Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-20046 March 27, 1968

ROMEO PAYLAGO and ROSARIO DIMAANDAL, petitioners,

vs.
INES PASTRANA JARABE and THE HONORABLE COURT OF APPEALS, respondents.

M. de la Cruz for petitioners.

M.G. Garcia for respondents.

REYES J.B.L.,:

This is an appeal by certiorari from the decision of the Court of Appeals affirming the lower
court's decision in the case of Romeo Paylago, et al. vs. Ines Pastrana Jarabe, CA-G.R. No. 25031-
R, promulgated on June 6, 1962. (Civil Case No. R-709 of the Court of First Instance of Oriental
Mindoro).

The entire lot involved in this suit was originally covered by Homestead Patent issued on June
7, 1920 under Act No. 926 and later under OCT No. 251 of the Registry of Deeds of Mindoro, issued
on June 22, 1920 in the name of Anselmo Lacatan. On May 17, 1948, after the death of Anselmo
Lacatan, TCT No. T-728 (which cancelled OCT No. 251) was issued in the name his two sons and
heirs, Vidal and Florentino Lacatan. Vidal Lacatan died on August 27, 1950.

On March 23, 1953, Vidal Lacatan's heirs, namely, Maximo, Tomas and Lucia Lacatan,
executed a deed of sale (Exh. C) in favor of the spouses Romeo Paylago and Rosario Dimaandal,
plaintiffs-petitioners herein, over a portion of the entire lot under TCT No. T-728, which portion is
described as follows:

North Provincial Road;

East Property of Romeo Paylago;
South Property of Florentino Lacatan;
West Provincial Road (Nabuslot-Batingan);

containing an area of 3.9500 hectares.

On October 6, 1953, Florentino Lacatan also died, leaving as his heirs his widow and three
children, Felipe, Rosita and Florencia Lacatan. On December 31, 1953, the said children of
Florentino Lacatan likewise executed a deed of sale (Exh. D) in favor of the same vendees over
another portion of the same lot described as follows:

North Provincial Road (Calapan-Pinamalayan);

East Heirs of Sotero Mongo;
South Aniceta Lolong;
West Heirs of Vidal Lacatan;
 with an area of 2.8408 hectares.

On March 2, 1954, by virtue of the registration of the two deeds of sale (Exhs. C and D), a new
TCT No. T-4208 covering the total area of
6.7908 hectares was issued in favor of plaintiffs-petitioners, the Paylago spouses. A subsequent
subdivision survey for the purpose of segregating the two aforementioned portions of land described
in the deeds (Exhs. C and D) as well as in the new TCT No. T-4208, however, disclosed that a
portion (one half hectare) of the total area purchased by plaintiffs-petitioners and indicated in the
sketch Exh. B at a point marked Exh. B-1 was being occupied by defendant-respondent. Hence, the
action to recover possession and ownership of the said portion.

Vis-a-vis the foregoing undisputed facts, the trial court and the Court of Appeals found that a
portion of land in question which is described as follows:

North Provincial Road;

East Apolonio Lacatan;
South Anselmo Lacatan;
West Valentin Lastica;

and with an area of one half hectare is indicated in the sketch of subdivision plan marked Exh.
B-1 of Exh. B; that on November 27, 1938, the said portion of land was purchased by Hilario Jarabe,
late husband of defendant-respondent, from one Apolonio Lacatan, which sale is evidenced by an
unregistered deed of sale (Exh. 6); that Apolonio Lacatan, in turn, bought the same in 1936 from
Anselmo Lacatan, the original registered owner in whose favor OCT No. 251 and later TCT No. T-
4208 were issued; that the first deed of sale, also unregistered, executed by Anselmo Lacatan in
favor of Apolonio Lacatan was lost during the Japanese occupation; that the herein defendant-
respondent has been in possession of the said portion continuously, publicly, peacefully and
adversely as owner thereof from 1938 up to the present; and, that the herein plaintiffs-petitioners
knew, nay, admitted in a deed of lease, paragraph 3 (Exh. 4), that defendant-respondent has been in
possession of the premises since 1945.

After trial, the lower court held that plaintiffs-petitioners were not purchasers in good faith and,
accordingly, rendered judgment in favor of defendant-respondent, declaring the latter as owner of
the land in question with the right to retain possession of the same. The decision was affirmed in
toto by the Court of Appeals.

From the evidence adduced by the parties evolved the issue: Who has a better right in case of
double sale of real property, the registered buyer or the prior but unregistered purchaser?

This Court has formulated in no uncertain terms the general principle governing the matter: as
between two purchasers, the one who has registered the sale in his favor, in good faith, has a
preferred right over the other who has not registered his title, even if the latter is in the actual
possession of the immovable property (Mendiola v. Pacalda, 10 Phil. 705; Veguillas v. Jaucian, 25
Phil. 315; Po Sun Tun v. Price, 54 Phil. 192). Indeed, the foregoing principle finds concrete bases in
the pertinent provisions of the New Civil Code, Article 1544, providing that if the same immovable
property should have been sold to different vendees, "the ownership shall belong to the person
acquiring it who in good faith first recorded it in the registry of property."

There is no question that the sales made in favor of plaintiffs-petitioners were registered while
the alleged sale executed in favor of defendant-respondent was not. Applying the foregoing principle
of law to the instant case, it is now contended by plaintiffs-petitioners that their certificate of title must
prevail over defendant-respondent, and that the courts below correspondingly committed error in
deciding the case to the contrary.

But there is more than meets the eye in the case at bar. While plaintiffs-petitioners have a
registered title, it cannot be denied that their acquisition and subsequent registration were tainted
with the vitiating element of bad faith. It was so found by both the Court of First Instance and the
Court of Appeals, and their finding is conclusive upon us. Thus, in Evangelista vs. Montao, 93 Phil.
275, 279, this Court ruled:

Both the Court of First Instance and the Court of Appeals absolved the defendants,
having found and declared after weighing the evidence that the plaintiff, was not a purchaser
in good faith. That this conclusion is a finding of fact and, being a finding of fact, not subject
to review, is too plain to admit of argument.

Both Courts below found that petitioners knew beforehand that the parcel of land in question
was owned by defendant-respondent. 1wph1.t

In its decision the Court of Appeals declared that "plaintiffs herein were aware of that peaceful,
continuous and adverse possession of defendant since 1945, because this fact is admitted by said
plaintiffs in a deed of lease, paragraph 3 (Exhibit 4) covering a portion of the entire lot, and situated
just across the road from the land in question." (Dec., C. App., p. 4).

Considering that the boundaries of the lands that the petitioners Paylago purchased in 1953
and 1954 were well defined, they must have known that the portion occupied by the defendant-
respondent under claim of ownership and leased to them by the latter was included in the
description. And coupled with their knowledge that defendant-respondent purchased the same from
Apolonio Lacatan, plaintiffs-petitioners should have inquired and made an investigation as to the
possible defects of the title of the Lacatan heirs over the entire lot sold to them, granting that the
latter's certificate of title was clear. This, they failed to do. They cannot now claim complete
ignorance of defendant-respondent's claim over the property. As was well stated in one case, "a
purchaser who has knowledge of facts which should put him upon inquiry and investigation as to
possible defects of the title of the vendor and fails to make such inquiry and investigation, cannot
claim that he is a purchaser in good faith and has acquired a valid title thereto". (Sampilo vs. Court of
Appeals, 55 O.G. No. 30, p. 5772). To the same effect is the following doctrine laid down by the
Supreme Court in the case of Leung Yee v. F.L. Strong Machinery Co. & Williamson, 37 Phil. 644.
Said the Court:

One who purchases real estate with knowledge of a defect or lack of title in his vendor
cannot claim that he has acquired title thereto in good faith, as against the true owner of the
land or of an interest therein; and the same rule must be applied to one who has knowledge
of facts which should have put him upon such inquiry and investigation as might be
necessary to acquaint him with the defects of the title of his vendor. A purchaser cannot
close his eyes to facts which should put a reasonable man upon his guard and then claims
that he acted in good faith under the belief that there was no defect in the title of the vendor.
His mere refusal to believe that such defect exists, or his willful closing of his eyes to the
possibility of the existence of a defect in his vendor's title, will not make him an innocent
purchaser for value, if it afterwards develops that the title was defective, and it appears that
he had such notice of the defect as would have led to its discovery had he acted with that
measure of precaution which may reasonably be required of a prudent man in a like
situation.
 The fundamental premise of the preferential rights established by Article 1544 of the New Civil
Code is good faith (Bernas v. Bolo, 81 Phil. 16). To be entitled to the priority, the second vendee
must not only show prior recording of his deed of conveyance or possession of the property sold, but
must, above all, have acted in good faith, that is to say, without knowledge of the existence of
another alienation by his vendor to a stranger (Obras Pias v. Ignacio, 17 Phil. 45; Leung Yee v. F.L.
Strong Machinery Co., et al., op. cit.; Emas v. De Zuzuarregui, et al., 53 Phil. 197). Short of this
qualifying circumstance, the mantle of legal protection and the consequential guarantee of
indefeasibility of title to the registered property will not in any way shelter the recording purchaser
against known and just claims of a prior though unregistered buyer. Verily, it is now settled
jurisprudence that knowledge of a prior transfer of a registered property by a subsequent purchaser
makes him a purchaser in bad faith and his knowledge of such transfer vitiates his title acquired by
virtue of the later instrument of conveyance which was registered in the Registry of Deeds (Ignacio v.
Chua Hong, 52 Phil. 940; Gustilo, et al. v. Maravilla, 48 Phil. 442; Ramos, et al. v. Dueno, et al., 50
Phil. 786). The registration of the later instrument creates no right as against the first purchaser. For
the rights secured under the provisions of Article 1544 of the New Civil Code to the one of the two
purchasers of the same real estate, who has secured and inscribed his title thereto in the Registry of
Deeds, do not accrue, as already mentioned, unless such inscription is done in good faith (Leung
Yee v. F.L. Strong Machinery Co., et al., op. cit.). To hold otherwise would reduce the Torrens system
to a shield for the commission of fraud (Gustilo, et al. v. Maravilla, op. cit.).

Plaintiffs-petitioners cited the case of Bacolod-Murcia Milling Co., Inc. v. De la Rama, et al.,
G.R. No. L-4526 September 1959, to disprove bad faith ascribed to them. But the citation does not fit
with the facts of the present case. It is to be noted that the second purchaser in the De la Rama case
had no knowledge of the previous sale and possession of the first purchaser at the time he (second
purchaser) acquired the property involved therein. "(T)here is nothing in the complaint which may in
any way indicate that he knew such possession and encumbrance when he bought the property
from its owner." Plaintiffs-petitioners in the instant case, however, had knowledge of defendant-
respondent's claim of ownership over the land in question long before they purchased the same from
the Lacatan heirs. They were even told, as previously intimated, that defendant-respondent bought
the land from Apolonio Lacatan. Thus, it could easily be distinguished that the second purchaser in
the De la Rama case acted with good faith, i.e., without knowledge of the anterior sale and claim of
ownership of the first vendee, whereas, plaintiffs-petitioners herein acted with manifest bad faith in
buying the land in question, all the while knowing that defendant-respondent owns the same. Such
knowledge of defendant-respondent's ownership of the land is more than enough to overthrow the
presumption of good faith created by law in favor of plaintiffs-petitioners. This being the case, we
cannot just close our eyes and blindly stamp our approval on the argument of plaintiffs-petitioners
that they have the better right simply because their title is registered and as such is indefeasible.

Plaintiffs-petitioners also contend that the identity of the land in question has not been
established. Again, we disagree. Evidence of record, both oral and documentary, unequivocally
show that the said portion of land can be identified and segregated, and has been in fact identified
and segregated (Exh. B-1), from the entire lot covered by TCT No. T-4208 (Exh- A) issued in the
names of plaintiffs-petitioners. The boundaries of the same have been clearly indicated as that
planted by madre cacao trees. Even the surveyor hired by plaintiffs-petitioners was able to fix the
said boundaries in such a manner as to definitely and accurately segregate the premises from the
adjoining property. How could plaintiffs-petitioners now argue that the land has not been identified
when the Supreme Court itself says that what really defines a piece of land is not the area
mentioned in the description but the boundaries (Sanchez v. Director of Lands, 63 Phil. 378; Buizer
v. Cabrera, etc., 81 Phil. 669; Bayot v. Director of Lands, 98 Phil. 935)? Besides, the area has been
also established as one-half hectare.

Another collateral question raised by plaintiffs-petitioners is the admission by the courts a

quo of secondary evidence to establish the contents of the first unregistered deed of sale executed
by Anselmo Lacatan in favor of Apolonio Lacatan when the loss or destruction of the original
document, according to them, has not been established. Again, the findings of the Court of Appeals
destroy this assertion of petitioners (Dec., p. 5):

Undeniably the alleged unregistered document could no longer be examined by the

parties in court, because it was lost but its original, however, upon, the trial court's
findings which we have no reason to question has been sufficiently proved as having
existed.

As observed by this Supreme Court, "the destruction of the instrument may be proved by any
person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by
any one who has made, in the judgment of the court, a sufficient examination of the place or places
where the document or papers of similar character are kept by the person in whose custody the
document lost was, and has been unable to find it; or has made any other investigation which is
sufficient to satisfy the court that the instrument is indeed lost." (Michael & Co. v. Enriquez, 33 Phil.
87). And "it is not even necessary to prove its loss beyond all possibility of mistake. A reasonable
probability of its loss is sufficient, and this may be shown by a bona fide and diligent search,
fruitlessly made, for it in places where it is likely to be found." (Government of P.I. v. Martinez, 44
Phil. 817). And after proving the due execution and delivery of the document, together with the fact
that the same has been lost or destroyed, its contents may be proved, among others, by the
recollection of witnesses (Vaguillas v. Jaucian, 25 Phil. 315).

Finding that the facts and the law support the same, it is our opinion, and so hold, that the
appealed decision should be, as it is hereby affirmed. Costs against petitioners spouses Paylago
and Dimaandal.

Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.

1wph1.t
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-28482 January 30, 1971

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JUAN BRIOSO and MARIANO TAEZA, defendants-appellants.

Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Frine' C. Zaballero and
Solicitor Rosalio A. de Leon for plaintiff-appellee.

Cirilo F. Asprilla, Jr., as counsel de oficio for defendants-appellants.

REYES, J.B.L., J.:

Appeal from a judgment of the Court of First Instance of Abra, in its Criminal Case No. 626, finding
the two appellants Juan Brioso and Mariano Taeza guilty of murder, and sentencing each to suffer
life imprisonment and to indemnify, jointly and severally, the heirs of Silvino Daria in the sum of
P6,000.00 but without subsidiary imprisonment in case of insolvency, and to pay the costs.

An information filed by the Provincial Fiscal dated 16 January 1967 charged the two accused, Juan
Brioso and Mariano Taeza, with the crime of murder under Article 248 of the Revised Penal Code,
committed as follows:

That on or about the 23rd day of December, 1966, in the Municipality of Tayum,
Province of Abra, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with firearms of different calibers, by confederating
and mutually helping one another, with deliberate intent to kill and without justifiable
motive, with treachery and evident premeditation, did then and there willfully,
unlawfully and feloniously, assault, attack and shot one, Silvino Daria, inflicting upon
him multiple gunshot wounds on the different parts of his body, which wounds
caused his death thereafter.
 CONTRARY TO LAW, with the aggravating circumstances in the commission of the
crime, to wit: (a) treachery and evident premeditation; (b) advantage was taken of
superior strength; and (c) with the use of firearm.

The records of the case show that on 23 December 1966, between 8 and 9 in the evening, the
spouses Silvino Daria and Susana Tumalip were in their house at barrio Tiker, Tayum, Abra. The
husband was making rope in the annex of their house, while the wife, four meters away, was
applying candle wax to a flat iron. Silvino Daria was using a lamp where he worked. Outside, the
night was bright because of the moon overhead.

Cecilia Bernal, a niece and neighbor of the spouses, was alarmed by the barking of dogs. She
peeped through a crack in the wall of her house and saw appellants herein pass southward in the
direction of the house of Silvino Daria that was six meters away. Brioso was carrying a long gun. Her
suspicions awakened, she went downstairs and, shielded by the fence, witnessed each appellant
point a gun at the bamboo wall of Daria's house. Two detonations followed, and thereafter she heard
Daria moaning and his wife call for help, saying her husband had been shot. Bernal went to the
house and found the victim prostrate, wounded and unable to speak. The widow, however, testified
that right after being shot, she rushed to her husband's side and he told her that he was shot by
Juan Brioso and Mariano Taeza. Silvino Daria expired one hour later as a result of gunshot wounds
in the abdomen and leg. A few days later, Cecilia Bernal and the widow, Susana Tumalip, executed
affidavits pointing to the two accused as the killers (Exhibits "B" and "C," respectively).

The cause of the death of Silvino Daria was "Shock due to severe hemorrhage secondary to gunshot
wounds at the abdomen and leg," as found by Dr. Isabelo B. Lucas, Municipal Health Officer of
Tayum, Abra, contained in his Medico-Legal Necropsy Report, Exhibit "A".

The motive for the killing appears to have been the disapproval by the spouses Silvino and Susana
Daria of Mariano Taeza's courtship of their daughter, Angelita. Angelita was even sent to Manila for
her to avoid Mariano Taeza. The courtship is admitted by Mariano Taeza.

The two accused appealed the conviction and assigned the following errors as committed by the
court a quo:

1. The lower court erred in relying on the uncorroborated and contradictory testimony
and statement of the prosecution witness Cecilia Bernal on the physical identity of
the accused;

2. The lower court erred in disregarding the affidavit (Exhibit 2) of Antonio Daria, son
of the deceased, clearing the accused Mariano Taeza, which affidavit had been
identified in court by the fiscal before whom the same was executed; and

3. The lower court erred in finding the accused guilty of the crime of murder.

The assigned errors are discussed together, being closely inter-related.

We find no discrepancy in the testimony of Cecilia Bernal on the material points. She stated that she
did not see Mariano Taeza carry a gun when both the accused passed by. But this brief observation
does not necessarily mean that he was not actually armed or carrying a gun on his person. The fact
that he did was proved when both the said accused were seen pointing their respective gun at the
victim and each subsequently fired once at him, Taeza using a short weapon (t.s.n. Millare, page 17)
that could have been carried concealed in his person.

The house of Cecilia Bernal was only six meters away from that of Silvino Daria's. The night was
brightly illuminated by the moon. Cecilia Bernal had known both accused for a long time and it is
admitted that they also know her. There could have been no difficulty in identifying the accused
under the circumstances.

Cecilia Bernal had no motive to impute falsely this heinous charge of murder against the above-said
accused, considering that Mariano Taeza is a nephew of the deceased by a first degree cousin.
Even Juan Brioso specifically said that he knew of no reason why she should testify against him.
Hence, her statement that she came to court only to tell the truth should be believed. The witness
also stated that she was hard of hearing and could not understand some of the questions; thus, the
alleged inconsistencies in her testimony do not detract from the "positive and
straightforward"1 identification of the accused as the ones who were seen at the scene of the crime and
who actually shot Silvino Daria.

It is noteworthy that the trial judge observed witness Bernal closely, warning her several times not to
exaggerate, yet in the decision gave her full credence, being obviously satisfied of her
truthfulness. The general rule, based on logic and experience, is that the findings of the judge who
lwph1.t

tried the case and heard the witnesses are not disturbed on appeal, unless there are substantial
facts and circumstances which have been overlooked and which, if properly considered, might affect
the result of the case,2 which in this case have not been shown to exist.

Moreover, the testimony of Cecilia Bernal finds corroboration in the declaration of the victim, who
told his wife that it was Juan Brioso and Mariano Taeza who shot him. This statement does satisfy
the requirements of an ante mortem statement. Judged by the nature and extent of his wounds,
Silvino Daria must have realized the seriousness of his condition, and it can be safely inferred that
he made the same under the consciousness of impending death,3 considering that he died only one
hour after being shot.

The defense of both the accused is alibi. Mariano Taeza's own account was that in the evening of 23
December 1966 he was at the barrio clinic of Tiker playing the guitar with Antonio Daria (son of the
deceased), Narciso Valera and Jose Cabais. While in the said place, they heard two gun explosions.
Soon afterwards, Macrino Arzadon and Taurino Flores came running towards them, informing
Antonio Daria that his father was already dead.

Exhibit "2," the alleged affidavit of Antonio Daria, was presented in court to corroborate Mariano
Taeza's testimony. But while the said affidavit was identified by the Provincial Fiscal as having been
subscribed and sworn to before him, he also stated that he did not know Antonio Daria personally
and that was the only time he appeared before him. Exhibit "2" does not have the seal of the Fiscal's
Office. Moreover, the said exhibit was never identified by the supposed affiant and there was no
opportunity for the prosecution to cross-examine him. As stated in People vs. Mariquina 4, affidavits
are generally not prepared by the affiants themselves but by another who uses his own language in
writing the affiants' statements, which may thus be either committed or misunderstood by the one writing
them. For this reason, and for the further reason that the adverse party is deprived of the opportunity to
cross-examine the affiants, affidavits are generally rejected in a judicial proceeding as hearsay, unless the
affiants themselves are placed on the witness stand to testify thereon. In view hereof, We find Exhibit "2"
of no probative value, and that the lower court did not err when it rejected the same. In this connection, it
is markworthy that the prosecuting attorney stated in open court that Antonio Daria had also executed
another affidavit (Exhibit "D") in the Fiscal's office "to the effect that he went to the office of defense
counsel, ...... and there affixed his thumbmark on a statement that was never read to him." Be that as it
may, not one of the other persons who, Mariano Taeza claimed, were with him in the barrio clinic (Narciso
Valera and Jose Cabais) was produced in court to support his alibi. Mariano Taeza's testimony, therefore,
remains uncorroborated. It has been repeatedly held that in the face of direct evidence, alibi is necessarily
a weak defense and becomes more so if uncorroborated. 5 It is worse if the alibi could have been
corroborated by other persons mentioned by the accused but they are not presented. 6

By Mariano Taeza's own admission, he and the other accused, Juan Brioso, are close friends. It was
shown that Mariano Taeza's house is only about two hundred meters from that of Silvino Daria's and
that the barrio clinic is only about eighty to one hundred meters from the said victim's place. Mariano
Taeza himself stated that Silvino Daria died "may be less than thirty minutes, may be five minutes"
after his arrival at the victim's house with the latter's son and other persons. As held in another case
7 the defense of alibi is so weak that in order to be believed there should be a demonstration of
physical impossibility for the accused to have been at the scene of the crime at the time of its
commission. Mariano Taeza was so near the victim's house that it was easy for him to be there when
the shooting occurred.

The other accused, Juan Brioso, stated that he was in sitio Catungawan, barrio Basbasa, Tayum, on
23 December 1966. He was there upon invitation of his first cousin, Nestorio Flores, to cut and mill
sugar cane. He left his house in Addamay at 8 in the morning of the said day, arriving in Catungawan
before the noon meal. They cut sugar cane from 4 to 5 in the afternoon. At 6:30, after supper, he, his
cousin, and the latter's son, Felix Flores, started milling the sugar cane which they had cut. The
milling lasted up to 2 in the early morning of the following day. He never left the place where they
were milling. He learned of the death of Silvino Daria only when he returned to Addamay because
his parents informed him of the news. He admitted knowing Cecilia Bernal and that she likewise
knows him.

He denied being a close friend of Mariano Taeza (thereby contradicting Mariano Taeza's testimony) 8;
denied that he had gone to the house of Angelita Daria, and his having knowledge of the courtship of
Angelita by Mariano Taeza; or that both of them used to drink and go out together. On cross-examination,
however, he admitted that he went with Mariano Taeza when they attended dances. One such occasion
was during the birthday of his first degree cousin in Addamay way back in 1965.

Nestorio Flores was presented to corroborate the alibi of the accused. But while both exhibited
wonderful memory as to what happened between sunset and midnight of 23 December 1966, they
contradict each other as to what happened in the earlier hours or events. As already stated, Juan
Brioso testified that he left his place in Addamay at 8 in the morning and arrived at his cousin's
house before the noon meal of 23 December 1966; but Nestorio Flores asserted that it was 8 in the
morning when Juan Brioso arrived. Brioso claimed that they cut sugar cane from 4 to 5 in the
afternoon of the said day. His cousin testified that they cut sugar cane in the morning after Brioso's
arrival until lunchtime. Brioso stated that they milled sugar cane for the third time in that place in
1966, the first occasion being on 29 November, and the second on 8 December. Flores denied this,
saying that they did not cut sugar cane in November, 1966, although in other years they did. He
further stated that it was already in December of that year that Brioso came. In fact, the same
witness showed uncertainty as to the exact date, when he answered even on direct examination that
"may be that was the time when he came."9 In cases of positive identification of the culprit by reliable
witnesses, it has been held that the defense of alibi must be established by "full, clear and satisfactory
evidence." 10 It is obvious that this witness, who is a close relative of the accused, was merely presented
in court in an attempt to save Juan Brioso from punishment for the crime committed. We believe the trial
court when it found that the witness has an interest in the fate of the accused Juan Brioso, and, therefore,
his testimony should not be given credence.

Evidence also shows that from Tiker to Catungawan is only about nine kilometers and only a two-
hour walk. The place is also accessible by motor transportation, although motor vehicles are
allegedly rare in the said place. As in the case of Mariano Taeza, it was not physically impossible for
Juan Brioso to be at the locus criminis at the time the crime was committed.

It has been clearly and sufficiently proved that the killing of Silvino Daria was qualified by treachery
(alevosia)." 11The victim was quietly making rope in his own house. He was caught off-guard and
defenseless when suddenly and unexpectedly the two accused fired at him. He had no chance either to
evade or repel the aggression. The trial court correctly held that treachery absorbs nocturnity and abuse
of superior strength. 12 But while these aggravating circumstances are always included in the qualifying
circumstance of treachery, the commission of the crime in the victim's dwelling is not, 13 hence the crime is
murder attended by one aggravating circumstance, which has been held to be present where the victim
was shot inside his house although the triggerman was outside. 14 There being no mitigating circumstance
to offset it, the apposite penalty is death. However, for lack of sufficient votes, the penalty imposable is
reduced to life imprisonment.

WHEREFORE, the sentence under appeal is affirmed, with the sole modification that the amount of
the indemnity is increased to P12,000.00. 15

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Villamor and Makasiar,
JJ., concur.

Barredo, J., took no part.

Footnotes

1 Page 5, Decision.

2 People vs. Pareja, G.R. No. L-21937, 29 November 1969, 20 SCRA 693.

3 People vs. De Gracia, G.R. No. L-21419, 29 September 1966, 18 SCRA 197.

4 Editor's Note: No corresponding footnote in the original.

5 Editor's Note: No corresponding footnote in the original.

6 People vs. Mendoza, L-7030, 31 Jan. 1957, cited in People vs. Alcantara, supra.

7 People vs. Alcantara, supra.

8 Page 62, t.s.n., Hearing of 19 September 1967.

9 Page 90, t.s.n., Hearing of 19 September 1967.

 10 US vs. Pascua, No. 869, 16 January 1903, 1 Phil. 631, and other cases, cited in
People vs. Alcantara, supra; See also People vs. Marquez, G.R. Nos. L-24373-74,
28 November 1969, 30 SCRA 442.

11 Art. 14, paragraph 16 of the Revised Penal Code.

12 People vs. de Gracia, supra, citing US vs. Estopia, No. 9411, 29 September 1914,
28 Phil. 97.

13 People vs. Ruzol, et al., L-8699, 26 December 1956, 100 Phil. 537; See also
People vs. Manobo, L-19798, 20 September 1966, 18 SCRA 30.

14 People vs. Ompad, L-23513, 31 January 1969, 26 SCRA 750.

15 People vs. Casillar, L-28132, 25 November 1969, 30 SCRA 352, citing People vs.
Pantoja,
L-18793, 11 October 1968, 25 SCRA 468.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 113779-80 February 23, 1995

ALVIN TUASON y OCHOA, petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

PUNO, J.:

The first duty of the prosecution is not to prove the crime but to prove the identity of the criminal. For
even if the commission of the crime can be established, without proof of identity of the criminal
beyond reasonable doubt there can be no conviction. In the case at bench, the identification of the
petitioner cannot rest on an assured conscience. We rule that petitioner is entitled to a mandatory
acquittal.

Petitioner Alvin Tuason y Ochoa, John Doe, Peter Doe, and Richard Doe were charged before the
Regional Trial Court of Quezon City 1 with Robbery 2 (Article 294, paragraph 5 of the Revised penal
Code) and Carnapping 3 (republic Act No. 6539).

Of the four (4) accused, only petitioner was apprehended. The other three (3) are still at-large.

Upon arraignment, petitioner pleaded not guilty to both charges and was tried.

We come to the facts.

Complainant CIPRIANA F. TORRES is a public school teacher of Kaligayahan Elementary School,

Novaliches. Her work requires her to leave her maid, JOVINA MADARAOG TORRES, alone in her
house at Block 45, Lot 28, Lagro Subdivision, Novaliches, Quezon City. Her husband is in Australia
while her children go to school.

The incident transpired at around 8:45 in the morning of July 19, 1988. Somebody knocked at the
gate of the Torres residence pretending to buy ice. As the maid Madaraog handed the ice to the
buyer, one of the robbers jumped over the fence, poked a gun at her, covered her mouth, and
opened the gate of their house. 4 The ice buyer and his companions barged in. Numbering four (4), they
pushed her inside Torres' house and demanded the keys to the car and the safety vault. 5 She told them
she did not know where the keys were hidden. 6 They tied up her hands and dragged her to the second
floor of the house. Petitioner was allegedly left downstairs as their lookout. 7

On order of the accused, Madaraog sat on Torres' bed, her body facing the bedroom door with her
back on the vault. They also gagged her mouth and ransacked Torres' room. One of the accused
stumbled upon a box containing keys. They used the keys to open drawers and in the process found
the car key. Petitioner was then summoned upstairs and given the car key. He tried it on the car and
succeeded in starting its engine.

In twenty (20) minutes, accused were able to loot the vault and other valuable items in the house.
They then tied Madaraog's hands and feet to the bed's headboard and escaped using Torres' car.

Still gripped with fear, Madaraog loosened her ties with her fingers, hopped to the stairs and cried for
help. 8 Her neighbor Semia Quintal responded and untied her. They also sought the help of Angelina
Garcia, another neighbor. It was Garcia who informed Torres that her house was burglarized.

Torres reported the robbery to the police authorities at Fairview, Quezon City and the National
Bureau of Investigation (NBI). On July 25, 1988, Madaraog and Quintal described the physical
features of the four (4) robbers before the NBI cartographer. One of those drawn by the artist was a
person with a large mole between his eyebrows. 9 On August 30, 1988, petitioner was arrested by the
NBI agents. The next day, at the NBI headquarters, he was pointed to by Madaraog and the other
prosecution witnesses as one of the perpetrators of the crimes at bench.

SEMIA QUINTAL 10 averred that she saw petitioner allegedly among the three (3) men whiling away their
time in front of Alabang's store some time before the crimes were committed. Quintal is a neighboring
maid.
MARY BARBIETO 11 likewise declared that she saw petitioner allegedly with several companions
standing-by at Torres' house that morning of July 19, 1988. She is a teacher and lives within the block
where the crimes were committed.

Petitioner ALVIN TUASON, 12 on the other hand, anchored his defense on alibi and insufficient
identification by the prosecution. he has lived within the neighborhood of the Torres family since 1978. He
averred that on July 19, 1988, he was mixing dough and rushing cake orders from 7:00 o'clock in the
morning till 1:00 o'clock in the afternoon at his sisters' TipTop bakeshop in Antipolo Street, Tondo, Manila.
It takes him two (2) hours to commute daily from Lagro, Novaliches to Tondo.

He was arrested more than one (1) month after the robbery. On August 30, 1988 at about 8:00
o'clock in the evening, he was in their house watching a basketball game on T.V. and went out to buy
a cigarette. On his way back, a person accosted him and asked his name. After he identified
himself, 13 a gun was poked at his right side, a shot was fired upward, and five (5) men swooped on him
without any warrant of arrest. He asked them if he could wear t-shirt as he was naked from waist up. They
refused. They turned out to be NBI agents of one of whom a certain Atty. Harwin who lived in Lagro,
Novaliches. He was shoved into the car and brought to the NBI headquarters. 14 He was surprised when
an NBI agent, whose identity was unknown to him, pointed to him as one of the suspects in the robbery in
the presence of Madaraog and the other prosecution witnesses.

Petitioner's sister ANGELI TUASON, 15 part-owner of TipTop Bakeshop corroborated his story. She
testified that on July 17, 1988 she asked her sister Mary Ann to remind petitioner to work early on July 19,
1988 since Mondays, Tuesdays, and Wednesdays are busy days as she caters to schools.

The trial court in a Joint Decision convicted petitioner of the crimes charged and sentenced him as
follows:

xxx xxx xxx

In Q-88-396 (carnapping) or an indeterminate term of SEVENTEEN (17) YEARS and

FOUR (4) MONTHS as minimum and TWENTY (20) YEARS as maximum; and in Q-
88-397 (robbery) for a term of ONE (1) YEAR, SEVEN (7) MONTHS and ELEVEN
(11) DAYS as minimum and TWO (2) YEARS, TEN (10) MONTHS and TWENTY (20)
DAYS as maximum.

On the civil aspect, the court hereby orders Alvin Tuason y Ochoa as follows:

1. In Q-88-396 (carnapping) to return to Mrs. Cipriana Torres and her husband the
carnapped Toyota Corona Sedan, Model 1980 with Plate No. NPZ 159 or to pay its
value of P180,000.00 which the court finds to be the reasonable value of the said
car; and

2. In Q-88-397 (robbery) to return to Mrs. Cipriana Torres and her husband the stolen
items mentioned in the information filed in said case and hereinabove stated or pay
the corresponding values thereon or a total of P280,550.00 which the court finds to
be the reasonable values.

The civil liability is joint and solidary with the co-conspirators of accused Alvin
Tuason.
 In case of appeal, the bail bonds are fixed at TWO HUNDRED EIGHTY THOUSAND
PESOS (P280,000.00) fro criminal case No. Q-88-396 and ONE HUNDRED
THOUSAND PESOS (P100,000.00) for criminal case No. Q-88-397.

Costs against the accused.

SO ORDERED. 16

Petitioner appealed to respondent Court of Appeals. On December 16, 1993, the Eleventh Division
of the appellate court gave no credence to
the exculpatory allegations of petitioner and affirmed in toto the assailed Decisions. 17 On February 4,
1994, petitioner's Motion for Reconsideration was denied for lack of merit. 18

In this petition for certiorari, petitioner contends that respondent appellate court erred:

A.

[I]N WRONGLY APPLYING TO THE CASE AT BAR THE PRINCIPLE THAT

FINDINGS OF TRIAL COURTS ARE GENERALLY NOT DISTURBED ON APPEAL,
PARTICULARLY CONSIDERING THAT THE FINDINGS OF THE TRIAL COURT IN
THIS CASE ARE BASED ON CERTAIN REFUTABLE REASONS EXPRESSLY
STATED IN ITS DECISION.

B.

[I]N WRONGLY APPLYING TO THE TESTIMONY OF HEREIN PETITIONER THE

CONCEPT AND ATTENDING INFIRMITY OF "SELF-SERVING EVIDENCE."

C.

[I]N WRONGLY APPLYING TO THE TESTIMONY OF HEREIN PETITIONER THE

CONCEPT AND ATTENDING INFIRMITY OF "NEGATIVE EVIDENCE."

D.

[F]OR IGNORING OR DISREGARDING THE GLARING AND FATAL INFIRMITIES

OF THE TESTIMONIES OF PROSECUTION WITNESSES, SPECIALLY AS
IDENTIFICATION, AS WELL AS TO THE PALPABLE IMPROBABILITY OF HEREIN
PETITIONER HAVING BEEN A SUPPOSED PARTICIPANT IN THE OFFENSES
CHARGED, THE ERROR BEING TANTAMOUNT TO GROSS MISAPPREHENSION
OF THE RECORD.

E.

[I]N AFFIRMING THE CLEARLY REVERSIBLE DECISION OF THE TRIAL COURT.

We reverse.
Time and again, this Court has held that evidence to be believed, must proceed not only from the
mouth of a credible witness but the same must be credible in itself. 19 The trial court and respondent
appellate court relied mainly on the testimony of prosecution witness Madaraog that from her vantage
position near the door of the bedroom she clearly saw how petitioner allegedly participated in the robbery.
After a careful review of the evidence, we find that the identification of petitioner made by Madaraog and
Quintal is open to doubt and cannot serve as a basis for conviction of petitioner.

Firstly, it must be emphasized that of the four (4) prosecution witnesses, only the maid Madaraog
actually saw petitioner in the act of committing the crimes at bench. Witnesses Quintal and Barbieto
testified they only saw petitioner at the vicinity of the crimes before they happened. There is,
however, a serious doubt whether Madaraog and Quintal have correctly identified petitioner. At the
NBI headquarters, Madaraog described petitioner as 5'3" tall and with a big mole between his
eyebrows. 20 While Quintal also described petitioner as 5'3" and with a black mole between his
eyebrows. 21 On the basis of their description, the NBI cartographer made a drawing of petitioner showing
a dominant mole between his eyes. 22 As it turned out, petitioner has no mole but only a scar between his
eyes. Moreover, he is 5'8 1/2" and not 5'3" tall. There is a big difference between a mole and a scar. A
scar is a mark left in the skin by a new connective tissue that replaces tissue injured. 23 On the other hand,
a mole is a small often pigmented spot or protuberance on the skin. 24 If indeed Madaraog and Quintal
had a good look at petitioner during the robbery, they could not have erroneously described petitioner.
Worthy to note, petitioner was not wearing any mask in the occasion. Madaraog's attempt to explain her
erroneous description does not at all convince, viz.:

xxx xxx xxx

Q We come now to the third person "iyong namang isa ay mga 28 o

29 ang edad, mga 5'2" o 5'3" ang taas, payat, medyo kulot ang
buhok at maiksi at mayroong malaking bilog na nunal sa pagitan ng
kilay sa noo. Mahaba at malantik ang pilikmata," who is that?

Interpreter: Witness referring to Exhibit "J-3."

Q Madam witness where is that round mole that appears in the two
eyebrows of the person?

A It is probably the cartographer that made a mistake.

Q I am referring to you now Exhibit "J". I call your attention to that

black rounded figure at the middle of the bridge of the nose between
the two eyebrows, what was that represent?

A A mole, sir. 25

xxx xxx xxx

Q Among the four drawings prepared by the cartographer section of

the NBI, you will agree ith me Madam Witness that it is only
on Exhibit "J" when that rounded mole appear?

A No sir, it is the third one. 26

 xxx xxx xxx

Q You did not call the attention of the NBI that the third one whom
you just identified as Exhibit "J-3" did not bear that rounded mole as
mentioned by you, did you?

A I did not remember.

Q Why did you not remember having called the attention of the NBI to
that deficiency in the drawing?

A I was not able to call the attention of the NBI (sic) because there
were four of us who made the description. 27

Secondly, the trial court and the respondent appellate court unduly minimized the importance of this
glaring discrepancy in the identification of the petitioner. The trial court resorted to wild guesswork. It
ruled:

xxx xxx xxx

[T]he court has observed that Alvin has a prominent scar in between his two (2)
eyebrows. It is not within the realm of improbability that Alvin covered up that scar
with a black coloring to make it appear that he has a "nunal" which was therefore the
one described by Jovina and, which reinforces her testimony that she had a good
eye view of Alvin from the start of the robbery to its conclusion. 28

This is a grave error. The trial court cannot convict petitioner on the basis of a deduction that
is irrational because it is not derived from an established fact. The records do not show any
fact from which the trial court can logically deduce the conclusion that petitioner covered up
his scar with black coloring to make it appear as a mole. Such an illogical reasoning cannot
constitute evidence of guilt beyond reasonable doubt. This palpable error was perpetrated by
respondent appellate court when it relied on the theory that this "fact" should not be
disturbed on appeal because the trial court had a better opportunity to observe the behavior
of the prosecution witnesses during the hearing. This is a misapplication of the rule in
calibrating the credibility of witnesses. The subject finding of the trial court was not based on
the demeanor of any witnesses which it had a better opportunity to observe. Rather, it was a
mere surmise, an illogical one at that. By no means can it be categorized as a fact properly
established by evidence.

And thirdly, corroborating witness Barbieto has serious lapses in her testimony that diluted her
credibility, thus:

xxx xxx xxx

Q I am showing to you Exhibit "M" and please point to this Honorable

Court that portion where the accused (Alvin Tuason) allegedly asked
from you the price of that plastic pack of ice.

A I did not state it in my statement.

 Q Why did you say a moment ago that you place it there
(Sinumpaang Salaysay)?

A But that is the truth, sir.

Q I am not asking you the truth or falsehood . . . I am only asking you

why you said a moment ago that the portion of your testimony now is
incorporated in Exhibit "M".

A [B]ecause they asked the price of the ice. 29

xxx xxx xxx

Q After reading Exhibit "M", did you or did you not call the attention of
the investigator that some of your narrations were not incorporated
therein?

A No, I did not because he did not ask me.

Q [Y]ou did not come forward to volunteer that some portions of your
narration were not incorporated therein?

A [T]he investigator knew it.

Q You mean to tell the Honorable Court that after reading Exhibit "M",
the NBI investigator knew that there were some lapses or omissions
in your statement?

A It's up to the investigator. 30

Barbieto is a school teacher and the kind of excuses she proffered does not enhance her credibility.
However, she and Quintal merely testified they saw petitioner within the vicinity where the crimes
were committed. By itself, this circumstance cannot lead to the conclusion that petitioner truly
committed the crimes at bench. Petitioner, we note, lives in the same vicinity as the victim. To use his
words, he lives some six (6) posts from the house of Torres. His presence in the said vicinity is thus
not unnatural.

The doubtful identification of petitioner was not at all cured by the process followed by the NBI
agents when petitioner was pointed to by Madaraog and the other prosecution witnesses in their
headquarters. Madaraog's identification of petitioner from a line-up at the NBI was not spontaneous
and independent. An NBI agent improperly suggested to them petitioner's person. Petitioner thus
testified:

xxx xxx xxx

Q Mr. Witness (Alvin Tuason) do you know of any reason why these
two witnesses in the persons of Jovina Madaraog Torres and Mary
Barbieto would be testifying in the manner that they did against you?
 A At the NBI, I saw them with the NBI agent. After the agent pointed
at me, later on they also pointed at me. 31

On cross-examination, he declared:

xxx xxx xxx

Q Do you know the reason why they testified and pointed to you as
one of the robbers of July 19, 1988?

A Because when I was at the NBI, the NBI agent pointed at me.

Q Did you see them at the NBI when they pointed at you?

A They were outside a room where there was a glass window.

Q So you can see those persons outside the room?

A Yes, sir.

Q When they pointed you and identified you where there other
person with you when you were lined up during that time?

A In the second line I was in the line-up.

Q When was the first time they pointed you as one of the suspects?

A In the Office of the Chief Unit there, to the third floor of the NBI
building. 32

This damaging testimony of the petitioner was not rebutted by the prosecution. The NBI
agent present during the identification of petitioner was not presented to belie petitioner's
testimony. Consequently, the identification of the petitioner in the NBI headquarters is
seriously flawed. According to writer Wall, the mode of identification other than an
identification parade is a show-up, the presentation of a single suspect to a witness for
purposes of identification. Together with its aggravated forms, it constitutes the most grossly
suggestive identification procedure now or ever used by the police. 33

The respondent appellate court, however, dismissed this claim of petitioner as self-serving. Again,
the ruling misconstrues the meaning of self-serving evidence. Self-serving evidence is not to be
literally taken as evidence that serves one's selfish interest. Under our law of evidence, self-serving
evidence is one made by a party out of court at one time; it does not include a party's testimony as a
witness in court. It is excluded on the same ground as any hearsay evidence, that is the lack of
opportunity for cross-examination by the adverse party, and on the consideration that its admission
would open the door to fraud and to fabrication of testimony. On the other hand, a party's testimony
in court is sworn and affords the other party the opportunity for cross-examination. 34 Clearly,
petitioner's testimony in court on how he was identified by the prosecution witnesses in the NBI
headquarters is not self-serving.
Petitioner's main defense is alibi. He professed that on July 19, 1988 he was mixing dough at TipTop
Bakeshop from 7:00 o'clock in the morning till 1:00 o'clock in the afternoon. With the usual traffic
jam, it takes him two (2) hours to commute from Lagro to Tondo. It was thus physically impossible for
him to be at the locus criminis. He said he learned about the robbery thru his neighbor three (3) days
thereafter. He did not flee. He was arrested by the NBI agents more than one (1) month after the
crimes were perpetrated.

Angeli Tuason's corroborative testimony established that her brother had an eye examination on July
17, 1988 35and she reminded him to work early on July 19, 1988 which he did.

Judges should not at once look with disfavor at the defense of alibi. Alibi should be considered in
light of all the evidence on record for it can tilt the scales of justice in favor of the accused. 36 In
People vs. Omega, 37 we held:

Although alibi is known to be the weakest of all defenses for it is easy to concoct and
difficult to disprove, nevertheless, where the evidence for the prosecution is weak
and betrays lack of concreteness on the question of whether or not the accused
committed the crime charged, the defense of alibi assumes importance.

The case at bench reminds us of the warning that judges seem disposed more readily to credit the
veracity and reliability of eyewitnesses than any amount of contrary evidence by or on behalf of the
accused , whether by way of alibi, insufficient identification, or other testimony. 38 They are unmindful
that in some cases the emotional balance of the eyewitness is disturbed by her experience that her
powers of perception becomes distorted and her identification is frequently more untrustworthy. Into the
identification, enter other motives, not necessarily stimulated originally by the accused
personally the desire to requite a crime, to find a scapegoat, or to support, consciously or
unconsciously, an identification already made by another. 39

IN VIEW THEREOF, the Decision of December 16, 1993 is REVERSED and SET ASIDE and
petitioner Alvin Tuason is ACQUITTED.

SO ORDERED.

Narvasa, C.J., Bidin, Regalado and Mendoza, JJ., concur.

Footnotes

1 Judge Jaime N. Salazar, Jr., Presiding, NCJR, Branch 103.

2 Criminal Case No. Q-88-397, Original Records, pp. 3-5.

3 Criminal Case No. Q-88-396, Original Records, p. 1.

4 T.S.N. March 20, 1989.

5 Id., p. 9.
6 ibid.

7 Id., p. 10.

8 Id., pp. 13-14.

9 Exhibit "J."

10 T.S.N. July 5, 1989, p. 3.

11 T.S.N. September 29, 1989, p. 3, 6-7.

12 Flour-mixer, baker, messenger, thirty-one (31) years old, married, and a resident
of Block 27, Lot 13, Lagro Subdivision, Novaliches, Quezon City, T.S.N. January 29,
1990, p. 3.

13 Id., p. 11.

14 T.S.N. January 29, 1990, pp. 12-14.

15 T.S.N. March 12, 1990, pp. 3, 5.

16 Joint Decision of May 14, 1990, Rollo, p. 56.

17 Abad Santos, Quirino D. Jr., J. ponente, Cui, Emeterio C., and Lagamon, Alfredo
J., JJ., concurring, Rollo, pp. 88-94.

18 Id., p. 105.

19 See People vs. Escalante, G.R. no. 106633, December 1, 1994.

20 Annex "G."

21 Annex "K."

22 Exhibit "J."

23 Webster's Third New International Dictionary, 1970 ed., p. 2025.

24 The Merriam-Webster Dictionary, 1974 ed., p. 452.

25 T.S.N. May 24, 1989, p. 9.

26 Id., p. 10.

27 Id., p. 11.

28 Court of Appeals Decision, pp. 4-5; Rollo, pp. 91-92.

29 T.S.N. September 29, 1989, pp. 19-20.

30 Id., pp. 21-22.

31 T. S. N. January 29, 1990, p. 19.

32 T. S. N. February 6, 1990, 12-14.

33 See Louisell, David W., Kaplan, John, and Waltz, Jon R., Cases and Materials on
Evidence; Wall, Eye-witness Identification in Criminal Cases, 1968 ed., p. 1263.

34 Moran, Manuel V., Comments on the Rules of Court, Vol. 5, 1980 ed., p.
222 citing National Development Co., vs. Workmen's Compensation Commission, L-
21724, April 27, 1967, 19 SCRA 861.

35 T.S.N. February 6, 1990, p. 6.

36 See People vs. Jalon, G. R. No. 93729, November, 13, 1992, 215 SCRA 680.

37 No. L-29091, April 14, 1977, 76 SCRA 262.

38 Supra., Borchard, Convicting the Innocent, p. 1230.

39 Id.