Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 74145 June 17, 1987
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ZOSIMO CRISOLOGO, alias "AMANG", defendant-appellant.
The Solicitor General for plaintiff-appellee.
Marcelino G. Agana III for defendant-appellant.

PADILLA, J.:
Appeal from a decision of the Court of First Instance of Davao del Sur in Criminal Case No. 92
(76) convicting the defendant of robbery with homicide, sentencing him to the death penalty,
and ordering him to indemnity the heirs of Martin Francisco the sums of P35,000.00 for loss
of life, P25,000.00 for funeral expenses, P30,000.00 for loss of earnings and P20,000.00 for
moral damages.
On 5 May 1976, a criminal complaint was filed by the Station Commander with the Municipal
Court of Magsaysay, Davao del Sur against the accused Zosimo Crisologo alias "Amang," a
deaf-mute, for robbery and homicide alleged to have been committed on 1 May 1976
between ten to eleven o'clock in the evening in Calamagoy, Poblacion Magsaysay, Davao del
Sur.
The following information was subsequently filed by the Provincial Fiscal against the accused
on 16 September 1977:
That on or about the 1st day of May, 1976, in the Municipality of
Magsaysay, Province of Davao del Sur, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed
with a bladed weapon, with violence against and intimidation upon
persons, and with intent of gain, did then and there wilfully, unlawfully
and feloniously rob Martin Francisco of one (1) "Seiko 5 Actus" wrist
watch valued at Four Hundred (P400.00) Pesos and a two battery
flashlight valued at Thirty (P30.00) Pesos in the total amount of Four
Hundred Thirty (P430.00) Pesos, to the damage and prejudice of the said
owner in the amount aforesaid and on the same occasion, the above-
named accused, with intent to kill wilfully, unlawfully and feloniously
attack[ed] and stab[bed] the said Martin Francisco with the same bladed
weapon, thereby inflicting upon him wounds which caused his death.
CONTRARY TO LAW with the aggravating circumstance of:
(a) disregard of the respect due the offended party on account of his age;
and
(b) night time.
Digos, Davao del Sur, Philippines, September 15, 1977.
On 12 December 1977, arraignment was set. The accused was allegedly informed of the
charge against him through sign language by Special Policeman Alejandro Munoz a childhood
acquaintance. Mr. Munoz subsequently entered a plea of guilty on behalf of the accused.
Upon objection of counsel, however, this plea was disregarded and arraignment was
rescheduled until such time as the Court could avail of the services of an expert in the sign
language from the school of the deaf and dumb.
On 26 June 1979 the Court through another presiding judge, upon insistent plea of defense
counsel for a sign language expert to assist the accused, again reset arraignment as no expert
in sign language was available. The School for the Deaf and Dumb in Pasay City was sent a
copy of the court order to enable it to furnish the court with an expert in sign language. No
such expert was made available.
On 9 November 1982, or after five years from the date of filing of the information, and order
through still another presiding judge was entered directing that a representative of the
School of the Deaf and Dumb in Bago Gallera, Talomo District, Davao City be availed of to
enable the accused to intelligently express his understanding of a plea of guilty or not guilty.
Apparently no sign language expert or representative ever arrived.
On 6 April 1983, the accused through a counsel de oficio waived the reading of the
information and pleaded not guilty. Trial proceeded without any evidence being presented
on his part. Finally, on 10 February 1986, without the services of an expert in sign language
ever being utilized at any stage of the proceedings, the accused was found guilty beyond
reasonable doubt of robbery with homicide and sentenced to die by electrocution. Executive
clemency was recommended, however, in view of the accused's infirmity and his nearly ten-
year detention as a suspect.
Counsel for the accused and the Solicitor-General now ask for the reversal of the judgment of
conviction due to the failure of the trial court to safeguard the accused's right to due process
of law and the insufficiency of the purely circumstantial evidence presented to overcome the
constitutional presumption of innocence in favor of the accused.
We find their position to be well-taken.
The absence of an interpreter in sign language who could have conveyed to the accused, a
deaf-mute, the full facts of the offense with which he was charged and who could also have
communicated the accused's own version of the circumstances which led to his implication in
the crime, deprived the accused of a full and fair trial and a reasonable opportunity to defend
himself. Not even the accused's final plea of not guilty can excuse these inherently unjust
circumstances.
The absence of a qualified interpreter in sign language and of any other means, whether in
writing or otherwise, to inform the accused of the charges against him denied the accused
his fundamental right to due process of law. 1The accuracy and fairness of the factual
process by which the guilt or innocence of the accused was determined was not safeguarded.
The accused could not be said to have enjoyed the right to be heard by himself and counsel,
and to be informed of the nature and cause of the accusation against him
2
in the
proceedings where his life and liberty were at stake.
In Terry v. State,
3
where a deaf-mute accused of manslaughter was not provided with an
interpreter despite repeated requests from counsel, it was held:
... The Constitution of this state expressly provides that an accused has a
right to be heard by himself and counsel, also, to demand the nature and
cause of the accusation; against him, and, further to be confronted by the
witnesses, who are to testify against him. In constructing this
constitutional provision it needs no discussion in deciding that all this
must be done in a manner by which the accused can know, the nature
and the cause of the accusation he is called upon to answer, and all
necessary means must be provided, and the law so contemplates, that
the accused must not only beconfronted by the witnesses against him,
but he must be accorded all necessary means to know and understand
the testimony given by said witnesses, and must be placed in a condition
where he can make his plea rebut such testimony, and give his own
version of the transaction upon which the accusation is based. This the
fundamental law accords, and for this the law must provide. These
humane provisions must not, and cannot, be dependent upon the ability,
financial or otherwise, of the accused ... [This] constitutional right ...
would be meaningless and a vain and useless provision unless the
testimony of the witnesses against him could be understood by the
accused. Mere confrontation of the witnesses would be useless,
bordering upon the farcical, if the accused could not hear or understand
their testimony. So, also, as to the nature and cause of the accusation. In
the absence of an interpreter it would be a physical impossibility for the
accused, a deaf-mute, to know or to understand the nature and cause of
the accusation against him, and, as here, he could only stand by
helplessly, take his medicine, or whatever may be coming to him, without
knowing or understanding, and all this in the teeth of the mandatory
constitutional rights which apply to an unfortunate afflicted deafmute,
just as it does to every person accused of a violation of the criminal law.
In other words the physical infirmity of this appellant can in no sense
lessen his rights under the Constitution, and, in the proper administration
of its laws, this great and sovereign state must and will accord the means
by which its citizens, humble and afflicted though they may be, shall
receive all the rights, benefits and privileges which the Constitution, laws,
regulations, and rules of practice provide.
4

The basic constitutional infirmity alone in the conduct of the case against the accused is, in
our candid assessment, fatal to the judgment of conviction meted out against him.
Aside from the unfair setting and circumstance in which the accused was convicted,
insufficiency of evidence to warrant a finding of guilty beyond reasonable doubt also leads
this Court to set aside the conviction. The following events and circumstances are relevant in
this regard:
On 1 May 1976, at past eight o'clock in the evening, the accused and the deceased were last
seen walking away together from a sari-sari store where they had been drinking tuba steadily
in apparent harmony. At around eleven thirty of the same evening, the accused suddenly
appeared in the house of Wilson Evangelists, who was then with relatives butchering a pig
for the baptism of his child the following day. The accused was panting and trembling, and
told Wilson Evangelista in sign language that he had come from Calamagoy, at the side of the
canal, where there were persons fighting on the road. Evangelista later testified that he
noticed the accused wearing a fatigue shirt with a blood-stain on it, and carrying a flashlight.
On 2 May 1976, Patrolman Reynaldo Pinto, Jr., was told to investigate a case of robbery with
homicide with the deceased Martin Francisco as victim, and to arrest the accused on the
basis of Wilson Evangelista's statement that he saw the accused with a bloodstained shirt the
previous evening when the crime could conceivably have occurred. Patrolman Pinto did so
that very day. Several days later, he was also able to recover the deceased's wristwatch and
flashlight from the house of the accused's father allegedly through the assistance of the
accused himself.
Upon being asked who killed the deceased, the accused allegedly admitted to Pat. Pinto in
sign language that it was he by making gestures which Pat. Pinto interpreted to mean that
the accused had been stoned by the deceased, thus impelling the accused to stab the latter.
This confession, however, was not included in Pat. Pinto's affidavit as he allegedly forgot to
tell the investigator. He also acknowledge his failure to notify the accused of his right to
counsel before interrogation and investigation due to difficulty in conveying the matter by
sign language.
Based on the above circumstances and evidence, the trial court found the accused guilty
beyond reasonable doubt of the crime charged, reasoning as follows:
The prosecution proved and which this Court finds that the accused was
the last person to be seen with the deceased, and that he was drunk
when he left the store of prosecution witness Salome del Socorro
together with the deceased. The Court also finds that the accused's
clothes had bloodstain on it when he went to the house of prosecution
witness Wilson Evangelista at 11:30 in the evening of May 1, 1976, the
night when the deceased was robbed and killed. The seiko 5 actus wrist
watch and the flashlight colored red and white both belonging to the
deceased Martin Francisco were recovered from the possession of the
accused and which recovery was done with his help, The unexplained
possession by the accused of the properties belonging to the
deceased proved that he took these things unlawfully. The fifteen (15)
stab wounds which were inflicted on the deceased, many of which were
fatal wounds proved that a much younger [man] than the deceased could
have inflicted the same. In the case at bar, the accused is very much
younger than the deceased who was 63 years old at the time of his
death, ... frail and without physical attributes, unlike the accused who
looks healthy, robust and young ...
While it is true that Pat. Pinto and his companion were able to get a
statement from the accused without telling him in advance of his
constitutional rights, due to difficulty in explaining them in sign language,
the accused's statement by sign language was coupled with his voluntary
help in recovering the things belonging to the deceased. Furthermore,
the court considered and took note of the plea of guilty which was
entered into by the accused on his first arraignment by sign language
through Mr. Alejandro Munoz who is an associate of the accused in their
younger days. (Emphasis supplied.)
We find the trial court's decision essentially lacking in that degree of certainty in reason and
conscience which is necessary to establish guilt beyond reasonable doubt. As held in U.S. v.
Lasada,
5
"By reasonable doubt is not meant that which of possibility may arise, but it is that
doubt engendered by an investigation of the whole proof and an inability, after such
investigation, to let the mind rest easy upon the certainty of guilt. Absolute certainty of guilt
is not demanded by the law to convict of any criminal charge but moral certainty is required,
and this. certainty is required as to every proposition of proof requisite to constitute the
offense."
6
Facts must be presented methodically and meticulously, contradictions must be
clarified, and gaps and loopholes in the evidence must be adequately explained "to the end
that the court's mind may not be tortured by doubts, the innocent [not] suffer and the guilty
[go] unpunished."
7

Such standards, we believe, have not been met in this case.
Patrolman Pinto, the interrogator to whom the accused allegedly confessed the details which
led to a presumption that lie killed the deceased, expressly admitted that he could have
misinterpreted the gestures made by the accused as he had only a slight knowledge of sign
language. Furthermore, the same witness did not give fully credible replies when questioned
about the possibility that he was ordered to proceed to the house of accused's father to get
the incriminating watch and flashlight which were delivered there earlier by a certain Nicolas.
The bloodstain on the accused's shirt could conceivably have come also from the fighting
that the accused told Wilson Evangelista he had witnessed. Considering that the deceased
sustained fifteen (15) stab wounds, twelve (12) of which could have separately caused death,
according to the medical officer who examined the body of the deceased, the presence of a
single bloodstain on the front of accused's shirt hardly supports the conclusion reached by
the trial court, especially when related to the high degree of intoxication appreciated against
the accused. As testified to by the medical officer who, as stated, examined the body of the
deceased, the stab wounds could also have been inflicted by several assailants using different
weapons. That the accused looked much more robust than the deceased and thus could have
committed the crime does not by itself deserve the weight and consideration that the trial
court gave to it. Furthermore, the rubber slippers and eyeglasses found near the scene of the
crime were never Identified or explained.
The trial court's appreciation of the plea of guilty earlier entered for the accused by Special
Policeman Alejandro Munoz, which the first presiding judge earlier discarded, is regrettable,
to say the least, especially when considered with the admittedly limited knowledge in sign
language on the part of Pat. Munoz and in relation to the investigator's own admission that
the accused was never informed of his right to counsel.
8

WHEREFORE, the appealed decision is hereby reversed. The accused is acquitted, on the
ground that his guilt has not been proved beyond reasonable doubt. The Court hereby orders
his immediate release from confinement, unless he is legally detained for some other cause
or offense.
SO ORDERED.
Teehankee, C.J., Yap, Fernando, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Gancayco, Bidin, Sarmiento and Cortes, JJ., concur.









Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-41166 August 25, 1976
PEOPLE OF THE PHILIPPINES, AMELIA K. DEL ROSARIO and DIONISIO CERBO, petitioners,
vs.
HON NUMERIANO G. ESTENZO Judge, Court of First Instance of Iloilo, and GREGORIO
OJOYrespondents.
Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Octavio R. Ramirez
and Solicitor Mariano M. Martinez for petitioner People of the Philippines.
Enojas & Associates and Deogracias K. del Rosario for petitioners Amelia K. del Rosario and
Dionisio Cerbo.
Sixto P. Demaisip for private respondent.

ANTONIO, J.:p
Certiorari and prohibition with prayer for preliminary injunction to nullify the Order of
respondent Judge, dated July 30, 1975, sustaining the procedure proposed by defense
counsel that, in lieu of the testimony of the witnesses for the accused on direct examination
in open court, he was filing their affidavits, subject to cross-examination by the prosecution.
Per Resolution dated August 22, 1975, this Court issued a temporary restraining order
enjoining the respondent Judge from enforcing the questioned Order.
In Criminal Case No. 2891, entitled "People of the Philippines, plaintiff, versus Gregorio Ojoy,
accused", of the Court of First Instance of Iloilo, Branch III, after the accused himself had
testified in his defense, his counsel manifested that for his subsequent witnesses he was
filing only their affidavits subject to cross-examination by the prosecution on matters stated
in the affidavits and on all other matters pertinent and material to the case. Private
prosecutor Atty. Amelia K. del Rosario, one of the petitioners here, objected to the proposed
procedure but this notwithstanding, respondent Judge gave his conformity thereto and
subsequently issued the questioned Order. Contending that respondent Judge gravely
abused his discretion because the aforesaid Orders violates Sections 1 and 2 of Rule 132 of
the Revised Rules of Court, which requires that the testimony of the witness should be given
orally in open court, and there is no appeal nor any plain, speedy and adequate remedy in
the ordinary course of law, petitioners instituted the present petition.
We grant the petition.
Sections 1 and 2, Rule 132 and Section 1, Rule 133 of the Revised Rules of Court clearly
require that the testimony of a witness shall be given orally in open court. The afore-cited
Sections 1 and 2 provide:
SECTION 1. Testimony to be given in open court. The testimony of
witnesses shall be given orally in open court and under oath or
affirmation.
SEC. 2. Testimony in superior courts to be reduced to writing.- In superior
courts the testimony of each witness shall be taken in shorthand or
stenotype, the name, residence, and occupation of the witness being
stated, and all questions put to the witness and his answers thereto being
included. If a question put is objected to and the objection is ruled on,
the nature of the objection and the ground on which it was sustained or
overruled must be stated, or if a witness declines to answer a question
put, the fact and the proceedings taken thereon shall be entered in the
record. A transcript of the record made by the official stenographer or
stenotypist and certified as correct by him shall be prima facie a correct
statement of such testimony and proceedings.
Sections 1 and 2 of Rule 132 of the Revised Rules of Court are reproductions, respectively, of
Sections 77 and 78 of Rule 123, of the Old Rules of Court. Section 77 in turn was taken from
Section 381 of Act No. 190,
1
while Section 78 from Section 32 of General Order No. 58.
2

The main and essential purpose of requiring a witness to appear and testify orally at a trial is
to secure for the adverse party the opportunity of cross-examination. "The opponent",
according to an eminent authority,
3
demands confrontation, not for the Idle purpose of
gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-
examination which cannot be had except by the direct and personal putting of questions and
obtaining immediate answers." There is also the advantage to be obtained by the personal
appearance of the witness before the judge, and it is this it enables the judge as the trier of
facts "to obtain the elusive and incommunicable evidence of a witness deportment while
testifying, and a certain subjective moral effect is produced upon the witness.
4
It is only
when the witness testifies orally that the judge may have a true idea of his countenance,
manner and expression, which may confirm or detract from the weight of his
testimony.
5
Certainly, the physical condition of the witness will reveal his capacity for
accurate observation and memory, and his deportment and physiognomy will reveal clues to
his character. These can only be observed by the judge if the witness testifies orally in court.
Indeed, the great weight given the findings of fact of the trial judge in the appellate court is
based upon his having had just that opportunity and the assumption that he took advantage
of it to ascertain the credibility of the witnesses. This has been explained by Chief Justice
Appleton, thus:
The witness present, the promptless and unpremeditatedness of his
answers or the reverse, their distinctness and particularity or the want of
these essentials, their incorrectness in generals or particulars, their
directness or evasiveness are soon detected. ... The appearance and
manner, the voice, the gestures, the readiness and promptness of the
answers, the evasions, the reluctance the silence, the contumacious
silence, the contradictions, the explanations, the intelligence or the want
of intelligence of the witness, the passions which more or less control-
fear, love, have, envy, or revenge are all open to observation, noted and
weighed by jury.
6

Thus, Section 1 of Rule 133 of the Rule
7
requires that in determining the superior weight of
evidence on the issues involved, the court, aside from the other factors therein enumerated,
may consider the "witness manner of testifying" which can only be done if the witness gives
his testimony orally in open court". If a trial judge prepares his opinion immediately after the
conclusion of the trial, with the evidence and his impressions of the witnesses fresh in his
mind, it is obvious that he is much more likely to reach a correct result than if he simply
reviews the evidence from a typewritten transcript, without having had the opportunity to
see, hear and observe the actions and utterances of the witnesses.
There is an additional advantage to be obtained in requiring that the direct testimony of the
witness be given orally ill court. Rules governing the examination of witnesses are intended
to protect the rights of litigants and to secure orderly dispatch of the business of the courts.
Under the rules, only questions directed to the eliciting of testimony which, under the
general rules of evidence, is relevant to, and competent to prove, the issue of the case, may
be propounded to the witness. A witness in testify only on those facts which he knows of his
own knowledge. Thus, on direct examination, leading questions are not allowed, except or,
preliminary matters, or when there is difficult in getting direct and intelligible answer from
the witness who is ignorant, a child of tender years, or feebleminded, or a deaf mute.
8
It is
obvious that such purpose may be subverted, and the orderly dispatch of the business of the
courts thwarted if trial judges are allowed, as in the case at bar, to adopt any procedure in
the presentation of evidence other than what is specifically authorized by the Rules of Court.
WHEREFORE, in view of the foregoing, the petition for certiorari is hereby granted and the
order of respondent Judge, dated July 30, 1975, in Criminal Case No. 2891 is hereby set aside,
and the temporary restraining order issued on August 22, 1975 is hereby made permanent,
without any pronouncement as to costs.
Fernando, Barredo, Aquino and Concepcion, Jr., JJ., concur.





























Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 92355 January 24, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PEDRING CALIXTRO, CELSO FERRER and LOUIE FERRER, accused, PEDRING
CALIXTRO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Eliseo A. Mendoza for accused-appellant.

PARAS, J.:p
This is an appeal from the decision of the Regional Trial Court, Branch 33, Guimba, Nueva
Ecija, in Criminal Case No. 536-G1 entitled "People of the Philippines v. Pedring Calixtro,
Celso Ferrer and Louie Ferrer", convicting the accused-appellant, Pedring Calixtro, of the
crime of rape (Rollo, pp. 22-26).
The accused Pedring Calixtro, Celso Ferrer and Louie Ferrer were charged with the crime of
Robbery with Rape under the following information:
That on or about the 24th day of April, 1989 in Barangay Faigal,
Municipality of Guimba, Province of Nueva Ecija, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused being
then armed with sharp-pointed instrument (patalim), conspiring,
confederating and helping one another, and with intent to gain and by
means of force and violence and intimidation upon person, did then and
there willfully, unlawfully and feloniously take, steal and carry away one
(1) gold ring with three (3) stones of diamond and one (1) pair of earrings
with one stone diamond with a total value of TEN THOUSAND PESOS
(P10,000.00) Philippine Currency, more or less, belonging to EDELIZA
ASTELERO to the damage and prejudice of the latter in the said amount;
and that during or on the occasion of the robbery, the said three (3)
accused conspiring, confederating and helping one another did then and
there willfully, unlawfully and feloniously have sexual intercourse one
after the other with said EDELIZA ASTELERO against her will.
That the crime was committed with the aggravating circumstance of
nighttime which was taken advantage of by the said accused and as a
consequence of which the complaining witness suffered actual, moral
and consequential damages which could be estimated in the total sum of
P100,000.00.
CONTRARY TO LAW. (p. 7, Rollo)
The pertinent facts of the case as gathered from the records are as follows:
Edeliza Astelero, her husband Gonzalo Astelero, and an 11 year old son are residents of
Barangay Faigal, Guimba, Nueva Ecija. Pedring Calixtro had been a resident of the same
barangay for a year before the incident occurred.
At about 10:00 o'clock in the night of April 24, 1989, while the Astelero family were
peacefully resting in their abode, Edeliza heard the barking of dogs; she peeped thru the hole
of their window and she saw three male persons. She went to her husband on the bed and
awakened him. Both peeped through the hole of the window where they saw three men
calling from outside, "Manang, Manang, buksan mo ang pintuan." She went near the door of
their hut. One of the three persons threatened her that if she would not open the door, they
would blast the house with a hand grenade. She was about to open the door but they
continued kicking the door to open the same (p. 8, TSN, Oct. 10, 1989). Then they hacked the
wall of their house and the same fell down. She was afraid that her family would be killed, so
she decided to open the door. As she was opening the door, Celso Ferrer pulled her outside
of the house and threatened her not to ask for help. Then they dragged her out to the middle
of the fields (pp. 9-10, TSN, Ibid.).
In the middle of the field, Celso Ferrer and Louie Ferrer took hold of her arms and pointed a
bladed weapon at her neck. At that very moment, accused Pedring Calixtro told her that if
she would not give her womanhood she would be killed. She pleaded for mercy but accused
Pedring Calixtro succeeded in removing her duster and short pants. She struggled but the
accused started hurting her thighs (p. 11, TSN, Ibid.). Pedring Calixtro succeeded in having
sexual intercourse with the victim, while Celso Ferrer took off her ring and earrings. Celso
Ferrer and Louie Ferrer took turns in abusing her. After the heinous acts, the three accused
debated whether to kill Edeliza Astelero or not. Edeliza took the opportunity to flee while the
three were discussing. She ran as fast as she could until she saw a jeep, which she later found
to be carrying her husband. Thereafter, she was brought to the hacienda of Bebang Adriano
(pp. 12-14, TSN, Ibid.).
The testimony of complainant witness is corroborated by Rogelio de la Cruz, a barangay
tanod and neighbor of the Asteleros. He testified that in the evening of April 24, 1989 at
around 10:00 o'clock, more or less, the accused Pedring Calixtro, Celso Ferrer and Louie
Ferrer arrived in his house, and asked him for chicken, which they told him to cook and
prepare as "pulutan" but he refused. The three consumed a bottle of wine in his house.
When the three left, he followed them secretly towards the house of complainant. He saw
them kicking the house and ordering the occupants to open the door. Moments later, he saw
them dragging the complainant away from her house towards the field. He reported the
incident to the Barangay Captain (pp. 3-8, TSN, Nov. 14, 1989).
Police Corporal Juanito Villaba testified that in the evening of April 24, 1989, while in the
office of the Integrated National Police, Guimba, Nueva Ecija, Barangay Captain Marina
Quitallas and companions arrived and reported that a certain Edeliza Astelero had forcibly
been taken from her house by three male persons. Officer-in-charge, Lt. Soriano, dispatched
Sgt. Mendoza and other policemen to respond to the call (pp. 5-6, TSN, Nov. 21, 1989).
Dr. Diosdado Barawid testified that the victim was brought to him for examination sometime
on April 25, 1989 and he made the following observation: "light blackish discoloration right
hip lower portion, inner aspect; several abrasion upper portion and inner aspect, and
laboratory examination of vaginal smear-positive (+) for sperm cell, 3 counted." He further
testified that the abrasions or injuries sustained by Edeliza Astelero were caused by a blow
and there were signs of struggle (pp. 3-7, TSN, Nov. 27,1989).
Pedro Calixtro testified on his behald that at 5:00 p.m. on April 24, 1989 he was tendering
water in his ricefield. And about 5:30 of the same afternoon he was invited by Celso Ferrer
and Louie Ferrer to the house of Rogelio de la Cruz to buy chicken. He proceeded back to the
ranch after 30 minutes and attended to the water pump. That during the hours of 10:00 and
11:00 p.m. of the same night he heard shouts. He proceeded to the direction of the shouts
and saw a naked woman being forced and brought away by Celso Ferrer and Louie Ferrer.
Then he heard from Celso Ferrer the words "papatayin kita", being addressed to Edeliza.
Witness gave to Edeliza the dress which he noticed behind her. A fist fight ensued between
him and Celso. After the fight, he noticed that Edeliza ran away, whereas, he went to the
watering pump.
At about 6:00 o'clock the following morning, he was apprehended by Sgt. Soriano (pp. 3-11,
TSN, November 28, 1989; pp. 7-9, Brief for the Accused-Appellant; Rollo, pp. 43-45).
Of the three accused, only Pedring Calixtro was apprehended. Pedring Calixtro pleaded "not
guilty" to the crime charged, thereafter, trial on the merits ensued. After trial, the court a
quo rendered a decision, the dispositive portion of which reads as follows:
WHEREFORE, the Court finds the accused Pedring Calixtro guilty beyond
reasonable doubt of the crime of Rape as described under Art. 335 of the
Revised Penal Code, as amended, and hereby sentences him to suffer the
penalty of reclusion perpetua and to indemnify the complainant in the
amount of P30,000.00, without subsidiary imprisonment in case of
insolvency.
SO ORDERED. (pp. 26, Rollo)
Dissatisfied, Pedring Calixtro appealed and assigned the following errors, to wit:
I
THE LOWER COURT ERRED IN CATEGORICALLY PRONOUNCING THAT THE
TESTIMONIES OF THE COMPLAINANT EDELIZA ASTELERO DURING THE
TRIAL OF THE CASE CLEARLY ESTABLISHED THE GUILT OF ACCUSED-
APPELLANT BEYOND REASONABLE DOUBT, AS NARRATED BY SAID COURT
IN THE THIRD AND LONGEST PARAGRAPH OF PAGE 2 OF THE DECISION IN
QUESTION.
II
THE LOWER COURT ERRED IN: STATING THAT THE ACCUSED-APPELLANT'S
DEFENSE CONSISTED OF MERE DENIALS OF THE CRIME CHARGED AND
ALIBI; AND IN RE-STATING THE TESTIMONIES OF SAID ACCUSED-
APPELLANT IN SHORT FIRST PARAGRAPH OF PAGE 4 OF SAID DECISION.
III
THE LOWER COURT ERRED IN FINDING THAT THE COMPLAINANT HAD
POSITIVELY IDENTIFIED ACCUSED-APPELLANT AS ONE OF THE PERSONS
WHO SEXUALLY MOLESTED HER.
IV
THE LOWER COURT ERRED IN DISCREDITING THE TESTIMONIES OF THE
ACCUSED-APPELLANT AS THE SAME WERE NOT CORROBORATED BY
OTHER EVIDENCE.
V
THE LOWER COURT ERRED IN NOT FINDING COGENT REASON WHY THE
COMPLAINANT SHOULD FALSELY CHARGE THE ACCUSED-APPELLANT OF
THE SERIOUS CRIME OR ROBBERY WITH RAPE.
VI
THE LOWER COURT ERRED IN NOT DISCREDITING THE TESTIMONIES OF
ROGELIO DE LA CRUZ.
VII
THE LOWER COURT ERRED IN ALLOWING THE COMPLAINANT TO TESTIFY
IN STORY-TELLING MANNER OVER THE OBJECTION OF THE UNDERSIGNED
COUNSEL; and
VIII
THE LOWER COURT ERRED IN NOT TAKING INTO CONSIDERATION IN
MAKING ITS DECISION, THE ACCUSED-APPELLANT'S MEMORANDUM
FILED ON JANUARY 2,1990, PURSUANT TO THE VERBAL ORDER DATED
DECEMBER 11, 1989 AND IN NOT INCLUDING SAID MEMORANDUM AND
THE NOTICE OF APPEAL IN THE RECORDS OF THE CASE REMANDED TO
THIS HONORABLE SUPREME COURT. (pp. 37-38, Rollo)
Under Article 335 of the Revised Penal Code, rape is committed if the accused had carnal
knowledge of a woman and such act is accomplished under the following circumstances: (1)
by using force or intimidation; (2) when the woman is deprived of reason or otherwise
unconscious; and (3) when the woman is under twelve years of age, even though neither of
the circumstances mentioned in the two next preceding paragraphs is present.
There are three settled principles to guide an appellate court in reviewing the evidence in
rape cases: (1) an accusation for rape can be made with facility; it is difficult to prove it but
more difficult for the person accused, though innocent, to disprove it (People v. Aldana, G.R.
No. 81817, July 27, 1989); (2) in view of the intrinsic nature of the crime of rape where two
persons are usually involved, the testimony of the complainant must be scrutinized with
extreme caution; and (3) the evidence for the prosecution must stand or fall on its own
merits, and cannot be allowed to draw strength from the weakness of the evidence for the
defense (People v. Villapana, 161 SCRA 72). What is decisive in the rape charged is
complainant's positive identification of the accused-appellant as the malefactor (People v.
Mustacisa, 159 SCRA 227; People v. Ramilo, 146 SCRA 258).
In the case at bar, the defense depended heavily on supposed inconsistencies pervading
complainant's testimony at the trial court below. Appellant pointed out alleged
inconsistencies and improbabilities in the testimony of the rape victim Edeliza Astelero which
allegedly cast reasonable doubt on his guilt. The most notable of these were: (a) although
she testified on direct that she was alone when she peeped through the hole of their window
and saw three (3) male persons, on cross, she claimed that it was she and her husband who
peeped through the hole of their window (b) while, on direct, she testified that she heard the
barking of the dogs at around 10:00 p.m., on cross, she stated that she heard the barking of
the dogs at around 7:00 p.m.; (c) on direct, she did not state that her assailants wore masks
and that she herself was blindfolded which she mentioned only on cross; (d) she could not
have recognized her assaillants because they wore masks and she was blindfolded.
We find the alleged inconsistencies as too trivial, insignificant and inconsequential to merit
the reversal of the trial court's decision. The inconsistencies pointed out by appellant can
hardly affect the complainant's credibility. They refer to minor details or to the precise
sequence of events that do not detract from the central fact of rape, on which complainant
had consistently and candidly testified. A witness who is in a state of flight cannot be
expected to recall with accuracy or uniformity matters connected with the main overt act
(People v. Ramilo, supra). The testimonial discrepancies could have also been caused by the
natural fickleness of memory, which tend to strengthen, rather than weaken, credibility as
they erase any suspicion of rehearsed testimony (People v. Cayago; 158 SCRA 586). These
discrepancies on minor details serve to add credence and veracity to her categorical,
straightforward, and spontaneous testimony (People v. Ramilo, supra).
Minor discrepancies indicate that the witness was not previously rehearsed, and
consequently strengthen her credibility. It would, perhaps, have been more suspicious if
complainant had been able to pinpoint with clarity or described with precision the exact
sequence of events (People v. Cayago, supra; People v. Alfonso, 153 SCRA 487). The rape
victim should not be expected to keep an accurate account of the traumatic and horrifying
experience she went through.
Needless to say, when the issue is one of credibility of witnesses, the findings of the trial
court are generally accorded a high degree of respect, the court having observed the
demeanor and deportment of witness. We find no compelling reason to deviate from this
settled rule.
Appellant alleged that it was improbable for Edeliza to have recognized him when she herself
was blindfolded and her assaillants wore masks. Such contention is devoid of merit.
Although Edeliza was blindfolded and her assaillants wore masks, she was positive in her
testimony that she recognized the appellant as one of her attackers through the latter's
voice. Edeliza could recognize appellant through his voice inasmuch as they are barriomates.
In fact, appellant even admitted that they were friends, thus:
Q Mr. Witness, how long have you been in Faigal,
Guimba, Nueva Ecija, in the ranch of Mrs. Bebang
Adriano prior to April 24,1989?
A About one (1) year, sir, that I had been staying
there.
Q And during that length of time you came to know
Edeliza Astelero and her husband who are also from
Faigal, Guimba, Nueva Ecija, is it not?
A Yes, sir.
Q And they used to go to that ranch. In fact
considering the length of time that you have known
Edeliza Astelero and her husband you alleged that
you are their friend and the same way that they also
were your friends?
A Yes, sir. (p. 16, TSN, Nov. 18,1989)
In People vs. Inot, 150 SCRA 322 (1987), We ruled:
. . . complainant's identification of the appellant was not based solely on
the latter's physical defect, but by his voice as well, when he warned
complainant, "Flor, keep quiet." Although complainant did not see
appellant's face during the sexual act because the house was dark,
nevertheless, no error could have been committed by the complainant in
identifying the voice of the accused, inasmuch as complainant and
appellant were neighbors. . . .
This is corroborated by the testimony of Rogelio de la Cruz who saw Pedring Calixtro, Celso
Ferrer and Louie Ferrer dragged Edeliza Astelero out of her house.
Appellant put up the defense of alibi that he was looking after his irrigation task when he
heard shouts, and went back after having a fist fight with Celso Ferrer.
Defense of alibi is inherently weak and cannot prevail over the positive identification of the
accused (People v. Cayago, 158 SCRA 586). For the defense of alibi to succeed, the accused
must establish physical impossibility and improper motive of the prosecution witnesses,
which matters the accused failed to prove (People v. Alfonso, 153 SCRA 487).
Edeliza Astelero had positively identified the accused Pedring Calixtro as one of the persons
who had raped her in the middle of the fields. His alibi, that he was at the ranch during the
hours of 10:00 and 11:00 p.m. of April 24, 1989 and while he was looking after his farm he
heard shouts, and he was the one who saved and rescued Edeliza Astelero, can only be taken
with a grain of salt. Such a statement could easily be fabricated, more so when it is not
corroborated by testimonies of other impartial witnesses. The accused was the lone witness
for his defense. The accused could have had his testimony corroborated by presenting other
persons who could well testify on what he had been doing in the evening of April 24, 1989.
Mere denial of the commission of a crime cannot prevail over the positive identification
made by the complaining witness.
Appellant stresses the prosecution's failure to present the husband and son of Edeliza. The
expected testimony of husband and son had already been dealt upon by Edeliza Astelero and
Rogelio de la Cruz. There is no cogent reason for them to corroborate what had been
testified on. Besides it is the prerogative of the prosecution to choose its witnesses (People v.
Quebral, 134 SCRA 425; People v. Martinez, 127 SCRA 260).
In rape, the prosecution need not, present testimonies of people other than the offended
party herself if the same is accurate and credible (People v. Robles, G.R. No. 53569, February
23, 1989).
Appellant questions the credibility of Rogelio de la Cruz as a witness. The former argues that
being a barangay tanod, de la Cruz should have apprehended the malefactors and should
have prevented the heinous crime. De la Cruz reasoned out that he was afraid that they
might kill him; the malefactors were, then, armed with deadly bladed weapons. His only
weapon was a stick, which was not a match against bladed weapons. He feared for his life,
such is not contrary to human nature. Thus, de la Cruz should not foolhardily attempt to stop
the malefactors in his state of physical disavantage and stake his life in the process.
The allegation that Pedring Calixtro was implicated because the real perpetrators were not
arrested defies human reason.
It is hard to believe that a woman, a simple housewife and mother, would fabricate a rape
charge and subject herself and family to shame, humiliation and embarrassment of a public
trial. We have oftentimes ruled that a woman would not undergo the expense, trouble and
inconvenience of a public trial, not to mention the scandal, embarrassment and humiliation
such action inevitably invites, as well as allow an examination of her private parts, if her
motive is not to bring to justice the persons who had abused her (People v. Muoz, 163 SCRA
730; People v. Cayago, 158 SCRA 586; People v. Viray 164 SCRA 135; People v. Magdaraog,
160 SCRA 153; People v. Bulosan, 160 SCRA 492; People v. Hacbang, 164 SCRA 441).
Appellant further contends that the trial court erred in allowing the complainant-witness to
testify in narrative form.
This contention is likewise devoid of merit.
Usually in criminal cases, the material facts within the knowledge of a witness are elicited by
questions put to him by the counsel calling him. By this means, the evidence is readily limited
and confined within the issue for the reason that the relevancy of the answer can in most
cases be ascertained from the character of the question (Underhill's Criminal Evidence, Sec.
387, p. 742). While this is the general rule, it still rests within the sound discretion of the trial
judge to determine whether a witness will be required to testify by question and answer, or
will be permitted to testify in a narrative form (98 C.J.S., Sec. 325, p. 26). There is no legal
principle which prevents a witness from giving his testimony in a narrative form if he is
requested to do so by counsel. A witness may be allowed to testify by narration if it would be
the best way of getting at what he knew or could state concerning the matter at issue. It
would expedite the trial and would perhaps furnish the court a clearer understanding of the
matters related as they occurred. Moreover, narrative testimony may be allowed if material
parts of his evidence cannot be easily obtained through piecemeal testimonies. But if, in
giving such testimony, the witness states matters irrelevant or immaterial or incompetent, it
is the right and duty of counsel objecting to such testimony to interpose and arrest the
narration by calling the attention of the court particularly to the objectionable matter and, by
a motion to strike it out, obtain a ruling of the court excluding such testimony from the case
(98 C.J.S., Ibid.). While a witness may be permitted in the discretion of the court to narrate
his knowledge of material facts bearing upon the case without specifically being interrogated
in detail, it is also within the discretion of the court to prohibit a witness from volunteering
unsought information in connection with the case (5 Jones on Evidence, Sec. 2312).
Appellant takes notice of the fact that the trial court did not consider his memorandum. We
find that the contents of the memorandum were passed upon in the judgment of the trial
court. The arguments therein were discussed by it. The arguments presented did not raise
new issues; hence, the memorandum deserves scant consideration.
We find, as the trial court found, that appellant successively raped the offended party while
the other two accused held down the victim, showing that conspiracy existed. Said other two
also took turns in raping. In a conspiracy, the act of one is the act of all. There are three (3)
crimes of rape, appellant, having conspired with the two others, should be convicted on
three counts of rape. Thus, Pedring Calixtro is also responsible for the acts of Celso Ferrer
and Louie Ferrer. The case of People v. Cayago, (158 SCRA 586) is applicable in the case at
bar:
The trial court found as a fact that appellant and others, having conspired
with each other, successively raped the offended party while the other
held down the victim. This is adequate basis for convicting appellant
Cayago of three (3) crimes of rape. The judgment of the trial court does
not purport to convict Macaraeg and Capitle and would not, of course,
bind them should they ever be arrested and brought to trial; they may
plead any defense to which they might feel entitled, such as insanity or
mistaken identity, etc.
We find the accused's guilt to have been proved beyond reasonable doubt.
ACCORDINGLY, the judgment of conviction is hereby AFFIRMED, INCREASING the penalty
imposed on the appellant to three (3) penalties of RECLUSION PERPETUA, and for him to
indemnify the offended party in the sum of P30,000.00 in each case for a total of P90,000.00
and to pay the costs.
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur































Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-29169 August 19, 1968
ROGER CHAVEZ, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE WARDEN
OF THE CITY JAIL OF MANILA, respondents.
Estanislao E. Fernandez and Fausto Arce for petitioner.
Office of the Solicitor General for respondents.
SANCHEZ, J.:
The thrust of petitioner's case presented in his original and supplementary petitions invoking
jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed from
imprisonment upon the ground that in the trial which resulted in his conviction
1
he was
denied his constitutional right not to be compelled to testify against himself. There is his
prayer, too, that, should he fail in this, he be granted the alternative remedies of certiorari to
strike down the two resolutions of the Court of Appeals dismissing his appeal for failure to
file brief, and of mandamus to direct the said court to forward his appeal to this Court for the
reason that he was raising purely questions of law.
The indictment in the court below the third amended information upon which the
judgment of conviction herein challenged was rendered, was for qualified theft of a motor
vehicle, one (1) Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648 Pasay City
'62 together with its accessories worth P22,200.00. Accused were the following: Petitioner
herein, Roger Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P.
Pascual alias "Ging" Pascual, Pedro Rebullo alias "Pita", Luis Asistio alias "Baby" Asistio,
Lorenzo Meneses alias"Lory" Meneses, Peter Doe, Charlie Doe and Paul Doe.
2

Averred in the aforesaid information was that on or about the 14th day of November, 1962,
in Quezon City, the accused conspired, with intent of gain, abuse of confidence and without
the consent of the owner thereof, Dy Sun Hiok y Lim, in asporting the motor vehicle above-
described.
Upon arraignment, all the accused, except the three Does who have not been identified nor
apprehended, pleaded not guilty.1wph1.t
On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First
Instance of Rizal in Quezon City.
The trial opened with the following dialogue, which for the great bearing it has on this case,
is here reproduced:.
COURT:
The parties may proceed.
FISCAL GRECIA:
Our first witness is Roger Chavez [one of the accused].
ATTY. CARBON [Counsel for petitioner Chavez]:
I am quite taken by surprise, as counsel for the accused Roger Chavez, with this
move of the Fiscal in presenting him as his witness. I object.
COURT:
On what ground, counsel? .
ATTY. CARBON:
On the ground that I have to confer with my client. It is really surprising that at this
stage, without my being notified by the Fiscal, my client is being presented as
witness for the prosecution. I want to say in passing that it is only at this very
moment that I come to know about this strategy of the prosecution.
COURT (To the Fiscal):
You are not withdrawing the information against the accused Roger Chavez by
making [him a] state witness?.
FISCAL GRECIA:
I am not making him as state witness, Your Honor.
I am only presenting him as an ordinary witness.
ATTY. CARBON:
As a matter of right, because it will incriminate my client, I object.
COURT:
The Court will give counsel for Roger Chavez fifteen minutes within which to confer
and explain to his client about the giving of his testimony.
x x x x x x x x x
COURT: [after the recess]
Are the parties ready? .
FISCAL:
We are ready to call on our first witness, Roger Chavez.
ATTY. CARBON:
As per understanding, the proceeding was suspended in order to enable me to
confer with my client.
I conferred with my client and he assured me that he will not testify for the
prosecution this morning after I have explained to him the consequences of what
will transpire.
COURT:
What he will testify to does not necessarily incriminate him, counsel.
And there is the right of the prosecution to ask anybody to act as witness on the
witness-stand including the accused.
If there should be any question that is incriminating then that is the time for
counsel to interpose his objection and the court will sustain him if and when the
court feels that the answer of this witness to the question would incriminate him.
Counsel has all the assurance that the court will not require the witness to answer
questions which would incriminate him.
But surely, counsel could not object to have the accused called on the witnessstand.
ATTY. CARBON:
I submit.
x x x x x x x x x
ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .
MAY IT PLEASE THE COURT:
This incident of the accused Roger Chavez being called to testify for the
prosecution is something so sudden that has come to the knowledge of this
counsel.
This representation has been apprised of the witnesses embraced in the
information.
For which reason I pray this court that I be given at least some days to meet
whatever testimony this witness will bring about. I therefore move for
postponement of today's hearing.
COURT:
The court will give counsel time within which to prepare his cross-examination of
this witness.
ATTY. CRUZ:
I labored under the impression that the witnesses for the prosecution in this
criminal case are those only listed in the information.
I did not know until this morning that one of the accused will testify as witness for
the prosecution.
COURT:
That's the reason why the court will go along with counsels for the accused and will
give them time within which to prepare for their cross-examination of this witness.
The court will not defer the taking of the direct examination of the witness.
Call the witness to the witness stand.
EVIDENCE FOR THE PROSECUTION
ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at
the Manila Police Department headquarters, after being duly sworn according to
law, declared as follows:
ATTY. IBASCO [Counsel for defendant Luis Asistio]:
WITH THE LEAVE OF THE COURT:
This witness, Roger Chavez is one of the accused in this case No. Q-5311.
The information alleges conspiracy. Under Rule 123, Section 12, it states:
'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.'
COURT:
That is premature, counsel. Neither the court nor counsels for the accused know
what the prosecution events to establish by calling this witness to the witness
stand.
ATTY. IBASCO:
I submit.
COURT: The Fiscal may proceed.
3

And so did the trial proceed. It began with the "direct examination" of Roger Chavez by
"Fiscal Grecia".
Came the judgment of February 1, 1965. The version of the prosecution as found by the
court below may be briefly narrated as follows:
A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a
Thunderbird car. With Ricardo Sumilang (movie actor Romeo Vasquez) in mind, whom he
knew was in the market for such a car, Chavez asked Lee whether his car was for sale. Lee
answered affirmatively and left his address with Chavez. Then, on November 12, Chavez met
Sumilang at a barbershop informed him about the Thunderbird. But Sumilang said that he
had changed his mind about buying a new car. Instead, he told Chavez that he wanted to
mortgage his Buick car for P10,000.00 to cover an indebtedness in Pasay City. Upon the
suggestion of Chavez, they went to see Luis Asistio, who he knew was lending money on car
mortgages and who, on one occasion, already lent Romeo Vasquez P3,000.00 on the same
Buick car. Asistio however told the two that he had a better idea on how to raise the money.
His plan was to capitalize on Romeo Vasquez' reputation as a wealthy movie star, introduce
him as a buyer to someone who was selling a car and, after the deed of sale is signed, by
trickery to run away with the car. Asistio would then register it, sell it to a third person for a
profit. Chavez known to be a car agent was included in the plan. He furnished the name of
Johnson Lee who was selling his Thunderbird. 1wph1.t
In the morning of November 14, Chavez telephoned Johnson Lee and arranged for an
appointment. Sometime in the afternoon. Chavez and Sumilang met Lee in his Thunderbird
on Highway 54. Sumilang was introduced as the interested buyer. Sumilang's driver inspected
the car, took the wheel for a while. After Sumilang and Lee agreed on the purchase price
(P21.000.00), they went to Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the
car was registered. Thereafter, they went to see a lawyer notary public in Quezon City,
known to Chavez for the drafting of the deed of sale. After the deed of sale was drawn up, it
was signed by Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's driver and
Johnson Lee the witnesses thereto.
As payment was to be made at Eugene's restaurant in Quezon City, all of them then drove in
the Thunderbird car to that place. The deed of sale and other papers remained in the pockets
of Johnson Lee.
At Eugene's, a man approached Sumilang with a note which stated that the money was ready
at the Dalisay Theater. Sumilang then wrote on the same note that the money should be
brought to the restaurant. At the same time he requested Lee to exhibit the deed of sale of
the car to the note bearer.
4

Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table
to pose for pictures with some fans and come back, again left never to return. So did Chavez,
who disappeared after he left on the pretext of buying cigarettes. The two Chinese could not
locate Sumilang and Chavez. They went out to the place where the Thunderbird was parked,
found that it was gone. They then immediately reported its loss to the police. Much later, the
NBI recovered the already repainted car and impounded it.
Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that same day
at Barrio Fiesta, a restaurant at Highway 54 near the Balintawak monument in Caloocan.
There, Asistio handed to Sumilang P1,000.00 cash and a golf set worth P800.00 as the latter's
share in the transaction. On the 14th of November, the registration of the car was
transferred in the name of Sumilang in Cavite City, and three days later, in the name of
Asistio in Caloocan.
From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be
condensed as follows:
In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter
informed him that there was a Thunderbird from Clark Field for sale for a price between
P20,000.00 and P22,000.00. Chavez said that it could be held for him with a down payment
of P10,000.00.
To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena
Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to Sumilang. That check
was exhibited in court. Sumilang and Chavez then went to Pasay City to see a certain Mario
Baltazar, an agent of the Pasay City Mayor, and Narsing Cailles, Chief of the Fire Department.
Sumilang asked the two for a P10,000-loan backed up by the P5,000.00-check aforesaid on
condition that it should not be cashed immediately as there were not enough funds therefor.
Baltazar and Cailles agreed to give the money the nextday as long as the check would be left
with them and Sumilang would sign a promissory note for P10,000.00. Baltazar later
informed Sumilang that Chavez picked up the money the next day. Four or five days
afterwards, Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough for the
deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.
About the end of October or at the beginning of November, Chavez asked Sumilang for
another P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a note requesting that
they accommodate him once more. He also sent a check, again without funds. Baltazar gave
the money after verifying the authenticity of the note.
On November 14, Chavez appeared at Sumilang's house with the news that the car was ready
if Sumilang was ready with the rest of the money. So Sumilang got P9,000.00 from his mother
and another P4,000.00 from his aparador. He immediately gave P6,000.00 to Chavez,
intending to pay out the balance upon the car's delivery. It was then that Chavez told
Sumilang that the car was already bought by a Chinese who would be the vendor.
The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00,
plus P500.00 agents commission at the expense of the buyer. Sumilang told Lee that he
already paid part of the price to Chavez.
At Eugene's, Chavez asked Sumilang for the balance. Sumilang accommodated. There,
Sumilang, also saw a friend, "Ging" Pascual. In the course of their conversation at the bar,
Sumilang mentioned the proposed transaction thru Chavez. Pascual warned that Chavez was
a "smart" agent and advised that Sumilang should have a receipt for his money. A certain
Bimbo, a friend of Pascual, offered to make out a receipt for Chavez to sign.
After Sumilang returned from posing for some photographs with some of his fans, Bimbo
showed him the receipt already signed by Chavez. Sumilang requested Pascual and Bimbo to
sign the receipt as witnesses. And they did. This receipt was offered as an exhibit by the
prosecution and by Sumilang.
When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of
sale, the registration papers and the keys to the car. After shaking hands with Lee, Sumilang
drove away in the car with his driver at the wheel.
Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film
shooting at Bulacan. He saw Asistio with many companions. Asistio liked his Thunderbird
parked outside. Asistio offered to buy it from him for P22,500.00. As the offer was good, and
knowing Asistio's and his friends' reputation for always getting what they wanted, Sumilang
consented to the sale. Asistio tendered a down payment of P1,000.00; the balance he
promised to pay the next day after negotiating with some financing company. Before said
balance could be paid, the car was impounded.
The trial court gave evidence to Sumilang's averment, strengthened by Baltazar's and Cailles'
corroborations, that he paid good money for the car. Sumilang was thus cleared. So was
Asistio whom the trial court believed to be a mere buyer of the car. And so, the prosecution's
theory of conspiracy was discounted.
As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and
Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was also acquitted for in the first
place he was not identified by Johnson Lee in court.
As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any
defense. As a matter of fact, his testimony as witness for the prosecution establishes his guilt
beyond reasonable doubt."
5
The trial court branded him "a self-confessed culprit".
6
The court
further continued:
It is not improbable that true to the saying that misery loves company Roger
Chavez tried to drag his co-accused down with him by coloring his story with
fabrications which he expected would easily stick together what with the
newspaper notoriety of one and the sensationalism caused by the other. But Roger
Chavez'accusations of Asistio's participation is utterly uncorroborated. And coming,
as it does, from a man who has had at least two convictions for acts not very
different from those charged in this information, the Court would be too gullible if
it were to give full credence to his words even if they concerned a man no less
notorious than himself.
7

The trial court then came to the conclusion that if Johnson Lee was not paid for his car, he
had no one but Roger Chavez to blame.
The sum of all these is that the trial court freed all the accused except Roger Chavez who was
found guilty beyond reasonable doubt of the crime of qualified theft. He was accordingly
sentenced to suffer an indeterminate penalty of not less than ten (10) years, one (1) day, as
minimum and not more than fourteen (14) years, eight (8) months and one (1) day as
maximum, to indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without
subsidiary imprisonment in case of insolvency, to undergo the accessory penalties prescribed
by law, and to pay the costs. The Thunderbird car then in the custody of the NBI was ordered
to be turned over to Ricardo Sumilang, who was directed to return to Asistio the sum of
P1,000.00 unless the latter chose to pay P21,500.00, representing the balance of the contract
price for the car.
The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed to the
Court of Appeals.
On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger
Chavez, to show cause within ten days from notice why Chavez' appeal should not be
considered abandoned and dismissed. Reason for this is that said lawyer received notice to
file brief on December 28, 1967 and the period for the filing thereof lapsed on January 27,
1968 without any brief having been filed.
On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated
that if she were allowed to file appellant's brief she would go along with the factual
findings of the court below but will show however that its conclusion is erroneous.
8

On May 14, 1968, the Court of Appeals, despite the foregoing explanation, resolved to
dismiss the appeal. A move to reconsider was unavailing. For, on June 21, 1968, the Court of
Appeals, through a per curiam resolution, disposed to maintain its May 14 resolution
dismissing the appeal, directed the City Warden of Manila where Chavez is confined by virtue
of the warrant of arrest issued by the Court of Appeals, to turn him over to Muntinlupa
Bilibid Prisons pending execution of the judgment below, and ordered remand of the case to
the Quezon City court for execution of judgment.
It was at this stage that the present proceedings were commenced in this Court.
Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now
come to grips with the main problem presented.
We concentrate attention on that phase of the issues which relates petitioner's assertion
that he was compelled to testify against himself. For indeed if this one question is resolved in
the affirmative, we need not reach the others; in which case, these should not be pursued
here.
1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his right
constitutionally entrenched against self-incrimination. He asks that the hand of this
Court be made to bear down upon his conviction; that he be relieved of the effects thereof.
He asks us to consider the constitutional injunction that "No person shall be compelled to be
a witness against himself,"
9
fully echoed in Section 1, Rule 115, Rules of Court where, in all
criminal prosecutions, the defendant shall be entitled: "(e) To be exempt from being a
witness against himself." .
It has been said that forcing a man to be a witness against himself is at war with "the
fundamentals of a republican government";
10
that [i]t may suit the purposes of despotic
power but it can not abide the pure atmosphere of political liberty and personal
freedom."
11
Mr. Justice Abad Santos recounts the historical background of this constitutional
inhibition, thus: " "The maxim Nemo tenetur seipsum accusare had its origin in a protest
against the inquisitorial and manifestly unjust methods of interrogating accused persons,
which has long obtained in the continental system, and, until the expulsion of the Stuarts
from the British throne in 1688, and the erection of additional barriers for the protection of
the people against the exercise of arbitrary power, was not uncommon even in England.
While the admissions of confessions of the prisoner, when voluntarily and freely made, have
always ranked high in the scale of incriminating evidence, if an accused person be asked to
explain his apparent connection with a crime under investigation, the ease with which the
questions put to him may assume an inquisitorial character, the temptation to press, the
witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to
entrap him into fatal contradictions, which is so painfully evident in many of the earlier state
trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made
the system so odious as to give rise to a demand for its total abolition. The change in the
English criminal procedure in that particular seems to be founded upon no statute and no
judicial opinion, but upon a general and silent acquiescence of the courts in a popular
demand. But, however adopted, it has become firmly embedded in English, as well as in
American jurisprudence. So deeply did the iniquities of the ancient system impress
themselves upon the minds of the American colonists that the states, with one accord, made
a denial of the right to question an accused person a part of their fundamental law, so that a
maxim which in England was a mere rule of evidence, became clothed in this country with
the impregnability of a constitutional enactment." (Brown vs. Walker, 161 U.S., 591, 597; 40
Law. ed., 819, 821)."
12
Mr. Justice Malcolm, in expressive language, tells us that this maxim
was recognized in England in the early days "in a revolt against the thumbscrew and the
rack."
13
An old Philippine case [1904]
14
speaks of this constitutional injunction as "older than
the Government of the United States"; as having "its origin in a protest against the
inquisitorial methods of interrogating the accused person"; and as having been adopted in
the Philippines "to wipe out such practices as formerly prevailed in these Islands of requiring
accused persons to submit to judicial examinations, and to give testimony regarding the
offenses with which they were charged."
So it is then that this right is "not merely a formal technical rule the enforcement of which is
left to the discretion of the court"; it is mandatory; it secures to a defendant a valuable and
substantive right;
15
it is fundamental to our scheme of justice. Just a few months ago, the
Supreme Court of the United States (January 29, 1968), speaking thru Mr. Justice Harlan
warned that "[t]he constitutional privilege was intended to shield the guilty and imprudent as
well as the innocent and foresighted."
16

It is in this context that we say that the constitutional guarantee may not be treated with
unconcern. To repeat, it is mandatory; it secures to every defendant a valuable and
substantive right. Taada and Fernando (Constitution of the Philippines, 4th ed., vol. I, pp.
583-584) take note of U.S. vs. Navarro, supra, which reaffirms the rule that the constitutional
proscription was established on broad grounds of public policy and humanity; of policy
because it would place the witness against the strongest temptation to commit perjury, and
of humanity because it would be to extort a confession of truth by a kind of duress every
species and degree of which the law abhors.
17

Therefore, the court may not extract from a defendant's own lips and against his will an
admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or
indirectly, of facts usable against him as a confession of the crime or the tendency of which is
to prove the commission of a crime. Because, it is his right to forego testimony, to remain
silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of
his own free, genuine will.
Compulsion as it is understood here does not necessarily connote the use of violence; it may
be the product of unintentional statements. Pressure which operates to overbear his will,
disable him from making a free and rational choice, or impair his capacity for rational
judgment would in our opinion be sufficient. So is moral coercion "tending to force testimony
from the unwilling lips of the defendant."
18

2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a
criminal case. He was called by the prosecution as the first witness in that case to testify for
the People during the first day of trial thereof. Petitioner objected and invoked the privilege
of self-incrimination. This he broadened by the clear cut statement that he will not
testify. But petitioner's protestations were met with the judge's emphatic statement that it
"is the right of the prosecution to ask anybody to act as witness on the witness
stand including the accused," and that defense counsel "could not object to have the accused
called on the witness stand." The cumulative impact of all these is that accused-petitioner
had to take the stand. He was thus peremptorily asked to create evidence against himself.
The foregoing situation molds a solid case for petitioner, backed by the Constitution, the law,
and jurisprudence.
Petitioner, as accused, occupies a different tier of protection from an ordinary witness.
Whereas an ordinary witness may be compelled to take the witness stand and claim the
privilege as each question requiring an incriminating answer is shot at him,
19
and accused
may altogether refuse to take the witness stand and refuse to answer any and all
questions.
20
For, in reality, the purpose of calling an accused as a witness for the People
would be to incriminate him.
21
The rule positively intends to avoid and prohibit the certainly
inhuman procedure of compelling a person "to furnish the missing evidence necessary for his
conviction."
22
This rule may apply even to a co-defendant in a joint trial.
23

And the guide in the interpretation of the constitutional precept that the accused shall not be
compelled to furnish evidence against himself "is not the probability of the evidence but it is
the capability of abuse."
24
Thus it is, that it was undoubtedly erroneous for the trial judge to
placate petitioner with these words:.
What he will testify to does not necessarily incriminate him, counsel.
And there is the right of the prosecution to ask anybody to act as witness on the
witness-stand including the accused.
If there should be any question that is incriminating then that is the time for
counsel to interpose his objection and the court will sustain him if and when the
court feels that the answer of this witness to the question would incriminate him.
Counsel has all the assurance that the court will not require the witness to answer
questions which would incriminate him.
But surely, counsel could not object to have the accused called on the witness
stand.
Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208, 244, quoted
in VIII Wigmore, p. 355,
25
While a defendant's knowledge of the facts remains concealed
within his bosom, he is safe; but draw it from thence, and he is exposed" to conviction.
The judge's words heretofore quoted "But surely counsel could not object to have the
accused called on the witness stand" wielded authority. By those words, petitioner was
enveloped by a coercive force; they deprived him of his will to resist; they foreclosed choice;
the realities of human nature tell us that as he took his oath to tell the truth, the whole truth
and nothing but the truth, no genuine consent underlay submission to take the witness
stand. Constitutionally sound consent was absent.
3. Prejudice to the accused for having been compelled over his objections to be a witness for
the People is at once apparent. The record discloses that by leading questions Chavez, the
accused, was made to affirm his statement given to the NBI agents on July 17, 1963 at 5:00
o'clock in the afternoon.
26
And this statement detailed the plan and execution thereof by
Sumilang (Vasquez), Asistio and himself to deprive the Chinese of his Thunderbird car. And
he himself proceeded to narrate the same anew in open court. He identified the Thunderbird
car involved in the case.
27

The decision convicting Roger Chavez was clearly of the view that the case for the People was
built primarily around the admissions of Chavez himself. The trial court described Chavez as
the "star witness for the prosecution". Indeed, the damaging facts forged in the decision
were drawn directly from the lips of Chavez as a prosecution witness and of course Ricardo
Sumilang for the defense. There are the unequivocal statements in the decision that "even
accused Chavez" identified "the very same Thunderbird that Johnson Lee had offered for
sale"; that Chavez "testimony as witness for the prosecution establishes his guilt beyond
reasonable doubt and that Chavez is "a self-confessed culprit". 1wph1.t
4. With all these, we have no hesitancy in saying that petitioner was forced to testify to
incriminate himself, in full breach of his constitutional right to remain silent. It cannot be said
now that he has waived his right. He did not volunteer to take the stand and in his own
defense; he did not offer himself as a witness; on the contrary, he claimed the right upon
being called to testify. If petitioner nevertheless answered the questions inspite of his fear of
being accused of perjury or being put under contempt, this circumstance cannot be counted
against him. His testimony is not of his own choice. To him it was a case of compelled
submission. He was a cowed participant in proceedings before a judge who possessed the
power to put him under contempt had he chosen to remain silent. Nor could he escape
testifying. The court made it abundantly clear that his testimony at least on direct
examination would be taken right then and thereon the first day of the trial.
It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless,
no objections to questions propounded to him were made. Here involve is not a mere
question of self-incrimination. It is a defendant's constitutional immunity from being called to
testify against himself. And the objection made at the beginning is a continuing
one. 1wph1.t
There is therefore no waiver of the privilege. "To be effective, a waiver must be certain
and unequivocal, andintelligently, understandably, and willingly made; such waiver following
only where liberty of choice has been fully accorded. After a claim a witness cannot properly
be held to have waived his privilege on vague and uncertain evidence."
28
The teaching
in Johnson vs. Zerbst
29
is this: "It has been pointed out that "courts indulge every reasonable
presumption against waiver" of fundamental constitutional rights and that we "do not
presume acquiescence in the loss of fundamental rights." A waiver is ordinarily an intentional
relinquishment or abandonment of a known right or privilege." Renuntiatio non praesumitur.
The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted
to, make waiver a shaky defense. It cannot stand. If, by his own admission, defendant proved
his guilt, still, his original claim remains valid. For the privilege, we say again, is a rampart that
gives protection - even to the guilty.
30

5. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ.
31
It
is traditionally considered as an exceptional remedy to release a person whose liberty is
illegally restrained such as when the accused's constitutional rights are disregarded.
32
Such
defect results in the absence or loss of jurisdiction
33
and therefore invalidates the trial and
the consequent conviction of the accused whose fundamental right was violated.
34
That void
judgment of conviction may be challenged by collateral attack, which precisely is the function
of habeas corpus.
35
This writ may issue even if another remedy which is less effective may be
availed of by the defendant.
36
Thus, failure by the accused to perfect his appeal before the
Court of Appeals does not preclude a recourse to the writ.
37
The writ may be granted upon a
judgment already final.
38
For, as explained in Johnson vs. Zerbst,
39
the writ of habeas corpus
as an extraordinary remedy must be liberally given effect
40
so as to protect well a person
whose liberty is at stake. The propriety of the writ was given the nod in that case, involving a
violation of another constitutional right, in this wise:
Since the Sixth Amendment constitutionally entitles one charged with crime to the
assistance of Counsel, compliance with this constitutional mandate is an essential
jurisdictional prerequisite to a Federal Court's authority. When this right is properly
waived, the assistance of Counsel is no longer a necessary element of the Court's
jurisdiction to proceed to conviction and sentence. If the accused, however, is not
represented by Counsel and has not competently and intelligently waived his
constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid
conviction and sentence depriving him of his liberty. A court's jurisdiction at the
beginning of trial may be lost "in the course of the proceedings" due to failure to
complete the court as the Sixth Amendment requires by providing Counsel for
an accused who is unable to obtain Counsel, who has not intelligently waived this
constitutional guaranty, and whose life or liberty is at stake. If this requirement of
the Sixth Amendment is not complied with, the court no longer has jurisdiction to
proceed. The judgment of conviction pronounced by a court without jurisdiction is
void, and one imprisoned thereunder may obtain release of habeas corpus.
41

Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case
presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of
Rule 102 extends the writ, unless otherwise expressly provided by law, "to all cases of illegal
confinement or detention by which any person is deprived of his liberty, or by which the
rightful custody of any person is withheld from the person entitled thereto.
Just as we are about to write finis to our task, we are prompted to restate that: "A void
judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be
obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It
neither binds nor bars any one. All acts performed under it and all claims flowing out of it are
void. The parties attempting to enforce it may be responsible as trespassers. ... "
42

6. Respondents' return
43
shows that petitioner is still serving under a final and valid
judgment of conviction for another offense. We should guard against the improvident
issuance of an order discharging a petitioner from confinement. The position we take here is
that petitioner herein is entitled to liberty thru habeas corpus only with respect to Criminal
Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, under which he was
prosecuted and convicted.
Upon the view we take of this case, judgment is hereby rendered directing the respondent
Warden of the City Jail of Manila or the Director of Prisons or any other officer or person in
custody of petitioner Roger Chavez by reason of the judgment of the Court of First Instance
of Rizal, Quezon City Branch, in Criminal Case Q-5311, entitled"People of the Philippines,
plaintiff, vs. Ricardo Sumilang, et al., accused," to discharge said Roger Chavez from
custody, unless he is held, kept in custody or detained for any cause or reason other than the
said judgment in said Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City
Branch, in which event the discharge herein directed shall be effected when such other cause
or reason ceases to exist.
No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Angeles and Fernando, JJ., concur.
Castro, J., concurs in a separate opinion.









Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. L-61570 February 12, 1990.
RUPERTO FULGADO, substituted by his heirs, JULIANA, JOSE, MAXIMO, PACITA and
SEVERO all surnamed FULGADO, petitioners,
vs.
HON. COURT OF APPEALS, RUFINO CUSTODIO, SIMPLICIA CUSTODIO, ARSENIO PIGUING,
ISMAEL PORCIUNCULA and DOMINGA MACARULAY, respondents.
Dollete, Blanco, Ejercito & Associates for petitioners.
Ramon Tuangco for private respondents.

FERNAN, C.J.:
On September 9,1967, Ruperto Fulgado, a man approaching the twilight of his life, undertook
the arduous task of filing an action in the Court of First Instance of Rizal, Pasig branch against
Rufino Custodia, Simplicia Custodia, Arsenio Piguing, Ismael Porciuncula and Dominga
Macarulay for the annulment of certain contracts of sale and partition with accounting.
1
The
defendants (herein private respondents) filed their answer to the complaint with special and
affirmative defenses and a counterclaim.
After several deferments, the pre-trial conference was finally set for February 1, 1968 at 8:30
in the morning. Private respondents and their counsel failed to appear on time at the pre-
trial and were subsequently declared as in default. Plaintiff Fulgado was then allowed to
present his evidence ex parte before the Deputy Clerk of Court.
Meanwhile, upon learning of their predicament, private respondents immediately filed a
motion to lift the order of default on the same day that the order was issued. The trial court
denied said motion in its order of February 16, 1972. Their motion for reconsideration was
also denied. Persistently, respondents filed a petition for relief from the default order. Once
more, this was denied.
On April 24, 1972, the trial court rendered a decision in favor of plaintiff Ruperto Fulgado. On
appeal, however, the Court of Appeals found that private respondents had been deprived of
their day in court by the unjust denial of their motion to lift the order of default.
2
The
Appellate Court, in no less than explicit terms, said:
WHEREFORE, the decision of the court a quo is hereby set aside and the
case is remanded to the court of origin for trial on the merits, granting to
the defendants the opportunity to present their evidence, provided,
however, that the evidence already presented before the commissioner
shall stand, but with the right of the defendants to cross-examine the
witness who had already testified and with the right of the plaintiff to
present additional evidence that then he may decide. Without costs.
3

The Court of Appeals' decision became final and executory on June 27,1974 and the records
of the case were remanded to the trial court.
On July 3, 1975, or more than a year after the finality of the Appellate Court's decision,
counsel for private respondents moved that the trial court "include th(e) case in any date of
the August and September calendar of the Court, at the usual hour in the morning."
4

The case was set for hearing on September 16,1975. Unfortunately, the presiding judge went
on official leave and the hearing was postponed anew to January 15 and February 15, 1976.
In the meantime, plaintiff Ruperto Fulgado died on November 25,1975 and was substituted
by his children as party plaintiffs. Fulgado's witness, Jose Fulgado, referred to in the
dispositive part of the Appellate Court's judgment, had earlier migrated to the United States
on September 16, 1974.
When the case was heard on May 4, 1976, the following proceedings transpired:
Atty Dollete:
For the plaintiff, Your Honor. If your Honor please,
may I inform this Honorable Court that this is a
remanded case from the Court of Appeals for cross-
examination or presentation by the plaintiff of any
additional evidence. But we have no further evidence
in this case ... except those evidence already adduced
in the lower court before it was appealed in the Court
of Appeals. It is up for the defense now to cross-
examine the witnesses.
Court (To Atty. Tuangco):
You are through with the cross-examination?
Atty. Tuangco:
Not yet, Your Honor, we were granted by the Court of
Appeals the right to cross-examine the witnesses ... .
The last time this case was called for hearing by this
Honorable Court, the Presiding Judge tried to make
the parties come to a settlement, but it seems that.
they could not come to such settlement. I advised my
clients to try to meet them. So now, this is the stage
where they could not agree and so we will be
proceeding with the cross-examination of the
witnesses.
Atty. Dollete:
There were only two witnesses. Two witnesses were
presented, one is Ruperto Fulgado and he died
already. Your Honor, the other witness was Jose
Fulgado who is now abroad for almost a year, Your
Honor.
Atty. Tuangco:
I understand that the other witness was here on a
visit, Your Honor. He came back.
Court:
So, what shall we do now?
Atty. Tuangco:
So, I move to strike out the testimonies of the
witnesses who testified on the ground that we were
deprived of our right to cross-examine them.
Atty. Dollete:
We will submit, Your Honor, for resolution the motion
of the defendants.
Court (To Atty. Tuangco):
So, what do you want?
Atty. Tuangco:
That the whole testimonies of the two witnesses who
were presented ex parte be stricken off the record
because we have not been granted the right of cross-
examining them and they are not available at this
stage, Your Honor.
Atty. Dollete:
We will submit Your Honor. We maintain, Your
Honor. Our opposition is that it hinges on the fact
that defendants committed laches in their failure to
cross-examine the witness. That is our opposition.
Court:
Why?
Atty. Dollete:
There were several opportunities for them to cross-
examine especially the witness Ruperto Fulgado, Your
Honor. They are with full knowledge of the age of this
witness. They could have taken steps to assert their
right granted by the Court of Appeals.
Notwithstanding their knowledge about the age, the
advanced age and health condition of this witness
Ruperto Fulgado, then we maintain, Your Honor, that
defendants, in a way, have committed laches in the
assertion of their right to cross-examine.
Atty. Tuangco:
The records will show Your Honor, that it was the
defendants who moved to set this case for hearing
upon the remanding of the records from the Court of
Appeals.
Court:
You make a written motion and I will grant you a
period of ten (10) days within which to file an
opposition and then another additional period of ten
(10) days within which to reply. Then this matter shall
be deemed submitted for resolution. But the fact is
clear now that plaintiff has no more additional
evidence.
Atty. Dollete:
Yes, Your Honor.
Court:
So that in case the court favorably grants the motion
of defendants and orders the striking out of the
testimonies of Ruperto Fulgado and the other
witness, together with the documentary evidence,
the plaintiff had no more evidence to offer.
Atty. Dollete:
Yes, Your Honor. We stand on the evidence on
Record.
5

On June 30, 1976, the trial court issued an order dismissing the case. It decreed:
For reason stated in the defendants' motion filed on May 18, 1976, which
the Court finds meritorious, the testimonies of plaintiffs witnesses
Ruperto Fulgado and Jose Fulgado, who were not presented by the
plaintiff so that the defendants could cross-examine them on May 4,
1976, are stricken off the record and, as a consequence, in view of the
manifestation of plaintiffs counsel that he had no more witnesses to
present, the above-entitled case is dismissed without pronouncement as
to costs.
6

On appeal to the Appellate Court in C.A. G.R No. 62353-R, said order was affirmed on June
30, 1982.
7
Petitioners now question said affirmance before this Court in the instant petition
for review.
The principal issue in the case at bar is the propriety of the exclusion of the testimonies given
by the now deceased Ruperto Fulgado and his witness, Jose Fulgado, who has departed for
the United States, which resulted in the dismissal of the complaint. Private respondents
maintain that such testimonies are wholly inadmissible for being hearsay, because
respondents were not able to cross-examine the witnesses.
Petitioners, on the other hand, contend that while the right to cross-examination is an
essential part of due process, the same may however be waived as the private respondent
have done when they allowed an unreasonable length of time to lapse from the inception of
the opportunity to cross-examine before availing themselves of such right and likewise when
they failed to exhaust other remedies to secure the exercise of such right.
The appeal is well-taken.
In Savory Luncheonette vs. Lakas ng Manggagawang Pilipino,
8
and the cases cited
thereunder, the Court, speaking through Justice Muoz Palma, has provided us with a
concise overview of the right to cross-examination as a vital element of due process. Thus:
The right of a party to confront and cross-examine opposing witnesses in
a judicial litigation, be it criminal or civil in nature, or in proceedings
before administrative tribunals with quasi-judicial powers, is a
fundamental right which is part of due process. However, the right is a
personal one which may be waived expressly or impliedly by conduct
amounting to a renunciation of the right of cross-examination. Thus,
where a party has had the opportunity to cross-examine a witness but
failed to avail himself of it, he necessarily forfeits the right to cross-
examine and the testimony given on direct examination of the witness
will be received or allowed to remain in the record.
The conduct of a party which may be construed as an implied waiver of
the right to cross-examine may take various forms. But the common basic
principle underlying the application of the rule on implied waiver is that
the party was given the opportunity to confr ont and cross-examine an
opposing witness but failed to take advantage of it for reasons
attributable to himself alone.
The principle requiring a testing of testimonial statements by cross-examination has always
been understood as requiring, not necessarily an actual cross-examination, but merely
an opportunity to exercise the right to cross-examine if desired.
9
Thus the resolution of the
present case would hinge on whether or not this was an opportunity for cross-examination.
There is no disputing that where there was no such opportunity (to cross examine) and the
want of it was caused by the party offering (plaintiff), the testimony should be stricken out.
However, where the failure to obtain cross-examination was imputable to the cross
examiner's fault, the lack of cross-examination is no longer a ground for exclusion according
to the general principle that an opportunity, though waived, will suffice.
10

From the records presented, it is manifest that private respondents had enough opportunity
to cross-examine plaintiff Ruperto Fulgado before his death, and Jose Fulgado before his
migration to the United States. Conceding that private respondents lost their standing in
court during the time they were in default, they were no longer in that situation on June 6,
1974 when the Court of Appeals set aside the default judgment in CA-G.R. No. 42590-R and
remanded the case to the court of origin for trial on the merits, "granting to the defendants
the opportunity to present their evidence ... ."
11
This was a positive signal for them to
proceed with the cross-examination of the two Fulgados, a right previously withheld from
them when they were considered in default. But despite knowledge of Ruperto's failing
health (he was then 89 years of age) and Jose's imminent travel to the United States, private
respondents did not move swiftly and decisively. They tarried for more than one year from
the finality of the Appellate Court's decision on June 27, 1974 to ask the trial court on July 3,
1975 to set the already much delayed case for hearing "in any date of August and September
... ."
12

Such inaction on the part of private respondents cannot be easily dismissed by the argument
that it is the duty of the plaintiff to always take the initiative in keeping the proceedings
"alive." At best, the argument is fatuous.
The task of recalling a witness for cross examination is, in law, imposed on the party who
wishes to exercise said right. This is so because the right, being personal and waivable, the
intention to utilize it must be expressed. Silence or failure to assert it on time amounts to a
renunciation thereof. Thus, it should be the counsel for the opposing party who should move
to cross-examine plaintiffs witnesses. It is absurd for the plaintiff himself to ask the court to
schedule the cross-examination of his own witnesses because it is not his obligation to
ensure that his deponents are cross-examined. Having presented his witnesses, the burden
shifts to his opponent who must now make the appropriate move. Indeed, the rule of placing
the burden of the case on plaintiffs shoulders can be construed to extremes as what
happened in the instant proceedings.
Having had the liberty to cross-examine and having opted not to exercise it, the case is then
the same in effect as if private respondent had actually cross-examined. We therefore hold
that it was gross error for both the trial court and the Appellate Court to dismiss the
complaint in Civil Case No. 10256 on the ultimate ground that there was an alleged failure of
cross-examination. The wholesale exclusion of testimonies was too inflexible a solution to
the procedural impasse because it prejudiced the party whose only fault during the entire
proceedings was to die before he could be cross-examined. The prudent alternative should
have been to admit the direct examination so far as the loss of cross-examination could have
been shown to be not in that instance a material loss.
13
And more compellingly so in the
instant case where it has become evident that the adverse party was afforded a reasonable
chance for cross-examination but through his own fault failed to cross-examine the witness.
Where death prevents cross-examination under such circumstances that no responsibility of
any sort can be ascribed to the plaintiff or his witness, it seems a harsh measure to strike out
all that has been obtained in the direct examination.
14

As to the witness Jose Fulgado who is reportedly abroad, private respondents could have
resorted to the various modes of discovery under the Rules of Court to cross-examine Jose.
D, During the hearing of May 4, 1976, counsel for private respondents unwittingly or
wittingly disclosed that they knew that Jose was in the country "for a visit" but they did not
exert any effort to have him subpoenaed.
Altogether, the acts of private respondents constitute a waiver, and consequently, a
forfeiture of their right to cross-examination. And having failed to make use of this right, the
consequences should rightfully fall on them and not on their adversary.
WHEREFORE, the decision under review of the Court of Appeals in CA-G.R. No. 62353-R
dated June 30, 1982 is SET ASIDE. The trial court is ordered to REINSTATE Civil Case No.
10256 and to allow the direct testimonies of plaintiff Ruperto Fulgado and his witness Jose
Fulgado to remain in the record. The court is further ordered to give priority to the hearing of
said case in view of the length of time that it has remained unresolved on account of
procedural differences. This judgment is immediately executory. No costs.
Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur.




















Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-48883 August 6, 1980
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. ALBERTO V. SENERIS, As District Judge, Court of First Instance, Branch II, Sixteenth
Judicial District, Zamboanga City and PILAR ANGELES DE PIMENTEL, respondents.
MAKASIAR, J.:
The legal issue posed in this special civil action for certiorari, with prayer for a writ of
preliminary injunction, spawned by the August 4, 1978 order of respondent judge in Criminal
Case No. 750 for parricide against therein accused Pilar Angeles de Pimentel, hereinafter
referred to as private respondent, is the admissibility in evidence of the testimony of a
prosecution witness in the said criminal case who dies before completion of his cross-
examination. That issue is crucial to the fate of private respondent, considering that the
deceased prosecution witness "... is the most vital and the only eyewitness available to the
prosecution against respondent Pilar Angeles de Pimentel for the commission of the
gruesome crime of parricide ..." (p. 10, rec.).
The factual background of the action is undisputed.
On February 8, 1978, Assistant Provincial Fiscal Camilo E. Tamin, who was then on official
detail with the office of the City Fiscal, Zamboanga City, filed with the Court of First Instance,
Sixteenth Judicial District, Zamboanga City, an amended information for parricide in Criminal
Case No. 1742, charging herein private respondent as principal by inducement, Mario
Nemenio y delos Santos and Salim Doe as principals by direct participation and MoisesAndaya
y Julkanain, as accomplice, in the fatal stabbing on September 6, 1977 in Zamboanga City of
Eduardo Pimentel y Orario, the lawful husband of private respondent. The amended
information reads:
That on or about September 6, 1977, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Court, the above-named
accused Pilar Angeles de Pimentel, with deliberate intent to kill her
husband, Eduardo Pimentel y Orario, with whom she was united in lawful
wedlock, did then and there, willfully, unlawfully and feloniously, induce
and offer a sum of money as consideration or prize to said accused Mario
Nemenio y delos Santos and Salim Doe to kill her said lawfully wedded
husband Eduardo Pimentel y Orario, and because and on account of said
promised consideration or prize which was accepted, the said accused
Mario Nemenio y delos Santos and Salim Doe, did then and there,
willfully and feloniously assault, attack and stab with a knife with which
they were conveniently provided, the person of said Eduardo Pimentel y
Orario, thereby inflicting upon the latter mortal wound which directly
caused his death; that the above-named accused Moises Andaya y
Julkanain although without having participated directly in the commission
of the offense above- described, took part prior to its commission by then
and there acting as the contact man in the execution of their plot to kill
said Eduardo Pimentel y Orario.
Contrary to law (p. 13, rec.)
On January 17, 1978, private respondent, assisted by her counsel, moved and was granted a
separate trial (p. 16, rec.).
On February 22, 1978, the accused Mario Nemenio y delos Santos, assisted by his counsel de
oficio, entered on arraignment a plea of guilty. Respondent judge thereafter rendered
judgment convicting accused Mario Nemenio y delos Santos of murder qualified by the
circumstance of prize and reward-and not of parricide as charged in the information; because
he "... had no relation whatsoever to the deceased Eduardo Pimentel ..." and appreciating
the mitigating circumstances of voluntary plea of guilty and lack of instruction and education,
imposed on him the indeterminate penalty of eight (8) years of prision mayor as the
minimum, to fourteen (14) years and eight (8) months of reclusion temporal as the
maximum; to indemnify the heirs of the deceased Eduardo Pimentel the amount of
P12,000.00 and to pay one-fourth () of the costs of the proceedings (pp. 15-19, rec.).
Immediately after promulgation of judgment, accused Mario Nemenio y delos Santos offered
to testify against his co-accused, herein private respondent, in her separate trial earlier
granted by the respondent judge in the same criminal case, now numbered 750. Allowed, he
testified as prosecution witness on February 28, March 6, and March 22, 1978 and as
summarized by the petitioner, his testimony on direct examination contained in seventy-six
(76) pages of transcripts of stenographic notes (pp. 21-44, 57-64, rec.), is to the effect "...that
he and Salim Doe were hired by respondent Pilar Angeles de Pimentel, for the consideration
of P3,000.00 to kill Eduardo Pimentel, husband of respondent Pilar Angeles de Pimentel, in
the evening of September 6, 1977, in the latter's residence in Zamboanga City, and that it
was respondent Pilar Angeles de Pimentel herself who actually pointed out the victim
Eduardo Pimentel to the witness, who then stabbed the said victim to death...That he did not
know the Identity of the victim Eduardo Pimentel at the time of the stabbing in the evening
of September 6, 1977. He was guided solely by respondent Pilar Angeles de Pimentel, who
pointed out her victim spouse to him ..." (allegation No. 4, petition, pp. 4-5, rec.).
After the prosecution had terminated on March 22, 1978 the direct examination of its
witness Mario Nemenio y delos Santos, counsel for private respondent moved for the
holding in abeyance of the cross-examination of the said prosecution witness until after he
(counsel) shall have been furnished with the transcripts of the stenographic notes of the
direct examination of said prosecution witness (p. 47, TSN, March 22, 1978, p. 64, rec.);
allegation No. 5, petition, p. 5, rec.). The same was granted by the respondent judge who
ordered the resumption of the hearing on April 19, 1978 (pp. 64, 94, 108, rec.).
But on April 19, 1978, aforesaid prosecution witness failed to appear because he was not
served with a subpoena (p. 108, rec.). Consequently, the hearing was reset for June 7, 1978
(ibid.)
On June 7, 1978, counsel for private respondent commenced his cross- examination of
prosecution witness Mario Nemenio y delos Santos, which cross-examination however was
not completed on that session for lack of material time, thus:
ATTY. CALVENTO:
I reserve my right to cross-examine the witness further.
COURT
Reservation to continue the cross-examination is granted.
ORDER: For lack of material time, as prayed for and upon agreement of
the parties today's hearing is hereby adjourned and to be resumed on
July 3, 1978 at 8:30 o'clock in the morning (p. 84, rec.).
According to the petition, the uncompleted cross-examination reduced in fifty-three (53)
pages of transcripts of stenographic notes (pp. 65-84, rec.) had already "... touched on the
conspiracy existing among Salim Doe, witness Mario Nemenio and respondent Pilar Angeles
de Pimentel to kill Eduardo Pimentel, in the latter's residence in Zamboanga City in the
evening of September 6, 1977, and also on the actual stabbing by witness Mario Nemenio of
the victim Eduardo Pimentel who was pointed out to the witness-killer by his wife,
respondent Pilar Angeles de Pimentel ..." (p. 7, rec.). This is not disputed by private
respondent.
Continuation of the cross-examination was, as aforestated, set for July 3, 1978 at 8:30 o'clock
in the morning.
However, prosecution witness Mario Nemenio y delos Santos was shot dead by the
Integrated National Police patrols on June 21, 1978 while allegedly escaping from the San
Ramon Prison and Penal Farm, Zamboanga City, where he was then serving his sentence.
Consequently, the completion of his cross-examination became an impossibility.
On July 20, 1978, petitioner, without any motion on the part of the defense for the striking
out of the deceased witness's testimony, filed with the respondent court a motion praying
for a ruling on the admissibility of the testimony of deceased witness Mario Nemenio y delos
Santos.
On August 4, 1978, respondent judge issued an order declaring as inadmissible the entire
testimony of the deceased witness Mario Nemenio y delos Santos on the principal ground "...
that the defense was not able to complete its cross-examination of said witness ...", relying
on the case of Ortigas, Jr. vs. Lufthansa, etc., L-28773, June 30, 1975, 64 SCRA, pp. 610,636-
37).
Hence, this action, to which WE gave due course on December 4, 1978, after considering
private respondent's comment as well as those of the Solicitor General and of the
respondent judge who was required to file one. On even date, WE likewise issued a
temporary restraining order "... effective immediately and until further orders from this
Court enjoining respondent District Judge from continuing with the trial of Criminal Case No.
750 (1742) entitled People of the Philippines, plaintiff, versus Pilar Angeles de Pimentel,
accused, in the Court of First Instance of Zamboanga City, Branch II."
Petitioner contends that respondent judge gravely abused his discretion in ruling as
inadmissible the testimony of prosecution witness Mario Nemenio y delos Santos.
WE agree.
I
1. The constitutional right of confrontation, which guarantees to the accused the right to
cross-examine the witnesses for the prosecution, is one of the most basic rights of an
accused person under our system of justice. It is a fundamental right which is part of due
process not only in criminal proceedings but also in civil proceedings as well as in
proceedings in administrative tribunals with quasi-judicial powers (Savory Luncheonette vs.
Lakas Manggagawang Pilipino, et al., 62 SCRA 258 [1975]).
In almost exactly the same language, both the 1935 and 1973 Constitutions secured it, thus:
"In all criminal prosecutions, the accused ... shall enjoy the right ... to meet the witnesses
face to face ..." (Section 19, Art. IV, Bill of Rights, 1973 Constitution; Section 17, Art. III, 1935
Constitution). Echoing the same guarantee, Section I (f) of Rule 115 of the Revised Rules of
Court provides that in all criminal proceedings the defendant shall have the right to be
confronted at the trial by, and to cross- examine the witnesses against him. Constitutional
confrontation requirements apply specifically to criminal proceedings and have been held to
have two purposes; first and primarily, to secure the opportunity of cross-examination, and
secondarily, to obtain the benefit of the moral impact of the courtroom atmosphere as it
affects the witnesses demeanor (21 Am Jur 2d 360). Stated otherwise, it insures that the
witness will give his testimony under oath, thus deterring lying by the threat of perjury
charge; it forces the witness to submit to cross-examination, a valuable instrument in
exposing falsehood and bringing out the truth; and it enables the court to observe the
demeanor of the witness and assess his credibility (California v. Green, 339 U.S. 157 [1970]).
2. But while the right to confrontation and cross-examination is a fundamental right, WE
have ruled that the same can be waived expressly or implied by conduct amounting to a
renunciation of the right of cross-examination (Savory Luncheonettee vs. Lakas ng
Manggagawang Pilipino, et al., supra, p. 259, citing U.S. v. Atanacio, 6 Phil. 413 [1906];
People vs. dela Cruz, 56 SCRA 84, 91 [19741). The conduct of a party which may be construed
as a implied waiver of the right to cross-examine may take various forms. But the common
basic principles underlying the application of the rule on implied waiver is that the party was
given the opportunity to confront and cross-examination an opposing witness but failed to
take advantage of it for reasons attributable to himself alone. Thus, where a party has had
the opportunity to cross-examine an opposing witness but failed to avail himself of it, he
necessarily forfeits the right to cross-examine and the testimony given on direct examination
of the witness will be received or allowed to remain in the record (Savory Luncheonette vs.
Lakas ng Maggagawang Pilipino, et al.,supra, citing Francisco, Revised Rules of Court, Vol. on
Evidence, p. 853, in turn citing People vs. Cole, 43 N.Y. 508-512 and Bradley vs. Mirick, 91
N.Y. 293; see alo 29 Am. Jur. 2d 749).
On the other hand, when the cross-examination is not and cannot be done or completed due
to causes attributable to the party offering the witness, as was the situation in the Lufthansa
German Airlines case (64 SCRA 610 [1975]) relied upon by respondent judge, the
uncompleted testimony is thereby rendered incompetent and inadmissible in evidence. WE
emphasized in the said case that "[T]he right of a party to cross-examine the witness of his
adversary is invaluable as it is inviolable in civil cases, no less than the right of the accused in
criminal cases. The express recognition of such right of the accused in the Constitution does
not render the right of parties in civil cases less constitutionally based, for it is an
indispensable part of the due process guaranteed by the fundamental law. Subject to
appropriate supervision by the judge in order to avoid unnecessary delays on account of its
being unduly protracted and to needed injunctions protective of the right of the witness
against self-incrimination and oppressive and unwarranted harassment and embarrassment,
a party is absolutely entitled to a full cross-examination as prescribed in Section 8 of Rule 132
... Until such cross-examination has been finished, the testimony of the witness cannot be
considered as complete and may not, therefore be allowed to form part of the evidence to
be considered by the court in deciding the case" (p. 637). However, WE likewise therein
emphasized that where the right to cross examine is lost wholly or in part through the fault
of the cross-examiner, then the testimony on direct examination may be taken into account;
but when cross-examination is not and cannot be done or completed due to causes
attributable to the party offering the witness, the uncompleted testimony is thereby
rendered incompetent (p. 636)
3. The effects of absence of and incomplete cross-examination of witness on the admissibility
in evidence of his testimony on direct examination has been extensively discussed thus: "As a
general rule, the testimony of a witness, given on direct examination, should be stricken
where there is not an adequate opportunity for cross-examination, as where the witness by
reason of his death, illness, or absence cannot be subjected to cross-examination. Although
the contrary has been held (Scott v. McCann, 24 A. 536, 76 Md. 47), the testimony of a
witness, given on direct examination, should be stricken where there is not an adequate
opportunity for cross-examination (Nehring v. Smith, 49 N.W. 2d 831, 243 Iowa 225), as
where the party against whom he testified is, through no fault of his own, deprived of the
right to cross-examine him by reason of his death (Henderson v. Twin Falls County 80 P. 2d
801, 59 Idaho 97; Twin Falls County, State of Idaho v. Henderson, 59 S. Ct. 149, 305 U.S. 568,
83 L. Ed. 358), or as a result of the illness of the witness or absence, or a mistrial ordered. The
direct testimony of a witness who dies before conclusion of the cross-examination can
be stricken only insofar as not covered by the cross-examination (Curtice v. West, 2 NYS 507,
50 Hun 47, affirmed 24 N.E. 1099, 121 N.Y. 696), and absence of a witness is not enough to
warrant striking his testimony for failure to appear for further cross-examination where the
witness has already been sufficiently cross-examined (Lew Choy v. Lim Sing 216 P. 888, 125
Wash 631), or the matter on which further cross-examination is sought is not in controversy
(supra). It has been held that a referee has no power to strike the examination of a witness
on his failure to appear for cross-examination where a good excuse is given (In re Crooks, 23
Hun 696)" [98 CJS 126-127, Emphasis supplied].
Moreover, "[I]f one is deprived of the opportunity of a cross-examination without fault upon
his part, as in the case of the illness or death of a witness after direct examination, it is
generally held that he is entitled to have the direct testimony stricken from the record. This
doctrine rests on the common law rule that no evidence should be admitted but what was or
might be under the examination of both parties, and that exparte statements are too
uncertain and unreliable to be considered in the investigation of controverted facts (Wray vs.
State, 154 Ala 36, 45 So 697; People vs. Manchetti, 29 Cal. 2d 452,175 P2d 533; A. H.
Angerstein, Inc. vs. Jankowski, 55 Del 304, 187 A2d 81; Nehring vs. Smith, 243 Iowa 225, 49
NW2d 831; Citizens Bank & Trust Co. vs. Reid Motor Co. 216 NC 432, 5 SE 2d 318). It has been
held, however, that the trial court did not abuse its discretion in refusing to discharge the
jury where the state witness collapsed before cross- examination was completed, it being
shown thatno motion to strike the testimony was made, that it was not indicated what
further information was sought to be produced by further cross-examination, and that the
witness' testimony was largely cumulative (Banks vs, Commonwealth, 312 Ky 297, 227 SW 2d
426)" [81 Am Jur 2d 474].
4. Wigmore, eminent authority on evidence, opined that:
xxx xxx xxx
... where the death or illness prevents cross-examination under such
circumstances that no responsibility of any sort can be attributed to either
the witness of his party, it seems harsh measure to strike out all that has
been obtained on the direct examination. Principle requires in strictness
nothing less. But the true solution would be to avoid any inflexible rule,
and to leave it to the trial judge to admit the direct examination so far as
the loss of cross-examination can be shown to him to be not in that
instance a material loss. Courts differ in their treatment of this difficult
situation; except that by general concession a cross-examination begun
but unfinished sufices if its purposes have been substantially
accomplished
xxx xxx xxx
(Vol. II, P. 108, Emphasis supplied).
II
1. Respondent judge's full reliance on the Lufthansa German Airlines case cannot be
sustained. To be sure, while the cross-examination of the witness in the aforesaid Lufthansa
case and that of the witness in the present action were both uncompleted, the causes
thereof were different in that while in the present case it was the death of the witness, in the
Lufthansa case, it was the unjustified and unexplained failure of Lufthansa to present its
witness on the scheduled date for his cross-examination which had already been preceded
by several postponements initiated by Lufthansa itself, thus depriving the other party the
opportunity to complete the cross-examination of said witness. Consequently, this Court
therein correctly ruled as inadmissible the testimony of the said witness on the principle that
"... when cross-examination is not and cannot be done or completed due to causes
attributable to the party offering the witness, the uncompleted testimony is thereby
rendered incompetent ..." (supra, at p. 636). As clear as day, the Lufthansa ruling therefore
applies only if there is a finding that the cause for non-completion of the cross-examination
of a witness was attributable to the very party offering the said witness. Consequently, the
same is inapplicable to the instant action as the cause for the non-completion of the cross-
examination of petitioner's witness was a fortuitous event as he was killed, as per the
pleadings submitted in this action, by the law enforcers (Integrated National Police Patrols)
after his escape from prison. As a matter of fact, respondent judge, in his questioned order,
did not lay any basis for the application of the Lufthansa ruling as he failed to make any
finding that the non-completion was due to petitioner, the party offering the witness, whose
testimony he declared as inadmissible in evidence. A reading of the questioned order reveals
that respondent judge ruled as inadmissible said questioned testimony mainly because
private respondent can no longer finish her cross-examination; hence incomplete. However,
private respondent advanced in this action the cavalier theory that the failure of her counsel
to complete his cross-examination of petitioner's witness was due to the fault of or was
attributable to the petitioner, People of the Philippines, because it was the very agents of
State who killed its own witness; hence, making the questioned testimony of petitioner's
witness inadmissible, per the Lufthansa ruling.
The contention does not deserve serious consideration. There was no finding nor any
showing as the same is farfetched or inconceivable that the killing of the witness of
petitioner by its own agents was ill-motivated. The prosecution did not order the shooting of
the government witness. He was shot while escaping from prison. It is petitioner's cause
which will possibly suffer from said death; not the cause of private respondent. It may be
true that the escape of the said witness and his consequent death may be attributable to the
negligence of petitioner's agents; but such negligence may not bind the petitioner as to pre-
judicially affect its cause and interest the prosecution of criminal offenses by reason of
the generally accepted principle that the State is not bound by the negligence or tortious acts
of its agents. As the cause of non-completion was, as aforesaid, beyond the control of the
prosecution, respondent judge's questioned order cannot be sustained on the basis of the
Lufthansa ruling which, as aforestated, was principally anchored on the finding that the cause
of the non-completion of the cross-examination of the therein witness was attributable to
the very party offering him as a witness.
2. On the other hand, WE find no merit in petitioner's contention that the testimony of its
deceased witness is admissible on the ground that private respondent had waived her right
to cross-examine the witness and that the cause of non-completion was attributable to said
private respondent. As correctly pointed out by private respondent and sustained by
respondent judge, petitioner is not justified in attributing fault to her (private respondent)
and in contending that she is deemed to have partly lost already the right of cross-
examination by not availing of the right to cross-examine the witness Mario Nemenio on
March 22, 1978 or right after his direct examination was closed and delaying until the lapse
of two and a half (2) months thereafter before making such cross-examination; because
while it is true that her counsel did not immediately start with his cross-examination of the
deceased witness on March 22, 1978, he did avail, however, of such right on the same day by
initially obtaining an opportunity to make preparations for an effective exercise thereof
considering the nature of the case a capital one and the length of the direct
examination; three sittings on three different dates or on February 28, 1978, March 6, 1978
and March 22, 1978. Hence, there was no waiver of her right of cross-examination.
Moreover, the deferment of the cross-examination of the witness requested by private
respondent on March 22, 1978 was approved by respondent judge without any objection on
the part of petitioner (pp. 45, 46, 64, rec.). And on the date for the cross-examination of the
witness Mario Nemenio or on April 19, 1978, counsel for private respondent failed to cross-
examine the said witness not of his own design but because said witness failed to appear on
that date for the reason that due to the oversight of the court's personnel the subpoena for
said witness was not served on him at the San Ramon Prison and Penal Farm (pp. 90, 108,
rec.). And respondent judge had to re-set the hearing for the cross-examination of the
witness by the private respondent only to June 7, 1978 because of the fact that respondent
judge took, with the approval of the Supreme Court, his summer vacation the whole month
of May, 1978.
It is thus apparent that no fault can be imputed to the private respondent for the length of
time that elapsed before her counsel was able to commence his cross-examination of the
witness. And private respondent's counsel was not able to complete his cross-examination of
the witness on June 7, 1978 for lack of material time by reason of which and upon agreement
of the parties the hearing was adjourned and ordered resumed on July 3, 1978 (p. 84, rec.).
It appears, therefore, that the situation is one whereby the cause of non-completion of the
cross-examination of the deceased witness was attributed neither to the fault of petitioner
nor the private respondent. Consequently, the admissibility or inadmissibility of the
testimony of the said witness cannot be resolved on the basis of the rule enunciated in the
Lufthansa case.
III
There is merit in the contention of the petitioner that the questioned testimony of its
deceased witness is admissible in evidence because private respondent's counsel had already
"... rigorously and extensively cross-examined witness Mario Nemenio on all essential
elements of the crime charged (parricide), all of which have been testified upon by said
witness in his direct examination-in-chief, and consequently, the cross-examination-in- chief,
has already been concluded."
The cross-examination was completed insofar as the essential elements of the crime charged
parricide, fact ofkilling-is concerned. What remained was merely the cross-examination
regarding the price or reward, which is not an element of parricide, but only an aggravating
circumstance (par. 11, Art. 14, Revised Penal Code).
As elaborated by petitioner in its memorandum:
The crime charged in the case at bar is Parricide under Article 246 of the
Revised Penal Code.
The elements of the crime of Parricide are that a person was killed; that
the killing was intentionally caused by the accused; and that the victim is
a parent or child, whether legitimate or illegitimate, or the lawful spouse,
or legitimate ascendant or descendant of the accused. Once these facts
are established beyond reasonable doubt, conviction is warranted (See
Aquino, The Revised Penal Code, 1961 Ed., Vol. II, p. 1171).
The deceased Eduardo Pimentel has been sufficiently shown to be the
lawful husband of private respondent Pilar Pimentel by means of the
marriage contract executed between them on May 18, 1971 ... marked as
Exhibit 'R' for the prosecution ...
The cross-examination of witness Mario Nemenio by the counsel for
private respondent on June 7, 1978 touched on the conspiracy, and
agreement, existing among Salim Doe, witness Mario Nemenio and
private respondent Pilar Pimentel to kill Eduardo Pimentel, in the latter's
residence in Zamboanga City in the evening of September 6, 1977, and
also on the actual stabbing by witness Mario Nemenio of the victim
Eduardo Pimentel who was pointed out to the witness-killer by his wife,
the private respondent Pilar Pimentel herself... The matter of
consideration or price of P3,000.00, which both the public and private
respondents maintain was not touched in the cross-examination of
witness Mario Nemenio, is not an essential element of the crime of
parricide. Price or consideration is merely an aggravating circumstance of
the crime charged, not an essential element thereof. The failure to touch
the same in the cross-examination would not at all affect the existence of
the crime of parricide. Furthermore, there is no showing or even the
slightest indication that the witness or his testimony would be discredited
if he was cross-examined on the promised consideration. The probability
is rather very great that the witness would only have confirmed the
existence of the promised consideration were he cross-examined on the
same.
From the foregoing discussion, it is submitted that the rigorous and
searching cross-examination of witness Mario Nemenio on June 7, 1978,
practically concluded already the cross-examination-in-chief, or has
already substantially accomplished the purpose of the cross-examination,
and therefore, the failure to pursue the privilege of further cross-
examination, would not adversely affect the admissibility of the direct
testimony of said witness anymore (pp. 159162, rec.).
Private respondent did not dwell on the aforesaid points in her memorandum.
Because the cross-examination made by the counsel of private respondent of the deceased
witness was extensive and already covered the subject matter of his direct testimony as state
witness relating to the essential elements of the crime of parricide, and what remained for
further cross-examination is the matter of price or reward allegedly paid by private
respondent for the commission of the crime, which is merely an aggravating circumstance
and does not affect the existence of the offense charged, the respondent judge gravely
abused his discretion in declaring as entirely inadmissible the testimony of the state witness
who died through no fault of any of the parties before his cross-examination could be
finished.
WHEREFORE, THE AUGUST 4,1978 ORDER OF THE RESPONDENT JUDGE IS HEREBY SET ASIDE;
THE RESTRAINING ORDER OF DECEMBER 4, 1978 ISSUED BY THIS COURT IS HEREBY LIFTED;
AND RESPONDENT JUDGE OR HIS SUCCESSOR IS ACCORDINGLY ORDERED TO PROCEED WITH
THE TRIAL OF CRIMINAL CASE NO. 750 (1742) AND TO ADMIT AND CONSIDER IN DECIDING
THE CASE THE TESTIMONY OF THE DECEASED WITNESS MARIO NEMENIO y DELOS SANTOS
EXCLUDING ONLY THE PORTION THEREOF CONCERNING THE AGGRAVATING CIRCUMSTANCE
OF PRICE OR REWARD WHICH WAS NOT COVERED BY THE CROSS-EXAMINATION. NO COSTS.
Teehankee (Chairman), Guerrero, De Castro and Melencio-Herrera, JJ., concur.
Fernandez, J., is on leave.











Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-51513 May 15, 1984
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELICIANO GOROSPE and RUFINO BULANADI, accused-appellants.
The Solicitor General for plaintiff-appellee.
Francisco S. Pagaduan, Sr. for accused-appellants.

ABAD SANTOS, J.:
In a verified complaint filed on October 8, 1974, with the Municipal Court of Pulilan, Bulacan,
ANASTACIA DE JESUS accused GERARDO FAJARDO, RUFINO BULANADI and FELICIANO
GOROSPE of the crime of forcible abduction with rape. (Expediente, p. 1.) The crime was said
to have been committed on September 30, 1974, starting in Plaridel, Bulacan, thru Pulilan,
and thence to Talavera, Nueva Ecija.
Municipal Judge Alfredo V. Granados of the Municipal Court of Pulilan received the complaint
and conducted a preliminary investigation, first stage.
On October 25, 1974, the Complaint was amended. Rufino Bulanadi and Feliciano Gorospe
were again named but Gerardo Fajardo was dropped and OSCAR ALVARAN was named
instead. The date when the crime was said to have been committed was changed from
September 30, 1974, to September 25, 1974. (Id, p. 41.)
Again Judge Granados conducted a preliminary investigation and on November 18, 1974, he
issued an order for the arrest of Bulanadi, Gorospe and Alvaran and fixed their bail at
P15,000.00 each. (Id, p. 70.)
Bulanadi and Gorospe posted the requisite bail. Alvaran remained at large.
The second stage of the preliminary investigation was set on February 5, 1975, but on that
day neither Bulanadi or Gorospe appeared for which reason Judge Granados declared that
they had waived their right thereto and elevated the case to the Court of First Instance of
Bulacan, (Id, p. 87.)
On March 19, 1975, Provincial Fiscal Pascual C. Kliatchko filed with the CFI of Bulacan an
information for forcible abduction with rape against Gorospe and Bulanadi. It was docketed
as Criminal Case No. 1293-M. (Id., p. 88.) But on July 25, 1975, Fiscal Kliatchko filed an
amended information which reads:
That on or about the 25th day of September, 1974, in the municipality of
Plaridel province of Bulacan, Philippines, and within the jurisdiction of
this Honorable Court, the said accused Feliciano Gorospe and Rufino
Bulanadi, together with one Oscar Alvaran who is still at large, conspiring
and confederating together and helping one another, did then and there
wilfully, unlawfully, and feloniously, by means of force, violence and
intimidation, and with lewd design abduct the complaining witness
Anastacia de Jesus, an unmarried woman, 14 years of age, by then and
there taking and carrying her to Talavera, Nueva Ecija, against her will
and with-out her consent, and upon arrival there, the said accused by
means of violence, force and intimidation have carnal knowledge of the
said Anastacia de Jesus against her will and consent. (Id, p. 100.)
Judge Nelly L. Romero Valdellon started the trial of the case on October 15, 1975. The
accused and their counselde parte had long been notified that the case was to be tried on
that day but they did not appear so the former were tried in absentia, After hearing part of
the testimony of Anastacia de Jesus, the complainant, Judge Valdellon was transferred to
Metro Manila and she was replaced by Judge Fidel P. Purisima who finished the trial. But
Judge Purisima issued an order on March 10, 1976, wherein he inhibited himself from
deciding the case. He said, "Considering that Judge Alfredo V. Granados is a first cousin by
affinity of the undersigned Presiding Judge and if only to make sure that the decision to be
rendered in this case shall be above suspicion and considering further the gravity of the
offense charged, the undersigned Presiding Judge hereby inhibits himself from deciding this
case." (Id, pp. 386-387.) So it was Judge Jesus R. de Vega who decided the case and rendered
the following judgment:
PREMISES CONSIDERED, the Court finds both the herein accused Gorospe
and Bulanadi guilty beyond reasonable doubt of rape committed against
Anastacia de Jesus as charged in the information. Considering the legal
principle that each of the herein accused is responsible not only for the
act of rape committed personally by him but also for the rape committed
by his other co-accused on account of the finding of conspiracy or
cooperation in the commission of the said crime charged against them,
the Court accordingly sentences each of the herein accused Gorospe and
Bulanadi to suffer two (2) perpetual penalties of reclusion perpetua to be
served in accordance with Art. 70 of the Revised Penal Code, with all the
accessory penalty of the law.
Both accused are further ordered to indemnify Anastacia de Jesus in the
amount of P40,000.00 for actual exemplary and moral damages; and to
pay the costs. (Id, p. 419.)
The case is now before Us on appeal.
The People's version of the facts is as follows:
Complainant Anastacia de Jesus, a 14 year-old girl at the tune of the
incident, single, student at the Calumpit Institute, Bulacan, and resident
of Pugo, Calumpit, Bulacan, was, at about 10:00 and of September 25,
1974, at Plaridel, Bulacan, in front of the Caltex Station, intending to
cross the street to buy a book. She was looking for a book, entitled
"Diwang Guinto" (pp. 2-5, t.s.n., Dec. 15, 1975; pp. 17-18, t.s.n., March
10, 1976; p. 4, t.s.n., March 11, 1976). Two persons passed by, one of
whom was appellant Rufino Bulanadi who waived a handkerchief across
her face, which affected her consciousness and she felt dizzy but felt that
she was being held and boarded into a motor vehicle (pp. 5-11, t.s.n.,
Dec. 15, 1975; p. 18, t.s.n., March 10, 1976).
Complainant regained her fun consciousness at about 8:00 o'clock in the
evening of September 25, 1974, in a nipa hut near the irrigation pump, of
Gerardo Fajardo, at Calipahan, Talavera, Nueva Ecija, Inside she saw
appellants, Feliciano Gorospe, Rufino Bulanadi, and Gerardo Fajardo (pp.
11-14, 17, 21, t.s.n., Dec. 15, 1975). They were arguing why she
(complainant) had to be taken by appellants Rufino Bulanadi and
Feliciano Gorospe (p. 16, t.s.n., Dec. 15, 1975).
That evening, at the said nipa hut, complainant was forced to drink a
strange tasting royal soft drink by appellant Feliciano Gorospe and
appellant Rufino Bulanadi, who held her hands (pp. 21-23, t.s.n., Dec. 15,
1975). After drinking the soft drink complainant lost consciousness. She
woke up only the next morning with aches and pains all over her body
especially her private part. She found herself naked. Appellants, Rufino
Bulanadi and Feliciano Gorospe, were there by her side standing when
she woke up (pp. 23-26, t.s.n., Dec. 15, 1975; p. 22, t.s.n., Jan. 12, 1976).
Gerardo Fajardo was also there. All the three of them were naked.
Evidently, appellants and Gerardo Fajardo sexually abused her (p. 27,
t.s.n., Dec. 15, 1975; p. 15, t.s.n., March 10, 1976).
Appellants and Gerardo Fajardo forcibly kept Anastacia de Jesus for nine
(9) days in the hut, with appellants, and Gerardo Fajardo taking turns in
sexually abusing her during the night. During the day she was guarded by
Oscar Alvaran.
After her nine-day ordeal, Gerardo Fajardo brought her to the house of
Cirilo Balanagay at Bancal Talavera, Nueva Ecija (pp. 20-23, t.s.n., March
12, 1976). When Gerardo Fajardo left the house, Anastacia de Jesus
related to Cirilo Balanagay what the appellants and Fajardo did to her.
Cirilo Balanagay, therefore, wired Anastacia's parents and then brought
her to the Talavera Municipal Building where she executed an affidavit
about her ordeal. She also told the PC of her harrowing experience (pp.
23-25, t.s.n., March 12, 1976).
When complainant was brought home, her friends readily noticed that
she was not her usual self anymore as "she cannot answer and she just
kept on shouting and crying and trembling", saying "keep away from me,
have pity on me." (pp. 14-15, t.s.n., Oct. 14,1975).
Complainant Anastacia de Jesus was physically examined on October 6,
1974, by Dra. Norma V. Gungon who issued a medical certificate on her
findings, as follows:
Patient examined with the presence of a ward Nurse.
She is conscious, coherent answers to questions
intelligently.
Physical Examination
Breast symetrical conical in shape, areola
pigmented.
Mons pubis pubic hair scanty in amount.
Internal Examination:
Hymen presence of healed lacerations, at 11, 5, 3
o'clock.
Vaginal introctus admits 2 fingers w/ difficulty.
Cervix small, closed
SMEAR FOR SPERMATOZOA NEGATIVE' (Exh. G-1, P. 6, rec.) (Brief, pp.
3-6.)
The appellants make the following assignment of errors:
I. THE LOWER COURT ERRED IN FINDING THE ACCUSED GUILTY OF THE
CRIME OF RAPE WHICH THE PROSECUTION ALLEGES TO HAVE BEEN
COMMITTED IN TALAVERA, PROVINCE OF NUEVA ECIJA AND NOT IN THE
PROVINCE OF BULACAN.
II. THE HONORABLE JUDGE JESUS R. DE VEGA, PRESIDING JUDGE OF THE
COURT OF FIRST INSTANCE OF BULACAN, BRANCH II ERRED IN
RENDERING THE DECISION APPEALED FROM WHEN HE HAS NO
AUTHORITY TO DO SO BECAUSE THIS CASE WAS ENTIRELY TRIED IN THE
COURT OF FIRST INSTANCE OF BULACAN, BRANCH I, PRESIDED OVER BY
HONORABLE JUDGE FIDEL P. PURISIMA.
III. THE LOWER COURT ERRED IN ADMITTING THE TESTIMONY OF
GERARDO FAJARDO WHOSE CROSS-EXAMINATION WAS NOT FINISHED
DUE TO HIS FAILURE TO APPEAR INSPITE OF A WARRANT FOR HIS
ARREST.
IV. THE LOWER COURT ERRED IN FINDING THE ACCUSED FELICIANO
GOROSPE AND RUFINO BULANADI GUILTY BEYOND REASONABLE DOUBT
OF THE CRIME OF RAPE. (Brief, pp. 21-22.)
The first assignment of error raises the following questions: (1) Why was the complaint not
filed in Plaridel, Bulacan or Talavera, Nueva Ecija but in Pulilan, Bulacan? (2) Since the rape
was committed in Talavera, why was the case tried by the CFI of Bulacan and not by the CFI
of Nueva Ecija?
The above questions are easily answered. Abduction is a persistent and continuing offense.
(U.S. vs. Bernabe, 23 Phil. 154 [1912].) Hence it may be "tried in the court of the municipality
or province wherein the offense was committed or any one of the essential ingredients
thereof took place." (Rules of Court, Rule 110, Sec. 14[a].) The Municipal Court of Pulilan had
jurisdiction because the abductors and their captive passed Pulilan on their way from Plaridel
to Talavera. And the CFI of Bulacan (as well as the CFI of Nueva Ecija) had jurisdiction because
essential elements of the offense took place in Bulacan (and also in Nueva Ecija).
The second assignment of error asserts that Judge de Vega had no authority to render the
decision in the case.
Judge Purisima in the order wherein he inhibited himself from deciding the case also
"ordered to have the same re-raffled off and assigned to another branch. " The case was
presumably re-raffled to Judge de Vega who issued an order on June 23, 1978, which
states, inter alia:
Considering the foregoing, and in order to be properly guided in the
further disposition of this case, and to obviate possible objections and
criticisms which may come from any or both parties in the final
disposition thereof, the Court resolves to require the parties to submit
their respective written comments within fifteen (15) days from receipt
hereof on the propriety and advisability of the decision in this case to be
rendered by the Presiding Judge of this Court; and to call a conference to
hear further the views and arguments of the parties on this question,
which is hereby set on July 18, 1978, at 1:30 p.m. Let notices be sent
accordingly, to all parties concerned. (Expediente, p. 390.)
Neither the comments nor the memorial of the conference are in the expediente but on
March 28, 1979, counsel for the accused filed a motion stating:
2. That the above promulgation was held in abeyance, and then the
accused received the order dated June 13, 1978 where the Court, called
the parties to a conference on July 18, 1978;
3. That the parties appeared before this Court on July 18, 1978;
4. That up to the present a Decision in the above entitled case has not yet
been promulgated.
WHEREFORE, it is respectfully prayed of this Honorable Court that the
above entitled case be resolved. (Id., p. 401.)
And on June 4, 1979, Judge de Vega promulgated the decision. (Id, p. 410.)
We hold that Judge de Vega had the power to decide the case. "Where a court of first
instance is divided into several branches each of the branches is not a court distinct and
separate from the others. Jurisdiction is vested in the court, not in the judges, so that when a
complaint or information is filed before one branch or judge, jurisdiction does not attach to
said branch of judge alone, to the exclusion of the others. Trial may be had or proceedings
may continue by and before another branch or judge." (Lumpay, et al. vs. Moscoso, 105 Phil.
968 [1959].)
It is to be recalled Chat in the original complaint filed by Anastacia de Jesus before the
Municipal Court of Pulilan, Gerardo Fajardo was one of the accused. In the amended
complaint, Fajardo's name was dropped and Oscar Alvaran was named instead. Nonetheless,
when Anastacia testified she said that she was brought to the house of Gerardo Fajardo in
Talavera, Nueva Ecija; that when she woke up after she was forced to drink something,
Fajardo was there with Gorospe and Bulanadi, and all three were naked; that Fajardo was
one of those who raped her; and that it was Fajardo who brought her to Cirilo Balanagay.
Why was Fajardo dropped from the complaint? The record does not yield an answer but
perhaps he decided to cooperate with the complainant because soon after she finished her
testimony the prosecution presented Fajardo as its next witness.
Fajardo testified, among other things, that he was given a lift from the monument in
Caloocan City to Nueva Ecija by Gorospe and Bulanadi; that in Plaridel, between the market
and the bridge, the two forced Anastacia to go with them; that Anastacia was brought to his
house and later transferred to a nipa hut near an irrigation pump; that in the nipa hut
Anastacia was undressed by Gorospe; that Gorospe, Bulanadi and Alvaran took turns in
spending 20 to 30 minutes inside the hut with Anastacia; and that he did not have sex with
her.
It can thus be seen that Fajardo was a key witness. His testimony corroborated that of
Anastacia in material matters.
His direct examination took place on June 23 and 24, 1976. His cross-examination
commenced on August 4, 1976 (whole day), and was continued on August 9, 1976. The cross-
examination is recorded on pages 112 to 230 of the transcript. But the defense did not
indicate that it was through with Fajardo.
On August 9, 1976, the trial court continued the hearing to August 11, 1976. (Expediente, p.
204.) On the latter date, Fajardo failed to appear and the case was re-scheduled to be heard
on September 13, 1976. (Id. p. 208.) On September 13, 1976, Fajardo again failed to appear
and the case was re-set to September 29, 1976. (Id. p. 222.) Fajardo did not appear on
September 29, 1976, so he was ordered arrested. (Id, p. 223-226.) Fajardo was not arrested
but despite such fact the prosecution rested its case.
In their third assignment of error the appellants bewail the fact that the trial court decided
the case even though they had not finished cross-examining Fajardo.
The trial court committed no error in admitting the testimony of Fajardo although the
defense had not finished its cross-examination. An examination of the transcript of Fajardo's
testimony shows that he was subjected to detailed cross-examination on material points. In
fact, the cross-examination was lengthier than the direct examination. We adopt with
approval the statement of the court a quo on this point:
The records show that the counsel for the accused has extensively cross
examined Fajardo. The Court could not help but wonder what other
matters not yet touched during the cross-examination of Fajardo could
still be elicited from him that would probably destroy or affect his
testimony in-chief. If the counsel for the accused expected Fajardo to
testify further on material matters favorable to the cause of the defense,
he should have proffered such further testimony and entered into the
records how the absent witness would have testified if he were available
for further cross-examination. The failure of the said counsel to do so
indicates that every material point has been asked from Fajardo during
the time he was under examination.
While cross-examination is a right available to the adverse party, it is not
absolute in the sense that a cross-examiner could determine for himself
the length and scope of his cross-examination of a witness. The court has
always the discretion to limit the cross examination and to consider it
terminated donated if it would serve the ends of justice.
The Court, therefore, hereby resolves to admit the testimony of Fajardo.
This resolution finds support, though indirectly, from Section 6, Rule 133
of the Rules of Court, which empowers the court to stop the introduction
of further testimony upon a particular point when the evidence upon it is
already so full that more to the same point cannot reasonably be
expected to be additionally persuasive. The position herein taken by the
Court in brushing aside technicalities is in accordance with a fundamental
rule that the provisions of the Rules of Court shall be liberally construed
in order to promote their object and assist the parties in obtaining a just,
speedy and inexpensive determination of every action or proceeding.
(Section 2, Rule 1, Rules of Court)." (Id, p. 418.)
Moreover, even if Fajardo's testimony be disregarded the accused may nonetheless be
convicted in the light of other evidence.
The fourth assignment of error raises the issue of credibility of witnesses those of the
prosecution versus those of the defense.
The prosecution's version has already been stated above. We now have to consider the
version of the appellants which is as follows:
On September 30, 1974 at 4: 00 O'clock in the afternoon, accused
Feliciano Gorospe, Barangay Captain of Andal Alinio district, Talavera,
Nueva Ecija, since 1972 up to the present and at the same time a
member of the Sangguniang Bayan of Talavera, Nueva Ecija, representing
tha Barangay Group, went to the house of his friend, Reynaldo Matias at
Calipahan, Talavera, Nueva Ecija, to attend a birthday party (pp. 36 & 37,
T.s.n., February 7, 1977, CFI). Accused Rufino Bulanadi, who was a former
councilman of Calipahan, Talavera, Nueva Ecija, also attended said party
as he was also invited (p. 12, T.s.n., February 28, 1977, CFI.). At about
7:00 o'clock in the evening, several teenagers were shouting in front of
the house of Gerardo Fajardo which is ONE HUNDRED (100) METERS
away from the house where the birthday party was being held (p. 38,
T.s.n., February 7, 1977 CFI). The house of Fajardo being within his
jurisdiction (pp. 39 & 40 Ibid ), accused Barangay Captain Gorospe
proceeded to the place where the shouts were coming from, followed by
other guests in the birthday party, among whom was Councilman Rufino
Bulanadi (p. 39, Ibid). there were 2 groups of teenagers who were at odds
with each other. One was the group of Gil Nocum and the other, the
group of Isagani Castro. Barrio Captain Gorospe talked with the two (2)
groups of teenagers and he was informed that Fajardo who promised to
give a woman to one group made the same commitment with respect to
the same woman to the other group (pp. 41 & 42, Ibid). That woman was
complainant Anastacia de Jesus, as there were previous occasions that
Gerardo Fajardo brought women of Ill-repute to his house, Gorospe
called him and asked him why he brought again another woman of ill-
repute to that place. He even asked Gerardo's wife, Della Fajardo, why
she tolerated Gerardo to bring that kind of woman in their house when
they are already married. She answered that she could not stop him
because he would cause her bodily harm. Gorospe also called Anastacia
and askeed her why she went with Grardo who is a married man (pp. 44
to 47, Ibid). Thereafter he told her to leave the place. Gerardo pleaded
that Anastacia be allowed to stay only for that night and he would take
her out of the place the next day.
The following morning, October 1,1974 while accused Rufino Bulanadi
was tying the rope of his carabao to graze in the subdivision at Calipahan,
Talavera, Nueva Ecija, Gerardo approached him and said, "Konsehal
maaari bang itira ko and babaing dala-dala ko sa bahay sa balong-balong
ng kalabaw mo" ( Councilman, may I be allowed to let the girl who is with
me in my house to live or stay in the shade of you carabao). He pleaded
with Bulanadi because according to him his wife was quarrelling with him
because of that woman (pp. 21-23, T.s.n., February 28, 1977, CFI).
Bulanadi vehemently refused and reminded Gerardo about the warning
of Barrio Captain Gorospe to get that woman out of the place. Gerardo
left, angry and was murmuring (p. 23, Ibid). Bulanadi left his carabao to
graze and proceeded to his field to see the laborers who were pulling
grasses there, The farmers in Talavera are organized into groups of
Twenty (20) for the systematic distribution of irrigation water, each with
a chairman. Bulanadi was the chairman of his group. Because there was
shortage of water he started the engine of his irrigation pump. lie had his
lunch in the field. At 3:00 o'clock in the afternoon, a son of an owner of a
neighboring field informed him that water was already being released
from the Sapang Baca Dam. Upon verifying that water was really coming,
he stopped the motor of his litigation pump. (pp. 22-26, Ibid), He cleaned
the passage of water to his field for two (2) hours. At 5:00 o'clock in the
afternoon, he went home to eat because he was hungry. He left the
pump house open because he intended to go bad after supper. When he
came back, he saw that there was light inside his pump house. As he was
approaching, Gerardo met him and pleaded that he and the woman be
allowed to sleep there. Bulanadi refused saying, I just bought this pump
recently, "Sasalahulain mo ba ito? Hindi pwede yon Gerardo, kamalasan
yon." (Are you going to tarnish this? That cannot be Gerardo, that will
bring me bad luck) (26-29, Ibid). Bulanadi saw Anastacia playing with the
water. He told her not to make the water dirty as it is being used as
drinking water and Anastacia said, "suya naman kayo kay selan-selan
mong matanda." (You are very touchy old man). When Bulanadi told
them that he would report them to the Barrio Captain, they pleaded to
him not to do so, but just the same, he went to the Barrio Captain to
report.
When Bulanadi arrived in the house of Barrio Captain Feliciano Gorospe,
the latter was conversing with Oscar Alvaran (p. 31, Ibid & p. 49, t.s.n.,
February 7, 1977). Upon receiving the report, the 3, Rufino Bulanadi,
Feliciano Gorospe and Oscar Alvaran, went to the pump house. Barrio
Captain Gorospe talked to Gerardo Fajardo and Anastacia de Jesus
saying. "Talaga palang matitigas ang ulo ninyo, pinaalalahanan ko na
kayo, ayaw pa ninyong lumayo dito!" (You are really hard headed, I have
already warned you but still you did not leave this place). Bulanadi and
Gorospe were very angry and Anastacia got angry too and said that it is
none of their business what she and Gerardo do. She rushed towards the
two as if to strike them but Gerardo stopped her and pleaded with the
two to allow them to stay there just for that night because he said,
"aabutan na kami ng curfew" (we will be curfewed). Gorospe and
Bulanadi relented and left warning them that if they would still be there
the next morning they will report the matter to the P.C. (pp. 31-35, Ibid &
pp. 2-6, February 24, 1977, CFI).
The next morning, October 2, 1977, Wednesday, Gerardo Fajardo and
Anastacia de Jesus left the pump house of Bulanadi. Gerardo brought
Anastacia to the house of his cousin Floring at Munoz, Nueva Ecija, where
they stayed that night. The following morning, October 3, 1977 he
brought her to the house of his uncle Cirilo Balanagay at Bakal I, Talavera,
Nueva Ecija (Exhibit I). He told his uncle that Anastacia is a student, and
he requested Balanagay to devise ways and means to return her to her
parents because he might be placed in trouble (p. 7, T.s.n., October 12,
1974, Municipal Court of Pulilan).
After Gerardo left, Balanagay went to the room where Anastacia was and
volunteered to take her to her parents, but she said she would think it
over. That night, October 3, 1974, Balanagay brought her to the house of
Barrio Captain Andres Nazar of Bakal I, Talavera, Nueva Ecija, to inform
him of Anastacia's presence in that house, and also so that she could
relate everything to the Barrio Captain (p. 10, T.s.n., October 12, 1974,
Municipal Court of Pulilan). There was a regulation in Bakal I, Talavera,
Nueva Ecija, that a stranger who arrives there should submit a statement
as to the reason of his presence in the barrio. Barrio Captain Andres
Nazar took the statement of Anastacia de Jesus (p. 4, T.s.n., February 7,
1977, CFI) which was in the form of question and answer. This was
reduced in writing by Councilman Aniceto Damian who was summoned
for that occasion, in the presence of the barrio captain himself, Cirilo
Balanagay, and his wife. The statement of Anastacia de Jesus marked as
Exhibit "1" was signed by Councilman Aniceto Damian and Cirilo
Balanagay as witnesses (pp. 7 to 14, T.s.n., February 7, 1977 CFI). To
protect the interest of Anastacia, Barrio Captain Nazar asked Balanagay
to notify her parents (p. 13, Ibid).
On October 4, 1974, Cirilo Balanagay accompanied Anastacia to the
Police Department of Talavera, Nueva Ecija, where she made a report
(Exhibit 13). Then he wired the family of Anastacia at Pungo, Calumpit,
Bulacan. On October 6, 1974 Anastacia's relatives arrived, composed of
her uncle, Enrique de Jesus, brother of Victoriano de Jesus, sister Lolita
de Jesus and brother-in-law Adriano Nicolas. They accompanied her to
the Police Department of Talavera, where she made a statement, Exhibit
5 which is also Exhibit C (p. 3, T.s.n., June 16, 1976, CFI). That same date,
October 6, 1974 she was examined by Dr. Norma Gongon at the Dr.
Paulino J. Garcia Memorial Research and Medical Center upon request of
the Police Department of Talavera, Nueva Ecija and a Medical Certificate
was issued to her (Exhs. "G", "G-1", "G-2", "H" and "H-1").
In the meantime, on October 4, 1974, accused Barrio Captain Feliciano
Gorospe and his wife, with Mayor and Mrs. Bonifacio de Jesus of
Talavera, Nueva Ecija, Engineer and Mrs. Bacani and 3 other couples went
to Baguio City to attend the convention of the Luzon Area Community
Christian Family Movement at St. Louise University. They rented a house
and stayed there for THREE (3) days, October 4, 1974 to October 6, 1974.
At 5:00 o'clock in the afternoon on October 6, 1974, when the convention
ended, they went home to Talavera, Nueva Ecija (pp. 10-12, T.s.n.,
February 24, 1977, CFI).
On October 6, 1974, at about 8:00 o'clock in the morning, accused Rufino
Bulanadi on his way to the field to cut grasses for his carabao, passed by a
store to buy cigarette. To his surprise he saw Gerardo there and he asked
him where his "alaga" was (the girl he is taking care of) and Gerardo
answered, "Pinagpapahinga ko siya sa Bakal at pinakawalan ko na" (I let
her rest in Bakal and I have already let her go). Gerardo further said that
the girl was intending to file a case against him, and Bulanadi told him,
"Mabuti nga sa iyo, ayaw mo kasing tumigil sa masamang negosyo mo".
(That's good for you because you don't want to stop your bad business).
When Bulanadi proceeded on his way to the field, a jeep suddenly
stopped beside him. On the jeep were PC Sgt. Jimenez, several policemen
and Anastacia de Jesus. Sgt. Jimenez immediately got off the jeep, tied
Rufino's hand with his own rope that he brought with him to be used in
tying the grasses that he would cut, and brought him to the Municipal
Building of Talavera, Nueva Ecija, where he was locked in jail. When
asked about Gerardo, he informed the P.C. that he saw him in the store.
Gerardo was likewise arrested. Bulanadi was asked about the case and he
said he did not know anything about it (pp. 37 to 40, T.s.n., February 28,
1977, CFI).
When accused Barrio Captain Gorospe arrived with his wife from Baguio
in the evening of October 6, 1974, his mother informed him that a
policeman was looking for him. He told his mother that he would just go
to the Municipal Building the following day because he was tired. The
next day, October 7, 1974 at 8:30 o'clock in the morning, he went to the
Municipal Building. Upon his arrival, Gerardo met him, put his arms on his
shoulders and said that the case can be settled in the amount of P200.00.
Gorospe said "tarantado ka pala" (You son of a bitch). "I will not give even
a single centavo because you are the one responsible for this. I have
nothing to do with this case." Gorospe proceeded to see Sgt. Jimenez
who told him that the case was transferred to Cabanatuan City. The 3 of
them, Bulanadi, Gorospe and Fajardo were brought to the PC
headquarters where they were interviewed one after the other, after
which Gorospe and Bulanadi were sent home.
The complainant filed the case in the Municipal Court of Pulilan, Bulacan,
on October 8, 1974, two (2) days after she had gone home in Pungo,
Calumpit, Bulacan (Exhibit 8). Gerardo Fajardo who was in the custody of
the Police Department of Talavera, Nueva Ecija was taken by the
Policemen of Pulilan, Bulacan.
On October 22, 1974 while the case was being investigated by Municipal
Judge Alfredo Granados where Anastacia had already testified on
October 9, 1974, Anastacia again executed another affidavit because that
was what her lawyer, Atty. Santos wanted (p. 26, t.s.n., March 12, 1976,
CFI). On the same date Gerardo Fajardo executed another statement in
the Police Department of Pulilan Bulacan. Thereafter, complainant filed
an Amended Complaint wherein Gerardo, against whom she was
originally complaining against, was excluded as one of the accused to be
utilized as her witness, and Oscar Alvaran was included for the first time.
The alleged date of the incident was changed from September 30, 1974
to September 25, 1974. Subsequently the case was elevated to the Court
of First Instance of Bulacan, Branch I. (Brief, pp. 12-21.)
The version of the appellants does net inspire belief because it appears to have been
contrived. The appellants portray Anastacia as wanton and unchaste woman a prostitute. But
one's credulity has to be unduly stretched in order to buy the line that a girl of 14 years who
was still going to school was a prostitute who went far away from her home in order to
peddle her body. The appellant's version is simply too crude to be convincing.
Opposed to the appellants' version is the affirmative narration of events made by Anastacia
which were corroborated by Gerardo Fajardo. The story winch she unfolded could have been
inspired only by her thirst for justice. In her quest she had to live her ordeal all over again for
a lengthy period because she was on the witness stand on December 15, 1975; January 12,
March 10, March 11, May 3 and June 16, 1976. During all those days she had to bare in public
her shame and humiliation.
To be sure there were inconsistencies in the testimony of Anastacia but they were in details
rather than in the highlights of her terrible experience and could very well be attributed to
her tender age and confused state of mind caused by her private hell.
The Solicitor General states that Gerardo Fajardo, the discharged state witness, also
committed rape hence the appellants should each be found guilty of three (3) rapes because
in a conspiracy the act of one is the act of all. We cannot agree in respect of the participation
of Fajardo. Since Fajardo was dropped from the complaint his guilt had not been established.
However, We agree with the Solicitor General's observation "that a motor vehicle was used
to bring her [Anastacia de Jesus] from Plaridel, Bulacan, where she was first deceived and
drugged, and then taken to an isolated uninhabited place at a nipa hut, near an irrigation
pump at Calipahan, Talavera, Nueva Ecija, where she was abused, two (2) aggravating
circumstances are present, namely use of motor vehicle and uninhabited place (Art. 14,
R.P.C.)," so that death is the proper penalty. (Brief, pp. 14-15.) However, for lack of the
necessary number of votes the death penalty cannot be imposed.
WHEREFORE, the judgment of the court a quo is hereby affirmed in all respects. Costs against
the appellants.
SO ORDERED.
Teehankee, Makasiar, Aquino, Concepcion, Jr., Guerrero, De Castro, Melencio-Herrera, Plana,
Escolin, Relova, Gutierrez, Jr. and De la Fuente, JJ., concur.
Fernando, C.J., concurs in the result.






































Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-28773 June 30, 1975
FRANCISCO ORTIGAS, JR., plaintiff-appellant-appellee,
vs.
LUFTHANSA GERMAN AIRLINES, defendant-appellant-appellee.
Baizas, Alberto and Associates for appellant Lufthansa German Airlines.
Pelaez, Jalandoni and Jamir for appellant Francisco Ortigas, Jr.

BARREDO, J.:
Direct appeals of both parties plaintiff, Francisco Ortigas, and defendant Lufthansa German
Airlines, from the decision of the Court of First Instance of Manila, Branch X, "condemning
the defendant to pay plaintiff the amount of P100,000 as moral damages, P30,000 as
exemplary or corrective damages, with interest on both sums at the legal rate from the
commencement of this suit until fully paid, P20,000 as attorney's fees and the costs" for the
former's failure to "comply with its obligation to give first class accommodation to (the latter)
a (Filipino) passenger holding a first class ticket," aggravated by the giving of the space
instead to a Belgian and the improper conduct of its agents in dealing with him during the
occasion of such discriminatory violation of its contract of carriage.
Defendant buttresses its appeal on the following:
ASSIGNMENT OF ERRORS
I
THE LOWER COURT ACTED WITH GRAVE ABUSE OF DISCRETION IN
DENYING THE DEFENDANT'S URGENT MOTION FOR POSTPONEMENT
DATED SEPTEMBER 24, 1966.
II
THE LOWER COURT CONSEQUENTLY ERRED IN ORDERING THE STRIKING
FROM THE RECORDS THE TESTIMONY OF WITNESS IVO LAZZARI AND IN
DEEMING THE CASE SUBMITTED FOR DECISION ON THE EVIDENCE OF
THE PLAINTIFF ALONE.
III
THE LOWER COURT ERRED IN CONDEMNING DEFENDANT TO PAY THE
PLAINTIFF THE AMOUNT OF P100,000.00 AS MORAL DAMAGES,
P30,000.00 AS EXEMPLARY OR CORRECTIVE DAMAGES, WITH INTEREST
ON BOTH SUMS AT THE LEGAL RATE FROM THE COMMENCEMENT OF
THIS SUIT UNTIL FULLY PAID, P20,000.00 AS ATTORNEY'S FEES, AND
COSTS. (Pp. 12-13, p. 118, Record.)
On the other hand, plaintiff's sole ground for his appeal is that "the trial court erred in
ordering Lufthansa to pay Ortigas only P100,000 as moral damages, P20,000 as exemplary or
corrective damages, and P20,000 as attorney's fees." (Plaintiff-Appellant's Brief, p. a.) Thus,
apart from the contention of defendant that it has been denied its full day in court, the only
issue raised by both appellants relate to the amount of the damages awarded by the trial
court, plaintiff claiming it is less than he is entitled to and the defendant insisting on the
opposite.
Lufthansa maintains it has not had its full day in court because the trial court abruptly ended
the trial by denying its last motion for postponement notwithstanding it was well founded
and forthwith ordering the striking out of the testimony of its absent witness whose cross-
examination had not been finished and then declaring the case submitted for decision. In this
connection, the record reveals the following facts:
Plaintiff's complaint was filed with the court below on December 24, 1963 and after issues
were joined, a pre-trial was held, the parties submitted a partial stipulation of facts and
thereafter went to trial, the last day of which was on September 28, 1966. As to what
happened in between, a detailed account is made in the brief of Ortigas as plaintiff-appellee
as follows:
... Thereafter the case was set for hearing twenty four (24) times, or on April 27, 1964, July 9,
1964, August 20, 1964, October 1, 1964, November 11, 1964, December 22, 1964, February
3, 1965, March 18, 1965, May 5, 1965, June 11, 1965, July 22, 1965, August 26, 1965 and
September 8, 1965, September 22, 1965, November 3, 1965, November 24, 1965, December
17, 1965, December 29, 1965, January 14, 1966, February 2, 1966, April 19, 1966, April 20,
1966, July 5, 6 and 7, 1966, August 25, 1966 and September 28, 1966.
One (1) hearing, or that of August 25, 1966, was cancelled because the
trial judge, Hon. Jose L. Moya, was then sick. Other postponements were
as follows:
Postponements at instance of
plaintiff
Three (3) settings were cancelled upon motion of plaintiff on grounds
that defendant's counsel (Atty. Crispin Baizas) himself must have found
sufficient, for he gave his conformity thereto. These were the hearings
set for:
July 9, 1964 postponed upon plaintiff's motion, dated June 27, 1964,
or 12 days before the hearing, on the ground that he had to attend an
important business matter in Mindanao, which was so urgent that "for
plaintiff to even make a flying trip to Manila for the scheduled hearing
might jeopardize and render to naught a project to which plaintiff has
already expended considerable time, money and effort" (RA pp. 28-29.
Note: All reference herein will be to plaintiff's Record on Appeal).
August 26, 1965 postpone upon plaintiff's motion, dated August 23,
1965, for the reason that he was in London for business reasons and
could not return to the Philippines on time for the hearing. This motion is
not reproduced in any Record on Appeal but is admitted.
July 5-7, 1966 18 days before the dates set for the hearing, counsel for
plaintiff filed a motion, dated June 17, 1966, for Postponement on the
ground that Atty. Rodegelio M. Jalandoni, who had been personally
handling this case was then in Washington, D.C. on business and would
not be back until the middle part of August, 1966. Considering that the
trial of the case was far advanced, it would be difficult for another lawyer
to substitute for Atty. Jalandoni. Defendant's counsel agreed to the
motion (RA pp. 50-51).
Postponement at instance of
both parties
Four (4) settings, or those of August 20, 1964, October 1, 1964,
November 11, 1964 and December 22, 1964, were cancelled upon the
joint motion of the parties on the ground that negotiations for the
possible settlement of this case were pending (RA pp. 31-34).
While both attorneys for plaintiff and defendant signed the joint motions
for postponement, the initiative to have the hearings cancelled actually
came from defendant's counsel who claimed that he needed time to
consult with his client. Plaintiff welcomed the possibility of compromise
and acceded to join the requests for postponement but became
impatient at and suspicious of the attempt to delay so that in the motion
to postpone the December 22, 1964 hearing, plaintiff insisted on the
insertion of the phrase "be postponed for the last time" (RA p.
34).1wph1.t These took place after the pre-trial but before plaintiff
had started presenting his evidence.
Postponement at instance of
defendant
Of the remaining 16 settings, at least TEN (10) were postponed or could
not proceed except for a few minutes because either Atty. Crispin Baizas,
counsel for defendant, was not available or needed time to prepare or
had to attend a meeting somewhere else, or, as in the case of September
28, 1966, defendants witnesses wanted to avoid the inconvenience of
coming to the Philippines. The situation became such that on two (2)
occasions the court a quo warned the defendant and/or its counsel that it
was postponing the trial "for the last time" and "definitely for the last
time." Thus:
February 3, 1965 On this date, although plaintiff was ready to present
his evidence and the Court to hear the parties, Atty. Baizas asked for
postponement for the reason that he had to be somewhere else. The
undersigned graciously obliged by not objecting, albeit the motion was
made without warning and in open court.
March 18, 1965 Once again the hearing scheduled for this date was
postponed on motion of Atty. Baizas in open court. The undersigned did
not object because, as far as he can now recall, the excuse given was that
opposite counsel had another appointment.
June 11, 1965 The Court was free the whole morning of this day and
plaintiff actually took the witness stand. After plaintiff was through with
his direct testimony, Atty. Zaida R. Alberto, who appeared for the
defendant, asked that the cross-examination be postponed for the next
hearing, on the ground that Atty. Baizas knew more of the defense. The
following appears of record:
"ATTY. ALBERTO:
If Your Honor please, may I
request to allow the cross
examination at the next hearing.
COURT:
You can
handle the
cross
examination
now.
ATTY. ALBERTO:
The defense
are more in
the
knowledge of
Atty. Baizas.
COURT:
If you postpone the cross-
examination we will forget the
testimony and will be spending
much time referring to his
testimony, so you better cross-
examine him while his testimony
is still fresh.
ATTY. ALBERTO:
May I ask for a reconsideration,
Your Honor, anyway it is past
11:00 o'clock I do not think there
will be enough time.
COURT:
We still have
one hour.
ATTY. ALBERTO:
I ask for a
reconsideratio
n, Your Honor.
COURT:
On motion of the defendant's
counsel, the continuation of the
trial is postponed to July 22, 1965,
at 8:30 a.m. The parties were
notified in open court of this new
assignment." (t.s.n. pp. 43-44,
June 11, 1965)
Notwithstanding there was an hour left, which was precious considering
the crowded calendar of the Court, and Judge Moya wanted to hear the
cross-examination because plaintiff's testimony was fresh, the Court
pleased counsel for the defendant and postponed the hearing to July 22,
1965.
September 22, 1965 At this hearing the undersigned requested that
Dr. Isidro Pertiera be permitted to take the witness stand. He is a heart
specialist and it was difficult to bring him to court because of his many
patients. His direct testimony did not take long, after which Atty. Baizas
asked for postponement, for the reason that he did not expect Dr.
Pertiera to testify and, since the subject of the testimony was important
and technical, he needed time to be able to cross-examine. The
undersigned, understanding the predicament of Atty. Baizas, did not offer
any objection.
November 3, 1965 This scheduled hearing was postponed upon
motion dated October 7, 1965, of Atty. Baizas on the ground that he was
leaving on a business trip abroad. The undersigned again did not object.
November 24, 1965 It will be recalled that the hearing of September
22, 1965, supra, was postponed to enable Atty. Baizas to prepare for his
cross-examination of Dr. Pertiera. On this date, November 24, 1965, Atty.
Baizas cross-examined briefly the doctor, but announced:
"ATTY. BAIZAS:
May I announce, your Honor, that after I cross-
examine the Doctor I will ask for a postponement of
my cross examination of Atty. Ortigas because I will
have to attend a meeting of the PAL Board of
Directors this morning. My cross examination will not
be very long." (t.s.n., pp. 34, November 24, 1965)
The PAL Board of Directors' meeting was certainly not more important
than the occupation of the Court, and it was still early, but counsel was
insistent. The Court was beginning to be perturbed by the dilatory
motions; yet it granted counsel's requested postponement but "for the
last time." Thus:
"ATTY. BAIZAS:
That is all. May I make that
request, Your Honor, that it is
simply that I have to be present at
the meeting. I wish to finish my
cross examination on Atty. Ortigas
but it is merely that the meeting is
held for today at 10:00 o'clock
and I would like to ask for a
postponement to continue the
cross examination.
COURT:
I will grant this for the last time.
On motion of Atty. Baizas, the
continuation of the hearing is
postponed for the last time to
December 17, 1965, at 8:30 a.m.,
by agreement between him and
Atty. Jalandoni." (t.s.n., p. 17,
November 24, 1965)
December 17, 1965 Although at the hearing of November 24, 1965
trial was postponed for the last time to December 17, 1965, the Court's
warning did not seem to register because on December 7, 1965
defendant's counsel filed another motion for postponement alleging that
he had received a telegram to the effect that the meeting of the Legal
Committee of IATA that he was attending, originally scheduled for
December 10-15, had been deferred and would begin on December 13
and as it was for 5 days, it would not be possible for him to return for the
December 17 hearing; hence, he requested that said hearing be reset for
December 27 and 29. In his undated motion filed on December 7,1965
counsel averred that:
"There is no intention whatever to delay the case but
because of the circumstances above-stated,
undersigned counsel is constrained to ask, for the last
time, for the cancellation of the hearing on December
17 and for its resetting on such dates as may be
convenient to this Honorable Court, preferably
December 27 and 29." (RA p. 41)
The undersigned opposed said motion and alleged:
"That this case has been pending since December 24,
1963, or almost two years now, and trial thereof has
been repeatedly suspended and/or postponed;
That at the hearing of November 24, 1965, this
Honorable Court precisely postponed continuation of
the trial thereof for the last time to December 17, a
date which was fixed by agreement of the parties;
That when counsel for defendant left, as alleged, on
December 6, 1965 he did so with full knowledge of
the intransferable character of the trial set for
December 17;
That defendant can well be represented by Atty.
Baizas' associate, Atty. Alberto, who, as a matter of
fact, handled this case when trial started on June 11,
1965 and has been actively collaborating with Atty.
Baizas since then;
That when plaintiff testified on direct examination on
June 11, 1965 said Atty. Alberto appeared for
defendant and that plaintiff is now merely due for
further cross-examination." (RA p. 43)
In spite of said opposition, the Trial Court once more granted defendant's
request but was more categorical this time with its admonition against
further postponements and used the word "definitely" in its order which
read:
"ORDER
For the reasons stated in the defendant's motion for
postponement and in view of the fact that it seeks a
deferment of the hearing for only a few days, the
continuation of the trial is postponed definitely for
the last time to December 29, 1965, at 8:30 a.m.
"SO ORDERED.
"Manila, Philippines, December 11, 1965.
J
O
S
E

L
.

M
O
Y
A


J
u
d
g
e
"
(RA p. 46)
March 10, 1966 The hearing on this date lasted for only a few minutes,
with the undersigned offering the documentary evidence for the plaintiff.
Thereupon, defendant's counsel again asked for postponement so he
could go over said evidence. Since he had no witnesses to present, the
Court once more postponed the trial to April 19, 1966 without any
objection on the part of the undersigned.
April 19, 1966 The hearing for this day was cancelled upon motion of
defendant's counsel (RA p. 49) on his representation that defendant's
witness Ivo Lazzari had arrived from Italy at midnight of April 18, 1.966
and was not in a condition to take the witness stand. The Court again
accommodatingly transferred the hearing to the following day, April 20,
1966, although it had other cases scheduled for that date and the case at
bar was not among them, just so Lazzari's trip would not be useless. The
undersigned likewise did not oppose the transfer of hearing. (Pp. 2-13
Brief, p. 132 Record.)
Defendant does not seriously deny these facts. Seemingly, the controversy between the
parties revolves around defendant's motion for postponement of the hearing set for
September 28, 1966 which was denied by the trial court. It is this denial that is the subject of
the first above-quoted alleged errors assigned by Lufthansa in its brief as defendant-
appellant.
At the time this incident of postponement arose, plaintiff had already closed his evidence,
and so it was the turn of the defendant to prove its defenses. The starting date for this was
April 19, 1966, but, upon motion of defendant's counsel, it was deferred to the next day,
April 20, 1966, on which date defendant's first witness, Ivo Lazzari, took the witness stand.
His testimony, however, was not finished in the morning and afternoon of that day nor
during the whole day of April 22, 1966. Atty. Rodegelio M. Jalandoni was still cross-examining
him when the hearing was continued "to the first available date in the calendar". Eventually,
the next continuation of the trial was set at first for July 5, 6 and 7, 1966, but upon motion of
plaintiff's counsel, it was reset for August 25, 1966, on which date, in spite of the presence of
Lazzari who came from Rome purposely for the trial together with another expected witness,
Severino Caselli, and still another witness, C.H. Dehio, who came from Hongkong, no trial
could be held because of the absence of the judge. Hence, another date, September 28, 1966
was fixed with notice to the parties received by them respectively the month previous.
On September 24, 1966, defendant's counsel filed a motion for postponement thus:
COMES NOW the defendant by undersigned counsel and to this
Honorable Court respectfully states:
1
The above-entitled case is set for hearing on September 28, 1966 at 8:30
o'clock in the morning.
2
The witnesses who are scheduled to testify for the defendant at said
hearing are to come from Rome, Italy;
3
Word has been received from the defendant that said witn will not be
able to come for the hearing aforementioned.
WHEREFORE, it is respectfully prayed that the hearing of this case
scheduled for September 28 be postponed to some other date most
convenient to this Honorable Court, preferably on any of the following
dates: October 21, 17; Novembers, 3, 8, 9 or 11, 1966.
... . (Page 53, Record on Appeal, p. 29, Rec.)
On September 27, 1966, plaintiff's counsel filed the following opposition to the above
motion:
COMES NOW plaintiff, through undersigned counsel and, in opposition to
defendant's urgent motion for postponement, dated September 24,
1966, to this Honorable Court respectfully states:
That this case has been pending since December, 1963;
That defendant's aforesaid motion does not give any valid reason for
postponing the hearing, since it does not state why defendant's
witnesses cannot come to Manila on the scheduled dates of continuation
of trial;
That the convenience and motive of defendant and its witnesses in not
exerting every effort to testify are not the concern of the plaintiff, and
more so of this Honorable Court, and that the speedy and proper
administration of justice dictates that the hearing proceed irrespective of
defendant's obvious disregard of the need thereofl;
That defendant's attitude is aggravated by the fact that, being an airline
company, it has all facilities to have its employees available as witnesses
at any time it desires.
WHEREFORE, it is respectfully prayed that defendant's aforesaid motion
for postponement be denied.
... . (Pp. 55-56, id.)
In view of this opposition, on the same day, His Honor issued an order of denial:
No reason whatsoever having been alleged or shown why the
defendant's witnesses will not be able to come from Rome to Manila on
the day of the hearing, and this case having been pending since
December, 1963, the motion for postponement is denied. (Pp. 56-57, id.)
On the day set for the hearing, September 28, 1966, Atty. Zaida Ruby S. Alberto appeared for
defendant and verbally moved for reconsideration of the foregoing order of denial. She
argued that:
Actually, it is not intended to delay the termination of this case. As a
matter of fact, on August 15, 1966, the date set for the hearing of this
case, we were ready with the presentation of our evidence as our two
witnesses from Rome were here. But unfortunately, Your Honor was
indisposed, so the hearing was postponed to this date. I really do not
know why our witness failed to come. However, I intend to make an
inquiry about the matter so that I could file the corresponding
explanation for their failure to appear in Court today. May I, therefore,
reiterate my motion for reconsideration, with the reservation that I be
allowed to file my explanation for the failure of these two witnesses
coming from Rome to appear for today's hearing. (Page 2, t.s.n., Sept.
28/66.)
But as counsel could not give the exact reason why defendant's witness scheduled to testify
were absent, the trial court denied the motion; ruling that "no ground has been alleged in
support thereof." (p. 6, t.s.n., September 28, 1966.)
This order was immediately followed by a motion of plaintiff's counsel for the striking out of
the entire testimony of the witness, Ivo Lazzari, upon the ground that counsel had not yet
finished his cross-examination of him and his absence was unexplained. No objection
appears to have been made to such motion, albeit counsel for defendant tried to point out
that Atty. Jalandoni had already finished his cross-examination of the witness. After verifying
from the records that such was not the case, His Honor issued the following order:
The witness Ivo Lazzari not having appeared at the hearing set for today,
for which reason his cross-examination cannot be continued, on motion
of the plaintiff's counsel, his testimony is striken from the record, and this
case is deemed submitted for decision on the evidence already
presented. (Pp. 57-58, Rec. on Ap., id.)
Thus the trial ended and parties were allowed to submit their respective memoranda.
On October 19, 1966, however, defendant's counsel filed the following motion for
reconsideration:
MOTION FOR RECONSIDERATION .
COMES NOW defendant by undersigned counsel this Honorable Court
moving for a reconsideration of the orders dated September 27 and
September 28, 1966, respectively, respectfully states:
1
On September 26, 1966 a motion for postponement of the hearing on
September 28, 1966 was filed by undersigned counsel for the reason that
word had just been received from the defendant that the witnesses who
were scheduled to testify at the said hearing and who were to come from
Rome, Italy, would not be able to come to the Philippines for said
hearing. This motion was denied in the order of September 27, 1966;
2
No reason could be stated in the aforesaid motion for postponement
because at the time it was prepared, counsel for defendant did not really
know the specific reasons for the inability of said witnesses to come. A
simple telex message had been sent by the Far East Manager of the
defendant company to defendant's representatives in Manila advising
the latter that the witnesses in question could not come. Copy of said
telex message is attached to and made part of this motion for
reconsideration as Annex "I";
3
For this reason on September 28, 1966, when the case was called,
counsel for the defendant reiterated the motion for postponement and
requested this Honorable Court for time to submit an explanation on the
failure of defendant's witnesses to come as a letter elaborating on the
matter would surely follow the telex' message. This request was however
denied by the Honorable Court and upon motion of plaintiff's counsel,
another order was issued striking out from the record the testimony of
defendant's only witness so far, Ivo Lazzari, whose cross-examination was
to be continued that date, for the latter's failure to appear at the hearing,
and deeming the case submitted for decision;
4
It is alleged by opposing counsel that the witnesses did not come for the
hearing of September 28, 1966 because it was inconvenient for them and
for defendant. This accusation is absolutely without basis and malicious;
5
If inconvenience were the only reason for the witnesses' failure to come,
then they would not also have come previously because it was just as
inconvenient for them then. It will be recalled that Ivo Lazzari had been
here in April 1966 when he was presented on direct examination and
partly on cross-examination. On August 25, 1966, the case was also
scheduled for hearing. All of defendant's witnesses came here from
Rome, Italy for said hearing. Even Mr. C. H. Dehio was also here to testify.
Unfortunately, the Presiding (Judge) of this Honorable Court was
indisposed on that particular morning and so the hearing on said date
was cancelled. We mention this only to show that the failure of the
witnesses to come for the hearing on September 28 was not caused by
mere inconvenience;
6
Defendant had and had no intention to delay the proceedings
whatsoever. The witnesses in question could not come because of certain
circumstances that rendered their coming over virtually impossible. Both
witnesses, Ivo Lazzari and Saverino Casilli are employees of defendant
company at the Rome office. The air traffic in Rome has been particularly
heavy this season. Some of the personnel of the Lufthansa Rome office
were on leave and these two employees had to assume some of the
duties of those employees who were on leave, aside from performing
their own regular duties, If they were to leave their posts to come for the
hearing on September 28, there would be grave disruption to the public
service and for this reason they were not able to come. These facts are
contained in a letter dated September 29, 1966 written to undersigned
counsel by C. H. Dehio, IATA Agency Manager, Far East and Australasia,
Lufthansa German Air Lines, copy of which is attached to and made part
of this motion for reconsideration as Annex "2";. The envelope in which
said letter contained is likewise attached to and made part of this motion
as Annex "2-A";
7
Witness Ivo Lazzari had first shed his testimony on direct examination
and on September 28, 1966, opposing counsel was to continue cross-
examination of said witness. The other witness Saverino Casilli was to be
presented after Ivo Lazzari would have finished testifying. Both witnesses
are material for the defense and no other person could testify on the
facts that are the subject of their testimony. The inability of said
witnesses to come for the hearing on September 28 was not due to any
fault or neglect on the part of defendant who in fact had exerted every
effort to have them come, but because of the supervening circumstances
above-described, their coming over could not have been possible without
seriously disrupting public service;
8
There is no question that the granting or denial of a motion for
postponement rests upon the sound discretion of the court. We submit
however that under the circumstances, the ends of justice would have
been better served by granting the motion on question. The reason for
defendant's motion for postponement is valid and meritorious, and the
grant of a postponement based on such ground would not have adversely
affected the substantial rights of plaintiffs.
"Continuances and postponements of trial are part
and parcel of our judicial system of justice, and where
no substantial rights are affected and the intention to
delay is not manifest, it is sound judicial discretion to
allow them. (Rexwell vs. Canlas, No. L-16746, Dec. 30,
1961)
"There is even authority for the view that the right to
a speedy trial is not violated by granting a
continuance on the ground of absence of material
witness. (People vs. Romero, G.R. No. L-4517-20, May
25, 1953)
The lower court erred in denying a motion for
postponement filed by defense to await arrival of a
material witness." (People vs. Narsolis, et al. G.R. No.
L-2764, March 24, 1950)
"A miscarriage of justice may result from the
accidental or excusable absence of a material witness,
where presence can be secured by the grant of a
reasonable continuance." (Luna vs. Arcenas, 34 Phil.
80, 98-99)
8
Defendant has a valid and meritorious defense, and if given opportunity
to present its side of the case, it would certainly diminish, if not
altogether disprove plaintiffs claim.
... court litigations are primarily for the search of
truth. ... A trial by which both parties are given the
chance to adduce truth is the best way to find out
such truth. A denial of this chance would be too
technical. The dispensation of justice and the
vindication of grievances should not be barred by
technicalities." (Ronquillo vs. Marasigan, L-11621,
May 21, 1962; Santiago vs. Joaquin, L-15237, May 31,
1963, emphasis ours.)
"Judicial experience dictates that it is better that
cases are tried on the merits even with a little delay
than that substantial rights of a party litigant be
sacrificed on the altar of technicality." (Uy vs.
Demetillo, CA-G.R. No. 32665-R, Jan. 14, 1964.)
9
An affidavit of merit by Clarita C. de la Riva, Manager, Rocha & Cua., Inc.,
General Sales Agents, Lufthansa German Airlines is likewise attached to
and made an integral part of this motion for reconsideration as Annex
"3";
10
The order dated September 27, denying defendant's motion for
postponement and the order of September 28, 1966 striking off from the
records the testimony on direct examination of the witness Ivo Lazzari
and holding the case submitted for decision on the evidence presented
would unduly prejudice defendant's stand, and would amount to a denial
of due process to defendant.
"The paramount interests of justice demand such
reasonable allowances as would prevent, without
doing an injustice to the opposing party, the loss by a
litigant of his chance to duly present his side of the
case before the court. With a view of avoiding a
possible miscarriage of justice, the exercise of the
court's discretion ought to lean, in a reasonable
degree toward bringing about a presentation of
evidence on both sides. ..." (Gerona vs. Calada, CA-
G.R. No. 23955-R March 30, 1963, Tormes vs.
Balzado, CA-G.R. No. 32019-R, April 17, 1964.)
WHEREFORE, it is respectfully prayed that the orders of the Honorable
Court dated September 27, and September 28, 1966, respectively, be
reconsidered and set aside; that the testimony of defendant's witness Ivo
Lazzari be allowed to remain on record and that a date be set for the
continuation of defendant's evidence.
Manila, Philippines, October 19, 1966.
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VERIFICATION
I, CRISPIN D. BAIZAS, after having been sworn according to law, depose
and say:
I am the counsel for the defendant in the above-entitled case;
I have prepared the foregoing motion for reconsideration and all the
allegations contained therein are true and correct of my own knowledge
and to the best of my information and belief.
. BAIZAS
SUBSCRIBED AND SWORN TO BEFORE ME this 19th day of October. 1966
in the City of Manila, affiant exhibiting to me his Res. Cert. No. A-
5892423 issued on January 28, 1966 at Makati, Rizal.
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Doc. No. 1377
Page No. 77
Book No. III
Series of 1966.
(Pages 58-67, Record on Appeal, id.)
to which, plaintiff's counsel filed the following opposition:
COMES NOW plaintiff, through undersigned counsel, and, in opposition
to defendant's motion for reconsideration, dated October 19, 1966, to
this Honorable Court respectfully states that:
1. This is in effect the second motion for reconsideration that defendant
has filed against the order of September 27, 1966 denying its motion for
postponement of the hearing of September 28. The first motion for
reconsideration was made in open court by Atty. Zaida S. Alberto and
denied on the same date.
2. Defendant now claims that it did not intend to delay the trial of this
case and seeks to justify the failure of its witnesses, Ivo Lazzari and
Saverino Casilli, to appear on September 28 on the ground that:
"... The air traffic in Rome has been particularly heavy this season. Some
of the personnel of the Lufthansa Rome office were on leave and these
two employees had to assume some of the duties of these employees
who were on leave, aside from performing their own regular duties. If
they were to leave their posts to come for the hearing on September 28,
there would be grave disruption to the public service and for this reason
they were not able to come. ..." (p. 3, Defendant's Motion for
Reconsideration.)
3. Note that the above alleged facts are contained in a mere letter that
was written by a certain Mr. C.H. Dehio, an employee of defendant in
Hongkong, to its counsel on September 29, 1966, or one day after the
hearing of September 28, when presumably defendant's aforesaid
employee had already been informed that this Honorable Court had
denied the postponement and considered this case as submitted for
decision. Defendant is an airline company and has all the telex facilities to
communicate in a matter of minutes with its various agencies. The
ground for failure to appear, to wit, supposed pressure of work of said
employees, is as easy to conceive and gratuitously state as to flick one's
fingers. We wish to call attention to the significant fact that the
statement of Mr. Dehio in his letter is not under oath. Incorporating said
statement in the body of the motion for reconsideration that is sworn to
by counsel merely `to the best of his information and belief, or in an
affidavit of Mrs. Clarita C. de la Riva (Annex 3) who was only referring to
hearsay information derived from Mr. Dehio's aforesaid letter, is
insufficient verification of the motion for reconsideration under Section
6, Rule 7 of the Rules of Court. Even Mr. Dehio had he executed the
affidavit himself, would have been disqualified to swear to the facts
because he is stationed in Hongkong. So that, when defendant's counsel
and Mrs. de la Riva verified the motion on "information and belief"
derived from Mr. Dehio's letter, their statements were hearsay thrice
removed.
4. But assuming said facts to be true, did this justify the failure of
defendant's witnesses to appear at the scheduled hearing or constitute a
valid excuse for defendant's inability to present evidence. We respectfully
submit that they do not. The September 28 hearing was set as early as
August 25, 1966, or more than one (1) month previous, to suit the
schedules not only of this Honorable Court but of the parties as well.
Surely, it was incumbent on defendant, if it has deference to this
Honorable Court and our administration of justice to see to it that its
witnesses, particularly Ivo Lazzari who was on the witness stand and due
for cross-examination, would be available, rather than granting leave to
its other employees and burdening the two needed witnesses with
additional work. Defendant is not a neophyte in the airline business.
Assuming arguendo that it is true that the volume of air traffic in Europe
was high in "September and early October", it should have foreseen the
situation and taken appropriate measures to assure compliance with its
obligation to this Honorable Court. The witnesses are defendant's
employees and subject to its exclusive control. Instead, defendant
allegedly rendered itself short handed by granting leave to its other
employees, and now comes to court with a lame excuse requesting that it
be extricated from a predicament that it has deliberatedly brought upon
itself. For the execuse that with the workload for Mr. Lazzari and Mr.
Casilli becoming heavier than usual "it would seriously disrupt our service
to the travelling public if, during this time, they were to leave their jobs
for several days" (Please see Mr. Dehio's letter, Annex "2") is lame, by
any standard. The local newspapers are constantly carrying news articles
of how large and expanded is the Lufthansa as an airline outfit. Surely, of
its hundred (if not thousands) of available employees, two like Lazzari
and Casilli could have been dispensed from their work temporarily to
defend the company against the just grievance asserted by an injured
passenger before a court of justice. At the most, defendant was after the
promotion of its own interest in holding the two employees to their jobs,
and is not avoiding "grave disruption to the public service" as counsel
exaggerates Mr. Dehio's expression "seriously disrupt our service to the
travelling public" two distinct ideas, the latter signifying self-interest as
distinguished from public necessity. This Honorable Court can take
judicial notice that there are many other airlines-operating in the same
areas as doe, Lufthansa and competing with it.
5. As we explained at the September 28 hearing, the truth of the matter
is that, contrary to the unverified representations of defendant, the
reason for the non-attendance of defendant's witnesses was to avoid the
inconvenience of coming to the Philippines to testify. In other words,
after Ivo Lazzari and Saverino Casilli were unable to testify last August 25,
1966, defendant thought of avoiding having said witnesses come again to
Manila. We say this because sometime on September 20, 1966, Atty.
Leonardo P. Valmonte (an assistant attorney of plaintiff who is helping in
this case) had a telephone conversation with defendant's counsel, Atty.
Zaida S. Alberto in connection with the former's request for a copy of a
certain exhibit, and in the course of their conversation Atty. Alberto
informed Atty. Valmonte that the trial scheduled for September 28, 1966
would not proceed because they were intending "to secure the
permission of the court to take the testimonies of their witnesses by way
of deposition". In short, even before the receipt of the alleged telex
(Annex "1" of Motion) by defendant's counsel on September 22, 1966,
said counsel announcing that the trial could not proceed because they
were going to resort to depositions of their witnesses in Rome, rather
than have said witnesses come to Manila. The decision to take
depositions having been made on or before September 20, it was an easy
matter to have Lufthansa's Hongkong office send the telex of September
22 stating that they would be unable to provide witnesses on September
28. No reason was given why witnesses could not be provided 6 or 7 days
thence. If in truth there was unexpected increase in air traffic, surely 6 or
7 days were more than sufficient to make the necessary arrangements so
that the work of Lazzari and Casilli could be taken over temporarily just so
these witnesses could appear before this Honorable Court at the
appointed date. Attached hereto as Annex "A" is the affidavit of Atty.
Leonardo P. Valmonte on his aforesaid conversation with Atty. Alberto.
6. At the hearing on September 28, when we made reference to the
above-referred to conversation between Attys. Valmonte and Alberto,
the latter did not deny that she had in truth spoken to Atty. Valmonte in
the tenor above related. As a matter of fact, she admitted that defendant
was intending to take the depositions of its witnesses in Rome.
7. When this honorable Court denied the motion for postponement on
September 28, 1966, it did so in the exercise of its sound judicial
discretion, for no valid reason was given why the witnesses could not
appear, whereas this case had been pending for about three (3) years
and had been postponed several times with repeated warnings on
defendant that said postponements were for the last time. And now, in
its motion for reconsideration, defendant has failed to effectively allege
the ground for the failure of said witnesses to come, and even if said
ground be admitted as true for argument's sake, it merely showed
"inofficiousness, lack of resourcefulness and diligence, if not total
indifference" on the part of defendant to protect in court its interests and
to prevent needless delays in the discharge of judicial business.
"Postponement not based on valid reasons. Where a party seeks
postponement of the hearing of this case for reasons caused by his own
inofficiousness, lack of resourcefulness and diligence if not total
indifference to his own interests or to the interests of those he
represents, thereby resulting in his failure to present his own evidence,
the court would not extend to him its mantle of protection. If it was he
who created the situation that brought about the resulting adverse
consequences, he cannot plead for his day in court nor claim that he was
so denied of it." (De Leon vs. People's Homesite and Housing
Corporation, CA-G.R. No. 31169-R, Aug. 31,1963.)
8. In the case of Hap Hong Hardware Co. vs. Philippine Company, GR. No.
L-16773 (May 23, 1961), the Supreme Court, in sustaining the trial court's
denial of a motion for postponement and on the ground that the
defendant's witnesses, officers of the company, had not come because it
was the beginning of the milling season in the municipality of San Jose,
Mindoro Occidental and their presence in the Central was very,
necessary, held that the trial court was perfectly justified in denying said
motion for postponement because the reason adduced was "not
unavoidable and one that could not have been foreseen." Said the
Supreme Court:
"The reason adduced in support of the motion for
postponement is not unavoidable and one that could
not have been foreseen. Defendant ought to have
known long before the date of trial that the milling
season would start when the trial of the case would
be held. The motion should have been presented long
in advance of the hearing, so that the court could
have taken steps to postpone the trial without
inconvenience to the adverse party. As it is, however,
the motion was presented on the day of the trial.
Knowing as it should have known that
postponements lie in the court's discretion and there
being no apparent reason why the defendant could
not have presented the motion earlier, thus avoiding
inconvenience to the adverse party, the appellant
cannot claim that the trial court erred in denying
postponement. Under all the circumstances we hold
that the Court was perfectly justified in denying the
motion for postponement."
In the case at bar, the same unjustified excuse is adduced that the
witnesses, who are employees (not even officers) of defendant, had work
to do, albeit date of trial was set one month previous.
9. The cases cited by defendant are not in point, the facts involved
therein being very different from those attending the case at bar. For
example, in the cited case of Lino Luna vs. Arcenas, 34 Phil. 93, the trial
judge declined to grant a continuance of a few hours to give counsel an
opportunity to secure the presence of the defendant. The Supreme Court
held that considering that it did not appear that defendant was indulging
in dilatory tactics, the denial of the motion for short Postponement was
improper. Again, in the case of People vs. Romero, G.R. No. L-4517, May
25, 1953, the prosecution witnesses, although subpoenaed, failed to
appear; whereupon the fiscal asked that they be ordered arrested and
that in the meantime the trial be postponed. The Supreme Court likewise
held that the denial of the postponement was improper. These fact
situations, however, as can immediately be seen are completely different
from that of Lufthansa whose non-presentation of its employees-
witnesses was motivated by the desire to avoid inconvenience to them,
hence its frustrated plan to have their depositions taken in Rome.
10. Complaints regarding delays in the disposition of court cases are
prevalent and have recently found expression not only in executive
pronouncements but in judicial admonitions. The unclogging of court
dockets remains a pressing problem to the despair of litigants. As the
Court of Appeals put it:
"The records reveals that the trial of the case was
postponed five times at the instance of appellants
themselves, and for this reason the trial was delayed
for more than one year and three months. In granting
these several postponements, the trial judge was
over liberal already, and to have allowed another
postponement would have been to jeopardize
plaintiff's interest. Obviously courts cannot unduly
protect the interests of one party to the detriment of
the other. Already, there are complaints regarding
delays in the disposition of court cases. The
unclogging of our court dockets still remains a
pressing problem in the despair of many a litigant.
However to eliminate, at least minimize, these delays
is as much our concern and any act of trial courts
conducive towards this purposeful end will be
encouraged by appellate court's." (Rosario vs. De
Leon, CA-G.R. No. 6495-R, April 25, 1941; 40 O.G.
752.)
11. Prejudice will be occasioned plaintiff if defendant's belated motion
for reconsideration is granted. Notwithstanding defendant's counsel's
receipt of Mr. Dehio's letter, dated September 25, 1966, a few days after
said date, defendant delayed the filing of its motion for reconsideration
until after about three (3) weeks later. In the meantime, it knew as of
September 28 that this Honorable Court had striken out the testimony of
Ivo Lazzari, considered the case submitted for decision on the evidence
on record, and given plaintiff's counsel 7 days to present his
memorandum. Plaintiff and his counsel exerted all efforts and worked
overtime just so to be able to submit his memorandum within the short
period allowed. Said memorandum was finished on time, and has been
served on defendant's counsel and submitted to Court. In other words,
defendant purposely waited until the submission of plaintiffs
memorandum before presenting its motion for reconsideration based on
alleged information received three (3) weeks previous. To grant
defendant's instant motion for reconsideration would place plaintiff at a
great disadvantage, because defendant is now fully aware of every facet
of plaintiff's cause and can simply tailor its defenses and evidence in
refutation thereof.
12. Defendant claims that plaintiff is taking undue advantage of a
technicality and it should not be deprived of its day in court on this
ground. Suffice it to state that it is never technical to invoke one's rights,
and that while the Rules of Court should be liberally construed, their
strict observance has been considered indispensable to the prevention of
needless delays and the orderly and speedy discharge of judicial business.
Thus:
"Although the Rules of Court should be liberally
construed, however their strict observance which
have been considered indispensable to the
prevention of needless delays and to the orderly and
speedy discharge of judicial business, is as imperative
necessity. Thus, the rules prescribing the time within
which certain act must be done, or certain
proceedings taken, are considered absolutely
indispensable to the prevention of needless delays
and to the orderly and speedy discharge of judicial
business, is as imperative necessity. Thus, the rules
prescribing the time within which certain act must be
done, or certain proceedings taken, are considered
absolutely indispensable to the prevention of
needless delays and to the orderly and speedy
discharge of judicial business and therefore must be
strictly complied with." (Alvero vs. De la Rosa, 76 Phil.
428, cited in Francisco on Civil Procedure, Vol. 1, P.
89)
"Rules of Courts, promulgated by authority of law,
have the force and effect of law; and rules of court
prescribing the time within which certain acts must
be done, or certain proceedings taken are considered
absolutely indispensable to the prevention of
needless delays and to the orderly and speedy
discharge of judicial business. "Conlu vs. Court of
Appeals, et al., G.R. No. L-14027, January 29, 1960,
citing Shioji vs. Harvey, 43 Phil. 333; Alvero vs. De la
Rosa, et al., 42 Off. Gaz., p. 316, (Supra.)
WHEREFORE, it is respectfully prayed that defendant's motion for
reconsideration, dated October 19, 1966, be denied.
Manila, October 31, 1966. (Pages 74-88, Record on Appeal, id.)
By way of reply to the above opposition, defendant's counsel alleged:
Defendant could have from the beginning taken depositions in Rome, but
so as to avoid any inconvenience to plaintiff and that the court may see
and hear the witnesses testify to better determine the credibility of their
testimony defendant had been bringing the witnesses here. As a matter
of fact, defendant even without leave of court may take the depositions
of its witness by merely giving the Court notice of its intention to do so.
"After answer has been filed no leave at court is
required as a prerequisite to taking depositions ...
(Marzo vs. Moore McCormick Line, Inc. 8 Feb. Rules
of Service, p. 560; cited in Moran Comments on Rules
of Court Vol. II, p. 18)
"After issue is joined, depositions may be taken
without leave of court. (Lyons vs. Bronx Towing Line,
Inc., 1 Fed. Service p. 341)
"After answer is served, depositions may be taken as
of course and application should not be made to the
court for leave. (Schultz vs. State Mutual Life
Assurance Company, 1 Fed. Rules of Service, p. 340,
US Dist. Ct. Dist. of Oregon, Oct. 14, 1938)
"The statements made by Atty. Valmonte are false and malicious. An
affidavit executed by Atty. Zaida Ruby Alberto is attached to and made
part of this Reply as Annex "1". (Pages 92-93, Record on Appeal, id.)
On October 24, 1966, the trial court resolved the incident in a brief order holding that "(f)or
the reasons stated in the plaintiff's opposition to the motion for reconsideration, it is
denied."
In its appeal, defendant reiterates insistently its position that the denial of its motion for
postponement as well as the order striking out the testimony of Ivo Lazzari were issued in
grave abuse of discretion and should be set aside. Before going any further, however, it may
be mentioned that since defendant has not assigned as error, although it discusses in its
brief, the denial of its last motion for reconsideration, plaintiff contends that such failure
constitutes a bar to any further consideration of the merits of the arguments of defendant
relative to the main denial-of-postponement and striking-out orders. To be sure, there is
technical plausibility in such pose of plaintiff, but considering the importance of the other
matters involved in this case, it would serve the interests of justice more if We passed on the
merits of the substantial issues in this controversy. After all, "this Court is clothed with ample
authority to review matters, even if they are not assigned as errors in the appeal, if it finds
that their consideration is necessary in arriving at a just decision of the case." (Saura Import
& Export Co., Inc. vs. Philippine International Surety Co., Inc., L-15184, May 31, 1963, 8 SCRA
143.) And considering the inter-relation between the omitted assignment of error and those
actually assigned and discussed by defendant's counsel, We can apply here the ruling
in Hernandez vs. Andal, 78 Phil. 196, to the effect that "an unassigned error closely related to
an error properly assigned or upon which the determination of the question raised by the
error properly assigned is dependent, will be considered by the appellate court
notwithstanding the failure to assign it as an error." (at pp. 209-210.)
Now, with respect to defendant's first assignment of error, We feel that the rather extended
recital We have made above of the incidents and proceedings related to the trial court's
order denying defendant's motion for postponement of the hearing set for September 28,
1966 is self-revealing. It argues against the charge that His Honor's order of denial was
improper and unjustified.
The case had been pending for about three years and had actually suffered during that
period even more than the usually permissible number of continuances, quite often to suit
the convenience of defendant's counsel. Notice of the September 28, 1966 schedule had
been served on counsel the month previous. It must be assumed that due preparations and
arrangements were to be made since the receipt of that notice to insure the presence in
Manila for the expected witnesses on the date set. Under the circumstances, the excuse
given by defendant that the witnesses could not leave their respective stations and places of
work to attend the trial is plainly unacceptable. There was enough time and opportunity for
defendant to have made the corresponding adjustments in the assignments of its personnel
so as to enable its witnesses to be in court. The trouble is that defendant relied on the
assumption that the court could be made to wait until the volume and other conditions of its
business would permit it to comply with the schedule of the court. For an airline company
engaged in international transportation and presumably having all the facilities to have any
of its employees available practically anywhere in the world at a moment's notice, if it only
took due care to do this, defendant's attitude cannot be countenanced.
What is more, the motion of September 24, 1966 gave no reason at all why defendant's
witnesses supposed to come from Rome would be unable to be at the trial. Even as late as
the day of the hearing, September 28, 1966, the court could not be told the reason for such
inability. All that counsel could say was that she "intend(ed) to inquire and file the
explanation" later. This was not as it should have been, for the telex advising the Manila
office that the witnesses would not be available was received on September 22nd yet, and
certainly there was enough time to investigate and find out the reason for such
unavailability. And as no justifiable reason could be advanced in support of the verbal motion
for reconsideration. We cannot say that His Honor acted improperly when he denied the
same.
We reiterate, the case had been pending for more than three years, with so many
postponements, and the least that defendant should have done to merit favorable action on
the part of the trial judge was to be ready with an explanation of its inability to proceed with
the trial, giving the detailed and good reasons therefor. As it is, there was actually no basis at
all for the exercise of discretion on the part of the trial judge in a manner favorable to it.
Trials may be postponed because of the absence of evidence only when such absence is
justified. Mere absence is not a justification in itself. Section 4 of Rule 22 is sufficiently clear
on this point. It provides that "A motion to postpone a trial on the ground of absence of
evidence can be granted only upon affidavit showing the materiality of evidence expected to
be obtained, and that due diligence has been used to procure it." This means that it must be
shown to the court that due diligence had been exercised in either securing the presence of
the evidence (witnesses) or preventing the absence thereof.
There is, of course, defendant's motion for reconsideration of October 19, 1966 praying for
the setting aside of the court's order of denial as well as the other order striking out the
testimony of witness Lazzari. But, as already noted, the only excuse given in said motion is
that:
... The witnesses in question could not come because of certain
circumstances that rendered their coming over virtually impossible. Both
witnesses, Ivo Lazzari and Saverino Casilli are employees of defendant
company at the Rome office. The air traffic in Rome has been particularly
heavy this season. Some of the personnel of the Lufthansa Rome office
were on leave and these two employees had to assume some of the
duties of those employees who were on leave aside from performing
their own regular duties. If they were to leave their posts to come for the
hearing on September 28, there would be grave disruption to the public
service and for this reason they were not able to come. ... (Page 47, Rec.
on Ap., p. 32, Record.)
Indeed, even if such reason were given earlier on September 24, 1966 the court would have
been as well justified in denying the requested postponement. We cannot see any reason
why, despite its having knowledge of the date of the hearing about a month before,
defendant did not see to it that its expected witnesses were not assigned to do duty on the
day they were supposed to appear in court. We cannot believe Lufthansa could be so
undermanned that such a simple adjustment of its personnel had to be "impossible."
Moreover, the Rome based witnesses were not the only possible witnesses of defendant. To
begin with, Mr. C.H. Dehio, the IATA Agency Manager, Far East and Australasia, Lufthansa
German Air Lines, who, according to the record, had already attended previous hearings as a
prospective witness could have been made to go to court. There is nothing in the record to
show that he was also rendered incapable of doing so. Then there could still be local
witnesses, it is no excuse that presenting other witnesses would have disrupted the
presentation of defendant's case, for parties may be allowed to maintain their own way of
presenting their evidence only where this can be done without injury to the expeditious
disposition of the case and the best interests of the administration of justice.
Coming now to the second assigned error regarding the striking out of the unfinished
testimony of Lazarri, the Court is also of the opinion and so holds that the trial court's action
cannot be categorized as arbitrary or oppressive or as amounting to a grave abuse of
discretion. To be sure, this second order was but a logical consequence of the previous order
denying defendant's motion for postponement. With such denial, the next thing in order was
to declare the presentation of evidence of the defendant terminated. Accordingly, it was
necessary to determine what evidence could be considered to be for the defendant. And so
when counsel for plaintiff asked the court to strike out the testimony so far given by Lazarri,
there was practically no alternative for the court but to grant the same. Indeed, defendant's
counsel could not and did not offer any objection thereto.
Oral testimony may be taken into account only when it is complete, that is, if the witness has
been wholly cross-examined by the adverse party or the right to cross-examine is lost wholly
or in part thru the fault of such adverse party. But when cross-examination is not and cannot
be done or completed due to causes attributable to the party offering the witness, the
uncompleted testimony is thereby rendered incompetent.
The right of a party to cross-examine the witnesses of his adversary is invaluable as it is
inviolable in civil cases, no less than the right of the accused in criminal cases. The express
recognition of such right of the accused in the Constitution does not render the right thereto
of parties in civil cases less constitutionally based, for it is an indispensable part of the due
process guaranteed by the fundamental law. Subject to appropriate supervision by the judge
in order to avoid unnecessary delays on account of its being unduly protracted and to
needed injunctions protective of the right of the witness against self-incrimination and
oppressive and unwarranted harrassment and embarrassment, a party is absolutely entitled
to a full cross-examination as prescribed in Section 8 of Rule 132 thus: "Upon the termination
of the direct examination, the witness may be cross-examined by the adverse party as to any
matters stated in the direct examination, or connected therewith, with sufficient fullness and
freedom to test his accuracy and truthfulness and freedom from interest or bias, or the
reverse, and to elicit all important facts bearing upon the issue." Until such cross-
examination has been finished, the testimony of the witness cannot be considered as
complete and may not, therefore, be allowed to form part of the evidence to be considered
by the court in deciding the case.
In the case at bar, however, We have opted not to rely exclusively on the foregoing
considerations. In order to satisfy Ourselves as to whether or not defendant stands to be
irreparably prejudiced by the impugned action of the trial court relative to the testimony of
Lazzari, We have just the same gone over the transcript thereof. After considering the same,
however, We are of the impression that even his direct testimony, without taking into
account anymore his answers to the cross-examination questions of counsel for plaintiff,
cannot be of much weight in establishing the defenses in defendant's answer. But it would
seem more appropriate to elaborate on this point when We come to the discussion of the
mutual accusation of the parties that the trial court erred in the portion of its discretion
awarding damages to plaintiff.
The last issue submitted for Our resolution relates to the award of damages made by the trial
court in favor of Ortigas against Lufthansa in the amounts aforestated, as to which, as
already noted at the outset, both parties have appealed taking opposite positions. In this
respect, the appealed decision made the following findings and discussion of the material
facts:
In October, 1963, the Sharp Travel Service, the travel department of C. F.
Sharp, Inc., the majority interest-in-which is held by Rocha y Cia., Inc.,
General Agents of the defendant, Lufthansa German Airlines issued to the
plaintiff First Class Pan American Ticket No. 026492147076 to 81 which
would take him from Manila, the place of departure, to Hongkong,
various cities in the United States, Europe, Asia, the Far East, and then
back to Manila, the place of destination. Ortigas' ticket for all these
different legs of his journey was first class.
He left Manila October 12, 1963, as scheduled. In New York, he decided
to leave out some cities, included in his original itinerary, to be in
Hongkong on the 19th day of November, 1963, for several appointments
he had there. He went to the Trans World Airlines and had his Pan
American ticket changed with First Class TWA Ticket No. 115-460-451-
878 to 881. His TWA ticket was also first class for the entire trip from
New York to several European cities, including Rome, and thence to the
Far East, with Manila also as the place of destination.
Ortigas arrived in due course in Rome. To be sure he could fly first class
to Hongkong on November 18, 1963, for his appointments there the next
day, Ortigas repaired to the office of the Alitalia on Saturday, November
16, 1963, to book passage. The man at the counter of the Alitalia office
told him it had no flight on Monday but the Lufthansa had. The man
thereupon called up the office of the Lufthansa and, after talking to an
employee thereof, told Ortigas that the Lufthansa had no first class, but
only economy, seats available on its Monday flight.
Ortigas answered that he was not willing to take an economy seat and
requested the employee to call up other airlines. Then the phone rang.
The employee answered and afterwards informed Ortigas that the
Lufthansa had a first class seat available for its Monday flight. Ortigas
immediately asked him to get the seat and to see to it that his ticket be
confirmed and validated for the flight and a first class seat. The man
thereafter asked for Ortigas' passport and other travel papers and
attached a validating sticker (Exhibit "D-1") on flight coupon No. 4
(Exhibit "B") which corresponded to the Rome-Hongkong leg of his TWA
Ticket No. 115-460-461-878 The sticker recites:
Flight Res.
Carrier No. Date Time Status
LH 646 18 Nov. 12:35 P.M. O.K.
Wishing to be doubly sure, Ortigas again requested the Alitalia employee
to call back the Lufthansa office to recheck whether his ticket was really
confirmed and validated. The man did so, after which he told Ortigas that
his ticket had been checked, validated, and confirmed as shown by the
word "O.K." on the sticker. The same employee later wrote on the cover
of the plaintiff's ticket "10.15 Terminal-36, via Gioliti" (Exhibits "C" and
"C-1") and told him to be in the air terminal on Monday, November 18, at
10:00 A.M.
The following Monday, Ortigas checked out of his hotel and took a taxi to
the terminal, arriving there about 9:30 A.M. He unloaded his baggage and
proceeded to the counter in charge of the Lufthansa passengers. The lady
at the counter told him the Lufthansa had no space for him that day.
Ortigas requested her to check with her main office, which she did by
calling it up. After calling, she apologized and said the plaintiff's ticket
was in order and would be confirmed and validated. On her request,
Ortigas had his luggage weighed and was given the free luggage
allowance of a first class passenger. He was furthermore asked to pay 800
liras for bus fare and 700 liras as embarkation tax. Then Ortigas, along
with other passengers, one of whom was Amado Castro of the
Development Bank of the Philippines, boarded a bus for the airport.
At the airport, the plaintiff handed over his ticket to the man behind the
Lufthansa counter, who told him everything was all right. At that
juncture, the plaintiff heard his name called. He inquired if he was being
called from an employee of the Lufthansa and, on receiving an
affirmative answer, said he was Ortigas. The employee asked for his
passport and other papers and, after examining his passport, where his
Filipino nationality appears, said he could not board the plane that day
because his seat would be given to a Belgian. Ortigas asked the man why
he was doing that to him when his ticket was confirmed and validated
first class. The Lufthansa employee replied he was sorry but Ortigas could
not leave.
Fearing he would have a recurrence of his heart ailment, Ortigas took a
nitroglycerin pill which his doctor advised him to take on occasions of
stress. The plaintiff then told the Lufthansa man to bring the Belgian over
so that his papers may be examined to determine whether he had a
preferred right to Ortigas' seat but the Lufthansa employee turned down
the request, raised his voice, and said if the plaintiff desired, he could
take an economy seat and he would be allowed a refund. Ortigas
retorted he was not interested in a refund and what he wanted was to
travel first class in accordance with his ticket.
This argument occurred in the presence of the other passengers, one of
whom was Amado Castro, and the plaintiff felt embarrassed and
humiliated because the Lufthansa employee was shouting at him and
treating him the way he did. Ortigas made another request, namely, that
the employee call other airlines to inquire if they had flights to Hongkong
that day but he once more turned down the plea and insisted that
Ortigas travel economy, with the promise that he will be transferred to
first class in Cairo and onward to Hongkong.
After promising to, the man went inside a room and, after a while, came
out and assured the plaintiff he would travel first class from Cairo to
Hongkong because he sent a communication that it should be done. He
then jotted down some letters on Ortigas' ticket. The plaintiff replied he
was not satisfied with the arrangement but was constrained to agree to it
because he had to be in Hongkong the next day, his luggage was in all
probability already inside the plane, he was not certain he could still
secure a hotel reservation, the manager of the hotel where he stayed
having told him it would be hard for him to get another reservation once
he checks out, and he was assured he would be given first class passage
from Cairo onward.
Upon arrival in Cairo, the plaintiff requested the Lufthansa agent to
transfer him to first class but the agent said he could not and that he did
not receive any communication from Rome to that effect. Ortigas also
requested the man to find out if there were other airlines having planes
leaving that day but his request was likewise denied. The man, however,
promised that at Dharham, Ortigas will be transferred to first class.
Ortigas had no alternative but to continue traveling as before but he did
so again under protest.
At Dharham, the plaintiff once more requested a transfer to first class but
was also told by the Lufthansa agent that he had not received any
communication about the change and the request could not be granted.
The plaintiff had to travel perforce economy from Dharham. In Calcutta,
Ortigas once again requested a transfer or that he be assisted in booking
passage on other planes but was also refused. It was only in Bangkok
when the chief steward asked him if he wanted to move over to first class
but having been already embarrassed and humiliated and the trip to
Hongkong being only three hours, he said he would not as a sign of
protest.
In Hongkong, Ortigas protested against the treatment given him but was
told by the Lufthansa office he had to file his protest in Manila, it being
the point of destination. He did so by means of a letter, dated November
25, 1963 (Exhibit "F"), followed by another letter, dated December 20,
1963 (Exhibit "C"), and not having received any definite answer, he
brought this suit.
Although Ortigas' ticket for the flight from Rome to Hongkong was
validated and confirmed by the Alitalia, its act bound and obligated the
Lufthansa. The Alitalia and Lufthansa are members of the International
Air Transport Association (IATA). It is admitted that as such member, the
Alitalia can issue tickets for other members of the association like the
Lufthansa, Pan American World Airways, and others. Par. 10, Order of
April 29, 1964, and Exhibit "H", certification of the manager of the
Alitalia. Aside from being members of the IATA, the Alitalia and Lufthansa
are pool partners and conduct a joint service with interchangeable flights
for the European-Far East-and Australia sectors. Par. 11, Order of April
29, 1964. Under the pool agreement (Exhibit "DD") they undertake to
adhere to the appropriate IATA regulations and to take measures to
provide district sales offices with every possibility for close cooperation in
the promotion of the pool services covered by the agreement, including
"reservation and booking". They furthermore, in effect confirm in the
agreement that tickets of one, other than free and reduced tickets, may
be validated by the other.
Finally, Manuel Otayza, general manager of Filital, Inc., which is the
general agent of the Alitalia in the Philippines, testified that space
reservation through telephone calls between airlines is permitted by
IATA's, "Manual of Traffic Conference Resolutions" and that telephone
calls for reservation by one airline to another is in fact accepted
procedure in accordance with the official airline guide of the Air Traffic
Conference and International Air Transport Association (Exhibit "W").
The placing by the Alitalia of a sticker on the plaintiff's ticket obligated
the Lufthansa to give him a first class seat on its flight from Rome to
Hongkong on November 18, 1963. The same witness, Manuel Otayza,
testified that the placing of a validating sticker on a ticket is standard
airline procedure; that a sticker changes are status of a reservation; that
consequently while Ortigas' ticket was "open", that is, it had no
reservation for a particular flight between Rome and Hongkong, the
moment a validating sticker was placed thereon, stating the flight
number of the airline, the day and hour of departure, with the letters "O-
K", his ticket was changed from an "open" to a "confirmed" or "validated"
ticket; and that the sticker on Ortigas' ticket meant that first class space
was confirmed for him on Lufthansa flight 646 to Hongkong on November
18, 1963, at 12:35 P.M.
Aside from Otayza's testimony, it is admitted that in the stipulation of
facts that "the letters "O.K." (Exhibit D-2) appearing on the "Res. Status"
box of the sticker (Exhibit D-1) attached to Flight Coupon No. 4 of TWA
Ticket No. 015-410:451-880 (Exhibit "D") means space confirmed, per
IATA Resolution 275, page 4, Issue 2, a photostatic copy of which is
attached hereto as Exhibit "O"; that validate means to stamp or write on
the passenger ticket an indication that the passenger ticket has been
officially issued by the carrier; that "the placing of a sticker on a flight
coupon is a revalidation thereof for the flight mentioned in said sticker
and is an alteration effected on said coupon, in accordance with the
procedure laid down in IATA Resolution 275d, Page 1, Issue 1, a
photostatic copy of which is attached thereto as Exhibit "S";. and that
"prior endorsement was not necessary for Alitalia to revalidate TWA
Ticket No. 115-410-880 Exhibit "D" because Alitalia is the carrier originally
designated in the "Via carrier" box of said ticket, in accordance with IATA
Resolution No. 279, photostatic copy of which is attached hereto as
Exhibit 'T'."
There was, therefore, a valid and binding contract between Lufthansa
and the plaintiff to transport him as a first class passenger from Rome to
Hongkong on November 18, 1963, and this agreement the defendant
violated by compelling the plaintiff to travel as an economy passenger. It
cannot be said the breach was the result of an honest mistake or
excusable negligence. There is evidence the defendant acted with `bad
faith and in wilful disregard of the plaintiffs rights.
Ortigas' ticket was confirmed on the early morning of November 16,
1963, more than 48 hours before his departure on the afternoon of
November 18. There was, therefore, ample time to send a telex message
from Rome to the defendant's main office in Frankfurt, which is only
about 2-1/2 flying hours away, to reserve a first class seat for the
plaintiff.
At the terminal on Via Gioliti, he was again told that he had a first class
seat, his luggage was checked in divesting him of control thereof, and
transported to the airport some 37 kilometers distant. He was in this
manner deprived of the opportunity of availing himself of the facilities of
other airlines and compelled to take the Lufthansa flight even against his
will.
In the airport, although he, was found entitled to fly first class, he was
told after his Filipino passport was seen, that his seat would be given to a
Belgian, without any reason or explanation whatsoever. His simple
request that the Belgian's ticket be produced and examined to see who
had a better right to a first class seat was turned down. So was his equally
simple request that other airlines be called to find out if any of them
could accept him as a first class passenger to Hongkong that day. He was
deceived into boarding the Lufthansa plane at Rome by falsely assuring
him he will be transferred to first class at Cairo, the next stop in the flight.
The same false and deceptive promise was given him at Dharham and
Calcutta.
Indubitable proof of the defendant's bad faith is found in the fact that
while its employee was assuring the plaintiff he would be transferred to
first class in Cairo, he was at the same time writing on his ticket the
following notation: "TRVLDY/c ROME HEG ROME ST", which means
"Travelled economy class Rome to Hongkong St", thereby barring Ortigas
from asserting any right to demand first class accommodation. The
defendant's employee, therefore, knew all along the plaintiff would not
travel first class, and yet he deliberately made him believe he would be
transferred to first class from Cairo to Hongkong.
From the circumstances, it is clear that the defendant not only breached
its duty to the plaintiff but also did not want to release him as a
passenger and wished to hold on to him even if it would cause him
inconvenience and embarrassment. (Pages 97-109, Record on Appeal.) .
Disputing the foregoing conclusions, Lufthansa claims firstly that the Alitalia employee who
validated and confirmed Ortigas' reservation must have made a mistake because actually, he
was informed by the Lufthansa Rome office that Ortigas could only be waitlisted. Assuming,
however, there was such an error, it has been indisputably proven that under the so-called
pool arrangement among different airline companies pursuant to the International Air
Transport Association (IATA) agreement of which Alitalia and Lufthansa are signatories, both
companies are constituted thereby as agents of each other in the issuing of tickets and other
matters pertaining to their relations with those who would need their services, and since
there can be no question that on its face, the annotations made by Alitalia on the ticket here
in dispute cannot have any (other meaning than that the reservation of Ortigas for the Rome
Hongkong flight was validated and confirmed, Lufthansa's disclaimer is unavailing.
Besides, it appears that when Ortigas checked in at the airport, the Lufthansa lady employee
thereat told him, after making the proper verification, that the reservation was correct. What
is more, in the unconcluded testimony of Ivo Lazzari, the striking out of which is questioned
by Lufthansa, he admitted that it was a fact that the said reservation of plaintiff for first class
was confirmed, albeit he qualified that this was done already in the morning of November
18th, the day of the flight, almost at the last hour. What seems to have happened was that
somehow the first class accommodations for that flight were overboard and Lufthansa tried
to solve the problem by downgrading Ortigas to the economy class in favor of a Belgian, as
Ortigas was told by the Lufthansa employee who paged him over the public address system
for the purpose just as he was about to go to the departure area, with his luggage already
checked and his overweight fees duly paid, so much so that they were already loaded in the
plane. Verily, such treatment given to plaintiff was completely wrong and absolutely
unjustifiable. Nobody, much less a common carrier who is under constant special obligation
to give utmost consideration to the convenience of its customers, may be permitted to
relieve itself from any difficulty situation created by its own lack of diligence in the conduct
of its affairs in a manner prejudicial to such customers. It is Our considered view that when it
comes to contracts of common carriage, inattention and lack of care on the part of the
carrier resulting in the failure of the passenger to be accommodated in the class contracted
for amounts to bad faith or fraud which entitles the passenger to the award of moral
damages in accordance with Article 2220 of the Civil Code. But in the instant case, the breach
appears to be of graver nature, since the preference given to the Belgian passenger over
plaintiff was done willfully and in wanton disregard of plaintiff's rights and his dignity as a
human being and as a Filipino, who may not be discriminated against with impunity.
Lufthansa contends, however, that there could not have been any possible discrimination by
reason of race against Ortigas because from his appearance, said plaintiff can easily be taken
for a European or white more than his own witness Amado Castro and besides, there were
other orientals in the same flight on that occasion. It is argued that any such policy would be
self-defeating, since it would certainly be damaging to its own business. Again, this
ratiocination cannot carry the day for Lufthansa, for what appears from the evidence in this
case is not really a case of a general policy of discriminating against orientals or non-whites,
but a specific act of Lufthansa employee at the airport of giving preference to a Belgian after
examining Ortigas passport wherein his Filipino nationality is noted. Indeed, the fact that
despite plaintiffs protestations and demand that he be shown how it could happen that
somebody else, particularly that Belgian, should be given his place when his reservation was
validated and confirmed and actually, he had already checked in and his baggage was already
in the plane, nothing was done to satisfy him, merely infused bad faith into the breach of
contract already committed of depriving plaintiff of his reserved accommodation. In other
words, from the legal standpoint, such preference given to a European surely aggravated the
damage or injury suffered by plaintiff, but the very act alone of deliberately downgrading him
despite his confirmed reservation for first class accommodation is sufficient ground for relief.
And considering that there are already recorded cases in this Court wherein Filipinos have
been similarly discriminated against by foreign airline company employees in the treatment
of passengers this new instance can easily be believed and correspondingly dealt with in
fixing and assessing the liability of herein defendant.
As found by the court below what worsened the situation of Ortigas was that Lufthansa
succeeded in keeping him as its passenger by assuring him that he would be given first class
accommodation at Cairo, the next station, the proper arrangements therefor having been
made already, when in truth such was not the case. Thus, instead of complying with the
request of Ortigas that other airlines be contacted to find out it they had first class space for
him, the Lufthansa employee who had indifferently told him about his downgrading paid very
little attention if ever to said request. And to keep him from giving the business to another
company, he was made to believe that he would be given first class accommodation at Cairo.
Although molested and embarrassed to the point that he had to take nitroglycerine pills to
ward off a possible heart attack, Ortigas hardly had any choice, since his luggage was already
in the plane. To his disappointment, when the plane reached Cairo, he was told by the
Lufthansa office there that no word at all had been received from Rome and they had no
space for him in first class. Worse, similar false representations were made to him at
Dharham and Calcutta. It was only at Bangkok where for the first time, Ortigas was at last
informed that he could have a first class seat in that leg of the flight, from Bangkok to
Hongkong. This Ortigas rejected, if only to make patent his displeasure and indignation at
being so inconsiderately treated in the earlier part of his journey.
Lufthansa insists in its brief that it could have proven that there was no such "entrapment of
a captive passenger" had it been allowed the postponement it sought of the September 28,
1966 hearing. It is argued that there could have been no way by which its Rome office could
have assured Ortigas about what he would be given in Cairo, the flight being fully booked as
it was without any assurance of any first class seat being vacated by then. We are not
impressed. In view of the insistence of plaintiff that he be given the first class
accommodation he had contracted and paid for, the least that the, Rome office should have
done was to communicate with Cairo and strongly urge that all possible effort be made to
comply with his well grounded request. As it happened, however, the Cairo office informed
Ortigas when he arrived there that they had not received any word at all from Rome. On the
contrary, as pointed out by the trial court, contrary to the verbal assurance given Ortigas, the
Lufthansa employee made annotations on his ticket that he was travelling economy class
from Rome to Hongkong. If, as contended by Lufthansa, Ortigas was duly advised to make
arrangements for transfer to first class as soon as he arrived at each station on the way, why
was such notation made that he was travelling up to Hongkong in economy class? All these
only go to show that any evidence of defendant tending to disprove the testimony of Ortigas
would in any event have been inconclusive or unreliable.
Likewise, Lufthansa maintains that it could have proven that Ortigas did not take offense at
being downgraded, as in fact, according to Lufthansa, he was in jovial mood throughout the
trip enjoying his conversation and exchange of amenities with his seatmate, who by strange
coincidence happened to be the Manager of Lufthansa German Airlines for the district of
Australia and New Zealand holding said position since 1962.
1
Moreover, it is argued, the
economy class accommodations are not much different from first class and Ortigas was not
delayed in his trip. We cannot see the point. A passenger contracts for first class
accommodations for many reasons peculiar to himself and pays a higher price therefor, and
it is certainly not for the airplane to say later, after it deprives him of his space in order to
favor another passenger, that economy class is anyway just as good as first class. That Ortigas
was rightfully indignant is not difficult to imagine. No person in his normal senses and
possessed of human dignity would have been unperturbed and unruffled by the treatment
he had received. More, he was under express admonition of his doctor taking care of his
ailing coronary condition to travel only in first class. Indeed, that he complained and made
himself emphatically clear while still in Rome is sufficiently substantiated in the record, as it
was more or less admitted by defendant's witness Lazzari when he testified that he heard
about plaintiff's complaint that same day, November 18, 1963.
In the light of all the foregoing, there can be no doubt as to the right of Ortigas to damages,
both moral and exemplary. Precedents We have consistently adhered to so dictate.
Beginning with Cuenca,
2
wherein the Court rejected the theory that an air carrier is liable
only in the event of death or injury suffered by a passenger, because, according to the Court,
to so hold would be tantamount to declaring the carrier "exempt from any liability for
damages in the event of its absolute refusal, in bad faith, to comply with a contract of
carriage, which is absurd", We have uniformly upheld the right of a passenger to damages in
all cases wherein, after having contracted and paid for first class accommodations duly
confirmed and validated, he is transferred over his objection to economy, class, which he has
to take in order to be able to arrive at his destination on his scheduled time.
In the case of Nicolas L. Cuenca, then Commissioner of Public Highways of the Philippines, he
boarded a Northwest plane in Manila with a first class ticket to Tokyo, but upon arrival at
Okinawa, an agent of the company rudely compelled him, over his protest, to move over to
the tourist class, which he had to do, so he could reach the international conference he was
attending on time. Under these facts, the Court held that the P20,000 awarded by the lower
court to Cuenca "may well be considered as nominal and also as exemplary, the Court of
Appeals having modified the trial court's designation thereof as moral, saying it should have
been nominal.
In Lopez
3
, Honorable Fernando Lopez, then an incumbent senator and former Vice President
of the Philippines, together with his wife and his daughter and son-in-law, made first class
reservations with the Pan American World Airways in its Tokyo-San Francisco flight. The
reservation having been confirmed, first class tickets were subsequently issued in their favor.
Mistakenly, however, defendant's agent cancelled said reservation, but expecting some
cancellations before the flight scheduled about a month later, the reservations supervisor
decided to withhold the information from them, with the result that upon arrival in Tokyo,
the Lopezes discovered they had no first class accommodations and were thus compelled to
take the tourist class, just so the senator could be on time for his pressing engagements in
the United States. In the light of these facts, the Court held there was a breach of the
contract of carriage and viewed as the element of bad faith entitling the plaintiffs to moral
damages for such contractual breach, the failure of the agents of the defendant to inform the
plaintiffs on time that their reservation for first class had long before been cancelled by
mistake. According to the Court, such omission placed plaintiffs in a predicament that
enabled the company to keep the plaintiffs as their passengers in the tourist class, thereby
retaining the business and promoting the company's self-interest at the expense of,
embarrassment, discomfort and humiliation on the part of the plaintiffs.
In Air France vs. Carrascoso
4
plaintiff Mr. Rafael Carrascoso, a civil engineer who was going to
Lourdes, France, as a member of a religious group of pilgrims was issued by the Philippine Air
Lines, as agent of the defendant Air France, a ticket for first class round trip from Manila to
Rome. From Manila, Carrascoso travelled first class, as per said ticket, but at Bangkok, the
Manager of the defendant airline forced him to vacate the first class seat because there was
a white man who allegedly had a better right thereto, without, however, showing him the
basis for such preference. Upon these factual premises, the Court held:
It is really correct to say that the Court of Appeals in the quoted portion
first transcribed did not use the term `bad faith'. But can it be doubted
that the recital of facts therein points to bad faith? The manager not only
prevented Carrascoso from enjoying his right to a first class seat, worse,
he imposed his arbitrary will; he forcibly ejected him from his seat, made
him suffer the humiliation of having to go to the tourist class
compartment just to give way to another passenger whose right
thereto has not been established. Certainly, this is bad faith. Unless, of
course, bad faith has assumed a meaning different from what is
understood in law. For, bad faith, contemplates a "state of mind
affirmatively operating with furtive design or with some motive of self-
interest or ill will or for ulterior purpose." (Words & Phrases, Perm. Ed.,
Vol. 5, p. 13, citing Warfield Natural Gas Co. vs. Allen, 59 S.W. (2d) 534,
538.)
And if the foregoing were not yet sufficient, there is the express finding
of bad faith in the judgment of the Court of First Instance, thus:
"The evidence shows that defendant violated its
contract of transportation with plaintiff inbad faith,
with the aggravating circumstances that defendant's
Manager in Bangkok went to the extent of
threatening the plaintiff in the presence of many
passengers to have him thrown out of the airplane to
give the "first class" seat that he was occupying to,
again using the words of the witness Ernesto G.
Cuento, a "white man" whom he (defendant's
Manager) wished to accommodate, and the
defendant has not proven that this "white man" had
any "better right" to occupy the "first class" seat that
the plaintiff was occupying, duly paid for, and for
which the corresponding "first class" ticket was issued
by the defendant to him." (R.A., p. 74; emphasis
supplied.) (at pp. 166-167.)
These precedents, as may be seen, apply four-square to herein plaintiffs case. Defendant's
liability for willful and wanton breach of its contract of carriage with plaintiff is, therefore,
indubitable.
Coming now to the amount that should be awarded by way of damages to the plaintiff, it is
also the teaching of the cases aforecited that defendant is liable not only for moral but also
for exemplary damages. As earlier stated, the court below fixed the compensation for moral
damages at P100,000 and the exemplary at P30,000. The Court believes that these amounts
are not enough.
According to the lower court:
Although the plaintiff has not held any elective public office, he has
however, a distinguished record as a private citizen, a lawyer,
businessman, a civic and religious leader, a member of numerous
government boards and organizations as well as of local and international
bodies, and is the recipient of awards and citations for outstanding
services and achievements.
He was, and still is, moreover suffering from a heart ailment and has
been advised by his physician to travel first class because it is more
relaxing and comfortable. His position as chairman of the boards of
directors of the corporation he represented also required that he travel
in that manner. He was, furthermore, carrying a special passport issued
by the Philippine Government to represent it and business corporations
abroad.
His sickness and the need for him to travel in the most comfortable
manner possible were made known to the defendant's employee, but he
paid no heed to them. Instead, he engaged Ortigas in a heated
discussion, summarily brushed off his protests and pleas, humiliated him,
and tricked him into boarding his employer's plane, endangering thereby
his health and obliging him to take medicine to forestall an attack.
There is, finally, evidence that he was discriminated against because of
his nationality for he was told to yield his first class seat to a Belgian only
after his passport was examined and his Filipino citizenship must have
been noted. .
Under the circumstances and measured by the criterion, jurisprudence
has followed, the compensation the plaintiff should be entitled to receive
must be fixed at P100,000.00 as moral damages, P30,000.00 as
exemplary damages or corrective damages, and P20,000.00 as attorney's
fees. (Pp. 111-113, Record on Appeal.)
We have reviewed the evidence and We are convinced there is more than ample basis for
these findings. But under the circumstances revealed in the record, it is Our considered
opinion that the award of moral damages should be increased to P150,000.
We cannot go along with defendant's pose that in Cuenca the amount awarded was only
P20,000, for the very obvious reason that in that case what was involved was only one leg of
the flight contracted for, namely, that from Okinawa to Tokyo, whereas in the case not at
bar, the offense was repeated four times, at Rome, Cairo, Dharham and Calcutta, with
apparent cold indifference of defendant's agents to plaintiff's plight. Besides, it appears that
Cuenca did not appeal from the trial court's decision fixing said amount, hence there was no
occasion for the Supreme Court to award more. This was also what happened in the
Carrascoso case, where the plaintiff did not complain against the award of only P25,000-
moral-and P10,000-exemplary damages made by the trial court. It was Air France who
claimed that these were even excessive. Verily, however, such, discriminatory acts of the
defendants in those cases which were not only violative of their contractual obligations but
also offensive to human dignity and national or racial pride constitute about the most
justifiable ground for the award of moral damages, for the resulting injury therefrom cannot
but cause immense mental anguish, besmirched reputation, wounded feelings, moral shock
and social humiliation. (See Article 2217 of the Civil Code.) We reiterate, they are to be
considered as infecting with bad faith the breach of contract committed, under Article 2220
of the same Code. (Lopez vs. Pan Am., supra.)
Lufthansa suggests that compared to the P100,000 awarded to Vice President Lopez in the
case aforementioned, the P100,000 given by the trial court to Ortigas are "grossly excessive".
It does not appear to Us to be so. As pointed out by His Honor, "although plaintiff has not
held any elective public office, he has, however, a distinguished record as a private citizen, a
lawyer, businessman, a civic and religious leader, a member of numerous boards and
organizations as well as local and international bodies, and is the recipient of awards and
citations for outstanding services and achievements." Indeed, under the proven facts in the
record, We cannot regard plaintiff in any inferior position vis-a-vis Vice President Lopez in the
highest circles of Philippine society and in the business and religious world, not to speak of
his standing in government officialdom.
Beside there is again the disparity between then Lopez case and this one that here the
offense, which, as in Cuenca, is aggravated by the Lufthansa employee at Rome having falsely
noted on the ticket that Ortigas was travelling in economy from Rome to Hongkong,
5
was
repeated four times in the same trip, namely in Rome, Cairo, Dharham and Calcutta. More
importantly, unlike in the case of Lopez, Ortigas was suffering from a weak heart and under
doctor's advice to travel only in first class, hence, his being compelled to stay in economy or
tourist class during the major part of his trip, must have given him added apprehensive
feelings about his safety. And, moreover, it is to benoted that in the Lopez case, which was
decided in 1966, aside from taking into account the personal circumstances of the plaintiff,
the Court considered "the present rate of exchange and the terms at which amount of
damages awarded would approximately be in U.S. dollars", hence, We may not justifiably do
differently here..
Furthermore, it may not be amiss to mention here that in Zulueta vs. Pan American Airways
Inc., 43 SCRA 397, the Court awarded the plaintiffs: Zulueta, the husband, his wife and a
minor daughter, a total of P775,000 as damages consisting of P500,000 as moral, P200,000 as
exemplary and P75,000 as attorney's fees, apart from actual damages. In that case, the
Zulueta's were coming home to Manila from Honolulu in a Pan-American plane. At Wake,
however, where the plane arrived at 4:00 o'clock in the morning, Zulueta could not be found
at flight time because, without letting anyone know, not even his wife or daughter, he had
relieved himself, according to him, at the beach behind the terminal. When at last, he was
found, the Pan-Am employee who first met him while walking back from the beach
remonstrated him thus: "What in the hell do you think you are! Get on that plane." This
angered Zulueta who engaged the said employee in an exchange of angry words. In the
meanwhile, the pilot who had been tipped by a "man from the State Department", also a
passenger in that flight, that there might be a bomb in the plane and expressed
apprehension for the safety of the flight unless Zulueta could be found, ordered the
unloading of the bags of the Zuluetas, and when three of the four of them had already been
unloaded, he ordered Zulueta to open them, but the latter refused. Another exchange of
angry words followed, in the course of which, according to Zulueta's evidence, the pilot went
to the extent of referring to him and his family as "those monkeys". Ultimately, the plane left
without Zulueta, albeit his wife and daughter were on board, because the captain refused to
allow Zulueta to board until after his bags were opened and inspected, which Zulueta refused
entirely to do. Although, said decision is not yet final, because of the pendency of a second
motion for reconsideration the Court has not yet resolved, the Court has already allowed the
partial execution of the judgment, thus enabling Zuluetas to collect already one-half of the
amount or over P335,000, which amount, according to the concurring and dissenting opinion
there of the writer of the instant decision could be the least that should anyway be allowed.
Of course, the Court did not itemize the award but granted the same to the family as a
whole, but it is evident that in the final distribution, Zulueta would get for himself from at
least P150,000 to not more than P200,00.
6

We hold that the foregoing considerations justify the increase of the award of moral
damages from P100,000 to P150,000.
Finally, We have the dispute regarding the amount of exemplary damages awarded. In this
respect, it is Our considered opinion that defendant should Pay P100,000 instead of the
P30,000 awarded by the trial court. The record of this case taken together with what are
revealed in the other similar cases decided by this Court, those aforediscussed, convinces Us
that defendant, as an airline, should be made to pay an amount that can really serve as a
deterrent against a seeming pattern of indifference and unconcern, and what is worse, of
discrimination for racial reasons, discernible in the treatment of air passengers. This is not
the first case, and unless the proper sanctions are applied, it does not appear it is going to be
the last yet, of instances wherein Filipino passengers having validated and confirmed tickets
for first class would be shoved to the economy class, over their valid objections and without
any regard at all to their feelings and convenience, only to favor other passengers presumed
by the airlines to be of superior race, hence, deserving preference. It is high time everyone
concerned were made to realize that the laws of the Philippines do not permit any act of
discrimination against its citizens, specially when this accompanies a clear breach of
contractual obligations of common carriers whose business is affected with public interest
and must be directed to serve the convenience and comfort of the passengers. When any
disregard of such laws is committed, the Supreme Court, as the interpreter of such laws,
must exact the commensurate liability which they contemplate.
"Exemplary damages are required by public policy, for wanton acts must be repressed. They
are an antidote so that the poison of wickedness may not run through the body politic."
(Report of Code Commission, pp. 75-76) by authority of the decided cases
aforediscussed,
7
acts of similar nature as those herein involved fall within the category of
those justifying the imposition of exemplary damages pursuant to the codal concept just
stated.
The rationale behind exemplary or corrective damages is, as the name implies, to provide an
example or correction for public good. ... In view of its nature, it should be imposed in such
an amount as to sufficiently and effectively deter similar breach of contracts by defendant or
other airlines." (Lopez v. Pan-American World Airways, supra; see also Rotea vs. Halili, 109
Phil. 495; People vs. Medroso, Jr., G.R. No. L-37633, Jan. 31, 1975, 62 SCRA 245; Cotabato
Timberland Co. Inc. vs. Plaridel Lumber Co., Inc., 13 SCRA 235) Thus, all relevant matters
considered, P100,000 of exemplary damages, which practically amounts only to not more
than $15,000 U.S. under the present rate of exchange, would serve the ends for which the
liability has been conceived.
WHEREFORE, the judgment appealed from is modified by raising the award of moral and
exemplary damages to plaintiff Ortigas to P150,000.00 and P100,000.00, respectively. In all
other respects, including as to the payment of interests on the said amounts, the same is
affirmed.
Fernando (Chairman), Antonio, Aquino and Concepcion, Jr., JJ., concur.











Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-16941 October 29, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MATEO DEL CASTILLO, ET AL., defendants,
JOSE ESTRADA, defendant-appellant.
Assistant Solicitor General Esmeraldo Umali and Solicitor Ceferino P. Padua for plaintiff-
appealee.
Jose W. Diokno for defendant-appellant.
ANGELES, J.:
This is a review, on appeal by accused Jose Estrada, of Criminal Case No. 213-G of the Court
of First Instance of Quezon, wherein the death sentence was imposed upon the said accused
by the court a quo in its decision dated February 11, 1960, the dispositive portion of which
reads as follows:
PREMISED on the foregoing considerations the Court hereby finds the accused Jose
Estrada GUILTY beyond reasonable doubt of the crime of kidnapping for ransom as
defined and punished by Article 267 of the Revised Penal Code, as ultimately
amended by Republic Act No. 1084, with the aggravating circumstance of abuse of
public office (he being then municipal councilor of Gumaca), without any mitigating
circumstance to offset it, and hereby sentences him to die by electrocution as
provided by law, ordering his heirs after his execution, to indemnify Elvira Taada
Principe or her heirs in case of her death, in the amount of P50,000.00, and to pay
the costs.
For a prefatory statement of the background facts of the case, the details of which shall be
set forth later as We review the evidence, the following antecedents need be stated.
In the afternoon of February 27, 1956, Mrs. Elvira Taada de Principe, a young, prominent
patron of Gumaca, Quezon, a member of the rich, well known Principe family, was kidnapped
by a band of Hukbalahaps, headed by one Commander Pepe Alcantara. She was detained for
18 days in the Huk lairs deep in the mountains of the Bondoc Peninsula, and was released
only upon payment of a ransom of P50,000.00.
On account of the kidnapping, three(3) cases, filed one after another, were instituted by the
Government against the known suspects. We are presently concerned only with the last of
these cases, which has culminated in this appeal. But for a better understanding of this case,
We have to make mention of them all in passing. And for this purpose, the statement made
by the trial court in the decision appealed from will suffice.
(a) The First Case. Criminal Case No. 137-G.
The first charge was a complaint initiated on March 11, 1956, by Lt. Lucas B.
Apolonio of the 38th PC Company stationed at Gumaca and lodged with the justice
of the peace court of Gumaca which upon elevation to this Court became Crim.
Case No. 137-G for the complex crime of rebellion with kidnapping in which the
information was filed by Assistant Provincial Filed Severino I. Villafranca on April
24, 1956.
On June 4, 1956, Fiscal Villafranca amended his first information to name Arcadio
Talavera as Lt. Alcantara in the assumption that Lt. Alcantara was Arcadio Talavera.
Later on and after the Luis Taruc case was decided by the Supreme Court to the
effect that there was no such complex crime of rebellion with kidnapping, Fiscal
Villafranca moved the Court to permit him to amend his information and to charge
the accused separately, one information for the crime of kidnapping for ransom.
On June 26, 1956, a second amended information in Criminal Case No. 137-G was
filed by Fiscal Villafranca charging all the accused headed by Arcadio Talavera alias
Lt. Alcantara with the simple crime of rebellion.
On August 26, 1956, a third information was filed by Fiscal Villafranca eliminating
Arcadio Talavera from the information but adding Lt. Alcantara as one of the
accused. The crime charged was still for the crime of rebellion.
The record shows that this third amended information was provisionally dismissed
by the Court on October 16, 1956, on the petition of Fiscal Villafranca and Special
Prosecutor Capilitan on the ground that the evidence against the two accused
Doroteo Edungan and Buenaventura Miel, who were then the only accused placed
in the custody of the law for rebellion, were not sufficient to convict them of
rebellion.
The record further shows that the entire case was provisionally dismissed on the
ground that the rest of the accused had not yet been arrested, subject to the
proviso that any time the case may be revived for rebellion against those that
might be arrested later. This Case No. 137-G is therefore a closed case, at least
provisionally as a case for rebellion.
(b) The Second Case. Criminal Case No. 164-G, for Kidnapping for Ransom.
On June 26, 1956, Assistant Provincial Fiscal Villafranca filed a separate information
for the kidnapping for ransom of Elvira Taada de Principe, naming the thirty-three
accused in Crim. Case No. 137-G as defendants. This case was docketed as Criminal
Case No. 164.
The record shows that on August 17, 1956, this Court upon petition of Provincial
Fiscal Jose O. Lardizabal dismissed the case against Arcadio Talavera as Lt.
Alcantara and Provincial Fiscal Lardizabal filed an amended information on August
16, 1956, against Lt. Alcantara and the thirty-two persons named in the first
information. In other words, Arcadio Talavera alias Lt. Alcantara was eliminated but
Lt. Alcantara was continued in his stead.
The accused Antonio Campaniero alias Nelson de Rosas was discharged from
thisinformation to be utilized as witness for the government in Crim. Case No. 213-
G.
The case against Buenaventura Miel was dismissed on March 19, 1957, for
insufficiency of evidence.
The case against Gonzalo Mallare alias Commander Romy was dismissed on
December 5, 1957, for insufficiency of evidence.
On February 25, 1958, the case against Doroteo Edungan was dismissed upon
petition of Special Prosecutor Victor Santillan and Artemio Alejo and of Assistant
Provincial Fiscal Eufemio A. Caparros for insufficiency of evidence.
On February 26, 1958, the accused Quirino Ravela alias de Leon pleaded guilty as
accessory after the fact in the crime of kidnapping for ransom of Elvira Taada and
was sentenced accordingly.
On February 1, 1960, the accused Clodualdo Camacho pleaded guilty as accessory
after the fact and was sentenced accordingly.
Isidro Alpay alias Commander Bulaklak, Domingo America alias Laguimay, Ireneo
Capisonda alias Erning alias Lope, Benjamin de Jesus @ Amin, Ben Ramirez @ Ben,
Pedro Martinez @ Pedro, Santiago Napoles @ Nomver, @ Jaime @ Jimmy @ Jimay,
@ Gelacio @ Elioso, @ Liwayway, @ Berna, @ Timoteo, @ Juan, @ De Guzman, @
Torres, @ Valencia, @ Bayas and @ Ladres have not yet been placed in the custody
of the law. On February 27, 1958, the case against those who are still at large was
dismissed provisionally.
The accused Alfredo Reyes @ Commander Fred, Emiliano Blasco @ Commander
Emy, Rodrigo @ Commander Tony, Victoriano Dayunot @ Torio and Panfilo Rosales
@ Predo @ Banaag are all reported dead.
For all purposes therefore, Case No. 164-G may be considered a terminated case.
(c) The Third Case. Crim. Case No. 213-G, for Kidnapping for Ransom.
On October 10, 1956, a third case was filed by a special prosecutor from the
Department of Justice, Antonio O. Capilitan, after the surrender of some of the
Huks who participated in the kidnapping of Elvira Taada de Principe. In this third
case, the special prosecutor accused Mateo del Castillo, Jose Estrada and Julio
Ceribo and several others under assumed names or aliases of kidnapping for
ransom and this case was docketed as Crim. Case No. 213-G. This is now the case
under consideration of the Court in which the accused Jose Estrada was the only
accused tried by the Court.
The accused Jose Ceribo was discharged from this case to be utilized as witness for
the government.
The accused Mateo del Castillo has been reported dead.
The accused Romaguerra Doe @ Romaguerra was identified as Francisco Rabi and
Heling Doe @ Heling was identified as Angel Veran. They both pleaded guilty upon
their arraignment on February 1, 1960, as accessory and were sentenced
accordingly.
The accused Pete Doe @ Pete and William Doe @ William were identified as
Francisco Lisay and Quintin Magdaong. They also both pleaded guilty as accessory
and were sentenced accordingly.
The accused Carding Doe @ Carding is reported dead.
As to the other accused, Teddy Doe @ Teddy, Nato Doe @ Nato, Mike Doe @ Mike,
Inso Doe @ Inso, Essi Doe @ Essi, Kaloy Doe @ Kaloy, Loring Doe @ Loring, and
John Doe, they are still at large and have not yet been placed under arrest.
During the trial of this case No. 213-G the defense of Estrada asserted that the
accused Lt. Alcantara was already in the custody of the Philippine Constabulary and
was subpoenaed as witness for the defense but notwithstandingthe efforts of the
Court this accused has not been produced by the authorities. He is still charged in
Crim. Case No. 213-G but his case has not yet been set for hearing.
The foregoing statement of the genesis of Criminal Case No. 213-G explains why the decision
appealed from concerns only Jose Estrada (herein appellant).
Accused Jose Estrada was tried alone by the court below under the corresponding
information, alleging as follows:
That on or about the 27th day of February, 1956, in the municipality of Gumaca,
Province of Quezon, Philippines and within the jurisdiction of this Honorable Court,
the aforementioned Accused, together with (1) LT. ALCANTARA, (2) ROMY DOE @
Comdr ROMEO, (3) JOSE MALUBAY @ Comdr PEPE, (4) GALICANO MANAOG @
Comdr BULAKLAK, (6) DOMINADOR AMERICA @ LAGUIMAY, (7) ALFREDO REYES @
Comdr FRED, (8) EMILIANO BLASCO @ Comdr EMMY, (9) RODRIGO DOE Comdr
TONY, (10) CLODUALDO CAMACHO @ EFREN, (11) VICTORIANO DAYUNOT @
TORIO, (12) IRINEO CAPISONDA @ ERNING, (13) DOROTEO EDUNGAN @ DOROT,
(14) BUENAVENTURA MIEL @ TURA, (15) BENJAMIN DE JESUS @ AMIN, (16) BEN
RAMIREZ @ BEN, (17) PEDRO MARTINEZ @ PEDRO, (18) SANTIAGO NAPOLES @
NOMER, (19) PANFILO ROSALES @ FREDO @ BANAAG, (20) ANTONIO
CAMPANIERO @ NELSON DE ROSAS, (21) @ JAIME @ JIMMY @ JlMAY, (22) @
GELACIO @ ELIOSO, (23) @ LIWAYWAY, (24) @ BERNA, (25) @ TIMOTEO, (26) @
JUAN, (27) @ DE DUZMAN, (28) @ MENDOZA, (29) @ DE LEON, (30) @ TORRES,
already charged with Kidnapping in Criminal Case No. 164-G, under the same facts
herein charged, conspiring and confederating and mutually helping each other, did
then and there wilfully, unlawfully, and feloniously through force, threats and
intimidation, kidnap ELVIRA TAADA DE PRINCIPE and CARMEN NOCETO, take and
carry them away from their dwellings to an uninhabited far distant forest in the
mountain of Bondoc Peninsula for 18 days confinement under their custody and
control for the purpose of demanding ransom in the amount of FIFTY THOUSAND
PESOS (P50,000.00) Philippine currency, which the said Accused did in fact receive
on the 16th day of March 1956 in consideration of which amount said kidnapped
persons were released to the damage and prejudice of the said offended parties in
the said amount.
That the following aggravating circumstances are present in the commission of the
offense:
(1) Superior strength; (2) in band; (3) use of unlicensed firearms; (4) in an
uninhabited place; and (5) use of Army uniforms and other insignias for disguise.
Upon arraignment on November 27, 1956, accused Jose Estrada refused to make any plea to
the information against him; hence, the trial court entered for him a plea of "not guilty." His
petition for bail had been denied; and since then, Jose Estrada has remained in confinement.
Our own examination of the record revealed that the case of the People was established thru
the testimonies of 12 prosecution witnesses, namely: Elvira Taada de Principe and Carmen
Noceto, the kidnap victims; Reynaldo Principe, Elvira's husband; Marciano Principe,
Reynaldo's father; Petra Maego, Basilio Angulo, Beato Glinoga and Jesus Letargo who all
had something to do with the negotiations between the kidnappers and the family of the
victims, which led to their subsequent release of the kidnapped victims; Antonio Campaniero
and Julio Ceribo who were both discharged from the information to be utilized as state
witnesses; Gonzalo Mallare, as against whom the case was dismissed for insufficiency of
evidence; and Col. Francisco del Castillo, Provincial Commander of Quezon at the time the
information in this case was filed in court. Stripped of unessential details, the testimonies of
the principal witnesses may individually be summarized as follows:
TESTIMONY OF ELVIRA TAADA DE PRINCIPE:
Elvira Taada de Principe was inside her store on the ground floor of the house of her father-
in-law in Gumaca, Quezon, at about 4: 00 o'clock in the afternoon of February 27, 1956. She
was busy estimating her laundry bills. Three (3) men wearing uniforms similar to those worn
by soldiers in the army arrived and entered her store. One of them first inquired for the price
of a pack of "Chelsea" cigarettes, and then asked for one. As Elvira reached for the pack of
cigarettes, the other two suddenly grabbed her hands and pointed their pistols to her. They
pulled her out of the store and dragged her towards the bodega of her father-in-law,
Marciano Principe, and then on to the railroad track going to the direction of the elementary
school of the town. The two uniformed men were later substituted by two others in civilian
clothes who, after holding Elvira by the hand on each side, continued running with her
through the coconut plantations toward the mountains. There were gun fires that followed,
but the men continued running, taking Elvira Taada de Principe along with them. They told
her not to be afraid, as they were just making a "show". They stopped running, however,
when the firing ceased; and soon other persons came running towards them and joined their
group. One of them gave Elvira a pair of shoes and stockings. She put them on before they
continued their way, deeper into the mountain. The leader ordered two of his men to buy
bread for Elvira, but they were not able to buy any. Instead, she was given candy. Then they
continued walking all through the night stopping only at midday of the 28th of February
when they reached a sawmill site. From there, they continued walking again at dawn of the
following day until they came upon a copra kiln; and there the men prepared food.
Thereafter, they continued hiking once again until they reached the Huk lairs. There were five
huts at the place, all without walls. Elvira Taada de Principe and Carmen Noceto were kept
in the one located at the center for two weeks.
There were sixteen (16) men in the group that took Elvira and Carmen to the mountains,
including the three (3) who originally took Elvira out of her store in Gumaca. Elvira came to
know their names because they had nameplates on their breasts. The leader who earlier
asked for a pack of "Chelsea" cigarettes at her store was Lt. Alcantara, while those who
dragged her out of the store were Gomez and Mendoza. Not long after their arrival at the
place of the huts, the kidnappers divided into two groups. Lt. Alcantara soon left the place
with seven (7) men, leaving the eight (8) others to guard Elvira Taada de Principe and
Carmen Noceto. These men left behind were Ladres, Bayas, Gomez, Torres, De Leon, Villazar,
Delgado and Mendoza. Lt. Alcantara and Julio Ceribo came back to the place every now and
then, bringing food and letters from Elvira's husband.
After the lapse of about two weeks, Lt. Alcantara finally told Elvira that she would be
released. He showed her letters from her husband, her father and her brother. And on March
15, they left the huts at about 11:00 o'clock in the morning, with Carmen Noceto and others.
They moved to another place where they waited for Lt. Alcantara's other companions. In due
time, they arrived, and Elvira and Carmen Noceto were then taken to another place which
they reached after about an hour's walk. There they met Angulo, Letargo, Erea and Francia
who had come all the way from Gumaca and brought the P50,000.00 ransom money. Elvira
counted the money, then delivered the same to Lt. Alcantara. Thereafter, Elvira and Carmen
Noceto were released. They were not accompanied by anyone of the kidnappers. Lt.
Alcantara merely instructed them to follow the course of a river until they could see a house,
and there to find one who could guide them to Barrio Magisian, Lopez, Quezon. They
followed these instructions and reached the road in said barrio, where they were picked up
by a station wagon which took them back to Gumaca at about 5:00 o'clock in the afternoon
of March 16, 1956.
TESTIMONY OF CARMEN NOCETO:
In the afternoon of February 27, 1956, Carmen Noceto was at the house of her sister near
the elementary school in Gumaca. She saw two persons running on the railroad track, leading
Elvira Taada de Principe by the hands. Suddenly, a "soldier", also on the railroad track and
called her out of the house. Pointing his gun at her, the "soldier" pulled her by the hand and
dragged her along, telling her that she would just accompany Elvira Taada de Principe. She
could not refuse; she was greatly terrified. Her father who was then present was stunned for
the "soldier" also pointed his gun at him. She was taken, along with the group of Elvira
Taada de Principe, to the far away mountains she had never reached before. They walked
all night, then for two days more, resting only when they took their meals. They finally
stopped walking, only when they reached a place where there were five huts without walls.
She and Elvira Taada de Principe were kept in one of these huts together during the
eighteen days that they were held in captivity by their kidnappers. They were allowed to go
home only after the arrival of the P50,000.00 ransom money which was brought by Manoling
Letargo, Basilio Angulo and two others whom she did not know. Before their release, they
were guarded by several men, among them De Leon, Angelo Veran @ Villazar, Antonio
Campaniero @ Nelson and Julio Ceribo @ July.
Carmen Noceto did not know Elvira Taada de Principe before the kidnapping. She came to
know her only when they were kept together in one hut in the mountains. They became
intimate with one another later, and Elvira allowed her to read the letters sent to her by her
husband while she and Elvira were held captives.
TESTIMONY OF BEATO GLINOGA:
Beato Glinoga was asleep in his house in Barrio Villa Taada, Gumaca, on the night of March
4, 1956, when he was awakened by his barriomate, Leon Calvelo. The former was informed
by the latter that some soldiers wanted to see him. Glinoga obliged, and went with Calvelo to
the latter's place which was about half a kilometer away, to meet the soldiers referred to by
Calvelo. He did meet them at the place which was dark; so much so that altho he spoke with
one of the supposed "soldiers", Glinoga was not able to recognize any of them. Nevertheless,
the person with whom Glinoga spoke introduced himself as Lt. Alcantara, at the same time
identifying himself and his companions as the ones who had kidnapped Elvira Taada de
Principe. Lt. Alcantara then asked Glinoga if he could deliver a letter to the Principes in
Gumaca, to which Glinoga consented. Lt. Alcantara warned him not to reveal that he had
seen them to anybody. He also instructed Glinoga to see accused Jose Estrada first before
delivering the letter, so that he (Estrada) could accompany him to the house of the Principes,
and then to the mountains in Villa Taada where Lt. Alcantara would meet them later, for
according to the letter, Estrada knew what it is all about. Glinoga was warned further, that
should he fail to contact Estrada, he should not tell anybody about it, but should proceed
directly to the house of the Principes in Gumaca, and then meet him (Lt. Alcantara) later in
the mountains.
Pursuant to such instructions, Glinoga left Villa Taada early the following morning and
proceeded to the town of Gumaca, to deliver Lt. Alcantara's letter to the Principes. He tried
to locate Estrada when he reached the town, but he was not able to find him; so, Glinoga
went directly to the house of Marciano Principe and delivered the letter to the old man in the
presence of the other members of the family. Marciano Principe immediately prepared a
letter in answer to Lt. Alcantara's note. He then gave it to Basilio Angulo who was at the
house of the Principes at the time, requesting Angulo to go with Glinoga back to Villa Taada
and see Lt. Alcantara. Angulo agreed. He went with Glinoga to the mountains in Villa Taada.
They reached the Huk lairs at about 7:00 o'clock in the evening of that same day, and they
were met by Lt. Alcantara after Glinoga had signalled three times with his flashlight. Basilio
Angulo then had a conference with the Huk leader. Asked by one of Lt. Alcantara's men
where accused Estrada was, Glinoga gave the information that he was not able to find him in
town.
TESTIMONY OF ANTONIO CAMPANIERO @ NELSON DE ROSAS:
Antonio Campaniero joined the Hukbalahap organization on August 25, 1952, under the Huk
name @ Nelson. He served under various Huk Commanders in the field. From 1955 up to the
time of his surrender on July 18, 1956, he was under the command of Huk Comdr. Teddy
Corazon, head of the Organizers Brigade (OB), operating near the mountains of Gumaca,
Quezon.
Sometime during the first week of February, 1956, Comdr. Teddy ordered Nelson and
another Huk, @ Fredo, to contact the accused, Councilor Jose Estrada of Gumaca, and inform
the latter that Huk Lt. Alcantara (head of the "Tadtad Unit or G-Men") and Comdr. Teddy
Corazon wanted to meet him (Estrada) in Barrio Biga. Nelson and Fredo complied with the
order; Fredo talked with Estrada in Gumaca, as Nelson stood guard. Estrada showed up in
Barrio Biga, three days later, at about 2:00 o'clock in the afternoon. Aside from Lt. Alcantara
and accused Jose Estrada, there were other Huks present during the meeting, among them,
Comdr. Teddy, Comdr. Emy, @ Romy, @ Fredo, @ July, @ Sonia and @ Nelson. Estrada was
asked by Lt. Alcantara who the richest man in Gumaca was, and the former answered that
"he would suggest the Principe family" (ang maimumungkahi ko po ay ang pamilya Principe).
Asked by Lt. Alcantara if he was referring to Reynaldo Principe, Estrada answered that if
Reynaldo Principe were the one to be kidnapped, it would be difficult for the family to
ransom him for the reason that most of the properties of the Principes were in his name.
Instead, accused Estrada recommended his wife, Elvira Taada de Principe, who could easily
be ransomed. Lt. Alcantara agreed to the suggestion of Estrada saying, "if that is the case,
yes, and you will be informed when the kidnapping will take place," to which Estrada
answered: "All the time you can depend upon me." Estrada then left the place that same
afternoon at about 5:00 clock, after he and Lt. Alcantara had talked about politics.
Sometime thereafter, Comdr. Teddy informed Nelson that the latter, together with others in
their Unit, would be "borrowed" by Lt. Alcantara to supplement the men of the "Tadtad Unit"
and join them in the execution of the plan to kidnap Elvira Taada de Principe. And
thenceforth, Nelson began receiving orders directly from Lt. Alcantara.
In the afternoon of February 27, 1956, Lt. Alcantara and his men came down from Barrio Biga
and entered the town proper of Gumaca, Quezon. Alias Essi, @ Loring and @ Nelson stood
guard near the railroad station. After taking Elvira Taada de Principe, they fled and went
through the mountains for three days and three nights, with short stops to rest at some
points on the way. They hid Elvira Taada de Principe in Barrio Laguio between the
municipalities of Lopez, Gumaca and Macalelon. Carmen Noceto was also taken by them to
the mountains with Elvira that same day.
On July 18, 1956, @ Nelson surrendered to the authorities. He did not know then what the
penalty for kidnapping for ransom was. He was investigated in Camp Natividad on July 22.
Having just surrendered then, he was afraid to be implicated in the Principe kidnapping
therein. Later, he was investigated again in Lucena. He then decided to tell the truth and did
not mind anymore the consequences. He gave his statement (Exh. X) wherein he revealed his
participation in the Principe kidnapping case and the role played therein by accused Jose
Estrada, on September 5, 1956. Having known the truth from the said statement, both the
investigator and the prosecutor then told Nelson that he would be a witness against Estrada
after his discharge from the information. He was later arraigned on November 20, 1956.
In the month of January, 1957, Antonio Nieva, brother of then Chief of Police, Ricardo Nieva
of Pasay City, met @ Nelson near the house of Col. del Castillo, Provincial Commander of
Quezon. They had a sort of conference. Nieva promised Nelson to work out his case with
Malacaang, should he agree not to testify against Estrada in court. Nieva urged him to deny
the truth of his statement (Exh. X) when the trial comes, and to testify that he had executed
it only because he had been maltreated, rewarded and given promises. Nieva gave him
P20.00 on that occasion.
Nelson at first denied having written Exhibit 2 (a letter signed by Nelson addressed to
Estrada, on January 24, 1957), wherein Nelson appears to be telling Estrada that they were
then in a bad fix; that Col. Castillo had come to know that Congressman Roces of the CAFA
was coming to see them, and he believed that Estrada was the one who had written the
congressman, and then caused Nelson and his companions to make a "turn about;" that
because of that suspicion of Col. Castillo, they were no longer permitted to talk with any
visitors; that Nelson, Gregana and Pedro Masilungan Estrada's former adversaries in the
Barretto case have all agreed to make a "turnabout", and that the Fiscal had been
informed that they really did not know Estrada. Later, however, he admitted that he was the
one who wrote it. On January 25, 1957, Nelson sent Estrada another letter, Exhibit 3 (Nelson
appears to be urging Estrada to write and complain to the CAFA; to give them help so that
they may be able to deny the truth of their "statements" which the PC investigations had
forced them to sign; and to request Nieva to intercede in their behalf in Malacaang in order
to put an end to the doings of the Provincial Commander in Quezon). On January 27, 1957,
Nelson wrote another letter, Exhibit 10 (styled "to whom it may concern," Nelson appears to
be declaring here that he and his companions knew nothing about the kidnapping of Elvira
Principe, much less, the alleged conference with Estrada regarding the same; that they
signed their "statements" only because they have been threatened, the investigators telling
them that they would be prosecuted if they would not cooperate with the Government; that
they had been required to drink plenty of water; that they had been made to testify against
persons like Estrada, with the promise of a bright future and of money; and that Col. Castillo
was really mad at Nieva. Nelson appears to be requesting Antonio Nieva also for "cigarette
money" and for his letters to be returned to him). Nelson wrote another letter on the same
date, which he signed with the name of Pedro Masilungan. (This letter, Exh. 1, purports to
show that Pedro Masilungan had also been forced to sign his "statement" and to testify
against Estrada by Capt. Zita). Nelson explained that he wrote to Estrada because he had
been coerced by two insular prisoners who were allowed to enter his cell, warning him that
his life would be in danger, should he fail to do so. He wrote Exh. 3 only after the said
prisoners had talked to him and to Melchor Gregana and Julio Ceribo who were with him in
the same cell at the time.
A few days thereafter, probably on January 31, 1957, Nelson, along with Julio Ceribo, @
Sonia, Pedro Masilungan, Antonio Batanes and others, was taken by Col. Castillo before Col.
Yan at Camp Crame. He then affirmed the truth of the contents of his statements (Exh. X)
before the said official. He did the same when he was taken before General Cabal who
examined him on the said statement. He, likewise, affirmed the truth thereof before
President Ramon Magsaysay before whom he was seen in the office of Secretary Balao at
Camp Murphy. He did not mention the letters he had written to Estrada then, because the
contents of said letters were false and he was afraid to tell any lies before the highest
authority of the land. He stated in those letters that he did not know Estrada, because he
merely wanted to make Estrada believe that he would really make a "turn about". But the
same is false; it was only the idea of Antonio Nieva. Nieva had told them that Estrada was
ever willing to give them help, that is why Nelson and his companions agreed to mulct him.
Thus, in one of the said letters, Nelson had asked Estrada for "cigarettes money".
Nelson had been discharged from the information on March 20, 1957; but he was still under
PC custody because he had demanded such protection pending the termination of the case.
TESTIMONY OF JULIO CERIBO:
Julio Ceribo testified that he was a surrendered Huk; he joined the Hukbalahaps in 1946; he
served under various Huk Commanders in the field; in 1953, he was assigned as a member of
the unit headed by Lt. Alcantara with the old man Mateo del Castillo, the highest in
command; he knew about the kidnapping of Elvira Taada de Principe because he was with
Lt. Alcantara when they kidnapped her; but even before the actual kidnapping, he already
knew about it because there was a conference in Barrio Biga where it was agreed to kidnap
her because she was the one pointed to by Estrada; first, Lt. Alcantara approached Comdr.
Teddy Corazon, and then the latter ordered Huks Nelson and Fredo to contact Estrada in the
poblacion; three days after, Estrada came to Barrio Biga and conferred with Lt. Alcantara,
Comdr. Teddy Corazon, Comdr. Emy and others; Estrada was asked by Lt. Alcantara then as
to who was the richest in Gumaca, and Estrada suggested Elvira Taada de Principe because
she could easily be ransomed; Estrada explained that if it were her husband to be kidnapped,
it would be hard for the family to ransom him because the properties of the Principes were in
the name of Elvira's husband, Reynaldo Principe; Lt. Alcantara agreed, and about one week
after that conference, they came down to Gumaca and took Elvira; he stood guard in one of
the streets in the town during the kidnapping; one of his companions took along Carmen
Noceto on the way so that Elvira Taada de Principe would have a companion; it was about
5: 00 o'clock in the afternoon of February 27, 1956, when they kidnapped Elvira; there were
16 of them who executed the said kidnapping, among them, Lt. Alcantara, Nato, Mike,
Heling, Nelson, Emilia, Carding, Payat, Efren, another Efren and Del Moro; they took Elvira
and Carmen to the mountains between Macalelon and Lopez, Quezon; they hid them there
for two weeks in one of five huts they built; Elvira was later ransomed by her husband;
Basilio Angulo and three other persons brought the ransom money of P50,000.00, after
which both Elvira and Carmen Noceto were released; they kidnapped Elvira Taada de
Principe because they were in need of a large sum of money; on August 7, 1956, he was with
the Huks that had an encounter with the government forces in Usiwan Lucban, Quezon;
there he was wounded in the right foot, and soon, unable to withstand the deprivations
anymore, he decided to have a "new life"; he proposed to surrender to the Mayor of
Majayjay, Laguna, thru the intercession of Juan Cuates of Barrio Botocan; he had no chance
to talk with the Mayor, however, because when they came to get him, the BCT soldiers were
the ones who got hold of him first, and they took him directly to their headquarters in
Majayjay Laguna; from there, he was taken to Canlubang where he was questioned as to
when he first joined the Huks; then he was transferred to Lucena City where he was
investigated by Eddie Recuenco; after that he was brought to the Court of First Instance of
San Pablo where he was charged of rebellion; but later he was discharged from the
information thru the efforts of his brother who secured the services of Atty. Ribong; his
brother showed to him his discharge papers, but he was still kept in the stockade at Lucena
City with Nelson, he was not released; and when he was investigated there in connection
with the kidnapping of Elvira Taada de Principe, he had to admit; at first he wanted to deny
it, but when Nelson pointed to him, he was frightened and had to tell the truth that he
was with the group that kidnapped Elvira that is why he was included in the information in
this case; but when he was arraigned, he pleaded "not guilty", assisted by one Atty. Gonzales;
he pleaded "not guilty" to the charge because he knew that kidnapping is a very serious
crime, for even up in the mountains they had been told; that the penalty for kidnapping was
severe and "we had better be dead than caught alive;" but the truth is he was really with the
kidnappers who took Elvira Taada de Principe; he knew Atty. Franco, the latter introduced
himself to him and told him that he was his counsel; they first met in Lucena City, then for a
number of times later in Gumaca, Quezon where they talked about his case; he told him
(Atty. Franco) that he could not deny the circumstances because they were all true; they met
again after that in the stockade in Lucena when Atty. Franco brought some typewriter papers
which he was asked to sign; the papers (Exh. 16) was shown to him, but he would hardly read
it because it was held by Atty. Franco far from his face; they were in the kitchen of the
stockade then, and Atty. Franco told him to sign it at once because the soldiers might come;
he insisted that he should sign it because he was his lawyer, and it was for his benefit for
his acquittal; but he had no hand in the preparation of that document, and its contents are
not true; he met Atty. Franco again in Majayjay later when he was granted leave; Atty.
Franco instructed him to go to Manila because he would prepare an affidavit, but he did not
go there, he left Majayjay immediately even if he had not fully enjoyed his 19-day leave; he
later told Capt. Alejo (government prosecutor) that Atty. Franco had made him sign Exh. 16;
its contents, except for his age, are not true; for the truth is that he knew everything about
the kidnapping of Elvira Taada de Principe; the document was already prepared when it was
shown to him by Atty. Franco, and the latter compelled him to sign it; when he was at the
stockade in Lucena with Nelson, he knew that Nelson was writting letters, and that he
(Nelson) was sign their names on the letters, but Nelson never showed the letters to him; he
came to know the letters to accused Estrada only when the said letters were later
discovered; he knew Col. Yan, he was taken before him at Camp Crame; Col. Yan asked him
whether or not his declarations in his statement (Exh. H) were true, and he confirmed them;
he was next taken before Gen. Cabal, before whom he declared that he had executed Exh. H
voluntarily, i.e., that he was not maltreated by the PC; later he was taken before the late
President Magsaysay in the office of the Secretary Balao, and there, he also affirmed the
truth of his statement before the President.
TESTIMONY OF GONZALO MALLARE:
Gonzalo Mallare testified that he was a former Huk, he surrendered to the authorities on
March 20, 1957; he joined the Huks in Manila, as early as April, 1948; in December of that
year, he was apprehended by the PC, and was maltreated; they released him, later, however,
because the Communist Party had then not yet been declared illegal; but after that he went
up the mountains, and from the position of mere clerk in the Manila office of the Huks, he
rose to higher positions; he was again apprehended by the PC in 1949, and again he was
released in February, 1950; thereafter, he rejoined the Huks in the mountains; in 1955, he
was educational chairman of RECO 4 charged with the duty of indoctrinating the people
with the tenets of the HMB, which he learned from Dr. Jesus Lava with jurisdiction in the
province of Rizal, half of Laguna, and the whole province of Quezon; about May 1, 1954, as
he and his men were passing thru Barrio Labnig Gumaca, Quezon, he was introduced to
accused Estrada by Huk Comdr. Tony who was then operating in the Bondoc Peninsula;
Estrada told him then that he was a friend of the Huks and the civilians, and that he was
influential with the Army; Estrada told him further, that if he could be of help to him, he
would do it; remembering that he was in need of a typewriter and a mimeographing machine
then, he asked Estrada if he could help him procure them for him, and Estrada promised to
do so; in the afternoon of that same day, he gave P650.00 P500.00 coming from him, and
P150.00 coming from Comdr. Onoy to Comdr. Matta, for delivery to Estrada; he knew that
Estrada received the money for, soon, he received the typewriter and the mimeographing
machine, Comdr. Matta informing him then that Estrada had sent him (Matta) a letter stating
that the amount given was P43.00 short of the cost of the typewriter and the mimeographing
machine, aside from the expenses of the two persons who had brought them; this typewriter
and mimeographing machine he acquired thru Estrada's help, was delivered by him to the
26th BCT when he surrendered; he met Estrada in about a week before February 23, 1956, at
noon, in Barrio Biga, Gumaca, Quezon; he was with Comdr. Teddy then, in his way to contact
a certain teacher who had previously promised to help him buy some supplies; he failed to
contact the teacher, and as he approached Lt. Alcantara to bid him goodbye, he heard the
conversation between Lt. Alcantara and accused Estrada; Lt. Alcantara asked Estrada if Elvira
Taada de Principe was the richest woman in Gumaca who could be kidnapped, and Estrada
answered that she was; that was all that he heard; Lt. Alcantara then borrowed some of his
men and firearms; and when his men rejoined him later, they reported to him that they had
participated in the kidnapping; he recalled that he came from Barrio Malimatik, Lopez, when
he went to Barrio Biga, Gumaca; he was with Comdr. Emy; those present in that meeting in
Barrio Biga, Gumaca, Quezon were Estrada, Lt. Alcantara, Comdr. Teddy Corazon, Emy, Fredo
and others; on March 20, 1957, he surrendered the following day his affidavit was taken by
an investigator; it was a very long one, but he purposely did not make any mention about the
meeting in Biga, Gumaca, where he saw and heard the conversation during the meeting
between Estrada and Lt. Alcantara, because he did not want his name linked with the latter;
he wanted to avoid any mention about the kidnappings in the Bondoc Peninsula, because he
feared that he would be included in it; that is why, when he was taken before Secretary
Balao in Camp Murphy, he told him not to ask him about the kidnapping; but when he later
met Antonio Campaniero @ Nelson, Melchor Gregana @ Rony and Julio Ceribo @ July who
have knowledge of the secrets of these kidnappings, and the purchase of the typewriter and
the mimeographing machine thru Estrada, and after knowing that Nelson, Ceribo and Angel
Veran were already accused of the kidnapping, he decided to reveal the matter; and he
believed that if the government were to be convinced of his loyalty they would realize that
he had nothing to do with all the kidnappings in the Bondoc Peninsula; that is why, since his
surrender, he had been helping the Army, in its campaign for peace and order; he had
contacted his former companions in the Bondoc Peninsula so that they may return and live
peacefully; on November 27, 1957, about 92 of them surrendered.
Other witnesses testified for the prosecution, but their testimonies deal largely on how the
ransom money of P50,000.00 was finally agreed upon and delivered to Lt. Alcantara thru
couriers. Thru them, the letters of Lt. Alcantara to the Principes and vice versa (Exhibits A to
E) and the photograph of Lt. Alcantara (Exh. F) were identified. This picture and other
exhibits, where admitted as evidence for the prosecution.
For his defense, accused Jose Estrada denied his complicity in the commission of the
kidnapping of Elvira Taada de Principe in the afternoon of February 27, 1956. He swore that
he had never been to Barrio Biga, Gumaca, in the month of February, 1956, much less ever
conferred with any Lt. Alcantara for the alleged purpose of pointing to Elvira Taada de
Principe as the best kidnap victim in Gumaca. His testimony may be reduced as follows: he
knew Elvira Taada de Principe; her family was his neighbors, and his younger brother,
Fernando, was the godson of Elvira's father; he was elected councilor of Gumaca from 1948
to 1951; again he was elected councilor for the term 1956-1960; he was a recognized
guerrilla and a pensioner of U.S. Government; he belonged to the following civic
organizations: President, Gumaca Club 37; Worshipful Master of the Masons; Chairman, Boy
Scouts Organization; President, PTA District league; President (twice), Purok Castillo; Vice
President, Jaycees of Gumaca; Chairman, Civilian Affairs Organization; and Vice Chairman,
Red Cross Campaign in 1951 for Quezon Province; the barracks of the 8th BCT in Gumaca was
constructed through him; he was the moving spirit in the construction of Camp Natividad in
1948, which now houses the 38th PC Company; he joined the pacification campaign in the
towns of Quezon which brought about the surrender of several firearms; he exerted efforts
for the construction of the Army Officers Quarters of the 26th BCT in Calauag, Quezon; he is
an informant of the Philippine Army; as such informant, he had caused the arrest of several
persons; and he was commended by Col. Baltazar for his effort and cooperation with the
Army; he came to know prosecution witness Antonio Campaniero alias Nelson only in court,
and it is not true that he and Huk Fredo came to his house to deliver the message of Lt.
Alcantara; Nelson sent him letters during his confinement in the provincial jail of Quezon,
and he had sent them, to Congressman Roces of the CAFA; he did not know also Huk Comdr.
Teddy Corazon, for he came to know him only in court; Teddy Corazon told him in jail than
that it was not true that he had instructed Huk Nelson and Fredo to see him before; on
November 25, 1956, he met prosecution witness Julio Ceribo in jail, and the latter confessed
to him that he (Ceribo) did not know him (Estrada), and that Ceribo said he merely implicated
him because the PC had forced him to include him; detained prisoners Gutierrez and
Mangubat were present when Ceribo told him so; he likewise did not know Huk Gonzalo
Mallare (prosecution witness) before the trial, and it is not true that they met each other
before; there is no truth in Mallare's testimony that he (accused) purchased a typewriter and
a mimeographing machine for him; in fact, when he learned that the said typewriter and a
mimeographing chine was loaded in one of his trucks for delivery to the Huks, he informed
Captain Daza of the Army about it, only that Capt. Daza happened not to be there at the
time; there is also no truth in the testimony of Beato Glinoga; this prosecution witness, as a
matter of fact, begged his forgiveness after testifying against him, when they met in the
office of the Chief of Police of Gumaca; at the time, Col. Castillo came along, and finding
them together, threw out Beato Glinoga and then challenged him (Estrada) and his brother
to a fight; in fact, Beato Glinoga became his own witness after the relief of Col. Castillo as
provincial commander of Quezon; he was combat officer in the guerrilla forces; charges of
murder were filed against him after liberation, but he had been given the benefits of the
guerrilla amnesty; he was also accused in the Barretto kidnapping case, but his participation
there was only that he had contacted the kidnappers at the behest of the family of the
victims, for purposes of reducing the amount demanded by the Huks; on the day of the
kidnapping of Elvira Taada de Principe, he was at home; upon learning about it, he helped
the family in raising the ransom money, he was the largest copra dealer in Gumaca; his
customers owed him not less than P60,000.00; Elvira Taada de Principe's father-in-law,
Marciano Principe, was also one of the largest copra dealers in the town, but there were
other large copra dealers there; he knew, thru the newspapers, about the other kidnapping
cases in the Bondoc Peninsula the kidnapping of Ex-Mayor Yumul of Lopez, of Wee King of
Catanauan, of the Barrettos of Gumaca, of De Leon of Catanauan and of Elvira Taada de
Principe of Gumaca; he (Estrada) had not been the victim of kidnapping. Asked by the court
whether kidnappings disappeared in Gumaca after his arrest, accused Estrada refused to
answer.
ELISEO RAMOS, a detained prisoner for rebellion in the provincial jail of Lucena City, testified
that he knew prosecution witness Julio Ceribo; they were both Huks, and had occasion to
meet each other in the mountains; the last time he met Ceribo was on November 25, 1956,
when Ceribo was also confined in the provincial jail of Lucena; he asked him (Ceribo) then
why he was detained, and the latter answered that he was being used as witness against
accused Estrada; there were many detention prisoners at the time they talked to each other,
among them were Hilarion Gutierrez, Juanito Bautista, Cenon Entiosco and Pedro
Masilungan; during the course of their conversation, accused Estrada appeared, and he
asked Ceribo if he knew him; Ceribo then told Estrada that he did not know him; asked why
he was going to testify against Estrada when according to him he did not know the said
accused, Ceribo answered that the investigators had promised to discharge him from the
complaint, and that was the only way he (Ceribo) could save himself; and Ceribo told him:
"Ikaw ang tumayo sa aking kalagayan kulang lamang akoy patayin sa bugbog;" Ceribo further
confided to him that had he known such treatment would happen to him, "he would not
have surrendered."
Other witness PEDRO MANGUBAT, a co-accused of Estrada in the Barretto kidnapping
case; CENON ENTIOSCO, a prisoner serving sentence for robbery with rape and physical
injuries, and also for illegal possession of firearm; and HILARION GUTIERREZ, another
detention prisoner on charges of murder and robbery of which he was later convicted
testified that they were all in the provincial jail of Quezon when prosecution witness Julio
Ceribo was brought in there; that they all heard the conversation between Ramos and Ceribo
on the one hand, and between Ceribo and accused Estrada on the other hand, and that they
knew that Ceribo had told accused Estrada then that he (Ceribo) did not know Estrada.
Col. ESTANISLAO BALTAZAR testified that in 1952, he was commanding officer of the 26th
BCT, stationed in Calauag, Quezon; in one of the meetings he held in the town hall of
Gumaca, asking the people to cooperate with the Army in its campaign against the
dissidents, one of those present stood up and said, "How can you expect the people to help
the Armed Forces when they do not treat the barrio people well, they are taken to the
headquarters of the Army and there they are maltreated and compelled to admit crimes
which they did not commit?"; he knew later on that that man who had spoken was Councilor
Estrada; and soon he solicited his help; Estrada rendered valuable services to the Army then,
for he had extensive connections with the barrio people and he supplied valuable
information as to the movements of the Huks in the place; and in recognition of his services,
he gave Estrada a written commendation (Exh. 18). Col. Baltazar admitted tho that the Huks
were very active in the place during his stay there as BCT Commander, and that they (the
Huks) had an upper hand. He admitted further that the information supplied by Estrada was
always late, that was why they had no encounter with the dissidents. They almost caught up
with the Huks in a barrio when they went to the place to verify the report made by Estrada,
for the residents informed them that the Huks had left only about an hour before their
arrival.
Major FELIPE BRUAN declared that he was formerly stationed in Gumaca, and there he came
to know Estrada. The latter gave the PC then valuable information regarding the movements
of the Huks. In May, 1954, Estrada reported to them the presence of Huks near the boundary
of Lopez and Gumaca, and they went to the place to verify the report; unluckily, the Huks
had left the day before when they reached the barrio they had visited. He was in command
of the PC Detachment in Gumaca when Elvira Taada de Principe was kidnapped. Estrada did
not make any report then about the presence of the Huks in Gumaca before the incident. But
after the incident, he (Bruan) received news about it and he immediately pursued the
kidnappers. There was an encounter that ensued when they had contact with the Huks at
about 6:00 or 7:00 o'clock in the evening. There was firing for about 30 minutes, after which
they returned to the town because they soon lost contact with them.
Capt. JUAN DAZA testified that he was once stationed in Gumaca as commanding officer of
Love Company, 26th BCT; even before he was stationed at the place, he already had news
about the valuable services of Estrada to the Army; so, he sought Estrada's help when he
moved to the place; and as expected, Estrada rendered valuable services; one time, Estrada
informed him that there were three (3) amazons who were willing to surrender, and he soon
brought them Huk Amazons Liwayway, Leonor and Amy to his camp; these amazons
were all wives of Huk Commanders; in 1954, they were able to kill a Huk named Absalon at
Barrio Sastre thru the information supplied by Estrada; on May 2, 1954, they received
information from Estrada that the Huks had loaded some things on one of his trucks, for
delivery to Barrio Labnig; he sent men to verify the report and there was an encounter; they
did not catch up with the Huks, however; and according to Estrada, the things loaded on his
truck were a typewriter and a mimeographing machine.
The defense later placed the victim, Elvira Taada de Principe, on the witness stand. From
her testimony, the defense elicited the fact that during her confinement in the mountains, Lt.
Alcantara inquired from her, if she was the wife of Teodosio Principe. Upon her answer that
she was not the wife of Teodosio Lt. Alcantara then asked her if she was the wife of Reynaldo
Principe, to which question, she gave an affirmative answer.
QUIRINO RAVELA, one of the companions of Lt. Alcantara in the kidnapping of Elvira, and
who had been sentenced already in this case upon a plea of "guilty" testified that while in the
mountains, he overheard the conversation between Lt. Alcantara and Elvira Taada, wherein
Lt. Alcantara asked the victim if she was "Doctora". To this question, Elvira answered that she
was not the doctora; she cried then and said, "I am the poorest among the Principes."
MARCELO BARRAL, a resident of Gumaca who sells copra to the Principes, testified that he
was in the house of Marciano Principe when Elvira arrived from the mountains after her
release. He then heard Elvira talk to her sister Consuelo and exclaim in Tagalog: "Ako pala Ate
Consuelo ay pinagkamalan, at ang akala pala ay ako ang asawa ni Dosio."
In September, 1958 (after about one year and three months after he had testified for the
prosecution), BEATO GLINOGA was placed on the stand by the defense. He then made a
complete turn about regarding the previous instructions of Lt. Alcantara for him to see first
accused Estrada before delivering the ransom note to the Principes for the reason that
Estrada knew all about it. This time, he declared that he was not so instructed by Lt.
Alcantara; that the truth is, that he was directed by Lt. Alcantara to proceed to the house of
the Principes, without mention whatsoever of the name of Estrada; that he made mention of
and implicated Estrada, upon orders of the PC investigators that he should mention Estrada
in his affidavit, and which orders he followed, because they would not stop maltreating him;
that on his way to the house of the Principes, he met Federico Caparros and another man,
and together they boarded a truck going to the poblacion of Gumaca; that he even showed
to them the letter he was to deliver to the Principes when they asked him where he was
going; and that he alighted right in front of the house of Marciano Principe when the truck
reached the town.
FEDERICO CAPARROS and TOMAS SOMBILLA both testified and corroborated the statement
of Glinoga that they met Glinoga on March 5, 1956; that they asked him where he was going
then, and Glinoga told them that he was going to the poblacion, showing to them a letter
which he pulled out of his pocket; that Glinoga did not stop at any other place, but went
directly to the house of Marciano Principe.
ATTY. ANDRES FRANCO, upon permission of Julio Ceribo, declared that he was the counsel of
Julio Ceribo in this case, and another case for rebellion in Laguna; that he prepared Ceribo's
statement (Exh. 16) at the instance of Julio Ceribo who had supplied the facts contained in
the said statement; that he prepared the statement first and then took it to his place of
confinement, asking him to sign it only after he had read the statement and understood its
contents; and that Julio Ceribo swore to it before Notary Public Rodolfo Garduque whom he
(Franco) had requested to come along. (The trial court appears to have commented, after
examining Exh. 16, that the same was not necessary in the defense of Julio Ceribo in the
present case, considering that Julio Ceribo had already been discharged from the information
when Atty. Franco secured the said statement of Ceribo).
The testimony of Atty. Franco was substantially corroborated by Atty. Rodolfo Garduque who
declared that he ratified Ceribo's statement only after he was sure that Ceribo understood it;
and that there were witnesses (brought along by Atty. Franco) who witnessed the signing of
the document.
ANTONIO NIEVA testified that he was a former Army Officer stationed in Pitogo, Quezon;
Estrada was their informer when he was stationed there, and Estrada helped in the surrender
of many Huks; ha approached Col. Castillo regarding the case of Estrada because he believed
that Estrada was innocent; he met Col. Castillo several times regarding the matter, and he
told him that he was wrong in prosecuting accused Estrada; but Col. Castillo confided to him
that his career was at stake in this case, for he had been instructed to get the "big shots"
from the second district of Quezon; later, Col. Castillo also confided to him that he was
interested in monetary considerations which he itemized as follows: for Estrada's
involvement in the Barretto case, P20,000.00; in this case, P20,000.00; and for eight (8) other
murder cases, P2,000.00 each; Col. Castillo then told him that if he could give him P50,000.00
he would still be economizing by P16,000.00; he then immediately went to see the President
and asked for the relief of Col. Castillo as Provincial Commander of Quezon, and President
Magsaysay then gave him a note, addressed to Gen. Cabal; when he met Gen. Cabal,
however, accompanied by Gov. Santayana, Jardin and his (Antonio Nieva's) brother, then
Chief of Police of Pasay City, he received the same answer as Col. Castillo's from Gen. Cabal,
who told him further that "as long as he was Chief of the Philippine Constabulary, Col.
Castillo will not be touched in Quezon Province;" he never expected to hear from Gen. Cabal
the same words which Col. Castillo had confided to him, and in exasperation he exclaimed:
"it seems to me that I am not talking to the General;" in the note given by the President to
Gen. Cabal, the President told the General that the Nieva brothers knew more of the peace
and order conditions in Quezon, and should be left alone; he was told by the President to
report to him the following Monday, but unluckily, the President died on the Sunday before
their appointment; he recalled that he used to be in good terms with Col. Castillo before, but
he became indifferent to him when he (Castillo) failed to stop him from taking interest in the
Estrada case telling him that P20,000.00 was not enough; he insisted on his demand for
P50,000.00.
With the offer of various exhibits, including a copy of the decision of Court of First Instance of
Quezon in the Barretto case, wherein accused Estrada and all his co-accused were acquitted,
the defense rested its case. It appears that before the defense did so, they made an attempt
to put back prosecution witness Julio Ceribo on the witness stand in order that he could
explain why he allegedly had testified falsely against accused Estrada when he testified for
the prosecution in this case, but the court below did not allow the defense to put back the
witness. The trial appears to have been delayed also for a considerable time because the
defense had made attempts to produce Lt. Alcantara in court, in which attempt they failed.
Gen. Yan testified that a certain Pepe Alcantara working with the Army was still operating in
the field, and that his whereabouts was unknown.
In rebuttal, the prosecution placed on the witness stand Col. Francisco del Castillo, who
testified as follows: he was Provincial Commander of Quezon from May 2, 1956 to July 7,
1958; he was on a mission then the prosecution of all the kidnapping cases in the Bondoc
Peninsula, namely: the case of Wee King of Catanauan (1954); of Saturnino Barretto and his
children of Gumaca (1952); of Ex-Mayor Yumul of Lopez (1955); of Rosita de Leon of
Catanauan (1955); and of Elvira Taada Principe (this case, 1956); he had no personal grudge
against Estrada, for even before he came to Quezon as provincial commander, Estrada was
already accused in the kidnapping case of Saturnino Barretto and his children; Antonio Nieva
and many other persons came to him and asked that the case against Estrada be quashed,
but he refused; he turned down the immoral proposals of Antonio Nieva; he did not
prosecute him, however, on those immoral proposals because it was hard to prove, as there
were no witnesses; Nieva used to approach him during the time of his rest near his house;
later, he learned that Antonio Nieva had tampered with the witnesses for the prosecution;
so, he ordered his men to put Nieva "off limits" in his camp; Nieva complained to higher
authorities in Quezon City, that was why said higher authorities called him there to the PC
Headquarters; he then brought along the witnesses of the government against Estrada, and
they were investigated by the said higher authorities: these witness were the ones who
revealed the participation of Estrada in this case; and he never demanded P50,000.00 as
consideration for the quashing of the cases against Estrada.
After a careful evaluation of the evidence thus set forth, We find that the inculpatory facts
proven by the testimonies of witnesses for the prosecution to establish the guilt of accused
Jose Estrada are as follows: The Hukbalahaps in and around the mountains of the Bondoc
Peninsula were the friends of accused Jose Estrada. With and through his help, the chairman
of the educational committee of the HMB in the region, acquired a typewriter and a
mimeographing machine on May 1 or 2, 1954.
1
About the first week of February,
2
or about a
week before the actual kidnapping of Elvira Taada de Principe on February 27, 1956,
3
Huk
Lt. Pepe Alcantara met with other Huk Commanders in Barrio Biga, Gumaca, Quezon. Lt.
Alcantara gave some instructions to Comdr. Teddy Corazon then, and the latter ordered huks
@ Nelson and @ Fredo to contact councilor Estrada of Gumaca in the poblacion and to tell
him to see Lt. Alcantara in Barrio Biga.
4
Alias Nelson and @ Fredo were able to talk with
Estrada in the town, and three days later, Estrada met with Lt. Alcantara and his companions
in Barrio Biga.
5
During that meeting between them, Lt. Alcantara asked Estrada who (for
purposes of kidnapping) was the richest man in Gumaca, and Estrada answered in Tagalog,
"ang maimumungkahi ko sa inyo ay ang mga Principe." Lt. Alcantara inquired if it was
Reynaldo Principe, to which question Estrada answered "no" because "it would be difficult
for the family to ransom him for most of the properties were in his name." Lt. Alcantara then
asked, "whom can we kidnap?" Estrada suggested Elvira Taada Principe who "could easily
be ransomed." Lt. Alcantara agreed to the suggestion of Estrada saying: "if that is the case,
yes, let us kidnap Elvira Taada Principe,
6
it will be good for us to kidnap Elvira Taada
Principe."
7
The huk lieutenant told Estrada further: "you will be advised when the kidnapping
will take place;"
8
and Estrada answered: "all the time you can depend upon me."
9
In the
afternoon of February 27, 1956, Lt. Alcantara and his men came down from Barrio Biga to
Gumaca and kidnapped Elvira Taada Principe from the store on the ground floor of the
house of her father-in-law, Marciano Principe. They took her, together with Carmen Noceto
whom they picked up along the way, to the mountains near the boundaries of the towns of
Gumaca, Lopez and Macalelon. The Huks kept them there for about two weeks.
10
Thereafter,
Lt. Alcantara and some of his men went to Barrio Villa Taada, Gumaca, and contacted the
barrio lieutenant, Beato Glinoga, on the night of March 4, 1956. Identifying himself and his
companions, as the kidnappers of Elvira Taada Principe, Lt. Alcantara asked Beato Glinoga
to deliver his letter to the Principes. He instructed Glinoga to see Councilor Estrada first in
the town, so that the latter could accompany him to the house of the Principes, and then to
the mountains where he (Lt. Alcantara) would later meet them.
11
The chosen courier
followed the orders of the Huk Commander. He went to the poblacion of Gumaca the
following morning. He looked for Estrada, but he failed to contact him. So, he went directly
to the house of Marciano Principe and personally delivered the letter of Lt. Alcantara
entrusted to him.
12
Marciano Principe read the letter of the Huk Commander, and then
wrote an answer. He gave the same to Basilio Angulo, a compadre of his who was at the
house at the time, and requested him to join Beato Glinoga back to Lt. Alcantara in Barrio
Villa Taada. The courier and the emissary went together and met Lt. Alcantara that same
evening, in the mountains of Villa Taada?
13
Basilio Angulo and Lt. Alcantara then had a
conference. As they did, one of the huks present nudged Glinoga and inquired from him
where Estrada was, and Glinoga explained that he was not able to see him.
14

Basically, Estrada's defense is that the charge against him is but a pure concoction. Naturally,
he vehemently denied the truth of the above inculpatory facts proven by the prosecution, by
showing that he could not have been in Barrio Biga, Gumaca, nor conferred with Lt. Alcantara
at the place in February, 1956, because he never left the town of Gumaca during the said
month, but once when he went to Lucena City to renew the plates of his trucks. He sought
to destroy the credibility of the witnesses for the prosecution. He tried hard to convince the
trial court that a man of his stature and character an elective official of social prominence
and with substantial income, and commended by a ranking PC officer for "his exploits and
undertakings" as an "informer" of the Army could not have been in league with the Huks
in the mountains, and propose to them a neighbor and family friend as an object of the
heinous crime of kidnapping for ransom. His version, however, failed to convince the trial
court of his innocence of the crime imputed to him.
Accused Jose Estrada has appealed from the decision.
Appellant contends that the trial court had fallen into grave error in giving faith and credit to
the testemonies of huks Antonio Campaniero @ Nelson, Julio Ceribo @ July, and Gonzalo
Mallare @ Commander Romy. Attention is called to the fact that Nelson and Ceribo
former co-accused turned state witnesses had no choice but to testify against appellant in
consideration of the prosecution's promise to discharge them from the information and save
their skin, while the case as against witness Mallare was apparently dismissed, on motion of
the prosecution for alleged insufficiency of evidence, purposely to make him testify against
herein appellant. Under the circumstances, it is argued, these witnesses had no option but to
testify as the prosecution desired to secure the conviction of the appellant at all cost.
There should be no quarrel that Nelson and Ceribo must have testified as state witnesses in
consideration of the prosecution's promise to discharge them from the information in this
case; but that is not true with respect to witness Gonzalo Mallare, who appears to have
testified long after the case against him had been dismissed for insufficiency of evidence. But
these circumstances alone short of any showing that in consideration of the State's
leniency, these witnesses had been ordered and had agreed, not only to testify for the
prosecution but also to prevaricate in their espousal of the People's cause cannot detract
from their credibility. We have examined the testimonies of these witnesses with painstaking
solicitude, in our sincere desire to find the usual signs of wavering and wobbling in
declarations of lying witnesses, and We note that notwithstanding the fact that they have
been subjected to extraordinarily long and searching cross-examinations lasting several
days of trial by the brilliant lawyers for the defense, they never fell into serious
contradictions in their long declarations, which could reasonably be expected if they were
merely concocting lies. On the contrary, they withstood the ordeals of the lengthy cross-
examinations, explaining every point on which the counsels for the defense dwelled, in a
straight-forward and satisfactory way. The above contention of appellant, therefore, cannot
be accepted.
Much emphasis is placed by appellant upon the circumstance that during his confinement in
the provincial jail in Lucena City, prosecution witness Nelson (then confined in the PC
stockade) had written several letters addressed to him and his witness, Antonio Nieva,
altogether purporting to show that Nelson had been telling them that he and his companions
who had previously given statements implicating herein appellant in the commission of the
crime, before the government investigators, did not really know him (Estrada); and that they
implicated herein appellant in their said statements because they were maltreated by the
investigators into signing them. It is our considered opinion, however, after considering the
surrounding circumstances under which the letters adverted to were written, that their
contents are false. Nelson declared that Antonio Nieva talked with him before he wrote the
letters. Nieva explained to him that by testifying as state witness, he cannot be relieved of his
responsibility in the commission of the crime. Pointing out that he (Nelson) was not just a
witness but an accused (Nelson had not been discharged from the information at the time),
Nieva warned Nelson that he would also be punished like Estrada, and perhaps go to the
electric chair. With assurance of his close connection with Malacaang, Nieva promised
Nelson that he could do something about this case in Malacaang, and Estrada would be
willing to help them, provided they would not testify against the latter, otherwise, something
bad would happen to them. And with this idea brought out to him by Nieva, Nelson wrote a
letter (Exh. 2) to Estrada on January 24, 1957. The witness explained as follows:
Sinabi po sa akin ni Tony (Antonio Nieva) na huwag lamang kalabanin si Jose
Estrada ay siya ang bahalang humango sa aming mga testigo at kung kakalabanin
namin ay mapapasama kami, at binigyan po kami ng P20.00 suhol. At sinabi pa
niyang siya ang bahalang lumakad sa Malacaang at sa panahong kami ay
bibistahan gaya nito ay tanggihan namin at sabihin na kung kaya kami nakapagsabi
ng sa aming "statement" ay kami sinaktan at ginantingpalaan at pinangakuan.
15

Regarding his letter (Exh. 3), Nelson declared that he did not write it voluntarily. About
noontime of January 25, day after he had written the first letter, two prisoners wearing
yellow suits entered their cell in the stockade and asked who were the witnesses against
Estrada in this case; and the witnesses pointed to one another. One of the said prisoners
then told Nelson that if he still valued his life, he should prepare a letter to Estrada and make
him believe that they will not testify against him. Nelson explained that he believed this to be
a threat on their lives, for he thought that they might have been bribed to liquidate them. So,
he wrote the letter, in the presence of the said prisoners. With respect to a portion of
another letter (Exh. 10), dated January 27, 1957 (letter was styled "to whom it may
concern"), Nelson asked Estrada to give him some amount for cigarettes, and herein
appellant would capitalize on this apparent weakness of character of Nelson to destroy his
credibility. We are more inclined, however, to disregard this theory because We found that
the witness had frankly admitted that he did it because Antonio Nieva had assured them that
Estrada was willing to help them, and while confined in jail they (the witnesses) had agreed
to milk him. In fact, in another portion of the said letter, Nelson had asked Estrada to return
his letter; and Nelson explained in court later that he wanted to destroy the letter because if
Col. Castillo should come to know about the lies he had told therein the more they would
suffer (lalo kaming mahihirapan). Thus, he explained to the court below:
Ang ibig ko pong sabihin ay lalo kaming kukulungin sa loob ng "stockade" kung
malalaman kami'y sumulat kay Estrada at magpapanday ng kasinungalingan.
Yayamang kami na-stockade at kami halos incomunicado pa ay dahil nga sa
pangyayari ng kami kausapin ni Tony Nieva na gawin namin ang lahat ng paraan sa
pagsisinungaling, tanggihan namin ang mga "statement" na nilagdaan naming
kusangloob. Nangangahulugang babaligtad kami sa katotohanan tungo sa
kasinungalingan.
16

This jibes with the other evidence of the prosecution of record, and admitted by the witness
for the defense concerned, that Antonio Nieva, for having shown extraordinary interest in
this case, had thereafter been ordered "off limits" inside the PC camp. Finally, there is
another circumstance that adds a ring of truth to the testimony of Nelson. Col. Castillo
testified that Antonio Nieva had complained to higher authorities about him. This is admitted
by defense witness Nieva who declared that he went to see the late President Magsaysay
and General Cabal, and asked for the relief of Col. Castillo as provincial Commander of
Quezon province by reason of his actuations in this case. As a result of Nieva's Complaint,
Col. Castillo was called by higher authorities to Quezon City; and Col. Castillo brought along
the witnesses of the government before Col. Yan, General Cabal, and then to the late
President Magsaysay. Nelson testified that when he was taken to Col. Yan in Quezon City, the
said official asked him if the contents of his affidavit (Exh. X, wherein he had implicated
appellant Estrada) were true, and he affirmed the content thereof. The witness also declared
that he was cross-examined (binabaligtad ng tanong sa aming"statement") on his statement
by General Cabal, before whom he, likewise, affirmed the truth thereof, explaining to the
General that he was not threatened, harmed, or promised any reward when he voluntarily
affixed his signature on the document. Nelson made the same affirmation before President
Magsaysay on the same occasion. And when asked why he did not mention about the letters
(Exhibits 2, 3, 10, 11 & 12) now heavily relied upon by herein appellant, Nelson declared
outright in court that the contents of the said letters were not true, and he was afraid to tell
any falsehood to the highest authority of the land. Such explanations, considered in the light
of the surrounding circumstances, leave no iota of doubt that the witness had told the truth
in court.
Again herein appellant would capitalize upon the circumstances that both witnesses Ceribo
and Mallare have made apparently contradictory statements (affidavits) at different times
during their confinement. More specifically, it is pointed out that Mallare had disclaimed any
knowledge about the kidnapping in the Bondoc Peninsula in his statement (Exh. 17) which is
contrary to his later declaration in court that he heard the conversation between Lt.
Alcantara and herein appellant in Barrio Biga, Gumaca, regarding the kidnapping of Elvira
Taada Principe. This witness explained that he did not mention in exhibit 17 about the
participation of Estrada, because he did not want his name linked with the name of Lt.
Alcantara. At the time, he had not met Nelson, Ceribo and Gregana. He learned later,
however, that these persons were already accused in this case, and knowing that they knew
all the secrets of the kidnapping, he decided to reveal his knowledge thereof. At any rate, it
will be noted that Mallare's testimony regarding the involvement of appellant in this case
was merely cumulative in nature, a disregard of which would not affect at all the testimonies
of Nelson and Ceribo regarding the same point. And so with the alleged contradiction
between the statement of Ceribo before the PC on September 12, 1956, and his subsequent
affidavit prepared by his counsel on April 16, 1957. It is true that in the one (Exh. H) Ceribo
had inculpated Estrada, while in the other (Exh. 16) he had exonerated him; but Ceribo
explained that the contents of the latter are false. He declared that when the said document
was taken to him inside the PC stockade, it was already prepared. His counsel had
manifested to him that it was necessary for his acquittal, for which reason he signed it
without first reading its contents. We believe this explanation of the witness is sufficient, for
We find no reason for his counsel to prepare the latter affidavit when We consider the fact
that Ceribo had long been discharged from the information before it was prepared. And as
the trial court had aptly observed, the said affidavit was no longer necessary for the acquittal
of the witness. Add to this suspicious character of Exh. 16 the unshaken testimony of the
witness that its contents are false and the fact that he had affirmed the truth of his other
statement not only before the highest officers of the Army, but also before the Chief
Executive of the land, that the value of Exhibit 16 soon fades into nothingness.
But appellant charges that the trial court had abused its discretion when it denied the
defense the right to call back witness Ceribo who, it is claimed, was then ready to retract his
previous testimony for the prosecution, and then testify for the defense. This, it is pointed
out, was a denial of herein appellant's right to due process. We cannot agree. Section 14,
Rule 132 of the Rules of Court explicitly provides that the court may grant or withhold leave
to recall a witness, in its discretion, as the interests of justice may require; and We believe
that it was the better part of discretion and caution on the part of the trial court to have
denied as it did, the request of the defense to recall Ceribo. The record is loaded with
circumstances tending to show insidious attempts, too obvious to be overlooked, to tamper
with the witnesses for the prosecution. Under the circumstances, to allow such a procedure
would only encourage the perversion of truth and make a mockery of court proceedings.
A certain alleged statement attributed to Lt. Alcantara, is here also relied upon by appellant
to show that he (appellant) did not really suggest Elvira Taada Principe to be the kidnap
victim. It appears that soon after Elvira was taken to the mountains, she was asked by Lt.
Alcantara if she was the wife of Teodosio Principe. Elvira answered the question in the
negative. Thereafter, Lt. Alcantara asked her if she was the wife of Reynaldo Principe, and
this time she answered in the affirmative. We believe not much may be made out of this
circumstance, for it merely shows that Lt. Alcantara was not even sure if the woman they had
kidnapped was the wife of Teodosio or Reynaldo. It does not necessarily follow, however,
that herein appellant did not really make the suggestion to kidnap Elvira, in the light of
positive evidence that he did so. Neither may We sustain the charge that the prosecution in
this case was guilty of suppression of evidence, on account. alone of the circumstance that
the highest authorities of the Army had failed to produce Lt. Alcantara in court, as desired by
the defense. It is true that the prosecutor in this case was a captain in the Army, but it cannot
be denied that he had prosecuted this case not as such officer, but as a special prosecutor
under the Department of Justice; nor do We find any evidence of record that will justify an
inference that he had prevailed upon his superior officers in the Armed Forces not to obey
the orders of the trial court to produce Lt. Alcantara. Herein appellant claims that Lt.
Alcantara was already in the custody of the Army at the time. Col. Yan testified, however,
that the Lt. Alcantara in the service of the PC was at the time "in the field of operation and
his whereabouts was unknown." We see no reason then why the blame should be attributed
to the prosecution.
With the foregoing conclusions, We have to sustain the finding of the court below that herein
appellant is guilty of the crime imputed to him in this case. There could be no question that
appellant had knowledge of the criminal intention of Lt. Alcantara and his men to kidnap
somebody from Gumaca for ransom. It seems, however, that they had no definite person in
mind in the beginning. So much so, that they had to call for herein appellant, a councilor and
prominent citizen of the place, for his cooperation in the matter of selecting and pointing to
the prospective victim. Appellant suggested the Principes as the most suitable object of their
criminal design, pinpointing Elvira, wife of one of the Principes, as the ideal victim, with the
explanation that the Principe family would not meet with any difficulty in producing the
ransom money for her release. Lt. Alcantara and his men became convinced of appellant's
suggestion and reasoning, and then and there they decided to kidnap Elvira Taada Principe.
The Huk leader told appellant that he (appellant) would be informed accordingly when the
kidnapping was to be effected and the latter answered that Lt. Alcantara could count upon
him all the time. Appellant knew, and must have realized the frightful consequences of being
kidnapped by the Huks. He was not unaware of previous other kidnappings of prominent
citizens in the Bondoc Peninsula the kidnapping of Ex-Mayor Yumul of Lopez, of Wee King
of Catanauan, of the Barrettos of Gumaca, and of De Leon of Catanauan which had
invariably resulted in either the loss of honor of the victims, payment of huge amounts for
ransom by their families, or the horrible deaths of the victims. With that knowledge,
nevertheless, herein appellant agreed and conspired with Lt. Alcantara and his men in the
kidnapping of Elvira Taada Principe, who was not only detained by Lt. Alcantara and his men
in the mountains for eighteen (18) days, but was only released after the payment of a
P50,000.00 ransom. These circumstances, to the mind of the Court, altogether show that
appellant enjoyed such ascendancy of the mind over that of Lt. Alcantara to the extent that
his suggestion was the efficacious inducement which led the latter and his men to proceed
with the criminal design, thus making herein appellant a principal by inducement. However,
for failure to obtain the necessary number of votes to affirm the death sentence in the
decision appealed from, the penalty next lower should be imposed.
WHEREFORE, appellant is hereby rentented to reclusion perpetua. With this modification,
decision is affirmed by way of ordering appellant to pay the civil liability and the costs. On
equitable considerations, no costs in this instance.
Concepcion, C.J., Reyes J.B.L., Dizon, Makalintal, Sanchez, Castro, Fernando and Capistrano,
JJ., concur.
Zaldivar, J., is on leave.