral dying declaration of the deceased
Asim Mamanal as testified to by prosecution witnesses Sonny Boy Redovan and Police Investigator Alexander
Tagum.

As a rule, a dying declaration is hearsay, and is inadmissible as evidence. This is pursuant to Rule 130, section 30
48 

of the Rules of Court which states:

Sec. 30. Testimony generally confined to personal knowledge; hearsay excluded. – A witness can testify only to
those facts which he knows of his own knowledge; that is, which are derived from his own perception, except as
otherwise provided in these rules.
There are several exceptions however to the rule of inadmissibility of hearsay evidence, the first one of which is the
admissibility of dying declarations given under the circumstances specified in Section 31, Rule 130 of the Rules of
Court, to wit:

Sec. 31. Dying declaration. – The declaration of a dying person, made under a consciousness of an impending
death, may be received in a criminal case wherein his death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death

As such, the requirements for the admissibility of an ante mortem statement are: (a) it must concern the crime and
the surrounding circumstances of the declarant’s death; (b) at the time it was made, the declarant was under a
consciousness of impending death; (c) the declarant was competent as a witness; and (d) the declaration was
offered in a criminal case for murder, murder or parricide win which the decedent was the victim.49

As testified to by prosecution witness Sonny Boy Redovan, the supposed dying declaration of the victim was made
as follows:

PROS. DE GUZMAN:

Q: Did you reach the Kidapawan Doctor’s Hospital, Inc.?

A: Yes, sir.

Q: What did you discover?

A: Upon arrival, I immediately proceeded to the emergency room.

Q: What did you do in the emergency room?

A: I saw my uncle there lying.

Q: Are you referring to SPO2 Asim Mamansal?

A: Yes, sir.

Q: What did you do after that?

A: Upon seeing his condition I went near him and whispered "Ano ba ang nangyari sa yo?" meaning "What
happened to you?"

Q: What was the answer, if any?

A: His answer (sic) that he was waylaid.

Q: What else did he tell you?

A: I was worried after saying those words, I asked him who are the perpetrators.

Q: What was the answer?

A: And he said "It’s Juany and Tony Palmones."

Q: When those words uttered to you (sic) where there other persons inside the room?

A: Attendants, nurses, "ususero," I do not know the others. 50

In a similar vein, Police Investigator Alexander Tagum likewise testified that the victim named the two accused as
his assailants prior to the victim’s death. Thus:

Q: What did you do at the Kidapawan Doctor’s Hospital?

A: I immediately went to the room wherein SPO1 Mamansal was lying.

Q: What did you do while you were inside the room where SPO1 Mamansal was lying?

A: I immediately confronted him sir and immediately asked the question: Who shot you?

Q: What was the answer?

A: SPO1 Mamansal answered sir, it is Juany and Tony Palmones.

XXX

Q: Can you remember who were your companions (sic) inside the room where SPO2 Mamansal was lying?

A: I noticed two (2) ladies medical orderly (sic) and Dr. Aguayo. 51

In cases where an alleged dying declaration is sought to be admitted, it must be proven that that the declaration was
made "under a consciousness of impending death" which means simply that the declarant is fully aware that he is
dying or going to die from his wounds or injuries soon or imminently, or shall have a complete conviction that death
is at hand, or there must be "a settled hopeless expectation." 52

In the instant case, it was not established by the prosecution that the statements of the declarant concerning the
cause and surrounding circumstances of his death were made under the consciousness of impending death. No
proof to this effect was ever presented by the prosecution. It was not shown whether Sonny Boy Redovan or
Inspector Alexander Tagum ever asked the victim whether he believed that he was going to die out of his injuries or
any other similar question. Sonny Boy Redovan claimed that he was able to talk with the victim for around an hour
but the only thing he revealed of their conversation was the alleged identification of the victim of his two
assailants. For his part, Inspector Tagum admitted that the only question he asked of the victim was if the victim
53 

knew who had shot him. 54

While it is true that the law does not require that the declarant explicitly state his perception that he has given up the
hope of life , the circumstances surrounding his declaration must justify the conclusion that he was conscious of his
55 

impending death. In the instant case, it was not proven that the victim was ever aware of the seriousness of his
56 

condition. As testified to by Dr. Mark Aguayo, the vital signs of the victim, prior to his operation, were quite
stable. Moreover, from the time the victim was brought to the hospital at 10:30 p.m. until his operation at 12:00
57 

midnight, he was still able to talk intelligently with at least four (4) other persons on various matters. The fact that his
vital signs were strong and that he still had strength to converse with these four (4) witnesses belie the conclusion
that the victim was under the consciousness of death by reason of the gravity of his wounds.

Neither may the alleged statements attributed to the victim be admissible as part of the res gestae. Res
gestae refers to those exclamations and statements made by either the participants, victims, or spectators to a
crime immediately before, during, or immediately after the commission of a crime, when the circumstances are such
that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion
and there was no opportunity for the declarant to deliberate and to fabricate a false statement. 58

In order to admit statements as evidence part of the res gestae, the element of spontaneity is critical.  The following
1âwphi1

factors have generally been considered in determining whether statements offered in evidence as part of the res
gestae have been made spontaneously: (1) the time that lapsed between the occurrence of the act or transaction
and the making of the statement; (2) the place where the statement was made; (3) the condition of the declarant
when he made the statement; (4) the presence or absence of intervening events between the occurrence and the
statement relative thereto; and (5) the nature and circumstances of the statement itself. 59

Tested against these factors to test the spontaneity of the statements attributed to the victim, we rule that these
statements fail to qualify as part of the res gestae. When Mamansal allegedly uttered the statements attributed to
him, an appreciable amount of time had already elapsed from the time that he was shot as the victim was shot at
around 10:00 p.m. but he only uttered the statements attributed to him about 30 minutes to an hour later. Moreover,
he allegedly made these statements not at the scene of the crime but at the hospital where he was brought for
treatment. Likewise, the trip from the scene of the crime to the hospital constituted an intervening event that could
have afforded the victim opportunity for deliberation. These circumstances, taken together, indubitably show that the
statements allegedly uttered by Mamansal lack the requisite spontaneity in order for these to be admitted as part of
the res gestae.

Finally, after a thorough reading of the testimonies presented by both sides, it is even doubtful that the victim ever
uttered these alleged ante mortem statements in the first place. We note that the testimonies of Sonny Boy
Redovan and Investigator Alexander Tagum are contradicted not only by the witnesses for the defense but also by
the prosecution’s own witnesses.

Dr. Mark Aguayo, the doctor who performed the operation on the victim and who is an impartial and disinterested
witness, categorically stated that the victim told him that he did not recognize those who had shot him. He likewise 60 

testified that witness Sonny Boy Redovan told him in the emergency room that the victim was not able to recognize
his assailants because of darkness. Similarly, the wife and the daughter of Asim Mamansal, who were also able to
61 

talk with the victim prior to his death, likewise denied that the victim ever told them the identity of his assailants. We
fail to see why the victim should choose to tell some people the identity of his assailants and deny his knowledge of
the same to others.

With respect to the witnesses for the defense, Alex Siago and Patricio Fuertes, who were both present at the site of
the shooting immediately after the incident, testified that they did not hear the victim identify his assailants. Patricio
Fuertes even stated that at the hospital, he heard Mamansal tell the police officers present that he did not recognize
those who had shot him. Most importantly, Alice Villamor, who was the lover of the victim and who was with him
during the shooting, categorically stated that it was not possible to recognize the assailants as the area where the
shooting happened was dark. Moreover, she was able to talk with Mamansal at the hospital where he told her that
he did not see the persons who had shot him. This testimony of Villamor is quite significant and we fail to see why
the trial court failed to consider the same in its decision. Alice Villamor, as the lover of the victim, had no motive to
lie for the defense and had all the reason to speak the truth in order to seek justice for the death of her lover.

As previously stated, the trial court based its judgment of conviction on the alleged ante mortem statements of the
victim and the apparent weakness of the defense put up by the two accused-appellants. As it now stands however,
the weakness of the alibi of the two accused-appellants cannot be held against them in view of the absence of a
clear and positive identification of them as the perpetrators of the crime. And while their alibi may not have been
proven so satisfactorily as to leave no room for doubt, such an infirmity can not strengthen the weakness of the
prosecution’s evidence, the reason being that in a criminal prosecution, the State must rely on the strength of its
own evidence and not on the weakness of the defense. 62

WHEREFORE, premises considered, the judgment dated 8 May 1998 of Branch 17 of the Regional Trial Court of
Kidapawan, Cotabato is hereby REVERSED and SET ASIDE. Accused-appellants Anthony Melchor Palmones and
Anthony Baltazar Palmones are ACQUITTED and ordered RELEASED from confinement unless they are being held
for some other legal grounds.

PEOPLE V PUTIAN
74 SCRA 133

“Although a declaration does not appear to have been made by the declarant under the expectation of a
certain and impending death, and for this reason, is not admissible as a dying declaration, such declaration
can fall squarely in the rule on res gestae.”
Facts:
Guillermo Putian appealed from the decision of the Court of First Instance of Misamis Occidental, finding him guilty of the murder of
Teodulo Panimdim. The prosecution presented only two witnesses: (1) The doctor who treated the victim (2) the policeman who
arrested the accused and seized from him the dagger allegedly used in the stabbing and who took down the victim's ante-mortem
statement Identifying "Guirmo" Putian as his assailant.

The defense presented only one witness. He testified that appellant Putian was in the dance hall when the victim was stabbed outside
that hall. Putian admits that while Panimdim was attending a dance at Barrio Tabo-o, Panimdim was stabbed in the left groin. As a
result of that assault, Panimdim died five days later at the provincial hospital. According to the prosecution, Patrolman Arturo Yap
was passing Barrio Tabo-o, he noticed a commotion at the back of the dance hall in that barrio. Yap investigated Putian.

ISSUE:
WON the statement of Panimdim is a dying declaration or a part of the res gestae.

Ruling:
The res gestae rule embraces (a) spontaneous exclamations and (b) verbal acts. The trial court admitted Panimdim's statement as a
spontaneous statement made after the commission of a felony. A declaration made by a person immediately after being wounded,
pointing out or naming his assailant, may be considered as part of the res gestae and is admissible in evidence. A statement was given
sometime after the stabbing while the declarant was undergoing treatment at a medical clinic, where he had no time to concoct a
falsehood or to fabricate a malicious charge against the accused and no motive has been shown as to why he would frame-up the
accused would render the statement admissible as a part of the res gestae.

PEOPLE VS LUNGAYAN
162 SCRA 100

“Res Gestae requires that the statement be spontaneous and made at a time when there was no opportunity to
concoct or develop a story.”
Facts:
Agripina Juan Vda. De Garzota, a 52 year old widow, charged the accused the barangay captain of rape. After the alleged rape, she
reached home at around midnight and one of her daughters asked her what happened. Agripina then revealed that the accused abused
her and when pressed for details, she just said that she will tell everything in the morning, and thereafter reported the incident. By way
of rebuttal during appeal, the accused emphasized the failure of the prosecution to establish involuntariness on the part of the victim.

Issue:
Whether the trial court erred in admitting the revalation of to the daughter part of the res gestae?

Ruling:
YES. The RTC erred in considering the revelation as part of res gestae. The court stressed that in order for the statement to be part of
the res gestae, it must not only be spontaneous but also be made at a timewhen there was no opportunity to concoct or develop a story.
As the Court observed, she did not go homeimmediately after the incident. She took a walk instead and spent some time thinking of
what to do next.She had enough time to make a decision on what will be the nature of her story.
G.R. No. 139211             February 12, 2003

PEOPLE OF THE PHILIPPINES, appellee,

vs.
GORGONIO VILLARAMA alias "Baby", appellant.

DECISION

CORONA, J.:

On November 2, 1996, the spouses Rosendo and Merlita Tumulak went to the cemetery to light candles for the
dead, leaving behind their three young children, Arthel (8 years old), Bernadeth (6 years old) and Elizabeth (4 years
old), playing inside their house without adult supervision. That perhaps was the biggest mistake of their lives and
one the couple will always regret. On that fateful day, their youngest child fell prey to the rapacious desires of a
beast in the person of the child’s own uncle, appellant Gorgonio Villarama.

Approximately between five to six o’clock in the afternoon, appellant, 35-year-old Gorgonio Villarama, elder brother
of the victim’s mother Merlita, arrived at the Tumulaks’ house and found the three children by themselves. 1

Thereupon, appellant ordered the two older children, Arthel and Bernadeth, to pasture the goats, leaving the
youngest, Elizabeth, with him. Once alone, appellant undressed Elizabeth and made her lie down while he pulled
2 

down his pants and briefs to his knees, and thereafter mounted his niece Elizabeth. 3

This was the scene which greeted the prosecution’s eyewitness, Ricardo Tumulak, younger brother of Elizabeth’s
father Rosendo, when he arrived at his brother’s house to return the bolo he borrowed from the latter. Ricardo 4 

peeped through the open window to check why his niece was crying and saw appellant, with briefs and pants
slipped down to the knees, on top of Elizabeth who was naked. When appellant noticed Ricardo’s presence, he
5 

hurriedly stood up and scurried away through the backdoor. Ricardo immediately entered the house and dressed up
6 

the crying child. Ricardo then called his mother, the victim’s paternal grandmother, who was in the house
nearby. The grandmother asked Elizabeth what happened but the child did not answer and just continued crying.
7  8

Rosendo and Merlita Tumulak got home at about six o’clock in the evening. They were met by Rosendo’s parents
who told them what happened. 9 
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Merlita immediately went to her daughter who had not stopped crying and asked Elizabeth what happened and why
was she crying. It was then that Elizabeth spoke and told her mother that her uncle Baby, herein appellant,
10 

removed her panties, made her lie down and then inserted his penis inside her vagina. 11

That same evening, the Tumulak family, including Rosendo’s father, who was a barangay tanod, looked for
appellant. They found him at a party in a neighbor’s house half a kilometer from theirs.  They apprehended
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appellant and delivered him, first, to the barangay captain and later on, to the Merida Police. Appellant allegedly
12 

admitted the commission of the crime and said that he only did it out of drunkenness. 13

On November 4, 1996, Elizabeth was brought to Dr. Jane Grace Solaña, a physician at the Rural Health Center of
Merida, for examination. Dr. Solaña found the girl complaining of pain in her vagina and detected contusions in
her labia minora. The doctor wrote her findings in the following medical report:

Reddish discoloration w/ tenderness (contusion), medial aspect (R) & (L) labia minora.

CONCLUSIONS:

1. The above described physical injuries are found in the body of he subject, the age of which is compatible
to the alleged date of infliction.

2. Under normal circumstances, without subsequent complication and/or deeper involvement present, but
not clinically apparent at the time of the examination, the above described physical injuries is expected to
improve in 7 to 10 days. 14

Appellant was charged with rape as then defined and penalized under Article 335 of the Revised Penal Code, as
amended by RA 7659, in the following information:
15 

That on or about the 2nd day of November 1996, at Sitio Capasanan, Barangay Casilda, Municipality of Merida,
Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by
means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the
herein offended party ELIZABETH V. TUMULAK, who is 4 years old, against her will and without her consent, while
inside their residential house of the victim, the accused who is her uncle, held her hand, remove her short pants and
was made to lie down and was made to spread her legs, lay on top of her and insert his penis over (sic) the victim’s
genital organ to accomplish his lewd design, to her damage and prejudice.
CONTRARY TO LAW. 16

Upon arraignment, appellant, assisted by counsel, entered a plea of not guilty. Trial on the merits ensued.

The prosecution presented four witnesses: eyewitness Ricardo Tumulak, Dr. Jane Grace Solaña, the physician who
examined the victim, and the victim’s parents Merlita and Rosendo Tumulak.

The defense presented two witnesses: appellant Gorgonio Villarama and Bernaldo Claros, cousin of appellant.

Appellant denied the accusation against him. He claimed that at about five o’clock in the afternoon of November 2,
1996, he was in the house of his aunt, Patricia Claros, butchering a pig. He, however, admitted that at 6 o’clock that
same evening, he went to the victim’s house about a kilometer away from his aunt’s house, after a 30-minute walk.
Upon reaching the place, he discovered that his sister Merlita and her husband were not home, but their three
children were playing inside the house. Appellant then told the children to tell their mother that he was going to
spend the night in their house because it was already late and he could not find any means of transportation to go to
Ormoc City where he lived. 17

Thereafter he smoked a cigarette in the balcony and admitted having cradled the victim because the child allegedly
clung to his shoulder. Appellant claims that it was that cradling which eyewitness Ricardo Tumulak chanced upon
when the latter arrived to borrow the bolo of his brother Rosendo. According to appellant, they were not able to find
the bolo so Ricardo left. Not long after, appellant also left, heeding the invitation of a friend to attend the birthday
party of the latter’s wife. Upon arriving at the friend’s house, appellant helped in grating coconut and joined the
18 

celebrations. It was then that he was arrested by the victim’s paternal grandfather, a barangay tanod, and brought
before the barangay captain who informed him of the accusation against him. The Mayor of Merida thereafter
arrived with police officers and brought him to the Merida jail.
19

On cross examination and in response to questions propounded by the trial court, appellant also admitted ordering
the victim’s two older siblings to pasture the goats, leaving him alone with the victim Elizabeth.20

Appellant’s cousin, Bernaldo Claros, corroborated appellant’s testimony that they butchered a pig together.
However, Claros also testified that he left appellant at about 5:30 in the afternoon to go to the house of his elder
brother Oligario Claros, Jr. where he spent one hour before going back to his mother’s house, and, upon his return,
he found appellant still there. Thereafter, they attended a friend’s birthday party. They arrived at the party at 6:30 in
the evening and stayed there until the barangay tanod arrested appellant.

On April 30, 1999, the Regional Trial Court of Ormoc City, Branch 35, Eighth Judicial Region, in Criminal Case No.
50630-0 rendered a decision finding accused-appellant Gorgonio Villarama guilty as charged and imposing the
21 

death sentence on him. The trial court disposed thus:

Wherefore, for all the foregoing consideration, the Court finds the accused Gorgonio Villarama alias "Baby" guilty
beyond reasonable doubt of the crime of Rape, and hereby sentences him, it being proven that the crime of rape
was committed under the attendant circumstance of the victim being under eighteen (18) years of age and the
accused, the offender being an uncle and therefore relative by consanguinity within the third civil degree, to the
penalty of DEATH pursuant to Art. 335 of the Revised Penal Code, as amended by Sec. 11, RA 7659.

The accused is also penalized to pay the private offended party the sum of P50,000.00 as indemnity.

SO ORDERED. 22

Appellant now questions said conviction in this automatic review before us and anchors his appeal on the general
catch-all argument that the trial court erred in finding him guilty beyond reasonable doubt.

Appellant makes much capital of the non-presentation of the victim Elizabeth on the witness stand and invokes the
doctrine of willful suppression of evidence which raises the presumption that such evidence was adverse to the
prosecution.

This argument is utterly without merit.

At the outset, it must be stressed that it is the prosecution which controls the presentation of its witnesses. 23

Unlike countless other rape cases perpetrated in relative isolation and secrecy, where only the victim can testify on
the forced coitus, the offense here was providentially witnessed by another person, an adult, who was definitely
more articulate in describing the sensitive details of the crime.

Moreover, Dr. Jane Solaña’s testimony sealed the case for the prosecution when she testified on the presence of a
contusion on the victim’s genital organ, specifically the labia minora. Thus, the prosecution deemed the evidence
sufficient to overwhelm the constitutional presumption of innocence of appellant.
While the victim’s testimony of the assault would have added support to appellant’s conviction, the same was not
indispensable. As aptly pointed out by the Solicitor General, the intent of the prosecution was to spare the victim
from further trauma which could have resulted from being placed on the witness stand. The prosecution’s
apprehension in presenting the victim can be inferred from the records:

TESTIMONY OF ROSENDO TUMULAK

PROS. BELETA

/continuing

Q Now, since that incident up to this time, do you notice of (sic) any physical changes in her?

A Yes, ma’am.

Q Will you please tell this Honorable Court.

A Right after the incident, she was sick, she seemed to be, she cannot sleep and she seemed to be scared. 24

TESTIMONY OF MERLITA TUMULAK

Q Prior to that incident, could your child talk intelligently?

A Yes, she could talk intelligently.

Q After the incident, how did you observe her speech? Could she also talk intelligently the way she talked
prior to the incident?

A No longer. 25

PROS. BELETA

Q After this incident of November 2, 1996, can you tell this court the behavior of your child Elizabeth
Tumulak. Did you find any unusual behavior?

A Yes, ma’am.

Q Can you tell this Court, what is that unusual behavior?

A We can no longer hear her speak, she used to have fever, and she was so sickly. If you talk to her, it
would seem nothing and she would easily cry.

Q Before the incident, do you find her to be jolly?

A Yes, ma’am.

Q Would you consider her very sick?

A Yes, ma’am. 26

The Court is not convinced that the prosecution suppressed any evidence. The victim was present in the court room
a few times during the trial. The defense could have called Elizabeth to the stand as a hostile witness but it did not.

Time and again, the Court has held that the non-presentation of certain witnesses by the prosecution is not a
sufficiently plausible defense. There should thus be no unfavorable inferences from the failure of the prosecution to
27 

present Elizabeth. If appellant believed that her testimony would have exculpated him, then he should have
presented Elizabeth. And the coercive processes of the court would have been at his disposal had Elizabeth refused
to testify.
28

Appellant likewise asserts that the testimonies of the victim’s parents were hearsay since they did not witness the
actual rape and were only relating the rape as allegedly told to them by Elizabeth.

This too fails to convince us.

There are several well-entrenched exceptions to the hearsay rule under Sections 37 to 47 of Rule 130 of the Rules
of Court. Pertinent to the case at bar is Section 42 which provides:
SEC. 42. Part of the res gestae. - Statements made by a person while a startling occurrence is taking place or
immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part
of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res gestae.

To be admissible as part of res gestae, a statement must be spontaneous, made during a startling occurrence or
immediately prior or subsequent thereto, and must relate to the circumstance of such occurrence. 29

In the case at bar, there is no doubt that the victim was subjected to a startling occurrence when she pointed to
appellant as her assailant. It is evident from the records that the statement was spontaneous because the time gap
from the sexual assault to the time the victim recounted her harrowing experience in the hands of appellant was very
short. Obviously, there was neither capability nor opportunity for the 4-year-old victim to fabricate her statement.

The critical factor is the ability or chance to invent a story of rape. At her age, the victim could not have had the
sophistication, let alone the malice, to tell her mother that her uncle made her lie down, took off her panties and
inserted his penis inside her vagina.

The shock of an unwelcome genital penetration on a woman is unimaginable, more so to a four-year-old child. Such
a brutal experience constituted unspeakable trauma. The fact that Elizabeth was still crying when her parents
arrived reinforces the conclusion that she was still in a traumatic state when she made the statements pointing to
appellant.

In People vs. Moreno, the Court, sustaining the conviction of an accused for robbery with rape, ruled that the
30 

affidavit of the accused who was not available for trial was properly admitted in evidence as part of res gestae:

This exception is based on the belief that such Statements are trustworthy because made instinctively, ‘while the
declarant’s mental powers for deliberation are controlled and stilled by the shocking influence of a startling
occurrence, so that all his utterances at the time are the reflex products of immediate sensual impressions, unaided
by retrospective mental action’. Said natural and spontaneous utterances are perceived to be more convincing than
the testimony of the same person on the witness stand.

Immediately after the three accused left the house where the crime was committed, and the threatening presence of
the accused was gone, both Mary Ann Galedo and Narcisa Sumayo told their employers, the Mohnani spouses, that
they were raped. The latter later testified in court as to these statements. These were thus part of the res
gestae since they were spontaneously made after their harrowing experience, as soon as the victims had the
opportunity to make them without fear for or threat to their lives."

The Court is not unmindful of its ruling in People vs. Contreras, wherein the accused was acquitted in one of the
31 

many statutory rape charges against him because, among other things, the prosecution failed to present the child-
victim.

At first blush, the facts of that case are deceptively similar to those of the case at bar. However, upon careful
scrutiny and analysis of the two cases, we rule that the instant case is not on all fours with the Contreras case.

In Contreras, the main witness for the prosecution, Nelene Diaz, was not deemed by the Court to be in a position to
categorically state that the accused’s genitals had penetrated the victim’s vagina. In fact, what she saw was merely
the accused, with his zipper open and his penis exposed, facing the six-year-old victim who was sitting on his lap
with her legs apart. Although the victim had no underwear, it was, nevertheless, established that the witness did not
see any genital contact between the two as the genital organs were visibly apart. However, in the case at bar, the
eyewitness saw the appellant, without his briefs and pants, on top of the naked victim - a position conclusively
indicating sexual intercourse.

In Contreras, there was positive testimony of the victim’s companions that the rape was prevented by the timely
arrival of the witness. This circumstance is not present in this case.

Furthermore, in Contreras, the victim’s statement that she had been sexually molested by the accused was not
received under the res gestae exception to the hearsay rule, because her statement did not refer to the incident
witnessed by Nelene but to a general pattern of molestation of her and her companions by the accused. In contrast,
Elizabeth’s declaration to her mother regarding the then just concluded assault were so full of details specific to the
incident that there could be no doubt she was referring to the same incident witnessed by Ricardo Tumulak.

Finally, in the Contreras case, the mother of the victim did not testify in court for no explainable reason. Here,
Elizabeth’s mother actively pursued the prosecution of appellant who is her own brother. No mother will falsely
accuse a person of rape, specially if it involves her own sibling, unless she is convinced it will vindicate the wrong
done to her daughter.

Appellant attempts to cast doubt on Ricardo Tumulak’s testimony, branding the same as self-serving and devoid of
any evidentiary weight on the ground that Ricardo is the victim’s uncle.
This argument is flimsy.

First of all, a self-serving declaration is one that is made by a party, out of court and in his favor. It does not include
the testimony he gives as a witness in court. 32

Second, Ricardo Tumulak’s testimony was credible. He harbored no ill-motive against appellant which could have
impelled him to fabricate a story so repulsive as to attach a stigma on his niece, the victim, for the rest of her life.
Appellant himself admitted that, prior to the rape incident, he had been a friend of Ricardo.

Blood or conjugal relationship between a witness and the victim does not per se impair the credibility of a witness.
On the contrary, relationship itself can strengthen credibility in a particular case, for it is unnatural for a relative of a
victim to falsely accuse someone other than the actual culprit. 33

The guilt of the appellant having been established, we now delve into the extent of his culpability, the stage of
consummation of the crime of rape.

Appellant insists that the medical report of the prosecution witness, Dr. Solaña, failed to support the finding of
consummated rape.

The Court, in People vs. Campuhan, laid down the parameters of genital contact in rape cases, thus:
34 

In People v. De la Peña, we clarified that the decisions finding a case for rape even if the attacker’s penis merely
touched the external portions of the female genitalia were made in the context of the presence or existence of an
erect penis capable of full penetration. Where the accused failed to achieve an erection, had a limp or flaccid penis,
or an oversized penis which could not fit into the victim’s vagina, the Court nonetheless held that rape was
consummated on the basis of the victim’s testimony that the accused repeatedly tried, but in vain, to insert his penis
into her vagina and in all likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her
vulva, or that the penis of the accused touched the middle part of her vagina. Thus, touching when applied to rape
cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the
penis on the external layer of the victim’s vagina, or the mans pubis, as in this case. There must be sufficient and
convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the
external surface thereof, for an accused to be convicted of consummated rape. As the labias, which are required to
be "touched" by the penis, are by their natural situs or location beneath the mans pubis or the vaginal surface, to
touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that
touching the labia majora or the labia minora of the pudendum constitutes consummated rape.

The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area,
e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the
rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is
the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface.
The skin or the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin
skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora are the labia
minora. Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and not merely
for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or
touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of
the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can
be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.

Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ," but
also progressed into being described as "the introduction of the male organ into the labia of the pudendum, or the
"bombardment of the drawbridge." But, to our mind, the case at bar merely constitutes a "shelling of the castle of
orgasmic potency," or as earlier stated, a "strafing of the citadel of passion."

As can be drawn from the above ruling, the mere introduction of the male organ into the labia majora of the
pudendum is sufficient to consummate rape.

The Court is convinced that the medical report and testimony of Dr. Solaña provided enough bases to prove that
appellant’s sexual assault on the victim had reached the gynecological threshold for rape. The labia minora are
directly beneath the labia majora, thus, the contusion in labia minora of the victim’s vagina and the pain she felt as
reported by Dr.Solaña were decisive indications that appellant was able to enter the labia majora. Clearly, this is
way beyond the mere "shelling of the castle of orgasmic potency" or the "strafing of the citadel of passion".

In most cases of rape committed against young girls where total penetration of the victim’s organ is improbable due
to the small vaginal opening, it has been held that actual penetration of the victim’s organ nor rupture of the hymen
is not required.35

We now come to the critical and crucial part as we discuss the propriety of the trial court’s imposition of the death
penalty.
Article 335 as amended by R.A. 7659, provides:

Art. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any
of the following circumstances.

xxx xxx xxx

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the
parent of the victim.

2. when the victim is under the custody of the police or military authorities.

3. when the rape is committed in full view of the husband, parent, any of the children or other relatives within
the third degree of consanguinity.

4. when the victim is a religious or a child below seven (7) years old.

5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.

6. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police
or any law enforcement agency.

7. when by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation.

The Court is convinced with moral certainty that appellant Gorgonio Villarama raped 4-year-old Elizabeth Tumulak
on November 2, 1996. We, however, hold that the trial court erred in imposing the death penalty on him. Appellant
can neither be convicted for incestuous rape under the first paragraph of Article 335 of the Revised Penal Code, as
amended, nor for rape of a child below 7 years old under the fourth paragraph of the same provision.

Under paragraph 1, although Elizabeth was less than 18 years at the time she was raped and the offender was her
uncle, the information failed to categorically state that said offender was a relative by consanguinity within the third
civil degree. Jurisprudence dictates that if the offender is merely a relative, not a parent, ascendant, step-parent, or
guardian or common-law spouse of the mother of the victim, the information must allege that he is "a relative by
consanguinity or affinity (as the case may be) within the third civil degree". It is not enough for the information to
merely allege that appellant is the "uncle" of the victim even if the prosecution is able to prove the same during trial.
36

Under paragraph 4, it is true that the penalty for raping a child below 7 years old is death. However, in the case at
hand, even if Elizabeth was only 4 years old when the appellant committed the dastardly crime, the prosecution did
not present, other than the testimony of the mother, independent evidence proving her age.

Court decisions on the rape of minors invariably state that, in order to justify the imposition of the death penalty,
there must be independent evidence showing the age of the victim. Testimonies on the victim’s age given by the
prosecution witnesses or the lack of denial of the accused or even his admission thereof on the witness stand is not
sufficient. This Court has held that, to justify the imposition of the death penalty for rape committed against a child
below 7, the minority of the victim must be proved with equal certainty and clarity as the crime itself. The failure to
sufficiently establish the victim’s age with factual certainty and beyond reasonable doubt is fatal and consequently
bars conviction for rape in its qualified form.
37

In the case at bar, the victim was presented in open court during the testimony of the mother to establish Elizabeth’s
age:

Q How about the victim Elizabeth Tumulak, is she your daughter?

A: Yes, ma’am.

Q How old is she at the time of the incident?

A Four (4) years and eleven (11) months.

Q Will you please point her out

INTERPRETER

(The witness pointed to a child and when asked about her name, she answered, Elizabeth Tumulak) 38
The above-quoted testimony, however, is not sufficient for the court to take judicial notice of the victim’s
age. In People vs. Liban39, citing People vs. Tundag , the Court declared that, in cases calling for a conviction of
40 

rape in its qualified form, the age of the victim, without qualification, is not a matter of judicial notice, whether
mandatory or discretionary . Judicial notice of the issue of age without the requisite hearing under Section 3 of
41  42 

Rule 129 of the Rules on evidence would not be sufficient to establish the age of the victim to warrant the imposition
of the death penalty.

The matter of appreciating the age of the victim, either as an element of the crime or as a qualifying circumstance,
was settled when the Court, in the case of People vs. Pruna, laid down the following guidelines:
43 

1. The best evidence to prove the age of the offended party is an original or certified true copy of the
certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and
school records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of the victim’s mother or a member of the family either by
affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or
date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be
sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is
less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is
less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is
less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim’s mother or
relatives concerning the victim’s age, the complainant’s testimony will suffice provided that it is expressly
and clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the
accused to object to the testimonial evidence regarding age shall not be taken against him.

The trial court should always make a categorical finding as to the age of the victim .
44 

It is clear then that even the admission of appellant as to the age of the victim could not be taken against him in the
case at bar because of the foregoing guidelines. Paragraph 4 which allows the appreciation of the testimony of the
complainant as to the victim’s age provided the same is expressly and clearly admitted by the accused, must be
applied in relation to paragraph 3(a) which dispenses with the presentation of independent proof of age only when
the victim is below 3 and the age sought to be proved is less than 7. In this case, the unfortunate victim was 4, a
year too old.

In view of the moral uncertainty of the victim’s exact age on account of the failure of the prosecution to present the
birth certificate or similar authentic document (such as her baptismal certificate) and to make a positive and
unequivocal manifestation that the victim was indeed 4 years old, not to mention the absence of a categorical
finding by the trial court of the victim’s minority, the Court hesitates to impose the penalty of death upon appellant.

As we affirm the appealed decision of the trial court convicting appellant for the crime of rape, we, however, make
the following modifications: the penalty imposed is reduced to reclusion pertpetua and P50,000 as moral damages
is awarded to the offended party aside from the P 50,000 as civil indemnity already awarded to her by the trial court.

WHEREFORE, the decision of the Regional Trial Court, Branch 35, Ormoc City is AFFIRMED with the
MODIFICATION that appellant Gorgonio Villarama is sentenced to suffer the penalty of reclusion perpetua and
ordered to pay the offended party Elizabeth V. Tumulak the sum of P50,000 as civil indemnity and the additional
amount of P50,000 as moral damages.

G.R. No. 178063               April 5, 2010

[Formerly G.R. No. 149894]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
TIRSO SACE y MONTOYA, Accused-Appellant.
 DECISION

VILLARAMA, JR., J.:

This is an appeal from the Decision1 dated November 20, 2006 of the Court of Appeals in CA- G.R. CR-H.C. No.
02324 which affirmed the June 1, 2001 Decision 2 of the Regional Trial Court (RTC) of Boac, Marinduque, Branch 94
convicting appellant Tirso Sace y Montoya of the crime of rape with homicide.

Appellant was charged in an Information3 which reads,

That on or about the 9th day of September 1999, at around 7:00 o’clock in the evening, at barangay Tabionan,
municipality of Gasan, province of Marinduque, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused did then and there by means of force and intimidation, willfully, unlawfully and feloniously lie
and succeed in having carnal knowledge of [AAA]4 against her will and consent and thereafter, the accused did then
and there, with intent to kill, stab with a sharp bladed weapon, said victim, inflicting upon her fatal injuries causing
her death, to the damage and prejudice of her legal heirs represented by her mother….

CONTRARY TO LAW.

At the arraignment, appellant entered a plea of not guilty. Trial thereafter ensued.

The prosecution presented the following as witnesses: BBB, CCC, Rafael Motol, Bonifacio Vitto, Maribeth Mawac
(Maribeth), Carmelita Mawac, Dr. Erwin Labay, SPO2 Praxedo Seño and Domingo Motol. On the other hand,
appellant testified for his own behalf.

The prosecution’s evidence established the following version:

On September 9, 1999, at around seven (7) o’clock in the evening, AAA was inside their house with her 10-year-old
brother BBB and a nephew, who was still a toddler, when appellant suddenly showed up. As admitted by appellant,
he came from a drinking spree that began at about eleven (11) o’clock in the morning. AAA told appellant to leave
and go home, but he did not heed her. Appellant then made sexual advances on AAA. AAA was able to evade
appellant when he tried to embrace her, but appellant pulled a bladed weapon from his pocket. Sensing danger,
AAA ran upstairs to the second level of their house. Appellant followed AAA, leaving BBB and the toddler in the first
floor of the house. BBB heard appellant ordering AAA to remove her clothes, otherwise, he will stab her.5 Scared
with the turn of events, the two (2) children hid at the lower portion of the house for around twenty (20) minutes, and
came out only when CCC, the mother of AAA and BBB, arrived.

CCC, together with her elder daughter DDD and a certain Abelardo Motol (Abelardo), was on her way home when
she and her companions heard AAA scream. They hurried towards the house and searched it but found it to be
empty. As they searched further, appellant came out from somewhere in the kitchen area of the house. They noticed
that he was bloodied and he told them that he was chasing someone. Appellant then joined in the search for AAA.
Before long, Abelardo found the lifeless body of AAA lying on the ground nearby. AAA was half-naked and she
appeared to have been ravished when they found her. Immediately, Abelardo called the barangay officials and the
police.

Barangay Kagawad Carmelita Mawac (Carmelita) and other barangay officials and tanods, including Rafael Motol
and Bonifacio Vitto, arrived. Upon arrival, they noticed the bloodstains on appellant’s clothing. Carmelita asked
appellant what he did, but appellant denied any knowledge of what happened. Carmelita then went to the half-naked
body of AAA and again asked appellant why he did such a thing to his cousin. At that point, appellant admitted to
the barangay officials and tanods that he was the one (1) who committed the crime. He admitted that he raped and
killed AAA.6 Barangay Tanod Rafael Motol also obtained the same confession from appellant when he interviewed
him infront of other people, namely, Abelardo, Carmelita, and Bonifacio Vitto, as well as Arnaldo Mawac, Conchita
and Iboy Serdeña, and Salvador and Julieta Motol. Appellant was then photographed by the police and Maribeth,
who at that time had a camera on hand.

Dr. Erwin M. Labay examined AAA’s body. He found stab wounds and lacerations on the body, and also found
irregular corrugations and lacerations of the hymenal ring.7

On the part of the defense, appellant denied participation in the crime. Appellant claimed that he was on his way
home from a drinking spree when he passed by AAA’s house. As he was walking, appellant saw AAA who was
bloodied and lying on the ground. He held his cousin to determine whether she was still alive. He then saw in the
vicinity of AAA’s house, two (2) men whom he allegedly chased. Appellant could not identify nor remember what the
two (2) men were wearing because it was dark at the time. Convinced that AAA was already dead, appellant did not
any more call for help. Instead, appellant went to the house of his aunt and slept. When CCC and her companion
arrived, he relayed to them how he had chased two (2) men who may have been responsible for AAA’s death.
Appellant denied that he confessed to the crime.8

On June 1, 2001 the RTC found appellant guilty beyond reasonable doubt for the rape and killing of AAA, to wit:
WHEREFORE, premises considered and finding the accused Tirso Sace y Montoya GUILTY beyond reasonable
doubt of the crime of Rape with Homicide defined and punished under Article 335 of the Revised Penal Code, as
amended by RA No. 7659 and RA No. 8353, he is hereby sentenced to suffer the supreme penalty of DEATH and to
indemnify the heirs of [AAA] the amount of ₱100,000.00 as civil indemnity, ₱50,000.00 as moral damages, and
₱30,000.00 for exemplary damages.

The body of said accused is committed to the custody of the Bureau of Corrections, Muntinlupa City through the
Provincial Jail Warden of Marinduque.

Let the entire records of this case be forwarded to the Supreme Court, Manila for automatic review.

SO ORDERED.

The trial court did not give credence to appellant’s alibi since he even categorically admitted that he was at the crime
scene and saw AAA’s lifeless body. Because the crime occurred more or less around the time appellant left the
drinking session, the trial court held that it was not impossible for appellant to accomplish his bestial act shortly after
he left the drinking session as he had to pass by AAA’s house on his way home. Also, other than his bare denial,
appellant did not offer any evidence to support his alibi.

The trial court further pointed out that during the trial, appellant was positively identified by the 10-year-old brother of
AAA, BBB, as the culprit who chased AAA with a bladed weapon and threatened to kill her if she would not remove
her clothes. BBB, who was only an arm’s length away from AAA and appellant, was able to describe vividly the
appearance of appellant that night, his attire, and how appellant tried to embrace and chase AAA. The trial court
found no improper motive on the part of BBB to testify falsely against appellant. BBB’s testimony was notably
straightforward and spontaneous and considering his age, the trial court held that it was improbable for him to
concoct such a terrifying story against his own cousin.9

The RTC found appellant’s defense as not only incredible and incredulous but also innately false and fatuous.
Appellant never bothered to ask for help nor made an outcry when he found his cousin AAA dead. Instead, he
claimed to have left the area and proceeded to the house of his aunt to sleep. When asked why he was bloodied,
appellant merely said that he was chasing someone without disclosing that he carried the dead body of AAA.
Appellant also disclaimed any knowledge on what happened to AAA when the others asked him.10

Lastly, the RTC also took into consideration the confession of appellant that he was the one (1) who raped and
killed AAA. The trial court noted that the confession was made voluntarily and spontaneously in public, and
witnessed by prosecution’s witnesses, who were not shown to have any ill motive against appellant. Thus,
appellant’s declaration was admissible as part of res gestae, his statement concerning the crime having been made
immediately subsequent to the rape-slaying before he had time to contrive and devise.11

On November 20, 2006, the Court of Appeals upheld the decision of the RTC, thus:

WHEREFORE, premises considered, the Decision dated 1 June 2001 of the Regional Trial Court of Boac,
Marinduque is AFFIRMED, except insofar as Republic Act No. 9346 retroactively reduces the penalty for heinous
crimes from death to reclusion perpetua.

The death penalty imposed by the trial court is consequently REDUCED to reclusion perpetua and herein judgment
may be appealed to the Supreme Court by notice of appeal filed with this court.

IT IS SO ORDERED.

The appellate court ruled that while appellant’s bloodied shirt and pants alone do not establish that he committed
the crime, his version is too perforated with inconsistencies to be believable. Appellant claimed to have previously
located and embraced the corpse of AAA then left her at the crime scene before he went to the house of his aunt to
sleep but he pretended to look for AAA with the others. And assuming that he took pity and wanted to help AAA,
who was wounded and half-naked, appellant’s behavior was inconsistent with human nature when he went to his
aunt’s house to sleep instead of asking for assistance. Likewise, the Court of Appeals found appellant’s testimony to
be too evasive and vague. Moreover, the appellate court noted that, while flight oftentimes denotes guilt, the failure
of the accused to flee does not per se establish his innocence. It held that appellant was in all probability too drunk
to think of escape in the darkness of the night.12

Hence this appeal.

Appellant had assigned an error in his appeal initially passed upon by the Court of Appeals, to wit: whether the RTC
erred in finding him guilty beyond reasonable doubt of the crime of rape with homicide.13

Appellant claimed that the circumstantial evidence relied upon by the RTC did not prove his guilt beyond reasonable
doubt. The fact that appellant was wearing a bloodstained shirt did not mean that he committed the crime charged.
Appellant had explained that when he saw AAA he held her in his arm to see if she was still alive; thus, his shirt was
stained with blood. Moreover, if indeed he was guilty of the crime, he would not have assisted in the search for
AAA’s body as he could have just escaped or at least changed his clothing. He stressed that it was not impossible
that the two (2) unidentified men he chased had committed the crime.

We affirm appellant’s conviction.

It is doctrinal that the requirement of proof beyond reasonable doubt in criminal law does not mean such a degree of
proof as to exclude the possibility of error and produce absolute certainty. Only moral certainty is required or that
degree of proof which produces conviction in an unprejudiced mind. 14 While it is established that nothing less than
proof beyond reasonable doubt is required for a conviction, this exacting standard does not preclude resort to
circumstantial evidence when direct evidence is not available. Direct evidence is not a condition sine qua non to
prove the guilt of an accused beyond reasonable doubt. For in the absence of direct evidence, the prosecution may
resort to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret and
under conditions where concealment is highly probable. If direct evidence is insisted on under all circumstances, the
prosecution of vicious felons who commit heinous crimes in secret or secluded places will be hard, if not impossible,
to prove.15

In this case, as found by the RTC, the following chain of events was established by prosecution’s evidence: (a) a
drunken appellant came to AAA’s house; (b) appellant tried to embrace AAA but when the latter resisted and ran
away, he chased her with a knife; (c) when appellant caught up with AAA at the upper portion of the house, he was
heard uttering the words "Pag hindi daw po naghubad ay asaksakin"; (d) appellant was hiding when CCC and her
companion searched the house for AAA, then he suddenly appeared from his hiding place with bloodied apparels;
(e) when asked by CCC, appellant denied any knowledge of the whereabouts of AAA and what happened to her;
and (f) appellant voluntarily confessed to having committed the rape with homicide infront of many witnesses then
he submitted himself to police custody.16

BBB’s candid and unequivocal narration, which positively identified appellant as the culprit who tried to force himself
on AAA, debunks appellant’s denial of any participation in the crime. BBB testified,

Fiscal Balquiedra : x x x On September 9, 1999 at around seven o’clock in the evening, where were you?

Witness : At our house.

Fiscal Balquiedra : Who were your companion at that time?

Witness : My sister and my "pamangkin".

Fiscal Balquiedra : How old is that "pamangkin" of yours?

Witness : Four (4) years old.

xxxx

Fiscal Balquiedra : What happened during that time?

Witness : Manong Tirso came to our house, sir.

Fiscal Balquiedra : That Manong Tirso of yours who came to your house, where is he now?

Witness (Interpreter): Witness pointing to a man who identified himself as Tirso Sace.

Fiscal Balquiedra : What happened when Tirso Sace arrived?

Witness : When Manong Tirso arrived at our house he was drunk.

xxxx

Fiscal Balquiedra : When he did not leave, what else happened?

Witness : "Ayapusin po si Ate noong hindi po siya umalis".

Fiscal Balquiedra : What happened next when Tirso tried to embrace your Ate [AAA]?

Witness : "Hindi po nagpayapos si Ate".

Fiscal Balquiedra : And what happened next?

Witness : "Tumayo po si Ate and Manong Tirso also stand up and bumunot ng patalim".
Fiscal Balquiedra : What happened when he pulled out bladed weapon?

Witness : Ate [AAA] ran towards the upper portion of our house.

Fiscal Balquiedra : How about Tirso, what did he do?

Witness : He ran after her.

Fiscal Balquiedra : Then what happened next?

Witness : Ate [AAA] shouted.

Fiscal Balquiedra : What happened after your Ate [AAA] shouted?

Witness : My pamangkin was awakened and he went to the lower portion of our house.

Fiscal Balquiedra : How about Tirso, what did he do?

Interpreter : No answer.

Fiscal Balquiedra : When your Ate [AAA] shouted, did you hear Tirso say anything?

Witness : Yes, sir.

Fiscal Balquiedra : What did he say?

Witness : "Pag hindi daw po naghubad ay asaksakin".

Fiscal Balquiedra : Who said that?

Witness : Manong Tirso.

Fiscal Balquiedra : After hearing that, what did you and your pamangkin do?

Witness : We hid, sir.

Fiscal Balquiedra : Why did you and your pamangkin hide?

Witness : Because we were afraid, sir.

Fiscal Balquiedra : You said that your Ate [AAA] ran and Tirso ran after her, when Tirso ran after her, where
was the "patalim"?

Witness : On his hands, "kinuha po sa bulsa niya".

Fiscal Balquiedra : What happened next?

Witness : Ate [AAA] ran when she saw the knife of Tirso.17

BBB did not waver during cross-examination, to wit:

Atty. de Luna : You testified that accused embraced the victim, is that correct?

Witness : Yes, sir.

Atty. de Luna : And was the accused successful when he allegedly embraced the victim?

Witness : No, sir.

Atty. de Luna : Why?

Witness : [AAA] evaded.

Atty. de Luna : When the accused allegedly embraced the victim, was he behind or infront the victim?

Witness : Infront, sir.

 Atty. de Luna : How far were you from the victim when accused allegedly embraced her/or when he tried to
embrace her?

Witness : "Kalahating dipa".

xxxx

Atty. de Luna : When accused arrived in your house, were you sleeping at that time?

Witness : No, sir.

Atty. de Luna : You testified that Tirso Sace pulled up a bladed weapon that night, is that correct?

Witness : Yes, sir.

Atty. de Luna : Did the accused pulled the knife before or after accused tried to embrace [AAA]?

Witness : After embracing, sir.

xxxx

Atty. de Luna : Where did the accused get the knife?

Witness : From his pocket, sir.

Atty. de Luna : And how far were you when you saw it?

Witness : "Mga isang dipa po".18

xxxx

It is axiomatic that a witness who testifies in a categorical, straightforward, spontaneous and frank manner and
remains consistent on cross-examination is a credible witness. 19 We see no justification to reverse the RTC’s
appreciation of the testimony of BBB. Having observed the witness’s deportment while testifying, the trial court’s
assessment of the credibility of BBB deserves our highest respect.

In contrast, appellant could only offer denial and alibi in his defense. Denial and alibi are weak defenses which must
be supported by strong evidence of non-culpability to merit credibility. These are negative self-serving evidence
which cannot be given greater weight than the testimony of a credible witness who testified on affirmative matters.
Between the positive declarations of a prosecution witness and the negative statements of the accused, the former
deserves more credence.20 Thus, between the positive identification made by BBB and the bare denial and alibi of
appellant, there is scarcely any doubt that decisive weight must be given to the positive testimony of BBB.

Also, the facts in this case clearly show that appellant admitted the commission of the crime to the prosecution’s
witnesses. According to their testimonies, appellant admitted having raped and killed AAA. Their testimonies were
not rebutted by the defense. Appellant’s statements infront of the prosecution witnesses are admissible for being
part of the res gestae. Under the Revised Rules on Evidence,21 a declaration is deemed part of the res gestae and
admissible in evidence as an exception to the hearsay rule when the following requisites concur: (1) the principal
act, the res gestae, is a startling occurrence; (2) the statements were made before the declarant had time to contrive
or devise; and (3) the statements must concern the occurrence in question and its immediately attending
circumstances.22 All these requisites are present in this case. Appellant had just been through a startling and
gruesome occurrence, AAA’s death. His admission was made while he was still under the influence of said startling
occurrence and before he had an opportunity to concoct or contrive a story. In addition, he was still under the
influence of alcohol at that time, having engaged in a drinking spree from 1:00 p.m. to 7:00 p.m. that day. His
confession concerned the rape and killing of AAA. Appellant’s spontaneous statements made to private persons, not
agents of the State or law enforcers, are not covered by the constitutional safeguards on custodial investigation and,
as res gestae, admissible in evidence against him.

The rule is settled that where the culpability or innocence of the accused hinges on the credibility of the witnesses
and the veracity of their testimonies, the findings of trial courts are given the highest degree of respect. Hence, their
findings on such matters are binding and conclusive on appellate courts, unless some fact or circumstance of weight
and substance has been overlooked, misapprehended or misinterpreted. 23 We find no circumstance of weight or
substance that was overlooked by the trial court.

With regard to damages, we modify the award of moral damages affirmed by the Court of Appeals. The heirs of AAA
are entitled to moral damages amounting to ₱75,000.00,24 pursuant to prevailing jurisprudence. Likewise, as to
actual damages, we have held that if the amount of the actual damages cannot be determined because no receipts
were presented to prove the same, but it was shown that the heirs are entitled thereto, temperate damages
amounting to ₱25,000.00 may be awarded.25 There being a sufficient showing in the instant case that the heirs of
AAA incurred funeral expenses, the award of temperate damages is in order.

WHEREFORE, the appeal of Tirso Sace y Montoya is DISMISSED and the November 20, 2006 Decision of the
Court of Appeals in CA-G.R. CR- H.C. No. 02324 is AFFIRMED with MODIFICATIONS. Temperate damages
amounting to ₱25,000.00 are hereby awarded in lieu of actual damages and the award of moral damages is
increased to ₱75,000.00 in line with current jurisprudence.

With costs against the accused-appellant.

G.R. No. L-49149 October 23, 1981

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GREGORIO TAYLARAN alias "Goring" defendant-appellant.

DE CASTRO, * J.:

Charged with murder ill the Court of First Instance of Bohol, appellant was convicted and sentenced to life
imprisonment and to indemnify the heirs of the deceased in the sum of P 12,000 and to pay costs. Appealing to this
Court, appellant insists on his defense of accidental, not deliberate killing.

We quote hereunder from the appealed decision the versions of both the prosecution and the defense, as set forth
therein:

EVIDENCE FOR THE PROSECUTION

At about 10:00 P.M. of November 5, 1976 accused called at the house of deceased Ofremia Atup y
Sarabosing located in barrio Binliw, Ubay, Bohol for the purpose of submitting himself to the latter for
treatment of his snake-bite located at this left foot. His announced purpose being good, the
deceased opened the door for him. Once inside, the deceased took her medicine paraphernalia (she
being a local quack doctor) and started treating the accused. Then all of a sudden the accused drew
his small bolo (Exhibit A) and stabbed the deceased several times causing her to fall on the floor
dead. After killing the deceased, accused proceeded to the house of the son of the deceased for the
purpose of killing him and his wife but accused did not accomplish his purpose because the
deceased's son refused to left him enter his house. After that the accused surrendered himself with
his bolo to policeman Demetrio Basilad who was then on guard at the municipal hall of Ubay. When
asked why he killed the deceased who was also his grandmother-in-law, accused answered,
'because she promised to kill me with a 'barang', hence killed her first. (Testimonies of Salvador
Atup, policeman Demetrio Basilad and Juanita Busalla)

EVIDENCE FOR THE DEFENSE

At about 9:00 P.M. on November 5, 1976 accused went to tend to his carabao. On the way, he was
bitten by a snake at the smallest toe of his left foot. Hence, he proceeded to the house of his
grandmother-in-law, Ofremia Sarabosing which was located in barrio Binliw Ubay, Bohol for
treatment of snake-bite. Ofremia Sarabosing was a quack doctor known to cure snake-bites. He
arrived at deceased's house at about 10:00 P.M. The deceased opened the door to let him enter.
Once inside he and the deceased stood on the floor facing each other. Then the deceased
instructed accused to open his snake-bite with a bolo (Exhibit A) so that the venom can be drained
out. While he was opening his snake-bite with a bolo, he accidentally put out the light of the
kerosene lamp which was placed on the floor, This prompted the deceased to re-light said lamp. She
banded her body down with her two hands extended towards the floor to light said lamp. At the very
time that deceased was bending her body downward, accused lifted his right hand which was
holding the bolo upward, so that the point of the bolo accidentally hit deceased's right chest
penetrating the nipple and resulting in her death. Upon realizing that the deceased was fatally
wounded, accused asked for her forgiveness and after that he ran away. (Testimonies of accused
himself and Elpidio Mendez).  1

As the trial court prefaced its decision, which version is correct?

That the deceased died from wounds inflicted by the appellant is not disputed. As gleaned from the opposing
versions set forth above, the conflict is in how the wounds were inflicted — whether with deliberate intent, or purely
by accident.

It is extremely difficult to accept the accident version of appellant which he purveyed without corroboration. More
than one wound was found sustained by the deceased, on different parts of the body. One single stroke could not
have inflicted all of them. The first wound could possibly have been accidentally inflicted, but the other, wounds
could not have been similarly inflicted if, as just pointed out, they did not result from the first blow. Their locations
preclude that a single blow produced all the wounds. This fact robs the accident theory of appellant of any
plausibility.

The explanation of appellant as to how the wounds other than that located on the right chest was inflicted simply
cannot inspire belief. In trying to succor the old woman when she fell upon being hit accidentally with the point of the
bolo, as appellant alleged, he could not have kept on holding the bolo. He would have dropped it instantly, as
instinct would have made him do so. The infliction of more wounds after the first was therefore deliberate and not by
mere accident. It is, likewise, hard to believe that a mere accidental hitting with the point of the small bolo, and
therefore not with so much force, would inflict a wound that is so fatal as that sustained on the chest.

That the wounding was with intent to kill is reflected by appellant's statement that he killed the old woman because
she had allegedly promised to kill him by "barang" or by witchcraft, which he gave upon surrendering to Pat.
Demetrio Basilad at the Municipal Building. It was just natural for appellant to explain to the police why he was
surrendering. For Pat. Basilad to testify on what appellant said on this score is thus perfectly proper, and full
credence must be accorded to him, being obviously an impartial witness. It is not a matter of whether the statement
is a part of the res gestae to be admissible.

Appellant of course denies having made the admission, but in the light of the other evidence of the prosecution, his
denial is not convincing. As demonstrated earlier, his accident theory of the killing merits not much credibility from
the mere fact that more than one wound was inflicted which could not have resulted from just one blow. Repeated
blows easily negates any claim of wounding by mere accident.

The fact that he was not allowed to enter the house of Juanita Busalla, daughter of the deceased, when he went
there directly from the old woman's house, would show that he appeared, by his behavior or words, that he was
dangerously in an angry mood, which is indicative of being a deliberate killer rather than a sorrowful and harmless
penitent for a killing he has committed only by accident. As Juanita also testified, when appellant was already in jail,
he told her that he killed her mother because of witchcraft, corroborating Pat. Basilad's testimony. It would,
therefore, be of no avail for appellant to contend that the court a quo erred in admitting appellant's statement he
made upon surrendering that he killed the deceased because the latter intended to kill him by witchcraft as part of
the res gestae. The testimony of both Pat. Basilad and Juanita Busalla on the inculpatory statement of appellant is
legally admissible not because the statement is part of the res gestae, but for said witnesses having heard appellant
made the statement on their own perception.

It is hard to see why the aforementioned witnesses testified on the admission of appellant the way they did unless
they were prompted only by the truth. If appellant had surrendered with an admission of killing the old woman by
accident, as he must have tried to impress upon the authorities if such was the truth, Pat. Basilad had no reason to
give the killing the graver character than what it really was. As far as he is concerned, he had no more problem
relative to the solution of the crime, which is the usual cause for police twisting the truth or other form of excesses
when conducting investigations the desire to solve a crime by all means.

That Dr. Silverio Gaviola who issued the post-mortem examination report failed to testify thereon because he died
before he could be called to the stand, so unduly stressed to show the quality of his report as hearsay, does not
affect the sufficiency of the evidence against appellant to entitle him to the acceptance of his claim of accident to
exempt him from criminal liability. As already shown, such evidence is more than adequate to make the mind rest at
ease on appellant's guilt as charged. The autopsy report, if not admitted as such, is part of the testimony of Pat.
Sarabosing. He testified on the number and location of the wounds, and his testimony, being that of a peace officer
with basic knowledge in medico-legal medicine, having taken a course therein (p. 26, tsn, May 21, 1978) may well
serve the purpose of the autopsy report, if the report is not itself admissible as independent evidence, as appellant
would insist.

Appellant has also invoked the provision of Article IV, Section 20 of the Constitution in trying to block the admission
of his declaration to Pat. Basilad that he killed Ofremia Atup because of her alleged vow to kill him by witchcraft,
contending that the safeguards therefor have not been made available to him. The cited provision reads:

Section 20. No person shall be compelled to be a witness against himself. Any person under
investigation for the commission of an offense shall have the right to remain silent and to counsel
and to be informed of such right No force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against himself. Any confession obtained in violation of this section
shall be inadmissible in evidence.

The applicability of the foregoing provision does not seem to contemplate cases like the print where no written
confession was sought to be presented in evidence as a result of formal custodial investigation. What was testified
to is only what appellant told the police why he is surrendering to them. It is but natural for one who surrenders to
the police to give reason or explanation for his act of surrendering. It can hardly be said that under such
circumstance, the surrendered is already "under investigation within the meaning of the constitutional provision. As
the Solicitor General correctly observes on the circumstances of this case: "If however, he voluntarily admits the
killing and it was precisely because he surrendered to admit the killing, the constitutional safeguards to be informed
of his rights to silence and to counsel may not be invoked."

In any case, as previously pointed out, another witness, Juanita Busalla, who is not a policeman also testified to
appellant telling her when he was already in jail, that he killed Ofremia Atup because of her promise to kill him by
means of witchcraft, the same declaration he supposedly made to Pat. Basilad, upon surrendering after the killing.
The constitutional safeguard invoked can have no application to Juanita's testimony on what appellant told her not in
the course of a police investigation.

At any rate, even without the admission, the accident version of appellant is inherently incredible. As already stated,
that he was not allowed by Ofremia's daughter and husband to enter their house when he went there direct from the
old woman's house is a strong proof that he did not exhibit the harmless mood of a repentant killer as he should
visibly appear to them if the killing was only accidental. On the contrary, he must have appeared so angry,
displaying unmistakable intent to kill then after killing their mother, as the daughter Juanita Busalla, so testified. (pp.
30-39, tsn, Feb. 1, 1978).

Verily, the issue is one of credibility. The lower court gave more of it to the testimony of the prosecution witnesses.
We find no reason to disturb the lower court's appreciation of the relative credibility of the opposing
witnesses.   Moreover, appellant having admitted the killing, the burden of proving the exempting circumstance he
2

has invoked in his defense calls for clear and convincing evidence, as is required of similar defenses as that of self-
defense.   This, he failed dismally to fulfill.
3

WHEREFORE, the appealed decision is affirmed, with costs.

 G.R. No. 93851 March 6, 1992

MARK BAYQUEN, petitioner,
vs.
THE COURT OF APPEALS AND THE PEOPLE OF THE PHILIPPINES, respondents.

MEDIALDEA, J.:

Wilfredo Boco and Mark Bayquen were charge before the Regional Trial Court of Baguio City, Branch VI for the
crime of Homicide defined and penalized under Art. 249 of the Revised Penal Code in an information filed by Jose
P. Basco, Assistant City Fiscal as follows:

That on or about the 25th of day of July, 1984, in the city of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another, with evident premeditation, being then armed with gun and a bladed
weapon, did then and there wilfully, unlawfully, and feloniously attack, assault, shot and hack or
would TEOFILO ESTEPA, thereby inflicting upon him cardio respiratory failure secondary to massive
hemorrhage and gunshot wound injuring the heart, liver and lung, and as a result thereof the said
Teofilo Estepa died thereafter.

All contrary to law, with the qualifying circumstance of evident premeditation. (p. 95 Rollo)

Boco and Bayquen both pleaded "not guilty" upon arraignment. After trial, the court rendered its decision on
December 15, 1989, the dispositive portion of which reads as follows:

WHEREFORE, in view of all the foregoing, the Court finds accused Mark Bayquen and Wilfredo
Boco guilty beyond reasonable doubt of the offense of Homicide defined and penalized under Article
249, as principals by direct participation instead of Murder as charged, and sentences them,
applying the Indetermine Sentence Law, to an imprisonment of 10 years and 1 day of Prison Mayor
as minimum and 17 years, 4 months and 1 day of Reclusion Temporal as Maximum; to indemnify
the heirs of the victim Teofilo Estepa the amount of P168,203.00 as actual damages and P40,000.00
as moral damages, both without subsidiary imprisonment in case of insolvency and to pay the cost.
(CA decision pp. 32-22, Rollo)

From the judgment of conviction, Boco first appealed the decision assigning the following errors:

The lower court erred in finding that the testimony of Bernadette Estepa is clear, forthright, sincere,
coherent, logical and intelligent thereby giving it full credence and weight.

II
 The lower court erred in finding that the witness Bernadette Estepa has not shown any ill motive to
fabricate and prejudice both accused.

III

The lower court erred in stating that there were no indications in Bernadette Estepa's testimony of
being evasive, vague, or ambiguous.

IV

The lower court erred in admitting the alleged declaration of the deceased Teofilo Estepa implicating
the accused-appellant as one of his assailants.

The lower court erred in holding that the guilty of the accused-appellant was proven beyond
reasonable doubt.

On the other hand, Bayquen (Petitioner) separately appealed, raising the following errors:

The trial court erred in not considering the declarations of witness Bernadette Estepa immediately
subsequent to the death of her brother as part of the res gestae.

II

The trial court erred in relying and giving undue credence to the incredible testimony of Bernadette
Estepa, the lone material witness that her late brother gave a dying declaration.

III

The trial court erred in ignoring the more credible testimonies of the accused and the witnesses for
the defense.

IV

The trial court erred in ignoring the real and tangible object evidence that the victim interrupted a
robbery in progress at their house which led to his death.

The trial court erred in not considering that the accused had not (sic) motive to commit the offense
(Appellant's Mark Bayquen's Brief, pp. 1-2). (pp. 97-98, Rollo)

Two separate appellee's briefs were filed by counsel for the people.

On May 31, 1990, the Court of Appeals, rendered its decision affirming in toto the findings of the trial court, with
costs against the accused-appellants.

Boco filed a motion for reconsideration which was denied for insufficiency of form and substance, which became
final and executory on November 12, 1990 (p. 153, Rollo).

Petitioner on the other hand, did not move to reconsider the decision. Instead, he filed the instant petition premised
on the Court of Appeals alleged failure to consider/apply specific provisions of law, or applicable jurisprudence, as
follows:

(a) the application of the res-gestae rule;

(b) the unwarranted and unreasonable delay in reporting the alleged "dying declaration" which defies
credulity;

(c) the fact that there was object or real evidence of a robbery;

(d) the lack of motive on the part of your petitioner and his co-accused and the failure to prove
conspiracy;
 (e) the fact that the judge who rendered the decision was not the one who heard the testimony of
witness Bernadette Estepa;

(f) the credible, convincing and satisfactory defense of the accused. (Summation by Solicitor
General, Comments, pp. 7-8, Petition). (p. 99, Rollo).

The facts of the case are narrated in the Court of Appeals' decision as follows:

On July 23, 1984, at around 8:00 o'clock in the evening , the victim Teofilo Estepa arrived home in
his house at No. 20 Quisumbing Street, Trancoville, Baguio City. His older sister, 22 year-old
Bernadette Estepa was already home. To celebrate his birthday, Bernadette and Teofilo dined
together. Teofilo then told his sister that is anyone asked for him to say that he was asleep, adding
that he had nothing to do with what happened. Bernadette inquired but Teofilo merely said
"Pinasubodac", meaning "I was led into trouble" (p. 20, TSN, November 29, 1985). However, nobody
came to see Teofilo Estepa.

The following day, July 24, 1984, at about 6:30 p.m., Bernadette was asked by Virgie Corpuz, who
was their boarder at the basement and who came up with her mother-in-law to use the phone, if
Teofilo was already home. When she replied that he was still in school, Virgie Corpuz told
Bernadette that earlier that afternoon Barangay Captain Albert Della and Dr. Bayquen, father of
Mark Bayquen, came to the house looking for Teofilo and leaving word that if Teofilo did not show up
that same night they will pick him up on the first hour the following morning. At that juncture, Teofilo
arrived. Immediately, Virgie Corpuz told him what she had just told Bernadette. Teofilo said that he
had nothing to do with the destruction of the motorcycle and he will tell what really happened if he
had to (pp. 21-22, TSN, November 29, 1985). At about 8:00 p.m., Teofilo asked permission from his
sister to go out to look for appellant Wilfredo Boco whom he said was his companion in the
motorcycle incident. He came back at about 10:00 p.m., telling that her was not able to find Boco
and instructed her to wake him up at 4:00 a.m. the next day, July 25, 1984, so he could review for
his examinations.

Before 4:00 a.m. of July 25, 1984, Bernadette Estepa was awakened by a commotion outside her
room as if a door was being closed (pp. 23-24, TSN, November 29, 1985; p. 3, TSN, December 17,
1985). She called out her brother's name "Bong" but nobody answered. She notice from the space
under the door that the light on the sala was turned on so she got up and tried to open the door but
could not. It was as if somebody was pulling the door knob outside. Thinking that it was only her
brother, she returned to her bed and went back to sleep (p. 7, TSN, December 17, 1985). After
about 5 minutes, she was awakened by the alarm clock which she previously set at 4:00. She called
out Bong several times but nobody answered so she got up to wake him up per his request. She
opened the door, this time without any difficulty. Since the lights in the sala and kitchen were on,
showed immediately noticed Bong's room which is about 13 meters from her's opened. She walked
to the room but was surprised to see it in complete disarray. Bongs books and beddings were
scattered on the floor. she looked for him in the other parts of the house but could not find him. As
she was calling his name she heard two gunshots coming from downstairs. Immediately she went
down and there she saw at the stair landing her brother, Bong, lying face down (pp. 10, 14, & 20,
TSN, December 17, 1985). She lifted him up and noticed that he was bleeding. She asked him
"why". Bong answered in Ilocos, "Pinaltogandak ken sinasakdak" (They shot and stabbed me.)
Bernadette asked him who did it and he answered clearly, "Mark Bayquen and Boco". (pp. 25-27,
TSN, November 29, 1985). She helped him stand placing her arms around his shoulder and up to
their apartment at the second floor taking about 10 to 15 steps. She leaned him on the sofa and tried
to call Baguio Police Station but failed to connect. She also called Camp Allen to report the incident.
Thereafter, she went to the kitchen door and called Virgie Corpuz for some help. Minutes later Virgie
Corpuz and her brother-in-law Bongbong came up. Virgie called and was able to contact the police
station. Bernadette then requested Bongbong to bring the victim to the hospital. She and Bongbong
helped Teofilo, who was already weak, to go downstairs, When a police jeep arrived. Immediately
they assisted Teofilo to bound (sic) the jeep and they proceeded to Notre Dame Hospital. On their
way, Bernadette did not tell anything to the police. It was about 20 minutes from the time Bernadette
discovered her brother bleeding up to the time they reached the emergency room of the Norte Dame
Hospital. An hour after, Teofilo was pronounced dead on arrival. Again Bernadette kept mum about
the death of her brother but upon advise of Dra. Cabato, consented to the autopsy of the cadaver of
her brother. (CA, decision, pp, 33-34, Rollo).

Petitioner faults the appellate court for upholding the trial court's reliance on the sole testimony of Bernadette
Estepa, the deceased's sister, who had pointed to Wilfredo Boco and Mark Bayquen ads the persons who "shot and
stabbed" her brother Bong Estepa, based on Bong's dying declaration. The petitioner believes that the ante-
mortem statements should have been disregarded considering that they were revealed 14 days after Bong Estepa's
death on July 24, 1984 or on August 8, 1984.

We find for petitioner.

In the recent case of People v. Eduardo Hernandez, et al. (G.R. Nos. 67690-91, January 21, 1992), penned by
Chief Justice Andres Narvasa, the Court disregarded the dying declaration or ante-mortem statements of the
deceased Buenaventura Mendoza, because the window never divulged the same to the three police investigators
and the barangay councilman who came to the victim's house and stayed for several hours, revealing the same for
the first time only when she testified at the trial. The Court therein pointed out:

. . . Her reason for not making the revelation earlier was, in her own words, "I was confused at that
time; . . . there were so many persons who went to our place so I was not able to tell (banggit) those
things . . . ." Gelacio too, appears to have kept quite about the widow's disclosure to him (re the
victim's identification of his assailants), and like his sister-in-law, made that disclosure public only
when he testified at the trial of his brother's supposed killers. Conduct like this is passing strange. It
is unnatural. It is incredible. It makes it extremely difficult to accord any credit to the testimony of
either the widow or her brother-in-law with respect to the ante-mortem statements allegedly made by
the deceased seconds before he expired form his gunshot wounds. (Emphasis ours) (page 9,
Decision).

In the same manner, Bernadette's excuse in the present case for not divulging the dying declaration of her brother,
Bong Estepa, was that she was afraid because she was all alone since her parents, brothers and sisters were all
abroad. Strangely, however, this was not her attitude, when, in the morning of the incident, she ventured out into the
dark alone at 4:00 in the morning, walked down the stairs (TSN, Nov. 29, 1985, pp. 25-16; Dec 17, 1985, p. 22)
despite the sound of two gunshots.

Nonetheless, granting her fears, We cannot understand why she still failed to go to the police authorities upon
arrival from Germany of her father and her mother, brothers and sister, from the States. The physical presence of
these persons would have provided her the necessary moral support and would have shielded her from feared
reprisals. As pointed out by petitioner in his appeal brief:

Take the case of the father, Teofilo Estepa, Sr., who allegedly arrived July 28, 1984, and was
informed by his daughter about this so called "dying declaration" on July 30, 1984. A father's first
impulse when his beloved son dies by the hand of others is to see to it that justice is done and the
culprits are apprehended. Yet, he maintained a stoic silence and did not alert the police.

This becomes more incredible when the alleged assailants (as named in this fictitious "dying
declaration") are just their close neighbors, one of whom resided in the same barangay while the
other in the adjoining barangay. Moreover, the accused Wilfredo Boco, the best friend of the late
Bong Estepa, had been visiting the remains of his deceased companion and paying his respects
during the vigil. What prevented the family from making an anguished outcry and complain to the
police that the "killers" of their son were roaming at large while their son was about to be buried. This
is the natural reaction of a normal human being with normal emotions and feelings. Unless the
Estepa family claim to be abnormal, they cannot help but react as ordinary human beings should
and would given the same circumstances.

It has been observed that the most positive testimony of a witness may be
contradicted by the fact that the testimony is contrary to common observation and
experience, or the common principles by which the conduct of mankind is governed.
The courts are not required to believe that which they judicially know to be incredible
(People v. Beltran, 61 SCRA 246).

Statements made by a witness that are not only in conflict with the experience of
common life and of the ordinary instincts and promptings of human nature, but are
also negative of surrounding circumstances, may be, and should be disbelieved.
(Champagne v. Hammey, 189 Mo. 709, 88 S.W. 92). (pp. 71-72, Rollo)

Petitioner asks instead that the statements of Bernadette Estepa, uttered immediately after the incident be given
credence, since these were made spontaneously without any opportunity to fabricate or concoct any statement.
Petitioner stated in his appeal brief:

Interviewed right after the death of the brother by investigating policeman MELENCIO SANTOS of
the Baguio City Police Department and asked who killed her brother, she replied that her brother
could hardly talk (T.S.N., P/Cpl. Melencio Santos, Oct. 15, 1985, p. 8).

Interviewed that same morning by Dr. Florita Ferrer-Garcia, Officer-in-Charge of the Baguio Health
Department, for purposes of giving her consent to the autopsy of her brother, she was asked who
killed her brother and her answer was that a robber killed her brother without naming any names.
(T.S.N., Dr. Garcia, February 28, 1985, p. 23). In fact such statement was embodied in the
doctor's post-mortem report.
 Again, interviewed by her own barangay captain, Alberto Della, who even offered her the protection
of his office and even provided her with a rifle, when asked if she knew the assailants of her brother,
she said "NO".

The herein accused-appellant respectfully submits that these statements must be given great weight
in analyzing the whole body of evidence against the accused. Aside from Bernadette Estepa, no one
was presented to corroborate her testimony. Upon her sole testimony therefore rest the entire case.

The utterances of the witness Bernadette Estepa to the policeman, to the doctor, and to her
barangay captain were spontaneous declarations, without premeditation on her part. She was still
suffering under the strain of a startling occurence, the stimuli of which did not allow her any
opportunity to fabricate or dissimulate. It is the respectful submission of herein accused-appellant
that such statements and utterances under the obtaining conditions fall under the res gestae rule,
that is, they are part of the res gestae. (Sec 36, Rule 130, Rules of Court). (pp. 61-62, Rollo)

As between the spontaneous statements of Bernadette Estepa, therefore, and those which she gave before the NBI
two weeks after her brother's death, it is clear that the former statements should be given weight and credence.

Moreover, the autopsy findings (Exh. "B") states:

xxx xxx xxx

4. Presence of a gunshot wound 1/8" in diameter; edges very black located below and medial to the
left nipple;

a). penetrating the chest wall between the 6th and 7th ribs, 2 inches from the
misternal line,

b) perforating the tip of the right ventricle

c) penetrating the left side of the diaphragm

d) perforating the liver

e) penetrating the right side of the diaphragm

f) perforating the lower lobe of the right lung

g) bullet lodged at the level of the right floating rib 4 inches from the right posterior
axillary line, Bullet is colored lead and copper, with a diameter at its base of .38 in.
and a length of 6/8 in. (Bullet given to BCPD).

x x x           x x x          x x x

Dra. Florita Ferrer-Garcia, a physician of the Baguio General Hospital, who conducted the autopsy, testified as
follows:

Q In No. 4 of your post-mortem report, it is stated "presence of a gunshot wound 1/8"

in diameter." [I]s this the wound that caused the ultimate death of the victim in this
case Teofilo Estepa?

A Yes, sir.

Q You also mentioned . . .

COURT:

Q Will you please explain why that wound according to you was the cause of the
death of the victim?

A Because the wound has perforated vital organs which when injured is fatal.

x x x           x x x          x x x

Q In letter "h" of this report Doctora which is marked a Exhibit "B" there is mentioned
of 2 slits 3/8" in length on the skin over where the bullet is lodged. Would you please
describe these slits and will you give us an opinion what caused these slits?
 A This slits is just a linear opening measuring 3/8 inch. in length, over the skin. And
underneath it is the bullet. The probable reason of the slit is the foreign object
underneath the skin which has caused pressure on the skin but was not able to get
out.

Q So, could we assume that these slits were caused by the impact of the bullet going
in?

A Yes, sir. (T.S.N., February 28, 1985, pp. 9-10)

Contrary, therefore to Bong Estepa's dying declaration that he was "shot and stabbed", Bong Estepa died of a single
gunshot wound. He was not stabbed.

In giving credence to the dying declaration, the prosecution cites the damage done to petitioner's motorcycle by both
Bong Estepa and Wilfredo Boco (petitioner's co-accused) as petitioner's motive for Killing Estepa. Although living in
adjoining barangays, however, petitioner and Estepa never got to know each other. It was only because of the
incident on July 23, 1984 when petitioner found his motorcycle lying damaged on the street that petitioner got
acquainted with Estepa.

Petitioner had shown himself to be law-abiding in seeking retribution for his damaged motorcycle, by filing the
corresponding complaint. Petitioner points out:

. . . He came to know that Wilfredo Boco and Teofilo Estepa, who he did not know personally, took
his motorcycle, probably as a prank. This matter was reported to the police where a complaint for
Qualified Theft was filed (Exhibits "9-c", "9-c-1, "9-c-3," "10", "11", 11-a", "11-b", "11-c", "12","12-b",
"12-c" and "12-d").

A complaint for purposes of amicable settlement under the provisions of the Katarungang
Pambarangay was filed with the barangays of the respondents concerned on July 24, 1990 (Exhibits
"4", "4-a", "4-b", "5", "5-a", "5-b", "6", "6-a", "6-b", "7", "8", "8-a", "8-b" and "8-b-1"). This certainly
indicates that your petitioner was law-abiding and was willing to go through lawful processes in
settling disputes.

The complaint against the late Teofilo Estepa could not proceed because of his untimely death.
However, Barangay Captain Thomas Chamos, who testified, was able to work out an agreement
entered into on August 4, 1984, whereby Boco would pay commensurate damages to the motorcycle
(Exhibits "4", "4-a", "4-b", "5", "5-a", "5-b", "6", "6-a",
"6-b", "7", "8", "8-a", "8-b" and "8-b-1") . . . . (p. 193, Rollo)

In sum, the prosecution's case rest entirely upon the identification of petitioner and Wilfredo Boco made to
Bernadette Estepa by the deceased Bong Estepa. As We have pointed out earlier, however, considering the belated
disclosure, We are not inclined to give weight to the alleged dying declarations of Bong Estepa. As the Chief Justice
in the Hernandez case (supra), pointed out: "The ante mortem statements being thus relegated to limbo, . . . very
little remains by way of evidence upon which to rest a verdict of conviction" against petitioner.

ACCORDINGLY, the judgment of conviction rendered against petitioner on December 15, 1989 is REVERSED and
SET ASIDE, and petitioner is, on reasonable doubt, ACQUITTED of the crime charged, with costs de oficio.

SO ORDERED.