MEYERS V. US Brief Fact Summary.

The defendant, Meyers (the defendant), convicted of three counts of suborning perjury regarding his testimony to a Senate subcommittee, challenged his conviction by arguing the trial court used evidence that should have been excluded by the best evidence rule. Synopsis of Rule of Law. In federal courts, the best evidence rule is limited to cases where the contents of a writing are to be proved; such writings are not the only evidence to be used in determining perjury. Facts. The defendant was convicted of suborning perjury when he testified before a Senate subcommittee investigating fraud and war profiteering. A key question in the defendants conviction was what exactly he and his co-defendant testified to during the subcommittee hearings. The defendant, through counsel, argued that the best evidence rule required that only the transcript of the subcommittee hearing be used to determine what was said during the hearing. Because the trial court used witness testimony and shorthand notes from a witness present at the hearing, the defendant argued his conviction should be overturned. Issue. Does the best evidence rule require official transcripts to be the only source of evidence as to what a person said during a trial or hearing? Held. No. In federal courts, the best evidence rule is limited to cases where the contents of a writing are to be proved. Perjurious statements may be proved by others who heard them, or by notes recorded in shorthand, or by other means and not exclusively by an official transcript. Dissent. The dissent in this case does not argue whether the best evidence rule was used properly. Rather, the dissent argues that (1) the evidence of the co-defendants perjury was presented too prejudicially to the jury and (2) that the proof at trial did not support the charges made in the underlying indictment. Discussion. Official transcripts are made of criminal proceedings and of sworn testimony before Congress, which is what the defendant and his co-defendant participated in. These transcripts were the basis for their later perjury convictions. The defendant argued that, because what he and his codefendant said during the Senate hearing was crucial to determining his guilt, the best evidence rule required only the official transcript could be used to determine what he and his co-defendant said. The appellate court ruled that other methods of recording what was said

AIR FRANCE vs. CARRASCOSO 18 SCRA 155 SANCHEZ; Sep 28, 1966 (athe) NATURE: Review on certiorari FACTS Carrascoso, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March 30, 1958. On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to plaintiff a 'first class' round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff traveled in 'first class', but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the 'first class' seat that he was occupying because, in the words of the witness Ernesto G. Cuento, there was a 'white man', who, the Manager alleged, had a 'better right to the seat. When asked to vacate his 'first class' seat, the plaintiff, as was to be expected, refused, and told defendant's Manager that his seat would be taken over his dead body; a commotion ensued; plaintiff reluctantly gave his 'first class' seat in the plane. After transferring to the tourist class seat, one flight attendant approached him and requested from him his ticket and said that she will note of his transfer. He refused because for him it is tantamount to accepting his transfer. Later, he went to the pantry that was next to him and the purser was there. He told him that he recorded the incident in his notebook. He read it and translated to him because it was recorded in French. "First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene." Carrascoso, during trial, included this incident in his testimony. ISSUES 1. WON Carrascoso was entitled to the first class seat he claims 2. WON the CA erred in finding that the purser madean entry in his notebooks reading "First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene" is predicated upon evidence which is incompetent, therefore not admissible (because the defendant was saying that the best evidence in this case is the entry and not the testimony) HELD 1. YES. The testimony of the defendants witnesses that the issuance of first class ticket was no guarantee that the passenger would have a first class ride, but such would depend upon the availability of first class seat cannot hold water. Oral evidence cannot prevail over written evidence, in this case, the first class tickets of the plaintiff without any reservation whatever and even marked with OK, meaning confirmed. 2. NO. The subject of inquiry is not the entry, but the ouster incident. Testimony of the entry does not come within the proscription of the best evidence rule. Such testimony is admissible. Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements then, in this environment, are admissible as part of the res gestae. For, they grow "out of the nervous excitement and mental and physical condition of the declarant". The utterance of the purser regarding his entry in the notebook was spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed. It thus escapes the operation of the hearsay rule. It forms part of the res gestae. Moreover, if it were really true that no such entry was made, the deposition of the purser could have cleared up the matter. DISPOSITION: Decision of CA affirmed.

EN BANC G.R. No. L-14257 July 31, 1959

Metro Drug Corporation, Cebu branch, and that the said cash journal sheets contained the sales made in the Cebu branch. After the cross-examination of this last witness, the prosecution again went back to the identification of the triplicate invoice, Exh. "D-1", already above referred to. It was at this stage that the judge below told the prosecution that the law applicable is Section 46, Rule 123 of the Rules of Court, which requires the production of the originals. In response to the above ruling, the special prosecutor claimed that the evidence of the prosecution would not be able to secure the production of the originals on account of their loss. In view of the above circumstances, the prosecution announced its intention to file a petition for certiorari against the ruling of the court below to which the court below to which the court below agreed. Hence this petition. It is alleged that the invoice sought to be introduced, which were produced by the use of carbon sheets, and which thereby produced a facsimile of the originals, including the figures and the signatures on the originals, are regarded as duplicate originals and may introduced as such, even without accounting for the non-production of the originals. The decision of the question is far from difficult. The admissibly of duplicates or triplicates has long been a settled question and we need not elaborate on the reasons for the rule. This matter has received consideration from the foremost commentator on the Rules of Court thus: "When carbon sheets are inserted between two or more sheets of writing paper so that the writing of a contract upon the outside sheet, including the signature of the party to be charged thereby, produces 2facsimile upon the sheets beneath, such signature being thus reproduced by the same stroke of the pen which made the surface or exposed impression, all of the sheets so written on are regarded as duplicate originals and either of them may be introduced in evidence as such without accounting for the nonproduction of the others." (Moran, 1952 ed., p. 444.) It has also been in favor of the petitioner by US in the case of People vs. Quinones, 44 Off. Gaz., No. 5, 1520, 1525, thus: It is argued in the second assignment of error that the confession Exhibit B is not admissible because it is merely a carbon copy. The said confession Exhibit B, being a carbon copy of the original and bearing as it does the signature of the appellant, is admissible in evidence and possess all the probative value of the original, and the same does not require an accounting for the non-production of the original. (Sec 47, Rule 123, Rules of Court). Two principal authors on the law on evidence have sustained the theory of the admissibility of duplicate originals, as follows: SEC. 386. . . . the best evidence rule is that rule which requires the highest grade of evidence obtainable to prove a disputed fact. p. 616. A "duplicate sales slip" (People vs. Stone, 349 III. 52, 181 N. E. 648) has been held to be primary evidence, p. 616. SEC. 420. Duplicate originals. Where letters are produced by mechanical means and, concurrently with the original, duplicate are produced, as by placing carbon paper and writing on the exposed surface at the same time, all are duplicate originals, and any one of them may introduced in evidence without accounting for the nonproduction of the other. Citing International Harvester Co. vs. Elfstrom, 101 Minn. 263, 112 N. W.

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. BIENVENIDO A. TAN as Judge of the Court of First Instance of Manila. Br. XIII, PACITA MADRIGAL-GONZALES, ANGELITA CENTENO, JULIA CARPIO, CALIXTO HERMOSA, and CRISPULA R. PAGARAN aliasPULA, respondents. Assistant Fiscal Apolinar Tolentino, Prosecutors Norberto J. Quisumbing and Antonio Villegas for petitioner. Gonzalo W. Gonzales and Bausa, Ampil and Suarez for respondent Pacita M. Gonzales. Estanislao A. Fernandez for the other respondents. LABRADOR, J.: In Criminal Case No. 36885 of the Court of First Instance of Manila, respondents Pacita Madrigal-Gonzales and others charged with the crime of falsification of the public documents, in their capacities as public officials and employees, by having made it appear that certain relief supplies and/or merchandise were purchased by Pacita Madrigal-Gonzales for distribution to calamity indigents or sufferers, in such quantities and at such prices and from such business establishments or persons as are made to appear in the said public documents, when in fact and in truth, no such distributions of such relief and supplies as valued and supposedly purchased by said Pacita Madrigal Gonzales in the public and official documents had ever been made. In order to prove the charge of falsification, the prosecution presented to a witness a booklet of receipts, which was marked Exh. "D", containing value invoices numbered 101301 to 101400 of the Metro Drug Corporation, Magallanes corner Jakosalem, Cebu City. The booklet contained the triplicate copies, and according to said witness the original invoices were sent to Manila office of the company, the duplicates to the customers, so that the triplicate copies remained in the booklet. Witness further explained that in preparing receipts for sales, two carbons were used between the three sheets, the original, the duplicate and triplicate so that the duplicates and the triplicates were filed out by the use of the carbons in the course of the preparation and signing of the originals. The witness giving the testimony was the salesman who issued a triplicates marked as Exh. "D-1". As the witness was explaining the figures or words appearing on the triplicates, Hon. Bienvenido M. Tan, then presiding in the court below, interrupted the proceeding holding that the triplicates are not admissible unless it is first proven that the originals were lost and can not be produced. Said the court: Triplicates are evidence when it is proven first that the original is lost cannot be produced. But as the witness has alleged that the original is in the Manila Office, why not produce the original? Another witness, accountant of the Metro Drug Corporation in Manila, was also called by the prosecution to testify. He declared that sales in the provinces were reported to the Manila office of the Metro Drug Corporation, and that the originals of the sales invoices are transmitted to the main office in support of cash journal sheets, but that the original practice of keeping the original white copies no longer prevails as the originals are given to the customers, while only the duplicate or pink copies are submitted to the central office in Manila. Testifying on certain cash journal sheets, Exhs. "A", "A-1" to "A-10" he further declared that he received these from the

252. See also 12 L.R.A.(N.S.) 343, People of Hauke, 335 II, 217, 167 N. E. 1; State vs. Keife, 165 La. 47, 115 So. 363; Taylor vs. Com. 117 Va. 909, 85 S.E. 499. (Wharton's Criminal Evidence, Vol. I, p. 661). SEC. 100. Carbon copies, however, when made at the same time and on the same machine as the original, are duplicate originals, and these have been held to be as much primary evidence as the originals. Citings U.S. vs. Manton, 107 Fed. (2d) 834, denied 309 U. S. 664, 84 L. ed. 1012; O'Shea vs. U.S. 93 F. (2d) 169; Leonard vs. State, 36 Ala. App. 397, 58 So. (2d) 138; State vs. Lee, 173 La. 770, 138 So. 662; Newman vs. State 65 Ga. App. 288, 16 S. E. (2d) 87. (Underhill's Criminal Evidence, 5th ed., Vol. I, p. 168.) We find that the ruling of the court below to the effect that the triplicates formed by the used of carbon papers are not admissible in evidence, without accounting first for the loss of the originals is incorrect and must be reversed. The court below is hereby ordered to proceed in the trial of the case in accordance with this ruling. No cost. So ordered.

SEILER V. LUCASFILM

Finally, the court concluded: Our holding is also supported by the policy served by the best evidence rule in protecting against faulty memory. [Plaintiff-Appellant]s] reconstructions were made four to seven years after the alleged originals; his memory as to specifications and dimensions may have dimmed significantly. Furthermore, reconstructions made after the release of the Empire Strikes Back may be tainted, even if unintentionally, by exposure to the movie. Our holding guards against these problems . . . In the instant case, the condition of fact which [Plaintiff-Appellant] needed to prove was that the originals were not lost or destroyed in bad faith. Had he been able to prove this, his reconstructions would have been admissible and then their accuracy would have been a question for the jury. In sum, since admissibility of the reconstructions was dependent upon a finding that the originals were not lost or destroyed in bad faith, the trial judge properly held the hearing to determine their admissibility.

Brief Fact Summary. Lee Seiler (Plaintiff-Appellant) sued Lucasfilm (Defendant-Appellee), a film company that produced the movie The Empire Strikes Back, claiming that certain creatures that appeared in the movie impermissibly infringed on a copyright of Plaintiff-Appellants. At trial, the lower court applied the best evidence rule of Federal Rule of Evidence 1004(1), and found that Plaintiff-Appellant had lost or destroyed the originals in bad faith, and denied admissibility of any secondary evidence. As a result, summary judgment was awarded in favor of Defendant-Appellee, and Plaintiff-Appellant appeals that decision here. Synopsis of Rule of Law. When a plaintiff claims copyright infringement of his works but cannot produce original evidence of his works, then the plaintiff must show that the originals were not destroyed in bad faith under the best evidence rule of Federal Rule of Evidence 1004(1); if the plaintiff cannot make such showing, then any secondary evidence of his works is inadmissible. Facts. Plaintiff-Appellant claimed that certain creatures depicted in Defendant-Appellees file The Empire Strikes Back, namely the characters named Imperial Walkers, were an infringement on Plaintiff-Appellants own copyright. Plaintiff-Appellant held a copyright on creatures called Garthian Striders, which he obtained from the U.S. Copyright Office in 1981. The film appeared in 1980. Plaintiff-Appellant deposited reconstructions of the originals with the U.S. Copyright Office, claiming the reconstructions were of originals that he had created in 1976 and 1977. In an evidentiary hearing that lasted seven days, the court found that Plaintiff-Appellant had destroyed the originals in bad faith under the best evidence rule of Federal Rule of Evidence 1004(1). Specifically, the court found that Plaintiff-Appellant testified falsely, purposefully destroyed or withheld in bad faith the originals, and fabricated and misrepresented the nature of his reconstructions. Following the hearing, the court granted summary judgment in favor of Defendant-Appellee. Issue. Did the lower court properly exclude the secondary evidence of Plaintiff-Appellants works and therefore properly grant summary judgment in favor of Defendant-Appellee? Held. Yes; under the best evidence rule of Federal Rule of Evidence 1004(1), the secondary evidence was inadmissible, as Plaintiff-Appellant had not shown that the originals were not lost or destroyed in bad faith; accordingly, the grant of summary judgment was proper. Discussion. The court began its analysis by pointing out that, *t+here can be no proof of substantial similarity and thus of copyright infringement unless [Plaintiff-Appellant's] works are juxtaposed with [Defendant-Appellee's] and their contents compared. Since the contents are material and must be proved, [Plaintiff-Appellant] must either produce the original or show that it is unavailable through no fault of his own . . . *which+ he could not do. The court went on to explain that: The dangers of fraud in this situation are clear. The rule would ensure that proof of the infringement claim consists of the works alleged to be infringed. Otherwise, reconstructions which might have no resemblance to the purported original would suffice as proof for infringement of the original. Furthermore, application of the rule here defers to the rules special concern for the contents of writings. [Plaintiff-Appellant's] claim depends on the content of the originals, and the rule would exclude reconstituted proof of the originals content. Under the circumstances here, no reconstruction can substitute for the original.

PEOPLE v. TANDOY GR 80505; December 4, 1990; Cruz (Ina)

The best evidence rule applies only when the contents of the document are the subject of inquiry. Where the issue is only as to whether or not such document was actually executed, or exists, or in the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. (Cf. Moran, op. cit., pp. 76-77; 4 Martin, op. cit., p. 78.) Since the aforesaid marked money was presented by the prosecution solely for the purpose of establishing its existence and not its contents, other substitutionary evidence, like a xerox copy thereof, is therefore admissible without the need of accounting for the original. Moreover, the presentation at the trial of the "buy-bust money" was not indispensable to the conviction of the accused-appellant because the sale of the marijuana had been adequately proved by the testimony of the police officers. So long as the marijuana actually sold by the accused-appellant had been submitted as an exhibit, the failure to produce the marked money itself would not constitute a fatal omission.

FACTS An information against Tandoy was filed with the RTC. It charged him with selling 10 pieces of dried marijuana, a prohibited drug, for P20. He was convicted. He appealed.

Prosecutions evidence: Police officers conducted a buy-bust operation along Solchuaga St., Bgy Singkamas, Makati. One officer posed as a buyer and waited for a pusher near a store. Tandoy approached him and right away asked him if wanted to iskor. The officer paid a P10 bill and two P5 bills (marked money) for two rolls of marijuana. Then the other officers arrested Tandoy. They made a body search and found 8 more rolls. They brought him to the police station to be investigated. Tandoy remained silent after being read his rights. This was narrated by 3 police officers. Microscopic, chemical and chromatographic examination of the confiscated marijuana was positive for marijuana. The marijuana was offered as exhibit.

Defendants story: He was playing cara y cruz with 15 other people along Solchuaga St., when somebody suddenly said that the police were making arrests. The people grabbed the bet money and scattered. He was arrested and the money they found on him was from the game. He and a fellow player were taken to the police station and mauled to give up the other pushers.

The trial court believed the police officers story over the defendants. Applying the presumption that they had performed their duties in a regular manner, it rejected Tandoy's uncorroborated allegation that he had been manhandled and framed.

ISSUE WON the admission of only the Xerox copy of the P10 bill was erroneous, based on best evidence rule.

RULING NO. Apparently, appellant erroneously thinks that said marked money is an ordinary document falling under Sec. 2, Rule 130 of the Revised Rules of Court which excludes the introduction of secondary evidence except in the five (5) instances mentioned therein.

US V GREGORIO & BALISTOY G.R. No. L-5791 TORRES; December 17, 1910 (rach) NATURE Appeals were interposed by the defendants Bernardo Gregorio and Eustaquio Balistoy from the judgment rendered in the two causes prosecuted which were consolidated FACTS - This case concerns the falsity of a document alleged to have been written on a date prior to the one when it actually was prepared, which instrument simulates the sale of a parcel of land by its owner to a third party, with the intent to defraud the creditor, who, through proper judicial process, solicited and obtained the attachment and sale of the said property in order, with the proceeds of such sale, to recover the amount which the owner of the land owed him. - Prior case: In a suit instituted by Pedro Salazar, as a creditor, against Eustaquio Balistoy, in the justice of the peace court of Libog, for the payment of a certain sum of money, judgment was rendered wherein the debtor was sentenced to pay to the plaintiff P275.92. - For the execution of the said judgment, two rural properties belonging to the debtor were attached. May 27, 1908 was set as the date for the sale and adjudication of the said attached properties. A few days before such date, Bernardo Gregorio requested the deputy sheriff to exclude the said realty from the attachment, alleging that he was the owner of the land situated in Tambogon, one of the properties levied upon, for the reason that he had acquired it by purchase from the judgment debtor, Balistoy, in 1905, prior to the filing of the complaint . - By reason of this claim and petition, the judgment creditor, Salazar, had to give a bond, in view of which the sheriff proceeded with the sale of the said property, and of another, also attached for the sum of P300, and both were adjudicated to the judgment creditor. - In order that the claim of intervention presented to the sheriff might prosper, Bernardo Gregorio attached thereto the document Exhibit D, at the end of which and among other particulars appears the memorandum dated in Libog as of February 22, 1905, and signed by Eustaquio Balistoy, Lorenzo Gregorio, and Cirilo Valla, and in which Balistoy states that he bought the land referred to in the said document from Luis Balistoy and sold it to Bernardo Gregorio for P300, wherefore he signed as such vendor. - Current charge: Balistoy, with intent to injure his creditor, Pedro Salazar, and for the purpose of avoiding the attachment and sale of one of the properties belonging to him , to secure the payment of the judgment obtained by his creditor in the aforementioned suit, did, with disregard of the truth in the narration of the facts, execute or write the said memorandum whereby, on February 25, 1905, he made or simulated a conveyance of one of the attached properties in favor of the said Bernardo Gregorio, according to the aforesaid copy, when in fact the said memorandum was written in April, 1908. - The court pronounced both of them guilty of falsification of a private document. Defendants appealed. ISSUE WON the defendants were guilty of the crime of falsification of a private document HELD NO Ratio Through the lack of the original document containing the memorandum alleged to be false, it is improper to hold, with only a copy of the said original in view, that the crime prosecuted was committed; and although, judging from the testimony of the witnesses who were examined in the two consolidated causes, there is reason to entertain much doubt as to the defendants' innocence, yet, withal, this case does not furnish decisive and conclusive proof of their respective guilt as coprincipals of the crime charged. Defendants in a criminal cause are always presumed to be innocent until their guilt be fully proven, and, in case of reasonable doubt and when their guilt is not satisfactorily shown, they are entitled to a judgment of acquittal. - In criminal proceedings for the falsification of a document, it is indispensable that the judges and courts have before them the document alleged to have been simulated, counterfeited, or falsified , in order that they may find, pursuant to the evidence produced in the cause, whether or not the crime of falsification was committed, and also, at the same time, to enable them to determine the degree of each defendant's liability in the falsification under prosecution.

Reasoning In the charge filed in this case against the vendor and the vendee of the land in question, it is stated that these parties, the defendants, simulated the said memorandum of sale or conveyance of the land with the intent to injure the creditor, Pedro Salazar. - But as the original document, setting forth the said memorandum, was not presented, but merely a copy thereof, and furthermore, as it could not be ascertained who had the original of the document containing the memorandum in question, nor the exact date when the latter was written. - The said memorandum, presumed to be simulated and false, was not literally compared by the sheriff who testified that he had seen its original for but a few moments, nor by any officer authorized by law to certify to documents and proceedings such as are recorded in notarial instruments, nor even by two witnesses who might afterwards have been able to testify before the court that the copy exhibited was in exact agreement with its original. - Therefore, on account of these deficiencies, doubt arises as to whether the original of the document, Exhibit D, really existed at all, and whether the memorandum at the foot of the said exhibit is an exact copy of that alleged to have been written at the end of the said original document. Disposition For the foregoing reasons, it is proper, in our opinion, with a reversal of the judgment appealed from, to acquit, and we hereby do acquit Eustaquio Balistoy and Bernardo Gregorio.

PROVINCIAL FISCAL OF PAMPANGA V REYES G.R. No. 35366 VILLAMOR; August 5, 1931 (apple) NATURE Petition for the issuance of a writ of mandamus FACTS -The provincial fiscal of Pampanga filed two informations for libel against Andres Guevarra, alleging that he caused the publication in Ing Magumasid ( weekly paper in Pampango dialect), a squib in verse, intended to impeach the honesty, integrity, and reputation of Clemente Dayrit and Mariano Nepomuceno. -The fiscal attempted to present as evidence Exhibits A, B, C, and D, which are copies of the Ing Magumasid containing the libelous article with the innuendo, another article in the vernacular published in the same weekly, and its translation into Spanish. -Counsel for the defendant objected to this evidence, which objection was sustained by the court. Petitioner's Contention -The exhibits in question are the best evidence of the libel, the subject matter of the information, and should therefore be admitted Respondent's Argument Inasmuch as the libelous articles were not quoted in the information (what was quoted was not the actual article but its Spanish translation), said evidence cannot be admitted without amending the information. ISSUE [Link] an information charging a libel published in an unofficial language, without including a copy of the libelous article, but only a translation into Spanish is valid 2. WON a writ of mandamus to compel the respondent judge to admit Exhibits A, B, C, and D should issue HELD 1. Yes Gen rule: The complaint or information for libel must set out the particular defamatory words as published, and a statement of their substance and effect is insufficient Exception: If the libelous article had been published in an unofficial language, as in this case, it is sufficient to insert a Spanish or English translation in the information. [Link]. -The general rules regarding the admissibility of evidence are applicable to cases of libel or slander. The evidence must be relevant, and not hearsay. -This being so, the rule of procedure which requires the production of the best evidence, is applicable to the present case. -Certainly, the copies of the weekly where the libelous article was published, and its translation, constitute the best evidence of the libel charged. The newspaper itself is the best evidence of an article published in it. -The respondent judge undoubtedly has discretion to admit or reject the evidence offered by the fiscal; but in the instant case his refusal to admit such evidence amounts to an abuse of that discretion, which may be controlled by this court by means of mandamus proceedings.

Disposition Petition granted

VDA. DE CORPUS v. BRABANGCO (1963) Facts: Tiburcia Brabangco is the declared owner of two parcels of land at Bugang, Alimodia, Iloilo, which the surviving widow and children of German Corpus alleged were sold by the former to Corpus in 1925 for P450, of which P300 was paid right upon the execution of the deed of sale in due form, as witnessed by Pablo and Bonifacio Villareal and acknowledged by Tiburcia before the Notary Public, Jose Tirador. The balance was also alleged to have been paid by Corpus to Tiburcia, as evidenced by a receipt. Corpus heirs claim that Corpus had been in possession of said lands from 1925 until his death. Six months after Corpus death, however, the defendants, with the aid and protection of policemen, entered the property, cut down and carried away 1,000 bamboos as well as 2 and sacks of corn. Tiburcia denied having sold the land, alleging that she simply accommodated and allowed the Corpuses to build their evacuation cottage when Japanese forces occupied the Philippines. Corpus heirs could not produce the deed of sale, however, which had allegedly been lost during the war. The trial court ruled in favor of the heirs and upheld the sale. Issue: Were the heirs of Corpus able to establish the contents of the deed of sale despite the absence of the original document? Held: Yes. As the heirs alleged, the original deed of sale signed by Tiburcia was lost during the war. Corpus heirs made efforts to trace the whereabouts of Notary Public Jose Tirador to get a copy of the deed, but the latters children said that their parents were already dead and that their house in chich their father had kept his documents had burned down. The existence of the deed, however, was convincingly proven not only by the testimony of Corpus widow, and by the environmental facts disclosed by the evidence, but also by the disinterested testimony of Pablo Ableza, a municipal counselor who served as one of the witnesses in the execution of the sale. After proper proof of the due execution and delivery of the instrument, and its loss or destruction, oral evidence may be given of its contents by any person who signed the document or read it. It is not necessary that the witness should be able to testify with verbal accuracy as to the contents of a lost instrument; it is sufficient that the contents are stated in substance. Witnesses cannot be expected to recite the content word for word. It is enough if intelligent witnesses have read the paper and can state substantially its contents and import with reasonable accuracy.

G.R. No. L-10824 December 24, 1915 E. MICHAEL & CO., INC., plaintiff-appellant, vs. ADRIANO ENRIQUEZ, defendant-appellee. Sepulveda, Pelaez and Espina for appellant. No appearance for appellee.

MORELAND, J.: This is an appeal from a judgment of the Court of First Instance of Cebu dismissing the action after trial on the ground that the plaintiff did not prove facts sufficient to constitute a cause of action. We are of the opinion that the judgment must be reversed and a new trial ordered. itc-a1f The action is based on a sale with a right to repurchase made by Adriano Enriquez in favor of E. Michael and E. Michael & Co., sociedad en comandita, of which appellant claims to be the successor, by reason of an instrument, duly executed and delivered by said companies to appellant, transferring property, business and assets of every kind, including the land which is the subject of this litigation. It is alleged in the complaint that the time to repurchase having expired, the title to the property became absolute in appellant and that it is accordingly the owner of the land described in said instruments. On the trial appellant sought to prove the execution and delivery of the conveyance transferring to it the land described in the sale with right to repurchase. The trial court prevented appellant from the proving the fact. Appellant also attempted to prove the fact that the instrument so executed and delivered was lost, it being his purpose to lay the basis for the introduction of secondary evidence as to its contents. The trial court also prevented appellant from proving that fact. While the efforts of appellant's counsel to prove the execution and delivery were at times rather informal and inartificial and objections to such questions were properly sustained, at others the questions put for the purpose of proving those facts were well framed and answer should have been allowed to them; but, even in such cases, the trial court also sustained objections to the questions and the evidence sought to be adduced was excluded. The same may be said with respect to the attempts to establish the loss of the document. Exceptions were taken by plaintiff's counsel to all adverse rulings of the court respecting the admission of evidence tending to establish the execution and delivery and the subsequent loss of the document in question, thus laying them proper foundation for the bringing up the rulings of the court on those matters. Trial courts do well in refusing at all times to permit the introduction of incompetent evidence and particularly secondary evidence of the contents of written instruments unless the facts required by the Code of Civil Procedure as the conditions precedent for such evidence are clearly shown to exist. Section 321 of the Code provides: "An original writing must be produced and proved, except as otherwise provided in this Act. If it has been lost, proof of the loss must first be made before evidence can be given of its contents. Upon such proof being made, together with proof of the due execution of the writing, its contents may be proved by a copy or by a recital of its contests in some authentic document, or by the recollection of a witness." As will be seen from this section, the writing itself must be produced unless it has been lost or destroyed in which case, before its contents may be proved by other evidence, it must be shown

by the person offering the secondary evidence (1) that the document was duly executed and delivered, where delivery is necessary, and (2) that it has been lost or destroyed. The execution and delivery of the document may be established by the person or persons who executed it, by the person before whom its execution was acknowledged, pr by any person who was present and saw it executed and delivered or who, after its execution and delivery, saw it and recognized the signatures; or by a person to whom the parties to the instruments had previously confessed the execution thereof. The destruction of the instrument may be proved by any person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by anyone who has made, in the judgment of the court, a sufficient examination in the place where the document or papers of similar character are usually kept by the person in whose custody the document lost was, and has been unable to find it; or who has made any other investigation which is sufficient to satisfy the court that the instrument is indeed lost. If it appears, on an attempt to prove the loss, that the document is in fact in existence, then the proof of the loss or destruction fails and secondary evidence is inadmissible unless section 322 of the Code of Civil Procedure should be applicable. After proper proof of the due execution and delivery of the instrument and its loss or destruction, oral evidence may be give of its contents by any person who signed the document, or who read it, or who heard it read knowing, or it being proved from other sources, that the document so read was the one in question. Such evidence may also be given by any person who was present when the contents of the document were talked over between the parties thereto to such an extent as to give him reasonably full information as to its contents; or the contents may be proved by any person to whom the parties to the instrument have confessed or stated the contents thereof; or by a copy thereof; or by a recital of its contents in some authentic document. Objections were sustained by the trial court to several question put by appellants counsel relative to the due execution and delivery of the instrument of transfer between the partnership of E. Michael & Co., sociedad en comandita, and appellant, on the ground that counsel, in an attempt to identify the document to which his question referred, described or characterized it as an instrument of transfer or cession. Counsel, if he had desired to identify the instrument to which the question referred, might have done better, perhaps, if he asked the witness if he knew of the execution of an instrument between appellant and its predecessor in interest relating to the lands described in the complaint or to the property and business of E. Michael & Co., sociedad en comandita, instead of asking him if he knew of the execution of a document between appellant and his predecessors in interest transferring the lands in question, or the property and business of E. Michael & Co., sociedad en comandita, the appellant. Having obtained an affirmative answer to the question indicated counsel could then have shown how the witness came to know of the execution or existence of the document, and, if such circumstances disclosed that the witness was sufficiently acquainted with the facts, he would have been allowed to testify to its execution and delivery. After this had been done the document might then have been presented for identification and when identified, offered in evidence. If its contents showed that it referred to the lands described in the complaint, its admissibility would have been instantly evident. The mere fact that counsel for appellant, in putting his question to the witness, characterized or described the instrument as one of transfer, while objectionable, was not sufficient to cut him off altogether from proving the execution and delivery of the document if other requisites were present. While it is always best to avoid characterizations of that kind, its harm is minimized where the case is tried before a court instead of a jury, the court well knowing that it cannot accept the characterization as evidence but must go to the document itself or the evidence of its contents to determine its nature and legal effect. Trial courts should not be so strict with reference to matters of the character under discussion as to cause a miscarriage of justice; but on the other hand, they should see to it that they are not impose on by the introduction of fabricated testimony and that injustice shall not result from an evasion of the rules of evidence by designing [Link] We are of the opinion on the whole record that proper questions, tending to the production of very material and competent evidence, were put by plaintiff's counsel, objections to which were

10

sustained by the trial court; and that the error thus committed was not cure by subsequent questions and answers or by the introduction of the same evidence in different manner or form. The judgment must be reversed and a new trial ordered without costs in this instance. So ordered.

11

Villa Rey Transit vs. Ferrer [GR L-23893, 29 October 1968]

16 July 1959, a public sale was conducted by the Sheriff of the said two certificates of public convenience. Ferrer was the highest bidder, and a certificate of sale was issued in his name. Thereafter, Ferrer sold the two certificates of public convenience to Pantranco, and jointly

Facts: [preceding case] Prior to 1959, Jose M. Villarama was an operator of a bus transportation, under the business name of Villa Rey Transit, pursuant to certificates of public convenience granted him by the Public Service Commission (PSC) in Cases 44213 and 104651, which authorized him to operate a total of 32 units on various routes or lines from Pangasinan to Manila, and vice-versa. On 8 January 1959, he sold the two certificates of public convenience to the Pangasinan Transportation Company, Inc. (Pantranco), for P350,000.00 with the condition, among others, that the seller (Villarama) "shall not for a period of 10 years from the date of this sale, apply for any TPU service identical or competing with the buyer."

submitted for approval their corresponding contract of sale to the PSC. Pantranco therein prayed that it be authorized provisionally to operate the service involved in the said two certificates.

The applications for approval of sale, filed before the PSC, by Fernando and the Corporation, Case 124057, and that of Ferrer and Pantranco, Case 126278, were scheduled for a joint hearing. In the meantime, to wit, on 22 July 1959, the PSC issued an order disposing that during the pendency of the cases and before a final resolution on the aforesaid applications, the Pantranco shall be the one to operate provisionally the service under the two certificates embraced in the contract between Ferrer and Pantranco. The Corporation took issue with this

Barely 3 months thereafter, or on 6 March 1959: a corporation called Villa Rey Transit, Inc. (the Corporation) was organized with a capital stock of P500,000.00 divided into 5,000 shares of the par value of P100.00 each; P200,000.00 was the subscribed stock; Natividad R. Villarama (wife of Jose M. Villarama) was one of the incorporators, and she subscribed for P1,000.00; the balance of P199,000.00 was subscribed by the brother and sister-in-law of Jose M. Villarama; of the subscribed capital stock, P105,000.00 was paid to the treasurer of the corporation, who was Natividad R. Villarama. In less than a month after its registration with the Securities and Exchange Commission (10 March 1959), the Corporation, on 7 April 1959, bought 5 certificates of public convenience, 49 buses, tools and equipment from one Valentin Fernando, for the sum of P249,000.00, of which P100,000.00 was paid upon the signing of the contract; P50,000.00 was payable upon the final approval of the sale by the PSC; P49,500.00 one year after the final approval of the sale; and the balance of P50,000.00 "shall be paid by the BUYER to the different suppliers of the SELLER."

particular ruling of the PSC and elevated the matter to the Supreme Court, which decreed, after deliberation, that until the issue on the ownership of the disputed certificates shall have been finally settled by the proper court, the Corporation should be the one to operate the lines provisionally.

[present case] On 4 November 1959, the Corporation filed in the Court of First Instance of Manila, a complaint for the annulment of the sheriff's sale of the aforesaid two certificates of public convenience (PSC Cases 59494 and 63780) in favor of Ferrer, and the subsequent sale thereof by the latter to Pantranco, against Ferrer, Pantranco and the PSC. The Corporation prayed therein that all the orders of the PSC relative to the parties' dispute over the said certificates be annulled. The CFI of Manila declared the sheriff's sale of two certificates of public convenience in favor of Ferrer and the subsequent sale thereof by the latter to Pantranco null and void; declared the Corporation to be the lawful owner of the said certificates of public convenience; and ordered Ferrer and Pantranco, jointly and severally, to pay the Corporation,

The very same day that the contract of sale was executed, the parties thereto immediately applied with the PSC for its approval, with a prayer for the issuance of a provisional authority in favor of the vendee Corporation to operate the service therein involved. On 19 May 1959, the PSC granted the provisional permit prayed for, upon the condition that "it may be modified or revoked by the Commission at any time, shall be subject to whatever action that may be taken on the basic application and shall be valid only during the pendency of said application." Before the PSC could take final action on said application for approval of sale, however, the Sheriff of Manila, on 7 July 1959, levied on 2 of the five certificates of public convenience involved therein, namely, those issued under PSC cases 59494 and 63780, pursuant to a writ of execution issued by the Court of First Instance of Pangasinan in Civil Case 13798, in favor of Eusebio E. Ferrer against Valentin Fernando. The Sheriff made and entered the levy in the records of the PSC. On

the sum of P5,000.00 as and for attorney's fees. The case against the PSC was dismissed. All parties appealed.

Issue: Whether the stipulation, "SHALL NOT FOR A PERIOD OF 10 YEARS FROM THE DATE OF THIS SALE, APPLY FOR ANY TPU SERVICE IDENTICAL OR COMPETING WITH THE BUYER" in the contract between Villarama and Pantranco, binds the Corporation (the Villa Rey Transit, Inc.).

Held: Villarama supplied the organization expenses and the assets of the Corporation, such as trucks and equipment; there was no actual payment by the original subscribers of the amounts of P95,000.00 and P100,000.00 as appearing in the books; Villarama made use of the money of

12

the Corporation and deposited them to his private accounts; and the Corporation paid his personal accounts. Villarama himself admitted that he mingled the corporate funds with his own money. These circumstances are strong persuasive evidence showing that Villarama has been too much involved in the affairs of the Corporation to altogether negative the claim that he was only a part-time general manager. They show beyond doubt that the Corporation is his alter ego. The interference of Villarama in the complex affairs of the corporation, and particularly its finances, are much too inconsistent with the ends and purposes of the Corporation law, which, precisely, seeks to separate personal responsibilities from corporate undertakings. It is the very essence of incorporation that the acts and conduct of the corporation be carried out in its own corporate name because it has its own personality. The doctrine that a corporation is a legal entity distinct and separate from the members and stockholders who compose it is recognized and respected in all cases which are within reason and the law. When the fiction is urged as a means of perpetrating a fraud or an illegal act or as a vehicle for the evasion of an existing obligation, the circumvention of statutes, the achievement or perfection of a monopoly or generally the perpetration of knavery or crime, the veil with which the law covers and isolates the corporation from the members or stockholders who compose it will be lifted to allow for its consideration merely as an aggregation of individuals. Hence, the Villa Rey Transit, Inc. is an alter ego of Jose M. Villarama, and that the restrictive clause in the contract entered into by the latter and Pantranco is also enforceable and binding against the said Corporation. For the rule is that a seller or promisor may not make use of a corporate entity as a means of evading the obligation of his covenant. Where the Corporation is substantially the alter ego of the covenantor to the restrictive agreement, it can be enjoined from competing with the covenantee.

13

SECOND DIVISION

[G.R. No. 135043. July 14, 2004]

Guillermo did not adduce evidence, whether testimonial or documentary, as evidence-inchief in view of the admissions made by petitioner in its Answer with Counter-claims[6] that indeed it entered into a contract with him and that it was obliged to pay him for his services. Petitioner, for its part, presented as its sole witness Ms. Rhodora Aguila (Ms. Aguila), its Corporate Secretary, to prove that it paid Guillermo for his services under the contract. She testified that she personally handed or delivered the cash or check payments to Guillermo, adding that Guillermo acknowledged payments with his signatures on the vouchers.[7] In rebuttal, Guillermo testified along with two employees of the Special Security System. On December 29, 1994, the trial court rendered its Decision, the dispositive portion of which states: WHEREFORE, premises considered, judgment is hereby rendered, as follows: 1. Ordering defendant to pay plaintiff the total sum of P715,228.50 representing defendants unpaid balance owing in favor of plaintiff, with 3% interest from the time of filing of the complaint until the full amount is satisfied; 2. Ordering plaintiff to vacate the house occupied by him belonging to defendant; 3. No pronouncement as to cost and attorneys fees. SO ORDERED.[8] Petitioner filed a Motion for Reconsideration on March 2, 1995, stressing that the lower court erred that it had not paid Guillermos claim in full.[9] The trial court denied the motion for lack of merit in its Order dated April 24, 1995.[10] Consequently, on May 3, 1995 petitioner filed its Notice of Partial Appeal to the Court of Appeals insofar as the Decision ordered it to pay Guillermo the total sum of P715,228.50, which according to the lower court represented its unpaid balance, with interest thereon. [11] On August 12, 1998, the appellate court rendered a Decision affirming the judgment of the lower court. The dispositive portion reads: ACCORDINGLY, finding no reversible error in the decision appealed from dated December 29, 1994, the same is hereby AFFIRMED in all respects. Costs against defendant-appellant. SO ORDERED.[12] Hence, this Petition. Petitioner submits that the Court a quo committed reversible errors of law and/or acted with grave abuse of discretion in not considering as proofs of payment the vouchers and other documentary exhibits, and in ignoring the ruling in Philippine National Bank vs. Court of Appeals,[13] although it was cited in the assailed decisions.[14] The alleged errors, however, refer to the appreciation of evidence which the appellate and trial courts made. As such, they involve questions of fact of which the Court cannot take cognizance of In the case of Naguiat v. Court of Appeals,[15] the Court said that there is a question of fact when a doubt or difference arises as to the truth or the falsehood of alleged facts, while there is a question of law when such doubt or difference refers to what the law is on a certain state of facts.

TOWNE & CITY DEVELOPMENT CORPORATION, petitioner, vs. COURT OF APPEALS and GUILLERMO R. VOLUNTAD (substituted by TOMAS VOLUNTAD and FLORDELIZA ESTEBAN Vda. De VOLUNTAD) respondents. DECISION TINGA, J.: Before us is a Petition for Review on Certiorari under Rule 45 assailing the August 12, 1998 Decision[1] of the Court of Appeals, Tenth Division, in CA-G.R. CV No. 50919. Respondent Guillermo Voluntad (Guillermo) and petitioner Towne & City Development Corporation were both engaged in the construction business. From 1984 to 1985, Guillermo and petitioner entered into a contract for the (a) construction of several housing units belonging to or reserved for different individuals; (b) repair of several existing housing units belonging to different individuals; and (c) repair of facilities, all located at the Virginia Valley Subdivision, owned and developed by the petitioner. The total contract cost amounted to One Million Forty One Thousand Three Hundred Fifty Nine (P1,041,359.00) Pesos. The parties agreed that Guillermo should be paid in full by petitioner the agreed contract cost upon completion of the project. In 1985, pending completion of the project, Guillermo was allowed by petitioner to occupy, free of charge, one of its houses at the Virginia Valley Subdivision. After completing the construction and repair works subject of the contract, Guillermo demanded payment for his services. When petitioner failed to satisfy his claim in full, Guillermo filed on April 30, 1990 a Complaint for collection against petitioner before the Regional Trial Court of Manila (RTC). The case was docketed as Civil Case No. 90-52880 and raffled to Branch 25 of the RTC. Guillermo alleged that petitioner paid him only the amount of P69,400.00, leaving a balance of P971,959.00 under the terms of their contract.[2] In its Answer with Counter-claims (sic), petitioner averred that it had already paid Guillermo the amount of P1,022,793.46 for his services and that there was even an overpayment ofP58,189.46. Petitioner further claimed that Guillermo is liable for unpaid rentals amounting to P66,000.00 as of June 1990 for his occupancy of one of the houses in Virginia Valley Subdivision since 1985.[3] During the pre-trial of the case, the parties agreed to limit the issues to: (1) whether petitioner had paid Guillermo in full in accordance with their contract; (2) if payment in full had been made by petitioner, whether there was an overpayment on its part; and (3) whether either or both parties are entitled to attorneys fees.[4] While the case was pending before the trial court, Guillermo passed away. Upon motion of respondents Tomas Voluntad and Flordeliza Vda. de Voluntad, the trial court issued an Ordersubstituting them as plaintiffs in place of the deceased Guillermo. [5]

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It must be emphasized that this Court is not a trier of facts, and under Rule 45 of the 1997 Rules of Civil Procedure, a petition for review to be given due course should raise only questions of law.[16] This rule finds even greater application when the findings of fact of the trial court were affirmed by the Court of Appeals, as in this case.[17] Neither does the present case fall under any of the recognized exceptions[18] to warrant a review of the assailed factual findings. Truth to tell, the findings of the Court of Appeals are amply supported by the evidence on record. To skirt the procedural obstacle, petitioner insists that the issue of whether a voucher suffices as evidence of payment is a question of law. Significantly, petitioner claims that the appellate courts failure to consider the vouchers as proof of payment runs counter to our ruling in Philippine National Bank (PNB) v. Court of Appeals[19] that the best evidence for proving payment is by evidence of receipts showing the same. Fundamentally, however, petitioners point raises a question of fact which is definitely out of place in a petition for review under Rule 45. The question of whether petitioners vouchers bearing Guillermos signature constitute adequate proof of payment of Guillermos claim requires an examination of the vouchers and an inquiry into the circumstances surrounding petitioners issuance thereof. Such are functions reserved for the trial courts and the Court of Appeals when reviewing findings of fact by the trial court. They are not functions of this Court. The ruling in PNB v. Court of Appeals[20] is that while a receipt of payment is the best evidence of the fact of payment, it is, however, not conclusive but merely presumptive; [21] neither it is exclusive evidence as the fact of payment may be established also by parole evidence.[22] Contrary to petitioners stance, the appellate court did not disregard but instead took into account the ruling in the cited case. This may easily be confirmed by reviewing the factual predicates on which the ruling was handed down. In the cited case, private respondent Flores purchased from petitioner PNB and its Manila Pavilion Unit, two (2) managers check worth P500,000.00 each, paying a total of P1,000,040.00, the extra P40.00 representing the service charge. PNB issued a receipt for the amount. On the following day, Flores presented the checks at PNB Baguio Hyatt Casino unit, but PNB initially refused to encash the checks. Eventually, it agreed to encash one of the checks. However, it deferred payment of the other check until after Flores agreed that it be broken down to five (5) checks of P100,000.00 each. Moreover, PNB refused to encash one of the five (5) checks until after it shall have been cleared by its Manila Pavilion Hotel Unit. The PNB Malate Branch, to which Flores made representations upon his return to Manila, refused to encash the last check. So, Flores filed a case for collection, plus damages. PNB admitted that it issued a receipt for P1,000,040.00 but at same time countered that the receipt is not the best evidence to prove how much Flores actually paid for the purchase of its managers checks. So, according to PNB, the issue was not what appears on the receipt but how much money Flores paid to PNB which, also according to PNB, allows the presentation of evidence aliunde. This Court held: Although a receipt is not conclusive evidence, in the case at bench, an exhaustive review of the records fails to disclose any other evidence sufficient and strong enough to overturn the acknowledgment embodied in petitioners receipt(as to the amount of money it actually received.)[23] .... Having failed to adduce sufficient rebuttal evidence, petitioner is bound by the contents of the receipt it issued to Flores. The subject receipt remains to be the primary or best evidence or that which affords t he greatest certainty of the fact in question.[24]

In the case at bar, petitioner has relied on vouchers to prove its defense of payment. However, as correctly pointed out by the trial court which the appellate court upheld, vouchers are notreceipts. It should be noted that a voucher is not necessarily an evidence of payment. It is merely a way or method of recording or keeping track of payments made. A procedure adopted by companies for the orderly and proper accounting of funds disbursed. Unless it is supported by an actual payment like the issuance of a check which is subsequently encashed or negotiated, or an actual payment of cash duly receipted for as is customary among businessmen, a voucher remains a piece of paper having no evidentiary weight.[25] (Emphasis supplied). A receipt is a written and signed acknowledgment that money has been or goods have been delivered,[26] while a voucher is documentary record of a business transaction.[27] The references to alleged check payments in the vouchers presented by the petitioner do not vest them with the character of receipts. Under Article 1249 of the Civil Code,[28] payment of debts in money has to be made in legal tender and the delivery of mercantile documents, including checks, shall produce the effect of payment only when they have been cashed, or when through the fault of the creditor they have been impaired. From the text of the Civil Code provision, it is clear that there are two exceptions to the rule that payment by check does not extinguish the obligation. Neither exception is present in this case. Concerning the first, petitioner failed to produce the originals of the checks after their supposed encashment and even the bank statements although the supposed payments by check were effected only about 5 years before the filing of the collection suit. Anent the second exception, the doctrine is that it does not apply to instruments executed by the debtor himself and delivered to the creditor.[29] Indubitably, that is not the situation in this case. Petitioner also relied upon the testimony of its Corporate Secretary, Rhodora Aguila. Again, the issue about the credibility of said witness involves a question of fact which is a definite incongruity in petitions for review, as in the case before us. In any event, the Court of Appeals convincingly debunked the testimony.[30] All told, the Court finds no reason to disturb the findings of the Court of Appeals which affirmed in toto the trial courts Decision. WHEREFORE, the Petition is DENIED. The assailed Decision of the Court of Appeals is AFFIRMED. Costs against the petitioner. SO ORDERED.

15

DE VERA v. AGUILAR GR 83377; February 9, 1993; Campos, Jr. (Chrislao) FACTS -Petitioners Basilio, Luis, Felipe, Eustaquia and Maria, all surnamed de Vera and respondent Leona, married to respondent Mariano Aguilar, are the children and heirs of the late Marcosa Bernabe who died on May 10, 1960. -In her lifetime, Marcosa Bernabe owned the disputed parcel of land -The disputed property was mortgaged by petitioners Basilio and Felipe de Vera to a certain Atty. Leonardo Bordador. When the mortgage had matured, the respondents redeemed the property from Atty. Leonardo Bordador and in turn Marcosa Bernabe sold the same to them as evidenced by a deed of absolute sale dated February 11, 1956. -On February 13, 1956, the respondents registered the deed with the Registry of Deeds of Bulacan resulting in the cancellation of the tax declaration in the name of Marcosa Bernabe and the issuance of another in the name of the Aguilars. -On July 20, 1977, respondent Mariano Aguilar was issued a free patent to the land on the basis of which Original Certificate of Title was issued in his name. -The petitioners wrote to the respondents claiming that as children of Marcosa Bernabe, they were co-owners of the property and demanded partition thereof on threats that the respondents would be charged with perjury and/or falsification. The petitioners also claimed that the respondents had resold the property to Marcosa Bernabe on April 28, 1959. -On September 27, 1980, the respondents wrote in reply to the petitioners that they were the sole owners of the disputed parcel of land and denied that the land was resold to Marcosa Bernabe. -True to petitioners' threat, they filed a falsification case against the respondents. However, on March 31, 1981, Assistant Provincial Fiscal Arsenio N. Mercado of Bulacan recommended dismissal of the charge of falsification of public document against the respondents for lack of a prima facie case. -On March 26, 1981, petitioners filed a suit for reconveyance of the lot. -TC ruled in petitioners favor. CA reversed. It found that the loss or destruction of the original deed of sale has not been duly proven by the petitioners. Hence, secondary evidence, i.e., presentation of the xeroxed copy of the alleged deed of sale is inadmissible ISSUE -WON petitioners have satisfactorily proven the loss of the original deed of sale so as to allow the presentation of the xeroxed copy of the same. RULING -NO. Secondary evidence is admissible when the original documents were actually lost or destroyed. But prior to the introduction of such secondary evidence, the proponent must establish the former existence of the instrument. The correct order of proof is as follows: Existence; execution; loss; contents although this order may be changed if necessary in the discretion of the court. The sufficiency of proof offered as a predicate for the admission of an alleged lost deed lies within the judicial discretion of the trial court under all the circumstances of the particular case. -A reading of the decision of the trial court shows that it merely ruled on the existence and due execution of the alleged deed of sale dated April 28, 1959. It failed to look into the facts and circumstances surrounding the loss or destruction of the original copies of the alleged deed of sale. -In the case at bar, the existence of an alleged sale of a parcel of land was proved by the presentation of a xeroxed copy of the alleged deed of absolute sale. -In establishing the execution of a document the same may be established by the person or persons who executed it, by the person before whom its execution was acknowledged, or by any person who was present and saw it executed or who, after its execution, saw it and recognized the signatures; or by a person to whom the parties to the instrument had previously confessed the execution thereof. -SC agrees with the TC's findings that petitioners have sufficiently established the due execution of the alleged deed of sale through the testimony of the notary public. -After the due execution of the document has been established, it must next be proved that said document has been lost or destroyed. The destruction of the instrument may be proved by any person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by any one who had made, in the judgment of the court, a

sufficient examination in the place or places where the document or papers of similar character are usually kept by the person in whose custody the document lost was, and has been unable to find it; or who has made any other investigation which is sufficient to satisfy the court that the instrument is indeed lost. -However, all duplicates or counterparts must be accounted for before using copies. For, since all the duplicates or multiplicates are parts of the writing itself to be proved, no excuse for non-production of the writing itself can be regarded as established until it appears that all of its parts are unavailable (i.e. lost, retained by the opponent or by a third person or the like) -In the case at bar, Atty. Emiliano Ibasco, Jr., notary public who notarized the document testified that the alleged deed of sale has about four or five original copies. Hence, all originals must be accounted for before secondary evidence can be given of any one. This petitioners failed to do. Records show that petitioners merely accounted for three out of four or five original copies. CA affirmed

16

EN BANC G.R. No. L-9784 October 21, 1914

THE UNITED STATES, plaintiff-appellee, vs. ONG SHIU (alias ONG SIO CO), defendant-appellant. Isidro Santiago for appellant. Office of the Solicitor General Corpuz for appellee.

JOHNSON, J.: On the 26th day of February, 1914, the assistant prosecuting attorney of the city of Manila presented a complaint against the defendant charging him with a violation of section 31 of Act No. 1761, amended by section 3 of Act No. 1910. The complaint alleged: "That on or about the 24th day of February, 1914, in the city of Manila, P. I., the said Ong Shiu, alias Ong Sio Co, did then and there, wilfully, unlawfully, and feloniously have in his possession and under his control 8 grams of opium and 4 grams of opium ash. That the said accused is not a citizen of the United States or a citizen of the Philippine Islands and has heretofore been convicted of two former offenses under this law. Contrary to law." Upon said complaint the defendant was arrested, arraigned, tried, found, guilty, and sentenced by the Honorable Richard Campbell, judge, to be imprisoned for a period of six months. The lower court, after hearing the evidence, found: On the morning of the day of the crime, the accused was discovered in his room with another Chinaman. The policemen noticed a strong smell of opium coming from where the accused was. They therefore forced the door and entered the said room. Just at the moment the accused threw away an opium pipe through a hole in the floor, and when the pipe was picked up by the policemen it was still quite hot. Besides, other devices used in smoking opium were found in the room, and, in the hands of the accused, 8 grams of opium and 4 grams of opium ashes. The only defense presented by the defendant was in the nature of a general denial of all of the facts stated by the witnesses for the [Link] During the trial of the cause the prosecution presented Exhibit B. (Record, page 6.) Said exhibit is a certificate presented by the police department of the city of Manila. It certifies that the defendant had been condemned for a violation of the Opium Law in two different causes, by the Court of First Instance of the city of Manila. The first was cause No. 7779, for a period of three months' imprisonment and the second was cause No. 9253, for a period of four months' imprisonment. Said certificate was presented and admitted in evidence without objection in the lower court. From the sentence of the lower court the defendant appealed to this court. The only objection presented by the appellant in this court relates to the penalty of six months' imprisonment imposed by the lower court, based upon the fact that the defendant had been convicted before for the same offense. The appellant argues that Exhibit B should not have

been admitted in the lower court. He insists that it is not sufficient proof of the fact that he had been theretofore convicted of a similar offense. It will be remembered that the defendant, even though he was represented by an attorney at law in the trial of the cause, made no objection to the admissibility of said Exhibit B. His objection to the admissibility of said exhibit is presented for the first time in this court. We do not understand why the prosecuting attorney did not present the records of the Court of First Instance, for the purpose of showing that the defendant had been theretofore convicted of similar offenses. The records certainly would have been the best proof of such former conviction. The certificate was not the best proof. There seems to be no justification for the presentation of proof of a secondary character, when the case was being tried in the same court where the defendant had been theretofore twice convicted and where the original records were. Under an objection upon the ground that the said certificate (Exhibit B) was not the best proof, it should have been rejected. Once admitted, however, without objection, even though not the best evidence, and even though not admissible under an objection, we are not inclined now to reject it. If the defendant had opportunely presented an objection to the admissibility of said certificate, no doubt the prosecution would have presented the best proof upon the questions to which said certificate relates. If the defendant did not believe that the proof was sufficient, he should have presented his objection at the time the same was presented, and thereby have given the prosecuting attorney an opportunity, if he desired to prove the fact, to present other and different proof. Evidently the defendant did not object to the admissibility of said certificate, because he was willing to admit the facts contained therein. The complaint alleged that the defendant had been convicted twice before of a violation of the same law (the Opium Law). That allegation was evidently made for the purpose of increasing the penalty in the present case. The burden was upon the prosecution to prove said allegation. The prosecuting attorney evidently believed that he had made out a prima facie case by the presentation of said certificate. Had the defendant objected to its admissibility, the prosecuting attorney would have presented the record of the court in support of his allegation. The defendant made no objection to the admissibility of the proof offered, neither did he attempt to refute the prima facie case made by the prosecuting attorney. Objections which are relied upon for the purpose of reversing or modifying the decisions of the trial court, should be made first in the court. In view of all of the facts in the present case and the failure of the defendant to object to the admissibility of said Exhibit B, while we admit that said exhibit is not the best proof of the facts which the prosecuting attorney was attempting to prove, yet, nevertheless, we are not inclined to reverse or modify the sentence of the lower court. Therefore the sentence of the lower court is hereby affirmed, with costs.

17

SECOND DIVISION

[G.R. No. 115402. July 15, 1998]

LEONCIO LEE TEK SHENG, petitioner, vs. COURT OF APPEALS, HON. ANTONIO J. FINEZA, and LEE TEK SHENG, respondents. DECISION MARTINEZ, J.: After his mothers death, petitioner filed a complaint against his father, herein private respondent, to partition the conjugal properties of his parents.[2] In his answer with counterclaim, private respondent alleged that four (4) parcels of land registered solely in petitioners name under Transfer Certificate of Title (TCT) 8278 are conjugal properties. Private respondent contends that the lots are owned by the conjugal regime but was registered in petitioners name only as a trustee considering that at that time, the latter was then the only Filipino citizen in the family. Accordingly, private respondent prayed for the dismissal of the partition case and for the reconveyance of the lots to its rightful owner the conjugal regime. Meantime, to protect the interest of the conjugal regime during the pendency of the case, private respondent caused the annotation of a notice of lis pendens on TCT 8278. Petitioner moved for the cancellation of said annotation which was denied by the trial court ruling that (a) the notice was not for the purpose of molesting or harassing petitioner and (b) also to keep the property within the power of the court pending litigation.[3] Petitioner assailed the denial of his motion to cancel the notice of lis pendens via petition for certiorari and prohibition to the Court of Appeals (CA), but to no avail.[4] Resorting to this Court, petitioner primarily contends that in the resolution of an incidental motion for cancellation of the notice of lis pendens (a) it was improper to thresh out the issue of ownership of the disputed lots since ownership cannot be passed upon in a partition case, otherwise, (b) it would amount to a collateral attack of his title obtained more than 28 years ago. He argues that his sole ownership as shown in the TCT would be improperly assailed in a partition case and should be done through a separate suit. On the contrary, private respondent posits that evidence of ownership is admissible in a partition case as this is not a probate or land registration proceedings when the courts jurisdiction is limited. Though the postulates respectively proffered by both parties are not at point, luckily for private respondent, petitioners claim is not legally tenable. There is no dispute that a Torrens certificate of title cannot be collaterally attacked[5] but that rule is not material to this case. The annotation of a notice of lis pendens does not in any case amount nor can it be considered as equivalent to a collateral attack of the certificate of title for a parcel of land. The concept of no collateral attack of title is based on Section 48 of P.D. 1529 which states that: Certificate not Subject to Collateral attack.- A certificate of title shall not be subject to collateral attack. It cannot be altered, modified, or cancelled except in a direct proceeding in accordance with law.[6] (Emphasis Supplied). What cannot be collaterally attacked is the certificate of title and not the title. The certificate referred to is that document issued by the Register of Deeds known as the Transfer Certificate of Title (TCT). By title, the law refers to ownership which is represented by that document.
[1]

Petitioner apparently confuses certificate with title. Placing a parcel of land under the mantle of the Torrens system does not mean that ownership thereof can no longer be disputed. Ownership is different from a certificate of title. The TCT is only the best proof of ownership of a piece of land.[7]Besides, the certificate cannot always be considered as conclusive evidence of ownership.[8] Mere issuance of the certificate of title in the name of any person does not foreclose the possibility that the real property may be under co-ownership with persons not named in the certificate or that the registrant may only be a trustee or that other parties may have acquired interest subsequent to the issuance of the certificate of title. To repeat, registration is not the equivalent of title, but is only the best evidence thereof. Title as a concept of ownership should not be confused with the certificate of title as evidence of such ownership although both are interchangeably used. In this case, contrary to petitioners fears, his certificate of title is not being assailed by private respondent.[9] What the latter disputes is the formers claim of sole ownership. Thus, although petitioners certificate of title m ay have become incontrovertible one year after issuance,[10] yet contrary to his argument, it does not bar private respondent from questioning his ownership.[11] It should be noted that what is being challenged in this case is the denial of the motion to cancel the notice of lis pendens. But whether as a matter of procedure[12] or substance,[13] a notice of lis pendens may be cancelled only on two grounds, which are: (1) if the annotation was for the purpose of molesting the title of the adverse party, or (2) when the annotation is not necessary to protect the title of the party who caused it to be recorded. Neither ground for cancellation of the notice was convincingly shown to concur in this case. It would not even be fair to justify the cancellation of the notice on the legally untenable grounds that such annotation amounts to a collateral attack of petitioners certif icate of title or that ownership cannot be adjudicated in a partition case. It must be emphasized that the annotation of a notice of lis pendens is only for the purpose of announcing to the whole world that a particular real property is in litigation, serving as a warning that one who acquires an interest over said property does so at his own risk, or that he gambles on the result of the litigation over said property. [14] Here, the parties are still locked in a legal battle to settle their respective claims of ownership. The lower court allowed the annotation pending litigation only for the purpose of giving information to the public that that parcel of land is involved in a suit and that those who deal with the property is forewarned of such fact. On the contention that ownership cannot be passed upon in partition case, suffice it to say that until and unless ownership is definitely resolved, it would be premature to effect partition of the property.[15] For purposes of annotating a notice of lis pendens, there is nothing in the rules which requires the party seeking annotation to prove that the land belongs to him.[16] Besides, an action for partition is one case where the annotation of a notice of lis pendens is proper.[17] Further, contrary to petitioners argument, one of the issues agreed upon by the parties at pre-trial is to determine what are the properties acquired by the spouses during their marriage.[18]In addition, private respondent in his answer with counterclaim prayed for the reconveyance of the disputed lots. Accordingly, the issue of ownership has been put in issue and each claimant must present their respective evidence to substantiate their respective allegations.[19] Considering that this is a partition case, the court is required to inquire into the nature and extent of title of the supposed claimant. [20] The title referred to by the rule is the purported ownership of the claimants and not the certificate of title mentioned in Section 48 of P.D. 1529, although the latter may be considered in the determination of the former. WHEREFORE, by virtue of the foregoing, the petition is DENIED and the assailed decision of the Court of Appeals is AFFIRMED. SO ORDERED.

18

EN BANC G.R. No. 139236 February 3, 2004

On December 8, 1997, Dr. Manuel C. Aves, Medico-Legal Officer of the Bulacan Provincial Crime Laboratory Office, examined Rachel. His Medico-Legal Report revealed the following findings: GENERAL AND EXTRA-GENITAL PHYSICAL BUILT : Lean built MENTAL STATUS : Coherent female BREAST : Flat ADMOMEN : Flat PHYSICAL INJURIES : No signs of physical injury. GENITAL : PUBIC HAIR : Absent LABIA MAJORA : Coaptated LABIA MINORA : Light pinkish HYMEN : Multiple fresh lacerations (superficial) at 3, 9, 11 oclock. With swelling and congestion. EXTERNAL VAGINAL ORIFICE : VAGINAL CANAL : not examined CERVIX : not examined PERI- URETHRAL AND VAGINAL SMEARS:

PEOPLE OF THE PHILIPPINES, appellee, vs RODEL ANTIVOLA, appellant. DECISION CALLEJO, SR., J.: This is an automatic review of the Decision1 of the Regional Trial Court of Malolos, Bulacan, Branch 78, convicting the appellant Rodel Antivola of qualified rape and sentencing him to suffer the death penalty.2 On March 25, 1998 an Information was filed charging the appellant of qualified rape, the accusatory portion of which reads: That on or about the 4th day of December 1997, in the Municipality of Angat, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused did then and there wil[l]fully, unlawfully and feloniously by means of violence and intimidation, have carnal knowledge of the offended party Rachel M. de Guzman, a minor, five (5) years of age, against her will and consent. Contrary to law.
3

When arraigned on April 13, 1998, the appellant, duly assisted by counsel de oficio, pleaded not guilty to the charge.4 Trial ensued thereafter. The Case for the Prosecution5 By December 1997, Rachel de Guzman was already five years of age. 6 She lived with her parents at No. 174 Donacion, Angat, Bulacan,7 a piscatorial village in the vicinity of a river.8 In the afternoon of December 4, 1997, Rachel, together with three other children, were playing outside. Rachel saw the appellant Rodel (Bungi) Antivola feeding the fishes in the nearby fishpond.9 The appellant approached Rachel and asked her to go with him inside his house, telling her that they would play another game. Unsuspecting, she acceded and went with the appellant.10 Once inside the house, the appellant removed Rachels shorts and touched her private parts. She cried, but the appellant was unmoved. He brought out his penis and inserted it into Rachels vagina, causing the child excruciating pain. After satiating his lust, the appellant let her go and instructed her to step out.11 Rachel did as she was told. She went home and did not tell anyone about what happened. Her mother, Sally de Guzman, noticed the crease marks on her clothes. That afternoon, while Sally was bathing Rachel, she noticed a reddish discoloration on Rachels private part. Baffled, she asked her daughter about it, who pointed to the appellant "Bungi," as the one who defiled her.12 Sally then promptly reported the incident to the police authorities who apprehended the appellant. The following day, Sally executed a sworn statement before Judge Eric T. Calderon. 13

REMARKS : Multiple fresh lacerations (superficial) at 3, 9, 11 oclock with swelling and congestion.14 Dr. Aves explained that the fresh lacerations on Rachels hymen could have been caused by "manipulation of the organ or penetration of whatsoever."15 The Case for the Accused16

19

The appellant testified that he was 26 years old, single, and lived with his brother, Ruben Antivola, in Donacion, Angat, Bulacan.17 He made a living as a part-time helper in the nearby fishpond owned by Ruben Nicolas.18 He knew Rachel and her family since they were neighbors, their houses being seven houses apart from each other.19 The appellant denied raping Rachel and disclaimed having a moniker "Bungi." 20 He averred that the charge against him was contrived by Rachels family out of envy, for having been chosen by Nicolas as the caretaker of his fishpond.21 He declared that on December 4, 1997, he was at the fishpond busily engaged in harvesting the fish. After eating lunch at about 11:30 a.m., Ruben Nicolas dropped by their house to tell them to start working. At exactly 12:00 noon, he left for the fishpond, roughly four houses away from his house.22 Ruben Nicolas, his brother Ruben, Jun Nicolas, and Danny de Guzman were working with him at the fishpond. They worked continuously without let up, until they finished the harvest at around 4:00 p.m. Thereafter, they proceeded to the store of Rachels grandmother and had some snacks. At 4:30 p.m., the appellant headed straight home.23 Half an hour later, Sally and her mother confronted him, and accused him of molesting Rachel.24 Ruben Nicolas corroborated in part the appellants story. He testified that he owned the hut where the Antivola brothers were staying. He acknowledged Ruben as the fishponds caretaker, but disowned the appellant as an employee.25 He said that the appellant was jobless, but used to do odd jobs for him in his fishpond. He confirmed that the appellant was in the fishpond the whole afternoon of December 4, 1997.26 Marites Capalad, the appellants co-worker and sister-in-law, testified that at about 12:00 noon on December 4, 1993, she and her fellow workers were already at the fishpond harvesting the fish. She was recording the harvest, while the rest, particularly the appellant, helped lift the fishnets. They worked continuously all afternoon, without any break. Not one of them even left the place. They finished the harvest at about 5:00 p.m.27 She revealed that she was initially reluctant to testify out of fear of Rachels father and grandfather. They threatened to blow up the fishpond if she testified for the appellant.28 After trial, the appellant was convicted by the trial court of the crime of rape in its qualified form and sentenced to suffer the supreme penalty of death. It disposed of the case as follows: WHEREFORE, the foregoing considered, this Court finds accused Rodel Antivola GUILTY beyond reasonable doubt of the crime of Rape defined and penalized under the provisions of Articles 266-A and 266-B of Republic Act No. 8353 otherwise known as the Anti-Rape Law of 1997, amending Article 335 of the Revised Penal Code, in relation to Republic Act No. 7610, and hereby sentences him to suffer the penalty of DEATH and to pay private complainant Rachel de Guzman the amount P75,000.00 as moral damages. SO ORDERED.
29

In his brief, the appellant assailed the trial courts decision contending that: I THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF RAPE DEFINED AND PENALIZED UNDER ATRS. 266-A AND 266-B OF REPUBLIC ACT 8353, AMENDING ART. 335 OF THE REVISED PENAL CODE IN RELATION TO REPUBLIC ACT NO. 7610 DESPITE FAILURE ON THE PART OF THE PROSECUTION TO PROVE HIS GUILT BEYOUND REASOBLE DOUBT. II THE LOWER COURT ERRED IN IMPOSING THE PENALTY OF DEATH UPON ACCUSEDAPPELLANT DESPITE FAILURE ON THE PART OF THE PROSECUTION TO PROVE THE AGE OF THE ALLEGED VICTIM.32 The Sufficiency of the Prosecutions Evidence Against the Appellant The appellant asserts that he is not guilty of consummated rape because as declared by Rachel on cross-examination, he merely touched her private parts. He contends that at so young an age, Rachel could easily be coached by her mother into saying that the appellant penetrated her, when in truth, he merely touched her vagina. He theorizes that children like Rachel are hyperactive, thus, the lacerations on her genitalia could have been caused by incidents such as "horseback riding and bicycle riding."33 The charge against him was contrived by Rachels parents for their failure to have themselves employed as caretakers of the fishpond. We disagree. We reiterate the following standard in reviewing an appeal from a conviction for rape: In reviewing rape cases, this Court is guided by three principles: (1) an accusation of rape can be made with facility and while the accusation is difficult to prove, it is even more difficult for the person accused, although innocent, to disprove; (2) considering the intrinsic nature of the crime, only two persons being usually involved, the testimony of the complainant should be scrutinized with great caution; (3) the evidence for the prosecution must stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of the evidence for the defense. 34 Rachels testimony was direct, candid, and replete with details of the rape. She testified that after touching her private parts, the appellant inserted his penis inside her vagina, thus: PROS. SANTIAGO Q When you said that you were raped by Rodel Antivola, what do you mean by that? A He touched my private part, Sir. Q When was it, Rachel?

The trial court gave full credence to the testimony of Rachel, describing her as a "picture of an innocent child responding squarely to every question propounded to her with truthfulness and spontaneity seemingly unmindful of the gravity of her every testimony." 30 It rejected the appellants defenses of mistake of identity, denial and alibi, declaring that he was positively identified by Rachel. It further discounted the appellants alibi, concluding that he failed to prove two-fold elements respecting time and place.31 Hence, this automatic review.

20

A December 4.35 ... Q At the house of Rodel, will you tell us what transpired between you and Rodel? A He removed my short and touched my private part. Q Did you not shout or cry when Rodel touched your private part? A I cried, Sir. Q What else did he do aside from touching your private part? A He brought out his penis, Sir. Q What did he do with his penis? A He touched my private parts first then he inserted his penis. 36 ... Q What did you feel when Rodel inserted his penis to your vagina? A I was crying, Sir. Q Aside from crying, did you feel pain? A Yes, Sir.

A That one, Sir. Q Please point to him. A (Witness pointing to the person who answered to the name of Rodel Antivola). 37 Rachels testimony says it all. It is marked by spontaneity, honesty and sincerity. When a woman, more so if she is a minor, says that she has been raped, she says in effect all that is necessary to show that rape was committed.38Youth and immaturity are generally badges of truth and sincerity.39 In rape cases, the testimony of the victim alone, if credible, is sufficient to convict the accused of the crime. The medical certificate is presented merely to corroborate the victims declaration that she was sexually molested. In fact, what is more telling in the medical findings proffered in evidence by the prosecution is the presence of hymenal lacerations in different positions in the victims genitalia which is the best physical evidence of her forcible defloration.40 The appellant indulged in sheer conjectures by claiming that the lacerations on the hymen of Rachel were caused by horseback riding or bicycling. There is no evidence that Rachel had ridden a bicycle or rode on a horseback. Mere speculations and surmises are not evidence. Equally incredible is the appellants claim that the family of Rachel concocted the charge against him because of their failure to be appointed as caretakers of the fishpond. The appellant himself testified that he did not know of any reason why Sally charged him of rape. Q And you cannot tell the Honorable Court the reason why the mother of Rachel filed a case against you, for this offense of Rape, you do not know of any reason? A None, sir. Q You have no previous understanding (sic) with the mother of Rachel prior to December 4, 1997? A None, sir.41

Q What else did you feel? A My vagina was very painful, Sir. ... Q When your mother noticed your vagina to be reddish, what did she do? A I said that it was "Bungi." Q Who is "Bungi?" A Rodel Antivola, Sir. Q Will you look around tell us if "Bungi" or Rodel Antivola is around? However, we agree with the contention of the Office of the Solicitor General (OSG), that the appellants claim is unbelievable and at the same time absurd. 42 Without credible evidence proferred by the appellant, bad faith or ulterior motive could not be imputed on the part of Rachels family in pointing to the appellant as the perpetrator of the crime. When there is no showing that the principal witnesses for the prosecution were actuated by improper motive, the presumption is that the witnesses were not so actuated and their testimonies are thus entitled to full faith and credit.43 For the appellant to say that Rachel was used by her family as a "sacrificial lamb" to get back at him for their misfortune is not only too lame but also preposterous. It is inconceivable that Rachels mother would falsely point an accusing finger at the appellant for a crime as serious as rape when the latter was not even the one appointed as the fishponds caretaker. No mother in her right mind would use her offspring as an engine of malice. She would not subject her child to the humiliation, disgrace, and even the stigma attendant to a prosecution for rape unless she is motivated by the desire to bring to justice the person responsible for her childs defilement.44 The appellants barefaced denial of the charge cannot prevail over the positive, spontaneous and straightforward identification by Rachel of the appellant as the malefactor. A rape victim can easily identify her assailant especially if he is known to her because during the rape, she is

21

physically close to her assailant, enabling her to have a good look at the latters physical features.45 The doctrine consistently upheld by this Court is that alibi cannot prevail over the positive identification of the accused as the perpetrator of the crime. It is inherently a weak defense; and unless supported by clear and convincing evidence, it cannot prevail over the positive declaration of the victim.46 We have consistently held that for alibi to prosper, the appellant must prove not only that he was somewhere else when the crime was committed but he must likewise demonstrate that it was physically impossible for him to be at the scene of the crime at the time of its commission. 47 This, the appellant miserably failed to do. By his own admission, the fishpond was just five houses away from his own. Clearly, it was not physically impossible for him to be present at the scene of the crime at the time of its commission. His insistence that he has strong corroboration for his testimony is unpersuasive. For alibi to be considered, it must be supported by credible corroboration, preferably from disinterested witnesses who will swear that they saw or were with the accused somewhere else when the crime was being committed.48 Although the appellants alibi was corroborated by Ruben Nicolas and Marites Capalad, such corroborations were not credible, for the said witnesses cannot be considered as disinterested witnesses, they being related or were one way or another linked to each other. Alibi is commonly regarded as weak if it is sought to be established wholly or mainly by the accused himself or his relatives.49 But even if we consider the said corroborations, the same do not establish an iron-clad alibi for the appellant. Ruben Nicolas, the appellants part-time employer, and Marites Capalad, the appellants sisterin-law and co-worker, in unison, vouched for the appellants physical presence in the fishpond at the time Rachel was raped. It is, however, an established fact that the appellants house where the rape occurred, was a stones throw away from the fishpond. Their claim that the appellant never left their sight the entire afternoon of December 4, 1997 is unacceptable. It was impossible for Marites to have kept an eye on the appellant for almost four hours, since she testified that she, too, was very much occupied with her task of counting and recording the fishes being harvested. Likewise, Mr. Nicolas, who, admittedly was 50 meters away from the fishpond, could not have focused his entire attention solely on the appellant. It is, therefore, not farfetched that the appellant easily sneaked out unnoticed, and along the way inveigled the victim, brought her inside his house and ravished her, then returned to the fishpond as if he never [Link] Marites corroborating testimony is not only biased for it is a natural desire for relatives to exculpate their kin from criminal liability, it is also inconclusive. Alibi is at best a weak defense and easy of fabrication especially between parents and children, relatives, and even those not so related.50 For alibi to be credible, it must count with a strong corroboration. Well-entrenched is the rule that evidence should first be believable and logical before it can be accorded weight. To be given any credence, it must not only proceed from the mouth of a credible witness; it must be credible in itself as a common experience and observation that mankind can deem probable under the circumstances.51 It is an established rule that when it comes to the issue of credibility of witnesses, the appellate courts generally will not overturn the findings of the trial courts. They are in the best position to ascertain and measure the sincerity and spontaneity of witnesses through their actual observation of the witnesses manner of testifying, their demeanor and behavior in court. 52 In this case, we find no basis to depart from the rule. Further strengthening the case of the prosecution were the conduct of Rachel, her mother Sally, and her grandmother after the rape. We have held that the conduct of the victim immediately following the assault is of utmost importance in establishing the truth or falsity of the charge of rape.53 Here, Rachel, upon her mothers inquiry, readily told the latter what happened to her and assuredly pointed to the appellant as the culprit. Subsequently, Sally, together with the

grandmother of the child, lost no time and went to the house of the appellant to confront him. Thereafter, they reported the matter to the authorities. The following day, Sally executed her sworn statement regarding the incident and three days later, had her child medically examined. All the foregoing acts were done days after the commission of the crime. The promptness and spontaneity of these deeds manifested the natural reactions of a parent whose child had just undergone sexual molestation, and evinced nothing more than an instant resolve to denounce the ravisher, and to protect whatever honor they had left. All told, we hold that the prosecution has fully discharged its duty of proving the guilt of the appellant beyond reasonable doubt. The Sufficiency of Evidence of Rachels Minority and the Propriety of Imposing the Death Penalty The only issue left to be determined is the question of the penalty to be meted upon appellant. The appellant claims that the trial court erred in imposing the death penalty because Rachels birth certificate was never submitted in evidence; hence, her age at the time she was allegedly raped was never conclusively established. He argues that the failure to sufficiently establish the victims age is fatal and consequently bars conviction for rape in its qualified form. 54 We agree. At the time of the rape, Republic Act No. 8353 or the Anti-Rape Law of 1997, which repealed Article 335 of the Revised Penal Code and classified rape as a crime against persons, was already effective. The new provisions on rape, provided under Articles 266-A and 266-B of the Revised Penal Code, state as follows: Article 266-A. Rape; When And How Committed. Rape is committed 1) By a man who shall have carnal knowledge of a woman under any of the circumstances: a) Through force, threat, or intimidation; b) When the offended party is deprived of reason or otherwise unconscious; c) By means of fraudulent machinations or grave abuse of authority; and d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. ... Article 266-B. Penalties. Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.

22

... The death penalty shall be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: ... 5) When the victim is a child below seven (7) years old; ... In People v. Pruna,55 the Court, after noting the divergent rulings on the proof of the victims age in rape cases, has set out certain guidelines in appreciating age, either as an element of the crime or as qualifying circumstance: 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives concerning the victim's age, the complainant's testimony will suffice provided that it is expressly and clearly admitted by the accused. 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. 6. The trial court should always make a categorical finding as to the age of the victim.56

In the present case, no birth certificate or any similar authentic document was presented and offered in evidence to prove Rachels age. The only evidence of the victims age is her testimony57 and that of her mothers (Sally de Guzmans) Simumpaang Salaysay,58 which was adopted as part of the latters direct testimony,59 attesting to the fact that her five-year-old daughter was raped. Sallys testimony regarding Rachels age was insufficient, since Rachel was alleged to be already five years old at the time of the rape, and what is sought to be proved is that she was then less than seven years old. Her testimony will suffice only if it is expressly and clearly admitted by the accused. There is no such express and clear declaration and admission of the appellant that Rachel was less than seven years old when he raped her. Moreover, the trial court made no finding as to the victims age. It must be stressed that the severity of death penalty, especially its irreversible and final nature once carried out, makes the decision-making process in capital offenses aptly subject to the most exacting rules of procedure and evidence.60 Accordingly, in the absence of sufficient proof of Rachels minority, the appellant cannot be convicted of qualified rape and sentenced to suffer the death penalty. However, Sallys testimony that her daughter was five years old at the time of the commission of the crime is sufficient for purposes of holding the appellant liable for statutory rape, or the rape of a girl below twelve years of age. Under the second paragraph of Article 266-B, in relation to Article 266-A(1)(d), carnal knowledge of a woman under twelve years of age is punishable by reclusion perpetua. Thus, the appellant should be sentenced to suffer reclusion perpetua, and not the death penalty. As to damages, the trial court erred in not awarding civil indemnity to the victim, the same being mandatory upon the finding of the fact of rape.61 We award to the victim the sum of P50,000 as civil indemnity. In view of the finding that the appellant is liable only for simple rape, the amount of P75,000 as moral damages should be lowered toP50,000 in conformity with prevailing jurisprudence.62 This is not the first time that a child has been snatched from the cradle of innocence by some beast to sate its deviant sexual appetite. To curb this disturbing trend, the appellant should, likewise, be made to pay exemplary damages which, in line with prevailing jurisprudence, is pegged at P25,000.63 WHEREFORE, the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 78, is AFFIRMED with MODIFICATION. Appellant Rodel Antivola is held GUILTY of simple rape, and is sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay the victim Rachel de Guzman P50,000 as civil indemnity; P50,000 as moral damages; and P25,000 as exemplary damages. SO ORDERED.

23

FIRST DIVISION G.R. No. 99434 September 24, 1991 JOHNSON & JOHNSON (PHILS.) INC., petitioner, vs. THE COURT OF APPEALS (Ninth Division) and ALEJO M. VINLUAN, respondents. Adrayan & Ginete Law Office for petitioner. R.P. Nogales Law Office for private respondent.

Refuting these contentions, the private respondent submits that the petitioner was correctly deemed to have been properly served with the copy of the resolution dated November 29, 1990, after its counsel failed to claim his mail from the post office within 5 days from the date of the first registry notice. Under Section 8, of Rule 13 of the Rules of Court: Sec. 8. Completeness of service. Personal service is complete upon delivery Service by ordinary mail is complete upon the expiration of five (5) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee; but if he fails to claim his mail from the post office within five (5) days from the date of first notice of the postmaster, service shall take effect at the expiration of such time. The general rule is that service by registered mail is complete upon actual receipt thereof by the addressee. The exception is where the addressee does not claim his mail within 5 days from the date of the first notice of the postmaster, in which case the service takes effect upon the expiration of such period. Inasmuch as the exception refers to only constructive and not actual service, such exception must be applied only upon conclusive proof that a first notice was duly sent by the postmaster to the addressee. The presumption that official duty has been regularly performed is not applicable where there is evidence to the contrary, as in the case at bar. A certification from the postmaster would be the best evidence to prove that the notice has been validly sent. 1The mailman may also testify that the notice was actually delivered, as we held in Aldecoa vs. Hon. Arellano and Siquenza. 2 The postmaster should certify not only that the notice was issued or sent but also as to how, when and to whom the delivery thereof was made. In Hernandez v. Navarro, 3 where Justice Barredo made a masterly analysis of Section 8, Rule 13, including an exhaustive review of earlier pertinent cases, this Court held as follows: ... Consequently, it cannot be too much to expect that when the post office makes a certification regarding delivery of registered mail, such certification should include the data not only as to whether or not the corresponding notices were issued or sent but also as to how, when and to whom the delivery thereof was made. Accordingly, the certification in the case at bar that the first and second notices addressed to Atty. Narvasa had been "issued" can hardly suffice to requirements of equity and justice, it was incumbent upon the post office to further certify that said notices were reportedly received. When there are several related acts supposed to be performed by a public officer or employee in regard to a particular matter, the presumption of regularity in the performance of official functions would not arise and be considered as comprehending all the required acts, if the certification issued by the proper office refers only to some of such acts, particularly in instances wherein proof of whether or not all of them have been performed is available under the law or office regulations to the officer mailing the certification. In other words, the omission of some of the acts in the certification may justify the inference that from the proof available to the officer there is no showing that they have also been performed. ... There is nothing in the records of the present case showing how, when and to whom the delivery of the registry notices of the subject registered mail of petitioner was made and whether said notices were received by the petitioner. The envelope containing the unclaimed mail merely bore the notation "RETURN TO SENDER: UNCLAIMED" on the face thereof and "Return to: Court of

CRUZ, J.:p The petitioner is questioning the resolution issued by the respondent court on March 12, 1991, reading as follows: Considering that the copy of the resolution dated November 29, 1990 served upon counsel for respondent was returned unclaimed on January 3, 1991, and afterwards the same copy sent to the private respondent itself at given address was likewise returned unclaimed on February 28, 1991, the Court RESOLVED to DECLARE service of the said resolution upon the private respondent complete as of February 28, 1991, pursuant to Sec. 8, Rule 13, Rules of Court. and its resolution dated May 10, 1991, declaring that: Acting upon private respondent's "Motion for Reconsideration" of Resolution of March 12, 1991, the Court RESOLVED: Finding the ground relied upon by private respondent in their motion for reconsideration dated March 21, 1991, to be without merit, as the records show that indeed three (3) notices were sent as reflected in the mailing envelope on file, and that the same was returned unclaimed, said motion is hereby DENIED. The petitioner's counsel submits there was no reason why he could not have claimed the registered mail containing the copy of the resolution dated November 29, 1990, had he been properly sent the notice to claim them. In fact, he says, to ensure prompt receipt of all registered mail addressed to him, his law office has assign and authorized Arnold R. de Francisco, one of its employees, to regularly claim such mail from the post office. He has also attached a copy of the listing in his office of the notices and registered letters received by it from November 23, 1990, to March 21, 1991, covering the date of the resolution contained in the supposedly unclaimed mail dated November 29, 1990, the date when it was returned on January 3, 1991, and the date he received the questioned order on March 21, 1991. The list does not include any notice regarding the said registered letter of November 29, 1990, or the letter itself.

24

Appeals" at the back. The respondent court should not have relied on these notations to support the presumption of constructive service. We hold that the Court of Appeals erred in ruling that the petitioner had been duly served with a copy of the questioned resolution despite the lack of sufficient evidence to support this conclusion. Accordingly, its resolutions dated March 12, 1991, and May 10, 1991, are SET ASIDE, and the respondent court is ordered to properly serve on the petitioner its resolution dated November 29, 1990. SO ORDERED.

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G.R. No. 150758

February 18, 2004

VERONICO TENEBRO, petitioner vs. THE HONORABLE COURT OF APPEALS, respondent. DECISION YNARES-SANTIAGO, J.: We are called on to decide the novel issue concerning the effect of the judicial declaration of the nullity of a second or subsequent marriage, on the ground of psychological incapacity, on an individuals criminal liability for bigamy. We hold that the subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not retroact to the date of the celebration of the marriage insofar as the Philippines penal laws are concerned. As such, an individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab initio on the ground of psychological incapacity. Petitioner in this case, Veronico Tenebro, contracted marriage with private complainant Leticia Ancajas on April 10, 1990. The two were wed by Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City. Tenebro and Ancajas lived together continuously and without interruption until the latter part of 1991, when Tenebro informed Ancajas that he had been previously married to a certain Hilda Villareyes on November 10, 1986. Tenebro showed Ancajas a photocopy of a marriage contract between him and Villareyes. Invoking this previous marriage, petitioner thereafter left the conjugal dwelling which he shared with Ancajas, stating that he was going to cohabit with Villareyes.1 On January 25, 1993, petitioner contracted yet another marriage, this one with a certain Nilda Villegas, before Judge German Lee, Jr. of the Regional Trial Court of Cebu City, Branch 15.2 When Ancajas learned of this third marriage, she verified from Villareyes whether the latter was indeed married to petitioner. In a handwritten letter,3Villareyes confirmed that petitioner, Veronico Tenebro, was indeed her husband. Ancajas thereafter filed a complaint for bigamy against petitioner. 4 The Information,5 which was docketed as Criminal Case No. 013095-L, reads: That on the 10th day of April 1990, in the City of Lapu-lapu, Philippines, and within the jurisdiction of this Honorable Court, the aforenamed accused, having been previously united in lawful marriage with Hilda Villareyes, and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with LETICIA ANCAJAS, which second or subsequent marriage of the accused has all the essential requisites for validity were it not for the subsisting first marriage. CONTRARY TO LAW. When arraigned, petitioner entered a plea of "not guilty".6 During the trial, petitioner admitted having cohabited with Villareyes from 1984-1988, with whom he sired two children. However, he denied that he and Villareyes were validly married to each other, claiming that no marriage ceremony took place to solemnize their union. 7 He alleged that he signed a marriage contract merely to enable her to get the allotment from his office in

connection with his work as a seaman.8 He further testified that he requested his brother to verify from the Civil Register in Manila whether there was any marriage at all between him and Villareyes, but there was no record of said marriage.9 On November 10, 1997, the Regional Trial Court of Lapu-lapu City, Branch 54, rendered a decision finding the accused guilty beyond reasonable doubt of the crime of bigamy under Article 349 of the Revised Penal Code, and sentencing him to four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum.10 On appeal, the Court of Appeals affirmed the decision of the trial court. Petitioners motion for reconsideration was denied for lack of merit. Hence, the instant petition for review on the following assignment of errors: I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED, AND THIS ERROR IS CORRECTIBLE IN THIS APPEAL WHEN IT AFFIRMED THE DECISION OF THE HONORABLE COURT A QUO CONVICTING THE ACCUSED FOR (sic) THE CRIME OF BIGAMY, DESPITE THE NON-EXISTENCE OF THE FIRST MARRIAGE AND INSUFFICIENCY OF EVIDENCE. II. THE COURT ERRED IN CONVICTING THE ACCUSED FOR (sic) THE CRIME OF BIGAMY DESPITE CLEAR PROOF THAT THE MARRIAGE BETWEEN THE ACCUSED AND PRIVATE COMPLAINANT HAD BEEN DECLARED NULL AND VOID AB INITIO AND WITHOUT LEGAL FORCE AND EFFECT.11 After a careful review of the evidence on record, we find no cogent reason to disturb the assailed judgment. Under Article 349 of the Revised Penal Code, the elements of the crime of Bigamy are: (1) that the offender has been legally married; (2) that the first marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; (3) that he contracts a second or subsequent marriage; and (4) that the second or subsequent marriage has all the essential requisites for validity.12 Petitioners assignment of errors presents a two-tiered defense, in which he (1) denies the existence of his first marriage to Villareyes, and (2) argues that the declaration of the nullity of the second marriage on the ground of psychological incapacity, which is an alleged indicator that his marriage to Ancajas lacks the essential requisites for validity, retroacts to the date on which the second marriage was celebrated.13 Hence, petitioner argues that all four of the elements of the crime of bigamy are absent, and prays for his acquittal. 14 Petitioners defense must fail on both counts. First, the prosecution presented sufficient evidence, both documentary and oral, to prove the existence of the first marriage between petitioner and Villareyes. Documentary evidence

26

presented was in the form of: (1) a copy of a marriage contract between Tenebro and Villareyes, dated November 10, 1986, which, as seen on the document, was solemnized at the Manila City Hall before Rev. Julieto Torres, a Minister of the Gospel, and certified to by the Office of the Civil Registrar of Manila;15 and (2) a handwritten letter from Villareyes to Ancajas dated July 12, 1994, informing Ancajas that Villareyes and Tenebro were legally married. 16 To assail the veracity of the marriage contract, petitioner presented (1) a certification issued by the National Statistics Office dated October 7, 1995;17 and (2) a certification issued by the City Civil Registry of Manila, dated February 3, 1997.18 Both these documents attest that the respective issuing offices have no record of a marriage celebrated between Veronico B. Tenebro and Hilda B. Villareyes on November 10, 1986. To our mind, the documents presented by the defense cannot adequately assail the marriage contract, which in itself would already have been sufficient to establish the existence of a marriage between Tenebro and Villareyes. All three of these documents fall in the category of public documents, and the Rules of Court provisions relevant to public documents are applicable to all. Pertinent to the marriage contract, Section 7 of Rule 130 of the Rules of Court reads as follows: Sec. 7. Evidence admissible when original document is a public record. When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof (Emphasis ours). This being the case, the certified copy of the marriage contract, issued by a public officer in custody thereof, was admissible as the best evidence of its contents. The marriage contract plainly indicates that a marriage was celebrated between petitioner and Villareyes on November 10, 1986, and it should be accorded the full faith and credence given to public documents. Moreover, an examination of the wordings of the certification issued by the National Statistics Office on October 7, 1995 and that issued by the City Civil Registry of Manila on February 3, 1997 would plainly show that neither document attests as a positive fact that there was no marriage celebrated between Veronico B. Tenebro and Hilda B. Villareyes on November 10, 1986. Rather, the documents merely attest that the respective issuing offices have no record of such a marriage. Documentary evidence as to the absence of a record is quite different from documentary evidence as to the absence of a marriage ceremony, or documentary evidence as to the invalidity of the marriage between Tenebro and Villareyes. The marriage contract presented by the prosecution serves as positive evidence as to the existence of the marriage between Tenebro and Villareyes, which should be given greater credence than documents testifying merely as to absence of any record of the marriage, especially considering that there is absolutely no requirement in the law that a marriage contract needs to be submitted to the civil registrar as a condition precedent for the validity of a marriage. The mere fact that no record of a marriage exists does not invalidate the marriage, provided all requisites for its validity are present.19 There is no evidence presented by the defense that would indicate that the marriage between Tenebro and Villareyes lacked any requisite for validity, apart from the self-serving testimony of the accused himself. Balanced against this testimony are Villareyes letter, Ancajas testimony that petitioner informed her of the existence of the valid fir st marriage, and petitioners own conduct, which would all tend to indicate that the first marriage had all the requisites for validity. Finally, although the accused claims that he took steps to verify the non-existence of the first marriage to Villareyes by requesting his brother to validate such purported non-existence, it is significant to note that the certifications issued by the National Statistics Office and the City Civil

Registry of Manila are dated October 7, 1995 and February 3, 1997, respectively. Both documents, therefore, are dated after the accuseds marriage to his second wife, private respondent in this case. As such, this Court rules that there was sufficient evidence presented by the prosecution to prove the first and second requisites for the crime of bigamy. The second tier of petitioners defense hinges on the effects of the subsequent judicial declaration20 of the nullity of the second marriage on the ground of psychological incapacity. Petitioner argues that this subsequent judicial declaration retroacts to the date of the celebration of the marriage to Ancajas. As such, he argues that, since his marriage to Ancajas was subsequently declared void ab initio, the crime of bigamy was not committed. 21 This argument is not impressed with merit. Petitioner makes much of the judicial declaration of the nullity of the second marriage on the ground of psychological incapacity, invoking Article 36 of the Family Code. What petitioner fails to realize is that a declaration of the nullity of the second marriage on the ground of psychological incapacity is of absolutely no moment insofar as the States penal laws are concerned. As a second or subsequent marriage contracted during the subsistence of petitioners valid marriage to Villareyes, petitioners marriage to Ancajas would be null and void ab initio completely regardless of petitioners psychological capacity or incapacity. 22 Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. Pertinently, Article 349 of the Revised Penal Code criminalizes "any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings". A plain reading of the law, therefore, would indicate that the provision penalizes the mere act of contracting a second or a subsequent marriage during the subsistence of a valid marriage. Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990, during the subsistence of the valid first marriage, the crime of bigamy had already been consummated. To our mind, there is no cogent reason for distinguishing between a subsequent marriage that is null and void purely because it is a second or subsequent marriage, and a subsequent marriage that is null and void on the ground of psychological incapacity, at least insofar as criminal liability for bigamy is concerned. The States penal laws protecting the institution of marriage are in recognition of the sacrosanct character of this special contract between spouses, and punish an individuals deliberate disregard of the permanent character of the special bond between spouses, which petitioner has undoubtedly done. Moreover, the declaration of the nullity of the second marriage on the ground of psychological incapacity is not an indicator that petitioners marriage to Ancajas lacks the essential requisites for validity. The requisites for the validity of a marriage are classified by the Family Code into essential (legal capacity of the contracting parties and their consent freely given in the presence of the solemnizing officer)23 and formal (authority of the solemnizing officer, marriage license, and marriage ceremony wherein the parties personally declare their agreement to marry before the solemnizing officer in the presence of at least two witnesses). 24 Under Article 5 of the Family Code, any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 3725 and 3826 may contract marriage.27

27

In this case, all the essential and formal requisites for the validity of marriage were satisfied by petitioner and Ancajas. Both were over eighteen years of age, and they voluntarily contracted the second marriage with the required license before Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City, in the presence of at least two witnesses. Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, it is significant to note that said marriage is not without legal effects. Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate.28 There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for bigamy. To hold otherwise would render the States penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity and commitment. As such, we rule that the third and fourth requisites for the crime of bigamy are present in this case, and affirm the judgment of the Court of Appeals. As a final point, we note that based on the evidence on record, petitioner contracted marriage a third time, while his marriages to Villareyes and Ancajas were both still subsisting. Although this is irrelevant in the determination of the accuseds guilt for purposes of this particular case, the act of the accused displays a deliberate disregard for the sanctity of marriage, and the State does not look kindly on such activities. Marriage is a special contract, the key characteristic of which is its permanence. When an individual manifests a deliberate pattern of flouting the foundation of the States basic social institution, the States criminal laws on bigamy step in. Under Article 349 of the Revised Penal Code, as amended, the penalty for the crime of bigamy is prision mayor, which has a duration of six (6) years and one (1) day to twelve (12) years. There being neither aggravating nor mitigating circumstance, the same shall be imposed in its medium period. Applying the Indeterminate Sentence Law, petitioner shall be entitled to a minimum term, to be taken from the penalty next lower in degree, i.e., prision correccional which has a duration of six (6) months and one (1) day to six (6) years. Hence, the Court of Appeals correctly affirmed the decision of the trial court which sentenced petitioner to suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum. WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED. The assailed decision of the Court of Appeals in CA-G.R. CR No. 21636, convicting petitioner Veronico Tenebro of the crime of Bigamy and sentencing him to suffer the indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum, is AFFIRMED in toto. SO ORDERED.

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FIRST DIVISION

The facts of the case are narrated by the CA as follows: On November 8, 1982, plaintiff CASA Montessori International[5] opened Current Account No. 02910081-01 with defendant BPI[,] with CASAs President Ms. Ma. Carina C. Lebron as one of its authorized signatories. In 1991, after conducting an investigation, plaintiff discovered that nine (9) of its checks had been encashed by a certain Sonny D. Santos since 1990 in the total amount of P782,000.00, on the following dates and amounts: Check No. 1. 839700 839459 839609 839549 839569 729149 729129 839684 729034 Date April 24, 1990 Nov. 2, 1990 Oct. 17, 1990 April 7, 1990 Sept. 23, 1990 Mar. 22, 1990 Mar. 16, 1990 Dec. 1, 1990 Mar. 2, 1990 Total -Amount P 43,400.00 110,500.00 47,723.00 90,700.00 52,277.00 148,000.00 51,015.00 140,000.00 98,985.00 P 782,600.00[6]

[G.R. No. 149454. May 28, 2004]

BANK

OF THE PHILIPPINE ISLANDS, petitioner, vs. CASA INTERNATIONALE and LEONARDO T. YABUT, respondents.

MONTESSORI

[G.R. No. 149507. May 28, 2004] 2. 3. CASA MONTESSORI INTERNATIONALE, petitioner, vs. BANK OF THE PHILIPPINE ISLANDS, respondent. DECISION PANGANIBAN, J.: By the nature of its functions, a bank is required to take meticulous care of the deposits of its clients, who have the right to expect high standards of integrity and performance from it. Among its obligations in furtherance thereof is knowing the signatures of its clients. Depositors are not estopped from questioning wrongful withdrawals, even if they have failed to question those errors in the statements sent by the bank to them for verification. 4. 5. 6. 7. 8. 9. The Case

Before us are two Petitions for Review[1] under Rule 45 of the Rules of Court, assailing the March 23, 2001 Decision[2] and the August 17, 2001 Resolution[3] of the Court of Appeals (CA) in CA-GR CV No. 63561. The decretal portion of the assailed Decision reads as follows: WHEREFORE, upon the premises, the decision appealed from is AFFIRMED with the modification that defendant bank [Bank of the Philippine Islands (BPI)] is held liable only for one-half of the value of the forged checks in the amount of P547,115.00 after deductions subject to REIMBURSEMENT from third party defendant Yabut who is likewise ORDERED to pay the other half to plaintiff corporation [Casa Montessori Internationale (CASA)].[4] The assailed Resolution denied all the parties Motions for Reconsideration.

It turned out that Sonny D. Santos with account at BPIs Greenbelt Branch [was] a fi ctitious name used by third party defendant Leonardo T. Yabut who worked as external auditor of CASA. Third party defendant voluntarily admitted that he forged the signature of Ms. Lebron and encashed the checks. The PNP Crime Laboratory conducted an exam ination of the nine (9) checks and concluded that the handwritings thereon compared to the standard signature of Ms. Lebron were not written by the latter. On March 4, 1991, plaintiff filed the herein Complaint for Collection with Damages against defendant bank praying that the latter be ordered to reinstate the amount of P782,500.00[7] in the current and savings accounts of the plaintiff with interest at 6% per annum. On February 16, 1999, the RTC rendered the appealed decision in favor of the plaintiff.[8]

The Facts

Ruling of the Court of Appeals

29

Modifying the Decision of the Regional Trial Court (RTC), the CA apportioned the loss between BPI and CASA. The appellate court took into account CASAs contributory negligence that resulted in the undetected forgery. It then ordered Leonardo T. Yabut to reimburse BPI half the total amount claimed; and CASA, the other half. It also disallowed attorneys fees and moral and exemplary damages. Hence, these Petitions.[9]

Section 23 of the NIL provides: Section 23. Forged signature; effect of. -- When a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right x x x to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.[12] Under this provision, a forged signature is a real[13] or absolute defense,[14] and a person whose signature on a negotiable instrument is forged is deemed to have never become a party thereto and to have never consented to the contract that allegedly gave rise to it.[15] The counterfeiting of any writing, consisting in the signing of anothers name with intent to defraud, is forgery.[16] In the present case, we hold that there was forgery of the drawers signature on the check. First, both the CA[17] and the RTC[18] found that Respondent Yabut himself had voluntarily admitted, through an Affidavit, that he had forged the drawers signature and encashed the checks.[19] He never refuted these findings.[20] That he had been coerced into admission was not corroborated by any evidence on record.[21] Second, the appellate and the trial courts also ruled that the PNP Crime Laboratory, after its examination of the said checks,[22] had concluded that the handwritings thereon -- compared to the standard signature of the drawer -- were not hers.[23] This conclusion was the same as that in the Report[24] that the PNP Crime Laboratory had earlier issued to BPI -- the drawee bank -- upon the latters request. Indeed, we respect and affirm the RTCs factual findings, especially when affirmed by the CA, since these are supported by substantial evidence on record.[25]

Issues

In GR No. 149454, Petitioner BPI submits the following issues for our consideration: I. The Honorable Court of Appeals erred in deciding this case NOT in accord with the applicable decisions of this Honorable Court to the effect that forgery cannot be presumed; that it must be proved by clear, positive and convincing evidence; and that the burden of proof lies on the party alleging the forgery. II. The Honorable Court of Appeals erred in deciding this case not in accord with applicable laws, in particular the Negotiable Instruments Law (NIL) which precludes CASA, on account of its own negligence, from asserting its forgery claim against BPI, specially taking into account the absence of any negligence on the part of BPI.[10] In GR No. 149507, Petitioner CASA submits the following issues: 1. The Honorable Court of Appeals erred when it ruled that there is no showing that [BPI], although negligent, acted in bad faith x x x thus denying the prayer for the award of attorneys fees, moral damages and exemplary damages to [CASA]. The Honorable Court also erred when it did not order [BPI] to pay interest on the amounts due to [CASA]. 2. The Honorable Court of Appeals erred when it declared that [CASA] was likewise negligent in the case at bar, thus warranting its conclusion that the loss in the amount of P547,115.00 be apportioned between [CASA] and [BPI] x x x.[11] These issues can be narrowed down to three. First, was there forgery under the Negotiable Instruments Law (NIL)? Second, were any of the parties negligent and therefore precluded from setting up forgery as a defense? Third, should moral and exemplary damages, attorneys fees, and interest be awarded?

Voluntary Admission Not Violative of Constitutional Rights

The voluntary admission of Yabut did not violate his constitutional rights (1) on custodial investigation, and (2) against self-incrimination. In the first place, he was not under custodial investigation. [26] His Affidavit was executed in private and before private individuals.[27] The mantle of protection under Section 12 of Article III of the 1987 Constitution[28] covers only the period from the time a person is taken into custody for investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of a crime although not yet in custody. [29] Therefore, to fall within the ambit of Section 12, quoted above, there must be an arrest or a deprivation of freedom, with questions propounded on him by the police authorities for the purpose of eliciting admissions, confessions, or any information.[30] The said constitutional provision does not apply to spontaneous statements made in a voluntary manner [31] whereby an individual orally admits to authorship of a crime.[32] What the Constitution proscribes is the compulsory or coercive disclosure of incriminating facts.[33] Moreover, the right against self-incrimination[34] under Section 17 of Article III[35] of the Constitution, which is ordinarily available only in criminal prosecutions, extends to all other government proceedings -- including civil actions, legislative investigations,[36] and administrative proceedings that possess a criminal or penal aspect[37] -- but not to private investigations done by private individuals. Even in such government proceedings, this right may be

The Courts Ruling

The Petition in GR No. 149454 has no merit, while that in GR No. 149507 is partly meritorious.

First Issue: Forged Signature Wholly Inoperative

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waived,[38] provided the waiver is certain; unequivocal; and intelligently, understandingly and willingly made.[39] If in these government proceedings waiver is allowed, all the more is it so in private investigations. It is of no moment that no criminal case has yet been filed against Yabut. The filing thereof is entirely up to the appropriate authorities or to the private individuals upon whom damage has been caused. As we shall also explain later, it is not mandatory for CASA -- the plaintiff below -- to implead Yabut in the civil case before the lower court. Under these two constitutional provisions, [t]he Bill of Rights[40] does not concern itself with the relation between a private individual and another individual. It governs the relationship between the individual and the State.[41] Moreover, the Bill of Rights is a charter of liberties for the individual and a limitation upon the power of the [S]tate.[42] These rights[43] are guaranteed to preclude the slightest coercion by the State that may lead the accused to admit something false, not prevent him from freely and voluntarily telling the truth.[44] Yabut is not an accused here. Besides, his mere invocation of the aforesaid rights does not automatically entitle him to the constitutional protection.[45] When he freely and voluntarily executed[46] his Affidavit, the State was not even involved. Such Affidavit may therefore be admitted without violating his constitutional rights while under custodial investigation and against self-incrimination.

comparison of the questioned handwritings and admittedly genuine specimens thereof,[60] but above all by her. The failure of CASA to produce the original checks neither gives rise to the presumption of suppression of evidence[61] nor creates an unfavorable inference against it.[62] Such failure merely authorizes the introduction of secondary evidence[63] in the form of microfilm copies. Of no consequence is the fact that CASA did not present the signature card containing the signatures with which those on the checks were compared. [64] Specimens of standard signatures are not limited to such a card. Considering that it was not produced in evidence, other documents that bear the drawers authentic signature may be resorted to. [65] Besides, that card was in the possession of BPI -- the adverse party. We have held that without the original document containing the allegedly forged signature, one cannot make a definitive comparison that would establish forgery; [66] and that a comparison based on a mere reproduction of the document under controversy cannot produce reliable results.[67] We have also said, however, that a judge cannot merely rely on a handwriting experts testimony,[68] but should also exercise independent judgment in evaluating the authenticity of a signature under scrutiny.[69] In the present case, both the RTC and the CA conducted independent examinations of the evidence presented and arrived at reasonable and similar conclusions. Not only did they admit secondary evidence; they also appositely considered testimonial and other documentary evidence in the form of the Affidavit. The best evidence rule admits of exceptions and, as we have discussed earlier, the first of these has been met.[70] The result of examining a questioned handwriting, even with the aid of experts and scientific instruments, may be inconclusive;[71] but it is a non sequitur to say that such result is not clear, positive and convincing. The preponderance of evidence required in this case has been satisfied.[72]

Clear, Positive and Convincing Examination and Evidence

The examination by the PNP, though inconclusive, was nevertheless clear, positive and convincing. Forgery cannot be presumed.[47] It must be established by clear, positive and convincing evidence.[48] Under the best evidence rule as applied to documentary evidence like the checks in question, no secondary or substitutionary evidence may inceptively be introduced, as the original writing itself must be produced in court.[49] But when, without bad faith on the part of the offeror, the original checks have already been destroyed or cannot be produced in court, secondary evidence may be produced.[50] Without bad faith on its part, CASA proved the loss or destruction of the original checks through the Affidavit of the one person who knew of that fact[51] -- Yabut. He clearly admitted to discarding the paid checks to cover up his misdeed.[52] In such a situation, secondary evidence like microfilm copies may be introduced in court. The drawers signatures on the microfilm copies were compared with the standard signature. PNP Document Examiner II Josefina de la Cruz testified on cross-examination that two different persons had written them.[53] Although no conclusive report could be issued in the absence of the original checks,[54] she affirmed that her findings were 90 percent conclusive.[55]According to her, even if the microfilm copies were the only basis of comparison, the differences were evident.[56] Besides, the RTC explained that although the Report was inconclusive, no conclusive report could have been given by the PNP, anyway, in the absence of the original checks.[57] This explanation is valid; otherwise, no such report can ever be relied upon in court. Even with respect to documentary evidence, the best evidence rule applies only when the contents of a document -- such as the drawers signature on a check -- is the subject of inquiry.[58]As to whether the document has been actually executed, this rule does not apply; and testimonial as well as any other secondary evidence is admissible. [59] Carina Lebron herself, the drawers authorized signatory, testified many times that she ha d never signed those checks. Her testimonial evidence is admissible; the checks have not been actually executed. The genuineness of her handwriting is proved, not only through the courts

Second Issue: Negligence Attributable to BPI Alone

Having established the forgery of the drawers signature, BPI -- the drawee -- erred in making payments by virtue thereof. The forged signatures are wholly inoperative, and CASA -- the drawer whose authorized signatures do not appear on the negotiable instruments -- cannot be held liable thereon. Neither is the latter precluded from setting up forgery as a real defense.

Clear Negligence in Allowing Payment Under a Forged Signature

We have repeatedly emphasized that, since the banking business is impressed with public interest, of paramount importance thereto is the trust and confidence of the public in general. Consequently, the highest degree of diligence[73] is expected,[74] and high standards of integrity and performance are even required, of it.[75] By the nature of its functions, a bank is under obligation to treat the accounts of its depositors with meticulous care, [76] always having in mind the fiduciary nature of their relationship.[77] BPI contends that it has a signature verification procedure, in which checks are honored only when the signatures therein are verified to be the same with or similar to the specimen signatures on the signature cards. Nonetheless, it still failed to detect the eight instances of forgery. Its negligence consisted in the omission of that degree of diligence required[78] of a bank. It cannot now feign ignorance, for very early on we have already ruled that a bank is

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bound to know the signatures of its customers; and if it pays a forged check, it must be considered as making the payment out of its own funds, and cannot ordinarily charge the amount so paid to the account of the depositor whose name was forged. [79] In fact, BPI was the same bank involved when we issued this ruling seventy years ago.

Loss Borne by Proximate Source of Negligence

Neither Waiver nor Estoppel Results from Failure to Report Error in Bank Statement

For allowing payment[100] on the checks to a wrongful and fictitious payee, BPI -- the drawee bank -- becomes liable to its depositor-drawer. Since the encashing bank is one of its branches,[101] BPI can easily go after it and hold it liable for reimbursement. [102] It may not debit the drawers account[103] and is not entitled to indemnification from the drawer.[104] In both law and equity, when one of two innocent persons must suffer by the wrongful act of a third person, the loss must be borne by the one whose negligence was the proximate cause of the loss or who put it into the power of the third person to perpetrate the wrong.[105] Proximate cause is determined by the facts of the case.[106] It is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.[107] Pursuant to its prime duty to ascertain well the genuineness of the signatures of its clientdepositors on checks being encashed, BPI is expected to use reasonable business prudence.[108]In the performance of that obligation, it is bound by its internal banking rules and regulations that form part of the contract it enters into with its depositors. [109] Unfortunately, it failed in that regard. First, Yabut was able to open a bank account in one of its branches without privity;[110] that is, without the proper verification of his corresponding identification papers. Second, BPI was unable to discover early on not only this irregularity, but also the marked differences in the signatures on the checks and those on the signature card. Third, despite the examination procedures it conducted, the Central Verification Unit [111] of the bank even passed off these evidently different signatures as genuine. Without exercising the required prudence on its part, BPI accepted and encashed the eight checks presented to it. As a result, it proximately contributed to the fraud and should be held primarily liable [112] for the negligence of its officers or agents when acting within the course and scope of their employment.[113] It must bear the loss.

The monthly statements issued by BPI to its clients contain a notice worded as follows: If no error is reported in ten (10) days, account will be correct. [80] Such notice cannot be considered a waiver, even if CASA failed to report the error. Neither is it estopped from questioning the mistake after the lapse of the ten-day period. This notice is a simple confirmation[81] or circularization -- in accounting parlance -- that requests client-depositors to affirm the accuracy of items recorded by the banks. [82] Its purpose is to obtain from the depositors a direct corroboration of the correctness of their account balances with their respective banks.[83] Internal or external auditors of a bank use it as a basic audit procedure[84] -- the results of which its client-depositors are neither interested in nor privy to -- to test the details of transactions and balances in the banks records. [85] Evidential matter obtained from independent sources outside a bank only serves to provide greater assurance of reliability[86] than that obtained solely within it for purposes of an audit of its own financial statements, not those of its client-depositors. Furthermore, there is always the audit risk that errors would not be detected [87] for various reasons. One, materiality is a consideration in audit planning;[88] and two, the information obtained from such a substantive test is merely presumptive and cannot be the basis of a valid waiver.[89] BPI has no right to impose a condition unilaterally and thereafter consider failure to meet such condition a waiver. Neither may CASA renounce a right[90] it has never possessed.[91] Every right has subjects -- active and passive. While the active subject is entitled to demand its enforcement, the passive one is duty-bound to suffer such enforcement.[92] On the one hand, BPI could not have been an active subject, because it could not have demanded from CASA a response to its notice. Besides, the notice was a measly request worded as follows: Please examine x x x and report x x x.[93] CASA, on the other hand, could not have been a passive subject, either, because it had no obligation to respond. It could -- as it did -- choose not to respond. Estoppel precludes individuals from denying or asserting, by their own deed or representation, anything contrary to that established as the truth, in legal contemplation. [94] Our rules on evidence even make a juris et de jure presumption[95] that whenever one has, by ones own act or omission, intentionally and deliberately led another to believe a particular thing to be true and to act upon that belief, one cannot -- in any litigation arising from such act or omission -be permitted to falsify that supposed truth.[96] In the instant case, CASA never made any deed or representation that misled BPI. The formers omission, if any, may only be deemed an innocent mistake oblivious to the procedures and consequences of periodic audits. Since its conduct was due to such ignorance founded upon an innocent mistake, estoppel will not arise. [97] A person who has no knowledge of or consent to a transaction may not be estopped by it. [98] Estoppel cannot be sustained by mere argument or doubtful inference x x x.[99] CASA is not barred from questioning BPIs error even after the lapse of the period given in the notice.

CASA Not Negligent in Its Financial Affairs

In this jurisdiction, the negligence of the party invoking forgery is recognized as an exception[114] to the general rule that a forged signature is wholly inoperative.[115] Contrary to BPIs claim, however, we do not find CASA negligent in handling its financial affairs. CASA, we stress, is not precluded from setting up forgery as a real defense.

Role of Independent Auditor

The major purpose of an independent audit is to investigate and determine objectively if the financial statements submitted for audit by a corporation have been prepared in accordance with the appropriate financial reporting practices[116] of private entities. The relationship that arises therefrom is both legal and moral.[117] It begins with the execution of the engagement letter[118] that embodies the terms and conditions of the audit and ends with the fulfilled expectation of the auditors ethical[119] and competent performance in all aspects of the audit.[120] The financial statements are representations of the client; but it is the auditor who has the responsibility for the accuracy in the recording of data that underlies their preparation, their form

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of presentation, and the opinion[121] expressed therein.[122] The auditor does not assume the role of employee or of management in the clients conduct of operations [123] and is never under the control or supervision[124] of the client. Yabut was an independent auditor[125] hired by CASA. He handled its monthly bank reconciliations and had access to all relevant documents and checkbooks. [126] In him was reposed the clients[127] trust and confidence[128] that he would perform precisely those functions and apply the appropriate procedures in accordance with generally accepted auditing standards.[129] Yet he did not meet these expectations. Nothing could be more horrible to a client than to discover later on that the person tasked to detect fraud was the same one who perpetrated it.

The missing checks were certainly reported by the bookkeeper [142] to the accountant[143] -her immediate supervisor -- and by the latter to the auditor. However, both the accountant and the auditor, for reasons known only to them, assured the bookkeeper that there were no irregularities. The bookkeeper[144] who had exclusive custody of the checkbooks [145] did not have to go directly to CASAs president or to BPI. Although she rightfully reported the matter, neither an investigation was conducted nor a resolution of it was arrived at, precisely because the person at the top of the helm was the culprit. The vouchers, invoices and check stubs in support of all check disbursements could be concealed or fabricated -- even in collusion -- and management would still have no way to verify its cash accountabilities. Clearly then, Yabut was able to perpetrate the wrongful act through no fault of CASA. If auditors may be held liable for breach of contract and negligence, [146] with all the more reason may they be charged with the perpetration of fraud upon an unsuspecting client. CASA had the discretion to pursue BPI alone under the NIL, by reason of expediency or munificence or both. Money paid under a mistake may rightfully be recovered, [147] and under such terms as the injured party may choose.

Cash Balances Open to Manipulation

It is a non sequitur to say that the person who receives the monthly bank statements, together with the cancelled checks and other debit/credit memoranda, shall examine the contents and give notice of any discrepancies within a reasonable time. Awareness is not equipollent with discernment. Besides, in the internal accounting control system prudently installed by CASA, [130] it was Yabut who should examine those documents in order to prepare the bank reconciliations. [131] He owned his working papers,[132] and his output consisted of his opinion as well as the clients financial statements and accompanying notes thereto. CASA had every right to rely solely upon his output -- based on the terms of the audit engagement -- and could thus be unwittingly duped into believing that everything was in order. Besides, [g]ood faith is always presumed and it is the burden of the party claiming otherwise to adduce clear and convincing evidence to the contrary.[133] Moreover, there was a time gap between the period covered by the bank statement and the date of its actual receipt. Lebron personally received the December 1990 bank statement only in January 1991[134] -- when she was also informed of the forgery for the first time, after which she immediately requested a stop payment order. She cannot be faulted for the late detection of the forged December check. After all, the bank account with BPI was not personal but corporate, and she could not be expected to monitor closely all its finances. A preschool teacher charged with molding the minds of the youth cannot be burdened with the intricacies or complexities of corporate existence. There is also a cutoff period such that checks issued during a given month, but not presented for payment within that period, will not be reflected therein. [135] An experienced auditor with intent to defraud can easily conceal any devious scheme from a client unwary of the accounting processes involved by manipulating the cash balances on record -- especially when bank transactions are numerous, large and frequent. CASA could only be blamed, if at all, for its unintelligent choice in the selection and appointment of an auditor -- a fault that is not tantamount to negligence. Negligence is not presumed, but proven by whoever alleges it.[136] Its mere existence is not sufficient without proof that it, and no other cause,[137] has given rise to damages.[138] In addition, this fault is common to, if not prevalent among, small and medium-sized business entities, thus leading the Professional Regulation Commission (PRC), through the Board of Accountancy (BOA), to require today not only accreditation for the practice of public accountancy,[139] but also the registration of firms in the practice thereof. In fact, among the attachments now required upon registration are the code of good governance [140] and a sworn statement on adequate and effective training.[141]

Third Issue: Award of Monetary Claims

Moral Damages Denied

We deny CASAs claim for moral damages. In the absence of a wrongful act or omission, [148] or of fraud or bad faith,[149] moral damages cannot be awarded.[150] The adverse result of an action does not per se make the action wrongful, or the party liable for it. One may err, but error alone is not a ground for granting such damages.[151] While no proof of pecuniary loss is necessary therefor -- with the amount to be awarded left to the courts discretion[152] -- the claimant must nonetheless satisfactorily prove the existence of its factual basis [153] and causal relation[154] to the claimants act or omission.[155] Regrettably, in this case CASA was unable to identify the particular instance -enumerated in the Civil Code -- upon which its claim for moral damages is predicated.[156] Neither bad faith nor negligence so gross that it amounts to malice[157] can be imputed to BPI. Bad faith, under the law, does not simply connote bad judgment or negligence;[158] it imports a dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a known duty through some motive or interest or ill will that partakes of the nature of fraud.[159] As a general rule, a corporation -- being an artificial person without feelings, emotions and senses, and having existence only in legal contemplation -- is not entitled to moral damages,[160]because it cannot experience physical suffering and mental anguish. [161] However, for breach of the fiduciary duty required of a bank, a corporate client may claim such damages when its good reputation is besmirched by such breach, and social humiliation results therefrom.[162] CASA was unable to prove that BPI had debased the good reputation of, [163] and consequently caused incalculable embarrassment to, the former. CASAs mere allegation or supposition thereof, without any sufficient evidence on record,[164] is not enough.

Exemplary Damages Also Denied

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We also deny CASAs claim for exemplary damages. Imposed by way of correction for the public good, exemplary damages cannot be recovered as a matter of right.[167] As we have said earlier, there is no bad faith on the part of BPI for paying the checks of CASA upon forged signatures. Therefore, the former cannot be said to have acted in a wanton, fraudulent, reckless, oppressive or malevolent manner.[168] The latter, having no right to moral damages, cannot demand exemplary damages.[169]
[165] [166]

already recovered by CASA from Leonardo T. Yabut, plus interest at the legal rate of six percent (6%) per annum -- compounded annually, from the filing of the complaint until paid in full; and attorneys fees of ten percent (10%) thereof, subject to reimbu rsement from Respondent Yabut for the entire amount, excepting attorneys fees. Let a copy of this Decision be furnished the Board of Accountancy of the Professional Regulation Commission for such action as it may deem appropriate against Respondent Yabut. No costs. SO ORDERED.

Attorneys Fees Granted

Although it is a sound policy not to set a premium on the right to litigate, [170] we find that CASA is entitled to reasonable attorneys fees based on factual, legal, and equitable justification.[171] When the act or omission of the defendant has compelled the plaintiff to incur expenses to protect the latters interest,[172] or where the court deems it just and equitable, [173] attorneys fees may be recovered. In the present case, BPI persistently denied the claim of CASA under the NIL to recredit the latters account for the value of the forged checks. This denial constrained CASA to incur expenses and exert effort for more than ten years in order to protect its corporate interest in its bank account. Besides, we have already cautioned BPI on a similar act of negligence it had committed seventy years ago, but it has remained unrelenting. Therefore, the Court deems it just and equitable to grant ten percent (10%)[174] of the total value adjudged to CASA as attorneys fees.

Interest Allowed

For the failure of BPI to pay CASA upon demand and for compelling the latter to resort to the courts to obtain payment, legal interest may be adjudicated at the discretion of the Court, the same to run from the filing[175] of the Complaint.[176] Since a court judgment is not a loan or a forbearance of recovery, the legal interest shall be at six percent (6%) per annum.[177] If the obligation consists in the payment of a sum of money, and the debtor incurs in delay, the indemnity for damages, there being no stipulation to the contrary, shall be the payment of x x x legal interest, which is six percent per annum.[178] The actual base for its computation shall be on the amount finally adjudged,[179] compounded[180] annually to make up for the cost of money[181]already lost to CASA. Moreover, the failure of the CA to award interest does not prevent us from granting it upon damages awarded for breach of contract.[182] Because BPI evidently breached its contract of deposit with CASA, we award interest in addition to the total amount adjudged. Under Section 196 of the NIL, any case not provided for shall be governed by the provisions of existing legislation or, in default thereof, by the rules of the law merchant.[183] Damages are not provided for in the NIL. Thus, we resort to the Code of Commerce and the Civil Code. Under Article 2 of the Code of Commerce, acts of commerce shall be governed by its provisions and, in their absence, by the usages of commerce generally observed in each place; and in the absence of both rules, by those of the civil law.[184] This law being silent, we look at Article 18 of the Civil Code, which states: In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by its provisions. A perusal of these three statutes unmistakably shows that the award of interest under our civil law is justified. WHEREFORE, the Petition in GR No. 149454 is hereby DENIED, and that in GR No. 149507 PARTLY GRANTED. The assailed Decision of the Court of Appeals is AFFIRMED with modification: BPI is held liable for P547,115, the total value of the forged checks less the amount

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Consolidated Bank and Trust Corporation vs Del Monte Motor Works, Inc. (GR. 143338) FACTS: Petitioner Consolidated Bank filed a complaint for recovery of sum of money against respondents Del Monte Motor Works (Del Monte) and Narciso Morales and spouse in order to bind the conjugal partnership of the latter. Petitioner Consolidated Bank, domestic banking and trust corporation, extended a loan (P1M) evidenced by a promissory note executed by respondents. Respondents defaulted on their payments which already became due and demandable. Oral and written demands were made but to no avail. Respondent corporation filed its manifestation specifically denying the allegations together with its affirmative defenses. Likewise, respondent Morales filed his manifestation specifically denying liability on the promissory note, claiming that the system of separation of property governs and not the conjugal partnership of gains, and making special and affirmative defenses. During the formal offer of evidence, the original copy of the promissory note (Exhibit A) could no longer be found. Thus, petitioner sought the admission of the duplicate original copy of the same as evidence Exhibit E. The court initially admitted the evidence. Later, both respondents claimed that Exhibit E was immaterial, irrelevant, not properly identified and hearsay evidence, and some markings found in the original promissory note were not contained in Exhibit E. Despite such arguments, they still failed to insist that the due execution and genuineness of the promissory note were not established. The RTC dismissed the complaint of petitioner without giving the latter opportunity to prove that the original promissory note was delivered to respondent corporation. CA affirmed RTC decision. ISSUE: W/N the Best Evidence Rule is applicable. HELD: No. Both the court a quo and CA erred in ruling that respondents were able to specifically deny the allegation in petitioners complaint in the manner specifically required by the rules. In effect, respondents admitted the genuineness and due execution of the subject promissory note and recognized their obligation to petitioner. The respondents never disputed the terms and conditions of the promissory note. Thus, as far as the parties are concerned, the wording or content of said note is clear and leaves no room for disagreement. In the respondents pleadings, the defenses were the alleged lack of consideration and that respondent Morales did not sign the note in his personal capacity. In addition, the Best Evidence Rule admits of exception, one of which is when the original of the subject document is in the possession of the adverse party. In the case at bar, the petitioner would have established that the original of the promissory note was in the possession of respondents. Thus, the exception of the Best Evidence Rule is applicable in this case. As stated earlier, respondents failed to deny specifically the execution of the promissory note. Thus, their judicial admission with respect to the genuineness and execution of the promissory note sufficiently established their liability to petitioner regardless of the fact that petitioner failed to present the original of said note. When the defendant fails to deny specifically and under oath the due execution and genuineness of a document copied in a complaint, the plaintiff need not prove that fact as it is considered the original of said note. Therefore, CA decision reversed and set aside. Respondents are obligated to petitioner in the amount of P1M and 23% interest per annum.

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Nissan North Edsa vs. United Philippine Scout Veterans Detective and Protective Agency April 20, 2010 Perez, J. Francis SUMMARY: Nissan argues that Nissan violated their service contract allowing him to terminate the contract without the 30-day written notice required by the contract itself. The lower courts rule in favor of United. Nissan argues that the service contract was not presented and the best evidence rule should apply. DOCTRINE: The best evidence rule is the rule which requires the highest grade of evidence to prove a disputed fact. However, the same applies only when the contents of a document are the subject of the inquiry. In this case, the contents of the service contract between Nissan and United have not been put in issue. Neither United nor Nissan disputes the contents of the service contract; as in fact, both parties quoted and relied on the same provision of the contract (paragraph 17) to support their respective claims and defenses. Thus, the best evidence rule finds no application here. FACTS: United provides security services, based on a contract for security services, to Nissan. It posted 18 security guards within Nissans compound in EDSA Balintawak, Quezon City. Nissan informed United, that its services were being terminated. Uniteds President demanded pa yment of the amount equivalent to 30 days of service in view of Nissans act of terminating Uniteds services without observing the required 30-day prior written notice as stipulated under paragraph 17 of their service contract. United filed a case for Sum of Money with damages before the MTC of Las Pias City. Nissan argues that paragraph 17 confers upon either party the power to terminate the contract, without the necessity of a prior written notice, in cases of violations of the provisions thereof. Nissan alleged that United violated the terms of their contract, when Uniteds night supervisor and night security guard did not report for duty and in another date the security supervisor assigned at Nissans premises abandoned his post. The MTC ruled that Nissan has not adduced any evidence to substantiate its claim that the terms of their contract were violated by United and the 30-day prior written notice should have been observed and awarded actual and exemplary damages to United. The RTC and the CA affirmed this decision. Nissan argues that United failed, during the trial of the case, to offer in evidence the service contract upon which it based its claim for sum of money and damages. As a result, the decisions of the lower courts were mere postulations. Nissan asserts that the resolution of this case calls for the application of the best evidence rule. ISSUES: Whether or not the Best Evidence rule applies in this case RATIO: No, because the contents of the document(the service contract) is not in issue RULING: The best evidence rule is the rule which requires the highest grade of evidence to prove a disputed fact. However, the same applies only when the contents of a document are the subject of the inquiry. In this case, the contents of the service contract between Nissan and United have not been put in issue. Neither United nor Nissan disputes the contents of the service contract; as in fact, both parties quoted and relied on the same provision of the contract (paragraph 17) to support their respective claims and defenses. Thus, the best evidence rule finds no application here. Paragraph 17 of the service contract reads: However, violations committed by either party on the provisions of this Contract shall be sufficient ground for the termination of this contract, without the necessity of prior notice, otherwise a thirty (30) days prior written notice shall be observed.

Nissan failed to indicate the specific provisions of the service contract which were violated by United as a result of the latters lapses in security. In so failing, Nissans act of unilaterally terminating the contract constitutes a breach thereof, entitling United to collect actual damages. DISPOSITIVE: Judgment Affirmed. Nissan must pay United the damages awarded. :

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THIRD DIVISION G.R. No. 191080 November 21, 2011

2. Television Sets 3. Internet Servers 4. Fax Machines 5. Pornographic Films and other Pornographic Materials 6. Web Cameras 7. Telephone Sets

FREDRIK FELIX P. NOGALES, GIANCARLO P. NOGALES, ROGELIO P. NOGALES, MELINDA P. NOGALES, PRISCILA B. CABRERA, Phil-Pacific Outsourcing Services CorpORATION and 3 x 8 Internet, represented by its proprietor Michael Christopher A. Nogales, Petitioners, vs. PEOPLE OF THE PHILIPPINES and Presiding Judge TITA BUGHAO ALISUAG, Branch 1, Regional Trial Court, Manila, Respondents. DECISION

8. Photocopying Machines MENDOZA, J.: 9. List of clients and At bench is a petition for certiorari under Rule 65 of the Rules of Court filed by petitioners Fredrik Felix P. Nogales, Giancarlo P. Nogales, Rogelio P. Nogales, Melinda P. Nogales, Priscila B. Cabrera, Phil-Pacific Outsourcing Services Corp. and 3 x 8 Internet, represented by its proprietor Michael Christopher A. Nogales (petitioners)against respondents People of the Philippines and Presiding Judge Tita Bughao Alisuag (Judge Alisuag) of Branch 1, Regional Trial Court, Manila (RTC). The petition challenges the August 19, 2009 Decision1 of the Court of Appeals (CA), in CA-G.R. SP No. 105968, which affirmed with modification the August 6, 2008 Order2 of Judge Alisuag of the RTC; and its January 25, 2010 Resolution,3 which denied petitioners motion for reconsideration. THE FACTS: On July 30, 2007, Special Investigator Garry Meez (SI Meez) of the National Bureau of Investigation (NBI)applied for a search warrant before the RTC to authorize him and his fellow NBI agents or any peace officer to search the premises of petitioner Phil-Pacific Outsourcing Services Corporation (Phil-Pacific) and to seize/confiscate and take into custody the items/articles/objects enumerated in his application. The sworn application, docketed as Search Warrant Proceedings No. 07-11685,4 partially reads: SWORN APPLICATION FOR A SEARCH WARRANT xxx xxx xxx xxx xxx xxx 10. Other tools and materials used or intended to be used in the commission of the crime. The application for Search Warrant No. 07-11685 of SI Meez was acted upon by Judge Alisuag. On August 3, 2007, a hearing was conducted wherein Judge Alisuag personally examined SI Meez and two other witnesses in the form of searching questions and their answers thereto were duly recorded by the court. The witnesses affidavits were also submitted and marked as supporting evidence to the application for the issuance of a search warrant. On the same date of the hearing, the application was granted and the corresponding Search Warrant,5issued. The said search warrant is quoted as follows: SEARCH WARRANT TO: ANY PEACE OFFICER It appearing to the satisfaction of the undersigned, after examining under oath applicant SI III GARY I. MEEZ of the Special Task Force Division, National Bureau of Investigation, and his witnesses, ISABEL CORTEZ y ANDRADE of 167 5th Avenue, Caloocan City and MARK ANTHONY C. SEBASTIAN of No. 32 Arlegui Street, San Miguel Quiapo, Manila that there are good reasons to believe that VIOLATION OF ARTICLE 201 OF THE REVISED PENAL CODE, AS AMENDED IN RELATION TO R.A. 8792 (ELECTRONIC COMMERCE ACT) has been committed and that JUN NICOLAS, LOREN NUESTRA, FREDERICK (sic) FELIX P. NOGALES, GIAN CARLO P. NOGALES, ROGELIO P. NOGALES, MELINDA P. NOGALES, PRISCILA B. CABRERA and/or OCCUPANTS OF PHIL. PACIFIC OUTSOURCING SERVICES CORPORATION located at Mezzanine Floor, Glorietta De Manila Building, 776 San Sebastian St., University Belt, Manila, have in their possession and control of the following: 1. Computer Sets 2. Television Sets 3. Internet Servers 4. Fax Machines

That he has been informed, verily believes and personally verified that JUN NICOLAS, LOREN NUESTRA, FREDRICK FELIX P. NOGALES, MELINDA P. NOGALES, PRISCILA B. CABRERA and/or occupants PHIL-PACIFIC OUTSOURCING SERVICES CORP. located at Mezzanine Flr., Glorietta De Manila Building, 776 San Sebastian St., University Belt, Manila have in their possession/control and are concealed in the above-mentioned premises various material[s] used in the creation and selling of pornographic internet website, to wit: 1. Computer Sets

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5. Pornographic Films and other Pornographic Materials 6. Web Cameras 7. Telephone Sets 8. Photocopying Machines 9. List of clients and 10. Other tools and materials used or intended to be used in the commission of the crime. You are hereby commanded to make an immediate search any time of the DAY of the premises mentioned above which is Mezzanine Floor, Glorietta De Manila Building, 776 San Sebastian St., University Belt, Manila and take possession of the following: 1. Computer Sets 2. Television Sets 3. Internet Servers 4. Fax Machines 5. Pornographic Films and other Pornographic Materials 6. Web Cameras 7. Telephone Sets 8. Photocopying Machines 9. List of clients and 10. Other tools and materials used or intended to be used in the commission of the crime. and bring to this Court the said properties and persons to be dealt with as the law may direct. You are further directed to submit a return within ten (10) days from today. On August 8, 2007, SI Meez submitted a Return of Search Warrant6 to the RTC manifesting that in the morning of August 7, 2007, the operatives of the Special Task Force of the NBI implemented the said search warrant in an orderly and peaceful manner in the presence of the occupants of the described premises and that the seized items were properly inventoried in the Receipt/Inventory of Property Seized. The items seized were the following: 1. Ten (10) units of Central Processing Units (CPUs);

2. Ten (10) units of monitors; 3. Ten (10) units of keyboard; 4. Ten (10) units of mouse; and 5. Ten (10) units of AVRs. The RTC then issued an order granting the prayer of SI Meez to keep the seized items in the NBI evidence room and under his custody with the undertaking to make said confiscated items available whenever the court would require them. Aggrieved by the issuance of the said order, the named persons in the search warrant filed a Motion to Quash Search Warrant and Return Seized Properties.7 In the said motion, petitioners cited the following grounds: A. Respondents do not have programmers making, designing, maintaining, editing, storing, circulating, distributing, or selling said websites or the contents thereof; B. Respondents do not have any website servers; C. Respondents do not own the websites imputed to them, which are actually located outside the Philippines, in foreign countries, and are owned by foreign companies in those countries; D. The testimony of the witnesses presented by the NBI are contradicted by the facts of the case as established by documentary evidence; E. The NBI withheld verifiable information from the Honorable Court and took advantage of the limited knowledge of courts in general in order to obtain the search warrant for their personal intentions; F. The NBI raided the wrong establishment; and G. The element of publicity is absent. On December 26, 2007, the RTC denied the motion8 stating, among others, that: 1.) It cannot be said that publicity is not present. The Phil-Pacific Outsourcing Services Corp., is actually persuading its clients, thru its agents (call center agents), to log-on to the pornographic sites listed in its web page. In that manner, Phil-Pacific Outsourcing Services Corporation is advertising these pornographic web sites, and such advertisement is a form of publicity. 2.) Even if some of the listed items intended to be seized were not recovered from the place where the search was made, it does not mean that there was no really crime being committed. As in fact, pornographic materials were found in some of the computers which were seized.

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3.) In the same way that the names listed in the Search Warrant were not arrested or not in the premises subject of the search, it does not mean that there are no such persons existing nor there is no crime being committed. 4.) As a rule, Search Warrant may be issued upon existence of probable cause. "Probable cause for a search is defined as such fact and circumstances which would lead a reasonable discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be reached." Hence, in implementing a Search Warrant, what matters most is the presence of the items ought to be seized in the place to be searched, even in the absence of the authors of the crime committed. 5.) The Search Warrant was issued in accordance with Secs. 3 to 6, Rule 126 of the Revised Rules of Court. Search Warrant may be quashed or invalidated if there is an impropriety in its issuance or irregularity in its enforcement. Absent such impropriety or irregularity, quashal is not warranted. Undaunted, petitioners moved for the reconsideration of the said order on the following grounds: (a) the trial court erred in holding that there was no impropriety or irregularity in the issuance of the search warrant; (b) the trial court erred in holding that there was no irregularity in its enforcement; and (c) the trial court erred in holding that publicity was present. On February 19, 2008, petitioners requested the RTC to issue a subpoena duces tecum ad testificandum to SI Meez and the witnesses Isabel Cortez and Mark Anthony Sebastian directing them to appear, bring the records evidencing publicity of pornographic materials and testify in the hearing set on March 7, 2008. Meanwhile, in a resolution dated February 21, 2008,9 the 3rd Assistant City Prosecutor recommended that the complaint for violation of Article 20110 of the Revised Penal Code (RPC) against petitioners be dismissed due to insufficiency of evidence and the same was approved by the City Prosecutor. Hence, on May 6, 2008, petitioners filed a Supplemental Motion to Release Seized Properties11 manifesting that the complaint against them was dismissed, and that, for said reason, the State had no more use of the seized properties. On August 6, 2008, the RTC issued the assailed second order,12 which denied the motion for reconsideration filed by petitioners. The RTC, however, partially granted the prayer of petitioners. Judge Alisuag wrote: Be it noted that the proceedings held by this Court when it heard the Application for Search Warrant by NBI Special Investigator Meez is very much different [from] the case resolved by the Office of the City Prosecutor. The case before the Office of the City Prosecutor, while the same [was] dismissed cannot be the ground to release the seized properties subject of the Search Warrant issued by the Court. When the Court issued the Search Warrant, indeed, it found probable cause in the issuance of the same, which is the only reason wherein Search Warrant may be issued. On the case heard by the Office of the City Prosecutor, the Resolution has its own ground and reason to dismiss it. xxx xxx xxx

That the subject of the Search Warrant which is now under the custody of the NBI [was] made subject of the case and as well as the witnesses for that case which was resolved by the Office of the City Prosecutor is of no moment. WHEREFORE, the Motion for Reconsideration is Denied. The Motion to Release Seized Properties is partially granted. Accordingly therefore, let the computer sets be hereby returned to the respondents. The CPU and all the rest of the softwares containing obscene materials which were seized during the implementation of the valid Search Warrant are hereby retained in the possession of the National Bureau of Investigation thru applicant Special Investigator Garry J. Meez. SO ORDERED.13 Not in conformity, petitioners sought relief with the CA via a special civil action for certiorari alleging that Judge Alisuag committed grave abuse of discretion amounting to lack or excess of jurisdiction when she partially granted the motion of petitioners for the release of the seized properties such that only the monitor sets were released but the CPUs and the softwares were retained under the custody of the NBI. The CA affirmed with modification the assailed August 6, 2008 Order of the RTC. Thus: WHEREFORE, in view of all the foregoing premises, the assailed order issued by the respondent Judge on August 6, 2008 is AFFIRMED with the MODIFICATION that the CPUs and softwares which were ordered to be retained by the NBI through SI Meez shall be released in favor of the petitioners herein with the condition that the hard disk be removed from the CPUs and be destroyed. If the softwares are determined to be unlicensed or pirated copies, they shall be destroyed in the manner allowed by law. SO ORDERED.14 [Underscoring supplied] The CA explained: 1.) It is undisputed that the seized computer units contained obscene materials or pornographic files. The hard disk technically contains them but these files are susceptible to modification or limitation of status; thus, they can be erased or permanently deleted from the storage disk. In this peculiar case, the obscene materials or pornographic files are stored in such a way that they can be erased or deleted by formatting the hard disk without the necessity of destroying or burning the disk that contains them. By structure, the hard drive contains the hard disk and the hard drive can be found in the CPU. These obscene materials or pornographic files are only stored files of the CPU and do not permanently form part of the CPU which would call for the destruction or much less retention of the same. 2.) Notwithstanding, with the advancement of technology, there are means developed to retrieve files from a formatted hard disk, thus, the removal of the hard disk from the CPU is the reliable manner to permanently remove the obscene or pornographic files. With regard to the softwares confiscated and also ordered to be retained by the NBI, nothing in the evidence presented by the respondents shows that these softwares are pornographic tools or program customized just for creating obscene materials. There are softwares which may be used for licit activities like photograph enhancing or video editing and there are thousands of softwares that have legitimate uses. It would be different if the confiscated softwares are pirated softwares contained

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in compact discs or the pre-installed softwares have no license or not registered; then, the NBI may retain them. In the particular circumstances of this case, the return of the CPUs and softwares would better serve the purposes of justice and expediency. 3.) The responsibilities of the magistrate do not end with the granting of the warrant but extend to the custody of the articles seized. In exercising custody over these articles, the property rights of the owner should be balanced with the social need to preserve evidence which will be used in the prosecution of a case. In the instant case, the complaint had been dismissed by the prosecutor for insufficiency of evidence. Thus, the court had been left with the custody of highly depreciable merchandise. More importantly, these highly depreciable articles would have been superfluous to be retained for the following reasons: (1) it was found by the prosecutor that there was no sufficient evidence to prove that the petitioners violated Article 201 of the Revised Penal Code in relation to R.A. 8792 (Electronic Commerce Act); (2) the obscene materials or pornographic files can be deleted by formatting or removing the hard disk from the CPUs without destroying the entire CPU; and (3) the petitioners did not dispute that the files found in the seized items were obscene or pornographic but the said devices are not obscene or illegal per se. Hence, where the purpose of presenting as evidence the articles seized is no longer served, there is no justification for severely curtailing the rights of a person to his property. Petitioners filed a motion for reconsideration but it was denied in a resolution dated January 25, 2010.15 Undeterred, petitioners filed a petition for certiorari16 with this Court anchored on the following: GROUNDS: 6.1. The decision by the Court of Appeals affirming the decision of the respondent trial judge constitutes grave abuse of discretion amounting to lack or excess of jurisdiction, as it violates the constitutional proscription against confiscation of property without due process of law, and there is no appeal nor any plain, speedy or adequate remedy in the ordinary course of law. 6.2. Since the case involves pornography accessible in the internet, this is a case of first impression and current importance.17 [Emphases ours] ISSUE Whether or not there was grave abuse of discretion on the part of the CA in ordering the removal and destruction of the hard disks containing the pornographic and obscene materials. THE COURTS RULING Petitioners argue that there is no evidence showing that they were the source of pornographic printouts presented by the NBI to the RTC or to the City Prosecutor of Manila in I.S. No. 07H13530. Since the hard disks in their computers are not illegal per se unlike shabu, opium, counterfeit money, or pornographic magazines, said merchandise are lawful as they are being used in the ordinary course of business, the destruction of which would violate not only procedural, but substantive due process. 18 The argument of petitioners is totally misplaced considering the undisputed fact that the seized computer units contained obscene materials or pornographic files. Had it been otherwise, then,

petitioners argument would have been meritorious as there could be no basis for destroying the hard disks of petitioners computer units. While it may be true that the criminal case for violation of Article 201 of the Revised Penal Code was dismissed as there was no concrete and strong evidence pointing to them as the direct source of the subject pornographic materials, it cannot be used as basis to recover the confiscated hard disks. At the risk of being repetitious, it appears undisputed that the seized computer units belonging to them contained obscene materials or pornographic files. Clearly, petitioners had no legitimate expectation of protection of their supposed property rights. The CA is correct in stating that the removal of the hard disk from the CPU is a reliable way of permanently removing the obscene or pornographic files.1wphi1 Significantly, Presidential Decree (PD) No. 969 is explicit. Thus: Sec. 2. Disposition of the Prohibited Articles. The disposition of the literature, films, prints, engravings, sculptures, paintings, or other materials involved in the violation referred to in Section 1 hereof shall be governed by the following rules: a. Upon conviction of the offender, to be forfeited in favor of the government to be destroyed. b. Where the criminal case against any violator of this decree results in an acquittal, the obscene/immoral literature, films, prints, engravings, sculpture, paintings or other materials and other articles involved in the violation referred to in Section 1 hereof shall nevertheless be forfeitedin favor of the government to be destroyed, after forfeiture proceedings conducted by the Chief of Constabulary. [Emphasis and underscoring supplied] Clearly, the provision directs the forfeiture of all materials involved in violation of the subject law. The CA was lenient with petitioners in modifying the ruling of the RTC in that the CPUs and softwares, which were initially ordered to be retained by the NBI, should be released in their favor with only the hard disk removed from the CPUs and destroyed. If the softwares are determined to be violative of Article 201 of the RPC, unlicensed or pirated, they should also be forfeited and destroyed in the manner allowed by law. The law is clear. Only licensed softwares that can be used for legitimate purposes should be returned to petitioners. To stress, P.D. No. 969 mandates the forfeiture and destruction of pornographic materials involved in the violation of Article 201 of the Revised Penal Code, even if the accused was acquitted.1awp++i1 Taking into account all the circumstances of this case, the Court holds that the destruction of the hard disks and the softwares used in any way in the violation of the subject law addresses the purpose of minimizing if not totally eradicating pornography. This will serve as a lesson for those engaged in any way in the proliferation of pornography or obscenity in this country. The Court is not unmindful of the concerns of petitioners but their supposed property rights must be balanced with the welfare of the public in general. WHEREFORE, the petition is DENIED. The August 19, 2009 Court of Appeals Decision is AFFIRMED WITH MODIFICATION in that only the CPUs and those softwares determined to be licensed and used for legitimate purposes shall be returned in favor of the petitioners. The hard disk drives containing the pornographic materials and the softwares used in any way in violation of Article 201 of the Revised Penal Code, unlicensed or pirated shall be forfeited in favor of the Government and destroyed.

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