[G.R. Nos. 135957-58. September 17, 2002]PEOPLE OF THE PHILIPPINES, appellee, vs. GUILLERMO SAMUS, appellant.D E C I S I O NPANGANIBAN, J.:While it is true that the confessions of appellant were made without benefit of counsel, they are still admissible in evidence because of appellant’s failure to make timely objections before the trial court. If only the defense had proffered them on time, the prosecution could have been warned of the need to present additional evidence to support its case. To disregard a major portion of the prosecution’s case at a late stage during an appeal goes against the norms of fundamental fairness. Indeed, justice is dispensed not only for the accused, but also for the prosecution. Be that as it may, and even if we now affirm appellant’s conviction for murder, we do not, however agree with the trial court’s imposition of the death sentence, because the proven aggravating circumstance of dwelling was not alleged in the Information.The CaseFor automatic review by this Court is the Decisioni[1] dated October 8, 1998, issued by the Regional Trial Court of Calamba, Laguna, Branch 36, in Criminal Case Nos. 5015-96-C and 5016-96-C. The trial court found Guillermo Samus guilty beyond reasonable of two counts of murder. The decretal portion of its Decision reads as follows:“WHEREFORE:“A. With respect to Criminal Case No. 5015-96-C for the killing of Dedicacion Balisi, the Court finds the accused guilty beyond reasonable doubt of the crime of Homicide and is hereby sentenced to suffer the penalty of, after appreciating the aggravating circumstance of dwelling and after applying the Indeterminate Sentence Law, imprisonment of 10 years and 1 day of Prision Mayor as minimum up to 20 years of Reclusion Temporal as maximum.“The accused is hereby ordered to indemnify the heirs of Dedicacion Balisi the amount of FIFTY THOUSAND PESOS (P50,000.00) for her death and another FIFTY THOUSAND PESOS (P50,000.00) as and for moral and actual damages and cost of suit.“B. With respect to Criminal Case No. 5016-96-C for the killing of John Ardee Balisi, this Court finds the accused guilty beyond reasonable doubt, of the crime of Murder and is hereby sentenced to suffer the penalty of, after appreciating the aggravating circumstance of dwelling, death.“The accused is likewise ordered to indemnify the heirs of John Ardee Balisi the amount of FIFTY THOUSAND PESOS (P50,000.00) for his death and another FIFTY THOUSAND PESOS (P50,000.00) as and for moral and actual damages and cost of suit.”ii[2]Two separate Informations,iii[3] both filed on November 27, 1996,iv[4] charged appellant as follows:

Criminal Case No. 5015-96-C“That on or about 2:30 o’clock in the afternoon of September 2, 1996 at San Ramon de Canlubang, Brgy. Canlubang, Municipality of Calamba, Province of Laguna, and within the jurisdiction of this Honorable Court, the accused above-named, with intent to kill, treachery, evident premeditation

and taking advantage of superior strength, did then and there wilfully, unlawfully and feloniously hold the neck, strangle and thereafter bange[d] the head on the concrete pavement floor of one DEDICACION BALISI Y SORIANO, a 61 years of age, woman, thereby inflicting upon her fractured bones, serious and mortal wounds which directly caused her death, to the damage and prejudice of the surviving heirs of the said Dedicacion Balisi y Soriano.“That in the commission of the crime the aggravating circumstances of treachery, evident premeditation and taking advantage of superior strength were in attendant and ordinary aggravating circumstance committing a crime with disregard of respect due the offended party by reason of her age and sex.

Criminal Case No. 5016-96-C“That on or about 4:30 o’clock in the afternoon of September 2, 1996 at San Ramon de Canlubang, Brgy. Canlubang, Municipality of Calamba, Province of Laguna and within the jurisdiction of this Honorable Court, the accused above-named, with intent to kill, treachery, evident premeditation and taking advantage of superior strength, did then and there wilfully, unlawfully and feloniously hold the neck, strangle and thereafter bang[ed] the head on the concrete pavement floor of one JOHN ARDEE BALISI Y SORIANO, a six year old boy, thereby inflicting upon him fractured bones, serious and mortal wounds which directly caused his death, to the damage and prejudice of the surviving heirs of the said John Ardee Balisi y Soriano.“That in the commission of the crime the aggravating circumstances of treachery, evident premeditation and taking advantage of superior strength were in attendan[ce].”When arraigned on May 28, 1997, appellant, assisted by his counsel de oficio,v[5] pleaded not guilty.vi[6] In due course, he was tried and found guilty.The FactsVersion of the ProsecutionThe Office of the Solicitor General (OSG) summarized the evidence for the prosecution in this wise:vii[7]“Appellant was a farmer, tilling and living in the land of Miguel Completo at Barangay Niugan, Cabuyao, Laguna. The victims, sixty two (62) year old Dedicacion Balisi and her grandson, six (6) year old John Ardee Balisi, were the neighbors of appellant’s father at San Ramon de Canlubang, Brgy. Canlubang, Calamba, Laguna.“At 4:20 P.M. on September 2, 1996, Senior Police (SP) Inspector Rizaldy H. Garcia was at his office at the 4th PNP Criminal Investigation Group Regional Office at Camp Vicente Lim in Calamba, Laguna when he received an order from his superior to investigate the murder of the two victims. Their office had received a telephone call from a local barangay official informing them of the victims’ deaths.“Arriving at the victims’ residence at Block 8, Lot 6 at San Ramon, Brgy. Canlubang, Calamba, Garcia and his team conducted an investigation, making a sketch of the relative positions of the victims, lifting fingerprints from the crime scene and taking pictures. Thereafter, an investigation report was prepared by Garcia and signed by his superior, Colonel Pedro Tango. The investigators likewise found a pair of maong pants, a white T-shirt, a handkerchief and dirty

slippers in the bathroom and roof of the house. A pair of earrings worn by Dedicacion Balisi was likewise reported missing from her body by her daughter, Nora B. Llore[r]a.“The victims’ bodies were brought to the Funeraria Señerez de Mesa in Calamba where Senior Inspector Joselito A. Rodrigo, a medico-legal officer of the PNP Crime Laboratory, performed an autopsy. His findings showed that John sustained three (3) contusions, one of which lacerated his liver, caused by a blunt instrument, while Dedicacion suffered four (4) contusions, also caused by a blunt instrument.“On that same day, September 2, 1996, Ponciano Pontanos, Jr., then a resident of Barangay Niugan, Cabuyao and an acquaintance of appellant, happened to meet appellant at Sammy Pacheca’s house in the same barangay where appellant asked Ponciano to accompany him to Ponciano’s wife to pawn a pair of earrings. Ponciano’s wife was mad at first but upon Ponciano’s prodding, gave appellant P300.00 with no interest. The earrings were placed in a jewelry box; thereafter, appellant received another P250.00.“At 6:00 P.M. on September 10, 1996, Major Jose Pante of the Criminal Investigation Group received information that appellant was the principal suspect in the killing of the two (2) victims and that he was sighted inside the residence of spouses Rolly and Josie Vallejo at Barangay Macabling, Sta. Rosa, Laguna. He then formed and led a team composed of SPO3 Galivo, Intelligence Commission Officer Casis and SPO3 Mario Bitos. Arriving at the site at past 7:00 P.M., the team, accompanied by local barangay authorities, asked permission from the Vallejo spouses to enter the house, which was granted. Shortly thereafter, they heard loud footsteps on the roof. Rushing outside, they saw appellant crawling on the roof. They ordered him to stop, but he suddenly jumped from the roof and landed hard on the ground, sustaining an injury on his ankle and bruises on his left and right forearm. At that point, the police team closed in on appellant who, while trembling and shaking, admitted the killings upon a query from Rolly Vallejo.“Appellant was brought to the Camp Vicente Lim PNP Investigation Office where he was informed of his constitutional rights by SPO3 Alex Malabanan. In the morning of September 11, 1996, appellant, assisted by Atty. Arturo Juliano, gave his statement admitting the killings. SPO3 Malabanan also took the statements of tricycle driver Rafael Baliso, the victims’ relatives Salvacion and Mona Balisi and witness Mary Arguelles, who saw appellant enter the house of Dedicacion Balisi.“On the same day, September 11, 1996, PNP Fingerprint Examiner Reigel Allan Sorra took fingerprint samples from appellant. His prints exactly matched with a set of prints found at the crime scene on September 2, 1998. Later that day, SPO3 Mario Bitos was able to recover the pawned earrings from Ponciano who turned them over to SPO3 Malabanan. (Citations omitted)Version of the DefenseAlleging denial and alibi as defenses, appellant presents his version of the incident as follows:viii[8]“Mrs. Fe Vallejo testified that she knew Guillermo Samus. At about 6:00 p.m. of September 10, 1996, Guillermo Samus was in their house. It was then that CIS operatives together with

their Brgy. Captain entered their house, arrested and handcuffed Guillermo Samus. It was not true that accused Guillermo Samus hid himself on the roof of her house. When the accused was arrested by the CIS men, together with the barangay officials, the other persons present were the witness and her 3 children. The police were not armed with a warrant of arrest or search warrant.“Accused Guillermo Samus denied the accusations against him. He testified that he was a farmer, working on the land of one Miguel Completo at Brgy. Niugan, Cabuyao. From 6:00 a.m. to 5:00 p.m. of September 2, 1996, he was harvesting palay with Eligio Completo; that he never left the farm. He took his lunch at the hut of Miguel Completo; that he arrived home at 6:00 in the afternoon, took his dinner then went to sleep.“He further testified that on September 10, 1996, he was at the house of his friend, Rolly Vallejo at Brgy. Macabling, Sta. Rosa, Laguna, when a group of CIS operatives arrived and arrested him inside the same house. It was not true that he jumped from the roof of the house. The CIS people did not have any warrant for his arrest. His kumpadre Rolly Vallejo was not present at that time. He was brought to Camp Vicente Lim where he was tortured until he lost his consciousness. On the same night, he was brought to a hospital, was given medicine, then brought back to the cell where he was handcuffed at the door of the cell. The CIS got hold of the medical certificate. He was forced by the CIS to admit the killing of the victims and the sale of jewelry by means of torture and threat.“He also testified that he was forced to execute a document admitting the killing. He was forced to sign said document. He did not know Atty. Juliano and did not talk to him. The victims were the neighbors of his father in the province. He had been in the house of Dedicacion Balisi. He was known to Dedicacion Balisi and her household; and, that the last time he visited the house of Dedicacion Balisi was on August 30, 1996. He was given food by Dedicacion and he later washed dishes, swept the floor, and put dirt in the trash can. He left at 12:00 p.m. that same date and returned to his house in Brgy. Niugan.“On cross-examination, he testified that from Brgy. Niugan to San Ramon de Canlubang it took less than 15 minutes to travel, and he also mentioned that the media interviewed him 2 days after his arrest. He and his relatives in Laguna did not have the capacity to hire/secure the services of a lawyer.“The defense also presented Exhibit ‘B’ (and submarkings), the transcript of stenographic notes of the testimony of Atty. Juliano, given before the Municipal Trial Court of Calamba, Laguna on December 1, 1997 in connection with [C]riminal [C]ase [N]o. 26099, also against Guillermo Samus for theft (of the earrings). The prosecution admitted the existence of said exhibit and the presentation of the witness who was supposed the identify the same was dispensed with.” (Citations omitted)Ruling of the Trial CourtThe trial court found enough pieces of circumstantial evidence to prove the guilt of appellant beyond reasonable doubt. Rejecting his alibi for being unreliable and uncorroborated, it convicted him of homicide for the death of

Dedicacion Balisi; and of murder, with dwelling as aggravating circumstance, for the death of John Ardee Balisi.Hence, this automatic review.ix[9]Assignment of ErrorsIn his Brief, appellant faults the court a quo with the following alleged errors:x[10]“I“The lower court gravely erred in giving credence to the testimonies of police officers to the effect that the accused tried to escape when he was arrested and that he readily admitted responsibility for the crimes.“II“The lower court gravely erred in admitting and considering evidence that were obtained in violation of the accused’s constitutional rights.“III“The lower court gravely erred in holding that there was sufficient circumstantial evidence to warrant the conviction of the accused.“IV“The lower court gravely erred when it ruled that the qualifying circumstance of abuse of superior strength attended the killing of John Ardee Balisi.”The Court’s RulingThe appeal is partly meritorious.First Issue:Arrest of AppellantAs a general rule, the evaluation by the trial court of the testimony of the witnesses is accorded great respect, if not finality. In the present case, however, there are cogent reasons to disregard its findings with respect to the arrest of appellant on September 10, 1996.The police officers’ version of the arrest is incredible. Not only are their allegations uncertain and inconsistent, they are also contrary to human experience. We find it hard to believe that anyone would jump from the roof of a two-story house to escape and, after landing on the ground without any broken bones, make a complete turnaround and just meekly surrender without further ado. Even if this story were true, jumping from a roof is not a crime that would justify the warrantless arrest of appellant.It is undisputed that when the CIS team went to the Vallejo residence on the evening of September 10, 1996, it had no warrant of arrest against appellant. Yet, they arrested him. Under the Rules,xi[11] peace officers may, without a warrant, arrest a person under any of these circumstances: (a) when, in their presence, the person to be arrested has committed, is actually committing, or is attempting to commit, an offense; (b) when an offense has just been committed, and they have probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed it; and (c) when the person to be arrested is a prisoner who has escaped while being transferred from one confinement to another, or from a penal establishment where he or she is serving final judgment or is temporarily confined while the case is pending.None of these circumstances was present when members of the Criminal Investigation Group (CIG) arrested appellant. He was not a prisoner. The killing of Dedicacion and John Ardee

Balisi was not done in the presence of the arresting officers. Since it took place on September 2, 1996, it could not have been considered as “having just been committed.” Evidently, they unlawfully arrested appellant on September 10, 1996. When they did so, we cannot ascribe to them the presumption of regularity in the performance of official functions, contrary to the court a quo’s finding.Considering that the arrest of appellant was unlawful, the apprehending officers’ uncertainty and reluctance in admitting it becomes understandable. In their Joint Affidavit executed on September 11, 1996, they alleged that he had voluntarily surrendered to them. On the other hand, he had allegedly been merely invited by Chief Inspector Jose Pante, according to SPO3 Alex Malabanan. It was only upon being pressed that the police officers admitted that they had indeed made the arrest.xii[12]We now proceed to the alleged confession. In their Joint-Affidavit, the arresting officers said that after appellant had initially jumped from a two-story house to escape, they closed in on him and he voluntarily surrendered. At the same place where he did so, they conducted a preliminary interview, during which he readily admitted killing Dedicacion and John Ardee Balisi.But during their testimonies, the police officers denied questioning appellant after arresting him. Instead, they claimed that it was Rolly Vallejo who had conducted the preliminary interview in their presence as follows: “Pare totoo ba ang sinasabi nila tungkol sa iyo na ikaw ay pinaghihinalaan nilang pumatay sa mag-lola sa Canlubang[?]”; to this question appellant allegedly answered, “[T]otoo nga pare, ako nga.” No further questions were allegedly asked by the law enforcement officers. Instead, they immediately brought appellant to Camp Vicente Lim for further investigation.SPO3 Mario Bitos, on the other hand, stated in his Affidavit, also dated September 11, 1996, that during the conduct of the preliminary interview, appellant admitted “that the victim’s pair of earrings made of gold was taken by him after the incident and x x x sold to Mr. Jhun Pontanos y Matriano, a resident of Bgy. Niugan, Cabuyao, Laguna, for the amount of five hundred (P500) pesos.”During his testimony, however, Bitos denied that they had conducted any investigation.xiii[13] Instead, he claimed that upon their arrival at Camp San Vicente Lim, an interview was conducted by the media in the presence of Major Pante, SPO3 Bitos and SPO3 Malabanan (the investigator).xiv[14] From this interview, the team was able to cull from appellant that he was responsible for the killings, and that he had stolen the earrings of Dedicacion Balisi and sold them to Pontanos for P500. This information was allegedly verified by Bitos upon the order of Major Pante.Thus, the apprehending officers contend that the constitutional rights of appellant were not violated, since they were not the ones who had investigated and elicited evidentiary matters from him.We are not persuaded. The events narrated by the law enforcers in court are too good to be true. Their Sworn Statements given a day after the arrest contradict their testimonies and raise doubts on their credibility.

We find the claims of appellant more believable, supported as they are by Fe Vallejo who testified that he had been arrested inside her house, and that Rolly Vallejo was not around then.“Evidence to be believed, must not only proceed from the mouth of a credible witness, but must be credible in itself -- such as [that which] the common experience of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our knowledge, observation, and experience. Whatever is repugnant to these belongs to the miraculous and is outside of judicial cognizance.”xv[15]Second Issue:Fruit of the Poisonous TreeAppellant claims that his alleged confession to the media while in police custody cannot be admitted in evidence. He further contends that the pair of earrings, the turnover receipt, as well as the testimonies of Pontaños and Bitos, relative thereto should be excluded for being “fruits of the poisonous tree.”We clarify. After being illegally arrested, appellant was not informed of his constitutional rights to remain silent and to have competent and independent counsel. Hence, any admission elicited from him by the law enforcers during custodial investigation are normally inadmissible in evidence.In their affidavits, the police officers readily admitted that appellant was subjected to a preliminary interview. Yet, during their examination in open court, they tried to skirt this issue by stating that it was only the media that had questioned appellant, and that they were merely present during the interview. However, an examination of the testimonies of the three law enforcers show the folly of their crude attempts to camouflage inadmissible evidence. SPO4 Arturo Casis testified as follows:“FISCAL:Q: And after that what did you do with the accused Guillermo Samus?WITNESS:A: He went with us voluntarily in Camp. Q: Camp what?A: Camp Vicente Lim, Canlubang, Laguna.Q: After arriving at Camp Vicente Lim what happened there?A: We turned over him to our investigator CIS.Q: To whom in particular?A: SPO3 Alex Malabanan, sir.Q: What was the purpose for your turning over the accused to Alex Malabanan?A: To ask him question and to investigate him.Q: Before that when you arrived at the camp, did you see many people at the camp?A: I noticed some reporters were there.Q: Where were the reporters at that time?A: In our office.Q: Do you know the reason why these reporters were there at that time?A They used to hang out at our office because they have a press office holding in our office.

Q: Did you notice these press people when you brought Guillermo Samus to the camp?A: Yes, sir.Q: What did they do when you arrived?A: They keep on asking who is this fellow we have arrested.Q: Did anyone answer them?A: It’s up for the investigator and Maj. Pante.”xvi[16]x x x x x x x x x“Q: And the apprehending team did not ask question regarding the alleged involvement of Guillermo Samus to the kiling?A: At the office, sir.”xvii[17]On the other hand, SPO3 Bitos declared:“Q And you said that in your earlier testimony that Guillermo Samus was immediately brought to Camp Vicente Lim which is your headquarters after his arrest on September 10, 1996, is that correct?A Yes, sir.Q And you said that the purpose of bringing Guillermo Samus to your headquarters on that day after his arrest was for further investigation, is that correct?A Yes, sir.Q The member of the CID once Guillermo Samus was there in your custody at Camp Vicente Lim he was immediately investigated right then and there in the headquarters, is that correct?A He was interviewed by the media people upon the arrival of said suspect. We were not able to conduct the investigation because of the media people who was also asking question from him, sir.Q Who authorized the media people to propound questions to Guillermo Samus when he was at your headquarters in the night of September 10, 1996?A I think nobody has given the authority to conduct a preliminary investigation with Guillermo Samus that is why we were bother our investigation because these media people were conducting immediate interview with that suspect, sir.”xviii[18]x x x x x x x x xFor his part, SPO3 Malabanan gave the following testimony during his cross-examination:“Q By the way, what time did Guillermo Samus finish giving the statement to the media people on the night of September 10, 1996?A I cannot recall the exact time as to when he finished but I think it is past 8:00 o’clock, sir.Q If you know the reason, can you tell us why Guillermo Samus had to be presented to the media first before you as an investigator assigned to the case actually take his statement?May I request, your Honor that the statement of the witness transpired in the vernacular be quoted (‘sila na po and nag-interview’).A Because when we arrived at that time the press people were already there and we can no longer prevent from asking or conducting an investigation or interview because the case is already on public knowledge.ATTY. MANALO:

Q So, after 8:00 p.m. when Guillermo Samus had already finished giving his statement to the media, do you know where Guillermo Samus was brought?WITNESS:A Yes, sir.Q Can you tell us where?A Yes, sir. After that Guillermo Samus was brought to our office and Maj. Pante talked to him, sir.Q And do you know where Guillermo Samus spent the night?A Yes, sir.Q Can you tell us where?A In our stockade, sir.”xix[19]The above testimonies do not tie up. Casis categorically stated that appellant had been turned over to SPO3 Malabanan. Appellant noticed reporters in their office, but he did not answer their questions. SPO3 Bitos alleged that the interview by the media could not have been prevented, because it was an “ambush” interview. Meanwhile, SPO3 Malabanan claimed that when he arrived at the camp, there were already reporters questioning appellant. Malabanan further narrated that after 8:00 p.m., appellant was brought to the office where Major Pante talked to him.In the absence of testimony from any of the media persons who allegedly interviewed appellant, the uncertainties and vagueness about how they questioned and led him to his confession lead us to believe that they themselves investigated appellant and elicited from him uncounselled admissions. This fact is clearly shown by the Affidavits they executed on September 11, 1997, as well as by their testimonies on cross-examination. Nonetheless, even if the uncounselled admission per se may be inadmissible, under the present circumstances we cannot rule it out because of appellant’s failure to make timely objections. “Indeed, the admission is inadmissible in evidence under Article III, Section 12(1) and (3) of the Constitution, because it was given under custodial investigation and was made without the assistance of counsel. However, the defense failed to object to its presentation during the trial, with the result that the defense is deemed to have waived objection to its admissibility.”xx[20]Can the testimony of Pontaños and the picture of a pair of earrings together with the turnover receipt, which appellant identified during his testimony, be considered inadmissible as the fruit of the poisonous tree and hence be disregarded at this stage of appeal?Upon examination of the records, we find that during the entire examination in court of Prosecution Witness Pontaños, appellant did not question or object to the admissibility of the former’s testimony. Worse, the latter’s counsel even freely cross-examined the witness without any reservations. Having made no objection before the trial court, appellant cannot raise this question for the first time on appeal.xxi[21] The evidence having been admitted without objection, we are not inclined to reject it. If only appellant had made a timely objection to the admissibility of the said testimony, the prosecution could have been warned of the need to present additional evidence to support its case. To disregard unceremoniously a major

portion of its case at this late stage when it can no longer present additional evidence as substitute for that which is now claimed to be inadmissible goes against fundamental fairness.Third Issue:Circumstantial EvidenceNo one saw who killed Dedicacion and John Ardee Balisi. However, to prove appellant’s culpability for their deaths, the prosecution presented the following circumstantial evidence: 1. Finger and palm prints matching appellant’s own were found near bloodstains at the scene of the crime.2. Dedicacion Balisi owned a pair of earrings that she wore every day. Those earrings were missing from her dead body. Appellant pawned those same earrings to Ponciano Pontaños’ wife on the afternoon of September 2, 1996.3. Appellant admitted killing Dedicacion and John Ardee Balisi, whose dead bodies were found inside their residence on the afternoon of September 2, 1996.Circumstantial evidence would be sufficient for conviction, if (a) there is more than one circumstance, (b) the facts from which the inferences have been derived are proven, and (c) the combination of all the circumstances is such that it produces a conviction beyond reasonable doubt. These circumstances must be consistent with one other, and the only rational hypothesis that can be drawn therefrom must be that the accused is guilty. They must create a solid chain of events, coherent and intrinsically believable, that pinpoints the accused -- to the exclusion of others -- as the perpetrator of the crime and thereby sufficiently overcomes the presumption of innocence in his or her favor.xxii[22]In the present case, it is indisputable that someone entered the house of Dedicacion and John Ardee Balisi, and that someone killed them and left the house with Dedicacion’s earrings.The left palm and right thumb prints of appellant near the bloodstains found on the kitchen tiles, together with other blood-smudged fingerprints, lead to no other reasonable conclusion except that he was in the house in the afternoon when the victim died. Considering that the former had bloodstained hands, it can reasonably be deduced that his hands were responsible for producing the flow of blood (shown in the pictures marked as Exhibits “E” to “7”) from the heads of Dedicacion and John Ardee Balisi.The act of appellant -- pawning the earrings of Dedicacion Balisi on the same afternoon of her death -- is consistent with, and further supports the conclusion that he was at the crime scene around the time of her killing. The absence of any indication of the presence of any person other than appellant at the locus criminis around the time of the victims’ deaths further bolsters the hypothesis that he, to the exclusion of all others, was the one who killed them.The pieces of circumstantial evidence presented by the prosecution are consistent with one other, and the only rational hypothesis that can be drawn therefrom is that appellant is guilty of killing Dedicacion and John Ardee Balisi.The prosecution evidence, taken together with the extrajudicial admissions of appellant, passes the test of moral certainty and establishes beyond reasonable doubt that he was the person who killed the victims.

AlibiAppellant’s uncorroborated alibi -- that he was at the farm in Cabuyao, Laguna -- was correctly debunked by the court a quo. We have nothing to add to the trial court’s short and straightforward discussion of the matter, which we reproduce hereunder:“For alibi to prosper, the accused must establish not only that he was somewhere else when the crime was committed but that it was also physically impossible for him to have been at the scene of the crime at the time of its commission (People v. Torrifiel, 326, Phil. 388). By the accused’s own admission, the distance between his alleged whereabouts at the time of the commission of the offense and the scene of the crime was a fifteen minute drive. To the mind of this court, the accused’s presence at the scene of the crime is not impossible.”xxiii[23]Fourth Issue:Crime and PunishmentThe testimony of Salvacion Balisi, as well as the Birth Certificate of John Ardee Balisi (Exhibit II),xxiv[24] prove that John was only six (6) years old at the time of his death. As correctly ruled by the court a quo, “the killing of [the] child [was] characterized by treachery because the weakness of the victim due to his tender age resulted in the absence of any danger to the accused.”xxv[25] Indeed “[i]t has time and time again been held that the killing of minor children who, by reason of their tender years, could not be expected to put up a defense is considered attended with treachery even if the manner of attack was not shown.”xxvi[26] Indubitably, treachery qualified the killing of six-year-old John Ardee Balisi as murder.As for the death of Dedicacion Balisi, however, none of the qualifying circumstances alleged in the Information was proven by the prosecution. Hence, appellant can be convicted of homicide only.In either of the two cases, the aggravating circumstance of dwelling cannot be appreciated against appellant, simply because it was not alleged in the Information.xxvii[27]There being no aggravating circumstances, the imposable penalty for the homicidexxviii[28] of Dedicacion Balisi is reclusion temporal in its medium period. In this case, appellant is entitled to the benefits of the Indeterminate Sentence Law. For the same reason, reclusion perpetua -- not death -- is the correct penalty that should be imposed on appellant for the murderxxix[29] of John Ardee Balisi.WHEREFORE, the Decision of the Regional Trial Court of Calamba, Laguna (Branch 36) is hereby AFFIRMED with the following MODIFICATIONS : in Criminal Case No. 5015-96-C, the maximum of the penalty is reduced to 17 years and four months of reclusion temporal medium; in Criminal Case No. 5016-96-C, the penalty is reduced to reclusion perpetua. Costs de oficio.SO ORDERED.

G.R. No. L-69844 February 23, 1988PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ROMEO POLICARPIO y MIRANDA, accused-appellant.

GANCAYCO, J.:Convicted of violation of Section 4 Art. II of Republic Act No. 6425 as amended in a decision of the Regional Trial Court of Rizal, the dispositive part of which reading as follows:

WHEREFORE, finding the accused guilty beyond a reasonable doubt for Violation of Section 4. Article II of Republic Act 6425 as amended, the court hereby sentenced the accused to suffer a penalty of CADENA PERPETUA and to pay a fine of P30,000.00 without subsidiary imprisonment in case of insolvency with costs against the accused.

The accused shall be entitled to the full term of his preventive imprisonment pursuant to Article 29 of the Revised Penal Code as amended by Republic Act 6127, provided he abides by the rules imposed upon convicted prisoners, otherwise, he shall only be entitled to 4/5. accused Romeo Policarpio y Miranda now interposed, this appeal to this Court alleging that the trial court committed the following assigned errors:

ITHE LOWER COURT SERIOUSLY ERRED IN NOT FINDING THAT CONSTITUTIONAL RIGHTS OF THE ACCUSED-APPELLANT WERE VIOLATED BY THE APPREHENDING NARCOTICS AGENTS.

IITHE LOWER COURT ERRED IN FINDING THAT ACCUSED-APPELLANT WAS APPREHENDED IN THE ACT OF SELLING MARIJUANA, OR IMMEDIATELY THEREAFTER, AND IN FAILING TO FIND THAT HE WAS CHASED AND CAUGHT IN A RICEFIELD BETWEEN SITIOS BAGONG BAYAN AND SAN JUAN AT DARANGAN, BINANGONAN, RIZAL.

IIITHE LOWER COURT ERRED IN FAILING TO GIVE CREDENCE TO THE TESTIMONY OF ACCUSED-APPELLANT AND HIS WITNESS ISIDRO PARALEJAS.

IVTHE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF VIOLATING THE PROVISIONS OF SECTION 4, ARTICLE II OF REPUBLIC ACT 6425 AS AMENDED. The facts of the case as found by the court a quo are as follows:

On June 16,1984 at 2:00 o'clock in the afternoon, operatives of the Narcotics Command, Camp Crame headed by P/Capt. Gabriel Paile swooped down at Bagong Bayan, Kalawaan, Darangan, Binangonan, Rizal, after receiving an information that the accused alias Dupong is engaged in the sale and distribution of marijuana and other prohibited drugs and tagged as the main source at the area. The team was organized earlier by Lt. Col. Manuel T. Raval, Commanding officer, 13th NRU Narcotics Command and was dispatched to the target area to entrap the accused Romeo Policarpio, accordingly, Pat. Mangila will pose as a buyer and was handed the marked P20.00 bill (Exhibit "I" to "I-3") with which to buy the stuff before they proceeded to the area of operation. At about 2:00 p.m. same date, the operatives arrived at Bagong Bayan, Kalawaan, Darangan, Binangonan, Rizal. Leaving their vehicle at a distance, they posted themselves at strategic places. The poseur buyer Pat. Enrico Mangila, together with the informant, looked for the accused and at about 5:00 o'clock in the afternoon of same date Pat.

Mangila and the informant were able to locate the accused in front of his house. Thereafter, Pat. Mangila was introduced by the informant to the accused as the person who needs some marijuana leaves, and after they had talked with the accused for a while, the accused gave Pat. Mangila two small plastic bags containing dried marijuana leaves and rolling paper (Exhibit "B" to "B-4"). In turn Pat. Mangila gave to the accused the marked P20.00 bill (Exhibit "I" to "I-3"). As previously arranged, Pat. Mangila scratched his head and his companions, Pfc. Basco and Mendiola grabbed and arrested the accused. From the accused was confiscated the marked P20.00 bill on his front pocket. After the arrest of the accused, the latter led his captors to his house and the operatives seized another six (6) small plastic bags of dried marijuana leaves together with rolling papers contained in a bigger plastic bag marked Tie Tae Toe (Exhibit "C" to "C-6") placed on a top of the refrigerator at the kitchen of their house. Arrested with the accused is a certain person Rogelio Policarpio, who turned out to be his cousin and who was earlier convicted by this Court for Possession of Dried Marijuana Leaves in Criminal Case No. 273-B of this Court. The accused and the confiscated prohibited drugs were brought to Camp Crame and the Marijuana leaves were turned over to the PCCL for examination (Exhibit "D"). The PCCL conducted examination over the evidence thus (sic) over, and rendered its Chemistry Report with the finding that the evidence thus examined gave a positive result for the test for marijuana (Exhibit "A" to "A-3"). At the PC Headquarters, the accused Romeo Policarpio signed a bond paper acknowledging that the six (6) small plastic bags of marijuana leaves were confiscated from him (Exhibit "G" to "G-2"). He likewise signed a document acknowledging the fact that the marked P20.00 bill was confiscated from him (Exhibit "F" to "F-1"). Similarly, accused signed a sworn statement where he opted not to give statement until he is represented by a counsel (Exhibit "J" to "J-2"). Under the first assigned error appellant claims that Exhibit G which is a receipt signed by appellant acknowledging that six (6) small plastic bags of marijuana leaves were confiscated from him and Exhibit F a receipt signed by appellant acknowledging that the P20.00 bill involved in the purchase of the marijuana leaves was confiscated from him are not admissible in evidence as they were taken in violation of his constitutional right. What the records show is that appellant was informed of his constitutional right to be silent and that he may refuse to give a statement which maybe used against him, that is why he refused to give such a written statement unless it is made in the presence of his lawyer as shown by the paper he signed to this effect. 1 However, he was made to acknowledge that the six (6) small plastic bags of dried marijuana leaves were confiscated from him by signing a receipt 2 and to sign a receipt for the P 20.00 bill as purchase price of the dried marijuana leaves he sold to Pat. Mangila. 3 Obviously the appellant was the victim of a clever ruse to make him sign these alleged receipts which in effect are extra-judicial confessions of the commission of the offense. Indeed it is unusual for appellant to be made to sign receipts for what were taken from him. It is the police officers who

confiscated the same who should have signed such receipts. No doubt this is a violation of the constitutional right of appellant to remain silent whereby he was made to admit the commission of the offense without informing him of his right. 4 Such a confession obtained in violation of the Constitution is inadmissible in evidence. The second, third, and fourth assigned errors are factual in nature wherein the appellant raises the question of credibility of the witnesses and reiterates his defense denying that he had been apprehended in the act of selling marijuana and receiving P 20.00 as payment thereof He alleges that he was then at a mahjong session and that he was pursued by the police when they came. The too-well known rule in this jurisdiction is that the findings of facts of the trial court are conclusive in this proceeding and will not be disturbed unless some facts or circumstances may have been overlooked that may otherwise affect the result of the case. The Court finds no reason to depart from this rule in the present case. While the Court now holds that the receipts for the six (6) plastic bags of marijuana and the P20.00 bill which appellant was made to sign 5 are not admissible in evidence against him, nevertheless there is ample evidence in the record other than these receipts to establish the commission of the offense by the appellant. Prosecution witnesses Pat. Enrico Mangila and Pfc. Jose Basco were present and categorically attested to the fact that the appellant sold two (2) tea bags of dried marijuana leaves to Mangila and received as consideration thereof P 20.00. 6 While the appellant attempts to discredit the testimony of said police officers, he has not shown any improper motive why they should testify in the manner that they did. Thus their testimonies are entitled to full faith and credence. 7 As a matter of fact courts give much credence to entrapping police officers, as in this case, as they are presumed to be in the regular performance of official duties. 8

Drug addiction is one of the most pernicious evils that has ever crept into our society. More often than not it is the young who constitute the greater majority of the citizenry who are the victims. It is of common knowledge that drug addicts become useless if not dangerous members of society and in some instances turn up to be among the living dead. This is the reason why the courts and law enforcement agencies should continue in their relentless campaign not merely to minimize but to totally eradicate the evil before it is too late. And everyone must be involved in this drive if we are to succeed. The peddlers of drugs are actually agents of destruction. They deserve no less than the maximum penalty. WHEREFORE, the decision appealed from is AFFIRMED in toto with costs against accused-appellant. SO ORDERED.

G.R. No. L-101003 March 24, 1994PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.JONATHAN BARLIS Y MERCADO, FERDINAND DOE and EDUARDO DOE, accused. JONATHAN BARLIS Y MERCADO, accused-appellant.The Solicitor General for plaintiff-appellee.

Alfredo U. Malabaguio for accused-appellant. DAVIDE, JR., J.:On 30 January 1990, Jonathan Barlis, accompanied by his uncle, Pfc. Patrocinio Mercado of the Northern Police District, surrendered to Pfc. Mariano Rivera at the Kamias police station, Quezon City. Jonathan admitted that he was with the group which was responsible for the killing on 20 January 1990 of Honorina Ballerda inside her house at No. 30, Masaya Street, Gulod, Novaliches, Quezon City, and that on the same occasion, one of his companions, "Buboy" (Eduardo Nining), took three men's watches while his other companion, Ferdie (Ferdinand Lopez) took some money which they later divided among themselves. Thereafter, assisted by Atty. Confesor B. Sansano, Chairman of the Legal Assistance Office of the IBP-Quezon City Chapter, Jonathan signed a sworn statement wherein he narrated in detail how the crime was committed and the extent of his participation therein. On 6 February 1990, an information 1 for robbery with homicide, docketed as Criminal Case No. Q-40-10283, was filed with the Regional Trial Court of Quezon City against Jonathan Barlis and his companions. Its accusatory portion reads as follows:

That on or about the 20th day of January, 1990, in Quezon City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, confederating with and mutually helping one another, with intent to gain and by means of violence and intimidation against person, did then and there wilfully, unlawfully and feloniously rob HONORINA BALLERDA Y CASADA, in the following manner, to wit: on the date and in the place aforementioned, the said accused pursuant to their conspiracy went to the house of said complainant-victim and once inside the house, rob, took and carted away victim's personal properties, to wit:

One (1) ladies gold necklace worth P1,500.00One (1) ladies Seiko wrist watch worth P2,000.00One (1) diamond stone worth P800.00Cash money in the amount of P3,000.00Assorted pieces of jewelry of undetermined value

in the total amount of P7,300.00 and assorted pieces of jewelry of undetermined amount, belonging to HONORINA BALLERDA Y CASADA, and on the occasion of said Robbery, the said accused pursuant to their conspiracy, with intent to kill and without any justifiable cause, attacked, assaulted and employed personal violence upon the person of HONORINA BALLERDA Y CASADA by stabbing her on the neck and upper chest, thereby inflicting upon her serious and mortal wounds which were the direct and immediate cause of her untimely death, to the damage and prejudice of the heirs of the said victim in the amount aforementioned and in such amount as

may be awarded to them under the provisions of the New Civil Code.

The case was assigned to Branch 88 of the said court. Trial proceeded against Jonathan Barlis only because

the two other accused remained at large.The witnesses presented by the prosecution to establish its case were Adela Argate, who was the house helper and companion of the deceased victim, Pfc. Mariano Rivera, Atty. Confesor Sansano, Dr. Dario Gajardo, and Wilma Ballerda, the victim's daughter.Adela Argate testified that at about 9:20 a.m. of 20 January 1990, Jonathan Barlis and his two other companions entered the house of Honorina Ballerda with the permission of the latter. Thereafter, while she was about to cook, Honorina called her and when she turned to face Honorina, she saw the latter being pushed ("ginigitgit") by Jonathan and one of his companions. Another companion, who was carrying an icepick, grabbed her (Adela), gagged and hogtied her, and brought her inside the bathroom. She observed that the volume of the radio was increased and that the two untied dogs inside the house were barking. She was able to free herself and when she went out of the bathroom, she noticed that Jonathan and his companions were no longer in the house. She then saw the body of Honorina sprawled on the floor with her face covered with blood. She went out of the house and asked their neighbors to call the police. 2

She was able to identify Jonathan "because he is tall and had no hat." His companions were thin and young, but she failed to identify them because they were always looking down and were hiding behind Jonathan. 3 She further declared that she lost a wrist watch and less than P100.00 in cash during the incident. 4

Pfc. Mariano Rivera testified that he investigated Jonathan who then voluntarily gave his confession, with the assistance of Atty. Confesor Sansano of the IBP-Quezon City Chapter, after he was duly apprised of his constitutional rights in Tagalog. He identified the extrajudicial confession (Exhibit "B"), which is in the form of a sworn statement or "salaysay," and the advice to Jonathan of his constitutional rights (Exhibit "A"). 5 Atty. Sansano's testimony corroborated that of Rivera. 6

The pertinent part of the extrajudicial confession reads as follows:T.3 — Alam mo na ba ngayon ang dahilan kung bakit tayo naririto at nagbibigay ng salaysay?S — Dahil ho sa nasangkot ako sa pagnanakaw at pagpatay sa loob ng bahay ni Aling Nena sa Masaya St. corner Nenita, RP Shooters, Gulod, Novaliches, Quezon City.T.4 — Kailan nangyari ang sinasabi mong iyan? Natatandaan mo pa?S — A beinte ho ng Enero 1990, mga alas-9:00 ng umaga.T.5 — Meron ka bang kasama nang maganap ang pangyayaring iyan?S — Meron ho, sina FERDIE at BUBOY na mga taga Sta. Lucia din.T.6 — Alam mo ba kung anong buong pangalan nina FERDIE at BUBOY?S — Si FERDIE ho ay FERDINAND LOPEZ at si BUBOY ay si EDUARDO NINING.

T.7 — Ang sabi mo ay nasangkot ka sa pagnanakaw at pagpatay sa bahay ni Aling Nena, sino naman ang napatay at ninakawan doon?S — Si Aling Nena ho and napatay doon at ninakawan.T.8 — Sino ang pumatay kay Aling Nena?S — Si FERDIE ho, pinagsasaksak ho ng treskantos.T.9 — Nakita mo ba ng sinaksak ni FERDIE si Aling Nena?S — Oho, marami ho, hindi ko matandaan, pero nakita kong sinaksak niya sa leeg si Aling NENA.T.10 — Ano naman ang dahilan at sinaksak ni FERDIE si Aling NENA?S — Hoholdapin ho sana namin, pero nanlaban at sumigaw.T.11 — Isalaysay mo nga ang buong pangyayari kung paano napatay si Aling NENA at napagnakawan.S — Gipit ho kasi ang girlfriend kong si Cristy at kailangang- kailangan niya ang pera kaya ipinasangla sa akin yun kanyang Crown Video Home Service. Ngayon, dahil ho sa bagong galing ako sa trangkaso, isinama ko sina FERDIE at BUBOY para salisi kami sa pagbuhat dahil sa mabigat yung VHS. Pagkakatok namin ay pinapasok kami ni Aling NENA. Inaalok ko sa kanya na isangla o ibenta na yung dala naming VHS. Tumanggi siya at wala daw pera. Yun namang VHS na nakalagay sa dala naming bag ay nakabukas at nakapatong sa ibabaw ng ref. Nang ayaw niyang tanggapin ay isinara ko na yung zipper ng bag at bubuhatin ko na. Sinenyasan ko sina Ferdie na aalis na kami pero bigla na lang pinagsasaksak ni FERDIE yung matanda. Pumalag pa si Aling Nena at sumigaw habang sinasaksak ni FERDIE. Hanggang sa bumagsak si Aling NENA ay pumapalag siya. Nabigla ako. Umakyat ako sa itaas ng bahay at naghalughog. Sumunod din sa akin si FERDIE at naghalughog. Wala naman akong nakuha.T.12 — Si FERDIE, meron ba siyang nakuha habang naghahalughog din sa itaas ng bahay?S — Meron akong nakitang ibinulsa niya na galing sa aparador, hindi ko lang alam kung ano iyon.T.13 — Ano pa ang alam mong nakuha ni FERDIE sa bahay na iyon?S — Ang alam ko lang ay tatlong relos na panlalaki, isa lang ang natatandaan ko na SEIKO automatic na stainless, saka mga barya. Sa tindahan yata niya nakuha iyon dahil si FERDIE ang pumasok sa tindahan.T.14 — Si BUBOY naman, ano ang alam mong ginawa niya.S — Itinali ho yung katulong at dinala yata sa CR.T.15 — Ayon sa salaysay ni REGINO FLORENCIO, yung asawa ng biktimang si NENA, nawalan din sila ng mga alahas, meron ba kayong nakuhang mga alahas kina NENA?S — Wala ho.T.16 — Sa tantiya mo, mga gaano kayo katagal sa loob ng bahay nina NENA nang umagang mangyari iyon?S — Mga kinse minutos lang ho siguro.T.17 — Ang ibig mo bang sabihin, sa buong panahong iyon, wala kang nakuhang pera o alahas at mamahaling bagay?S — Wala ho, kasi pagdating namin sa Blumentritt, si FERDIE lang ang naglabas ng pera. Si Buboy ay inabot sa akin yung tatlong relos.T.18 — Paano naman kayo nakarating sa Blumentritt?S — Nang paalis na kami ay una-una lang. Una si Buboy, pangalawa si Ferdie at ako ang huli. Naglakad lang kami hanggang sa sakayan. Pagdating sa Quirino Highway ay

sumakay kaming tatlo sa jeep na papuntang Blumentritt. Pagdating doon sa may Avenida ay naghati-hati na lang kami sa kalye habang naglalakad. Nakaparte kaming tatlo ng tigpo-four hundred pesos. Naghiwalay na kami at yung dalawa ay pupunta daw sila sa Alfonso, Cavite. Isinasama nila ako, pero hindi ako sumama. Tumuloy ako sa bahay ng tiyuhin ko sa may Grotto. Pero pagkaraan ng may ilang araw ay nagpagala ako sa Maynila, at bumalik ako sa tiyuhin ko ng January 23, 1990. Hindi ako mapakali.

xxx xxx xxx(Signed)

JONATHAN M. BARLISNagsasalaysay?

NILAGDAAN SA HARAP NINA:(Unsigned) (Unsigned)1. Cristina A. Lopez 2. Luzviminda M. BarlisASSISTED BY:(Signed)ATTY. CONFESSOR SANSANO

SUBSCRIBED AND SWORN to before me this 30[th] day of January 1990 at Quezon City, Philippines.(Signed)ASST. CITY PROSECUTORDr. Dario L. Gajardo, Medico-Legal Officer of the PC/INP Crime Laboratory Service at Camp Crame, conducted an autopsy on the body of Honorina Ballerda. He testified that he found thirty-four stab wounds caused by a pointed instrument, such as an icepick, located mainly on the neck and front of the body. Sixteen of these stab wounds were fatal. 7

Wilma Ballerda testified that in connection with the untimely death of her mother, she spent P15,900.00 for the funeral services, P3,900.00 for burial services, which excluded that for the lot, and P3,725.00 for the mass, flowers, and food during the wake. She hired the services of a lawyer for P20,000.00. 8

The witnesses for the defense were accused Jonathan Barlis, Cristina Lopez, Rizaldy Reyes, Hernando Angeles, Joselito Gatdula, and the accused's uncle, Pfc. Patrocinio Mercado. The accused's testimony is summarized by the trial court as follows:

That on January 20, 1990 at around 9 o'clock in the morning, accused Barlis was on his way to Grotto, San Jose, Bulacan when he met his co-accused Ferdinand Lopez and Eduardo Nining; that the two requested him to accompany them to Ballerda's place in order to pawn their VHS to the latter; that he accompanied them but immediately went to Bulacan after talking to Honorina Ballerda at the latter's store and when said Ballerda allowed the two to enter her house; that he did not stay long at Grotto, San Jose, Bulacan and went back to Novaliches; that he learned, upon reaching home, that police authorities are looking for him; that since he does not know what to do, he went back to Bulacan and stayed there until January 30, 1990 when police officers, one of whom is his uncle (Pfc. Patrocinio Mercado), went thereat and fetch him to act as a witness against Ferdinand Lopez and Eduardo Nining; that he actually aided police operatives in tracking them although said Lopez was able to escape from

the police officers; that he was brought to the Quezon City Police Station where he was investigated and told to sign a paper (his salaysay), that he signed the same since Pfc. Mariano Rivera was in a hurry to get a lawyer; that they (accused Barlis and Pfc. Rivera) went to the office of a lawyer who signed the document without asking any question from him; that he was brought back to the police station where he was detained. 9

Cristina Lopez, Jonathan's girlfriend, testified that she and Jonathan's mother accompanied Jonathan when he surrendered to the police in Quezon City and when he was brought to the Office of the IBP-Quezon City Chapter. However, she and Jonathan's mother were not allowed to go inside the said Office. 10

Rizaldy Reyes, Hernando Angeles, and Joselito Gatdula tried to corroborate Jonathan's alibi. Rizaldy claimed that he and Jonathan were on board the same passenger jeepney when he went to work at about 9:00 a.m. on 20 January 1990. Jonathan told him that he was going to Grotto, San Jose, Bulacan. 11 Hernando declared that he only saw Ferdinand Lopez and Eduardo Nining coming out from the house of Honorina Ballerda at about 9:00 a.m. to 9:20 a.m. of the said date. 12 Joselito testified that he and Jonathan were on the same passenger jeepney bound for Grotto, San Jose, Bulacan, before 9:30 a.m. of that date. 13

Pfc. Patrocinio Mercado, Jonathan's uncle and a member of the Quezon City Police, testified that on 30 January 1990, he and Jonathan's mother went to Grotto, San Jose, Bulacan, to see Jonathan. The latter told him of his intention to surrender because he is innocent. They brought Jonathan to the Quezon City Police Station where an investigator helped Jonathan to be a witness in the case. He was not with Jonathan inside the investigation room. After the investigation, he discovered that Jonathan had executed a sworn statement and had been included in the charge. He asked Jonathan if he was assisted by a lawyer when he executed the sworn statement to which Jonathan answered that he was. 14

On 4 April 1991, the trial court promulgated its decision 15 finding Jonathan Barlis guilty beyond reasonable doubt of the crime of robbery with homicide and sentencing him "to suffer the penalty of RECLUSION PERPETUA . . . to pay the heirs of Honorina Ballerda the amount of Fifty Thousand Pesos (P50,000.00) by virtue of the former's death and Ten Thousand Pesos (P10,000.00) by way of moral damages" and to restore to the victim's heirs one lady's gold necklace, one Seiko wrist watch, one diamond stone, or their equivalent value of P4,300.00 if restoration cannot be done, and cash worth P3,000.00. 16

The trial court found that there was a conspiracy among Jonathan and his companions in the commission of the crime and convicted the former on the basis of the circumstantial evidence and his extrajudicial confession, thus:

While the prosecution did not show any real evidence to establish the killing of the victim and the taking of personal properties at her residence, nonetheless, the attending circumstances of the instant case are indicative of accused['s] participation in the commission of the offense charge[d]. There is no dispute that movables were lost and

the victim died of stab wounds on January 20, 1990. Such occurrence transpired after accused went inside the house of Ballerda, gagged their victim and tied Adela Argate. These facts are conclusive upon him since he did not advance any denial. His defense of alibi cannot prevail over his positive identification by Argate.

The acts of gagging their victims, tying and carrying Argate to the bathroom, and increasing the volume of the radio manifest a clear case of conspiracy. For this purpose, the Honorable Supreme Court held that:

Direct proof is not essential to establish conspiracy. Since by its nature, conspiracy is planned in utmost secrecy, it can rarely be proved by direct evidence. Consequently, the presence and concurrence of minds which is involved in conspiracy, may be inferred from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole.

If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent were in fact connected and cooperative, indicating closeness of personal association and concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert means is proved. That would be termed as implied conspiracy. (Orodio v. CA, September 13, 1988, GR 57519).

Accused likewise questions the admissibility of his "salaysay" by proving that the same was executed by him without the assistance of counsel. Testimonies to this effect lack credence. His uncle and his own witness, Pfc. Patrocinio Mercado, admitted that such "salaysay" was taken regularly and with the constitutional requisite of assistance [of] counsel. While the constitutional presumption of innocence should be upheld, such presumption cannot rise above the regularity in the performance of police duties and lawyer's function when the latter evidence is strong. 17

Jonathan Barlis (hereinafter appellant) appealed the judgment to this Court. In his brief, he contends that the trial court erred:

1. . . . IN NOT CONSIDERING THE DEFENSE OF ALIBI RAISED BY THE ACCUSED.

2. . . . IN GIVING CREDENCE TO THE STATEMENT (EXHIBIT "B") OF THE ACCUSED.

3. . . . IN ADJUDGING THE ACCUSED AS CIVILLY LIABLE.

4. . . . IN CONVICTING THE ACCUSED JONATHAN BARLIS OF THE CRIME OF ROBBERY WITH HOMICIDE. 18

We shall take up these assigned errors seriatim.In the first assignment of error, the appellant asserts that the trial court erred in rejecting his strongly corroborated alibi and in convicting him on the basis of the weak circumstantial evidence of the prosecution. He argues that even the trial court recognized the weakness of the prosecution's evidence when it stated in its decision that "[w]hile the prosecution did not show any real evidence to establish the killing of the victim and the taking of personal properties at her residence, nonetheless, the attending circumstances of the instant case are indicative of accused['s] participation in the commission of the offense charge[d]." He also assails the credibility of

Adela Argate whose statements on the identity of the malefactors before the police which investigated the crime in the afternoon of 20 January 1990 (Exhibit "2") 19 were inconsistent with her declaration given in court and who could not have seen the malefactors because, as she testified, the house was dark. Finally, he attacks the "seeming suppression of evidence by the prosecution when it did not present in evidence Exhibit "2."The appellant's defense of alibi was rightly rejected by the trial court not only because it was belied by his sworn statement (Exhibit "B") but also because he was positively identified by Adela Argate. The appellant admitted in his sworn statement that he was one of three persons who entered the house of Honorina with the intention of robbing her although he denied that he killed her; 20 that after the victim was killed, he searched the house for things which he could take with him but was unsuccessful; however, his companion, Ferdie, took three men's watches. He also admitted that they divided the loot among themselves and each of them got P400.00 in cash. 21

Adela Argate positively identified the appellant as one of the three persons who entered the house of the victim. Contrary to the appellant's claim, there was sufficient illumination inside the house when they entered it. The lights were turned off by the appellant and his companions only after they consummated the crime and before they left the house. 22 She also identified him as one of two persons who pushed ("ginigitgit") the victim. We have ruled time and again that alibi is a weak defense and cannot prevail over the positive identification of the accused. 23

The appellant's claim that the prosecution suppressed evidence is without merit. It was not necessary for the prosecution to present Adela Argate's statement before the police authorities since Adela Argate was herself presented as a witness and the prosecution had explained that it opted not to present such statement because the same was not sworn to before any officer authorized to administer oaths. 24 Moreover, the defense had access to a copy of such statement and even marked it as its Exhibit "2." The presumption that evidence willfully suppressed would be adverse if produced 25 does not apply where the evidence is available to the accused. 26 Furthermore, the defense did not comply with Section 13, Rule 132 of the Rules of Court 27 in attempting to impeach Adela's credibility by evidence of a prior inconsistent statement (Exhibit "2"). In this case, while Adela was cross-examined by the counsel for the appellant, she was never confronted regarding her alleged inconsistent statements in Exhibit "2".In his second assignment of error, the appellant contends that the trial court erred in giving credence to his sworn statement or "salaysay" (Exhibit "B") which was taken without the assistance of a lawyer in violation of Section 12(1), Article 3 of the 1987 Constitution. He alleges that he surrendered to the police only to help them find the real culprits, that Pfc. Rivera misled him into signing the sworn statement by telling him not to worry, and that he was brought to the Office of the IBP-Quezon City Chapter where Atty. Sansano signed the document without conferring with

him. Furthermore, he questions the fact that the names of his girlfriend, Cristina Lopez, and his mother, Luzviminda Barlis, appear as witnesses in Exhibit "B-1" although they had not signed it.We are not persuaded. It was the appellant's uncle who surrendered him to Pfc. Rivera, his uncle's colleague. Before he was questioned, he was duly informed and advised in Tagalog, a language he speaks and understands, of his constitutional rights to remain silent and to have a competent and independent counsel, preferably of his own choice. 28 He voluntarily agreed to be assisted by no less than the Chairman of the Legal Aid Assistance Office of the IBP-Quezon City Chapter, Atty. Confesor Sansano. The latter affirmed in court that he assisted the appellant during the investigation. A lawyer is an officer of the court and upon his shoulders lies the responsibility to see to it that protection has been accorded the rights of the accused and that no injustice to him has been committed. 29 He has in his favor the presumption of regularity in the performance of his duties. This presumption was not rebutted in this case. With the presence of Atty. Sansano, we believe that the rights of the appellant were duly protected.The failure of the mother and the girlfriend of the appellant to sign as witnesses to the taking of his sworn statement is of no moment for the Constitution does not require the presence of witnesses during custodial investigation. What is required is the assistance of counsel, which can even be waived. As held in People vs. Layuso, 30 what is sought to be protected by the Constitution is the compulsory disclosure of incriminating facts. The right is guaranteed merely to preclude the slightest coercion as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth.The last two assigned errors, being interrelated, shall be discussed jointly.The information alleged that the appellant took one ladies' gold necklace, one ladies' Seiko watch, one diamond stone worth P800.00, cash in the amount of P3,000.00, and assorted pieces of jewelry of undetermined value, "all belonging to the victim." However, the only evidence of such taking is the appellant's sworn statement wherein he admitted that his companions took three men's watches and about P1,200.00 in cash which they divided among themselves. Adela Argate, for her part, testified that she lost one ladies' watch and less than P100.00 in cash. The Office of the Solicitor General in the Brief for the Appellee agrees with the appellant that it was an error for the trial court to order the restitution of (a) one ladies' gold necklace, (b) one Seiko wrist watch, (c) one diamond stone and (d) cash in the amount of P3,000.00, since there was no proof of loss thereof. It maintains, however, that it was proved that witness Adela Argate lost her wrist watch and cash of less than P100.00, which fact was not disputed by the appellant; hence, "the element of unlawful taking of property was amply established." 31

To sustain a conviction for the crime of robbery with homicide, it is necessary that the robbery itself be proved as conclusively as any other essential element of the crime. 32 The taking with intent to gain of personal property belonging

to another, by means of violence against or intimidation of any person, or using force upon things are the essential elements of robbery. 33 There is robbery with homicide when by reason or on occasion of a robbery with the use of violence against or intimidation of person, the crime of homicide shall have been committed. 34

As shown above, the only evidence of the taking of the personal property of the victim is the extrajudicial confession of the appellant. Under Section 3, Rule 133 of the Rules of Court, "an extrajudicial confession made by an accused shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti." Corpus delicti is the body (material substance) upon which a crime has been committed, e.g., the corpse of a murdered man or the charred remains of a house burned down. In a derivative sense, it means the substantial fact that a crime was committed. 35 It is made up of two elements: (a) that a certain result has been proved, for example, a man has died or a building has been burned; and (b) that some person is criminally responsible for the act. 36 Section 3, Rule 133 does not mean that every element of the crime charged must be clearly established by independent evidence apart from the confession. It means merely that there should be some evidence tending to show the commission of the crime apart from the confession. Otherwise, utility of the confession as a species of proof would vanish if it were necessary, in addition to the confession, to adduce other evidence sufficient to justify conviction independently of such confession. 37 Otherwise stated, the other evidence need not, independently of the confession, establish the corpus delicti beyond a reasonable doubt. 38

The prosecution failed to corroborate the extrajudicial confession of the appellant on the robbery with evidence of corpus delicti. In short, the robbery was not conclusively proved. The instant case should be distinguished from People vs. Mones. 39 In Mones, the four accused who were charged with robbery with homicide executed separate confessions of the crime charged. Their confessions were also corroborated by the testimony of a witness. We held therein:

[W]here the accusation of robbery fails, but multiple homicide or murder is proved, the accused must be sentenced for the several separate offenses of homicide or murder (U.S. vs. Lahoylahoy and Madanlog, 38 Phil., 330); and in this case, if the proof should be held insufficient as to the robbery, the result would be, under the Revised Penal Code, that each of the accused would be sentenced for the four murders committed by them. In view of this fact we are constrained to sustain the conviction for robbery with homicide, upon the concurrent confessions of each of the four accused to the effect that robbery was the purpose of the crime and that P100 in money were taken from the trunk of Manuel Mico. As to the moral basis of this fact we entertain no doubt whatever, although there is no independent evidence,

apart from the confessions that robbery was committed. In thus sustaining the trial court in its finding of robbery we do not wish to be understood as declaring that this appreciation could prevail if the prosecution consisted of a charge of robbery only, or if the conclusion reached were in fact unfavorable to the accused. 40

In Mones, the conviction of the four accused for robbery with homicide is sustainable under the doctrine of interlocking confessions: "extra-judicial confessions independently made without collusion which are identical with each other in their essential details and are corroborated by other evidence on record are admissible, as circumstantial evidence, against the person implicated to show the probability of the latter's actual participation in the commission of the crime." 41 Clearly, the doctrine is inapplicable here for we only have the solitary confession of the appellant.The Office of the Solicitor General, as earlier observed, concedes that there was no proof of robbery. It argues, however, that such is not fatal because the unrebutted fact remains that Adela Argate lost a wrist watch and cash of less than P100.00 on the occasion of the robbery. We cannot sustain this proposition because of the rule enumerated in United States vs. Lahoylahoy, 42 to wit:

To permit a defendant to be convicted upon a charge of robbing one person when the proof shows that he robbed an entirely different person, when the first was not present, is violative of the rudimentary principles of pleading; and in addition, is subject to the criticism that the defendant is thereby placed in a position where he could not be protected from a future prosecution by a plea of former conviction or acquittal. If we should convict or acquit these defendants to-day of the robbery which is alleged to have been committed upon the property of Roman Estriba, it is perfectly clear that they could be prosecuted tomorrow for robbery committed upon the property of Juana; and the plea of former jeopardy would be of no avail.

The death of the victim has been sufficiently established by evidence independent of the appellant's extrajudicial confession, namely, the unrebutted testimonies of prosecution witnesses Adela Argate, Dr. Dario Gajardo, and Wilma Ballerda.Finally, we agree with the trial court that the conspiracy among the appellant and his two companions was proved beyond reasonable doubt by circumstantial evidence.Since the alleged robbery was not conclusively proved in this case, the appellant could only be convicted of homicide under Article 249 of the Revised Penal Code. The penalty prescribed therefor is reclusion temporal.The aggravating circumstance of dwelling 43 was proved in this case and may be appreciated against the appellant. This is offset, however, by the mitigating circumstance of

voluntary surrender. 44 The applicable period of reclusion temporal is therefore the medium period or fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. 45 Since he is entitled to the benefits of the Indeterminate Sentence Law, 46 the penalty to be imposed upon him shall be one whose minimum shall be within the range of prision mayor and whose maximum shall be within the range of the prescribed penalty taking into account the modifying circumstances. 47

The award of moral damages in the amount of P10,000.00 is proper under Article 2206(3) of the Civil Code considering that Wilma Ballerda, the only child of the victim, testified that she was shocked and could not sleep for several nights when she learned of her mother's death. 48

WHEREFORE, the appealed decision is MODIFIED as follows: appellant JONATHAN BARLIS Y MERCADO is hereby found guilty beyond reasonable doubt of the crime of Homicide under Article 249 of the Revised Penal Code, and, applying the Indeterminate Sentence Law, is hereby sentenced to suffer an indeterminate penalty ranging from ten (10) years of prision mayor as minimum to sixteen (16) years of reclusion temporal as maximum. The appellant is ordered to pay the heirs of Honorina Ballerda the sum of P50,000.00 as indemnity and P10,000.00 as moral damages. Costs against the appellant.SO ORDERED.

G.R. No. 159734 November 29, 2006ROSARIO V. ASTUDILLO, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.x----------------------------------------xG.R. No. 159745 November 29, 2006FILIPINA M. ORELLANA, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O NCARPIO MORALES, J.:Petitioners Rosario "Baby" Astudillo (Rosario) and Filipina "Lina" Orellana (Filipina) via separate petitions for review on certiorari seek a review of the Decision1 and the Resolution2 of theCourt of Appeals affirming with modification that of the Regional Trial Court of Quezon City, Branch 783 (the trial court) finding them guilty of Qualified Theft and denying their Motions for Reconsideration, respectively.On complaint of Western Marketing Corporation (Western), petitioners were collectively charged with Qualified Theft, along with Flormarie Robel (Flormarie) and Roberto Benitez (Benitez), in Criminal Case No. Q-96-67827, under an Information dated September 9, 1996 reading:The undersigned accuses FLORMARIE CALAJATE ROBEL, ROBERTO F. BENITEZ, ROSARIO ASTUDILLO a.k.a. "Baby" and FILIPINA ORELLANA Y MACARAEG of the crime of QUALIFIED THEFT as follows:That during the period comprised from January 1996 to February 1996, the above-named accused, being then employed as relieving cashier/service-in-charge (Flormarie Calajate Robel), supervisor/floor manager (Roberto F.

Benitez[)], sales clerks (Rosario Astudillo a.k.a. "Baby" and Filipina Orellana y Macaraeg) at the WESTERN MARKETING CORPORATION, represented by LILY CHAN ONG, and as such had free access to the company premises, materials, supplies and items store[d] thereat, conspiring, confederating together and mutually helping one another, with grave abuse of confidence and intent of gain, and without the consent of the owner thereof, did, then and there wilfully, unlawfully and feloniously take, steal and carry away two (2) booklets of Sales Invoices Nos. from 128351 to 128400 of the said corporation and thereafter use the said invoices in the preparation of fictitious sales and withdrawals of merchandise with the total value of P797,984.00 Philippine Currency, belonging to the said WESTERN MARKETING CORPORATION, to its damage and prejudice.CONTRARY TO LAW.4 (Emphasis supplied)Additionally, petitioners, Benitez and Norberto "Carlo" Javier (Javier) were individually charged also with Qualified Theft in four (4) separate Informations all dated September 9, 1996.The Information indicting petitioner Rosario, docketed as Criminal Case Nos. Q-96-67829, and that indicting petitioner Filipina, docketed as Q-96-67830, respectively read:The undersigned accuses ROSARIO ASTUDILLO a.k.a. "Baby" of the crime of QUALIFIED THEFT as follows:That on or about the period from May 1, 1994 to February 16, 1996, in Quezon City, Philippines, the above-named accused, being then employed as sales representative/clerk at the WESTERN MARKETING CORPORATION (P. Tuazon Branch), represented by LILY CHAN ONG, and as such had free access to the company cash sales, with grave abuse of confidence and intent of gain, and without the consent of the owner thereof, did, then and there, wilfully, unlawfully and feloniously take, steal and carry away the excess sum/amount between the tag price and discounts price in the sum of P12,665.00, belonging to the said WESTERN MARKETING CORPORATION, to its damage and prejudice in the amount aforementioned.CONTRARY TO LAW.

x x xThe undersigned accuses FILIPINA ORELLANA Y MACARAEG of the crime of QUALIFIED THEFT, committed as follows:That on or about the period from May 1, 1994 to January 27, 1996, in Quezon City, Philippines, the above-named accused, being then employed as Sales clerk at the WESTERN MARKETING CORPORATION, represented by LILY CHAN ONG, and as such had free access to the company cash sales, with grave abuse of confidence and intent of gain, and without the consent of the owner thereof, did,then and there, wilfully, unlawfully and feloniously take, steal and carry away the excess sum/amount between the tag price and discount price of each and every items sold by her to company customers, in the sum of P4,755.00, belonging to the said WESTERN MARKETING CORPORATION, to its damage and prejudice in the amount aforementioned.CONTRARY TO LAW.5

Petitioners, Benitez and Javier, with the assistance of their respective counsel, pleaded not guilty during arraignment.6 Flormarie has remained at large.

By Order of December 10, 1997, Criminal Case No. Q-96-67828, the case against Javier, was dismissed on account of the desistance of the private complainant.7 The remaining cases against petitioners and Benitez were consolidated for joint trial.By Decision of May 28, 1998, the trial court found the accused-herein petitioners and Benitez guilty beyond reasonable doubt of Qualified Theft and were accordingly sentenced as follows:IN CRIMINAL CASE NO. Q-96-67827 –Accused Roberto F. Benitez, Rosario Astudillo a.k.a. "Baby", and Filipina Orellana y Macaraeg shall each suffer imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion temporal, and to pay the amount of P797,984.00, jointly and severally for their civil liability;IN CRIMINAL CASE NO. Q-96-67829 –Accused Rosario Astudillo a.k.a. "Baby", shall suffer imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion temporal, and to pay the amount of P12,665.00 for her civil liability;IN CRIMINAL CASE NO. Q-96-67830 –Accused Filipina Orellana y Macaraeg, shall suffer imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion temporal, and to pay the sum of P4,755.00 for her civil liability; andIN CRIMINAL CASE NO. Q-96-67831 –Accused Roberto F. Benitez, shall suffer imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion temporal, and to pay the amount of P11,079.00 for his civil liability.The penalties imposed on all the accused are quite harsh, but as the maxim goes, "Dura Lex Sed Lex", the Court could not impose otherwise.SO ORDERED.8 (Emphasis in the original; underscoring supplied)Petitioners and Benitez elevated their cases on appeal. The Court of Appeals affirmed the trial court’s judgment with modification as to the penalties imposed, thus:WHEREFORE, the decision dated May 28, 1998 of the Regional Trial Court of Quezon City, Branch 78 is AFFIRMED with MODIFICATION.

1. In Criminal Case No. Q-96-67827, appellants Roberto Benitez, Rosario Astudillo and Filipina Orellana are found guilty beyond reasonable doubt of qualified theft and are hereby sentenced to suffer the penalty ranging from 10 years and 1 day of prision mayor in its maximum period to 15 years of reclusion temporal as maximum , and to pay to the offended party the amount of P797,984.00, jointly and severally, as reparation for the unrecovered stolen merchandise;2. In Criminal Case No. Q-96-67829, appellant Rosario Astudillo is found guilty beyond reasonable doubt of qualified theft and is sentenced to suffer imprisonment ranging from 10 years and 1 day of prision mayor in its maximum period as minimum to

14 years, 8 months and 1 day of reclusion temporal in its medium period as maximum, and to pay to the offended party amount of P12,665.00 as reparation for the stolen goods.3. In Criminal Case No. Q-96-67830, appellant Filipina Orellana is found guilty beyond reasonable doubt of qualified theft and is sentenced to suffer imprisonment ranging from 4 years, 2 months and 1 day of prision correccional in its maximum period as minimum to 8 years and 1 day of prision mayor in its medium period as maximum and to pay to the offended party the amount of P4,755.00 as reparation for the stolen property;4. In Criminal Case No. Q-96-67831, appellant Roberto Benitez is found guilty beyond reasonable doubt of qualified theft and is sentenced to suffer imprisonment ranging from 6 years and 1 day of prision mayor in its minimum period as minimum to 10 years and 1 day of prision mayor in its maximum period as maximum and to pay to the offended party the amount of P11,079.00 as reparation for the stolen goods.

SO ORDERED.9 (Emphasis in the original; underscoring supplied)After petitioners and Benitez’s respective Motions for Reconsideration were denied by the Court of Appeals, petitioners filed these separate petitions for review which were, on motion of the Office of the Solicitor General, ordered consolidated.10

In her petition, Rosario proffers the following assignment of errors:

THE COURT A QUO GRIEVOUSLY ERRED WHEN IT CONSIDERED AN APOLOGY FOR BREACH OF PROCEDURE AS AN ADMISSION OF A CRIME.THE COURT A QUO ERRED WHEN IT DEPARTED [FROM] THE NORMAL COURSE OF JUDICIAL PROCEEDING AND CONVICTED PETITIONER OF THE OFFENSE OF THEFT WITHOUT THE ESSENTIAL ELEMENT OF UNLAWFUL TAKING.THE COURT OF A QUO (sic) GRIEVOUSLY ERRED WHEN IT ABUSED ITS DISCRETION TO ARRIVE AT CONCLUSIONS OF FACTS BY INDECENTLY CONSIDERING AND DISTORTING EVIDENCE TO CONFORM TO ITS FLAWED CONCLUSION.11 (Underscoring supplied)

On her part, Filipina raises the following issues:WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE DECISION OF THE REGIONAL TRIAL COURT CONVICTING THE PETITIONER FILIPINA ORELLANA Y MACARAEG OF THE CRIME CHARGED DESPITE INSUFFICIENCY OF EVIDENCE WHETHER OR NOT AN EXTRA-JUDICIAL ADMISSION OBTAINED THROUGH TRICKERY AND SCHEME WITHOUT THE BENEFIT AND ASSISTANCE OF COUNSEL IS A SUFFICIENT GROUND TO CONVICT AN ACCUSEDWHETHER OR NOT CONSPIRACY MAY BE PROVED SIMPLY ON THE GROUND THAT ALL ACCUSED ARE

CO-EMPLOYEES AND WORKING IN ONE COMPANY 12 (Underscoring supplied)

From the evidence for the prosecution, the following version is gathered:Petitioners were hired by Western, a chain of appliance stores, as salespersons at its branch at P. Tuazon Boulevard in Cubao, Quezon City. Benitez and Flormarie were hired as floor manager and service-in-charge/cashier-reliever, respectively, at the same branch of Western.13

On February 21, 1996, in the course of preparing the January monthly sales report of the P. Tuason branch of Western, Branch Accountant Marlon Camilo (Camilo) noticed that the computer printout of the monthly sales report revealed a belated entry for Cash Sales Invoice No. 128366. Upon verification from Western’s head office, Camilo learned that the branch received the booklet containing 50 cash sales invoices to which Invoice No. 128366 formed part.Camilo then confirmed that the booklet of sales invoices bearing numbers 128351 up to 128400 was missing. And he noted that the daily cash collection report did not reflect any remittance of payments from the transactions covered by the said invoices.Some cash sales invoices were later recovered. From recovered Invoice No. 128366, Camilo found out that Flormarie was the one who filled it up and received the payment reflected therein.From recovered Invoice Nos. 128358 and 128375, Camilo found out that the goods covered thereby were missing. Concluding that the transactions under the said invoices were made but no payment was remitted to Western, Camilo reported the matter to Ma. Aurora Borja (Aurora), the branch assistant manager.Benitez soon approached Camilo and requested him not to report the matter to the management, he cautioning that many would be involved.Aurora and Camilo later met with Benitez, Filipina, cashiers Rita Lorenzo (Rita) and Norma Ricafort (Norma) during which Benitez and Filipina pleaded with Camilo not to report the matter to the management. Flormarie, who called on Camilo by telephone, made a similar plea as she admitted to stealing the missing booklet of invoices, she explaining that her father was sick and had to undergo medical operation, and offering to pay for the goods covered thereby.14

In the meantime, Flormarie had gone absent without leave.Aurora eventually reported the case of the missing invoices and the shortage of cash sales collection to Western’s branch manager Lily Chan Ong (Lily).15

In a subsequent meeting with Lily, Filipina admitted having brought home some appliances while Benitez gave a handwritten statement reading:16

Ako si Roberto F. Benitez ay humihingi po ako ng tawad kay Mrs. Lily Ong at Western Marketing Corp. Ang mga kasalanan ako po ay:

1) Ang pagkuha ng Promo na dapat ay para sa Customer.2) Ang paggamit ng gift check na para rin sa Customer ang kinukuha ko at ako ang gumagamit.3) Ang pagamit na rin sa Pera na tinatawag na Short-Over ay amin ding ginagawa. Example nagbayad ang

Customer ng 9000 and C.P. 8,900 and 9,000 ay nasulat sa original na INV.4) Ang pagkuha na rin ng mga Product tulad ng sumusunod, na ako nagplano at si Ate Lina .

Kay Ate Lolit Tiffin CarrierCookware Set 7 pcs.Ate Lina Cookware Set 7 pcs.Norma Cookware Set 7 pcs. Airpot LemonRobert National Elec. Stove HNK-211 Rice BowlIto lahat ay nilabas namin ng linggo 02-18-96 ng gabi. Ako po ay nangangako na hindi na ito uulitin ang lahat ng mga kasalanan sa Western ay kay Mrs. Lily Ong at Pinapangako ko po na Sumpa man kasama ang pamilya at salamat din po dahil ako ay pinatawad nila at binigyan pa ng isang pagkakataon. Maraming maraming salamat po.17 (Emphasis and underscoring supplied)In a still subsequent meeting with Lily, Filipina made a written statement in the former’s presence reading:Ako po si Lina M. Orellana na nangangako kay Ate Lily na hinding-hindi ko na uulitin iyong naglalabas ng mga items tulad ng cookware set at casserole na ang mga kasama ko po rito ay sina Lolit, Norma, Robert na isinagawa namin. Na kami po si Robert ang nagsabi kay Lolit na maglabas ng stock pero bago po namin ginagawa iyon nagsabi po kami kay Lolit na sumagot naman ng ng oo pero kami po ni Robert and nagkumbinsi sa dalawa. Kung mauulit pa ho ito kung anuman po ang gusto ni Ma’m Lily na gawin sa akin ay lubos ko pong tatanggapin.18 (Underscoring supplied)Also in a meeting with Lily, Rosario, who was earlier implicated by Flormarie’s husband in his telephone conversation with Aurora,19 wrote:Mam Lily,Sana ho Ate Lily patawarin ninyo ako sa nagawa kong kasalanan, regarding sa "Short-over". Siguro ho nagawa ko lang ho ‘yon sa pakikisama sa kanila, sa mga kasamahan ko dito sa Nuestra, alam ko ho na mali ‘yon kaya pinagsisisihan ko ho ‘yon. Sana ho mapatawad ninyo ako sa nagawa kong kasalan.‘Yun pong tungkol sa kaso ni Marie, wala ho akong alam don. Kumare ko nga ho sya pero yung pagnanakaw niyang ginawa wala akong kinalaman don. Kahit ho siguro magkautang-utang ako hindi ko magagawa ‘yon.Inuulit ko ho, sana ho mapatawad ninyo uli ako sa nagawa kong kasalanan at pinapangako ko ho na hinding-hindi ko na uulitin.Maraming salamat ho,(Sgd.)Baby AstudilloP.S. ‘yun ho palang perang na-oover naming, pinaghahatian po namin nila Rita at ni Marie. 20 (Underscoring supplied)Still in a separate meeting with Lily and her siblings on one hand, and Flormarie and her husband on the other, Flormarie wrote what she knew of the incident as follows:Ito ang nalalaman ko kung paanong nangyari ito sa loob ng tindahan ng Western Mktg. P. Tuazon Branch.*SHORT-OVERAng tag price, kung ang customer ay hindi tumawad, binabago na lang ang presyo sa duplicate copy and then kinukuha na lang sa cashier ang pera tapos naghahati-hati na lang si robert, baby, lina, lolit, Rita at Marie, Norma, Fe.

x x x*INVOICEIto ay itinuro sa akin ni Kuya Robert, kukunin ko ang invoice at pagkatapos binigyan niya ako ng (3 resibo series) at hindi ko na po alam kung anong ginawa na niya sa invoice.Ang paraan magreresibo ako tatatakan ko ng paid kasama kung sino ang taong maglalabas ng unit tapos ibebenta ko na yong unit yung pera kinukuha ko na bibigyan ko lang siya ng kahit magkanong amount kung sino yong taong inutusan ko.21

(Underscoring supplied)Flormarie, in the company of her sister Delma and Lily, subsequently appeared before a notary public to execute a similar statement reading:

x x x x2. Ako ngayon ay kusang loob na lumapit sa Western upang humingi ng kapatawaran sa aking mga nagawa at upang makipagkasundo sa isang maayos na pagbabayad sa mga halagang aking nakuha sa Western at mahalaga sa lahat, upang isiwalat ang mga taong kasangkot sa katiwaliang ito at mga paraan ng paggawa nito.3. Halos lahat ng mga kawani ng tindahan ay kasangkot sa mga sumusunod na katiwalian:3.1. Short-Over – Ito ay ang pagtatala ng mas mababang halaga ng paninda sa mga "duplicate copies" ng resibo kapag ang kustomer ay hindi tumawad sa "tag price" at nagbayad ng "cash". Ang sobrang halaga ay pinaghahatian namin nina ROBERT BENITEZ ("Robert"); ROSARIO ALTUDILLO ("Baby"); FILIPINA ORELLANA ("Lina"); LOLIT BORJA ("Lolit"); RITA LORENZO ("Rita"); NORMA RICAFORT ("Norma") at FE CABIGAN ("Fe").

x x x x3.3. INVOICING – Sa pamamagitan ng mga resibong na may tatak na "paid" na ibinibigay ni Robert sa aking nailalabas ko ang mga paninda na akin namang naibebenta.22

x x x x (Emphasis and underscoring supplied)Flormarie and her sister, together with Lily, later executed a statement before Cubao SPO1 Jose Gil Gregorio, reading:TANONG: Ayon kay MARLON CAMILO, Western Marketing Corp Branch Accountant nadiskubre niya ang pagkawala ng isang booklet ng Sales Cash Invoice (50pcs.) na may numerong 128351 to 128400 nitong mga nakaraang araw may kinalaman ka ba sa nasabing pangyayari?SAGOT: Opo.T : Kung mayroon kang kinalaman sa nasabing pangyayari ito ba ay kusang loob mong ginawa?S : Itinuro lang po ito sa akin.T : Ano ang iyong ginawa?S : Ako po ang kumuha noong nawawalang isang booklet ng Cash Sales Invoice sa turo ni ROBERT BENITEZ na Sales Supervisor sa Western Marketing Corp.

x x x xT : Sa tatlong series ng Cash Sales Invoice na napunta sa iyo

ano ang iyong ginawa?S : Ginamit ko po ito sa paglalabas ng mga items/unit sa Western Marketing Corp.

x x x xT : Sa maikling salaysay, ikuwento mo nga sa akin kung

papaano mo isinagawa ang iyong pagnanakaw sa pag-gamit ng mga Cash Sales Invoice?

S : Ganito po ang ginawa ko, iniuwi ko sa aming bahay yung tatlong series ng resibo na ibinigay sa akin ni ROBERT BENITEZ at tinuruan po niya ako na sulatan ko yung mga resibo ng mga items na gusto kong ilabas, at pagkatapos po ay ibinalik ko ito sa Western Marketing Corp at binigay ko ito kay ROBERT BENITEZ, at ang sabi niya sa akin ay siya na raw ang bahala na magpalabas noong mga items na aking isinulat sa resibo.

x x x xT : Bukod kay ROBERT BENITEZ may mga tao bang karamay sa

naganap na transaksiyon?S : Mayroon po.T : Sino-sino ito?S : Sina LINA ORELLANA po, Sales Lady po, ROSARIO ASTUDILLO, sales lady.T : Sa iyong pagkakaalam, ano ang kanilang mga partisipasyon na naganap na transaksiyon?S : Si LINA ORELLANA po ang sales lady, at siya rin ang may pirma doon sa resibo, at ganoon din po itong si ROSARIO ASTUDILLO.

x x x xT : Magkano naman ang ibinibigay sa iyo ni ROBERT BENITEZ kapag nailabas ng yung mga items doon sa resibo na iyong ginawa?S : Hindi ko na po matandaan basta pinapartihan niya ako at yung dalawang sales lady.23 (Emphasis and underscoring supplied)In an inventory of stocks conducted at the branch office of Western, several other appliances were found missing as were unauthorized deductions from the cash collections.24 The total missing merchandise was valued at P797,984.00 as reflected in the inventory report.25 And discrepancies between the actual sales per cash sales invoice and the cash remittance to the company in the sum of P34,376.00 for the period from January 1994 to February 199626 were also discovered, prompting Western to initiate the criminal complaints for Qualified Theft.Both petitioners raise as issue whether the employees’ extra-judicial admissions taken before an employer in the course of an administrative inquiry are admissible in a criminal case filed against them.Petitioners posit in the negative. They argue that as their extra-judicial statements were taken without the assistance of counsel, they are inadmissible in evidence, following Section 12, Article III of the 1987 Constitution.27

It bears noting, however, that when the prosecution formally offered its evidence, petitioners failed to file any objection thereto including their extra-judicial admissions.28 At any rate, this Court answers the issue in the affirmative. People v. Ayson29 is instructive:In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding against the suspect.He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those

rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him.The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights."The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused persons." And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."30 (Emphasis and underscoring supplied)Ayson adds:The employee may, of course, refuse to submit any statement at the investigation, that is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be absurd to reject his statements, whether at the administrative investigation, or at a subsequent criminal action brought against him, because he had not been accorded, prior to his making and presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc) which, to repeat, are relevant in custodial investigations.31

People v. Tin Lan Uy, Jr. 32 is similarly instructive:Clearly, therefore, the rights enumerated by the constitutional provision invoked by accused-appellant are not available before government investigators enter the picture. Thus we held in one case (People v. Ayson, [supra]) that admissions made during the course of an administrative investigation by Philippine Airlines do not come within the purview of Section 12. The protective mantle of the constitutional provision also does not extend to admissions or confessions made to a private individual, or to a verbal admission made to a radio announcer who was not part of the investigation, or even to a mayor approached as a personal confidante and not in his official capacity. (Emphasis and underscoring supplied)The Court of Appeals did not thus err in pronouncing that petitioners were not under custodial investigation to call for the presence of counsel of their own choice, hence, their written incriminatory statements are admissible in evidence.The extra-judicial confession33 before the police of Flormarie (who, as earlier stated, has remained at large) in which she incriminated petitioners bears a different complexion, however, as it was made under custodial investigation. When she gave the statement, the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect. The records show that Camilo had priorly reported the thievery to the same police authorities and identified Flormarie and Benitez as initial suspects.It is always incumbent upon the prosecution to prove at the trial that prior to in-custody questioning, the confessant was

informed of his constitutional rights. The presumption of regularity of official acts does not prevail over the constitutional presumption of innocence. Hence, in the absence of proof that the arresting officers complied with these constitutional safeguards, extrajudicial statements, whether inculpatory or exculpatory, made during custodial investigation are inadmissible and cannot be considered in the adjudication of a case. In other words, confessions and admissions in violation of Section 12 (1), Article III of the Constitution are inadmissible in evidence against the declarant and more so against third persons. This is so even if such statements are gospel truth and voluntarily given.34 (Emphasis and underscoring supplied)Petitioners at all events argue that their written statements were obtained through deceit, promise, trickery and scheme, they claiming that Lily dictated to them their contents. There is nothing on record, however, buttressing petitioners’ claim other than their self-serving assertion. The presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and conscience35

such that it is presumed to be voluntary until the contrary is proved thus stands.36

The circumstances surrounding the execution of the written admissions likewise militate against petitioners’ bare claim. Petitioners admittedly wrote their respective letters during office hours in Lily’s office which was located in the same open booth or counter occupied by the cashier and credit card in-charge.37 And this Court takes note of the observation of the trial court that petitioners’ written notes were "neatly written in Tagalog, and not in broken Tagalog as spoken by Lily Ong".38

In another vein, Rosario labels her written statement as a mere "apology for breach of procedure".39 Her resort to semantics deserves scant consideration, however. A cursory reading of her letter reveals that she confessed to the taking of "short-over."There is a "short-over" when there is a discrepancy between the actual amount collected appearing in the yellow (warehouse) copy and the remitted amount appearing in the blue (accounting) copy.40

In criminal cases, an admission is something less than a confession. It is but a statement of facts by the accused, direct or implied, which do not directly involve an acknowledgment of his guilt or of his criminal intent to commit the offense with which he is bound, against his interests, of the evidence or truths charged. It is an acknowledgment of some facts or circumstances which, in itself, is insufficient to authorize a conviction and which tends only to establish the ultimate facts of guilt. A confession, on the other hand, is an acknowledgment, in express terms, of his guilt of the crime charged.41

The issue on the admissibility of petitioners’ respective extra-judicial statements aside, an examination of the rest of the evidence of the prosecution does not set petitioners free.The elements of the crime of Theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5)

that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.42

Theft becomes qualified when any of the following circumstances is present: (1) the theft is committed by a domestic servant; (2) the theft is committed with grave abuse of confidence; (3) the property stolen is either a motor vehicle, mail matter or large cattle; (4) the property stolen consists of coconuts taken from the premises of a plantation; (5) the property stolen is fish taken from a fishpond or fishery; and (6) the property was taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.43

Cashier Rita testified in a detailed and categorical manner how the petitioners took the alleged amounts of "short-over" deducted from the sum of cash collections. The tampered invoices presented by the prosecution which glaringly show the variance in the amounts corroborate Rita’s claim.Rosario contends, however, that there was no "unlawful taking" since the amounts of "short-over" did not belong to Western. The argument does not lie. The "excess" sums formed part of the selling price and were paid to, and received by, Western. The discrepancy in the amounts came about on account of the alteration in the copies of the invoices which should have faithfully reflected the same amount paid by the customer.As for petitioners’ claim of entitlement to the "excess" amounts as salespersons’ commission, it was not established in evidence.Even assuming that the "short-over" was intended to defray sundry expenses, it was not incumbent upon the salespersons to claim them and automatically apply them to the miscellaneous charges. It was beyond the nature of their functions. The utilization of the "short-over" was not left to the discretion of the salespersons. The element of unlawful taking was thus established.A further review of the nature of petitioners’ functions shows, however, that the element of grave abuse of confidence is wanting in the case.Q : As an accountant employee since June 1995, Mr. Witness, you are familiar that in the procedure in any particular branch of Western Marketing Corporation, are you aware if somebody buys an item from one store, do you know the flow of this sale?A : Yes, sir.Q : In fact, in the store there are employees which are assigned with specific duties or functions, is it not?A : Yes, sir.Q : Like for instance, let’s take the case of Filipina Orellana. Her function is merely to entertain customers who go to the store and intend to buy one of the items that are displayed, is it not?A : Yes, sir.Q : So, if this customer is resolved to buy one item, Filipina Orellana as a sales clerk, all she has to do is to refer the particular customer to another employee of the company, is that correct?A : Yes, sir.Q : Now, you have also employees who are preparing invoices, they are called invoicers, is it not?

A : Yes, sir.Q : So when Filipina Orellana refers this customer to the invoicer, the invoicer now will take over from that function of Filipina Orellana after referring this customer?A : Yes, sir.Q : And this invoicer now will refer the invoice for this particular item for payment to the cashier of the company, is it not?A : Yes, sir.Q : And it is the cashier who will receive the payment from this customer?A : Yes, sir.Q : And in fact, the customer or the cashier will receive the exact amount of payment as reflected in the invoice that was prepared by the invoicer, is it not?A : Yes, sir.Q : From that point up to the payment, Filipina Orellana has no more hand in that particular transaction, her function is only to entertain and refer the customer for sales purposes, that is correct? A : Yes, sir.44 (Emphasis, underscoring and italics supplied)Mere circumstance that petitioners were employees of Western does not suffice to create the relation of confidence and intimacy that the law requires.45 The element of grave abuse of confidence requires that there be a relation of independence, guardianship or vigilance between the petitioners and Western.46 Petitioners were not tasked to collect or receive payments. They had no hand in the safekeeping, preparation and issuance of invoices. They merely assisted customers in making a purchase and in demonstrating the merchandise to prospective buyers.47 While they had access to the merchandise, they had no access to the cashier’s booth or to the cash payments subject of the offense.Lily conceded that petitioners were merely tasked to "assist in the sales from day to day"48 while Camilo admitted that the cashier is the custodian of the cash sales invoices and that no other person can handle or access them.49 The limited and peculiar function of petitioners as salespersons explains the lack of that fiduciary relationship and level of confidence reposed on them by Western, which the law on Qualified Theft requires to be proven to have been gravely abused. Mere breach of trust is not enough. Where the relationship did not involve strict confidence, whose violation did not involve grave abuse thereof, the offense committed is only simple theft.50 Petitioners should therefore be convicted of simple theft, instead of Qualified Theft.On Criminal Case No. Q-96-67827 respecting petitioners’ collective guilt in taking away merchandise by making it appear that certain items were purchased with the use of stolen cash sales invoices:It is settled that conspiracy exists when two or more persons come to an agreement concerning the commission of a crime and decide to commit it. To effectively serve as a basis for conviction, conspiracy must be proved as convincingly as the criminal act. Direct proof is not absolutely required for the purpose.A review of the inference drawn from petitioners’ acts before, during, and after the commission of the crime to

indubitably indicate a joint purpose, concert of action and community of interest is thus in order.51

In Rosario’s case, the Office of the Solicitor General made a sweeping conclusion that the extent of her participation in the act of taking merchandise need not be specified since she attributed her other act of taking "short-over" to "pakikisama" or companionship.52 The conclusion does not persuade.Mere companionship does not establish conspiracy.53 As indicated early on, there were two different sets of imputed acts, one individual and the other collective. Rosario’s admission was material only to her individual guilt as she referred only to the "short-over". The wording of her admission cannot be construed to extend to the other offense charging conspiracy under which no overt act was established to prove that Rosario shared with, and concurred in, the criminal design of taking away Western’s merchandise.1âwphi1The prosecution relied on Aurora’s statement that Flormarie’s husband mentioned Rosario as among those involved in the anomaly.54 Under the hearsay evidence rule, however, a witness can testify only to those facts which he knows of his personal knowledge, that is, those which are derived from his own perception, except as otherwise provided in the Rules.55

Aurora testified that she witnessed Filipina, along with Benitez, in inter alia hiring third persons to pose as customers who received the items upon presenting the tampered invoice.56

Filipina in fact gave a written statement acknowledging her own act of asporting the merchandise. The rule is explicit that the act, declaration or omission of a party as to a relevant fact may be given in evidence against him.57 The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him.58

Moreover, Filipina’s statement dovetailed with Benitez’s admission, which was corroborated by Flormarie’s confessions.59 In cases alleging conspiracy, an extra-judicial confession is admissible against a co-conspirator as a circumstantial evidence to show the probability of participation of said co-conspirator in the crime committed.60

Except with respect to Rosario, then, this Court finds well-taken the trial court’s observation that the admissions were full of substantial details as to how the accused conspired to commit the criminal acts and as to how they manipulated the sales transactions at Western to effect and consummate the theft of the goods.In fine, insofar as Filipina is concerned, a thorough evaluation of the evidence warrants the affirmance of her guilt beyond reasonable doubt of having conspired with Benitez et al.On the imposition of the correct penalty, People v. Mercado61 is instructive. In the determination of the penalty for Qualified Theft, note is taken of the value of the property stolen, which is P797,984.00. Since the value exceeds P22,000.00, the basic penalty is prision mayor in its minimum and medium periods to be imposed in the maximum period — Eight (8) Years, Eight (8) Months and One (1) Day to Ten (10) Years of prision mayor.

To determine the additional years of imprisonment, the amount of P22,000.00 is deducted from P797,984.00, which yields a remainder of P775,984.00. This amount is then divided byP10,000.00, disregarding any amount less than P10,000.00. The end result is that 77 years should be added to the basic penalty.The total imposable penalty for simple theft should not exceed 20 years, however.As for the penalty for Qualified Theft, it is two degrees higher than that for Simple Theft, hence, the correct penalty is reclusion perpetua.WHEREFORE, the Decision of the Court of Appeals dated December 18, 2002 is MODIFIED.In Criminal Case No. Q-96-67829, petitioner ROSARIO V. ASTUDILLO is found guilty beyond reasonable doubt of Simple Theft, and is sentenced to suffer an indeterminate penalty ranging from Two (2) Years, Four (4) Months and One (1) Day of prision correccional in its medium and maximum periods as minimum, to Seven (7) Years, Four (4) Months and One (1) Day of prision mayor in its minimum and medium periods as maximum, and to pay to the offended party the amount of P12,665.00 as civil liability.In Criminal Case No. Q-96-67830, petitioner FILIPINA M. ORELLANA is found guilty beyond reasonable doubt of Simple Theft, and is sentenced to suffer an indeterminate penalty ranging from Two (2) Months, and One (1) Day of arresto mayor in its medium and maximum periods as minimum, to One (1) Year, Eight (8) Months and Twenty-One (21) Days of prision correccional in its minimum and medium periods as maximum, and to pay to the offended party the amount of P4,755.00 as civil liability.In Criminal Case No. Q-96-67827, petitioner ROSARIO V. ASTUDILLO is acquitted.In all other respects, the assailed Decision is affirmed except that petitioner FILIPINA M. ORELLANA is sentenced to suffer the penalty of reclusion perpetua with the accessory penalties under Article 40 of the Revised Penal Code. SO ORDERED.BANK OF THE PHILIPPINE ISLANDS, petitioner, vs. CASA MONTESSORI INTERNATIONALE and LEONARDO T. YABUT, respondents.[G.R. No. 149507. May 28, 2004]CASA MONTESSORI INTERNATIONALE, petitioner, vs. BANK OF THE PHILIPPINE ISLANDS, respondent.D E C I S I O NPANGANIBAN, J.:By the nature of its functions, a bank is required to take meticulous care of the deposits of its clients, who have the right to expect high standards of integrity and performance from it. Among its obligations in furtherance thereof is knowing the signatures of its clients. Depositors are not estopped from questioning wrongful withdrawals, even if they have failed to question those errors in the statements sent by the bank to them for verification.The Case

Before us are two Petitions for Review1[1] under Rule 45 of the Rules of Court, assailing the March 23, 2001 Decision2[2] and the August 17, 2001 Resolution3[3] of the Court of Appeals (CA) in CA-GR CV No. 63561. The decretal portion of the assailed Decision reads as follows:“WHEREFORE, upon the premises, the decision appealed from is AFFIRMED with the modification that defendant bank [Bank of the Philippine Islands (BPI)] is held liable only for one-half of the value of the forged checks in the amount of P547,115.00 after deductions subject to REIMBURSEMENT from third party defendant Yabut who is likewise ORDERED to pay the other half to plaintiff corporation [Casa Montessori Internationale (CASA)].”4[4]The assailed Resolution denied all the parties’ Motions for Reconsideration.The FactsThe facts of the case are narrated by the CA as follows:“On November 8, 1982, plaintiff CASA Montessori International5[5] opened Current Account No. 0291-0081-01 with defendant BPI[,] with CASA’s President Ms. Ma. Carina C. Lebron as one of its authorized signatories.“In 1991, after conducting an investigation, plaintiff discovered that nine (9) of its checks had been encashed by a certain Sonny D. Santos since 1990 in the total amount of P782,000.00, on the following dates and amounts:

‘Check No. Date Amount1. 839700 April 24, 1990

P 43,400.002. 839459 Nov. 2, 1990

110,500.003. 839609 Oct. 17, 1990

47,723.004. 839549 April 7, 1990

90,700.005. 839569 Sept. 23, 1990

52,277.006. 729149 Mar. 22, 1990

148,000.007. 729129 Mar. 16, 1990

51,015.008. 839684 Dec. 1, 1990

140,000.009. 729034 Mar. 2, 1990

98,985.00 Total -- P 782,600.006[6]

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“It turned out that ‘Sonny D. Santos’ with account at BPI’s Greenbelt Branch [was] a fictitious name used by third party defendant Leonardo T. Yabut who worked as external auditor of CASA. Third party defendant voluntarily admitted that he forged the signature of Ms. Lebron and encashed the checks.“The PNP Crime Laboratory conducted an examination of the nine (9) checks and concluded that the handwritings thereon compared to the standard signature of Ms. Lebron were not written by the latter.“On March 4, 1991, plaintiff filed the herein Complaint for Collection with Damages against defendant bank praying that the latter be ordered to reinstate the amount of P782,500.007[7] in the current and savings accounts of the plaintiff with interest at 6% per annum.“On February 16, 1999, the RTC rendered the appealed decision in favor of the plaintiff.”8[8]Ruling of the Court of AppealsModifying the Decision of the Regional Trial Court (RTC), the CA apportioned the loss between BPI and CASA. The appellate court took into account CASA’s contributory negligence that resulted in the undetected forgery. It then ordered Leonardo T. Yabut to reimburse BPI half the total amount claimed; and CASA, the other half. It also disallowed attorney’s fees and moral and exemplary damages.Hence, these Petitions.9[9]IssuesIn GR No. 149454, Petitioner BPI submits the following issues for our consideration:“I. The Honorable Court of Appeals erred in deciding this case NOT in accord with the applicable decisions of this Honorable Court to the effect that forgery cannot be presumed; that it must be proved by clear, positive and convincing evidence; and that the burden of proof lies on the party alleging the forgery.“II. The Honorable Court of Appeals erred in deciding this case not in accord with applicable laws, in particular the Negotiable Instruments Law (NIL) which precludes CASA, on account of its own negligence, from asserting its forgery claim against BPI, specially taking into account the absence of any negligence on the part of BPI.”10[10]In GR No. 149507, Petitioner CASA submits the following issues:“1. The Honorable Court of Appeals erred when it ruled that ‘there is no showing that [BPI], although negligent, acted in bad faith x x x’ thus denying the prayer for the award of attorney’s fees, moral damages and exemplary damages to [CASA]. The Honorable Court also erred when it did not order [BPI] to pay interest on the amounts due to [CASA].“2. The Honorable Court of Appeals erred when it declared that [CASA] was likewise negligent in the case at bar, thus warranting its conclusion that the loss in the amount of

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P547,115.00 be ‘apportioned between [CASA] and [BPI] x x x.’”11[11]These issues can be narrowed down to three. First, was there forgery under the Negotiable Instruments Law (NIL)? Second, were any of the parties negligent and therefore precluded from setting up forgery as a defense? Third, should moral and exemplary damages, attorney’s fees, and interest be awarded?The Court’s RulingThe Petition in GR No. 149454 has no merit, while that in GR No. 149507 is partly meritorious.First Issue:Forged Signature Wholly InoperativeSection 23 of the NIL provides:“Section 23. Forged signature; effect of. -- When a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right x x x to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.”12[12]Under this provision, a forged signature is a real13[13] or absolute defense,14[14] and a person whose signature on a negotiable instrument is forged is deemed to have never become a party thereto and to have never consented to the contract that allegedly gave rise to it.15[15]The counterfeiting of any writing, consisting in the signing of another’s name with intent to defraud, is forgery.16[16]In the present case, we hold that there was forgery of the drawer’s signature on the check.First, both the CA17[17] and the RTC18[18] found that Respondent Yabut himself had voluntarily admitted, through an Affidavit, that he had forged the drawer’s signature and encashed the checks.19[19] He never refuted these findings.20

[20] That he had been coerced into admission was not corroborated by any evidence on record.21[21]

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Second, the appellate and the trial courts also ruled that the PNP Crime Laboratory, after its examination of the said checks,22[22] had concluded that the handwritings thereon -- compared to the standard signature of the drawer -- were not hers.23[23] This conclusion was the same as that in the Report24[24] that the PNP Crime Laboratory had earlier issued to BPI -- the drawee bank -- upon the latter’s request.Indeed, we respect and affirm the RTC’s factual findings, especially when affirmed by the CA, since these are supported by substantial evidence on record.25[25]Voluntary Admission Not Violative of Constitutional RightsThe voluntary admission of Yabut did not violate his constitutional rights (1) on custodial investigation, and (2) against self-incrimination.In the first place, he was not under custodial investigation.26

[26] His Affidavit was executed in private and before private individuals.27[27] The mantle of protection under Section 12 of Article III of the 1987 Constitution28[28] covers only the period “from the time a person is taken into custody for investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of a crime although not yet in custody.”29[29]Therefore, to fall within the ambit of Section 12, quoted above, there must be an arrest or a deprivation of freedom, with “questions propounded on him by the police authorities for the purpose of eliciting admissions, confessions, or any information.”30[30] The said constitutional provision does “not apply to spontaneous statements made in a voluntary manner”31[31] whereby an individual orally admits to authorship of a crime.32[32] “What the Constitution proscribes is the compulsory or coercive disclosure of incriminating facts.”33[33]

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Moreover, the right against self-incrimination34[34] under Section 17 of Article III35[35] of the Constitution, which is ordinarily available only in criminal prosecutions, extends to all other government proceedings -- including civil actions, legislative investigations,36[36] and administrative proceedings that possess a criminal or penal aspect37[37] -- but not to private investigations done by private individuals. Even in such government proceedings, this right may be waived,38[38] provided the waiver is certain; unequivocal; and intelligently, understandingly and willingly made.39[39]If in these government proceedings waiver is allowed, all the more is it so in private investigations. It is of no moment that no criminal case has yet been filed against Yabut. The filing thereof is entirely up to the appropriate authorities or to the private individuals upon whom damage has been caused. As we shall also explain later, it is not mandatory for CASA -- the plaintiff below -- to implead Yabut in the civil case before the lower court.Under these two constitutional provisions, “[t]he Bill of Rights40[40] does not concern itself with the relation between a private individual and another individual. It governs the relationship between the individual and the State.”41[41] Moreover, the Bill of Rights “is a charter of liberties for the individual and a limitation upon the power of the [S]tate.”42[42] These rights43[43] are guaranteed to preclude the slightest coercion by the State that may lead the accused “to admit something false, not prevent him from freely and voluntarily telling the truth.”44[44]Yabut is not an accused here. Besides, his mere invocation of the aforesaid rights “does not automatically entitle him to the constitutional protection.”45[45] When he freely and

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voluntarily executed46[46] his Affidavit, the State was not even involved. Such Affidavit may therefore be admitted without violating his constitutional rights while under custodial investigation and against self-incrimination.Clear, Positive and ConvincingExamination and EvidenceThe examination by the PNP, though inconclusive, was nevertheless clear, positive and convincing.Forgery “cannot be presumed.”47[47] It must be established by clear, positive and convincing evidence.48[48] Under the best evidence rule as applied to documentary evidence like the checks in question, no secondary or substitutionary evidence may inceptively be introduced, as the original writing itself must be produced in court.49[49] But when, without bad faith on the part of the offeror, the original checks have already been destroyed or cannot be produced in court, secondary evidence may be produced.50[50] Without bad faith on its part, CASA proved the loss or destruction of the original checks through the Affidavit of the one person who knew of that fact51[51] -- Yabut. He clearly admitted to discarding the paid checks to cover up his misdeed.52[52] In such a situation, secondary evidence like microfilm copies may be introduced in court.The drawer’s signatures on the microfilm copies were compared with the standard signature. PNP Document Examiner II Josefina de la Cruz testified on cross-examination that two different persons had written them.53[53] Although no conclusive report could be issued in the absence of the original checks,54[54] she affirmed that her findings were 90 percent conclusive.55[55] According to her, even if the microfilm copies were the only basis of comparison, the differences were evident.56[56] Besides, the RTC explained that although the Report was inconclusive, no conclusive report could have been given by the PNP, anyway, in the absence of the original checks.57[57] This explanation is valid; otherwise, no such report can ever be relied upon in court.

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Even with respect to documentary evidence, the best evidence rule applies only when the contents of a document -- such as the drawer’s signature on a check -- is the subject of inquiry.58[58] As to whether the document has been actually executed, this rule does not apply; and testimonial as well as any other secondary evidence is admissible.59[59] Carina Lebron herself, the drawer’s authorized signatory, testified many times that she had never signed those checks. Her testimonial evidence is admissible; the checks have not been actually executed. The genuineness of her handwriting is proved, not only through the court’s comparison of the questioned handwritings and admittedly genuine specimens thereof,60[60] but above all by her.The failure of CASA to produce the original checks neither gives rise to the presumption of suppression of evidence61[61] nor creates an unfavorable inference against it.62[62] Such failure merely authorizes the introduction of secondary evidence63[63] in the form of microfilm copies. Of no consequence is the fact that CASA did not present the signature card containing the signatures with which those on the checks were compared.64[64] Specimens of standard signatures are not limited to such a card. Considering that it was not produced in evidence, other documents that bear the drawer’s authentic signature may be resorted to.65[65] Besides, that card was in the possession of BPI -- the adverse party.We have held that without the original document containing the allegedly forged signature, one cannot make a definitive comparison that would establish forgery;66[66] and that a comparison based on a mere reproduction of the document under controversy cannot produce reliable results.67[67] We have also said, however, that a judge cannot merely rely on a handwriting expert’s testimony,68[68] but should also exercise independent judgment in evaluating the authenticity of a

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signature under scrutiny.69[69] In the present case, both the RTC and the CA conducted independent examinations of the evidence presented and arrived at reasonable and similar conclusions. Not only did they admit secondary evidence; they also appositely considered testimonial and other documentary evidence in the form of the Affidavit.The best evidence rule admits of exceptions and, as we have discussed earlier, the first of these has been met.70[70] The result of examining a questioned handwriting, even with the aid of experts and scientific instruments, may be inconclusive;71[71] but it is a non sequitur to say that such result is not clear, positive and convincing. The preponderance of evidence required in this case has been satisfied.72[72]Second Issue:Negligence Attributable to BPI AloneHaving established the forgery of the drawer’s signature, BPI -- the drawee -- erred in making payments by virtue thereof. The forged signatures are wholly inoperative, and CASA -- the drawer whose authorized signatures do not appear on the negotiable instruments -- cannot be held liable thereon. Neither is the latter precluded from setting up forgery as a real defense.Clear Negligencein Allowing PaymentUnder a Forged SignatureWe have repeatedly emphasized that, since the banking business is impressed with public interest, of paramount importance thereto is the trust and confidence of the public in general. Consequently, the highest degree of diligence73[73] is expected,74[74] and high standards of integrity and performance are even required, of it.75[75] By the nature of its functions, a bank is “under obligation to treat the accounts of its depositors with meticulous care,76

[76] always having in mind the fiduciary nature of their relationship.”77[77]BPI contends that it has a signature verification procedure, in which checks are honored only when the signatures therein are verified to be the same with or similar to the specimen signatures on the signature cards. Nonetheless, it still failed

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to detect the eight instances of forgery. Its negligence consisted in the omission of that degree of diligence required78[78] of a bank. It cannot now feign ignorance, for very early on we have already ruled that a bank is “bound to know the signatures of its customers; and if it pays a forged check, it must be considered as making the payment out of its own funds, and cannot ordinarily charge the amount so paid to the account of the depositor whose name was forged.”79[79] In fact, BPI was the same bank involved when we issued this ruling seventy years ago.Neither Waiver nor Estoppel Results from Failure to Report Error in Bank Statement The monthly statements issued by BPI to its clients contain a notice worded as follows: “If no error is reported in ten (10) days, account will be correct.”80[80] Such notice cannot be considered a waiver, even if CASA failed to report the error. Neither is it estopped from questioning the mistake after the lapse of the ten-day period.This notice is a simple confirmation81[81] or “circularization” -- in accounting parlance -- that requests client-depositors to affirm the accuracy of items recorded by the banks.82[82] Its purpose is to obtain from the depositors a direct corroboration of the correctness of their account balances with their respective banks.83[83] Internal or external auditors of a bank use it as a basic audit procedure84[84] -- the results of which its client-depositors are neither interested in nor privy to -- to test the details of transactions and balances in the bank’s records.85[85] Evidential matter obtained from independent sources outside a bank only serves to provide greater assurance of reliability86[86] than that obtained solely within it for purposes of an audit of its own financial statements, not those of its client-depositors.Furthermore, there is always the audit risk that errors would not be detected87[87] for various reasons. One, materiality is a consideration in audit planning;88[88] and two, the

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information obtained from such a substantive test is merely presumptive and cannot be the basis of a valid waiver.89[89] BPI has no right to impose a condition unilaterally and thereafter consider failure to meet such condition a waiver. Neither may CASA renounce a right90[90] it has never possessed.91[91]Every right has subjects -- active and passive. While the active subject is entitled to demand its enforcement, the passive one is duty-bound to suffer such enforcement.92[92]On the one hand, BPI could not have been an active subject, because it could not have demanded from CASA a response to its notice. Besides, the notice was a measly request worded as follows: “Please examine x x x and report x x x.”93[93] CASA, on the other hand, could not have been a passive subject, either, because it had no obligation to respond. It could -- as it did -- choose not to respond.Estoppel precludes individuals from denying or asserting, by their own deed or representation, anything contrary to that established as the truth, in legal contemplation.94[94] Our rules on evidence even make a juris et de jure presumption95[95] that whenever one has, by one’s own act or omission, intentionally and deliberately led another to believe a particular thing to be true and to act upon that belief, one cannot -- in any litigation arising from such act or omission -- be permitted to falsify that supposed truth.96[96]In the instant case, CASA never made any deed or representation that misled BPI. The former’s omission, if any, may only be deemed an innocent mistake oblivious to the procedures and consequences of periodic audits. Since its conduct was due to such ignorance founded upon an innocent mistake, estoppel will not arise.97[97] A person who has no knowledge of or consent to a transaction may not be estopped by it.98[98] “Estoppel cannot be sustained by mere argument or doubtful inference x x x.”99[99] CASA is not barred from questioning BPI’s error even after the lapse of the period given in the notice.

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Loss Borne byProximate Sourceof Negligence For allowing payment100[100] on the checks to a wrongful and fictitious payee, BPI -- the drawee bank -- becomes liable to its depositor-drawer. Since the encashing bank is one of its branches,101[101] BPI can easily go after it and hold it liable for reimbursement.102[102] It “may not debit the drawer’s account103[103] and is not entitled to indemnification from the drawer.”104[104] In both law and equity, when one of two innocent persons “must suffer by the wrongful act of a third person, the loss must be borne by the one whose negligence was the proximate cause of the loss or who put it into the power of the third person to perpetrate the wrong.”105[105]Proximate cause is determined by the facts of the case.106

[106] “It is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.”107[107]Pursuant to its prime duty to ascertain well the genuineness of the signatures of its client-depositors on checks being encashed, BPI is “expected to use reasonable business prudence.”108[108] In the performance of that obligation, it is bound by its internal banking rules and regulations that form part of the contract it enters into with its depositors.109[109]Unfortunately, it failed in that regard. First, Yabut was able to open a bank account in one of its branches without privity;110

[110] that is, without the proper verification of his corresponding identification papers. Second, BPI was unable to discover early on not only this irregularity, but also the marked differences in the signatures on the checks and those on the signature card. Third, despite the examination procedures it conducted, the Central Verification Unit111[111] of the bank even passed off these evidently different

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signatures as genuine. Without exercising the required prudence on its part, BPI accepted and encashed the eight checks presented to it. As a result, it proximately contributed to the fraud and should be held primarily liable112[112] for the “negligence of its officers or agents when acting within the course and scope of their employment.”113[113] It must bear the loss.CASA Not Negligent in Its Financial AffairsIn this jurisdiction, the negligence of the party invoking forgery is recognized as an exception114[114] to the general rule that a forged signature is wholly inoperative.115[115] Contrary to BPI’s claim, however, we do not find CASA negligent in handling its financial affairs. CASA, we stress, is not precluded from setting up forgery as a real defense.Role of Independent AuditorThe major purpose of an independent audit is to investigate and determine objectively if the financial statements submitted for audit by a corporation have been prepared in accordance with the appropriate financial reporting practices116[116] of private entities. The relationship that arises therefrom is both legal and moral.117[117] It begins with the execution of the engagement letter118[118] that embodies the terms and conditions of the audit and ends with the fulfilled expectation of the auditor’s ethical119[119] and competent performance in all aspects of the audit.120

[120]The financial statements are representations of the client; but it is the auditor who has the responsibility for the accuracy in the recording of data that underlies their preparation, their form of presentation, and the opinion121[121] expressed therein.122[122] The auditor does not assume the role of employee or of management in the client’s conduct of

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operations123[123] and is never under the control or supervision124[124] of the client.Yabut was an independent auditor125[125] hired by CASA. He handled its monthly bank reconciliations and had access to all relevant documents and checkbooks.126[126] In him was reposed the client’s127[127] trust and confidence128[128] that he would perform precisely those functions and apply the appropriate procedures in accordance with generally accepted auditing standards.129[129] Yet he did not meet these expectations. Nothing could be more horrible to a client than to discover later on that the person tasked to detect fraud was the same one who perpetrated it.Cash BalancesOpen to ManipulationIt is a non sequitur to say that the person who receives the monthly bank statements, together with the cancelled checks and other debit/credit memoranda, shall examine the contents and give notice of any discrepancies within a reasonable time. Awareness is not equipollent with discernment.Besides, in the internal accounting control system prudently installed by CASA,130[130] it was Yabut who should examine those documents in order to prepare the bank reconciliations.131[131] He owned his working papers,132[132] and his output consisted of his opinion as well as the client’s financial statements and accompanying notes thereto. CASA had every right to rely solely upon his output -- based on the terms of the audit engagement -- and could thus be unwittingly duped into believing that everything was in order. Besides, “[g]ood faith is always presumed and it is the burden of the party claiming otherwise to adduce clear and convincing evidence to the contrary.”133[133]Moreover, there was a time gap between the period covered by the bank statement and the date of its actual receipt. Lebron personally received the December 1990 bank

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statement only in January 1991134[134] -- when she was also informed of the forgery for the first time, after which she immediately requested a “stop payment order.” She cannot be faulted for the late detection of the forged December check. After all, the bank account with BPI was not personal but corporate, and she could not be expected to monitor closely all its finances. A preschool teacher charged with molding the minds of the youth cannot be burdened with the intricacies or complexities of corporate existence.There is also a cutoff period such that checks issued during a given month, but not presented for payment within that period, will not be reflected therein.135[135] An experienced auditor with intent to defraud can easily conceal any devious scheme from a client unwary of the accounting processes involved by manipulating the cash balances on record -- especially when bank transactions are numerous, large and frequent. CASA could only be blamed, if at all, for its unintelligent choice in the selection and appointment of an auditor -- a fault that is not tantamount to negligence.Negligence is not presumed, but proven by whoever alleges it.136[136] Its mere existence “is not sufficient without proof that it, and no other cause,”137[137] has given rise to damages.138[138] In addition, this fault is common to, if not prevalent among, small and medium-sized business entities, thus leading the Professional Regulation Commission (PRC), through the Board of Accountancy (BOA), to require today not only accreditation for the practice of public accountancy,139[139] but also the registration of firms in the practice thereof. In fact, among the attachments now required upon registration are the code of good governance140[140] and a sworn statement on adequate and effective training.141[141]The missing checks were certainly reported by the bookkeeper142[142] to the accountant143[143] -- her immediate supervisor -- and by the latter to the auditor. However, both the accountant and the auditor, for reasons known only to them, assured the bookkeeper that there were no irregularities.

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The bookkeeper144[144] who had exclusive custody of the checkbooks145[145] did not have to go directly to CASA’s president or to BPI. Although she rightfully reported the matter, neither an investigation was conducted nor a resolution of it was arrived at, precisely because the person at the top of the helm was the culprit. The vouchers, invoices and check stubs in support of all check disbursements could be concealed or fabricated -- even in collusion -- and management would still have no way to verify its cash accountabilities.Clearly then, Yabut was able to perpetrate the wrongful act through no fault of CASA. If auditors may be held liable for breach of contract and negligence,146[146] with all the more reason may they be charged with the perpetration of fraud upon an unsuspecting client. CASA had the discretion to pursue BPI alone under the NIL, by reason of expediency or munificence or both. Money paid under a mistake may rightfully be recovered,147[147] and under such terms as the injured party may choose.Third Issue:Award of Monetary ClaimsMoral Damages DeniedWe deny CASA’s claim for moral damages.In the absence of a wrongful act or omission,148[148] or of fraud or bad faith,149[149] moral damages cannot be awarded.150[150] The adverse result of an action does not per se make the action wrongful, or the party liable for it. One may err, but error alone is not a ground for granting such damages.151[151] While no proof of pecuniary loss is necessary therefor -- with the amount to be awarded left to the court’s discretion152[152] -- the claimant must nonetheless satisfactorily prove the existence of its factual basis153[153] and causal relation154[154] to the claimant’s act or omission.155[155]

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Regrettably, in this case CASA was unable to identify the particular instance -- enumerated in the Civil Code -- upon which its claim for moral damages is predicated.156[156] Neither bad faith nor negligence so gross that it amounts to malice157[157] can be imputed to BPI. Bad faith, under the law, “does not simply connote bad judgment or negligence;158

[158] it imports a dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a known duty through some motive or interest or ill will that partakes of the nature of fraud.”159[159]As a general rule, a corporation -- being an artificial person without feelings, emotions and senses, and having existence only in legal contemplation -- is not entitled to moral damages,160[160] because it cannot experience physical suffering and mental anguish.161[161] However, for breach of the fiduciary duty required of a bank, a corporate client may claim such damages when its good reputation is besmirched by such breach, and social humiliation results therefrom.162

[162] CASA was unable to prove that BPI had debased the good reputation of,163[163] and consequently caused incalculable embarrassment to, the former. CASA’s mere allegation or supposition thereof, without any sufficient evidence on record,164[164] is not enough.Exemplary Damages Also DeniedWe also deny CASA’s claim for exemplary damages.Imposed by way of correction165[165] for the public good,166

[166] exemplary damages cannot be recovered as a matter of right.167[167] As we have said earlier, there is no bad faith on the part of BPI for paying the checks of CASA upon forged signatures. Therefore, the former cannot be said to have acted in a wanton, fraudulent, reckless, oppressive or

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malevolent manner.168[168] The latter, having no right to moral damages, cannot demand exemplary damages.169[169]Attorney’s Fees GrantedAlthough it is a sound policy not to set a premium on the right to litigate,170[170] we find that CASA is entitled to reasonable attorney’s fees based on “factual, legal, and equitable justification.”171[171]When the act or omission of the defendant has compelled the plaintiff to incur expenses to protect the latter’s interest,172

[172] or where the court deems it just and equitable,173[173] attorney’s fees may be recovered. In the present case, BPI persistently denied the claim of CASA under the NIL to recredit the latter’s account for the value of the forged checks. This denial constrained CASA to incur expenses and exert effort for more than ten years in order to protect its corporate interest in its bank account. Besides, we have already cautioned BPI on a similar act of negligence it had committed seventy years ago, but it has remained unrelenting. Therefore, the Court deems it just and equitable to grant ten percent (10%)174[174] of the total value adjudged to CASA as attorney’s fees.Interest AllowedFor the failure of BPI to pay CASA upon demand and for compelling the latter to resort to the courts to obtain payment, legal interest may be adjudicated at the discretion of the Court, the same to run from the filing175[175] of the Complaint.176[176] Since a court judgment is not a loan or a forbearance of recovery, the legal interest shall be at six percent (6%) per annum.177[177] “If the obligation consists in the payment of a sum of money, and the debtor incurs in delay, the indemnity for damages, there being no stipulation to the contrary, shall be the payment of x x x legal interest, which is six percent per annum.”178[178] The actual base for its computation shall be “on the amount finally

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adjudged,”179[179] compounded180[180] annually to make up for the cost of money181[181] already lost to CASA.Moreover, the failure of the CA to award interest does not prevent us from granting it upon damages awarded for breach of contract.182[182] Because BPI evidently breached its contract of deposit with CASA, we award interest in addition to the total amount adjudged. Under Section 196 of the NIL, any case not provided for shall be “governed by the provisions of existing legislation or, in default thereof, by the rules of the law merchant.”183[183] Damages are not provided for in the NIL. Thus, we resort to the Code of Commerce and the Civil Code. Under Article 2 of the Code of Commerce, acts of commerce shall be governed by its provisions and, “in their absence, by the usages of commerce generally observed in each place; and in the absence of both rules, by those of the civil law.”184[184] This law being silent, we look at Article 18 of the Civil Code, which states: “In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied” by its provisions. A perusal of these three statutes unmistakably shows that the award of interest under our civil law is justified.WHEREFORE, the Petition in GR No. 149454 is hereby DENIED, and that in GR No. 149507 PARTLY GRANTED. The assailed Decision of the Court of Appeals is AFFIRMED with modification: BPI is held liable for P547,115, the total value of the forged checks less the amount already recovered by CASA from Leonardo T. Yabut, plus interest at the legal rate of six percent (6%) per annum -- compounded annually, from the filing of the complaint until paid in full; and attorney’s fees of ten percent (10%) thereof, subject to reimbursement from Respondent Yabut for the entire amount, excepting attorney’s fees. Let a copy of this Decision be furnished the Board of Accountancy of the Professional Regulation Commission for such action as it may deem appropriate against Respondent Yabut. No costs.SO ORDERED.

ESTELITO V. REMOLONA, petitioner, vs. CIVIL SERVICE COMMISSION, respondent.D E C I S I O NPUNO, J.:The present petition seeks to review and set aside the Decision rendered by the Court of Appeals dated July 31, 1998xxx[1] upholding the decision of the Civil Service Commission which ordered the dismissal of petitioner Estelito V. Remolona (Remolona) from the government service for

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dishonesty, and the Resolution dated February 5, 1999xxxi[2] denying petitioner's motion for reconsideration.Records show that petitioner Estelito V. Remolona is the Postmaster at the Postal Office Service in Infanta, Quezon, while his wife Nery Remolona is a teacher at the Kiborosa Elementary School.In a letterxxxii[3] dated January 3, 1991, Francisco R. America, District Supervisor of the Department of Education, Culture & Sports at Infanta, Quezon, inquired from the Civil Service Commission (CSC) as to the status of the civil service eligibility of Mrs. Remolona who purportedly got a rating of 81.25% as per Report of Rating issued by the National Board for Teachers.xxxiii[4] Mr. America likewise disclosed that he received information that Mrs. Remolona was campaigning for a fee of P8,000.00 per examinee for a passing mark in the teacher's board examinations.On February 11, 1991, then CSC Chairman Patricia A. Sto. Tomas issued an Order directing CSC Region IV Director Bella Amilhasan to conduct an investigation on Mrs. Remolona's eligibility, after verification from the Register of Eligibles in the Office for Central Personnel Records revealed "that Remolona's name is not in the list of passing and failing examinees, and that the list of examinees for December 10, 1989 does not include the name of Remolona. Furthermore, Examination No. 061285 as indicated in her report of rating belongs to a certain Marlou C. Madelo, who took the examination in Cagayan de Oro and got a rating of 65.00%."xxxiv[5]During the preliminary investigation conducted by Jaime G. Pasion, Director II, Civil Service Field Office, Lucena City, Quezon, only petitioner Remolona appeared. He signed a written statement of factsxxxv[6] regarding the issuance of the questioned Report of Rating of Mrs. Remolona, which is summarized in the Memorandumxxxvi[7] submitted by Director Pasion as follows:"3.1 That sometime in the first week of September, 1990, while riding in a Kapalaran Transit Bus from Sta. Cruz, Laguna on his way to San Pablo City, he met one Atty. Hadji Salupadin (this is how it sounded) who happened to be sitting beside him;3.2 That a conversation broke out between them until he was able to confide his problem to Atty. Salupadin about his wife having difficulty in acquiring an eligibility;3.3 That Atty. Salupadin who represented himself as working at the Batasan, offered his help for a fee of P3,000.00;3.4 That the following day they met at the Batasan where he gave the amount of P2,000.00, requirements, application form and picture of his wife;3.5 That the following week, Thursday, at around 1:00 P.M., they met again at the Batasan where he handed to Atty. Salupadin the amount of P1,000.00 plus P500.00 bonus who in turn handed to him the Report of Rating of one Nery C. Remolona with a passing grade, then they parted;3.6 That sometime in the last week of September, he showed the Report of Rating to the District Supervisor, Francisco America who informed her (sic) that there was no vacancy;3.7 That he went to Lucena City and complained to Dr. Magsino in writing x x x that Mr. America is asking for money in exchange for the appointment of his wife but failed to

make good his promise. He attached the corroborating affidavits of Mesdames Carmelinda Pradillada and Rosemarie P. Romantico and Nery C. Remolona x x x;3.8 That from 1986 to 1988, Mr. America was able to get six (6) checks at P2,600.00 each plus bonus of Nery C. Remolona;3.9 That Mr. America got mad at them. And when he felt that Mr. America would verify the authenticity of his wife's Report of Rating, he burned the original."Furthermore, Remolona admitted that he was responsible in acquiring the alleged fake eligibility, that his wife has no knowledge thereof, and that he did it because he wanted them to be together. Based on the foregoing, Director Pasion recommended the filing of the appropriate administrative action against Remolona but absolved Mrs. Nery Remolona from any liability since it has not been shown that she willfully participated in the commission of the offense.Consequently, a Formal Charge dated April 6, 1993 was filed against petitioner Remolona, Nery C. Remolona, and Atty. Hadji Salupadin for possession of fake eligibility, falsification and dishonesty.xxxvii[8] A formal hearing ensued wherein the parties presented their respective evidence. Thereafter, CSC Regional Director Bella A. Amilhasan issued a Memorandum dated February 14, 1995xxxviii[9] recommending that the spouses Estelito and Nery Remolona be found guilty as charged and be meted the corresponding penalty.Said recommendation was adopted by the CSC which issued Resolution No. 95-2908 on April 20, 1995, finding the spouses Estelito and Nery Remolona guilty of dishonesty and imposing the penalty of dismissal and all its accessory penalties. The case against Atty. Hadji Salupadin was held in abeyance pending proof of his identity.xxxix[10] In its Resolution No. 965510xl[11] dated August 27, 1996, the CSC, acting on the motion for reconsideration filed by the spouses Remolona, absolved Nery Remolona from liability and held that:"Further, a review of the records and of the arguments presented fails to persuade this Commission to reconsider its earlier resolution insofar as Estelito Remolona's culpability is concerned. The evidence is substantial enough to effect his conviction. His act of securing a fake eligibility for his wife is proved by substantial evidence. However, in the case of Nery Remolona, the Commission finds her innocent of the offense charged, for there is no evidence to show that she has used the fake eligibility to support an appointment or promotion. In fact, Nery Remolona did not indicate in her Personal Data Sheet that she possesses any eligibility. It must be pointed out that it was her husband who unilaterally worked to secure a fake eligibility for her.WHEREFORE, the instant Motion for Reconsideration is hereby denied insofar as respondent Estelito Remolona is concerned. However, Resolution No. 95-2908 is modified in the sense that respondent Nery Remolona is exonerated of the charges. Accordingly, Nery Remolona is automatically reinstated to her former position as Teacher with back salaries and other benefits."On appeal, the Court of Appeals rendered its questioned decision dismissing the petition for review filed by herein petitioner Remolona. His motion for reconsideration and/or new trial was likewise denied. Hence, this petition for review.Petitioner submits that the Court of Appeals erred:

“1. in denying petitioner's motion for new trial;2. in holding that petitioner is liable for dishonesty; and3. in sustaining the dismissal of the petitioner for an offense not work connected in relation to his official position in the government service.”The main issue posed for resolution is whether a civil service employee can be dismissed from the government service for an offense which is not work-related or which is not connected with the performance of his official duty. Remolona likewise imputes a violation of his right to due process during the preliminary investigation because he was not assisted by counsel. He claims that the extra-judicial admission allegedly signed by him is inadmissible because he was merely made to sign a blank form. He also avers that his motion for new trial should be granted on the ground that the transcript of stenographic notes taken during the hearing of the case before the Regional Office of the CSC was not forwarded to the Court of Appeals. Finally, he pleads that the penalty of dismissal with forfeiture of all benefits is too harsh considering the nature of the offense for which he was convicted, the length of his service in government, that this is his first offense, and the fact that no damage was caused to the government.The submission of Remolona that his alleged extrajudicial confession is inadmissible because he was not assisted by counsel during the investigation as required under Section 12 paragraphs 1 and 3, Article III of the 1987 Constitution deserves scant considerationThe right to counsel under Section 12 of the Bill of Rights is meant to protect a suspect in a criminal case under custodial investigation. Custodial investigation is the stage where the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect who had been taken into custody by the police to carry out a process of interrogation that lends itself to elicit incriminating statements. It is when questions are initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. The right to counsel attaches only upon the start of such investigation. Therefore, the exclusionary rule under paragraph (2), Section 12 of the Bill of Rights applies only to admissions made in a criminal investigation but not to those made in an administrative investigation.xli[12]While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of the respondent's capacity to represent himself, and no duty rests on such body to furnish the person being investigated with counsel. In an administrative proceeding, a respondent has the option of engaging the services of counsel or not. This is clear from the provisions of Section 32, Article VII of Republic Act No. 2260 (otherwise known as the Civil Service Act) and Section 39, paragraph 2, Rule XIV (on discipline) of the Omnibus Rules Implementing Book V of Executive Order No. 292 (otherwise known as the Administrative Code of 1987). Thus, the right to counsel is not always imperative in administrative investigations because such inquiries are conducted merely to

determine whether there are facts that merit disciplinary measure against erring public officers and employees, with the purpose of maintaining the dignity of government service. As such, the hearing conducted by the investigating authority is not part of a criminal prosecution.xlii[13]In the case at bar, Remolona was not accused of any crime in the investigation conducted by the CSC field office. The investigation was conducted for the purpose of ascertaining the facts and whether there is a prima facie evidence sufficient to form a belief that an offense cognizable by the CSC has been committed and that Remolona is probably guilty thereof and should be administratively charged. Perforce, the admissions made by Remolona during such investigation may be used as evidence to justify his dismissal.The contention of Remolona that he never executed an extra-judicial admission and that he merely signed a blank form cannot be given credence. Remolona occupies a high position in government as Postmaster at Infanta, Quezon and, as such, he is expected to be circumspect in his actions specially where he is being administratively charged with a grave offense which carries the penalty of dismissal from service.Remolona insists that his dismissal is a violation of his right to due process under Section 2(3), Article XI (B) of the Constitution which provides that “no officer or employee in the Civil Service shall be removed or suspended except for cause.” Although the offense of dishonesty is punishable under the Civil Service law, Remolona opines that such act must have been committed in the performance of his function and duty as Postmaster. Considering that the charge of dishonesty involves the falsification of the certificate of rating of his wife Nery Remolona, the same has no bearing on his office and hence, he is deemed not to have been dismissed for cause. This proposition is untenable.It cannot be denied that dishonesty is considered a grave offense punishable by dismissal for the first offense under Section 23, Rule XIV of the Rules Implementing Book V of Executive Order No. 292. And the rule is that dishonesty, in order to warrant dismissal, need not be committed in the course of the performance of duty by the person charged. The rationale for the rule is that if a government officer or employee is dishonest or is guilty of oppression or grave misconduct, even if said defects of character are not connected with his office, they affect his right to continue in office. The Government cannot tolerate in its service a dishonest official, even if he performs his duties correctly and well, because by reason of his government position, he is given more and ample opportunity to commit acts of dishonesty against his fellow men, even against offices and entities of the government other than the office where he is employed; and by reason of his office, he enjoys and possesses a certain influence and power which renders the victims of his grave misconduct, oppression and dishonesty less disposed and prepared to resist and to counteract his evil acts and actuations. The private life of an employee cannot be segregated from his public life. Dishonesty inevitably reflects on the fitness of the officer or employee to continue in office and the discipline and morale of the service.xliii[14]

The principle is that when an officer or employee is disciplined, the object sought is not the punishment of such officer or employee but the improvement of the public service and the preservation of the public’s faith and confidence in the government.xliv[15]The general rule is that where the findings of the administrative body are amply supported by substantial evidence, such findings are accorded not only respect but also finality, and are binding on this Court.xlv[16] It is not for the reviewing court to weigh the conflicting evidence, determine the credibility of witnesses, or otherwise substitute its own judgment for that of the administrative agency on the sufficiency of evidence.xlvi[17] Thus, when confronted with conflicting versions of factual matters, it is for the administrative agency concerned in the exercise of discretion to determine which party deserves credence on the basis of the evidence received.xlvii[18] The rule, therefore, is that courts of justice will not generally interfere with purely administrative matters which are addressed to the sound discretion of government agencies unless there is a clear showing that the latter acted arbitrarily or with grave abuse of discretion or when they have acted in a capricious and whimsical manner such that their action may amount to an excess of jurisdiction.xlviii[19]We have carefully scrutinized the records of the case below and we find no compelling reason to deviate from the findings of the CSC and the Court of Appeals. The written admission of Remolona is replete with details that could have been known only to him. No ill-motive or bad faith was ever imputed to Director Pasion who conducted the investigation. The presumption that official duty has been regularly performed remains unrebutted.The transmittal of the transcript of stenographic notes taken during the formal hearing before the CSC is entirely a matter of discretion on the part of the Court of Appeals. Revised Administrative Circular No. 1-95 of this Court clearly states that in resolving appeals from quasi-judicial agencies, it is within the discretion of the Court of Appeals to have the original records of the proceedings under review transmitted to it.xlix[20] Verily, the Court of Appeals decided the merits of the case on the bases of the uncontroverted facts and admissions contained in the pleadings filed by the parties.We likewise find no merit in the contention of Remolona that the penalty of dismissal is too harsh considering that there was no damage caused to the government since the certificate of rating was never used to get an appointment for his wife, Nery Remolona. Although no pecuniary damage was incurred by the government, there was still falsification of an official document that constitutes gross dishonesty which cannot be countenanced, considering that he was an accountable officer and occupied a sensitive position.l[21] The Code of Conduct and Ethical Standards for Public Officials and Employees enunciates the State policy of promoting a high standard of ethics and utmost responsibility in the public service.li[22]WHEREFORE, the decision appealed from is hereby AFFIRMED in toto.SO ORDERED.

G.R. No. 96602 November 19, 1991EDUARDO ARROYO, JR., petitioner, vs.COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.G.R. No. 96715 November 19, 1991RUBY VERA-NERI, petitioner, vs.THE PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF APPEALS, respondents.Efren C. Carag for Eduardo C. Arroyo, Jr.Singson, Valdes & Associates for Ruby Vera Neri.

R E S O L U T I O N

FELICIANO, J.:pIn G.R. No. 96602, the Court summarized the facts of the case in this manner:

Dr. Jorge B. Neri filed a criminal complaint for adultery before the Regional Trial Court (RTC), Branch 4, of Benguet against his wife, Ruby Vera Neri, and Eduardo Arroyo committed on 2 November 1982 in the City of Baguio.Both defendants pleaded not guilty and after trial, the RTC convicted petitioner and Mrs. Ruby Vera Neri of adultery as defined under Article 333 of the Revised Penal Code.The essential facts of the case, as found by the trial court and the Court of Appeals, are as follows:

... On November 2, 1982, accused, Mrs. Ruby Vera Neri in the company of Mrs. Linda Sare and witness Jabunan, took the morning plane to Baguio. Arriving at around 11:00 a.m., they dropped first at the house of Mrs. Vera, mother of Ruby Vera at Crystal Cave, Baguio City then proceeded to the Mines View Park Condominium of the Neri spouses. At around 7:00 o' clock in the evening, accused Eduardo Arroyo arrived at the Neris' condominium. Witness opened the door for Arroyo who entered, he went down to and knocked at the master's

bedroom where accused Ruby Vera Neri and her companion Linda Sare were. On accused Ruby Vera Neri's request, Linda Sare left the master's bedroom and went upstairs to the sala leaving the two accused. About forty-five minutes later, Arroyo Jr. came up and told Linda Sare that she could already come down. Three of them, thereafter, went up to the sala then left the condominium. (Court of Appeals Decision, p. 4) 1

Petitioner Arroyo filed a Motion for Reconsideration of the Court of Appeals' Decision. Petitioner Ruby Vera Neri also moved for reconsideration or a new trial, contending that a pardon had been extended by her husband, private complain ant Dr. Jorge B. Neri, and that her husband had later con traded marriage with another woman with whom he is presently co-habiting. Both motions were denied by the Court of Appeals.Petitioner Arroyo filed a Petition for Review (G.R. No. 96602) dated 8 February 1991 which this court denied in a Resolution dated 24 April 1991.In the meantime, petitioner Neri filed a separate Petition for Review (G.R. No. 96715) dated 19 February 1991.Petitioner Arroyo filed a motion for reconsideration dated 1 May 1991 and a motion dated 23 May 1991 for consolidation o G.R. No. 96602 with G.R. No. 96715.On 3 June 1991, G.R. No. 96715 was consolidated with G.R No. 96602 in the Third Division in accordance with long-stand ing practice of the Court.On 29 July 1991, the Third Division deliberated upon the case which was then assigned to the ponente for the writing of the Court's Resolution. 2 On 26 August 1991, Dr. Neri filed a manifestation, dated 14 May 1991, 3 praying that the case against petitioners be dismissed as he had "tacitly consented" to his wife's infidelity. 4 Petitioners then filed their respective motions praying for the dismissal or for the granting of new trial of the case claiming a basis for their motions Dr. Neri's manifestation. The Solicitor General was then asked to comment on the manifestation; hi comment was filed with this Court on 18 October 1991. 5 In October 1991, the consolidated cases were, again in accordance with long-standing practice of the Court, assigned to the First Division upon the assignment of the ponente to that division. On 4 November 1991, the consolidated cases were re deliberated upon by the members of the First Division who reached the same conclusion as the members of the Third Division of the Court.In his Motion for Reconsideration in G.R. No. 96602, petitioner Arroyo made the following contentions:

1. Dr. Neri's affidavit of desistance which states that the case was filed out of "pure misunderstanding' raises questions as to the truth of the alleged admission made by Mrs. Neri;2. The other prosecution witnesses' corroborative testimonies merely proved the existence of an illicit affair but not that adultery was committed on the date and place in question;3. Mrs. Neri's separate petition for review raised the issue of Dr. Neri's alleged subsequent marriage to another woman which, if proven would preclude either of the spouses from filing charges of adultery or concubinage against each other.

In G.R. No. 96715, petitioner Neri imputes the following errors to the Court of Appeals:

1. The Honorable Court of Appeals gravely erred in not granting the motion for reconsideration and/or new trial of the petitioner;2. The Honorable Court of Appeals gravely erred by violating the constitutional rights of petitioner against self-incrimination;3. The Honorable Court of Appeals erred in failing to take into consideration the material inconsistencies of the testimony of the complaining witness; and4. The Honorable Court of Appeals gravely erred in discarding medical testimony as to the physical impossibility of the petitioner to have committed the crime charged. 6

The issues in the consolidated cases may be summarized as follows:

1. Whether or not Dr. Neri's affidavit of desistance is sufficient to cast reasonable doubts on his credibility;2. Whether or not Mrs. Neri's constitutional right against self-incrimination had been violated;3. Whether or not Dr. Neri's alleged extra-marital affair precludes him from filing the criminal complaint on the ground of pari delicto; and4. Whether or not Dr. Neri's manifestation is sufficient basis for the granting of a new trial.

Deliberating on the:1. Motion for Reconsideration in G.R. No. 96602, the Court believes that petitioner Arroyo has failed to show any ground that would warrant the Court reversing its Resolution dated 24 April 1991; and on the2. Petition for Review docketed as G.R. No. 96715, the Court considers that petitioner Ruby Vera Neri has failed to show reversible error on the part of the Court of Appeals in issuing its Decision dated 21 May 1990 and its Resolution, dated 18 December 1990.

Petitioner Arroyo did not convince this Court in G.R. No. 96602 to dismiss the criminal case on the basis of Dr. Neri's pardon. He, together with petitioner Neri, now cites the same affidavit in the effort to cast doubts on the credibility of Dr. Neri's testimony given before the trial court. However, in the Court's Resolution, dated 24 April 1991, dismissing the Petition for certiorari in G.R. No. 96602, the Court held that:

It has been our constant holding that:In certiorari proceedings under Rule 45, the findings of fact of the lower court as well its conclusions on credibility of witnesses are generally not disturbed, the question before the court being limited to questions of law (Rule 45, Sec. 2). Specifically, the conclusions of the trial court on the credibility of witnesses are given considerable weight, since said court is in the best position to observe the demeanor, conduct and attitude of witnesses at the trial. (Aguirre v. People, 155 SCRA 337 [1987]; emphasis supplied)

Thus, the claim that Dr. Neri's testimony is incredible is unavailing at this stage. Besides, the Court does not believe that such an admission by an unfaithful wife was inherently improbable or impossible. 7 (Emphasis supplied)

The Court, in the said Resolution of 24 April 1991, had likewise ruled on the claim that Mrs. Neri's constitutional right against self-incrimination had been disregarded when her admission to her husband in the privacy of their conjugal home that she had indeed lain with petitioner Arroyo was taken into account by the trial court, to wit:

Dr. Jorge Neri was also presented as a witness and he testified that sometime in December of 1982, he surprised his wife while she was looking at some photographs in their bedroom in their house in Dasmariñas Village, Makati. Accused Ruby Vera Neri then turned pale and started for the door. Struck by this unusual behavior, Dr. Neri started looking around the dressing room and he came upon a Kodak envelope with film negatives inside. He took the negatives for printing and a few days later, armed with the photographs which showed his wife in intimate bedroom poses with another man, confronted Ruby Vera Neri. It was at this point that Ruby Vera Neri

admitted to her husband that Eduardo Arroyo was her lover and that they went to bed in Baguio on 2 and 3 November 1982.xxx xxx xxxAs to the constitutional issue, we held in Gamboa v. Cruz (162 SCRA 642 [1988]) that:

The right to counsel attaches upon the start of an investigation, i.e., when the investigating officer starts to ask questions to elicit information and/or confession or admissions from respondent-accused.(emphasis supplied)

In the present case, Dr. Neri was not a peace officer nor an investigating officer conducting a custodial interrogation, hence, petitioner cannot now claim that Mrs. Neri's admission should have been rejected.In the case of Aballe v. People (183 SCRA 196 [1990]), the Court held:

The declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him.The rule is that any person, otherwise competent as witness, who heard the confession, is competent to testify as to substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance.Compliance with the constitutional procedures on custodial investigation is not applicable to a spontaneous statement, not elicited through questioning, but given in an ordinary manner, whereby the accused orally admitted having slain the victim.

We also note that the husband is not precluded under the Rules of Court from testifying against his wife in criminal cases for a crime committed by one against the other (Section 22, Rule 129, Revised Rules of Court).In short, the trial court and the Court of Appeals did not err in admitting Dr. Neri's

testimony as he was a competent witness. Neither was said testimony rendered inadmissible by the constitutional provision on the right to remain silent and the right to counsel of a "person under investigation for the commission of an offense."Petitioner next claims that the trial court erred in convicting him on the basis of the failure of Ruby Vera Neri to take the witness stand. In People v. Gargoles (83 SCRA 282 [1978]), it was held that:

We have held that an accused has the right to decline to testify at the trial without having any inference of guilt drawn from his failure to go on the witness stand. Thus, a verdict of conviction on the basis, solely or mainly, of the failure or refusal of the accused to take the witness stand to deny the charges against him is a judicial heresy which cannot be countenanced. Invariably, any such verdict deserves to be reserved.Such situation does not obtain, however, in the case at bar. For while the trial court took note of the failure of defendant to take the witness stand to deny the charge against him, the same was not the main reason, much less the sole basis, of the trial court in holding, as credible the testimony of complainant, and in ultimately concluding that the crime of rape had been committed by the accused-appellant. (Emphasis supplied)

Examination of the trial court decision here shows that said failure to testify was not the sole nor the main basis of the conviction. Aside from accused's failure to deny Dr. Neri's testimony, the trial court also considered the testimonies of Dr. Neri and other prosecution witnesses and the photographs of the two accused in intimate poses (and three of which showed them half naked in bed). 8 (Emphasis supplied)

We turn to the contention that pari-delicto "is a valid defense to a prosecution for adultery and concubinage and that in

such a case "it would be only a hypocritical pretense for such spouse to appear in court as the offended spouse." 9 In the first place, the case cited does not support petitioner Neri's position. In the Guinucud case, the Court found that the complaining husband, by entering into an agreement with his wife that each of them were to live separately and could marry other persons and by filing complaint only about a year after discovering his wife's infidelity, had "consented to, and acquiesced in, the adulterous relations existing between the accused, and he is, therefore, not authorized by law to institute the criminal proceedings." In fine, the Guinucud case refers not to the notion of pari delicto but to consent as a bar to the institution of the criminal proceedings. In the present case, no such acquiescence can be implied: the accused did not enter into any agreement with Dr. Neri allowing each other to marry or cohabit with other persons; and Dr. Neri promptly filed his complaint after discovering the illicit affair.Moreover, the concept of pari delicto is not found in the Revised Penal Code, but only in Article 1411 of the Civil Code. The Court notes that Article 1411 of the Civil Code relates only to contracts with illegal consideration.10 The case at bar does not involve any illegal contract which either of the contracting parties is now seeking to enforce.Petitioners also contend that Dr. Neri's manifestation which reads:

2. Even before I filed the complaint in court and before the pardon that I had extended to my wife and her co-accused, I was in reality aware of what was going on between and therefore, tacitly consented to my wife's infidelity, ...

should result in the dismissal of the case or, at the very least, in the remand of the case for new trial claiming that in People v. Camara 11 it was held that "the consent of the spouse is valid defense to a prosecution for adultery and/or concubinage." 12 Dr. Neri's manifestation amounts in effect to an attempted recantation of testimony given by him before the trial court. It is settled that not all recantations by witnesses should result in the granting of a new trial. 13 In People v. Follantes and Jacinto, 14 it was held that:

... [R]ecantation by witnesses called on behalf of the prosecution does not necessarily entitle defendant to a new trial. The question whether a new trial shall be granted on this ground depends on all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. ... 15 (Emphasis supplied)

Succinctly put, the Court doubts the truthfulness and reliability of Dr. Neri's belated recantation. Dr. Neri had two (2) previous occasions to make the claim contained in his manifestation: first, in the compromise agreement 16 dated 16 February 1989 submitted before the Regional Trial Court

of Makati, Branch 149 in relation to Civil Case No. M-001; and second, his affidavit 17 dated 23 November 1988 submitted to the Court of Appeals. Instead, however, these two (2) documents merely stated that Dr. Neri had pardoned petitioners 18 and the complaint was filed out of "pure misunderstanding" 19 without hinting that Dr. Neri knew of the adulterous relations. It appears to the Court that Dr. Neri's manifestation was so worded as to attempt to cure the deficiency noted by the Court in the two (2) previous documents in the disposition of the petition in G.R. No. 96602:

Petitioner will find no solace in the cases he cites, in support of his prayer to dismiss the case based on Dr. Neri's pardon. People v. Camara (100 Phil. 1098 (1957) is inapplicable as the affidavit there expressly stated that the wife had consented to the illicit relationship. In Gomez v. Intermediate Appellate Court (135 SCRA 620 [1985]) a case involving estafa, the criminal case was dismissed as the affidavit of desistance specifically stated that the accused had nothing to do whatsoever with the crime charged. In the present case, the pardon did not state that Dr. Neri had consented to the illicit relationship petitioner and Mrs. Neri. Neither did it state that the case was filed against the wrong parties. 20

Moreover, while the manifestation is dated 14 May 1991, which incidentally is also the date of petitioner Arroyo's motion for reconsideration, it was subscribed to only on 23 August 1991.Petitioner Neri also contends that Dr. Neri's affidavit of desistance and the compromise agreement operate as a pardon meriting a new trial. The Court notes that the cases of People v. Camara (supra) and Gomez v. Intermediate Appellate Court (supra) were the very same cases which petitioner Arroyo cited in G.R. No. 96602 which the Court has already held to be inapplicable in the present case.The rule on pardon is found in Article 344 of the Revised Penal Code which provides:

ART. 344. ... — The crime of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse.The offended party cannot institute criminal prosecution without including both parties, if they are both alive, nor in any case, if he shall have consented or pardoned the offenders.xxx xxx xxx

While there is a conceptual difference between consent and pardon in the sense that consent is granted prior to the adulterous act while pardon is given after the illicit affair, 21 nevertheless, for either consent or pardon to benefit the accused, it must be given prior to the filing of a criminal complaint. 22 In the present case, the affidavit of desistance was executed only on 23 November 1988 while the compromise agreement was executed only on 16 February

1989, after the trial court had already rendered its decision dated 17 December 1987 finding petitioners guilty beyond reasonable doubt. Dr. Neri's manifestation is both dated and signed after issuance of our Resolution in G.R. No. 96602 on 24 April 1991.It should also be noted that while Article 344 of the Revise Penal Code provides that the crime of adultery cannot be prosecuted without the offended spouse's complaint, once the complaint has been filed, the control of the case passes to the public prosecutor. 23 Enforcement of our law on adultery is not exclusively, nor even principally, a matter of vindication of the private honor of the offended spouse; much less is it a matter merely of personal or social hypocrisy. Such enforcement relates, more importantly, to protection of the basic social institutions of marriage and the family in the preservation of which the State has the strongest interest; the public policy here involved is of the most fundamental kind. In Article II, Section 12 of the Constitution there is set forth the following basic state policy:

The State recognizes the sanctity of family life and shall protect find strengthen the family as a basic autonomous social institution ...

The same sentiment has been expressed in the Family Code o the Philippines in Article 149:

The family, being the foundation of the ration, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect.

In U.S. v. Topiño, 24 the Court held that:... The husband being the head of the family and the only person who could institute the prosecution and control its effects, it is quite clear that the principal object in penalizing the offense by the state was to protect the purity of the family and the honor of the husband, but now the conduct of the prosecution, after it is once commenced by the husband, and the enforcement of the penalties imposed is also a matter of public policy in which the Government is vitally interested to the extent of preserving the public peace and providing for the general welfare of the community. ... 25 (Emphasis supplied)

As to the claim that it was impossible for petitioner Neri to engage in sexual intercourse a month after her ceasarian operation, the Court agrees with the Solicitor General that this is a question of fact which cannot be raised at this stage. In any case, we find no reason to overturn the Court of Appeals' finding that "a woman who has the staying power to volley tennis bags for fifteen minutes at the [John Hay] tennis court would not be incapable of doing the sexual act" which ball play was followed, as noted by the Court of Appeals "by a picture taking of both accused in different intimate poses." 26

ACCORDINGLY, the Motion for Reconsideration in G.R. No. 96602 is hereby DENIED for lack of merit and this denial is FINAL. The Petition for Review in G.R. No. 96715 is hereby similarly DENIED for lack of merit. Costs against petitioners.Let a copy of this Resolution and of Dr. Neri's Manifestation and Motion subscribed on 23 August 1991 be forwarded to the Department of Justice for inquiry into the possible liability of Dr. Neri for perjury.G.R. No. 144293 December 4, 2002JOSUE R. LADIANA, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O NPANGANIBAN, J.:The Constitution bars the admission in evidence of any statement extracted by the police from the accused without the assistance of competent and independent counsel during a custodial investigation. However, a counter-affidavit voluntarily presented by the accused during the preliminary investigation, even if made without the assistance of counsel, may be used as evidence against the affiant.

The CaseBefore us is a Petition for Review under Rule 45 of the Rules of Court, assailing the April 10, 2000 Decision1 and August 4, 2000 Resolution2 of the Sandiganbayan (First Division) in Criminal Case No. 16988. The dispositive portion of the assailed Decision reads as follows:"WHEREFORE, judgment is hereby rendered finding accused JOSUE R. LADIANA GUILTY beyond reasonable doubt of the crime of homicide and, in the absence of any modifying circumstance, sentencing the said accused to: (a) suffer an indeterminate sentence of imprisonment of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum[;] (b) suffer all the appropriate accessory penalties consequent thereto; (c) indemnify the heirs of the victim, Francisco San Juan, in the total amount of Fifty Six Thousand Five Hundred Pesos (P56,500.00); and (d) pay the costs."3

The assailed Resolution denied petitioner’s Motion for Reconsideration.Petitioner was originally charged with murder before the Sandiganbayan in an Information4 dated August 5, 1991. However, the anti-graft court issued an Order5 dated October 14, 1991, noting that "besides the allegation that the crime was allegedly committed by the accused while he was ‘taking advantage of his official position,’ nothing else is in the Information to indicate this fact so that, as the Information stands, nothing except a conclusion of fact exists to vest jurisdiction [in] this Court over the accused and over the crime for which he is charged."Further, the Order gave the government sufficient time to amend the Information to show adequate facts to vest the Sandiganbayan with jurisdiction over the case. Subsequently, an Amended Information,6 still charging petitioner with murder, was filed on April 1, 1992. The accusatory portion reads as follows:"That on or about the 29th day of December 1989, in the Municipality of Lumban, Laguna, Philippines, and within the jurisdiction of this Honorable Court, the above-named

accused, a public officer, being then a member of the Integrated National Police (INP now PNP) assigned at the Lumban Police Station, Lumban, Laguna, acting in relation to his duty which is primarily to enforce peace and order within his jurisdiction, taking advantage of his official position confronted Francisco San Juan why the latter was removing the steel pipes which were previously placed to serve as barricade to prevent the entry of vehicles along P. Jacinto Street, Barangay Salac, Lumban, Laguna, purposely to insure the safety of persons passing along the said street and when Francisco San Juan told the accused that the latter has no business in stopping him, said accused who was armed with a firearm, with intent to kill and with treachery, did then and there willfully, unlawfully and feloniously attack and sho[o]t Francisco San Juan with the firearm hitting Francisco San Juan at his head and neck inflicting upon him fatal wounds thereby causing the death of Francisco San Juan."7

During his arraignment on May 8, 1992, petitioner, assisted by his counsel de parte,8 pled not guilty.9 After due trial, the Sandiganbayan found him guilty of homicide, not murder.

The FactsIn their Memoranda, both the prosecution and the defense substantially relied upon the Sandiganbayan’s narration of the facts as follows:"The prosecution presented five (5) witnesses, namely: Caridad M. San Juan, PO2 Leopoldo Cacalda, Dr. Rogelio M. Javan, SPO2 Percival A. Gabinete, and Maria T. Cortez. Their respective testimonies, in essence are as follows, to wit:

"1. CARIDAD MARGALLO SAN JUAN (hereinafter, ‘Caridad’) declared that she is the wife of Francisco San Juan (hereinafter ‘Francisco’), the victim in the case at bar. Caridad testified that Francisco was the Barangay Captain of Barangay Salac, Lumban, Laguna, until he was shot and killed by accused Ladiana, who happens to be also a distant relative of the decedent.

"Caridad recounted that, on December 29, 1989, she was in her house when an unidentified woman came and told her that her husband was killed by accused Ladiana. She immediately called up her sister-in-law before rushing to Jacinto Street where the gruesome incident allegedly transpired. Thereat, many people were milling around, and Caridad saw the lifeless body of Francisco lying in the middle of the road and being examined by [SPO2] Percival A. Gabinete."Caridad recalled that it was around 11:00 o’clock a.m. when she reached the place of the subject incident. At that point in time, she was not even allowed by the police to touch, much less get near to, the cadaver of Francisco. Caridad, expectedly, was crying and one of her aunts advised her to go home."Caridad maintained that she was aware that her husband was killed by accused Ladiana because this was what the woman

actually told her. Moreover, accused Ladiana had given himself up to the police authorities."Caridad went on to narrate that, on December 30, 1989, she was at the police station, where she gave her written statement before police investigator PFC Virgilio Halili (hereinafter, ‘Halili’)."Additionally, Caridad presented the Death Certificate of her husband and testified that he was eventually buried at the Lumban Cemetery. She declared that she had incurred about Twenty Thousand Pesos (P20,000.00) for the funeral, burial and other incidental expenses by reason of the death of Francisco."On cross-examination, Caridad testified that, on December 29, 1989, she was in her house and that she did not hear any gunshot between 10:30 and 11:00 o’clock a.m. Caridad also admitted she did not witness the killing of her husband."On questions propounded by the Court, Caridad narrated that her husband suffered two gunshot wounds - one on the upper right temple and the other on the left cheek. However, Caridad stated that she was told that the wounds were the entry and the exit points. She also told the Court that her husband was wearing short pants at the time of his death and that she found some bruises on his knees."Finally, Caridad recalled that, on the date of the incident, her husband was with his close friend, a certain Rodolfo Cabrera, and some other persons, and that they went to Jacinto Street to repair the steel humps which were used to block the street during school days for the protection and safety of the school children.

"2. PO2 LEOPOLDO DE RAMOS CACALDA, JR. (hereinafter, ‘CACALDA’) declared that he is a policeman assigned at the Lumban Police Station in Lumban, Laguna. He has been designated as the radio operator of the station since 1989.

"Cacalda recounted that, on December 29, 1989, at around 11:00 o’clock a.m., somebody, whose name he could no longer recall, reported to him about an existing trouble along Jacinto Street in Barangay Salac Cacalda responded by going to the scene, where he was accompanied by Alberto Mercado, a member of the CAGFIL. Thereat, Cacalda saw the lifeless body of Francisco lying face up on the road. Cacalda did not examine the body of Francisco. He left the place of the incident when [SPO2] Percival A. Gabinete and other policemen subsequently arrived.

"Cacalda had gathered from the people milling around the body of Francisco that it was accused Ladiana who shot and killed Francisco. Cacalda immediately left to look for accused Ladiana. However, he eventually saw accused Ladiana already inside the jail of the police station and thereafter learned that said accused had surrendered to the police authority."Cacalda recalled that he was later on investigated by Halili because he was the responding policeman who went to the scene of the incident. Consequently, Cacalda executed a written statement in relation to the subject incident."On cross-examination, Cacalda testified that he was a radio operator and not an investigator of the police station. He also testified that he did not witness the incident subject matter of the case at bar."Cacalda went on to testify that the people milling around the place of the incident told him that accused Ladiana had already left. Because of this development, Cacalda proceeded to accused Ladiana’a house but was told that he had already gone to the police station. Cacalda accordingly went to the police station where he saw accused Ladiana already locked inside the jail. He also saw a stab wound on accused Ladiana’s right bicep but he did not anymore ask him how he sustained the said injury.

"3. DR. ROGELIO JAVAN y MAGRACIA (hereinafter, ‘Javan’) declared that he is a physician and the Municipal Health Officer of Lumban, Laguna.

"Javan recounted that he was the one who performed the necropsy on the cadaver of Francisco and that he had prepared the corresponding reports and/or documents relating thereto. Javan made a sketch representing the anterior and posterior views of the body of Francisco, and labeled and placed red markings on the gunshot wounds found on the said cadaver. The marking ‘Gunshot wound A’ is the point of entry, which is one (1) centimeter in diameter and situated two (2) inches behind the left ear. The marking ‘Gunshot wound B’ is the point of exit of ‘Gunshot wound A’, which is two (2) centimeters in diameter and found above the right cheekbone and one (1) inch below the right eye. Javan also testified that there is another gunshot wound and the point of entry and exit are labeled as ‘Gunshot wound C’ and ‘Gunshot wound D’, respectively. ‘Gunshot wound D’ is one and one-half (1-1/2) centimeters in diameter and located at the left cheek, three and

one-half (3-1/2) centimeters below the left eye, while ‘Gunshot wound C’ is one (1) centimeter in diameter and found at the right lateral aspect of the neck, at the level of the adam’s apple."According to Javan, the assailant must be behind the victim when he inflicted ‘Gunshot wound A’. As regards ‘Gunshot wound C’, the assailant likewise must be behind the victim, at a distance of more than twenty-four (24) inches away."Lastly, Javan testified that he was not able to retrieve any bullet during the examination. However, judging from the size of the wound and the point of entry, Javan opined that the firearm used was probably a caliber 38."On questions propounded by the Court, Javan testified that ‘Gunshot wound A’ could have been fired first because the trajectory is on the same level so much so that the assailant and the victim could have been both standing. Javan inferred that ‘Gunshot wound C’ could have been inflicted while the victim was already falling down. Javan then stressed that both wounds are fatal in nature.

"4. SPO2 PERCIVAL AMBROSIO GABINETE (hereinafter, ‘Gabinete’) declared that he is a police officer and a resident of No. 4055 Villa Josefina Subdivision, Sta. Cruz, Laguna.

"The testimony of Gabinete was subsequently dispensed with, upon the admission of the defense that he was part of the group of policemen who proceeded to the place of the subject incident and that he found the body of Francisco lying along the road. Additionally, the defense admitted the existence of the receipt issued by Funeraria de Mesa dated January 3, 1990 in the sum of Six Thousand Five Hundred Pesos (P6,500.00).

"5. MARIO TALAVERA CORTEZ (hereinafter, ‘Cortez’) declared that he is a retired Assistant Prosecutor of Laguna.

"Prior to the conduct of the examination-in-chief on Cortez, the defense counsel made an admission as to the authorship, authenticity, and voluntariness of the execution of the counter-affidavit of accused Ladiana, which was subscribed and sworn to before Cortez. In said counter-affidavit, accused Ladiana allegedly admitted to making the fatal shots on Francisco. However, accused Ladiana allegedly did so in self-defense as Francisco was then purportedly attacking accused Ladiana and had, in fact, already inflicted a stab wound on the arm of accused Ladiana.

"However, Cortez emphasized that he was not the one who conducted the preliminary investigation of the complaint which led to the filing of the subject case. Additionally, Cortez testified that he would not be able to anymore recognize the face of the affiant in the said counter-affidavit, but maintained that there was a person who appeared and identified himself as Josue Ladiana before he affixed his signature on the counter-affidavit."After the presentation of Cortez, the prosecution filed its formal offer of evidence and rested its case."On May 31, 1995, this Court issued a resolution admitting all the documentary evidence submitted by the prosecution."On August 20, 1996, accused Ladiana filed a Motion for Leave of Court to File Demurrer to Evidence dated August 16, 1995, claiming that: (i) a review of the documentary and testimonial evidence adduced by the prosecution allegedly failed to show that the accused is guilty of the offense charged; (ii) at best, the evidence submitted by the prosecution are allegedly hearsay in character, considering that the supposed eyewitness in the person of Rodolfo Cabrera was never presented in court; and (iii) the prosecution was allegedly merely able to prove the fact of death of the victim, but not the identity of the person who caused said death."On August 23, 1996, this Court issued an Order of even date holding that the filing of a demurrer to evidence is no longer appropriate considering that accused Ladiana received a copy of this Court’s resolution dated May 31, 1995 on the admission of the prosecution’s documentary exhibits as early as May 25, 1995."On September 2, 1996, in view of his perception that the evidence submitted by the prosecution is allegedly inadequate to sustain a conviction, accused Ladiana, through counsel, waived his right to present controverting evidence. Instead, he asked for time to file a written memorandum. Thus, both parties were given time within which to do so, after which the case shall be deemed submitted for resolution."Thereafter, this Court received on October 25, 1996 by mail the Memorandum for the defense. As for the prosecution, it opted not to file any."10 (Citations omitted)

Ruling of the SandiganbayanThe Sandiganbayan ruled that the prosecution had been able to establish the guilt of petitioner beyond reasonable doubt.

The court a quo held that his Counter-Affidavit,11 in which he had admitted to having fired the fatal shots that caused the victim’s death,12 may be used as evidence against him. It underscored the admission made by the defense as to the authorship, the authenticity and the voluntariness of the execution of the Counter-Affidavit.13 In short, it ruled that the document had sufficiently established his responsibility for the death of the victim. However, it found no evidence of treachery; thus, it convicted him of homicide only.14

Hence, this Petition.15

IssuesIn his Memorandum, petitioner raises the following issues for this Court’s consideration:

"I. Whether or not the Sandiganbayan may convict the accused-petitioner beyond reasonable doubt of the crime of homicide even in the absence of any eyewitness who personally saw the sho[o]ting of the victim by the accused, basing it only on the testimony of the prosecutor who had administered the oath on the Counter-affidavit filed by petitioner-accused."II. Whether or not the prosecution has presented proof beyond reasonable doubt to overcome the constitutional presumption of innocence of the accused and his right against self-incrimination on the basis of the Counter-affidavit whose execution was admitted by the counsel of the petitioner, but not by the accused personally."III. Whether or not the Counter-affidavit of the accused-petitioner which was considered by the Sandiganbayan in its decision as similar to an extrajudicial confession may [be] admitted against him as evidenc[e] of guilt beyond reasonable doubt even if he was not assi[s]ted then by counsel and while he was under custodial investigation."IV. Whether or not the Sandiganbayan is constitutionally and legally correct in issuing the Order of August 23, 1996 denying the Motion for Leave of Court to File Demurrer to Evidence dated August 16, 1995 filed by the accused in accordance with Sec. 15 of Rule 120 of the 1985 Rules on Criminal Procedure in relation to Rule XXI of the Revised Rules of Sandiganbayan."V. Whether or not accused is entitled to the mitigating circumstance of voluntary surrender which fact was admitted by the prosecution as it even used the same as proof of the guilt of the accused."16

In short, petitioner raises the following questions in this appeal: (1) whether the Counter-Affidavit he executed during the preliminary investigation of this case is admissible proof showing his complicity in the crime, (2) whether the Sandiganbayan erred in denying his Motion for Leave to File a Demurrer to Evidence, and (3) whether he is entitled to the mitigating circumstance of voluntary surrender.

This Court’s RulingThe Petition is not meritorious.

First Issue:Admissibility of Counter-Affidavit

Undeniably, the resolution of this case hinges mainly on the admissibility of the Counter-Affidavit17 submitted by petitioner during the preliminary investigation. He argues that no counsel was present when the Affidavit was executed. In support of his argument, he cites the Constitution thus:"SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

x x x x x x x x x(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him."18

It is well-settled that the foregoing legal formalities required by the fundamental law of the land apply only to extra-judicial confessions or admissions obtained during custodial investigations.19 Indeed, the rights enumerated in the constitutional provision "exist only in custodial interrogations, or in-custody interrogation of accused persons."20

Custodial interrogation is the questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.21

In the present case, petitioner admits that the questioned statements were made during the preliminary investigation, not during the custodial investigation. However, he argues that the right to competent and independent counsel also applies during preliminary investigations.We disagree. A preliminary investigation is an inquiry or a proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed, and that the respondent is probably guilty thereof and should be held for trial.22

Evidently, a person undergoing preliminary investigation before the public prosecutor cannot be considered as being under custodial investigation. In fact, this Court has unequivocally declared that a defendant on trial or under preliminary investigation is not under custodial interrogation.23 It explained as follows:

"His [accused] interrogation by the police, if any there had been would already have been ended at the time of the filing of the criminal case in court (or the public prosecutor’s office). Hence, with respect to a defendant in a criminal case already pending in court (or the public prosecutor’s office), there is no occasion to speak of his right while under ‘custodial interrogation’ laid down by the second and subsequent sentences of Section 20, Article IV of the 1973 Constitution [now Section 12, Article III of the 1987 Constitution], for the obvious reason that he is no longer under ‘custodial interrogation.’"24

There is no question that even in the absence of counsel, the admissions made by petitioner in his Counter-Affidavit are not violative of his constitutional rights. It is clear from the undisputed facts that it was not exacted by the police while he was under custody or interrogation. Hence, the

constitutional rights of a person under custodial investigation as embodied in Article III, Section 12 of the 1987 Constitution, are not at issue in this case.However, the accused -- whether in court or undergoing preliminary investigation before the public prosecutor -- unquestionably possess rights that must be safeguarded. These include: 1) the right to refuse to be made witnesses; 2) the right not to have any prejudice whatsoever imputed to them by such refusal; 3) the right to testify on their own behalf, subject to cross-examination by the prosecution; and 4) while testifying, the right to refuse to answer a specific question that tends to incriminate them for some crime other than that for which they are being prosecuted.25

We do not, however, agree with the Sandiganbayan’s characterization of petitioner’s Counter-Affidavit as an extrajudicial confession. It is only an admission. Sections 26 and 33 of Rule 130 of the Revised Rules on Evidence distinguish one from the other as follows:"SEC. 26. Admissions of a party. – The act, declaration or omission of a party as to a relevant fact may be given in evidence against him."SEC. 33. Confession. – The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him."In a confession, there is an acknowledgment of guilt; in an admission, there is merely a statement of fact not directly involving an acknowledgment of guilt or of the criminal intent to commit the offense with which one is charged.26 Thus, in the case at bar, a statement by the accused admitting the commission of the act charged against him but denying that it was done with criminal intent is an admission, not a confession.27

The Counter-Affidavit in question contains an admission that petitioner actually shot the victim when the latter was attacking him. We quote the pertinent portion:"[K]aya itong si Kapitan San Juan ay sumugod at hinawakan ako sa may leeg ng aking suot na T-shirt upang ako ay muling saksakin; sa dahilang hindi ako makatakbo o makaiwas sa kabila ng aking pananalag hanggang magpaputok ako ng pasumala sa kanya; sa bilis ng pangyayari ay hindi ko alam na siya ay tinamaan;"28

Through the above statement, petitioner admits shooting the victim -- which eventually led to the latter’s death -- but denies having done it with any criminal intent. In fact, he claims he did it in self-defense. Nevertheless, whether categorized as a confession or as an admission, it is admissible in evidence against him.Further, we do not doubt the voluntariness of the Counter-Affidavit. Petitioner himself submitted it to the public prosecutor to justify his actions in relation to the charges hurled against him. It escapes this Court how he can cavalierly deny a document that he has voluntarily submitted and originally relied upon in his defense.In general, admissions may be rebutted by confessing their untruth or by showing they were made by mistake. The party may also establish that the response that formed the admission was made in a jocular, not a serious, manner; or that the admission was made in ignorance of the true state of

facts.29 Yet, petitioner never offered any rationalization why such admissions had been made, thus, leaving them unrebutted. In addition, admissions made under oath, as in the case at bar, are evidence of great weight against the declarant. They throw on him the burden of showing a mistake.30

Petitioner contends that nowhere in the transcripts of this case can it be found that he has admitted to the authorship, the authenticity or the voluntariness of the Counter-Affidavit. We quote verbatim the proceedings in the Sandiganbayan:

"PJ GARCHITORENAWell, he will identify the person who took the oath before him. Will you deny that it was your client who took the oath before the Fiscal at the preliminary investigation?ATTY. ILAGANWe will admit that, your Honor.PJ GARCHITORENASo in that case we will have no question about the authorship, authenticity and the voluntariness of the execution of the counter-affidavit dated July 31, 1990? Companiero?ATTY ILAGANAdmitted, your Honor."31

The admissions of petitioner made through his counsel cannot be any clearer. To be sure, the unbroken stream of judicial dicta is that, in the conduct of their case, clients are bound by the actions of their counsels, save when the latter’s negligence is so gross, reckless and inexcusable that the former are deprived of their day in court.32 Also, clients, being bound by the actions of their counsels, cannot complain that the result of the litigation might have been different had their lawyers proceeded differently.33 A counsel may err as to the competency of witnesses, the sufficiency and the relevance of evidence, the proper defense, the burden of proof, the introduction or the withholding of witnesses or pieces of evidence, or the manner of arguing the case. This Court, however, has ruled several times that those are not even proper grounds for a new trial, unless the counsel’s incompetence is so gross that the clients are prevented from fairly presenting their case.34

Having admitted that he had fatally shot the victim, petitioner had the duty of showing that the killing was justified, and that the latter incurred no criminal liability therefor.35 Petitioner should have relied on the strength of his own evidence and not on the weakness of that for the prosecution. Even if his evidence be weak, it cannot be disbelieved after the accused has admitted the killing.36

Petitioner argues that it was the prosecution that indirectly raised the issue of self-defense. Hence, he could not be bound by it. This argument deserves scant consideration. As discussed earlier, the declarations contained in his Counter-Affidavit are admissions that may be used as evidence against him.37 The Sandiganbayan did not unfairly presume that he had indeed raised the theory of self-defense, because this argument had already been laid out in his Counter-Affidavit. No presumption was necessary, because the admission was clear and unequivocal.

Neither do we believe petitioner’s claim that the anti-graft court "miserably failed to give equal effect or treatment to all the allegations found therein (Counter-Affidavit) choosing deliberately and without reasonable basis the parts which are incriminating in character, and ignoring without sufficient legal basis the exculpatory assertions of the accused."38

The unsubstantiated and uncorroborated statements of petitioner in his Counter-Affidavit are utterly insufficient to discharge his burden of proving that the act of killing was justified. It is hornbook doctrine that self-defense must be proved with certainty by sufficient, satisfactory and convincing evidence that excludes any vestige of criminal aggression on the part of the person invoking it.39 It cannot be entertained if it is uncorroborated by any separate and competent evidence, and it is also doubtful.40 The question whether the accused acted in self-defense is essentially a question of fact properly evaluated by the lower court; in this case, the Sandiganbayan.41

By itself, the Counter-Affidavit miserably fails to establish the requisites of self-defense enumerated in the law.42 Had petitioner been more vigilant in protecting his rights, he could have presented clear and cogent evidence to prove those elements. But, as found by the court a quo, he not only failed to discharge the burden of proving the existence of the justifying circumstance of self-defense; he did not even bother to present any evidence at all.43 So, we do not see how the Sandiganbayan could have been selective in its treatment of his Counter-Affidavit.Verily, if the accused fails to discharge the burden of proving the existence of self-defense or of any other circumstance that eliminates criminal liability, his conviction shall of necessity follow, on the basis of his admission of the killing.44 Upholding this principle does not in any way violate his right to be presumed innocent until proven guilty. When he admitted to having killed the victim, the burden of proving his innocence fell on him. It became his duty to establish by clear and convincing evidence the lawful justification for the killing.Therefore, petitioner can no longer invoke his constitutional right to be presumed innocent of the crime charged.45 As far as he is concerned, homicide has already been established. The fact of death and its cause were established by his admissions coupled with the other prosecution evidence including the Certificate of Death,46 the Certificate of Post-Mortem Examination47 and the Medico-Legal Findings.48 The intent to kill is likewise presumed from the fact of death.49

Second Issue:Denial of Motion for Leave to File Demurrer Petitioner then argues that the Sandiganbayan erred in not giving due course to his Motion for Leave to File Demurrer to Evidence. He brands this denial as legally and constitutionally wrong.50

We disagree. Prior leave to file a demurrer to evidence is discretionary upon the trial court.51 And, unless there is grave abuse amounting to lack or excess of jurisdiction in its denial, the trial court’s resolution may not be disturbed.52

Final Issue:Voluntary Surrender

After vigorously arguing against his own Counter-Affidavit, petitioner, in a surprising change of tenor, implores this Court

to consider his voluntary surrender to the police authorities as a mitigating circumstance. He argues that two of the prosecution witnesses testified that he had surrendered to the police authorities after the shooting incident.53 To buttress his argument, he contends that the "main reason for his voluntary surrender is that he sincerely believe[d] that he was legally justified in defending himself as a policeman when he fought the victim after he was attacked by the latter."54 It goes without saying that this statement only reaffirms the admissions contained in his Counter-Affidavit, which he so vehemently tried to discredit.For voluntary surrender to mitigate criminal liability, the following elements must concur: 1) the offender has not been actually arrested, 2) the offender surrenders himself to a person in authority or to the latter’s agent, and 3) the surrender is voluntary.55 To be sufficient, the surrender must be spontaneous and made in a manner clearly indicating the intent of the accused to surrender unconditionally, either because they acknowledge their guilt or wish to save the authorities the trouble and the expense that will necessarily be incurred in searching for and capturing them.56

The only pieces of evidence in support of the plea of voluntary surrender made by petitioner are statements made by two (2) prosecution witnesses that they were allegedly told by other people that he had already gone to the police station. There is no showing that he was not actually arrested; or that when he went to the police station, he surrendered himself to a person in authority. Neither is there any finding that he has evinced a desire to own to any complicity in the killing.1âwphi1We have ruled in the past that the accused who had gone to the police headquarters merely to report the shooting incident did not evince any desire to admit responsibility for the killing. Thus, he could not be deemed to have voluntarily surrendered.57 In the absence of sufficient and convincing proof showing the existence of indispensable circumstances, we cannot appreciate voluntary surrender to mitigate petitioner’s penalty.WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution AFFIRMED. Costs against petitioner.SO ORDERED.

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