[G.R. No. 138503. September 28, 2000] ROBERTO FERNANDEZ, petitioner, vs.

PEOPLE OF THE PHILIPPINES and the COURT

OF APPEALS, respondents.
DECISION
GONZAGA-REYES, J.:
In this petition for review on certiorari under Rule 45 of the Rules of Court, Roberto Fernandez seeks to set aside the Decision of the
Court of Appeals[1] dated December 24, 1998 in CA-G.R. CR No. 18830 which affirmed in toto the Decision[2] of the Regional Trial Court,
Branch 64, City of Makati in Criminal Case No. 88-538 finding petitioner and his co-accused Efren O. Olesco guilty beyond reasonable
doubt of the crime of estafa through falsification of public document.
The petitioner, Roberto Fernandez (FERNANDEZ) together with Efren O. Olesco (OLESCO) and Nicanor R. Gatchalian, Jr.
(GATCHALIAN) were charged with the crime of estafa through falsification of public document in an information[3] that reads as follows:
That on or about the 14th day of December, 1987, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, who are all private individuals, conspiring and confederating together and mutually
helping and aiding one another by means of deceit and false pretenses executed prior to or simultaneously with the commission of the
fraud, did then and there wilfully, unlawfully and feloniously defraud Sta. Ines Melale Forest Products, Inc., represented by Atty. Oscar P.
Beltran, in the following manner, to wit: the said accused, upon their false manifestation and fraudulent representation that they have the
power and capacity to secure a defendant counterbond for the lifting of a writ of preliminary attachment in the sum of P500,000.00 to be
used by the said complainant in Civil Case No. 3226 of Branch V of the Regional Trial Court of Agusan Del Norte and Butuan City in
which the said complainant was the party defendant and which representation and manifestation the accused knew to be false, succeeded
in inducing the same complainant to give and to deliver to them the sum of P50,000.00 which is equivalent to 10% of the face value of
said counterbond representing the premium thereof in consideration of Counterbond No. JCR 00300 dated December 14, 1987
purportedly issued by the First Integrated Bonding & Insurance Co., Inc. and notarized by Notary Public Benito Salandanan of Manila
which the accused falsified by making it appear that the same was signed by Eduardo V. Gadi and that it was regularly issued by the said
bonding and insurance company when, in truth and in fact, as accused well knew, the same was not issued by it, and the accused, once
in possession of said money, did then and there wilfully, unlawfully and feloniously appropriate and use the same to their own personal
use and benefit, to the damage and prejudice of the complainant Sta. Ines Melale Forest Products, Inc., represented by Atty. Oscar P.
Beltran, in the aforestated amount of P50,000.00.[4]
On April 29, 1988, the three (3) accused were arraigned and entered a plea of not guilty with the assistance of counsel. [5] Thereafter,
trial ensued. The case against GATCHALIAN was dismissed due to his death during the pendency of the trial. [6]
At the trial, the prosecution presented as its witnesses Atty. Oscar P. Beltran, President of Sta. Ines Melale Forest Products
Corporation, Manuel de Castro, Deputy Sheriff of Branch 137, Regional Trial Court of Makati, Melencio P. Cruz, a helper-assistant of
insurance agent Manuel Boy Reyes, Consuelo San Juan, court interpreter and representative of the Clerk of Court of Branch 5, Regional
Trial Court of Agusan Del Norte, Butuan City and Atty. Rogelio B. Mendoza, legal counsel of the First Integrated Bonding and Insurance
Company, Inc.
The prosecution also offered in evidence Official Receipt No. 157 dated December 14, 1987 in the amount of P50,000.00 issued by
Hexagon Surety Services, Inc. signed by accused Efren Olesco [7]; Machine copy of Counter Attachment Bond No. JCR 00300 dated
December 14, 1987 issued by First Integrated Bonding and Insurance Corporation with a face value of P500,000.00[8]; another machine
copy of the same Counter Attachment Bond No. JCR 00300 filed by defendant Ines Melale Corporation in Civil Case No. 3226 pending
before RTC Branch 5, Butuan City[9]; parts of the Case Records of Civil Case No. 3226 brought by witness Consuelo San Juan as part
of her testimony[10]; Sinumpaang Salaysay of witness Melencio Cruz consisting of two pages with his signature thereon [11]; Manifestation
and Motion of Atty. Rogelio Mendoza dated January 04, 1988 filed before RTC, Branch 5, Butuan City [12]; and letter dated January 8,
1988 of Atty. Oscar Beltran to Col. Fernando Angara of the Southern Police Distrtict, Fort Bonifacio, Makati, Metro Manila requesting
police assistance in the investigation of a possible commission of the crime of Estafa Thru Falsification of Documents [13]
After the prosecution rested its case, petitioner FERNANDEZ filed a Demurrer to Evidence which was denied by the trial
court.[14] Despite such denial, both accused Roberto Fernandez and Efren Olesco opted not to present evidence for their defense.
The facts established by the evidence are as follows:
Sometime in December 1987, the Regional Trial Court of Agusan del Norte, Branch V, Butuan City, issued a writ of preliminary
attachment against the properties of private complainant Sta. Ines Melale Forest Products, Inc. (MELALE) defendant in the therein
pending Civil Case No. 3226 filed by Kalilid Wood Industries Corporation.
In order to secure the lifting or discharge of the writ, MELALE, through its President, Atty. Oscar Beltran (BELTRAN), called up his
friend Mr. Manuel de Castro (DE CASTRO), Deputy Sheriff of RTC Branch 137, Makati at about 11:00 oclock in the morning of December
14, 1987 and requested him to look for a bonding company which can issue a counter attachment bond for his companys use in the said
civil case.[15] DE CASTRO obliged and from the third floor of the Chateau Building on F. Zobel Street, Makati where he holds office, he
went down to the ground floor to see Manuel Boy Reyes (REYES), an insurance agent. Unfortunately, REYES was not around at that
time. It was Melencio Cruz (CRUZ), a compadre and helper-assistant of REYES, who attended to him and with whom DE CASTRO talked
about the request of BELTRAN. CRUZ told DE CASTRO that he had to ask OLESCO, known to him as a Branch Manager of Interworld
Assurance Corporation, whose office is at the second floor of the same building. When CRUZ returned to his office, he had with him an
application form and indemnity agreement form for a counter attachment bond from Interworld Insurance which according to him, was
given to him by OLESCO. CRUZ gave the blank form to DE CASTRO who in turn brought the form to BELTRAN who accomplished the
same.[16] At around 4:45 oclock that afternoon, DE CASTRO returned and delivered the already accomplished bond application form to
CRUZ who in turn brought the same to OLESCOs office. Twenty minutes later, OLESCO and CRUZ came down together and handed to
DE CASTRO (who was then waiting at CRUZs office, Counterbond No. JCR 00300 dated December 14, 1987 in the amount
of P500,000.00 issued by the First Integrated Bonding and Insurance Company and not by Interworld Insurance Company, signed by
Eduardo V. Gadi and notarized by Notary Public Benito Salandanan of Manila. [17] In return, DE CASTRO handed OLESCO the amount
of P50,000.00 as premium payment for the bond. When asked by DE CASTRO why the Counterbond is a First Integrated Insurance
Company bond and not an Interworld Insurance bond, OLESCO allegedly answered that Interworld Insurance Company branch in Butuan
City was already closed. He added that in procuring the bond, he asked the help of Roberto Fernandez and Nicanor Gatchalian, Jr. for
the issuance of the bond. OLESCO acknowledged receipt of the amount of P50,000.00 by issuing Hexagon Surety Services, Inc. Official
Receipt No. 157 also dated December 14, 1987 [18] which CRUZ also signed as witness that OLESCO actually received
the P50,000.00[19] Thereafter, BELTRAN filed the counterbond with the RTC of Agusan del Norte, Branch V in Butuan City to support
MELALEs pending motion to quash the writ of preliminary attachment earlier issued against it.
 On January 8, 1988, BELTRAN learned that Atty. Rogelio Mendoza (MENDOZA), Legal Counsel of First Integrated Bonding and
Insurance Company, Inc., filed a Manifestation and Motion[20] before the said RTC denying the issuance by First Integrated Bonding and
Insurance Company, Inc. of the aforementioned counterbond for the reason that the same was spurious or fake inasmuch as the First
Integrated Bonding and Insurance Company, Inc. had no officer or employee by the name of Eduardo Gadi and that the counterbond
does not have the letter head of the First Integrated Bonding and Insurance Company.
Immediately thereafter, BELTRAN called DE CASTRO and requested him to arrange a confrontation with OLESCO, GATCHALIAN
and FERNANDEZ. During the confrontation, only OLESCO and FERNANDEZ came and allegedly assured BELTRAN that the
counterbond was genuine. Prior to the confrontation, BELTRAN never met accused OLESCO and FERNANDEZ.[21] On January 8, 1988,
BELTRAN also wrote then Superintendent Fernando Angara of the Southern Police District, Fort Bonifacio, Makati[22] formally requesting
for police assistance in the investigation of a possible commission of the crime of Estafa Thru Falsification of Documents which thereafter
led to the filing of the information against FERNANDEZ and OLESCO.
On September 21, 1995, the RTC found the accused guilty beyond reasonable doubt of the crime charged the dispositive portion of
the decision reads:
WHEREFORE, in view of the foregoing, this Court finds accused EFREN OLESCO and ROBERTO FERNANDEZ Guilty beyond
reasonable doubt of having committed ESTAFA thru falsification of public document, and sentences them to suffer an indeterminate
prison term of four (4) years and two (2) months of prision correccional medium as minimum, to nine (9) years of prision mayor medium
as maximum.
Both accused are ordered to jointly and severally indemnify complainant Santa Ines Melale Forest Product Corporation in the sum
of P50,000.00.
With cost against the accused.
SO ORDERED.[23]
From the judgment of conviction, only FERNANDEZ appealed to the Court of Appeals, which affirmed the trial courts decision.[24]
Petitioners motion for reconsideration was denied[25] hence the instant petition for review where the petitioner raises the following
arguments for consideration:
A.RESPONDENT COURT OF APPEALS AFFIRMED THE CONVICTION OF PETITIONER WITHOUT TAKING INTO ACCOUNT
THE FINDING OF THE COURT A QUO THAT AS OF THE DATE OF THE FILING OF THE DUMURRER TO EVIDENCE
THERE WAS NO DIRECT EVIDENCE PROVING THAT PETITIONER HAD INDEED CONSPIRED IN COMMITTING THE
OFFENSE.
B. THE COURT OF APPEALS AFFIRMED THE CONVICTION OF THE ACCUSED ON THE BASIS OF MERE PRESUMPTION.
C. THE COURT OF APPEALS AFFIRMED THE CONVICTION OF PETITIONER WTHOUT INDEPENDENTLY REVIEWING
THE LEGAL BASIS FOR THE CONVICTION CONSIDERING THAT THE COURT A QUO FAILED TO SHOW THAT THE
ESSENTIAL INGREDIENTS OF THE OFFENSE CHARGED HAVE BEEN SUFFICIENTLY PROVEN OR OTHERWISE
STATED, THE COURT OF APPEALS AFFIRMED THE JUDGMENT OF CONVICTION WITHOUT CONSIDERING THE
FOLLOWING QUESTIONS OF LAW.
1. Whether or not the offense of estafa thru falsification of a public document was in fact established.
2. Whether or not conspiracy attended the commission of the alleged offense. [26]
In support of his petition, the petitioner contends that respondent Court of Appeals erred in affirming the judgment of conviction
because the trial court found no direct evidence linking him to the offense charged. He claims that the Court of Appeals relied on the mere
imputations of his guilt made by the private complainant BELTRAN in his testimony in violation of the res inter alios acta and the hearsay
rules. Moreover, considering that there was no positive and conclusive evidence adduced by the prosecution to prove the conspiracy; the
alleged conspiracy between petitioner and co-accused OLESCO was based on mere conjecture. He should consequently be acquitted
of the crime charged.
The core issue involved in this case is whether or not FERNANDEZ is guilty of committing the crime of estafa through falsification of
public document in conspiracy with OLESCO.
After a careful review of the case, we rule in the negative and find the petition meritorious.
FERNANDEZ is charged with the crime of estafa described under Paragraph 2 (a) of Article 315 of the Revised Penal
Code, i.e. swindling or estafa committed by any person who shall defraud another by falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions or by means of other similar deceits executed prior to or
simultaneously with the commission of the fraud and in this particular case, in conspiracy with two other accused as defined under Article
8, of the Revised Penal Code.[27]
To secure a conviction for this kind of estafa, the following requisites must concur, to wit:
(1) that the accused made false pretenses or fraudulent representations as to his power, influence, qualifications, property, credit,
agency, business or imaginary transactions;
(2) that such false pretenses or fraudulent representations were made prior to or simultaneous with the commission of the fraud;
(3) that such false pretenses or fraudulent representations constitute the very cause which induced the offended party to part
with his money or property; and
(4) that as a result thereof, the offended party suffered damage.[28]
In convicting the petitioner, the trial court applied the rule that if a person had in his possession a falsified document, used it (uttered
it), took advantage of it and profited thereby, he is, in the absence of satisfactory explanation, presumed to be the material author and
the forger of the falsification.[29] We quote the trial courts ratiocination as follows:
The unrefuted evidence for the prosecution established the fact that the counter bond with serial no. JCR 00300 under the name of First
Integrated Bonding Insurance Company, Inc. is a fake bond. The complainant received the same from accused Efren Olesco and Roberto
Fernandez they being the persons who secured the issuance of said bond. Being the source of said fake bond and there being no
explanation from the accused how they came into possession of said fake bond, the presumption that they are the author of said fake
bond attaches to them. That presumption has not been rebutted. Mere denial of their participation without supporting proof would not be
sufficient to exculpate them from liability. The crime committed is Estafa thru falsification of public document. The falsification of the surety
bond (Counter bond) a notarized document, was resorted to by the accused in order to defraud complainant. [30]
 In affirming the decision of the trial court, the Court of Appeals adopted the trial courts reasoning and added that the petitioners
participation in the issuance of the fake counterbond was proved by the testimony of DE CASTRO and was confirmed by the testimony
of BELTRAN.
We disagree.
To our mind, the evidence is not sufficient to form a basis for petitioners conviction.
First of all, the testimonies of the prosecution witnesses linking FERNANDEZ to the commission of the crime are all hearsay in nature
for they are not based on the witnesses own personal knowledge.
Prosecution witness DE CASTRO testified that:
ATTY. BAARES:
What happened when Mr. Olesco give (sic) you the First Integrated Counter attachment bond?
A: I examined the bond and asked him if the bond is okey (sic).
ATTY. BAARES:
We will object to that your Honor we are asking that statement of the witness be stricken off the record because it is not responsive to
the question.
FISCAL ISRAEL:
Why it is not responsive?
ATTY. BAARES:
The question is -what is the result and he said I examined and I asked him if the bond is okey (sic). That is no responsive to the
question
FISCAL ISRAEL:
He should conduct an examination and that is the result.
ATTY. BAARES:
That should be ask (sic) in the proper manner.
COURT:
Alright reform Fiscal.
Q: When you said (sic) conducted an examination of the First Integrated Counter Attachment Bond, how did you conduct your
investigation?
A: I look (sic) at the bond and when I saw that it was issued by First Integrated Insurance Company, I asked Mr. Olesco why is it that
it came from First Integrated Insurance Company while he gave me an Interworld Insurance application bond.
Q: What was the reply of Mr. Olesco
A: Mr. Olesco told me that their Interworld branch in Butuan was already closed and he asked the help of Mr. Roberto Fernandez and
Mr. Gatchalian for the issuance of the bond.
ATTY. AGOOT:
May I moved for he striking out of the answer to the last question. Mr. Fernandez be stricken off the record.
COURT:
That is an answer to the question, that remain in the record.
Q: Now Mr. Witness, you said that on December 14, 1987, you went to the Office of Atty. Oscar Beltran and he handed you also
a P50,000.00, do you know what that P50,000.00 was that intended for?
A: That is intended for the 10% premium of the principal amount of money.
Q: Now what did you do with that P50,000.00 that Atty. Beltran gave you that was intended for the premium?
A: When I came back to the Office of Mr. Melecio Cruz, I told him to tell Olesco that I have the money so that he can give me the bond.
ATTY. BAARES:
We are asking that the statement be stricken off the record. The question is very clear, what did you do with that P50,000.00 that Atty.
Beltran gave you?
FISCAL:
After receiving the P50,000- what did you do?
A: I bring (sic) it at (sic) Chateau building in the office of Mr. Reyes.
Q: After that what else happened, what did you do with that P50,000.00 which you brought with you?
A: I called Mr. Cruz that I have the money and he told Mr. Olesco that I have money for the premium.
ATTY. BAARES:
I object to the question your Honor, that is not the question. The question is what happened for the money that was given to you?
FISCAL:
No, what did you do?
ATTY. BAARES:
What did you do with the P50,000.00?
COURT:
Just a moment, there is no really direct answer. What did you do with that amount of P50,000.00?
A: When Efren Olesco give (sic) me the counter attachment bond and after asking him the veracity of the signatories in the bond, I
handed to him the P50,000.00.
ATTY. BAARES:
You Honor please, may we ask that the first portion of the statement of a witness be stricken off the record for being no responsive to
the question. The answer should be confine on what happened to the P50,000.00.
COURT:
When Mr. Olesco give (sic) him the counter attachment bond, that is the time that he handed (sic).
ATTY. BAARES:
There is a statement about perusal.
FISCAL ISRAEL:
That is insofar as the counter bond..
ATTY. BAARES:
You give (sic) it to Olesco?
A: Yes, sir and I handed to him.
FISCAL:
Mr. Olesco received that P50,000.00?
A: Yes, sir.
Q: Do you have any proof or evidence to show that Mr. Olesco received that P50,000.00?
A: After I gave him the P50,000.00, I asked him (sic) an official receipt and he handed to me an official receipt.
Q: I am showing to you an Official Receipt No. 157 dated December 14, 1987, will you please go over the Official Receipt if that is the
receipt that you are referring to that was given by Mr. Olesco?
A: Yes, sir.
Q: May I request that this Official Receipt be marked as Exhibit A dated December 14, 1987.
Q: Under this Exhibit which is now marked as Exhibit A Mr. Witness there appears a signature above the typewritten name Efren
Olesco, do you know whose signature is that?
A: That is the signature of Efren Olesco.
Q: Why do you know that this is the signature of Efren Olesco?
A: He signed it in front of us.
Q: Which we request your Honor that the same be bracketed and marked as Exhibit A-1.
COURT:
Mark it.
Q: Now, Mr. Witness you made mentioned (sic) of Mr. Olesco having gone to one Mr. Roberto Fernandez, is that correct?
ATTY. AGOOT:
There is no mentioned (sic) about that your Honor.
COURT:
What the witness mentioned is that he asked the help of Fernandez and Gatchalian.
Q: You said that you asked the help of
A: I did not asked (sic) the help, it was Efren Olesco (sic) asked the help of Mr. Fernandez and Gatchalian.
Q: You said that Mr. Olesco told you that he asked the help of Mr. Fernandez and Mr. Gatchalian. Now, do you know what kind of help
was Mr. Melecio Cruz would ask if you know and did he tell you what kind of help would Mr. Cruz ask (sic) Mr. Fernandez and Mr.
Gatchalian?
COURT:
Remove that portion Fiscal.
FISCAL ISRAEL:
Did you ask him what kind of help?
A: He already told me that when I asked him why is it that it is the First Integrated bond while the application form that he gave us is
Interworld Insurance Company?
Q: What did he tell you?
A: He told me that he asked the help of Fernandez and Gatchalian to secure the First Integrated bond because the Butuan branch of
Inteworld was already closed.
ATTY. AGOOT:
For purposes of the record your Honor please, the answer of the witness is hearsay your Honor.
COURT:
That is what (sic) told to him.
Q: Do you know if he was able to secure the help of Mr. Fernandez and Gatchalian?
ATTY. BAARES:
He was only told your Honor.
FISCAL
If he knows because he was told by Mr. Olesco to help, now, the question is- if he knows, if he was able to secure?
A: I do not know.
Q: Then from the Office of Mr. Melencio Cruz after Mr. Olesco told you that he would asked (sic) the help of Mr. Gatchalian and Mr.
Fernandez to help him about this bond, then what else happened?
ATTY. BAARES:
We will object your Honor please, misleading. The witness never testify that he talk (sic) to Olesco. Witness testify (sic) that it was
Melencio Cruz who told him that Olesco asked the help of Gatchalian.
ATTY. BAARES:
We refer to the record, first the witness testified a while ago your Honor please..
FISCAL:
Because if I can recall there was an answer from the witness.
COURT:
Fernandez and Gatchalian for the issuance of that bond, First Integrated bond.
ATTY. BAARES:
That was an answer for the second question your Honor. The question is that: when the witness said and testified that he asked Olesco
why it was the First Integrated while the application was an Interworld..
COURT:
Yes.
ATTY. BAARES:
But he never testified that he conversed with Olesco who told him that Olesco will ask the help of Fernandez and Gatchalian. What the
witness testify was that it was Melencio Cruz who told him that Olesco will ask the help of Gatchalian.
COURT:
No.
ATTY. BAARES:
I submit your Honor after all I will cross-examine the witness.
COURT:
It was Olesco who told him (sic) he asked the help of Fernandez and Gatchalian.
ATTY. BAARES:
That was the answer to the later question, may we just place on record our objection your Honor so that when the transcript of the
stenographic notes shall have already been transcribed we can raise the same objection at the earliest possibility. [31]
In an attempt to corroborate his testimony, the prosecution presented CRUZ whose testimony reads:
Q: This Noel de Castro you mentioned you entertained on that December 14, 1987 can you tell the court what kind of document from
the Office of Mr. Manuel Reyes he wish to get?
A: A counter bond sir.
Q: What did you do after Noel de Castro informed you that is in need of a counter bond?
A: I told him that I will first ask Mr. Olesco about it.
Q:: Do you know this Mr. Olesco?
A: Yes, sir.
Q: Please look around Mr. Witness and tell the Court if he is here inside the court room?
A: He is here your Honor.
INTERPRETER:
Witness pointing to a man inside the courtroom wearing a green shirt and when asked his name answered in the name of Efren Olesco.
Q: And were you able to go to Mr. Efren Olesco on that day of December 14, 1987?
A: Yes, sir.
Q: What did you tell him?
A: I told him that Mr. Noel de Castro is applying for a counter bond.
Q: What was the reply of Mr. Olesco, if there is any?
A: He told me to prepare some documents sir.
Q: What document are your referring to?
A: The application form sir.
Q: Did you prepare this document?
A: Yes, sir. I got it from Mr. Noel de Castro.
ATTY. AGOOT:
I moved for the striking out of the answer your honor. It is not responsive to the question.
COURT:
Strike out the last portion of the answer.
Q: You mention of an application, application for what is this?
A: Yes, sir. After preparing the application it would enter the bonding company and the bond will be issued.
Q: Aside from the document required by Mr. Olesco is there any other document required?
A: Yes, sir. After I finished preparing the document he issued the bond sir.
Q: Can you still remember what kind of bond Mr. Olesco issued?
A: First Integrated bond sir.
Q: If a copy shown to you can you recognize the same?
A: Yes, sir.
Q: I am showing to you a xerox copy of defendants counter bond, can you tell us what relation is this to the one you mentioned?
A: It was Mr. Olesco who give (sic) the bond to Mr. Noel de Castro.
Q: Did you see this given by Mr. Olesco to Mr. De Castro?
A: Yes, sir.
Q: I am showing to you a xerox copy of a counter bond and go over the same and tell the court if that is the copy of the one you
mentioned?
A: Yes, sir.
COURT INTERPRETER:
Witness pointing to the bond your honor.
FISCAL:
We request your honor that this be provisionally marked as Exhibit Z.
COURT:
Mark it.
Q: Mr. Witness when this counter bond was issued by Mr. Olesco and delivered to you were there other document or other document
were delivered to Mr. De Castro?
A: The receipt sir.
Q: Receipt for what?
A: For the payment of the bond sir.
Q: You mean the premium?
A: Yes, sir.
Q: How much is the receipt?
ATTY. AGOOT:
The receipt will answer to that question your honor.
COURT:
Let the witness answer, if he knows.
A: Fifty thousand pesos (P50,000) sir.
Q: From whom (sic) Mr. Olesco received the amount of fifty thousand pesos?
A: From Mr. Manuel de Castro sir.
Q: I am showing to you a copy of Official Receipt No. 157 please go over the same and tell the court if this is the receipt your are
referring to? May I make of record your honor that this is a xerox copy?
ATTY. AGOOT:
The best evidence is the receipt your honor.
COURT:
Let the witness answer.
A: Yes, sir.
Q: What is the relation of this receipt to the one you mentioned?
A: This is the receipt that I give (sic) to Mr. de Castro sir.
Q: Below the receipt there is a signature over the name Eren Olesco, can you tell the court whose signature is this?
ATTY. AGOOT:
May we know the materiality of this your honor.
FISCAL:
As a proof your honor that Mr. Olesco received the money as payment for the bond.
COURT:
Proceed, fiscal.
FISCAL:
May we request your honor that this receipt presented to by witness may provisionally marked as Exhibit Y and the signature over the
name Efren Olesco be marked as Exhibit Y-1.
COURT:
Mark it.
Q: Mr. Witness I see here another signature below the signature you pointed as a signature of Mr. Olesco, whose signature is this?
A: That is my signature sir.
Q: And what is the significance of your signature here?
ATTY. AGOOT:
Objection your honor the best evidence is the receipt itself.
COURT:
Objection denied.
A: I was directed by Mr. de Castro to sign it sir for the purpose of proving that Mr. Olesco received the money.
Q: Mr. Witness, relative to this case do you remember if you have executed a sinumpaang salaysay?
A: Yes, sir.
Q: I am showing to you a sinumpaang salaysay will you go over the same and tell the court what relation is this to the one you
mentioned?
A: It is about the counter bond sir.
Q: You go over that sinumpaang salaysay and inform the court what relation is that to the sinumpaang salaysay you mentioned?
A: This is the sinumpaang salaysay I executed sir.
Q: Your honor.
FISCAL:
Your honor may we request that this sinumpaang salaysay be marked as Exhibit H.
COURT:
Mark it.
FISCAL:
Your honor please may we request hat the second page of this sinumpaang salaysay be marked as Exhibit H-1.
COURT:
Mark it.
 Q: Mr. Witness there is a signature on this Exhibit H-1, please inform the court whose signature is this above the name Melencio Cruz?
A: That is my signature sir.
INTERPRETER:
Witness your honor pointing to a signature above the name Melencio Cruz.
Q: Again I see a signature over the word saksi, whose signature is this?
A: I do not recognize whose signature are these sir.
FISCAL:
We request your honor that the signature of Melencio Andrada be marked as Exhibit H-1 a.
COURT:
Mark it.
Q: Mr. Witness I want you to go over again Exhibit H and H-1 and examine its contents and tell the court whether you affirm the
contents of this sinumpaang salaysay?
INTERPRETER:
Your honor witness is reading the document handed to him by public prosecutor.
A: Yes, sir. This is my sinumpaang salaysay.
FISCAL:
With Exhibit H your honor we would like to confirm the testimony of the witness and we terminate our direct examination. [32]
Section 36, Rule 130 of the Revised Rules of Court provides that a witness can testify only to those facts which he knows of his own
knowledge; that is, which are derived from his own perception x x x. Thus, any evidence, whether oral or documentary, is hearsay if its
probative value is not based on the personal knowledge of the witness but on the knowledge of some other person not on the witness
stand.[33] In the present case, neither DE CASTRO nor CRUZ, the prosecutions main witnesses, had personal knowledge that
FERNANDEZ in any way helped or aided OLESCO in the facilitation or the procurement of the counter bond. In fact, DE CASTRO
admitted that he did not know if OLESCO was able to secure the help of FERNANDEZ and GATCHALIAN. And even assuming that DE
CASTRO could testify to the alleged statements made by OLESCO implicating FERNANDEZ in the commission of the crime, said
statements may still not be utilized against FERNANDEZ, who never had the opportunity to cross-examine OLESCO, for being violative
of the res inter alios rule which ordains that the rights of a party cannot be prejudiced by an act, declaration or omission of another. [34]
Secondly, although a conspiracy was alleged in the information, there is no evidence to prove that a conspiracy existed between
FERNANDEZ and OLESCO. As a manner of incurring criminal liability, the same degree of proof necessary to establish the crime is
required to establish a finding of criminal conspiracy, that is proof beyond reasonable doubt. [35] Nowhere in the decisions of the trial court
and the Court of Appeals, do we find any mention in the testimonies of the witnesses, much less proof of the existence of conspiracy
between OLESCO and FERNANDEZ to defraud private complainant MELALE or to commit the crime of estafa through falsification of
public document nor was evidence adduced of any act of FERNANDEZ that may be construed as an overt act in the furtherance of a
conspiracy. Based on the evidence on record, the prosecution failed to prove that OLESCO conspired and/or connived with the petitioner
or vice versa both in the procurement, preparation and facilitation in the issuance of the spurious counterbond and in defrauding private
complainant in the amount of P50,000.00.
Besides, evidence discloses that the petitioner was not present or with OLESCO during the whole day of December 14, 1987 and
did not witness or participate in any of those acts or events which happened on that day starting with the negotiation conducted by DE
CASTRO through CRUZ for the procurement of a counter attachment bond needed by BELTRAN; the accomplishment of the application
form for the bond made by BELTRAN and the filing thereof with OLESCO made by DE CASTRO through CRUZ; the preparation and
delivery by OLESCO of the bond to DE CASTRO; the payment made by DE CASTRO to OLESCO of the cash amount of P50,000.00 as
premium payment therefor; and the acknowledgment by OLESCO of his actual receipt of said amount of P50,000.00 as evidenced by
Hexagon Surety Services, Inc. Official Receipt No. 157 dated December 14, 1987 which OLESCO signed himself. In fact, the only
evidence proffered tending to incriminate the petitioner is the testimony of DE CASTRO who stated that OLESCO informed him that the
bond was issued with the help of petitioner FERNANDEZ and a certain GATCHALIAN which as previously stated, is inadmissible in
evidence.[36] BELTRANs assertion that FERNANDEZ admitted that he delivered the counter bond and that he facilitated in procuring the
same during their alleged confrontation fails to persuade us considering that this was not corroborated and was in fact contradicted by
the testimony of DE CASTRO who testified that only OLESCO delivered the counter bond to him.Moreover, the mere fact that
FERNANDEZ allegedly claimed that the counterbond was genuine does not establish that he had knowledge that the counterbond was
spurious. Neither does it prove that he conspired with or participated in the procurement thereof or was ever in possession thereof.
The Court of Appeals therefore erroneously applied the presumption that the person in possession of the falsified document is the
author thereof for the reason that there is no evidence to prove that FERNANDEZ was ever in possession of, used, took advantage of
and/or profited by the use of the fake counter bond.
In all criminal cases, mere speculation and probabilities cannot substitute for proof required to establish the guilt of an accused beyond
reasonable doubt. Suspicion no matter how strong can not sway judgment.[37] Where there is reasonable doubt as to the guilt of the
accused, he must be acquitted even though his innocence may be doubted since the constitutional right to be presumed innocent until
proven guilty can be overthrown only by proof reasonable doubt. [38] When the guilt of the accused has not been proven with moral
certainty, it is our policy of long standing that the presumption of innocence of the accused must be favored and his exoneration be
granted as a matter of right.[39]
WHEREFORE, on the foregoing premises, the assailed decision of the Court of Appeals is REVERSED and SET ASIDE. Petitioner
Roberto Fernandez is ACQUITTED of the crime charged on the ground of reasonable doubt.
SO ORDERED.
HAROLD V. TAMARGO, G.R. No. 177727
Petitioner,
Present:
CORONA, J., Chairperson,
CARPIO MORALES,
- v e r s u s - VELASCO, JR.,
NACHURA and
LEONARDO-DE CASTRO, JJ.

ROMULO AWINGAN, LLOYD

ANTIPORDA and LICERIO
ANTIPORDA, JR.,
Respondents. Promulgated:
January 19, 2010

x---------------------------------------------------x

DECISION
CORONA, J.:

This is a petition for review on certiorari[1] of the November 10, 2006 decision[2] and May 18, 2007 resolution[3] of the Court of
Appeals (CA) in CA-G.R. SP No. 93610.
Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail Franzielle, were shot and killed at around 5:15 p.m. of August
15, 2003 along Nueva Street corner Escolta Street, Binondo, Manila. The police had no leads on the perpetrators of the crime
until a certain Reynaldo Geron surfaced and executed an affidavit dated September 12, 2003. He stated that a certain Lucio
Columna told him during a drinking spree that Atty. Tamargo was ordered killed by respondent Lloyd Antiporda and that he
(Columna) was one of those who killed Atty. Tamargo. He added that he told the Tamargo family what he knew and that the
sketch of the suspect closely resembled Columna.[4]
After conducting a preliminary investigation and on the strength of Gerons affidavit, the investigating prosecutor [5] issued a
resolution dated December 5, 2003 finding probable cause against Columna and three John Does.[6] On February 2, 2004, the
corresponding Informations for murder were filed against them in the Regional Trial Court (RTC) of Manila, one assigned to
Branch 27 for the death of Atty. Franklin Tamargo, and the other to Branch 29 for the death of the minor Gail
Franzielle.[7]Columna was arrested in the province of Cagayan on February 17, 2004 and brought to Manila for detention and
trial.[8]

On March 8, 2004, Columna (whose real name was Manuel, Jr.) executed an affidavit wherein he admitted his participation
as look out during the shooting and implicated respondent Romulo Awingan (alias Mumoy) as the gunman and one Richard
Mecate. He also tagged as masterminds respondent Licerio Antiporda, Jr. and his son, respondent Lloyd Antiporda.[9] The former
was the ex-mayor and the latter the mayor of Buguey, Cagayan at that time. When the killing took place, Licerio Antiporda was
in detention for a kidnapping case in which Atty. Tamargo was acting as private prosecutor.

Pursuant to this affidavit, petitioner Harold V. Tamargo (brother of Atty. Tamargo) filed a complaint against those
implicated by Columna in the Office of the City Prosecutor of Manila.[10]

On April 19, 2004, Columna affirmed his affidavit before the investigating prosecutor[11] who subjected him to clarificatory
questions.[12]

Respondents denied any involvement in the killings. They alleged that Licerio was a candidate for mayor in Buguey,
Cagayan during the May 2004 elections and that the case was instituted by his political opponents in order to derail his candidacy.
The Antipordas admitted that Atty. Tamargo was their political rival for the mayoralty post of Buguey. Atty. Tamargo had been
defeated twice by Lloyd and once by Licerio. Before the killing, Atty. Tamargo filed an election case against Lloyd and a
kidnapping case in the Sandiganbayan against Licerio. However, they claimed that both cases were dismissed as Lloyd emerged
as the winner in the elections and Licerio was acquitted by the Sandiganbayan.[13]

During the preliminary investigation, respondent Licerio presented Columnas unsolicited handwritten letter dated May 3,
2004 to respondent Lloyd, sent from Columnas jail cell in Manila. In the letter, Columna disowned the contents of his March 8,
2004 affidavit and narrated how he had been tortured until he signed the extrajudicial confession. He stated that those he implicated
had no participation in the killings.[14] Respondent Licerio also submitted an affidavit of Columna dated May 25, 2004 wherein
the latter essentially repeated the statements in his handwritten letter.

Due to the submission of Columnas letter and affidavit, the investigating prosecutor set a clarificatory hearing, to enable
Columna to clarify his contradictory affidavits and his unsolicited letter. During the hearing held on October 22, 2004, Columna
categorically admitted the authorship and voluntariness of the unsolicited letter. He affirmed the May 25, 2004 affidavit and
denied that any violence had been employed to obtain or extract the affidavit from him.[15]

Thus, on November 10, 2004, the investigating prosecutor recommended the dismissal of the charges. This was approved
by the city prosecutor.

Meanwhile, in another handwritten letter addressed to City Prosecutor Ramon Garcia dated October 29, 2004, Columna
said that he was only forced to withdraw all his statements against respondents during the October 22, 2004 clarificatory hearing
because of the threats to his life inside the jail. He requested that he be transferred to another detention center.[16]
Aggrieved by the dismissal of the charges, petitioner filed an appeal to the Department of Justice (DOJ).[17] On May 30,
2005, the DOJ, through then Secretary Raul M. Gonzalez, reversed the dismissal and ordered the filing of the Informations for
murder.[18] He opined that the March 8, 2004 extrajudicial confession was not effectively impeached by the subsequent recantation
and that there was enough evidence to prove the probable guilt of respondents.[19] Accordingly, the Informations were filed and
the cases were consolidated and assigned to the RTC of Manila, Branch 29.[20]

However, on August 12, 2005, Secretary Gonzales granted the Antipordas motion for reconsideration (MR) and directed
the withdrawal of the Informations.[21] This time, he declared that the extrajudicial confession of Columna was inadmissible
against respondents and that, even if it was admissible, it was not corroborated by other evidence.[22] As a result, on August 22,
2005, the trial prosecutor filed a motion to withdraw the Informations. On October 4, 2005, Secretary Gonzalez denied petitioners
MR.

The RTC, through Judge Cielito Mindaro-Grulla, granted the motion to withdraw the Informations in an order dated
October 26, 2005.[23] Petitioner filed an MR but the judge voluntarily inhibited herself without resolving the same. The cases were
re-raffled to Branch 19, presided by Judge Zenaida R. Daguna. Judge Daguna granted the MR of petitioner in a resolution dated
December 9, 2005. She ruled that, based on Columnas March 8, 2004 affidavit which he affirmed before the investigating
prosecutor, there was probable cause to hold the accused for trial. She denied the MR of the Antipordas in an order dated February
6, 2006.

Consequently, respondent Awingan filed a special civil action for certiorari and prohibition in the CA docketed as CA-
G.R. SP No. 93610. The Antipordas separately filed another certiorari case docketed as CA-G.R. SP No. 94188.

In a decision dated November 10, 2006 in CA-G.R. SP No. 93610, the CA ruled that the RTC judge gravely abused her
discretion because she arbitrarily left out of her assessment and evaluation the substantial matters that the DOJ Secretary had fully
taken into account in concluding that there was no probable cause against all the accused. It also held that Columnas extrajudicial
confession was not admissible against the respondents because, aside from the recanted confession, there was no other piece of
evidence presented to establish the existence of the conspiracy. Additionally, the confession was made only after Columna was
arrested and not while the conspirators were engaged in carrying out the conspiracy.

After this decision was promulgated, CA-G.R. SP No. 93610 was consolidated with CA-G.R. SP No. 94188. The CA
denied reconsideration in a resolution dated May 18, 2007. In a decision dated August 24, 2007, the CA likewise granted the
petition for certiorari of respondents Antiporda.[24]

Petitioner filed this petition assailing the decision in CA-G.R. SP No. 93610. Later on, he filed an amended petition impleading
respondents Antiporda and likewise assailing the CA decision in CA-G.R. SP No. 94188. The Court treated this as a supplemental
petition.

The main issue for our resolution is whether or not the CA erred in finding that Judge Daguna had committed grave abuse of
discretion in denying the withdrawal of the Informations for murder against respondents.

Petitioner argues that, based on the independent assessment of Judge Daguna, there was probable cause based on the earlier
affidavit of Columna. She considered all the pieces of evidence but did not give credit to Columnas recantation.
 Respondents counter that Judge Daguna committed grave abuse of discretion by limiting her evaluation and assessment
only to evidence that supported probable cause while completely disregarding contradicting evidence. They also contend that
Columnas extrajudicial confession was inadmissible against respondents because of the rule on res inter alios acta.

We find no merit in the petition.

It is settled that, when confronted with a motion to withdraw an Information (on the ground of lack of probable cause to
hold the accused for trial based on a resolution of the DOJ Secretary), the trial court has the duty to make an independent
assessment of the merits of the motion.[25] It may either agree or disagree with the recommendation of the Secretary. Reliance
alone on the resolution of the Secretary would be an abdication of the trial courts duty and jurisdiction to determine a prima
facie case.[26] The court must itself be convinced that there is indeed no sufficient evidence against the accused. [27]

We agree with the CA that Judge Daguna limited herself only to the following: (1) Columnas affidavit dated March 8, 2004
wherein he implicated the respondents in the murders; (2) his affirmation of this affidavit during the April 19, 2004 clarificatory
hearing; (3) his letter dated October 29, 2004 and (4) the May 30, 2005 DOJ resolution upholding the prosecutors recommendation
to file the murder charges.[28]

She completely ignored other relevant pieces of evidence such as: (1) Columnas May 3, 2004 letter to respondent Lloyd
Antiporda narrating the torture he suffered to force him to admit his participation in the crimes and to implicate the respondents;
(2) his May 25, 2004 affidavit where he stated that neither he nor the respondents had any involvement in the murders and (3) his
testimony during the October 22, 2004 clarificatory hearing wherein he categorically affirmed his May 3, 2004 letter and May
25, 2004 affidavit.

We declared in Jimenez v. Jimenez[29] that

[although] there is no general formula or fixed rule for the determination of probable cause since the same must be
decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the
finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the
judge nor run counter to the clear dictates of reason. The judge or fiscal, therefore, should not go on with the
 prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant
violation of a basic right which the courts are created to uphold. [30] (Emphasis supplied)

Had Judge Daguna reviewed the entire records of the investigation, she would have seen that, aside from the pieces of
evidence she relied on, there were others which cast doubt on them. We quote with approval the reflections of the CA on this
point:

The selectivity of respondent RTC Judge for purposes of resolving the motion to withdraw the
informations effectively sidetracked the guidelines for an independent assessment and evaluation of the merits of the
case. Respondent RTC Judge thus impaired the substantial rights of the accused. Instead, she should have made a
circumspect evaluation by looking at everything made available to her at that point of the cases. No less than that was
expected and required of her as a judicial officer. According to Santos v. Orda, Jr., the trial judge may make an
independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence
appended to the Information; the records of the public prosecutor which the court may order the latter to produce before
the court; or any evidence already adduced before the court by the accused at the time the motion is filed by the public
prosecutor.[31]

Moreover, Judge Daguna failed to consider that Columnas extrajudicial confession in his March 8, 2004 affidavit was not
admissible as evidence against respondents in view of the rule on res inter alios acta.
Res inter alios acta alteri nocere non debet. The rule on res inter alios acta provides that the rights of a party cannot be
prejudiced by an act, declaration, or omission of another.[32] Consequently, an extrajudicial confession is binding only on the
confessant, is not admissible against his or her co-accused[33] and is considered as hearsay against them.[34] The reason for this
rule is that:

on a principle of good faith and mutual convenience, a mans own acts are binding upon himself, and are evidence against
him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that
a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of
strangers, neither ought their acts or conduct be used as evidence against him.[35]
 An exception to the res inter alios acta rule is an admission made by a conspirator under Section 30, Rule 130 of the Rules
of Court:

Admission by conspirator. The act or declaration of a conspirator relating to the conspiracy and during its
existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such
act or declaration.

This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and during its existence may be
given in evidence against co-conspirators provided that the conspiracy is shown by independent evidence aside from the
extrajudicial confession.[36] Thus, in order that the admission of a conspirator may be received against his or her co-conspirators,
it is necessary that (a) the conspiracy be first proved by evidence other than the admission itself (b) the admission relates to the
common object and (c) it has been made while the declarant was engaged in carrying out the conspiracy. [37] Otherwise, it cannot
be used against the alleged co-conspirators without violating their constitutional right to be confronted with the witnesses against
them and to cross-examine them.[38]

Here, aside from the extrajudicial confession, which was later on recanted, no other piece of evidence was presented to
prove the alleged conspiracy. There was no other prosecution evidence, direct or circumstantial, which the extrajudicial confession
could corroborate. Therefore, the recanted confession of Columna, which was the sole evidence against respondents, had no
probative value and was inadmissible as evidence against them.

Considering the paucity and inadmissibility of the evidence presented against the respondents, it would be unfair to hold them for
trial. Once it is ascertained that no probable cause exists to form a sufficient belief as to the guilt of the accused, they should be
relieved from the pain of going through a full blown court case.[39] When, at the outset, the evidence offered during the preliminary
investigation is nothing more than an uncorroborated extrajudicial confession of an alleged conspirator, the criminal complaint
should not prosper so that the system would be spared from the unnecessary expense of such useless and expensive
litigation.[40] The rule is all the more significant here since respondent Licerio Antiporda remains in detention for the murder
charges pursuant to the warrant of arrest issued by Judge Daguna.[41]
 Indeed, at that stage of the proceedings, the duty of Judge Daguna was only to satisfy herself whether there was probable
cause or sufficient ground to hold respondents for trial as co-conspirators. Given that she had no sufficient basis for a finding of
probable cause against respondents, her orders denying the withdrawal of the Informations for murder against them were issued
with grave abuse of discretion.

Hence, we hold that the CA committed no reversible error in granting the petitions for certiorari of respondents.

WHEREFORE, the petition is hereby DENIED.

No pronouncement as to costs.

SO ORDERED.

SECOND DIVISION

[G.R. No. 118375. October 3, 2003]

CELESTINA T. NAGUIAT, petitioner, vs. COURT OF APPEALS and AURORA QUEAO, respondents.

DECISION
TINGA, J.:

Before us is a Petition for Review on Certiorari under Rule 45, assailing the decision of the Sixteenth Division of the
respondent Court of Appeals promulgated on 21 December 1994 , which affirmed in toto the decision handed down by
[1]

the Regional Trial Court (RTC) of Pasay City. [2]

The case arose when on 11 August 1981, private respondent Aurora Queao (Queao) filed a complaint before the
Pasay City RTC for cancellation of a Real Estate Mortgage she had entered into with petitioner Celestina Naguiat
(Naguiat). The RTC rendered a decision, declaring the questioned Real Estate Mortgage void, which Naguiat appealed to
the Court of Appeals. After the Court of Appeals upheld the RTC decision, Naguiat instituted the present petition.
The operative facts follow:
Queao applied with Naguiat for a loan in the amount of Two Hundred Thousand Pesos (P200,000.00), which Naguiat
granted. On 11 August 1980, Naguiat indorsed to Queao Associated Bank Check No. 090990 (dated 11 August 1980) for
the amount of Ninety Five Thousand Pesos (P95,000.00), which was earlier issued to Naguiat by the Corporate Resources
Financing Corporation. She also issued her own Filmanbank Check No. 065314, to the order of Queao, also dated 11
August 1980 and for the amount of Ninety Five Thousand Pesos (P95,000.00). The proceeds of these checks were to
constitute the loan granted by Naguiat to Queao. [3]

To secure the loan, Queao executed a Deed of Real Estate Mortgage dated 11 August 1980 in favor of Naguiat, and
surrendered to the latter the owners duplicates of the titles covering the mortgaged properties. On the same day, the
[4]

mortgage deed was notarized, and Queao issued to Naguiat a promissory note for the amount of TWO HUNDRED
THOUSAND PESOS (P200,000.00), with interest at 12% per annum, payable on 11 September 1980. Queao also issued
[5]

a Security Bank and Trust Company check, postdated 11 September 1980, for the amount of TWO HUNDRED
THOUSAND PESOS (P200,000.00) and payable to the order of Naguiat.
Upon presentment on its maturity date, the Security Bank check was dishonored for insufficiency of funds. On the
following day, 12 September 1980, Queao requested Security Bank to stop payment of her postdated check, but the bank
rejected the request pursuant to its policy not to honor such requests if the check is drawn against insufficient funds.
[6]

On 16 October 1980, Queao received a letter from Naguiats lawyer, demanding settlement of the loan. Shortly
thereafter, Queao and one Ruby Ruebenfeldt (Ruebenfeldt) met with Naguiat. At the meeting, Queao told Naguiat that
she did not receive the proceeds of the loan, adding that the checks were retained by Ruebenfeldt, who purportedly was
Naguiats agent. [7]

Naguiat applied for the extrajudicial foreclosure of the mortgage with the Sheriff of Rizal Province, who then scheduled
the foreclosure sale on 14 August 1981. Three days before the scheduled sale, Queao filed the case before the Pasay
City RTC, seeking the annulment of the mortgage deed. The trial court eventually stopped the auction sale.
[8] [9]

On 8 March 1991, the RTC rendered judgment, declaring the Deed of Real Estate Mortgage null and void, and ordering
Naguiat to return to Queao the owners duplicates of her titles to the mortgaged lots. Naguiat appealed the decision before
[10]

the Court of Appeals, making no less than eleven assignments of error. The Court of Appeals promulgated the decision
now assailed before us that affirmed in toto the RTC decision. Hence, the present petition.
Naguiat questions the findings of facts made by the Court of Appeals, especially on the issue of whether Queao had
actually received the loan proceeds which were supposed to be covered by the two checks Naguiat had issued or indorsed.
Naguiat claims that being a notarial instrument or public document, the mortgage deed enjoys the presumption that the
recitals therein are true. Naguiat also questions the admissibility of various representations and pronouncements of
Ruebenfeldt, invoking the rule on the non-binding effect of the admissions of third persons. [11]

The resolution of the issues presented before this Court by Naguiat involves the determination of facts, a function
which this Court does not exercise in an appeal by certiorari. Under Rule 45 which governs appeal by certiorari, only
questions of law may be raised as the Supreme Court is not a trier of facts. The resolution of factual issues is the
[12] [13]

function of lower courts, whose findings on these matters are received with respect and are in fact generally binding on
the Supreme Court. A question of law which the Court may pass upon must not involve an examination of the probative
[14]

value of the evidence presented by the litigants. There is a question of law in a given case when the doubt or difference
[15]

arises as to what the law is on a certain state of facts; there is a question of fact when the doubt or difference arises as to
the truth or the falsehood of alleged facts.
[16]

Surely, there are established exceptions to the rule on the conclusiveness of the findings of facts of the lower
courts. But Naguiats case does not fall under any of the exceptions. In any event, both the decisions of the appellate and
[17]

trial courts are supported by the evidence on record and the applicable laws.
Against the common finding of the courts below, Naguiat vigorously insists that Queao received the loan
proceeds. Capitalizing on the status of the mortgage deed as a public document, she cites the rule that a public document
enjoys the presumption of validity and truthfulness of its contents. The Court of Appeals, however, is correct in ruling that
the presumption of truthfulness of the recitals in a public document was defeated by the clear and convincing evidence in
this case that pointed to the absence of consideration. This Court has held that the presumption of truthfulness
[18]

engendered by notarized documents is rebuttable, yielding as it does to clear and convincing evidence to the contrary, as
in this case. [19]

On the other hand, absolutely no evidence was submitted by Naguiat that the checks she issued or endorsed were
actually encashed or deposited. The mere issuance of the checks did not result in the perfection of the contract of loan. For
the Civil Code provides that the delivery of bills of exchange and mercantile documents such as checks shall produce the
effect of payment only when they have been cashed. It is only after the checks have produced the effect of payment that
[20]

the contract of loan may be deemed perfected. Art. 1934 of the Civil Code provides:

An accepted promise to deliver something by way of commodatum or simple loan is binding upon the parties, but the
commodatum or simple loan itself shall not be perfected until the delivery of the object of the contract.

A loan contract is a real contract, not consensual, and, as such, is perfected only upon the delivery of the object of the
contract. In this case, the objects of the contract are the loan proceeds which Queao would enjoy only upon the
[21]

encashment of the checks signed or indorsed by Naguiat. If indeed the checks were encashed or deposited, Naguiat
would have certainly presented the corresponding documentary evidence, such as the returned checks and the pertinent
bank records. Since Naguiat presented no such proof, it follows that the checks were not encashed or credited to Queaos
account.
Naguiat questions the admissibility of the various written representations made by Ruebenfeldt on the ground that they
could not bind her following the res inter alia acta alteri nocere non debet rule. The Court of Appeals rejected the argument,
holding that since Ruebenfeldt was an authorized representative or agent of Naguiat the situation falls under a recognized
exception to the rule. Still, Naguiat insists that Ruebenfeldt was not her agent.
[22]

Suffice to say, however, the existence of an agency relationship between Naguiat and Ruebenfeldt is supported by
ample evidence. As correctly pointed out by the Court of Appeals, Ruebenfeldt was not a stranger or an unauthorized
person. Naguiat instructed Ruebenfeldt to withhold from Queao the checks she issued or indorsed to Queao, pending
delivery by the latter of additional collateral. Ruebenfeldt served as agent of Naguiat on the loan application of Queaos
friend, Marilou Farralese, and it was in connection with that transaction that Queao came to know Naguiat. It was also
[23]

Ruebenfeldt who accompanied Queao in her meeting with Naguiat and on that occasion, on her own and without Queao
asking for it, Reubenfeldt actually drew a check for the sum of P220,000.00 payable to Naguiat, to cover for Queaos
alleged liability to Naguiat under the loan agreement. [24]

The Court of Appeals recognized the existence of an agency by estoppel citing Article 1873 of the Civil
[25]

Code. Apparently, it considered that at the very least, as a consequence of the interaction between Naguiat and
[26]

Ruebenfeldt, Queao got the impression that Ruebenfeldt was the agent of Naguiat, but Naguiat did nothing to correct
Queaos impression. In that situation, the rule is clear. One who clothes another with apparent authority as his agent, and
holds him out to the public as such, cannot be permitted to deny the authority of such person to act as his agent, to the
prejudice of innocent third parties dealing with such person in good faith, and in the honest belief that he is what he appears
to be. The Court of Appeals is correct in invoking the said rule on agency by estoppel.
[27]

More fundamentally, whatever was the true relationship between Naguiat and Ruebenfeldt is irrelevant in the face of
the fact that the checks issued or indorsed to Queao were never encashed or deposited to her account of Naguiat.
All told, we find no compelling reason to disturb the finding of the courts a quo that the lender did not remit and the
borrower did not receive the proceeds of the loan. That being the case, it follows that the mortgage which is supposed to
secure the loan is null and void. The consideration of the mortgage contract is the same as that of the principal contract
from which it receives life, and without which it cannot exist as an independent contract. A mortgage contract being a
[28]

mere accessory contract, its validity would depend on the validity of the loan secured by it. [29]

WHEREFORE, the petition is denied and the assailed decision is affirmed. Costs against petitioner.
SO ORDERED.
 [G.R. No. 119005. December 2, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SABAS RAQUEL, VALERIANO RAQUEL and
AMADO PONCE, accused, SABAS RAQUEL and VALERIANO RAQUEL, accused-appellants.

DECISION
REGALADO, J.:

The court a quo found herein accused-appellants Sabas Raquel and Valeriano Raquel, as well as accused Amado
Ponce, guilty of the crime of robbery with homicide and sentenced them to suffer the penalty of reclusion perpetua, to pay
the heirs of Agapito Gambalan, Jr. the sum of P50,000.00 as indemnity for his death, and the amount of P1,500.00
representing the value of the stolen revolver. The Raquel brothers now plead for their absolution in this appellate review.
[1]

In an information dated August 27, 1986, the aforementioned accused were indicted for robbery with homicide before
the Regional Trial Court of Kabacan, Cotabato, Branch 16, allegedly committed on July 4, 1986 in Barangay Osias of the
[2]

Municipality of Kabacan.
Upon arraignment thereafter, all the accused pleaded not guilty. While trial was in progress, however, and before he
could give his testimony, accused Amado Ponce escaped from jail. [3]

The factual antecedents of the case for the People, as borne out by the evidence of record and with page references to
the transcripts of the court hearings, are summarized by the Solicitor General in the appellees brief:

At midnight of July 4, 1986, tragedy visited the peaceful lives of spouses Juliet and Agapito Gambalan, Jr. Thinking of a neighbor
in need, Agapito attended to the person knocking at the backdoor of their kitchen. Much to his surprise, heavily armed men emerged
at the door, declared a hold-up and fired their guns at him. (pp. 4-6, TSN, January 25, 1988)

Juliet went out of their room after hearing gunshots and saw her husbands lifeless (sic) while a man took her husbands gun and left
hurriedly. (p. 7, ibid.)

She shouted for help at their window and saw a man fall beside their water pump while two (2) other men ran away. (p. 9, ibid.)
 George Jovillano responded to Juliets plea for help. He reported the incident to the police. The police came and found one of the
perpetrators of the crime wounded and lying at about 8 meters from the victims house. He was identified as Amado Ponce. (pp. 5-7,
TSN, October 21, 1987; pp. 8-9, TSN, March 21, 1988)

Amado Ponce was first treated at a clinic before he was brought to the police station. (p. 27, ibid.)

Amado Ponce revealed to P/Sgt. Andal S. Pangato that appellants Sabas and Valeriano Raquel were the perpetrators of the crime
and that they may be found in their residence. However, the police failed to find them there since appellants fled immediately after
the shooting incident. (pp. 12-14, ibid.)

Appellants were later on apprehended on different occasions. (pp. 5-6, TSN, April 2, 1991) [4]

Upon the other hand, appellants relied on alibi as their defense, on the bases of facts which are presented in their brief
in this wise:

Accused Valeriano Raquel testified that on July 2, 1986, with the permission of his parents he left Paatan, Kabacan, Cotabato and
went to Tunggol Pagalungan, Maguindanao. He stayed in the house of his sister-in-law, the wife of his deceased brother. Together
with Boy Madriaga and Corazon Corpuz, he harvested palay on July 3 and 4. On July 5, while he was still asle(ep), police authorities
accompanied by his father arrested him and brought him to the municipal jail of Kabacan, Cotabato. He already heard the name of
accused Amado Ponce, to be an owner of a parcel of land in Paatan.

On cross-examination, he admitted that their house and that of Gambalan are located in the same Barangay. Before July 4, he
entertained no grudge against victim Agapito Gambalan. (TSN, April 2, 1991, pp. 2-20)

Antonio Raquel, 64 years old, testified that on July 2, 1986 he was at home when his son Valeriano Raquel told him that he was
going to Tunggol, Pagalungan, Maguindanao to harvest palay. On (the) same date, his other son, Sabas Raquel, also asked his
permission to leave since the latter, a soldier, was going to his place of assignment at Pagadian. On July 5, 1986, several policemen
came over to his house, looking for his two (2) sons. He gave them pictures of his sons and even accompanied them to Tunggol
where they arrested his son Valeriano. (TSN, April 3, 1991, pp. 3-26)

T/Sgt. Natalio Zafra, of the 102 Brigade, Aurora, Zamboanga, testified that on July 4, 1986, he was assigned in the 2nd Infantry
Battalion, First Infantry Division, Maria Cristina, Iligan City. Sabas Raquel was under his division then, and was on duty on July 4,
1986. (TSN, Nov. 6, 1992, pp. 2-20). [5]

On August 10, 1993, the trial court, as stated at the outset, rendered judgment finding all of the accused guilty beyond
reasonable doubt of the crime charged and sentenced them accordingly. [6]
 Not satisfied therewith, herein appellants filed a notice of appeal wherein they manifested that they were appealing the
decision to the Court of Appeals. The lower court ordered the transmittal of the records of the case to the Court of
[7]

Appeals. In view of the penalty imposed, the Court of Appeals properly forwarded the same to us.
[8] [9]

Before us, the defense submits a lone assignment of error, i.e., that the trial court erred in convicting accused Sabas
Raquel and Valeriano Raquel of the crime charged, despite absence of evidence positively implicating them as the
perpetrators of the crime.
We find such submission to be meritorious. A careful review and objective appraisal of the evidence convinces us that
the prosecution failed to establish beyond reasonable doubt the real identities of the perpetrators of, much less the
participation of herein appellants in, the crime charged.
The lone eyewitness, Juliet Gambalan, was not able to identify the assailants of her husband. In her testimony on direct
examination in court she declared as follows:
Q: You said you shouted right after the incident and pip (sic) at the window, did you see any when you pip (sic) at the window?
A: Yes, sir.
Q: What did you see if you were able to see anything?
A: I saw a person who fel(l) down beside the water pump and I saw again two (2) persons who were running away, sir.
Q: Were you able to identify this persons who fel(l) down near the jetmatic pump and two (2) persons running away?
xxx
Q: Now, you said somebody fel(l) down near the jetmatic pump, who is this person?
A: I do not know sir. I have known that he was Amado Ponce when the Police arrived.[10] (Italics ours.)

On cross-examination she further testified:

Q: For the first time when you shouted for help, where were you?
A: I was at the Veranda sir and I started shouting while going to our room.
Q: In fact you have no way (of) identifying that one person who was mask(ed) and got the gun of your husband because he was mask(ed), is
that not right?
A: Yes, sir.
Q: In fact, you saw only this one person got inside to your house and got this gun?
A: Yes, sir.
Q: And this Amado Ponce cannot be the person who have got this gun inside?
 FISCAL DIZON:
Already answered.
She was not able to identify, your Honor.
Q: You only saw this Amado Ponce when (h)e was presented to you by the police, is that right?
A: Yes, sir.[11]

xxx
Q: You testified in direct testimony you pip (sic) in jalousie after you shouted for help and you saw two (2) person(s) running, is that right?
A: Yes, sir.
Q: Now, you saw these persons running on the road, is that not right?
A: I saw them running sir going around.
Q: These two (2) persons were running going around?
A: They were running towards the road.
ATTY. DIVINO:
Going to the road.
Q: And you cannot identify these two (2) persons running towards the road?
A: No, sir.[12] (Emphases supplied.)
Even the corroborating witness, George Jovillano, in his testimony made no mention of who shot Agapito Gambalan. In
fact, in his sworn statement executed in the Investigation Section of the Kabacan Police Station on July 5, 1986, he
declared that:
19 Q: By the way, when you saw three persons passing about 5 meters away from where you were then drinking, what have you noticed
about them, if you ever noticed any?
19 A: I noticed that one of the men ha(d) long firearm which was partly covered by a maong jacket. The other one wore a hat locally known
as kipis meaning a hat made of cloth with leaves protruding above the forehead and seemed to be holding something which I failed to
recognize. The other one wore a shortpant with a somewhat white T-shirt with markings and there was a white T-shirt covering his
head and a part of his face as he was head-down during that time.
20 Q: Did you recognize any of these men?
19 A: No. Because they walked fast.[13] (Italics supplied.)

A thorough review of the records of this case readily revealed that the identification of herein appellants as the culprits
was based chiefly on the extrajudicial statement of accused Amado Ponce pointing to them as his co-perpetrators of the
crime. As earlier stated, the said accused escaped from jail before he could testify in court and he has been at large since
then.
The extrajudicial statements of an accused implicating a co-accused may not be utilized against the latter, unless these
are repeated in open court. If the accused never had the opportunity to cross-examine his co-accused on the latters
extrajudicial statements, it is elementary that the same are hearsay as against said accused. That is exactly the situation,
[14]

and the disadvantaged plight of appellants, in the case at bar.

Extreme caution should be exercised by the courts in dealing with the confession of an accused which implicates his
co-accused. A distinction, obviously, should be made between extrajudicial and judicial confessions. The former deprives
the other accused of the opportunity to cross-examine the confessant, while in the latter his confession is thrown wide
open for cross-examination and rebuttal. [15]

The res inter alios rule ordains that the rights of a party cannot be prejudiced by an act, declaration, or omission of
another. An extrajudicial confession is binding only upon the confessant and is not admissible against his co-accused. The
reason for the rule is that, on a principle of good faith and mutual convenience, a mans own acts are binding upon himself,
and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also
manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be
bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him. [16]

Although the above-stated rule admits of certain jurisprudential exceptions, those exceptions do not however apply to
[17]

the present case.

Firstly, except for that extrajudicial statement of accused Amado Ponce, there exists no evidence whatsoever linking
appellants to the crime. In fact, the testimony of police Sgt. Andal S. Pangato that appellant Sabas Raquel was wounded
and went to the clinic of Dr. Anulao for treatment using the name Dante Clemente, was negated by Dr. Anulao himself
[18]

who testified that he treated no person by the name of Danny Clemente. [19]

Secondly, this extrajudicial statement, ironically relied upon as prosecution evidence, was made in violation of the
constitutional rights of accused Amado Ponce. This was unwittingly admitted in the testimony of the same Sgt. Andal S.
Pangato who was the chief of the intelligence and investigation section of their police station:
Q: During the investigation did you inform him (of) his constitutional right while on the process of investigation?
A: No sir, because my purpose was only to get the information from him. . . . And after that I checked the information that he gave.
Q: Of course, you know very well that the accused should be assisted by counsel?
A: What I know is if when a person is under investigation you have in mind to investigate as to against (sic) him, and you have to inform his
constitutional right but if the purpose is to interrogate him to acquire information which will lead to the identity of the other accused we do
not need to inform him.
 Q: Dont you know that under the case of PP vs. Galit, the accused should be (re)presented by counsel that is the ruling of the Supreme Court?
A: I do not know if it is actually the same as this case.
Q: But it is a fact that you did not even inform him (of) his right?
A: No sir.
Q: At the time when you asked him he has no counsel.
A: No counsel, sir.[20]

Extrajudicial statements made during custodial investigation without the assistance of counsel are inadmissible and
cannot be considered in the adjudication of the case. While the right to counsel may be waived, such waiver must be made
with the assistance of counsel. These rights, both constitutional and statutory in source and foundation, were never
[21]

observed.
A conviction in a criminal case must rest on nothing less than a moral certainty of guilt. Without the positive identification
[22]

of appellants, the evidence of the prosecution is not sufficient to overcome the presumption of innocence guaranteed by
the Bill of Rights to them. While admittedly the alibi of appellants may be assailable, the evidence of the prosecution is
[23]

probatively low in substance and evidentiarily barred in part. The prosecution cannot use the weakness of the defense to
enhance its case; it must rely on the strength of its own evidence. In fact, alibi need not be inquired into where the
prosecutions evidence is weak. [24]

It would not even have been necessary to stress that every reasonable doubt in criminal cases must be resolved in favor
of the accused. The requirement of proof beyond reasonable doubt calls for moral certainty of guilt. In the instant case,
the test of moral certainty was neither met nor were the standards therefor fulfilled.
WHEREFORE, on reasonable doubt, the appealed judgment is REVERSED and accused-appellants Sabas Raquel and
Valeriano Raquel are hereby ACQUITTED of the offense charged, with costs de oficio.
SO ORDERED.

[G.R. No. 117401. October 1, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERNARDO QUIDATO, JR., accused-appellant.

 DECISION
ROMERO, J.:

Before us is an appeal from the judgment of the Regional Trial Court of Davao, Branch 4, dated March 2, 1994, finding accused-
appellant Bernardo Quidato, Jr. guilty of the crime of parricide.
On January 17, 1989, accused-appellant was charged with the crime of parricide before the Regional Trial Court of Davao. The
information reads as follows:

The undersigned accuses BERNARDO QUIDATO, JR. of the crime of Parricide under Article 246 of the Revised Penal
Code, committed as follows:

That on or about September 17, 1988, in the Municipality of Kaputian, Province of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping with
Reynaldo Malita and Eddie Malita, who are charged for (sic) Murder in a separate information, did then and there
wilfully, unlawfully and criminally, with the use of a bolo and an iron bar, assault, hack and stab his father, Bernardo
Quidato, Sr., on the different parts of his body, thereby inflicting upon him wounds which caused his death, and further
causing actual, moral and compensatory damage to the heirs of the victim.

Contrary to law. [1]

Accused-appellants case was tried jointly with the murder case filed against his co-accused, Reynaldo Malita and Eddie Malita who,
however, withdrew their not guilty plea during the trial and were accordingly sentenced. Thus, only accused-appellants case was tried on
the merits.
The prosecution, in offering its version of the facts, presented as its witnesses accused-appellants brother Leo Quidato, appellants
wife Gina Quidato, as well as Patrolman Lucrecio Mara. Likewise, the prosecution offered in evidence affidavits containing the extra-
judicial confessions of Eddie Malita and Reynaldo Malita. The two brothers were, however, not presented by the prosecution on the
witness stand. Instead, it presented Atty. Jonathan Jocom to prove that the two were assisted by counsel when they made their
confessions. Similarly, the prosecution presented MTC Judge George Omelio who attested to the due and voluntary execution of the
sworn statements by the Malita brothers.
Based on the foregoing pieces of evidence, the prosecutions version of the facts is as follows:
Bernardo Quidato, Sr. was the father of accused-appellant Bernardo Quidato, Jr. and Leo Quidato. Being a widower, Bernardo lived
alone in his house at Sitio Libod, Brgy. Tagbaobo, Kaputian, Davao. He owned sixteen hectares of coconut land in the area.
 On September 16, 1988, Bernardo, accompanied by his son, herein accused-appellant, and two hired hands, Reynaldo Malita and
Eddie Malita, went to Davao City to sell 41 sacks of copra. After selling the copra, Bernardo paid the Malita brothers for their labor, who
thereafter left. Bernardo and accused-appellant went back to Sitio Libod that same day.[2]
According to Gina Quidato, on the evening of the next day, September 17, 1988, accused-appellant and the Malita brothers were
drinking tuba at their house. She overheard the trio planning to go to her father-in-laws house to get money from the latter. She had no
idea, however, as to what later transpired because she had fallen asleep before 10:00 p.m.[3] Accused-appellant objected to Gina Quidatos
testimony on the ground that the same was prohibited by the marital disqualification rule found in Section 22 of Rule 130 of the Rules of
Court.[4] The judge, acknowledging the applicability of the so-called rule, allowed said testimony only against accused-appellants co-
accused, Reynaldo and Eddie.
As adverted to earlier, the Malita brothers confessed to their participation in the crime, executing affidavits detailing how Bernardo
was killed. Their version shows that Eddie had been living with accused-appellant for the past four years. At around 6:00 p.m. of
September 17, 1988, accused-appellant asked Reynaldo to come to the formers house to discuss an important matter. Upon Reynaldos
arrival at accused-appellants house, he saw that his brother Eddie was already there. They started drinking beer. The Malita brothers
alleged that it was at this juncture that accused-appellant proposed that they rob and kill his father. They went to Bernardos house only
at 10:00 p.m., after the rain had stopped. Reynaldo brought along a bolo. Upon reaching the house, accused-appellant knocked on the
door, asking his father to let them in. When Bernardo opened the door, Eddie rushed in and knocked the old man down. Reynaldo then
hacked Bernardo on the nape and neck. Accused-appellant and Eddie ransacked Bernardos aparador looking for money but they found
none; so, the three of them left.
The body of Bernardo was discovered the next day by accused-appellants son, who had gone there to call his Lolo for breakfast. The
cause of death, as stated in Bernardos death certificate was hypovolemic shock secondary to fatal hacking wound on the posterior neck
area.[5]
On September 27, 1988, Leo Quidato confronted his brother regarding the incident and learned that Reynaldo and Eddie Malita were
the ones responsible for Bernardos death. The two were promptly arrested by the police. Aside from arresting the latter two, however,
the police also arrested accused-appellant.
On September 29, 1988, the Malita brothers were interrogated by Patrolman Lucrecio Mara at the Kaputian Police Station. When
Mara apprised them of their constitutional rights, including their right to counsel, they signified their intent to confess even in the absence
of counsel. Aware that the same would be useless if given in the absence of counsel, Mara took down the testimony of the two but
refrained from requiring the latter to sign their affidavits. Instead, he escorted the Malita brothers to Davao City and presented them, along
with their unsigned affidavits, to a CLAO (now PAO) lawyer, Jonathan Jocom. [6]
Informed of the situation, Atty. Jocom conferred with Reynaldo and Eddie, again advising the two of their constitutional rights. The
CLAO lawyer explained the contents of the affidavits, in Visayan, to the Malita brothers, who affirmed the veracity and voluntary execution
of the same. Only then did Reynaldo and Eddie affix their signatures on the affidavits. [7]
In his defense, accused-appellant denied the allegations of the Malita brothers. He claimed that the Malita brothers were not at his
house on the evening of September 17, 1988. They, however, passed by his house at around 10:00 p.m. and asked him to come with
them to his fathers house, threatening him with harm if he refused. Out of fear, he led the way to Bernardos house and even knocked on
the latters door until Bernardo opened the same. In the ensuing commotion, he scampered away, but in his confusion, reached his house
only at around 11:00 p.m., although the same was only about one hundred fifty meters away from Bernardos house. He did not call for
help. Eddie arrived a while later. Accused-appellant claimed not to have seen the actual killing, having run away earlier. He, however,
admitted finding a bolo, encrusted with blood, at his house. He turned the same over to his brother, who, in turn, surrendered the same
to the police. Accused-appellant did not feel uneasy having Eddie around even if he knew of the latters participation in the crime. [8]
After due trial, the court a quo rendered the following judgment:

WHEREFORE, IN THE LIGHT OF THE FOREGOING, the court finds the accused, Bernardo Quidato, Jr., guilty beyond
reasonable doubt as a co-principal in the offense of Parricide which falls under Article 246 (of the Revised Penal Code),
for the death of his father, Bernardo Quidato, Sr., and accordingly, is hereby sentenced by this court to suffer the penalty
of RECLUSION PERPETUA, with all the accessory penalties provided by law and to indemnify the other heirs of
Bernardo Quidato, Sr., the amount of P50,000.00, in accordance with current case doctrines of the Supreme Court, and
to pay the costs.

SO ORDERED. [9]

From the aforesaid judgment of conviction, appellant interposed the present appeal, assigning the following errors:
1. THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE EXTRAJUDICIAL CONFESSIONS OF REYNALDO MALITA (EXH. C) AND
EDDIE MALITA (EXH. D) IN CLEAR VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED-APPELLANT TO
CONFRONT WITNESSES.
2. THE TRIAL COURT ERRED IN FINDING (THE) EXISTENCE OF CONSPIRACY IN THE CASE AT BAR.
3. THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE RAISED BY THE ACCUSED AND DISREGARDING (ANY) ILL-
MOTIVE OF REYNALDO AND EDDIE MALITA IN KILLING THE VICTIM.
Accused-appellant must be acquitted.
In indicting accused-appellant, the prosecution relied heavily on the affidavits executed by Reynaldo and Eddie. The two brothers
were, however, not presented on the witness stand to testify on their extra-judicial confessions. The failure to present the two gives these
affidavits the character of hearsay. It is hornbook doctrine that unless the affiants themselves take the witness stand to affirm the
averments in their affidavits, the affidavits must be excluded from the judicial proceeding, being inadmissible hearsay. [10] The voluntary
admissions of an accused made extrajudicially are not admissible in evidence against his co-accused when the latter had not been given
an opportunity to hear him testify and cross-examine him.[11]
The Solicitor General, in advocating the admissibility of the sworn statements of the Malita brothers, cites Section 30, Rule 130 of the
Rules of Court which provides that [t]he act or declaration of a conspirator relating to the conspiracy and during its existence, may be
given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration. The
inapplicability of this provision is clearly apparent. The confessions were made after the conspiracy had ended and after the
consummation of the crime. Hence, it cannot be said that the execution of the affidavits were acts or declarations made during the
conspiracys existence.
Likewise, the manner by which the affidavits were obtained by the police render the same inadmissible in evidence even if they were
voluntarily given. The settled rule is that an uncounseled extrajudicial confession without a valid waiver of the right to counsel that is, in
writing and in the presence of counsel is inadmissible in evidence. [12] It is undisputed that the Malita brothers gave their statements to
Patrolman Mara in the absence of counsel, although they signed the same in the presence of counsel the next day. As ruled in People
vs. Compil:[13]

[T]he belated arrival of a CLAO (now PAO) lawyer the following day even if prior to the actual signing of the uncounseled
confession does not cure the defect (of lack of counsel) for the investigators were already able to extract incriminatory
statements from accused-appellantThus, in People vs. De Jesus (213 SCRA 345 [1992]) we said that admissions
obtained during custodial interrogations without the benefit of counsel although later reduced to writing and signed in the
presence of counsel are still flawed under the Constitution.

With regard to Gina Quidatos testimony, the same must also be disregarded, accused-appellant having timely objected thereto under
the marital disqualification rule. As correctly observed by the court a quo, the disqualification is between husband and wife, the law not
precluding the wife from testifying when it involves other parties or accused.[14] Hence, Gina Quidato could testify in the murder case
against Reynaldo and Eddie, which was jointly tried with accused-appellants case. This testimony cannot, however, be used against
accused-appellant directly or through the guise of taking judicial notice of the proceedings in the murder case without violating the marital
disqualification rule. What cannot be done directly cannot be done indirectly is a rule familiar even to law students.
Given the inadmissibility in evidence of Gina Quidatos testimony, as well as of Reynaldo and Eddies extrajudicial confessions, nothing
remains on record with which to justify a judgment unfavorable to accused-appellant. Admittedly, accused-appellants defense, to put it
mildly, is dubious. His alleged acquiescence to the demand of the Malita brothers to accompany them to his fathers house on the strength
of the latters verbal threats, his incredulous escape from the clutches of the two, his inexplicable failure to return home immediately, his
failure to seek assistance from the authorities, the fact that Eddie stayed with him immediately after the incident, and the nine-day lacuna
between the killing and his pointing to the Malita brothers as the culprits, all suggest a complicity more than that of an unwilling
participant. Yet, suspicion, no matter how strong, should not sway judgment, it being an accepted axiom that the prosecution cannot rely
on the weakness of the defense to gain a conviction, but must establish beyond reasonable doubt every circumstance essential to the
guilt of the accused.[15] This the prosecution has failed to demonstrate.
WHEREFORE, the appeal is hereby GRANTED and the decision of the Regional Trial Court of Davao City in Criminal Case No. 89-
9 dated March 2, 1994, is REVERSED and SET ASIDE. Accused-appellant Bernardo Quidato, Jr. is hereby ACQUITTED on ground of
reasonable doubt. Consequently, let the accused be immediately released from his place of confinement unless there is reason to detain
him further for any other legal or valid cause. With costs de oficio.
SO ORDERED.
 [G.R. No. 123070. April 14, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. CASIANO BUNTAG alias CIANO and DIEGO BONGO, appellants.

DECISION
CALLEJO, SR., J.:

This is an appeal from the Decision of the Regional Trial Court of Tagbilaran City, Branch 3, in Criminal Case No.
[1]

7729, convicting the appellants Casiano Buntag alias Ciano and Diego Bongo of murder, sentencing each of them
to reclusion perpetua, and directing them to jointly indemnify the heirs of the victim Berno Georg Otte the sum of P50,000
as moral damages.

The Indictment

The appellants were charged with murder in an Information, the accusatory portion of which reads:

That on or about the 9th day of February, 1992, in the municipality of Panglao, province of Bohol, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to kill and without any justifiable cause, conspiring,
confederating and mutually helping each other, with treachery by the suddenness and unexpectedness of the acts, the victim who was
unarmed being then unaware thereof, did then and there willfully, unlawfully and feloniously attack, assault and stab with the use of
a bladed instrument one Berno Georg Otte (a German national), hitting and injuring the latter on his chest, thereby causing his
immediate death; to the damage and prejudice of the heirs of the victim in the amount to be proved during the trial.

Acts committed contrary to the provisions of Art. 248 in relation to Art. 14 all of the Revised Penal Code as amended. [2]

The Case for the Prosecution

Before February 8, 1992, Berno Georg Otte, a German national and a tourist, checked in at the Alona Ville Beach
[3]

Resort located in Panglao, Bohol. The resort manager, Herma Clarabal Bonga, assigned Otte to Room No. 9 and gave
[4] [5]

the latter his room key.

 On February 8, 1992, Otte took his dinner at the resorts restaurant. Bonga talked to him regarding the disco which was
about to unfold that night in lower Tawala near the Catibo Chapel. [6]

At about 10:00 p.m., Bonga went to the disco party where she saw Otte seated at one of the tables. She noticed that
[7]

he had some companions whom she failed to recognize. [8]

Isidro A. Mihangos, a 19-year-old student, and Benigno Ninoy Guigue were also at the disco. At around 2:00 a.m. of
February 9, 1992, Mihangos and Guigue decided to call it a night and walked home, with their respective bicycles at their
sides. At the crossing to the Alona Beach, they saw a man lying on the road but did not recognize him. They walked past
[9]

the prostrate man. When they were about twenty-five meters away from the body by the road, they met Casiano Buntag
[10]

and Diego Bongo, their barriomates. Suddenly, Buntag and Bongo jointly and simultaneously lunged at them. Afraid for
[11]

their lives, Mihangos and Guigue fled and sought refuge in the house of Guigues uncle, Aquilino Bongo. In the process,
[12]

they left their bicycles behind. Aquilino Bongo then accompanied Mihangos and Guigue to where they left their bicycles.
Mihangos and Guigue retrieved their bicycles, but Buntag and Bongo were no longer there.
At around 5:30 a.m. of February 9, 1992, the police station of Panglao, Bohol, received a report by radio call about a
man, believed to be dead, lying at the side of the crossroad near the Alona Beach. PO1 Yolando E. Hormachuelos,
[13]

together with PO1 Mauro Sumaylo and PO1 Dominie Ragusta, proceeded to the crime scene. They were accompanied
[14]

by the Municipal Health Officer, Dr. Julita L. Cogo, who confirmed that the man died due to a stab wound. The policemen
[15]

found a hunting knife about one meter away from the body. Constancio Geoivencal took pictures of the
[16]

cadaver. Hormachuelos took custody of the knife. [17]

In the course of their investigation, the policemen learned that Mihangos and Guigue had seen the dead body by the
road. Hormachuelos fetched Mihangos and Guigue from their houses and brought them to the road where the body of
Otte was found. Mihangos and Guigue narrated how they found the body at around 2:00 a.m. that day, as well as their
encounter with Bongo and Buntag.
At about 1:00 p.m. that day, Hormachuelos took appellant Bongo to the police station and investigated him without the
assistance of counsel. Bongo admitted that he took Ottes key to Room No. 9 and hid it near their house. He then drew a
sketch showing the place where he hid the key, at the back of their house. Bongo also admitted that he was with appellant
Casiano Buntag. The policemen went to Bongos house and recovered the key to Ottes room as indicated by Bongo in his
sketch.
At 2:00 p.m., Guigue arrived at the police station and gave his statement to Hormachuelos. At 3:00 p.m., Mihangos
[18]

gave his statement to SPO1 Proculo Bonao. Hormachuelos then took custody of Casiano Buntag and brought him to the
[19]

police station where he was asked about his involvement in the killing of Otte without the assistance of counsel. However,
Buntag opted to keep silent. When apprised that Diego Bongo had implicated him, Buntag, this time with the assistance
of his counsel, Atty. Nerio G. Zamora, gave a statement on February 13, 1992 to a police investigator. He stated that at
1:00 a.m. on February 9, 1992, he was walking back home from the disco place where he caught up with Diego Bongo
and Otte at the crossing of Alona Beach. He saw Bongo poke a knife at Otte. Bongo then ordered him to box Otte but he
refused, and moved back about three meters. Bongo himself then boxed Otte three times on the face. When Otte fell to
the ground, Bongo stabbed him on the chest. Buntag also stated that he then ran back home, but Bongo followed him and
cautioned him not to reveal the incident to anybody or else he would be implicated. Buntag subscribed and swore to the
[20]

truth of his statement on February 21, 1992 before Judge Antonio Sarce of the Municipal Circuit Trial Court.
In the meantime, Municipal Health Officer Dr. Julita Lood-Cogo performed an autopsy on the cadaver of Otte and
submitted her Post-Mortem Report which contained the following findings:

Stab wound, anterior chest, right, at the level of the 4th rib, approx. 2 cms. x 1 cm. in size, with a depth of approx. 12 cms., directed
upwards and medially, with a complete fracture of the 4th rib, right, involving a portion of the right lung and base of the heart.

Cause of death:

CARDIORESPIRATORY ARREST DUE TO HEMORRHAGE, SECONDARY TO STAB WOUND, ANTERIOR CHEST,

RIGHT. [21]

On March 7, 1992, a criminal complaint for murder was filed against appellants Bongo and Buntag with the Municipal
Circuit Trial Court. Attached to the records was Buntags sworn statement dated February 21, 1992. Only appellant Bongo
submitted his counter-affidavit on February 27, 1992, subscribed and sworn to before Judge Antonio Sarce, where he [22]

confirmed (a) Buntags account in his sworn statement before Judge Sarce that they were with Otte at 1:00 a.m. on
February 9, 1992 at the crossing towards Alona Beach Resort, and (b) that he was armed with a hunting knife. He further
stated therein that while at the crossing, Buntag and Otte, who were both drunk, had an altercation and that he tried to
pacify them but in the process, Buntag pulled out his (Bongos) hunting knife from his waist and stabbed Otte with it. [23]

After the requisite preliminary investigation, the MCTC issued a resolution finding probable cause against the
appellants for murder and issued warrants for their arrest. The court found Buntags sworn statement and Bongos counter-
affidavit self-serving.
On June 4, 1992, the day of the appellants arraignment in the Regional Trial Court, appellant Buntag, through counsel,
Atty. Nerio G. Zamora, filed a Motion to Discharge (him) to be a Witness for the Prosecution, alleging inter alia:

1) That there is absolute necessity for the testimony of said accused whose discharge is requested;
2) That there is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said
accused, as can be shown by the affidavit of said accused in relation to the affidavits or sworn statements of Ponciano Horcerada,
Isidro Mihangos, Benigno Guigue, Alfredo Guioguio, and PO1 Yolando [E.] Hormachuelos;

3) That the testimony of herein accused can be substantially corroborated in its material points;

4) That the said accused does not appear to be the most guilty; and

5) That the said accused has not at any time been convicted of any offense involving moral turpitude;

6) That herein accused-movant hereby expresses his consent to be a witness for the government. [24]

However, the prosecution opposed the motion on the ground that both accused were equally guilty. On June 8, 1992,
the court issued an Order denying the motion, and the appellants, assisted by their respective counsels, entered pleas of
not guilty.[25]

During the trial, the prosecution presented Judge Antonio G. Sarce who testified that he conducted the preliminary
examination of the case and identified both Buntags sworn statement and Bongos counter-affidavit as subscribed and
sworn to before him (Judge Sarce) in his chambers.
After presenting all its witnesses, the prosecution offered in evidence the hunting knife, the key to room no. 9 of the
[26]

beach resort, the sworn statement of Buntag, and Bongos counter-affidavit to prove that both appellants conspired to
[27] [28] [29]

kill the victim and that they in fact killed the victim, and as part of the testimony of Judge Sarce. Both appellants objected
to the admission of the said sworn statements and counter-affidavit solely on the ground that the statements executed by
one accused was hearsay as to the other accused. By way of rejoinder, the prosecution alleged as follows:
[30]

1. That exhibits A, B, C, D, E and all its submarkings are all relevant, pertinent and material evidence against the accused in the
above-entitled case, therefore, admissible in evidence;

2. That exhibits F and all its submarkings are not hearsay and do not violate the res inter alios acta rule because they are principally
offered against accused Casiano Buntag, the affiant. The sworn statement of Casiano Buntag is offered mainly as admission of said
accused Casiano Buntag;

3. That exhibits G and all its submarkings are not hearsay and do not violate the res inter alios acta rule because they are principally
offered against accused Diego Bongo, the affiant. The counter-affidavit of Diego Bongo is offered mainly as admission of said
accused Diego Bongo.
WHEREFORE, it is most respectfully prayed of this Honorable Court to admit in evidence all the prosecutions exhibits formally
offered, for the purpose for which they are being offered. [31]

The court admitted the documentary and object evidence of the prosecution. The appellants opted not to adduce any
evidence on their behalf. Instead, they filed, without leave of court, a Motion to Acquit. On June 7, 1993, the court issued
an Order denying the motion.
On August 14, 1995, the trial court rendered judgment finding both the appellants guilty of the crime charged. The
decretal portion of the decision of the trial court reads:

FROM THE FOREGOING PREMISES, this Court renders judgment finding the two (2) accused Casiano Buntag, alias Ciano, and
Diego Bongo guilty beyond reasonable doubt of the crime of MURDER, an act committed contrary to the provisions of Article 248,
in relation to Article 14 of the Revised Penal Code, as amended, and does hereby sentences each one of them to the penalty
of Reclusion Perpetua, with all the accusatory penalties imposed by law.

There being no evidence disclosed as to the civil liability, this Court, therefore, limits in providing that the accused shall pay jointly
the heirs of the deceased Berno Georg Otte the amount of Fifty Thousand Pesos (P50,000.00), by way of moral damages, but
without subsidiary imprisonment in case of insolvency.

Without pronouncement as to costs.

SO ORDERED. [32]

The trial court relied, inter alia, on the sworn statement of Buntag dated February 21, 1992 and the counter-affidavit
[33]

of Bongo in convicting them of the crime charged. Both the appellants appealed the decision.
[34]

Although the appellants enumerated separate issues in their briefs, the same may be synthesized into three issues,
namely: (a) whether or not the prosecution proved beyond reasonable doubt that they conspired to kill the victim Otte and
that they, in fact, killed him; (b) whether or not the appellants are guilty of murder; and, (c) whether or not the appellants
are liable for moral damages to the heirs of the victim. Appellant Bongos contention that he was deprived of his right to
due process on his claim that the transcripts of the respective testimonies of Dr. Julita Cogo, SPO1 Bonao and resort
manager Bonga were not transmitted to this Court is belied by the records. In a Resolution dated September 11, 2000,
the Court declared that, based on the records, the transcripts of stenographic notes in this case were already complete. [35]

The appellants contend that the prosecution failed to adduce direct or circumstantial evidence to prove that they
conspired to kill the victim, and that they, in fact, killed him. They argue that although the prosecution adduced
circumstantial evidence consisting of the extrajudicial sworn statement of appellant Buntag and the counter-affidavit of
appellant Bongo, such evidence is utterly insufficient to prove their guilt beyond reasonable doubt.
Furthermore, according to the appellants, the admissions made by appellant Buntag in his sworn statement are binding
on him only. Being prejudicial to appellant Bongo, such admissions are not inadmissible against the latter unless repeated
in open court by appellant Buntag, thus, affording appellant Bongo the right to cross-examination. Likewise, the admissions
of appellant Bongo in his sworn statement are inadmissible against appellant Buntag, unless the former repeated his
admissions during the trial, affording the latter an opportunity to cross-examine the said appellant. The appellants further
aver that since they opted not to testify on their respective statements, there was no opportunity for cross-
examination. Consequently, the admissions made by one appellant in his sworn statement are hearsay evidence against
the other appellant, and vice versa. In fine, the appellants contend that the trial court should have acquitted them of the
crime charged.
We agree with the appellants that the prosecution failed to adduce direct evidence that they conspired to kill Otte and
that they, in fact, stabbed and killed the victim. However, we find and so hold, after an incisive review of the records, that
the prosecution adduced sufficient circumstantial evidence to prove the guilt of the appellants beyond reasonable doubt.
Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to commit a
crime and decide to commit it. Direct proof is not essential to establish conspiracy, and may be inferred from the collective
acts of the accused before, during and after the commission of the crime. Conspiracy can be presumed from and proven
[36]

by acts of the accused themselves when the said acts point to a joint purpose and design, concerted action and community
of interests. It is not necessary to show that all the conspirators actually hit and killed the victim. Conspiracy renders all
[37]

the conspirators as co-principals regardless of the extent and character of their participation because in contemplation of
law, the act of one conspirator is the act of all.[38]

The crime charged may also be proved by circumstantial evidence, sometimes referred to as indirect or presumptive
evidence. Circumstantial evidence is sufficient on which to anchor a judgment of conviction if the following requisites are
established: (a) there is more than one circumstance; (b) the facts from which the inferences are derived have been
established; and, (c) the combination of all the circumstances is such as to warrant a finding of guilt beyond reasonable
doubt.[39]

In People v. Delim, we held, thus:

[40]

The prosecution is burdened to prove the essential events which constitute a compact mass of circumstantial evidence, and the proof
of each being confirmed by the proof of the other, and all without exception leading by mutual support to but one conclusion: the
guilt of the accused for the offense charged. For circumstantial evidence to be sufficient to support a conviction, all the
circumstances must be consistent with each other, consistent with the hypothesis that accused is guilty and at the same time
inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt. If the prosecution
adduced the requisite circumstantial evidence to prove the guilt of the accused beyond reasonable doubt, the burden of evidence
shifts to the accused to controvert the evidence of the prosecution. [41]

In convicting the appellants of the crime charged, the trial court relied not only on the counter-affidavit of appellant
Bongo and appellant Buntags sworn statement, but also on the other evidence on record, namely, the knife used in
[42] [43]

killing the victim, the key to Ottes room, and the collective testimonies of the other witnesses of the prosecution.
[44] [45]

The general rule is that the extrajudicial confession or admission of one accused is admissible only against the said
accused but is inadmissible against the other accused. The same rule applies if the extrajudicial confession is made by
[46]

one accused after the conspiracy has ceased. However, if the declarant/admitter repeats in court his extrajudicial
confession during trial and the other accused is accorded the opportunity to cross-examine the admitter, such confession
or admission is admissible against both accused. The erstwhile extrajudicial confession or admission when repeated
[47]

during the trial is transposed into judicial admissions.

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
[48]

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.
[49] [50]

In this case, appellant Buntag made extrajudicial admissions against his interest in his sworn statement, and not a
confession. So did appellant Bongo in his counter-affidavit. Such admissions in the form of affidavits, made in the Municipal
Trial Court in the course of its preliminary investigation, are high quality evidence. MCTC Judge Antonio Sarce testified
[51]

on the said sworn statement and counter-affidavit and was cross-examined. Moreover, some of the extrajudicial
[52]

inculpatory admissions of one appellant are identical with some of the extrajudicial inculpatory admissions of the other,
and vice versa. This corroborates and confirms their veracity. Such admissions, made without collusion, are akin to
interlocking extrajudicial confessions. They are admissible as circumstantial evidence against the other appellant
implicated therein to show the probability of his participation in the commission of the crime and as corroborative evidence
against him. The Court rejects the appellants contention that they were deprived of their right to cross-examine the other
[53]

on the latters admissions against the other. Through their common counsel, they opted not to testify and be cross-
examined on their respective statements by the prosecution. They opted to file a motion to acquit. Besides, they had
opportunity to cross-examine Judge Sarce before whom they swore to the truthfulness of their statements. [54]

In this case, the prosecution adduced the following circumstantial evidence which constitutes proof beyond reasonable
doubt that the appellants, indeed, conspired to kill and did kill the victim:
 1. Appellant Buntag admitted, in his sworn statement, that, at about 1:00 a.m. on February 9, 1992, he was in the
[55]

company of appellant Bongo and the victim Otte at the crossing of Alona Beach, and that appellant Bongo was armed with
a hunting knife.Appellant Buntag identified the victim through the latters picture, as well as the hunting knife used in the
killing. Appellant Bongo, in his counter-affidavit, confirmed the truth of appellant Buntags admissions and also admitted
[56]

that on the said date, time and place, he was with appellant Buntag and the victim, and that he was armed with a hunting
knife which was tucked on his waist.
2. The appellants admitted in their respective statements that on the said occasion, Otte died from a stab wound
caused by a hunting knife.
3. Appellant Bongo admitted in his counter-affidavit that he took the key to the victims room and hid it near their house
where the policemen found it.
4. While both appellants were within the periphery of the situs criminis, Mihangos and Guigue sauntered by with their
bicycles at their sides. Suddenly, the appellants jointly and simultaneously lunged at them, causing Mihangos and Guigue
to believe that their lives were in peril, impelling them to run for their lives and seek sanctuary in the house of Guigues
uncle, Aquilino Bongo. By the time Mihangos and Guigue returned to the situs criminis to retrieve their bicycles, the
appellants had already left.
5. In his sworn statement, appellant Buntag admitted that after the victim was stabbed, he and appellant Bongo fled
from the situs criminis. This was corroborated by the testimony of Mihangos. The presence of both appellants at the situs
criminis and their flight from the scene are strong indicia of their participation in the commission of the crime and their
complicity therein. Appellant Bongo opted not to testify or adduce evidence to controvert the testimony of Mihangos and
[57]

the admissions of the appellant prejudicial to him.

6. The hunting knife of appellant Bongo which was used to kill the victim was left at the scene of the crime where the
policemen recovered it shortly thereafter.
7. The appellants admitted in their respective sworn statements that the victim was stabbed once with a hunting
knife. These admissions were corroborated by Dr. Julita Cogos finding that the victim was stabbed once on the anterior
chest area. The doctor testified that the stab wound could have been caused by a sharp-edged weapon.
[58] [59]

8. Neither of the appellants brought the victim to the hospital for immediate medical attendance and operation.
9. Although the appellants pointed to the other as the assailant in their respective statements, neither of them reported
the stabbing to the police authorities and claimed that the other killed the victim.
10. Neither of the appellants took the witness stand to deny any involvement in the killing of the victim. The evidence
of the prosecution, thus, stands unrebutted.
 The appellants cannot rely on the exculpatory portions of their respective statements as basis for their acquittal of the
crime charged. In the case of appellant Buntag, he avers in his sworn statement that he was ordered by appellant Bongo
to box the victim and when he refused, appellant Bongo himself boxed and stabbed the victim with the hunting knife. When
appellant Buntag fled from the scene and went back home, appellant Bongo followed and warned him not to divulge the
incident so that he would not be implicated.For his part, appellant Bongo turned the tables on appellant Buntag and claimed
in his counter-affidavit that the latter snatched the hunting knife from his waist and stabbed the victim in the heat of their
altercation. The stabbing was so sudden, he insists, that he was unable to stop appellant Buntag from stabbing the victim.
We are not persuaded by the claims of the appellants for the following reasons:
First. Contrary to the claim of appellant Buntag that appellant Bongo boxed the victim, the necropsy report of Dr. Cogo
failed to show that the victims body sustained hematoma, bruises or contusions. The findings of the doctor must prevail
as against the bare statements of the appellants.
Second. Appellant Buntag admitted in his sworn statement that before he and appellant Bongo could leave the situs
criminis after the victim was stabbed, Mihangos and Guigue arrived. The appellants lunged jointly and simultaneously at
the two teenagers which so terrified the latter that they fled for their lives. If, as appellant Buntag claims, he had nothing
to do with the stabbing of the victim, he should have sought the help of the teenagers, brought the victim to the hospital
and reported to the police authorities that it was appellant Bongo who stabbed the victim. Appellant Buntag failed to do
so. Neither did appellant Bongo seek the help of the two teenagers and report the stabbing to the police authorities. Both
appellants unexplained omission is another indication of their conspiracy and complicity in the crime charged.
Third. Appellant Bongo took the key from the body of the victim and hid it near their house where the policemen found
it. The appellant has not explained why he had the key to the victims room and hid it near their house. He owned the
hunting knife used in stabbing the victim. He knew or should have known that sooner or later, the policemen would trace
the knife to him; and yet, appellant Bongo failed to report the incident to the police authorities and surrender the knife to
them.
Fourth. Appellant Bongo denied involvement in the killing and pointed to appellant Buntag as the assailant only after
the latter had executed his own sworn statement pointing to appellant Bongo as the victims assailant. We are convinced
that appellant Bongos denial of any involvement in the killing is but a belated afterthought to escape criminal liability for
the victims death.
The trial court convicted the appellants of murder under Article 248 of the Revised Penal Code, as amended, and
sentenced each of them to reclusion perpetua. We note, however, that the trial court, in its amended decision, made no
finding on any attendant circumstance which would qualify the killing to murder. It bears stressing that under the Rules of
Criminal Procedure, any qualifying circumstance attendant to the commission of a crime must be alleged in the Information
and proved by the prosecution, conformably to the constitutional right of an accused to be informed of the nature of the
charges against him.
In this case, the Information alleged that treachery was attendant in the commission of the crime. The prosecution was
burdened to prove beyond reasonable doubt, not only the crime itself, but also the qualifying circumstance
of alevosia. Treachery cannot be based on speculations and surmises. In order that treachery may be appreciated as a
[60]

qualifying circumstance under Article 14 of the Revised Penal Code, the prosecution is burdened to prove that (a) the
malefactor employed means, method or manner of execution affording the person attacked no opportunity to defend
himself or to retaliate and, (b) the means, method or manner of execution was deliberately or consciously adopted by the
offender. In this case, there was no eyewitness to the crime.
On the other hand, appellant Buntag, in his sworn statement, claimed that before the victim was stabbed, appellant
Bongo and the victim had an altercation; appellant Bongo, in his counter-affidavit, stated that it was appellant Buntag and
the victim who had an altercation before the victim was killed. There is no evidence that the appellants deliberately or
consciously adopted a method or means of execution to insure the death of the victim.
In fine then, the appellants are guilty only of homicide, punishable under Article 249 of the Revised Penal Code
with reclusion temporal in its full range, which is twelve (12) years and one (1) day to twenty (20) years. There being no
modifying circumstance attendant to the crime, the maximum of the indeterminate penalty should be in its medium period.
The trial court awarded moral damages to the heirs of the victim, although the prosecution failed to present any heir of
the victim as witness. The trial court, likewise, failed to award civil indemnity ex delicto to the heirs of the victim. The
decision of the trial court shall, thus, be modified accordingly.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Tagbilaran City, Branch 3, in Criminal
Case No. 7729 is AFFIRMED WITH MODIFICATIONS. Appellants Casiano Buntag alias Ciano and Diego Bongo are
found guilty, as principals, of homicide under Article 249 of the Revised Penal Code. There being no modifying
circumstances attendant to the crime, each of the appellants are sentenced to suffer an indeterminate penalty from ten
(10) years of prision mayor, in its medium period, as minimum, to sixteen (16) years and one (1) day of reclusion
temporal in its medium period, as maximum. The award of moral damages is deleted. The said appellants are ordered to
pay, jointly and severally, to the heirs of the victim Berno Georg Otte, P50,000 as civil indemnity, conformably to current
jurisprudence. Costs de oficio.
[61]

SO ORDERED.