G.R. No. L-67422-24 October 31, 1984 FERNANDO VALDEZ alias WILSON VALDEZ, petitioner, vs. HONORABLE JUDGE GREGORIO U. AQUILIZAN, Presiding Judge of the Regional Trial Court, 12th Judicial Region, Branch XVI, Kabacan, North Cotabato, respondents. ABAD SANTOS, J.:+.wph!1 This is a petition for certiorari which was posted on March 22, 1984, in Cotabato City by speed airmail but was received only on April 26, 1984. The petitioner is accused of rape in three cases Criminal Case Nos. 13, 14 and 15 filed in the court presided by the respondent judge. The private complainant is the same in all the three cases but the rapes were alleged to have been committed on different dates, namely: February 10, 1982, March 17, 1982 and April 10, 1982. The petition seeks to annul the proceedings which were conducted by the respondent judge and to disqualify him from the case. Because the verified petition imputed serious irregularities to the respondent judge, this Court issued a temporary restraining order on May 21, 1984, restraining him from further proceeding with Criminal Case Nos. 13, 14 and 15. In the comment which the respondent judge was required to submit, he said that he had already decided the three cases. (Petitioner Wilson Valdez was convicted of rape in each of the three cases and was sentenced to threereclusion perpetua plus indemnity.) The decision is dated April 2, 1984, but the petitioner claims that it was promulgated on May 3, 1984, without the presence of his counsel and even of the Fiscal; that no notice was issued in respect of the promulgation; and that no copy of the decision was given to the defense counsel of record. The case was set for hearing on August 6, 1984, and thereafter the Court issued a resolution which reads: t.hqw At the hearing this morning the following appeared: Attys. Jose V. Juan and Antonio T. Nicolas of the Special Appealed Cases Division, Citizens' Legal Assistance Office, Ministry of Justice, Padre Faura, Manila, for the petitioner; respondent Judge Gregorio U. Aquilizan on his own behalf; and North Cotabato Provincial Fiscal Aquiles Narajos who brought the record of Criminal Case Nos. 13, 14 and 15 in the sala of the respondent judge. Counsels for the petitioner mentioned several irregularities said to have been committed by the respondent judge in the handling of the case abovementioned. Resort to the record proved to be fruitless because it was grossly deficient. Counsels for the petitioner are hereby given ten (10) days from notice hereof to submit a memorandum specifying the irregularities said to have been committed by the respondent judge with supporting evidence. A copy of the memorandum shall be furnished to the respondent judge who is required to answer the same point by point within ten (10) days from receipt. (Rollo, p. 127.) The memoranda are now before this Court and the immediate reaction is that the petition is highly impressed with merit. In the hearing of the three criminal cases on May 26, 1983, the private complainant was to be crossexamined inasmuch as her direct examination had been finished at the previous hearing on April 7, 1983. On May 26, the private prosecutor, Atty. Norberto Ela, was absent. Thereafter, the respondent judge stated: "It appears in the records that the complaining witness is still under cross. It is the Honorable Judge who is examining her ... (Addressing the witness) During the last hearing of this case, the Honorable Court reserved its right to cross examine you on your testimony." And the respondent judge examined the witness but the examination is better described as direct rather than cross. Witness the following: t.hqw COURT: ... After going over the records of the cases and the supposed exhibits, you mentioned about a pair of scissors used to intimidate you, coerced and forced by the accused, by pressing the same at your left side? A. Yes, your Honor. COURT: Proceed Fiscal. FISCAL FULVADORA: Q You mentioned about a pair of scissors used by the accused. Showing to you this scissors, what relation is this scissors which was used by the accused in threatening you on February 10, 1982? A Yes, sir, this is the one being used by him.

COURT: Q Is this the very scissors that you saw when he pressed it? A Yes, your Honor. Q When was this used by the accused Wilson Valdez? A On February 10, 1982, your Honor. FISCAL FULVADORA: May we request that this scissors Identified by the witness be marked as Exh. "F", your Honor. COURT: t.hqw Mark it. Q Please demonstrate to the Court how this Exh. "F" was used by the accused in intimidating you? A (Witness demonstrating to the Court) The witness demonstrating to the supposed victim the pressing of the pointed scissors at the left side abdomen. Q Did he also use that during the accord rape he committed A Yes your Honor. Q About the third time, he use also? A Yes your Honor. (TSN, May 26, 1983.) To be sure a trial judge has the right, nay even the duty, to address questions to witnesses. But the questions should be clarificatory; they should not build the case for any of the adversaries. On June 23, 1983, a hearing was scheduled. The transcript for that day shows that Fiscal Camilo Fulvadora appeared for the prosecution but private prosecutor Ela, was absent. Also absent was Atty. Jorge Zerrudo, counsel for the accused. The transcript does not show whether or not the accused was brought to court. Notwithstanding the absence of counsel for the accused and probably the accused himself, the respondent judge continued his "cross-examination" of the private complainant. The respondent judge explained his behaviour thus:t.hqw WHEREFORE, premises considered, in view of the absence of Atty. Zerrudo who in spite of due notice in open court, during the last hearing of this case and without justifiable reason failed to appear, however, for the sake of justice in order not to prejudice the right of the accused as the complaining witness was on cross- examination, stated the witness is being cross examined by the court in order to get an illustration of certain facts needed by all defense here or the prosecution of the accused Wilson Valdez alias Willy. (TSN, June 23, 1983.) In his memorandum the respondent judge claims that he "did not proceed with the trial but merely sought clarifications on vital aspects taken up in the hearing of April 7, 1983." The explanation of the respondent judge is belied by the transcript which shows that he asked the private complainant searching questions and this is reflected on pages 4 to 12 of the transcript. The statement of the respondent judge that he wanted to protect the right of the accused to a speedy trial is not appreciated. He "protected" the rights of the accused by holding a trial in the absence of the latter's counsel. If an accused has a "protector" like the respondent judge, there is no need for a fiscal or a private prosecutor. It may not be amiss to state in this connection that the accused did not complain of delay in the trial of his case probably because he was not there. At any rate if the respondent judge had wanted to expedite the trial he should have appointed a temporary counsel for the accused. The hearing on the three cases was resumed on August 18, 1983. In the meantime, Atty. Zerrudo was replaced by Atty. Julian Ruiz as counsel for the accused because he wanted an Ilocano lawyer to represent him for better communication. On that day. the private complainant was still on crossexamination. Without any request from the parties, the respondent judge decided to hold the hearing in his chamber "due to delicadeza." Present in the chamber were counsel for the accused, the fiscal and the stenographer only; the accused was not allowed to go inside. t.hqw The respondent judge claims, however, "that the accused together with his guard were at the door of a make-shift room, so-called judge's chamber." This might well have been the case but the accused was entitled as of right to be inside the room because it was his liberty and honor which were at stake. On August 31, 1983, the respondent judge announced, "We will hear this in chamber." And then the following took place: t.hqw ATTY. RUIZ: Now, last time this case was presented and was scheduled for hearing inside the chamber. Counsel for the accused requested that the accused be given chance to confront the

complaining witness but this, your honor was denied so at this instance it is reiterated that the accused be given again a chance to be present during the investigation (sic). COURT:t.hqw Fiscal. FISCAL CAMILO FULVADORA: t.hqw With the sound discretion of the Honorable Court. COURT: t.hqw Denied. (TSN, August 31,1983.) On February 7, 1984, the following took place: ATTY. RUIZ: Your honor, we are still in the process of direct examination for the accused. We are recalling the accused in the witness stand. I understand your honor last time, due to lack of material time, we requested for a resetting of these three cases inasmuch as the matter whether to give the accused for the meantime your honor, I am petitioning that he must be recalled and placed in the witness stand. COURT: t.hqw It is discretionary on the part of the Judge. What can you say Fiscal? FISCAL FULVADORA: I remembered right that it is the purpose for the trial, that the manifestation of the defense counsel that he is through with the testimony of the witness, he requested that the prosecution will be continued in some other time. ATTY. RUIZ: We concur with the Provincial Fiscal but prior, we are petitioning the Honorable Court to recall the witness for further direct examination and I am requesting that will have to continue the proceeding. We are convinced with the observation of the Court that it is discretionary of the Honorable Court but this representation however, we would like to request and reiterate and manifest for the petition that he be recalled. It is not the intention of the defense counsel, your honor, to delay the speedy termination of these cases. As a counsel for the accused, I would like to reiterate that the accused be recalled to the witness stand. FISCAL FULVADORA: The Honorable Court will decide on that part of presentation of the accused, whether to grant it or not the manifestation. COURT: t.hqw How many questions are you asking? ATTY. RUIZ: Due to lack of material time, the three cases, I forgot to ask few questions regarding the evidences or exhibits which are the panty, knife, and scissors, in the direct examination in that, it was overlooked in the part of this representation that the three after presented some of the exhibits per prosecution, were not questioned. FISCAL FULVADORA: It is not the matter of forgotting the exhibits of the counsel, there are time given to present this trial. I remembered that he propounded few questions for the defense and he manifested that he is through in his direct examination and it is my time to cross the testimony of the accused. ATTY. RUIZ: I forgot, before the Honorable Court that this representation have reasons of overlooking why I was not able to question

to all the matters considering of the lack of material time and that there are other cases waiting which are ready for the hearing. It is the discretionary on the part of the Honorable Court specially that the criminal penalty is death and while the Provincial Fiscal having further presentation of exhibits at the beginning of the case, where the questioning we were already finished, yet the Provincial Fiscal continued separately to the presentation of other cases. COURT': t.hqw Denied. Under cross. (TSN Feb. 7, 1984.) It is obvious from the foregoing that the respondent judge did not manifest the requisite cold impartiality which the petitioner deserved. The petition which questions the actuations of the respondent judge and seeks his disqualification was received by him on March 29, 1984. Prudence dictated that he refrain from deciding the cases or at the very least to hold in abeyance the promulgation of his decision pending action by this Court. But prudence gave way to imprudence; the respondent judge acted precipitately by deciding the cases on April 2, 1984, and promulgating his decision on May 3 of the same year. All of the acts of the respondent judge manifest grave abuse of discretion on his part amounting to lack of jurisdiction which substantively prejudiced the petitioner. WHEREFORE, the petition is hereby granted. The decision in Criminal Case Nos. 13, 14 and 15 of the respondent judge is set aside; the aforesaid cases shall be transferred to Branch XVII of the Regional Trial Court in Kidapawan for trial de novo which shall also resolve the petitioner's motion for release on recognizance under Sec. 191 of P.D. No. 603. No costs. SO ORDERED.1wph1.t Makasiar (Chairman), Concepcion, Jr., Guerrero, Escolin and Cuevas, JJ., concur. Aquino, J., took no part.

G.R. No. 137666 May 20, 2004 PEOPLE OF THE PHILIPPINES, appellee, vs. MARLON ORTILLAS y GAMLANGA, appellant. DECISION AUSTRIA-MARTINEZ, J.: 1 On January 6, 1995, an Information was filed against Marlon Ortillas with the Makati Regional Trial Court, and assigned by raffle to Branch 255 (Las Pias), then presided 2 over by Judge Florentino M. Alumbres. The Information reads: The undersigned 3rd Assistant Prosecutor accuses MARLON ORTILLAS Y GAMLANGA of the crime of Murder, committed as follows: That on or about the 21st day of December, 1994, in the Municipality of Las Pias, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with one Jacob Relox whose true identity and present whereabout is still unknown and both of them mutually helping and aiding one another, with intent to kill and without justifiable motive and evident premeditation and by means of treachery and use of explosive (pillbox), did, then and there willfully, unlawfully and feloniously attack, assault and throw a Pillbox to one Jose Mesqueriola y Labarosa, thereby inflicting upon the latter serious and mortal wounds, which directly caused his death. CONTRARY TO LAW. Las Pias, Metro Manila December 28, 1994. (signed) APOLINAR C. QUETULIO, JR. 3 3rd Assistant Prosecutor Despite the fact that it is stated in the title of the Information that appellant was a minor, detained at the Municipal Jail, Las Pias, Metro Manila, Presiding Judge Alumbres failed to ascertain and verify the alleged minority of appellant and determine if the provisions of P.D. No. 603, otherwise known as The Child and Youth Welfare Code should be applied to Ortillas. After arraignment of appellant who pleaded not guilty to the offense with which he is charged, the trial court dispensed with the pre-trial and proceeded to trial on the merits. 4 On June 8, 1995, the prosecution presented Russel Guiraldo, an alleged eyewitness. After Russels direct examination, Atty. Jose G. de Leon, the then counsel for Ortillas moved for postponement as he had a very important appointment to keep which Judge Alumbres granted. Subsequently, Atty. de Leon had to withdraw as counsel because of eye ailment which the trial court approved. The only other hearing that took place after the testimony of Russel on June 8, 1995, was on September 5, 1995 when NBI MedicoLegal Officer Roberto Garcia testified for the prosecution. All in all, the continuation of the hearing was postponed thirteen times from June 8, 1995 until May 8, 1996 when the 5 prosecution finally rested its case with the submission of its documentary 6 evidence. Witness Russel was never presented for cross-examination. The last time he 7 was subpoenaed was for the hearing set on November 6, 1995, but records do not show that he appeared on said date. Although several hearings were scheduled thereafter, Russel was not subpoenaed anymore. On the basis of the testimonies of Russel and Dr. Garcia, Judge Alumbres rendered a 8 decision dated September 21, 1998 with the following findings: Roselle Guiraldo positively identified and pointed to the accused as the one who threw the pillbox to his companion Jose Mesqueriola in the morning of December 21, 1994. He even specified the exact location where the accused was at the time he threw the pillbox. According to him, the accused was

standing in front of a gate of a house along Calle Real, near Plaza Quezon, Las Pias, Metro Manila. He could not be mistaken of the identity of the accused because they were former classmates at the Las Pias Municipal High School and members of rival fraternities. As could be deduced from the facts, the pillbox was intended for Roselle Guiraldo because the accused has the strongest motive of killing him. It will be recalled that three (3) days after the opening of classes at the Las Pias Municipal High School, Roselle Guiraldo and the accused could not see eye to eye already because Roselle Guiraldo was stoned and the stone came from the direction of the accused while seated inside the classroom. Roselle Guiraldo tried to get even with the accused by waiting for him outside of the school premises every after classes. Afraid that a personal encounter may happen and he will be in big trouble, the accused sought transfer to the Las Pias Municipal High School North, which is located at the Vergonville Subdivision in Barangay Pulanglupa II. This is now very far from his residence at San Francisco St. in Barangay Aldana. While if he was not transferred, his school (Las Pias Municipal High School) is only walking distance from his residence at San Francisco St. His ill-feelings against Roselle Guiraldo became intense because of the increasing problem he has to face or handle. He has his work and a common-law wife to support and who was now getting pregnant. But all the while, he has not severed his relationship with his gangmates, although according to him, he already quit from being an active member of Crime buster fraternity after he became a working student in July 9 1993. ... The defense put up by the accused is alibi, a very weak defense because it is easy to fabricate. Just like in the present case, he was still able to tell the authorities that he was in his house when his friend Jose Mesqueriola was killed. If there was truth that he was in his house when Jose Mesqueriola was killed, how come not one occupant in his house came forward to testify for him during the trial. Alibi is considered the weakest defense because it can easily be fabricated and cannot stand in the light of clear, positive and precise evidence of the prosecution establishing the identity of the accused (People vs. Magallanes, 218 SCRA 109; People vs. Santos, 221 SCRA 715; People vs. Bescana, 220 SCRA 93; People vs. dela Cruz, 217 SCRA 283). It is a fundamental dictum that the defense of alibi cannot prevail over the positive identification of the accused (People vs. Tanco, 218 SCRA 494). The charge against the accused is murder, defined and penalized under Article 248 of the Revised Penal Code, as amended by RA 7659. The commission of the crime in the present case was attended by the circumstance of explosion (the use and exploding of the pillbox). In the Certificate of Post-Mortem Examination (Exh. "C") which Dr. Garcia issued, he placed that the cause of death which is "Traumatic-head injury" was the result of an alleged explosion. On whether there was the circumstance of evident premeditation, the evidence does not clearly show. There is present in the circumstancial evidence of flight. As earlier established, the accused was one of those who escaped from detention in the jail of Las Pias City on April 17, 1997. It is well-settled rule that flight is indicative of guilt of the accused. Flight is a silent admission of guilt, and is an indication of his guilt or of a guilty mind (People vs. Martinado, 214 SCRA 712; People vs. Cruz, 213 SCRA 601; People vs. Alabaso, 204 10 SCRA 458; People vs. Babac, 204 SCRA 968; People vs. Lorenzo, 204 SCRA 361). The dispositve portion of the assailed decision reads: WHEREFORE, the Court finds the accused Marlon Ortillas y Gamlanga guilty beyond reasonable doubt of the charge against him in the information, and he is hereby sentenced to suffer the penalty of reclusionperpetua; to suffer the accessory penalties provided for by law; to indemnify the heirs of the victim Jose Mesqueriola in the sum of P100,000.00; and to pay the costs.

SO ORDERED. Hence, the present petition for review on certiorari with the following Assignment of Errors: I THE TRIAL COURT ERRED IN NOT COMMITTING THE ACCUSEDAPPELLANT TO THE CARE OF THE DEPARTMENT OF SOCIAL WELFARE WHICH SHALL BE RESPONSIBLE FOR HIS APPEARANCE IN COURT WHENEVER REQUIRED. II THE TRIAL COURT ERRED IN DENYING THE REQUEST OF ATTY. TERESITA CARANDANG-PANTUA OF THE PUBLIC ATTORNEYS OFFICE TO CROSS-EXAMINE THE WITNESS PRESENTED BY THE PROSECUTION DURING THE HEARING ON JUNE 8, 1995. III THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF PROSECUTION WITNESS ROSELLE GUIRALDO AND IN 12 DISREGARDING THE TESTIMONY OF ACCUSED-APPELLANT. Anent the first assigned error: In his Brief, appellant points out that the first counsel of appellant, Atty. Jose de Leon, raised the minority of appellant and invoked the provisions of P.D. No. 603 during the initial hearing conducted on June 8, 1995 but Judge Alumbres outrightly denied his request. Atty. de Leon submitted to the ruling and prosecution witness Russel was called to the witness stand. There is merit to the complaint of appellant. Judge Alumbres was remiss of his duty to ascertain the minority of appellant at the onset of the proceedings. The records further disclose that he likewise ignored the letter of Director Milda S. Alvior of the Department of Social Welfare and Development (DSWD) filed with his court on January 31, 1996 informing him that appellant at that time was sixteen years old and alleging that his prolonged stay in the Las Pias Jail for one year and one month at the time, mixed with hundred criminals affected him physically, 13 intellectually, emotionally and socially. The Presiding Judge should be sanctioned for his negligence in the performance of his duties with respect to accused minor - but these particular omissions are not sufficient grounds to merit the reversal of the assailed decision. As to the second assigned error: The Court finds merit to appellants claim that the judgment of the trial court has unduly deprived him of his constitutional right to meet the witness face to 14 face which includes the right to cross-examine the witness. Section 1(f), Rule 115 of the then prevailing Rules of Criminal Procedure provides: SECTION 1. Rights of the accused at the trial. In all criminal prosecutions, the accused shall be entitled to the following rights: ... (f) To confront and cross-examine the witnesses against him at the trial. . . . Section 6, Rule 132 of the then prevailing Rules on Evidence provides: SEC. 6. Cross-examination; its purpose and extent. Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. As the Court held in People vs. Rivera, to wit: The right of a party to cross-examine a witness is embodied in Art. III, 14(2) of the Constitution which provides that the accused shall have the right to meet the witnesses face to face and in Rule 115, 1(f) of the Revised Rules of Criminal Procedure which states that, in all criminal prosecutions, the

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accused shall have the right to confront and cross-examine the witness against him. The cross-examination of a witness is essential to test his or her credibility, expose falsehoods or half-truths, uncover the truth which rehearsed direct examination testimonies may successfully suppress, and demonstrate inconsistencies in substantial matters which create reasonable doubt as to the guilt of the accused and thus give substance to the constitutional right of the 15 accused to confront the witnesses against him. Records disclose that there was never a valid waiver on the part of appellant or his counsel to cross-examine the prosecution witness Russel. The first counsel, Atty. de Leon, in the hearing of June 8, 1995 requested for postponement of the crossexamination of Russel in view of his "professional engagement", without objection on the 16 part of the prosecution. The next hearing was also postponed in view of the eye 17 problem of Atty. de Leon. And on August 3, 1995, the hearing was again postponed due 18 to the withdrawal of appearance of Atty. de Leon on ground of eye-ailment. Subsequent 19 dates of hearing were postponed because the Presiding Judge went on leave. It is only on September 25, 1995 that Atty. Leopoldo Macinas appeared as new counsel for 20 appellant. However, although it appears in the Minutes of the hearing scheduled on said 21 date that the same is for cross-examination of Russel, there is no showing that Russel was present during that day. In fact, the Minutes show that Russel had to be notified for 22 the next hearing set on November 6, 1995. But on November 6, the hearing was again postponed to November 11, 1995 due to typhoon Rosing. The Minutes again does not show that on November 6, Russel appeared in court as only complaining witness Grace 23 Mesqueriola signed thereon. Thereafter, Russel was never notified of the hearings set on December 11, 1995, January 17, 1996, January 22, 1996, January 31, 1996, February 26, 1996, March 25, 1996 and May 8, 1996. Judge Alumbres refusal to give opportunity for Atty. Teresita Carandang-Pantua of the Public Attorneys Office (PAO), the new counsel for appellant, to cross-examine prosecution witness Russel on the ground that prosecution had already rested its case, is patently a grave abuse of discretion on his part. Although Atty. Pantua had adequately explained appellants predicament, on the first scheduled date of hearing for the presentation of defense evidence, Judge Alumbres, upon the perfunctory objection of the prosecution, unreasonably refused to heed Atty. Pantuas request. It was well within the trial courts discretion to allow the recall of witness Russel under the then prevailing Section 9, Rule 132 of the Rules on Evidence, to wit: SEC. 9. Recalling witness. After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The Court will grant or withhold leave in its discretion, as the interests of justice may require. Certainly, under the foregoing circumstances, Judge Alumbres should have known that the interest of justice required that appellant should have been given the opportunity to cross-examine Russel, as it was not his fault that Russel had not been cross-examined. While a petition for certiorari could have been duly availed of by counsel for appellant to rectify the judges grave abuse of discretion, appellant should not be made to suffer for the failure of his counsel to do so; as a layman, he could not have known better as to what must be done under the circumstances. On this matter, the PAO, as de oficio counsel for appellant was remiss of its duty to protect the interest of its client. Under the peculiar facts and circumstances of the case, it is evident that appellant had not been given the opportunity to cross-examine the lone prosecution witness. In the absence of cross-examination, which is prescribed by statutory norm and jurisprudential 24 precept, the direct examination of the witness should have been expunged from the records, in which case, the trial court would have had no valid basis to deny the demurrer to evidence.

Nevertheless, the Court will resolve the third issue so as to put an end to the question whether or not the trial court erred in giving weight and credence to the testimony of prosecution witness Russel and in disregarding the testimony of appellant. The trial court declared that "the issue in this case hinges mainly on credibility of the 25 witnesses, both of the prosecution and the defense". The prosecution evidence is principally based on the testimony of Russel which is narrated by the trial court, as follows: . . . He testified that at around 6:00 oclock in the morning of December 21, 1994, he was with one Jose Mesqueriola, alias Joey, hearing Misa de Gallo at the Bamboo Organ Church in Las Pias, Metro Manila. After the mass, he and Jose Mesqueriola were walking side by side at the side of the road leading to the direction of Quezon Plaza. Upon reaching a point at the side of the road near Plaza Quezon, and at a distance of about fifteen (15) meters, he saw the accused in front of a gate of a house threw (sic) a pillbox towards their direction and the pillbox exploded on the head of his companion Jose Mesqueriola. He was also hit at a portion of his right face. After the bomb exploded on the head of Jose Mesqueriola, the latter fell down so he helped him by bringing him to the Las Pias Emergency Hospital which is just nearby. However, the next day, he died. After the accused threw the bomb, he ran away and hid. He came to know of the accused since June 1994 (they being classmates in the Municipal High 26 School, according to the accused). . . On the other hand, the defense evidence consist only of the testimony of appellant which is aptly narrated by the trial court, as follows: . . . he testified that on December 21, 1994, at around 6:00 oclock in the morning, he was in his house at his given address when he heard an explosion. He then ran towards the direction where the explosion was to find out what was it all about. Reaching the place, he found some people around and he saw a person lying prostrate on the street and blooded. He was being assisted and brought to the hospital by his classmate Roselle Guiraldo. After the wounded person was brought to the hospital, he learned from his neighbors that the person lying on the street was a victim of pillbox explosion and he came to know that his name was Joey and his friend. When he ran out of his house, he saw his classmate Jacob Relox was running away from the scene of the explosion, together with companions, and he was also told by Aling Itang, one of his neighbors, that the one who threw the pillbox to Joey was Jacob Relox. He learned also from his neighbor, Aling Itang, that the reason why Jacob Relox threw pillbox at Joey is because on December 20, 1994, Jacob was mauled by Joey Mesqueriola and his companions. The accused revealed during the trial that he was a working student enrolled at the Las Pias Municipal High School near Saint Joseph Church in Las Pias Poblacion. In their school, there were two rival fraternities, the Crimebuster and the Taugamma. He was a member of the Crimebuster together with Roselle Guiraldo and Jose Mesqueriola, his classmates. He left the Crimebuster because he did not like the rules and he joined the Taugamma. After one (1) week of attending classes at the Las Pias Municipal High School, he asked for transfer to Las Pias North Municipal High School because in the Las Pias Municipal High School, every after classes, his classmate Roselle Guiraldo always waited for him outside (inaabangan) and look (sic) for trouble, and this Roselle Guiraldo has a bad blood or grudge against him. It started when there was stone throwing inside their classroom on the third day of their classes. Roselle Guiraldo was hit and he thought that he (accused) was the one who threw the stone because it came from the direction where he was sitting, not knowing that it was his sitmate (sic) who threw the stone. So that even if he was not the one who threw the pillbox in the early morning of December 21,

1994 which cause the death of Jose Mesqueriola, he was the one pointed to by Roselle Guiraldo because of this grudge against him. He also testified that Jacob Relox has the motive for killing Jose Mesqueriola because on December 20, 1994, Jacob Relox was mauled by Jose Mesqueriola and the other members of the Crimebuster fraternity. Jacob Relox then was a 27 member of the rival fraternity, the Taugamma. Considering that appellant was unlawfully deprived of the opportunity to cross-examine prosecution witness Russel, his testimony should have been strictly scrutinized and analyzed with utmost care and any doubt thereon should have been interpreted by the trial court in favor of appellant. We reproduce hereunder the testimony of Russel on direct examination: FISCAL QUETULIO Q How long have you been rather how long have you know (sic) this Marlon Ortillas? WITNESS A June, 1994, Sir. FISCAL QUETULIO Q Now, will you please tell us, at around 6:00 oclock in the morning of December 21, 1994, where were you? WITNESS A I was in the church, Sir. FISCAL QUETULIO Q Where is that church located, Mr. Witness? WITNESS A Las Pias, Sir. ... FISCAL QUETULIO Q Now, at around that time also, who were your companions, if any in going to church? WITNESS A Joey, Sir. His name, true name is Jose Miscariola, Sir. FISCAL QUETULIO Q Now, where is this Jose Miscariola now, Mr. Witness? WITNESS A He died already, Sir. FISCAL QUETULIO Q When did he die? WITNESS A December 22, 1994, Sir. FISCAL QUETULIO Q Now, when you and Jose Miscariola were in the church, was there, at around 7:00 rather 6:00 oclock in the morning of December 21, 1994, was there any unusual incident that happened? WITNESS A Yes, there was, Sir. FISCAL QUETULIO Q What was that incident, if any, Mr. Witness? WITNESS A When we were about to leave the church, Joey or Jose Miscariola was hit with the pillbox that was thrown by the accused, Marlon Ortillas. FISCAL QUETULIO Q Now, when this incident happened, how far were you then from the church, Mr. Witness? WITNESS

A We were already far from the church because the incident happened in the plaza, Sir. FISCAL QUETULIO Q Now, what happened at the plaza, Mr. Witness? WITNESS A The incident was about the throwing of pillbox by Marlon Ortillas, Sir, to Jose Miscariola. FISCAL QUETULIO Q Now, this pillbox that was allegedly thrown to Joey, what happened to him, if any? WITNESS A It exploded in his head, Sir, or in the head of Jose Miscariola, Sir. FISCAL QUETULIO Q And what happened to Joey Miscariola after the pillbox thrown by Marlon Ortillas exploded in his head? WITNESS A He fell down, Sir. FISCAL QUETULIO Q And how about you, what did you do when you saw Joey Miscariola fell down? WITNESS A I helped him, Sir. FISCAL QUETULIO Q Now, this Joey Miscariola, when he was hit with the pillbox that exploded in his head, how far were you then, Mr. Witness? WITNESS A I was beside him, Sir. FISCAL QUETULIO Q Were you not also hit by the pillbox, Mr. Witness? WITNESS A I was also hit, Sir. FISCAL QUETULIO Q Where were you hit, Mr. Witness? WITNESS A In my face, Sir. INTERPRETER Witness pointing to the right portion of his face. FISCAL QUETULIO Q Now, Now, where was Marlon Ortillas at that time when you saw him threw (sic) the pillbox to your direction? WITNESS A At the gate located at the opposite side of the street. FISCAL QUETULIO Q What is this gate, gate of a house or gate of the plaza? WITNESS A Gate of house, Sir. FISCAL QUETULIO Q Now, how far was Marlon Ortillas from both of you and Joey when you saw Marlon throwing the pillbox towards you? WITNESS A It is just near, Sir. INTERPRETER

Witness pointing to a distance from the chair where he is sitting to the door of the courtroom which was estimated by the prosecution and counsel for the accused to be about fifteen (15) meters, more or less. COURT Q Do you agree that the distance is about fifteen (15) meters more or less, Fiscal? FISCAL QUETULIO A Yes, Your Honor. ATTY. DE LEON No objection, Your Honor. FISCAL QUETULIO Q Now, you said that you helped Joey when he fell down, what help did you do, Mr. Witness? WITNESS A I brought him to the Las Pias Emergency Hospital which was located nearby, Sir. FISCAL QUETULIO Q What about Marlon Ortillas, after throwing the pillbox or after it exploded, did you notice what happened to him? WITNESS A He hid, Sir. FISCAL QUETULIO Q Where did he hide, Mr. Witness? WITNESS A In their house, Sir. FISCAL QUETULIO Q Where is this house of Marlon located, Mr. Witness? WITNESS A It was just located nearby, Sir. FISCAL QUETULIO Q How far from the gate where Marlon was standing from where Marlon threw the pillbox up to his house, how far is that, if you know? WITNESS A From here up to that distance, Sir. INTERPRETER Witness is pointing to a distance of more or less six (6) meters from the place where he is sitting. FISCAL QUETULIO Q More or less six meters, is that agreed, Counsel? ATTY. DE LEON 28 A Yes, Your Honor. It is doctrinal that the Court will not interfere with the judgment of the trial court in passing upon the credibility of witnesses, unless there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of 29 which has been misapprehended or misinterpreted. The trial courts assessment of Russels testimony is not only perfunctorily done but its decision is also partly based on the evidence presented by the defense, in stark violation of the well-settled rule that the conviction of appellant must not act on the weakness of 30 the defense but on the strength of the prosecution. First, it cannot be ove-emphasized that there is no direct, positive testimony that Russel actually saw appellant throw the pillbox. He only testified that when he and victim Joey or 31 Jose Miscariola were about to leave the church, Joey "was hit with the pillbox that was thrown by the accused, Marlon Ortillas". This statement is a conclusion of fact rather than a declaration of what he actually saw. He did not testify that he actually saw

appellant in the act of throwing the pillbox at them. It was only the Fiscal who expressed in his question or who presumed that Russel saw appellant throw the pillbox to the place where they were, which although not objected to by counsel for appellant, should not have been a basis for appellants conviction. The purported eyewitness should at least have declared, positively and explicitly, having seen appellant throw the pillbox or an unidentified object. There is not even a testimony that Russel saw appellant holding the pillbox before he threw it. Second, it is difficult to reconcile the contradiction in the declaration of Russel that it is when they were about to leave the church that Joey was hit with the pillbox thrown by appellant as against his succeeding answer to the next question of the Fiscal as to how far were they from the church when the incident happened and he replied that they were already far from the church because the incident happened in the plaza. Where did the throwing of the pillbox actually take place, when he was about to leave the church or in the plaza? Why the discrepancy? Did he really see the actual throwing of the pillbox? These are questions, the answers to which are not found in the testimony of Russel. Third, Russel testified that appellant was fifteen meters away from them at the opposite side of the street. To be able to testify that he saw appellant throw a pillbox, Russel should have seen the actual throwing by appellant before the pillbox left the hand of appellant; otherwise, how could Russel say for certain that it was appellant who threw the pillbox? And if Russel did see the actual throwing of an object thrown at their direction, how could he not have at least attempted to avoid the same when the distance between them and appellant is fifteen meters. At the normal speed of a hand thrown object as big as a pillbox, if Russel had actually seen appellant in the act of throwing the pillbox from that distance, instinct would have naturally spurred him, at least, to attempt to dodge the same, even if he would not have succeeded in doing so. As it is, Russel did not testify that upon seeing the pillbox or the object being thrown by appellant at their direction, he tried to evade the same. Neither is there any testimony on the part of Russel that when he saw the pillbox being thrown at him and Joey, there was no time to evade the same. Fourth, the testimony of Russel that he helped Joey when the latter was hit and fell down, but, at the same time, he saw appellant run and hide in his (appellants) house that was six meters away from the place where appellant threw the pillbox, is not credible. It goes beyond human experience for Russel to be able to follow the movements of a culprit right after Joey, his companion, had been hit at the same time that he was helping Joey when the latter fell to the ground, not to mention the fact that he was also hit on the right side of his face. Does it mean that Russel just stood by watching appellants movements while the latter threw the pillbox at them and hit him and Joey? The failure of the prosecution to explain this incredible feat is fatal to its cause. No better test has been found to measure the value of a witness testimony than its conformity to the knowledge and common 32 experience of mankind. Fifth, the motive attributed by the trial court to appellant in throwing a pillbox at Russel is based not on the testimony of prosecution witness Russel but on the testimony of appellant. It is a hornbook doctrine that the prosecution must rely on its own evidence to 33 prove the guilt of appellant beyond reasonable doubt and therefore, the trial court should not depend on the evidence of the defense to support the conviction of appellant. However, considering that the presiding judge had given probative weight or credibility to the testimony of appellant by using his testimony to establish motive on his part to commit the crime, the same testimony may be used likewise to prove that witness Russel had an ill-motive to testify against appellant. And when the evidence admits of two 34 interpretations, that which is favorable to appellant should prevail. 35 Sixth, while indeed, it is true that flight evidences guilt and a guilty conscience, the escape of appellant from jail pending trial of his case, cannot, under the attendant circumstances, be considered as evidence of his guilt in the commission of the offense, or as basis of his conviction in this case. Appellant had sufficiently explained that he escaped from detention because he got bored in jail, he wanted to see his first new born

child and to look for his own father. It is quite surprising why the trial judge in his decision only mentioned and denigrated the explanation of appellant that he wanted to look for his father and not mention at all the other reasons of appellant for bolting out of jail. At any rate, it is not refuted that appellant subsequently surrendered to a member of 37 the Office of the Assistant Regional Director, BJMP, because of fear for his life. On the other hand, in denying that he threw the pillbox, no other witness was presented by appellant to corroborate his testimony. Nonetheless, the testimony of appellant fully explains why Russel testified against him. Russel was of the belief that appellant was the one who earlier threw a stone at him in the classroom. Unfortunately, the trial court misapprehended the import of his testimony and interpreted it against him to explain the latters purported motive in throwing the pillbox at Russel and Joey. Although denial, like alibi, can be fabricated, it is not always false and without merit, and when coupled with the improbabilities and uncertainties of the prosecution evidence, the 38 defense of alibi deserves merit. Settled is the rule that conviction should rest on the 39 strength of evidence of the prosecution and not on the weakness of the defense. The 40 weakness of the defense does not relieve it of this responsibility. And when the prosecution fails to discharge its burden of establishing the guilt of an accused, an 41 accused need not even offer evidence in his behalf. A judgment of conviction must rest 42 on nothing less than moral certainty. It is thus required that every circumstance favoring his innocence must be duly taken into account. The proof against him must survive the test of reason and the strongest suspicion must not be permitted to sway 43 judgment. There must be moral certainty in an unprejudiced mind that it was accusedappellant who committed the crime. Absent this required quantum of evidence would 44 mean exoneration for accused-appellant. As the Court declared in People vs. Tajada: While we strongly condemn the senseless and gruesome crime and sincerely commiserate with the suffering and emotional stress suffered by the bereaved family of the victim, nevertheless, we find the pieces of circumstantial evidence insufficient to prove the guilt of accused-appellant beyond reasonable doubt. They do not pass the requisite moral certainty, as they admit of the alternative inference that other persons, not necessarily the accused-appellant, may have perpetrated the crime. Where the evidence admits of two interpretations, one which is consistent with guilt and the other with innocence, the accused must be acquitted. Indeed, it would be better to set free ten men who might be probably guilty of the crime charged than to convict one innocent man for a crime he did 45 not commit. Thus, the Court is constrained to set aside the conviction of appellant. Had not Judge Alumbres been compulsorily retired in 2001, he together with the Public Attorneys Office would have been admonished to be more circumspect in the performance of their respective duties so as to prevent miscarriage of justice. WHEREFORE, the appealed judgment is REVERSED AND SET ASIDE. Another judgment is entered ACQUITTING appellant MARLON ORTILLAS y GAMLANGA for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered IMMEDIATELY RELEASED from prison, unless he is being held for some other lawful cause. The Director of Prisons is DIRECTED to inform this Court of the action taken hereon within five (5) days from receipt of copy of herein Decision. The Public Attorneys Office is admonished to be more circumspect in the performance of its duties so as to prevent miscarriage of justice. Let copy of herein decision be furnished the Chief Public Attorney of the Public Attorneys Office so that appropriate steps may be taken to ensure the improvement of the service of that office. SO ORDERED. * Puno , Quisumbing, Callejo, Sr., and Tinga, JJ., concur.

36

G.R. No. 136051 June 8, 2006 ALFREDO P. ROSETE, OSCAR P. MAPALO and CHITO P. ROSETE, Petitioners, vs. JULIANO LIM and LILIA LIM, Respondents. DECISION CHICO-NAZARIO, J.: Before Us is a petition for review on certiorari which seeks to set aside the Decision 1 of the Court of Appeals in CA-G.R. SP No. 45400 dated 24 August 1998 which upheld the Orders of Branch 77 of the Regional Trial Court (RTC) of Quezon City in Civil Case No. Q-95-25803 dated 22 July 19972 and 27 August 1997,3 allowing the taking of deposition upon oral examination of petitioners Oscar P. Mapalo and Chito P. Rosete, and its Resolution4 dated 19 October 1998 denying petitioners Motion for Reconsideration. Relevant to the petition are the following antecedents: On 5 December 1995, respondents Juliano Lim and Lilia Lim filed before Branch 77 of the RTC of Quezon City a Complaint for Annulment, Specific Performance with Damages against AFP Retirement and Separation Benefits System (AFP-RSBS), Espreme Realty and Development Corporation (Espreme Realty), Alfredo P. Rosete, Maj. Oscar Mapalo, Chito P. Rosete, Bank of the Philippine Islands (BPI), and Register of Deeds of the Province of Mindoro Occidental, docketed as Civil Case No. Q-95-25803.5 It asked, among other things, that the Deed of Sale executed by AFPRSBS covering certain parcels of lands in favor of Espreme Realty and the titles thereof under the name of the latter be annulled; and that the AFP-RSBS and Espreme Realty be ordered to execute the necessary documents to restore ownership and title of said lands to respondents, and that the Register of Deeds be ordered to cancel the titles of said land under the name of Espreme Realty and to transfer the same in the names of respondents. On 18 January 1996, petitioners filed a Motion to Dismiss on the grounds that the court has no jurisdiction over the subject matter of the action or suit and that venue has been improperly laid. 6 A Supplemental Motion to Dismiss was filed by petitioner Alfredo P. Rosete on 23 January 1996.7 Respondents opposed the Motion to Dismiss filed by petitioners8 to which petitioners filed their Reply.9 Respondents filed a Comment on the Reply.10AFP-RSBS,11 Espreme Realty,12 and, BPI13 filed their respective Motions to Dismiss which respondents opposed. In an Order dated 12 March 1996, the Motions to Dismiss filed by all the defendants were denied.14 The Motions for Reconsideration filed by petitioners15 and BPI,16 which respondents opposed,17 were also denied in an Order dated 24 May 1996.18 On 6 June 1996, BPI filed its Answer with Compulsory Counterclaim and Cross-claim19 to which respondents filed their Reply and Answer to Counterclaim. 20 Respondents also filed a Motion21 to Serve Supplemental Allegation against BPI and petitioner Chito Rosete which the trial court granted in an order dated 28 July 1996.22 On 7 June 1996, petitioners manifested that on 5 June 1996, they filed a Petition 23 for Certiorari and Prohibition in the Court of Appeals, docketed as CA-G.R. SP No. 40837, challenging the trial courts Orders dated 12 March 1996 and 24 May 1996 that denied their Motions to Dismiss and Reconsideration, respectively.24 They likewise informed the trial court that on 6 June 1996, they filed an Ex-Parte Motion25 to Admit Answers Ex Abudanti Cautela.26lavvphi1.net On 7 August 1996, petitioner Chito Rosete filed a motion asking that the order granting the Motion to Serve Supplemental Allegation against BPI and him be reconsidered and set aside, and that respondents be ordered to reduce their supplemental allegations in the form and manner required by the Rules of Court.27 Same was denied in an order dated 12 August 1996. 28 This denial was appealed to the Court of Appeals on 26 August 1996, which was docketed as CA-G.R. SP No. 41821.29 Petitioner Chito Rosete filed his Supplemental Answer (Ex Abudanti Cautela) on 9 September 1996.30 On 28 May 1997, respondents filed a Notice to Take Deposition Upon Oral Examination giving notice that on June 18 and 20, 1997 at 9:00 a.m., they will cause the deposition of petitioners Oscar Mapalo and Chito Rosete.31 On 13 June 1997, petitioners filed an Urgent Ex-Parte Motion and Objection to Take Deposition Upon Oral Examination.32 They argued that the deposition may not be taken without leave of court as no answer has yet been served and the issues have not yet been joined since their Answer was filed ex abudanti cautela, pending resolution of the Petition for Certiorari challenging the orders dated 12 March 1996 and 24 May 1996 that denied their Motions to Dismiss and for Reconsideration, respectively. This is in addition to the fact that they challenged via a Petition for Certiorari before the Court of Appeals the lower courts Orders dated 23 July 1996 and 12 August 1996 which, respectively, granted respondents Motion to Serve Supplemental Allegation Against

Defendants BPI and Chito Rosete, and for the latter to plead thereto, and denied Chito Rosetes Motion for Reconsideration of the order dated 23 July 1996. Moreover, they contend that since there are two criminal cases pending before the City Prosecutors of Mandaluyong City and Pasig City involving the same set of facts as in the present case wherein respondent Juliano Lim is the private complainant and petitioners are the respondents, to permit the taking of the deposition would be violative of their right against self-incrimination because by means of the oral deposition, respondents would seek to establish the allegations of fact in the complaint which are also the allegations of fact in the complaint-affidavits in the said criminal cases. Respondents filed their Comment on the Objection to Deposition Taking33 to which petitioners filed their Reply.34 In an Order dated 22 July 1997, the lower court denied petitioners motion and objection to take deposition upon oral examination, and scheduled the taking thereof.35 On 7 August 1997, petitioners filed a Motion for Reconsideration.36 They filed a Supplemental Motion for Reconsideration on 11 August 1997.37 On 13 August 1997, petitioners filed an Urgent Ex-parte Motion to Cancel or Suspend the Taking of the Deposition Upon Oral Examination.38 In an Order dated 27 August 1997, the lower court denied petitioners Motion for Reconsideration and Supplemental Motion for Reconsideration, and scheduled the taking of the Deposition Upon Oral Examination.39 On 22 September1997, respondents filed an Omnibus Motion: (1) To Strike Out Answer of Defendants Mapalo and Chito Rosete; (2) to Declare Defendants Mapalo and Chito Rosete In Default; and (3) For Reception of Plaintiffs Evidence Ex-parte,40 which petitioners opposed.41 On 29 September 1997, petitioners filed with the Court of Appeals a Petition for Certiorari and Prohibition (CA-G.R. SP No. 45400) assailing the Orders of the lower court dated 22 July 1997 and 27 August 1997.42 In an Order dated 29 October 1997, the lower court: (1) ordered the striking out from the record of the Answer ex abudanti cautela filed by petitioners Mapalo and Chito Rosete for their continued unjustified refusal to be sworn pursuant to Rule 29 of the 1997 Rules of Civil Procedure; (2) declared defendants Mapalo and Chito Rosete in default; and I allowed plaintiffs to present their evidence exparte as regards the latter.43 On 25 November 1997, petitioners filed an Urgent Ex-parte Omnibus Motion (1) For Reconsideration; (2) To Lift Order of Default; and (3) To Hold In Abeyance Presentation of Plaintiffs Evidence Ex-parte.44 The day after, petitioners filed an Amended Omnibus Motion.45 On 28 November 1997, respondents filed a Motion to Set Case for Ex-parte Presentation of Evidence46 which the lower court set for 11 December 1997.47 In an Order dated 11 December 1997, the lower court denied petitioners urgent ex-parte omnibus motion.48 On even date, the ex-parte presentation of evidence against petitioners Mapalo and Chito Rosete was terminated.49 On 10 February 1998, petitioners filed a Petition50 for Certiorari and Prohibition before the Court of Appeals (CA-G.R. SP No. 46774) questioning the lower courts Orders dated 29 October 1997 and 11 December 1997.51 On 24 August 1998, the Court of Appeals dismissed the Petition for Certiorari and Prohibition, and upheld the Orders of the lower court dated 22 July 1997 and 27 August 1997 (CA-G.R. SP No. 45400).52 The Motion for Reconsideration53 which was opposed54 by respondents was denied on 19 October 1998.55 Petitioners assail the ruling of the Court of Appeals via a Petition for Review on Certiorari. They anchor their petition on the following grounds: I. THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION IN DECLARING IN ITS ORDER DATED AUGUST 27, 1997 THAT THE CONSTITUTIONAL RIGHT AGAINST SELF INCRIMINATION OF OSCAR MAPALO AND CHITO ROSETE WOULD NOT BE VIOLATED BY THE TAKING OF THEIR DEPOSITION IN THE CIVIL CASE FILED IN THE LOWER COURT ALTHOUGH THEY ARE ALSO RESPONDENTS OR DEFENDANTS IN THE AFOREMENTIONED CRIMINAL CASES FILED BY HEREIN PRIVATE RESPONDENT JULIANO LIM INVOLVING THE SAME OR IDENTICAL SET OF FACTS; AND II. THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION IN DECLARING IN ITS ORDER DATED JULY 22, 1997 THAT (A) THE NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION NEED NOT BE WITH LEAVE OF COURT BECAUSE AN ANSWER EX ABUDANTE CAUTELA HAS BEEN FILED;

AND (B) JOINDER OF ISSUES IS NOT REQUIRED IN ORDER THAT THE SECTION 1, RULE 2356 OF THE RULES OF CIVIL PROCEDURE MAY BE AVAILED OF. Petitioners argue that the Court of Appeals gravely erred when it found that the trial court did not abuse its discretion when it refused to recognize petitioners Oscar Mapalo and Chito Rosetes constitutional right against self-incrimination when, through its Orders dated 22 July 1997 and 27 August 1997, it allowed and scheduled the taking of their depositions by way of oral examination. They explain they refuse to give their depositions due to the pendency of two criminal cases against them, namely, Batasan Pambansa Blg. 22 and Estafa, because their answers would expose them to criminal action or liability since they would be furnishing evidence against themselves in said criminal cases. They allege there can be no doubt that the questions to be asked during the taking of the deposition would revolve around the allegations in the complaint in the civil case which are identical to the allegations in the complaint-affidavits in the two criminal cases, thus, there is a tendency to incriminate both Oscar Mapalo and Chito Rosete. Moreover, they explain that while an ordinary witness may be compelled to take the witness stand and claim the privilege against self-incrimination as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to answer any and all questions because the right against self-incrimination includes the right to refuse to testify. In short, petitioners Mapalo and Chito Rosete refuse to have their depositions taken in the civil case because they allegedly would be incriminating themselves in the criminal cases because the testimony that would be elicited from them may be used in the criminal cases. As defendants in the civil case, it is their claim that to allow their depositions to be taken would violate their constitutional right against self-incrimination because said right includes the right to refuse to take the witness stand. In order to resolve this issue, we must determine the extent of a persons right against selfincrimination. A persons right against self-incrimination is enshrined in Section 17, Article III of the 1987 Constitution which reads: "No person shall be compelled to be a witness against himself." The right against self-incrimination is accorded to every person who gives evidence, whether voluntary or under compulsion of subpoena, in any civil, criminal or administrative proceeding. The right is not to be compelled to be a witness against himself. It secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to which may incriminate himself for some offense that he may refuse to answer on the strength of the constitutional guaranty. 57 As to an accused in a criminal case, it is settled that he can refuse outright to take the stand as a witness. In People v. Ayson,58 this Court clarified the rights of an accused in the matter of giving testimony or refusing to do so. We said: An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others 1) to be exempt from being a witness against himself, and 2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. The right of the defendant in a criminal case "to be exempt from being a witness against himself" signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. In other words unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. X x x (Underscoring supplied.) It is clear, therefore, that only an accused in a criminal case can refuse to take the witness stand. The right to refuse to take the stand does not generally apply to parties in administrative cases or proceedings. The parties thereto can only refuse to answer if incriminating questions are propounded. This Court applied the exception a party who is not an accused in a criminal case is allowed not to take the witness stand in administrative cases/proceedings that partook of the nature of a criminal proceeding or analogous to a criminal proceeding. 59 It is likewise the opinion of

the Court that said exception applies to parties in civil actions which are criminal in nature. As long as the suit is criminal in nature, the party thereto can altogether decline to take the witness stand. It is not the character of the suit involved but the nature of the proceedings that controls. 60 In the Ayson case, it is evident that the Court treats a party in a civil case as an ordinary witness, who can invoke the right against self-incrimination only when the incriminating question is propounded. Thus, for a party in a civil case to possess the right to refuse to take the witness stand, the civil case must also partake of the nature of a criminal proceeding. In the present controversy, the case is civil it being a suit for Annulment, Specific Performance with Damages. In order for petitioners to exercise the right to refuse to take the witness stand and to give their depositions, the case must partake of the nature of a criminal proceeding. The case on hand certainly cannot be categorized as such. The fact that there are two criminal cases pending which are allegedly based on the same set of facts as that of the civil case will not give them the right to refuse to take the witness stand and to give their depositions. They are not facing criminal charges in the civil case. Like an ordinary witness, they can invoke the right against self-incrimination only when the incriminating question is actually asked of them. Only if and when incriminating questions are thrown their way can they refuse to answer on the ground of their right against self-incrimination. On the second assigned error, petitioners contend that the taking of their oral depositions should not be allowed without leave of court as no answer has yet been served and the issues have not yet been joined because their answers were filed ex abudanti cautela pending final resolution of the petition for certiorari challenging the trial courts Orders dated 12 March 1996 and 24 May 1996 that denied their motions to dismiss and for reconsideration, respectively. Section 1 of Rule 2461 of the Revised Rules of Court reads: Section 1. Depositions pending action, when may be taken. By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 23. Depositions shall be taken only in accordance with these rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. From the quoted section, it is evident that once an answer has been served, the testimony of a person, whether a party or not, may be taken by deposition upon oral examination or written interrogatories. In the case before us, petitioners contend they have not yet served an answer to respondents because the answers that they have filed with the trial court were made ex abudanti cautela. In other words, they do not consider the answers they filed in court and served on respondents as answers contemplated by the Rules of Court on the ground that same were filed ex abudanti cautela. We find petitioners contention to be untenable. Ex abudanti cautela means "out of abundant caution" or "to be on the safe side."62 An answer ex abudanti cautela does not make their answer less of an answer. A cursory look at the answers filed by petitioners shows that they contain their respective defenses. An answer is a pleading in which a defending party sets forth his defenses63 and the failure to file one within the time allowed herefore may cause a defending party to be declared in default.64 Thus, petitioners, knowing fully well the effect of the non-filing of an answer, filed their answers despite the pendency of their appeal with the Court of Appeals on the denial of their motion to dismiss. Petitioners argument that the issues of the case have not yet been joined must necessarily fail in light of our ruling that petitioners have filed their answers although the same were made ex abudanti cautela. Issues are joined when all the parties have pleaded their respective theories and the terms of the dispute are plain before the court. 65 In the present case, the issues have, indeed, been joined when petitioners, as well as the other defendants, filed their answers. The respective claims and defenses of the parties have been defined and the issues to be decided by the trial court have been laid down. We cannot also sustain petitioners contention that the lower court erred when it said that the joinder of issues is not required in order that Section 1, Rule 23 of the 1997 Rules of Civil Procedure may be availed of. Under said section, a deposition pending action may be availed of: (1) with leave of court when an answer has not yet been filed but after jurisdiction has been obtained over any defendant or property subject of the action, or (2) without leave of court after an answer to the complaint has been served. In the instant case, the taking of the deposition may be availed of even without leave of court because petitioners have already served their answers to the complaint. WHEREFORE, all the foregoing considered, the instant petition is dismissed for lack of merit. SO ORDERED.

G.R. No. L-39115 May 26, 1975 In the Matter of the Petition for Habeas Corpus. SEGIFREDO L. ACLARACION, petitioner, vs. HON. MAGNO S. GATMAITAN, HON. HOSE N. LEUTERIO, COLONEL RUPERTO B. ACLE, Chief of Police, and Lieutenant FRANCISCO CRUZ, Warden, Makati, Rizal, respondents. AQUINO, J.:+.wph!1 Segifredo L. Aclaracion functioned as a temporary stenographer in the Gapan branch of the Court of First Instance of Nueva Ecija from October 1, 1969 to November 21, 1971. His appointment expired on November 21, 1972 while he was working as a temporary stenographer in the Court of First Instance of Manila. Thereafter, he was employed as a stenographer in the Public Assistance and Claims Adjudication Division of the Insurance Commission, where he is now working. After Aclaracion had ceased to be a court stenographer, the Court of Appeals required him to transcribe his stenographic notes in two cases decided by the Gapan court which had been appealed: Muncal vs. Eugenio, CA-G. R. No. 49711-R and Paderes vs. Domingo, CA-G. R. No. 52367-R. He failed to comply with the resolutions of the Court of Appeals. He was declared in contempt of court. On May 29 and July 29, 1974 Justice Magno S. Gatmaitan and Justice Jose N. Leuterio, Chairmen of the Third and Seventh Divisions of the Court of Appeals, respectively, ordered the Chief of Police of Makati, Rizal, to arrest Aclaracion, a resident of that municipality, and to confine him in jail until he submits a complete transcript of his notes in the said cases. Aclaracion was arrested on June 21, 1974 and incarcerated in the municipal jail. In a petition dated July 12, 1974 he asked the Court of Appeals that he be not required to transcribe his notes in all the cases tried in the Gapan court. He suggested that the testimonies in the said cases be retaken. The Third Division of the Court of Appeals in its resolution of August 7, 1974 ordered the release of Aclaracion. Later, he transcribed his notes in the Muncal case. However, the warden did not release him because of the order of arrest issued by the Seventh Division. On August 9, 1974 Aclaracion filed in this Court a petition for habeas corpus. He advanced the novel contention that to compel him to transcribe his stenographic notes, after he ceased to be a stenographer, would be a transgression of the rule that "no involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted" (Sec. 14, Art. IV, Bill of Rights, 1972 Constitution). He was averse to being subjected "to involuntary servitude sans compensation". He desired to be released from the obligation of transcribing his notes. (He filed his petition in forma pauperis). The petition was heard on August 20, 1974. It was already moot because, as already noted, the Third Division of the Court of Appeals had ordered his release on August 7th. Another hearing was held on September 3, 1974 in connection with the detention of Aclaracion at the instance of Justice Leuterio. At that hearing, this Court resolved to order Aclaracion's provisional release on condition that within twenty days thereafter he would complete the transcription of his notes in the Paderes case in his office at the Insurance Commission, Manila. So, he was provisionally released without prejudice to the final ruling on his contention that he could not be compelled to transcribe his notes in the other cases because he was no longer connected with the judiciary and because his stenotype machine notes were standard notes which could be transcribed by stenographers trained in stenotype machine shorthand. On September 4, 1974 Aclaracion was released from the Makati jail. Upon representations made by the Clerk of Court of this Court with the Insurance Commissioner, the latter interposed no objection to Aclaracion's transcription of his stenographic notes either in this Court or in his office in the Insurance Commission. On November 19, 1974 Aclaracion manifested that he had transcribed his notes in the Paderes case in his office at the Insurance Commission after he was provided by the Clerk of Court of this Court with the requisite supplies. We have given Aclaracion's petition the attention and study which it deserves. The habeas corpus aspect of his petition has become moot in view of his release from jail during the pendency of his case. After much reflection, we have come to the conclusion that his request that he be relieved from transcribing his notes in the other cases cannot be granted. We hold that an Appellate Court may compel a former court stenographer to transcribe his stenographic notes. That prerogative is ancillary or incidental to its appellate jurisdiction and is a part of its inherent powers which are necessary to the ordinary and efficient exercise of its jurisdiction and essential to the due administration of justice (See State vs. Superior Court of Maricopa County, 5 Pac. 2d 192, 39 Ariz. 242, Note 74, 21 C. J. S. 41; 20 Am. Jur. 2d 440; Fuller vs. State, 57 So. 806, 100 Miss. 811).

The provision of section 12, Rule 41 of the Rules of Court that "upon the approval of the record on appeal the clerk shall direct the stenographer or stenographers concerned to attach to the record of the case five (5) copies of the transcript of the oral evidence referred to in the record on appeal" includes stenographers who are no longer in the judiciary. (See sec. 7, Rule 122 and sec. 7, R. A. No. 3749). The traditional mode of exercising the court's coercive power is to hold the recalcitrant or negligent stenographer in contempt of court if he does not comply with the order for the transcription of his notes and imprison him until he obeys the order (Sec. 7, Rule 71, Rules of Court). Another sanction to compel the transcription is to hold in abeyance the transfer, promotion, resignation or clearance of a stenographer until he completes the transcription of his notes. This is provided for in Circular No. 63 of the Secretary of Justice. In the instant case, Aclaracion transcribed his notes in the Muncal and Paderes cases while he was an employee of the Insurance Commission. During the time that he made the transcription, he received his salary as such employee. We hold that he could be required to transcribe his notes in other cases, particularly in the case of Heirs of theLate Pacita Sicioco Cruz, etc. vs. La Mallorca Pambusco, et al, CA-G. R. No. 49687-R. The Court of Appeals, in its resolution of November 24, 1972, required him to transcribe his notes in that case. The same Court in its resolution of February 20, 1975 in Paterno vs. Tumibay, CA-G. R. No. 51330R imposed on Aclaracion a fine of one hundred fifty pesos for his failure to transcribe his notes in the said case and warned him that he would be arrested if he failed to submit his transcript within ten days from notice. The same arrangement should be made by the Clerk of Court of this Court with the Insurance Commissioner that Aclaracion should be allowed to receive his salary while making the transcription. Aclaracion's contention that to compel him to transcribe his stenographic notes would constitute involuntary servitude is not tenable. Involuntary servitude denotes a condition of enforced, compulsory service of one to another (Hodges vs. U.S., 203 U.S. 1; Rubi vs. Provincial Board of Mindoro, 39 Phil. 660, 708) or the condition of one who is compelled by force, coercion, or imprisonment, and against his will, to labor for another, whether he is paid or not (Black's Law Dictionary, 4th Ed., p. 961). That situation does not obtain in this case. Also untenable is Aclaracion's argument that the imprisonment of a stenographer who had defied the court's resolution for the transcription of the notes constitutes illegal detention. The incarceration of the contemning stenographer is lawful because it is the direct consequence of his disobedience of a court order. * However, in view of the fact that Aclaracion might have acted in good faith in not complying with the resolution of the Court of appeals in the Paterno case, due to the pendency of the instant habeas corpus case (a fact which is inferable from his letter to this Court dated March 11, 1975), the fine of one hundred fifty pesos imposed on him is hereby remitted. WHEREFORE, the petition for habeas corpus is dismissed. No Costs. SO ORDERED. Makalintal. C.J, Makasiar, Antonio, Esguerra, Muoz Palma, Concepcion, Jr. and Martin, JJ., concur.1wph1.t Castro, J., concurs in the result.

ZENON R. PEREZ, Petitioner,

G.R. No. 164763 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CORONA,* NACHURA, and REYES, JJ. Promulgated: February 12, 2008

On January 16, 1989, petitioner remitted to the Office of the Provincial Treasurer of Bohol the amounts of P10,000.00 and P15,000.00, respectively. On February 14, 1989, petitioner again remitted to the Provincial Treasurer an additional amount of P35,000.00, followed by remittances made on February 16, 1989 in the amounts of P2,000.00 andP2,784.00. An administrative case was filed against petitioner on February 13, 1989. He filed an Answer[11] dated February 22, 1989 reiterating his earlier verbal admission before the audit team. On April 17, 1989, petitioner again remitted the amount of P8,000.00 to the Provincial Treasurer of Bohol. Petitioner had then fully restituted his shortage in the amount ofP72,784.57. The full restitution of the missing money was confirmed and shown by the following receipts:[12] Official Receipt No. 8266659 8266660 8266662 8266667 8266668 Date Issued and Received January 16, 1989 January 16, 1989 February 14, 1989 February 16, 1989 February 16, 1989 Amount P10,000.00 P15,000.00 P35,000.00 P 2,000.00 P 2,784.00

- versus -

PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, Respondents.

x--------------------------------------------------x DECISION

REYES, R.T., J.: 8266675 PETITIONER Zenon R. Perez seeks a review[1] of his conviction by the Sandiganbayan[2] for malversation of public funds[3] under Article 217 of the Revised Penal Code. This is not a big case but its implications are wide-ranging and the issues We resolve include the rights to speedy trial and speedy disposition of a criminal case, the balancing test, due process, and cruel and unusual punishment. The Facts On December 28, 1988, an audit team headed by Auditor I Arlene R. Mandin, Provincial Auditors Office, Bohol,[4] conducted a cash examination on the account of petitioner, who was then the acting municipal treasurer of Tubigon, Bohol. Petitioner was absent on the first scheduled audit at his office on December 28, 1988. A radio message was sent to Loon, the town where he resided, to apprise him of the on-going audit. The following day, the audit team counted the cash contained in the safe of petitioner in his presence. In the course of the audit, the amount of P21,331.79 was found in the safe of petitioner. The audit team embodied their findings in the Report of Cash Examination, [5] which also contained an inventory of cash items. Based on the said audit, petitioner was supposed to have on hand the total amount of P94,116.36, instead of the P21,331.79, incurring a shortage of P72,784.57.[6] The report also contained the Cash Production Notice[7] dated January 4, 1989, where petitioner was informed and required to produce the amount of P72,784.57, and the cash count sheet signed and acknowledged by petitioner indicating the correctness of the amount of P21,331.79 found in his safe and counted in his presence. A separate demand letter[8] dated January 4, 1989 requiring the production of the missing funds was sent and received by petitioner on January 5, 1989. When asked by the auditing team as to the location of the missing funds, petitioner verbally explained that part of the money was used to pay for the loan of his late brother, another portion was spent for the food of his family, and the rest for his medicine. [9] As a result of the audit, Arlene R. Mandin prepared a memorandum [10] dated January 13, 1989 addressed to the Provincial Auditor of Bohol recommending the filing of the appropriate criminal case against petitioner. April 17, 1989 P 8,000.00 TOTAL - P72,784.57

Later, petitioner was charged before the Sandiganbayan with malversation of public funds, defined and penalized by Article 217 of the Revised Penal Code in an Information that read: That on or about the period covering from December 28, 1988 to January 5, 1989, and for sometime prior thereto, in the Municipality of Tubigon, Province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused Zenon R. Perez, a public officer being then Acting Municipal Treasury of the said Municipality, by reason of the duties of his official position was accountable for the public funds collected and received by him, with grave abuse of confidence did then and there willfully, unlawfully and feloniously misappropriate, misapply, embezzle and take away from the said funds the total amount of SEVENTY-TWO THOUSAND SEVEN HUNDRED EIGHTY-FOUR PESOS and 57/100 (P72,784.57), which said fund was appropriated and converted by the said accused to his own personal use and benefit to the damage and prejudice of the government in the aforementioned amount. CONTRARY TO LAW.[13] (Underscoring supplied) guilty.[14] On March 1, 1990, petitioner, duly assisted by counsel de parte, entered a plea of not

Pre-trial was initially set on June 4-5, 1990 but petitioners counsel moved for postponement. The Sandiganbayan, however, proceeded to hear the case on June 5, 1990, as previously scheduled, due to the presence of prosecution witness Arlene R. Mandin, who came all the way from Bohol. On said date, the Sandiganbayan dispensed with pre-trial and allowed the prosecution to present its witness. Arlene R. Mandin testified as narrated above. The defense presented evidence through petitioner Zenon R. Perez himself. He denied the contents of his first Answer[15] to the administrative case filed against him by the audit team. He claimed it was prepared without the assistance of counsel and that at the time of its preparation and submission, he was not in peak mental and physical condition, having been stricken with diabetes mellitus.[16]

He then revoked his Answer dated February 22, 1989 and filed his second Answer dated March 2, 1989.[17] In the latter, he vehemently denied that he incurred a cash shortage P72,784.57. According to petitioner, the alleged shortage was in the possession and custody of his accountable personnel at the time of the audit examination. Several amounts totallingP64,784.00 were remitted to him on separate dates by his accountable officer, starting January 16, 1989 to February 16, 1989. The same were turned over by him to the Office of the Provincial Treasurer, leaving an unremitted sum of P8,000.00 as of February 16, 1989.[18] He remitted the P8,000.00 on April 17, 1989 to the Provincial Treasurer of Bohol, fully restoring the cash shortage. Petitioner further testified that on July 30, 1989, he submitted his Position Paper[19] before the Office of the Ombudsman, Cebu City and maintained that the alleged cash shortage was only due to oversight. Petitioner argued that the government did not suffer any damage or prejudice since the alleged cash shortage was actually deposited with the Office of the Provincial Treasurer as evidenced by official receipts.[20] Petitioner completed his testimony on September 20, 1990. He rested his case on October 20, 1990.[21] Sandiganbayan Disposition On September 24, 2003, the Sandiganbayan rendered a judgment of conviction with a fallo reading: WHEREFORE, judgment is hereby rendered finding the accused ZENON R. PEREZ, GUILTY beyond reasonable doubt of the crime of Malversation of Public Funds as defined in and penalized by Article 217 of the Revised Penal Code and, there being one mitigating circumstance without any aggravating circumstance to offset the same, is hereby sentenced to suffer an indeterminate penalty of fromTEN (10) YEARS and ONE (1) DAY of prision mayor as the minimum to FOURTEEN (14) YEARS and EIGHT (8) MONTHS of reclusion temporal as the maximum and to suffer perpetual special disqualification. The accused Zenon R. Perez is likewise ordered to pay a FINE equal to the total amount of the funds malversed, which is Seventy-Two Thousand Seven Hundred Eighty-Four Pesos and Fifty-Seven Centavos (P72, 784.57). SO ORDERED.[22] (Emphasis in the original) On January 13, 2004, petitioner filed a motion for reconsideration[23] which the prosecution opposed on January 28, 2004.[24] Petitioner replied[25] to the opposition. OnAugust 6, 2004, petitioners motion was denied with finality. On September 23, 2004, petitioner resorted to the instant appeal issues, to wit: I.[26]

Before addressing petitioners twin assignment of errors, We first tackle the propriety of petitioners conviction for malversation of public funds. I. Petitioner was correctly convicted of malversation. Malversation is defined and penalized under Article 217 of the Revised Penal Code. The acts punished as malversation are: (1) appropriating public funds or property, (2) taking or misappropriating the same, (3) consenting, or through abandonment or negligence, permitting any other person to take such public funds or property, and (4) being otherwise guilty of the misappropriation or malversation of such funds or property.[28] There are four elements that must concur in order that one may be found guilty of the crime. They are: (a) That the offender be a public officer; (b) That he had the custody or control of funds or property by reason of the duties of his office; (c) That those funds or property involved were public funds or property for which he is accountable; and (d) That he has appropriated, took or misappropriated or consented or, through abandonment or negligence, permitted another person to take them. [29] Evidently, the first three elements are present in the case at bar. At the time of the commission of the crime charged, petitioner was a public officer, being then the acting municipal treasurer of Tubigon, Bohol. By reason of his public office, he was accountable for the public funds under his custody or control. The question then is whether or not petitioner has appropriated, took or misappropriated, or consented or through abandonment or negligence, permitted another person to take such funds. We rule in the affirmative. In malversation, all that is necessary to prove is that the defendant received in his possession public funds; that he could not account for them and did not have them in his possession; and that he could not give a reasonable excuse for its disappearance. An accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is shortage in his accounts which he has not been able to explain satisfactorily.[30] Verily, an accountable public officer may be found guilty of malversation even if there is no direct evidence of malversation because the law establishes a presumption that mere failure of an accountable officer to produce public funds which have come into his hands on demand by an officer duly authorized to examine his accounts is prima faciecase of conversion.[31] Because of the prima facie presumption in Article 217, the burden of evidence is shifted to the accused to adequately explain the location of the funds or property under his custody or control in order to rebut the presumption that he has appropriated or misappropriated for himself the missing funds. Failing to do so, the accused may be convicted under the said provision. However, the presumption is merely prima facie and a rebuttable one. The accountable officer may overcome the presumption by proof to the contrary. If he adduces evidence showing that, in fact, he has not put said funds or property to personal use, then that presumption is at end and the prima facie case is destroyed.[32] In the case at bar, petitioner was not able to present any credible evidence to rebut the presumption that he malversed the missing funds in his custody or control. What is extant in the

raising the following

THE HON. SANDIGANBAYAN BY UNDULY AND UNREASONABLY DELAYING THE DECISION OF THE CASE FOR OVER THIRTEEN (13) YEARS VIOLATED THE PETITIONERS RIGHT TO SPEEDY DISPOSITION OF HIS CASE AND DUE PROCESS. THE LAW RELIED UPON IN CONVICTING THE PETITIONER AND THE SENTENCE IMPOSED IS CRUEL AND THEREFORE VIOLATES SECTION 19 OF ARTICLE III (BILL OF RIGHTS) OF THE CONSTITUTION.[27] (Underscoring supplied) Our Ruling

II.

records is that the prosecution, through witness Arlene R. Mandin, was able to prove that petitioner malversed the funds under his custody and control. As testified by Mandin: Atty. Caballero: Q: Was Mr. Zenon Perez actually and physically present during the time of your cash examination? Witness: A. Yes, Sir. Q: A: Q: From December 28, to January 5, 1989? He was present on December 28, 1988 and January 4 and 5, 1989, Sir. Did he not make any verbal explanation as the reason why he was short of about P72,000.00, after you conducted the cash count on January 5, 1989? Yes, Sir, he did. What did he tell you? He told us that he used some of the money to pay for the loan of his brother and the other portion was spent for food of his family; and the rest for his medicine.[33] (Emphasis supplied)

True it is that petitioner filed another Answer on March 2, 1989 with the Office of the Provincial Treasurer of Bohol, substantially changing the contents of his earlier answer of February 22, 1989. His second Answer averred: 3. That the truth of the matter is that the alleged total cash shortage of P72,784.57 were still in the possession and custody of his accountable personnel at the time of the examination held by the auditor of the Commission on Audit;

4. That out of the alleged cash shortage of P72,784.57, almost all of said amount were already remitted to him by his accountable personnel after January 5, 1989, and only the remaining amount of P8,000.00 remains to be remitted to him by his accountable personnel.[35] The sudden turnaround of petitioner fails to convince Us. To Our mind, petitioner only changed his story to exonerate himself, after realizing that his first Answer put him in a hole, so to speak. It is contended that petitioners first Answer of February 22, 1989 should not have been given probative weight because it was executed without the assistance of counsel. [36] There is no law, jurisprudence or rule which mandates that an employee should be assisted by