Tuesday, October 15, 2019

Proof of a person's indebtedness to the judgment debtor.

Proof of a person's indebtedness to the judgment debtor may be in an affidavit or some other form so long as the judge is satisfied. Moreover, that proof other than an affidavit is sufficient, is clear from the 1997 Revised Rules of Criminal Procedure. Section 37 of Rule 39 provides that proof to the satisfaction of the court is sufficient to cause an examination of a judgment debtor's debtor.




THIRD DIVISION

G.R. No. 132245           
January 2, 2002

PNB MANAGEMENT and DEVELOPMENT CORP. (PNB MADECOR), petitioner, vs. R&R METAL CASTING and FABRICATING, INC., respondent.

QUISUMBING, J.:

Before us is a petition for review on certiorari seeking to annul the decision of the Court of Appeals in CA-G.R. No.49955, dated September 22, 1997,1 and its resolution dated December 29, 19972 denying reconsideration of said decision. The Court of Appeals affirmed the order of the Regional Trial Court of Manila, Branch 7, in Civil Case No.93-66675 that allowed the garnishment of amounts owed by petitioner to Pantranco North Express, Inc., respondent's judgment debtor.

It appears that on November 19,1993, respondent R&R Metal Casting and Fabricating, Inc. (R&R) obtained a judgment in its favor against Pantranco North Express, Inc. (PNEI). PNEI was ordered to pay respondent P213, 050 plus interest as actual damages, P50,000 as exemplary damages, 25 percent of the total amount payable as attorney's fees, and the costs of suit.3

However, the writ of execution was returned unsatisfied since the sheriff did not find any property of PNEI recorded at the Registries of Deeds of the different cities of Metro Manila. Neither did the sheriff receive a reply to the notice of garnishment he sent to PNB-Escolta.4

On March 27, 1995, respondent filed with the trial court a motion for the issuance of subpoenae duces tecum and ad testificandum requiring petitioner PNB Management and Development Corp. (PNB MADECOR) to produce and testify on certain documents pertaining to transactions between petitioner and PNEI from 1981 to 1995.

From the testimony of the representative of PNB MADECOR, it was discovered that NAREDECO, petitioner's forerunner, executed a promissory note in favor of PNEI for P7.8 million, and that PNB MADECOR also had receivables from PNEI in the form of unpaid rentals amounting to more than P7.5 million.

On the basis of said testimony, respondent filed with the trial court a motion for the application of funds or properties of PNEI, its judgment debtor, in the hands of PNB MADECOR for the satisfaction of the judgment in favor of respondent. Petitioner opposed the motion on the following grounds: (1) respondent failed to present the sheriff's return that would show that the writ of execution was unsatisfied; (2) petitioner's payables to PNEI under the promissory note were not yet due and demandable; (3) assuming the payables to be due and demandable, the obligation would be deemed extinguished by operation of law since PNEI is also indebted to petitioner in the form of unpaid rentals; and (4) the trial court cannot order the application of PNEI's payables to the judgment in favor of respondent, because petitioner has an adverse claim over said funds, in accordance with Section 45, Rule 39 of the Rules of Court.5

On May 22, 1995, the trial court issued an order garnishing the amount owed by petitioner to PNEI under the promissory note, to satisfy the judgment against PNEI and in favor of respondent.6 Petitioner appealed said order to the Court of Appeals, which affirmed the same in a decision dated September 22, 1997. The appellate court also denied petitioner's motion for reconsideration in a resolution dated December 29, 1997.

Hence, this petition, in which petitioner asserts that the Court of Appeals erred:

I

...IN THE INTERPRETATION OF THE RULES OF COURT WHEN IT RULED THA TAN AFFIDAVIT IS NOT A CONDITION PRECEDENT TO AN EXAMINATION OF A DEBTOR OF A JUDGMENT DEBTOR AS MENTIONED UNDER SECTION 39, RULE 39 OF THE RULES OF COURT.

II

...IN RULING THAT A DEMAND WAS MADE BY PNEI TO PETITIONER PNB MADECOR FOR THE PAYMENT OF THE PROMISSORY NOTE DATED 31 OCTOBER 1982.

III

...WHEN IT RULED THAT THE REQUISITES FOR LEGAL COMPENSATION AS SET FORTH UNDER ARTICLES 1277 AND 1278 OF THE CIVIL CODE DO NOT CONCUR IN THE CASE AT BAR.

IV

...[WHEN IT] MISCONSTRUED THE PROVISIONS OF SECTION 45, RULE 39 OF THE RULES OF COURT BY RULING THAT PETITIONER PNB-MADECOR, UPON BEING CITED IN AND SERVED WITH A NOTICE OF GARNISHMENT BECAME A FORCED INTERVENOR. HENCE, DENYING THE RIGHT OF THE LATTER TO VENTILATE ITS POSITION IN FULL-BLOWN TRIAL.7

At the outset, we note that petitioner had previously come before this Court raising the same issues it is raising now, in the case of PNB MADECOR v. Gerardo C. Uy, G.R. No.129598, promulgated on August 15, 2001. The respondent therein was different but the facts are essentially the same: respondent was PNEI's judgment debtor who sought to garnish petitioner's receivables from PNEI. Petitioner opposed, claiming legal compensation, and asserting that it could not have become a forced intervenor in the case by virtue of the order of garnishment. Petitioner likewise pointed out in that earlier case that PNEI had not made any demand for payment of the amount owed under the promissory note. The alleged demand letter sent by PNEI to PNB MADECOR in this case is the same demand letter that was presented in evidence in the previous case.8

The only issue that was not raised in the earlier case but is raised here is the alleged necessity of an affidavit stating that the judgment had not been satisfied, before a third party may be examined as regards its debt to the judgment debtor, pursuant to Section 39, Rule 39 of the Rules of Court (prior to its amendment in 1997).

The rule cited by petitioner provides:

SEC. 39. Examination of debtor of judgment debtor. -- After an execution against the property of a judgment debtor has been returned unsatisfied in whole or in part, and upon proof, by affidavit of a party or otherwise, to the satisfaction of the judge, that a person, corporation, or other legal entity has property of such judgment debtor, or is indebted to him, the judge may, by an order, require such person, corporation, or other legal entity, or any officer or member thereof, to appear before the judge, or a commissioner appointed by him, at a time and place within the province in which the order is served, to answer concerning the same. The service of the order shall bind all credits due the judgment debtor and all money and property of the judgment debtor in the possession or in the control of such person, corporation, or legal entity from the time of service; and the judge may also require notice of such proceedings to be given to any party to the action in such manner as he may deem proper. (Underscoring supplied.)

Petitioner apparently confuses a sheriff s return with the affidavit, or other proof, stating that another person is indebted to the judgment debtor. The cited rule does not refer to a sheriffs return that states whether or not the judgment has been satisfied. Rather, it speaks of an affidavit, or some other proof, that a third person is indebted to, or has property of, a judgment debtor.

Petitioner insists that an "affidavit of sheriffs return" must be presented before petitioner, the debtor of the judgment debtor, may be examined concerning its debt. It asserts that the phrase "by affidavit of a party or otherwise" means either an affidavit executed by a party to the litigation, or an affidavit executed by a third person. Petitioner is evidently only stretching the meaning of the rule to serve its purpose. The rule is clear: proof of a person's indebtedness to the judgment debtor may be in an affidavit or some other form, so long as the judge is satisfied. We cannot read into the rule what simply is not there. Moreover, that proof other than an affidavit is sufficient is clear from the 1997 Revised Rules of Civil Procedure. As pointed out by respondent, the present Section 37 of Rule 39 provides that "proof to the satisfaction of the court" is sufficient to cause an examination .of a judgment debtor's debtor.

As regards the second, third, and fourth issues raised by petitioner, we have squarely ruled on the same in the earlier case of PNB MADECOR v. Gerardo C. Uy, G.R. No. 129598, August 15,2001.

We find, however, that legal compensation could not have occurred because of the absence of one requisite in this case: that both debts must be due and demandable.

The CA observed:

Under the terms of the promissory note, failure on the part of NAREDECO (PNB MADECOR) to pay the value of the instrument 'after due notice has been made by PNEI would entitle PNEI to collect an 18% [interest] per annum from date of notice of demand.

Petitioner makes a similar assertion in its petition, that

xxx It has been stipulated that the promissory note shall earn an interest of 18% per annum in case NAREDECO, after notice, fails to pay the amount stated therein.

Petitioner's obligation to PNEI appears to be payable on demand, following the above observation made by the CA and the assertion made by petitioner. Petitioner is obligated to pay the amount stated in the promissory note upon receipt of a notice to pay from PNEI. If petitioner fails to pay after such notice, the obligation will earn an interest of 18 percent per annum.

Respondent alleges that PNEI had already demanded payment. The alleged demand letter reads in part:

We wish to inform you that as of August 31, 1984 your outstanding accounts amounted to PI0,376,078.67, inclusive of interest.

In accordance with our previous arrangement, we have conveyed in favor of the Philippine National Bank P7,884,921.10 of said receivables from you. With this conveyance, the unpaid balance of your account will be P2,491,157.57.

To forestall further accrual of interest, we request that you take up with PNB the implementation of said arrangement. xxx

We agree with petitioner that this letter was not one demanding payment, but one that merely informed petitioner of (l) the conveyance of a certain portion of its obligation to PNEI per a dacion en pago arrangement between PNEI and PNB, and (2) the unpaid balance of its obligation after deducting the amount conveyed to PNB. The import of this letter is not that PNEI was demanding payment, but that PNEI was advising petitioner to settle the matter of implementing the earlier arrangement with PNB.

xxx

Since petitioner's obligation to PNEI is payable on demand, and there being no demand made, it follows that the obligation is not yet due. Therefore, this obligation may not be subject to compensation for lack of a requisite under the law. Without compensation having taken place, petitioner remains obligated to PNEI to the extent stated in the promissory note. This obligation may undoubtedly be garnished in favor of respondent to satisfy PNEI's judgment debt.9 (Citations appearing in the original omitted. )

There is another alleged demand letter on record, dated January 24, 1990.10 It was addressed to Atty. Domingo A. Santiago, Jr., Senior Vice President and Chief Legal Counsel of PNB, and signed by Manuel Vijungco, chairman of the Board of Directors of PNEI. In said letter, PNEI requested offsetting of accounts between petitioner and PNEI. However, PNEI's own Assistant General Manager for Finance at that time, Atty .Loreto N. Tang, testified that the letter was not a demand letter.11

On the issue of whether or not petitioner became a forced intervenor in this case, we said in the earlier PNB MADECOR case:

...petitioner contends that it did not become a forced intervenor in the present case even after being served with a notice of garnishment. Petitioner argues that the correct procedure would have been for respondent to file a separate action against PNB MADECOR, per Section 43 of Rule 39 of the Rules of Court.12 Petitioner insists it was denied its right to ventilate its claims in a separate, full-blown trial when the courts a quo ruled that the abovementioned rule was inapplicable to the present case.

On this score, we had occasion to rule as early as 1921 in Tayabas Land Co. v. Sharruf,3 as follows:

...garnishment. ..consists in the citation of some stranger to the litigation, who is debtor to one of the parties to the action. By this means such debtor stranger becomes a forced intervenor; and the court, having acquired jurisdiction over his person by means of citation, requires him to pay his debt, not to his former creditor, but to the new creditor, who is creditor in the main litigation. It is merely a case of involuntary novation by the substitution of one creditor for another. Upon principle the remedy is a species of attachment or execution for reaching any property pertaining to a judgment debtor which may be found owing to such debtor by a third person.

Again, in Perla Compania de Seguros, Inc. v. Ramolete,14 we declared:

Through service of the writ of garnishment, the garnishee becomes a "virtual party" to, or a "forced intervenor" in, the case and the trial court thereby acquires jurisdiction to bind him to compliance with all orders and processes of the trial court with a view to the complete satisfaction of the judgment of the court.

xxx

There is no need for the institution of a separate action under Rule 39, Section 43, contrary to petitioner's claim. This provision contemplates a situation where the person allegedly holding property of (or indebted to) the judgment debtor claims an adverse interest in the property ( or denies the debt). In this case, petitioner expressly admits its obligation to PNEI.15 (Citations appearing in the original adjusted to conform to present decision.)

Petitioner, in fact, actively participated in the proceedings before the trial court by appearing during hearings, examining witnesses, and filing pleadings.16 It cannot now claim that it was denied the opportunity to present its side in a full-blown trial.

WHEREFORE, the petition is DENIED. The assailed decision and resolution of the Court of Appeals are AFFIRMED.

SO ORDERED.

Bellosillo, Mendoza, De Leon, Jr., JJ., concur.
Buena, J., on official leave.


Footnote

1 Rollo, pp. 39-48.
2 Id. at 50-51
3 Id. at 40.
4 Records, p. 101.
5 Rollo, p.16.
6 Records, pp. 208-209.
7 Rollo, pp. 19-20.
8 Records, p. 130.
9 PNB MADECOR v. Gerardo C. Uy, G.R. No. 129598, August 15,2001, pp. 12-14.
10 Records, pp. 148-149.
11 TSN, April 19, 1995, p. 26.
12 SEC. 43. Proceedings when indebtedness denied or another person claims the property. --If it appears that a person or corporation, alleged to have property of the judgment obligor or to be indebted to him, claims an interest in the property adverse to him or denies the debt, the court may authorize, by an order made to that effect, the judgment obligee to institute an action against such person or corporation for the recovery of such interest or debt, forbid a transfer or other disposition of such interest or debt within one hundred twenty (120) days from notice of the order, and may punish disobedience of such order as for contempt. Such order may be modified or vacated at any time by the court, which issued it, or by the court, in which the action is brought, upon such terms as may be just.
13 41 Phil. 382,387 (1921). This was reiterated in ... v. Barredo, 13 SCRA 744,746 (1965).
14 203 SCRA 487,492 (1991).
15 PNBMADECOR v. Gerardo C. Uy, supra, note 9, pp. 16-17.
16 See, e.g., records, pp. 97, 100, 108, 150-151, 155-168, 171-178. See also TSN, April 6, 1995, and TSN, April 16, 1995.

Examination of a child witness, Remedial Law

"The trend in procedural law is to give wide latitude to the courts in exercising control over the questioning of a child witness. The reasons are spelled out in our Rule on Examination of a Child Witness, which took effect on December 15, 2000, namely, (1) to facilitate the ascertainment of the truth, (2) to ensure that questions are stated in a form appropriate to the developmental level of the child, (3) to protect children from harassment or undue embarrassment, and (4) avoid waste of time. Leading questions in all stages of examination of a child are allowed if the same will further the interests of justice."



G.R. No. 137385               
January 23, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODITO DAGANIO, accused-appellant.

D E C I S I O N

PER CURIAM:

Accused-appellant Rodito Daganio, Sr., was charged with rape by his minor daughter, Virgie Daganio.1 The Information2 against him reads:

"That on or about the 6th day of September 1994, at Sapad, Lanao del Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously, by means of force, violence and intimidation, to wit: by then and there threatening to kill one VIRGIE DAGANIO if she will resist and report to her mother accused’s criminal designs, and thereafter lie with and have carnal knowledge of said VIRGIE DAGANIO, his 11 YEAR OLD daughter, against her will and consent.

CONTRARY to and in VIOLATION of Article 335 of the Revised Penal Code."

When arraigned, the accused-appellant entered a plea of not guilty.3 Trial on the merits followed.

The prosecution evidence came chiefly from the victim, Virgie Daganio, the victim’s mother, Laureta Daganio, and the examining physician, Dr. William Canoy.

The victim testified that her father (accused-appellant) raped her several times in their house. Her first defilement was in the month of December, but she could no longer recall what year it was.

The second rape took place in the evening of September 6, 1994. She was then 11 years old. That night, her mother (Laureta) was in Pikalawag, Lanao del Norte. The victim was playing with her younger siblings when the accused-appellant told her to go inside the house. She obeyed him. Inside their house, the accused-appellant first placed his finger in her vagina because it was too small. Next, he inserted his penis. Half of the penis penetrated her.4 After the sexual assault, he warned her not to tell anyone about the rape or he would cut her neck. Despite the threat, the victim related her harrowing experience to her mother, Laureta Daganio.5

The victim claimed that even before she was raped by the accused-appellant, her parents would quarrel a lot because the accused-appellant was always drunk. Sometimes her parents would fight because the accused-appellant "touched" her. There were also instances when the accused-appellant would hit Laureta with fist blows during their heated arguments.6

Laureta Daganio testified that the victim was eleven years old at the time the accused-appellant raped her. She further claimed that accused-appellant also raped their other daughter, Rita Daganio, when the latter was 15 years old. Laureta forgave the accused-appellant then. However, when she learned of the similar plight of the victim in the hands of the accused-appellant, she reported the incident to the authorities and assisted the victim in filing the complaint for rape against the accused-appellant.7

Dr. William Canoy testified that he conducted a medical examination on the victim on September 15, 1994. There were no fresh wounds in the vagina, although he found edema (slight swelling emission of the skin) around the victim’s labia majora and healed lacerations in the hymen at 6, 7, 1 and 8 o’clock positions. He opined that the edema could have been caused by hard or blunt objects or by a man’s penis.8

The accused-appellant denied the accusations of the victim. He claimed that on September 6, 1994, he was ill so he stayed in bed the whole day. When asked if he sexually molested the victim on said date, he replied that he did not know if he did because of his fever. He declared that he loves Laureta and that their relationship before September 6, 1994 was harmonious. He alleged that he never quarreled with her. He claimed he did not know why she filed the rape case against him.9

After trial, the court a quo rendered its judgment,10 finding the accused-appellant guilty as charged. He was sentenced to suffer the supreme penalty of death and ordered to indemnify the victim in the amount of Php 50,000.00.

Hence, the automatic review of the case.

The accused-appellant contends that:

"I.

THE COURT A QUO ERRED IN GIVING CREDENCE TO THE TESTIMONY OF VERGIE (sic) DAGANIO.

II.

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED (APPELLANT) NOTWITHSTANDING THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT."

We affirm the assailed judgment.

The accused-appellant claims that the prosecution propounded leading questions on the victim. He asserts that had the trial court sustained the timely objections of his counsel, the victim would not have been able to establish the rape. We are not persuaded.

It is true that leading questions are generally not allowed and have little probative value. However, Section 10, Rule 132 of the Rules of Court11 provides:

"Sec. 10. Leading and misleading questions. - A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed, except:

x x x           x x x          x x x

(c) When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf mute.

x x x           x x x          x x x."

In the case at bar, the victim was twelve (12) years old when she testified in court. When most children her age were already in Grade VI of elementary education, she was only in Grade III. We can also glean from her testimony that she could not grasp the legal concept of "rape." Thus, the trial judge correctly allowed the prosecutor to ask leading questions to ferret out the truth.

The trend in procedural law is to give wide latitude to the courts in exercising control over the questioning of a child witness. The reasons are spelled out in our Rule on Examination of a Child Witness,12 which took effect on December 15, 2000, namely, (1) to facilitate the ascertainment of the truth, (2) to ensure that questions are stated in a form appropriate to the developmental level of the child, (3) to protect children from harassment or undue embarrassment, and (4) avoid waste of time. Leading questions in all stages of examination of a child are allowed if the same will further the interests of justice.

The totality of the evidence presented shows beyond reasonable doubt that the accused-appellant raped the victim on September 6, 1994. During the cross-examination, the victim gave a detailed and candid account of the rape incident. She testified as follows:13

"(ATTY. GUBAT):
Q: You said that your father used his fingers, how did your father used (sic) his fingers in raping you?

(VIRGIE):
A: He placed his fingers and his penis into my vagina.

Q: And your father’s fingers and penis were entrusted (sic) to your vagina at the same time is that right?
A: A little.

Q: What do you mean by a little?
A: It’s half.

Q: What do you mean by half?
A: Half of the penis.

Q: You said your father used his fingers, how many fingers were used?
A: Only one.

Q: Which of the fingers?
A: In the left hand.

Q: Which of the fingers in the left hand?
A: The middle finger.

Q: Have you seen the penis of your father?
A: Yes, sir."

(emphases ours)

The accused-appellant points out that Dr. William Canoy did not find fresh wounds on the genitalia of the victim. Allegedly, the absence of said wounds creates a doubt on her claim that she was raped on September 6, 1994. We disagree.

The records clearly show that accused-appellant had carnal knowledge of the victim. Dr. Canoy categorically stated that he found swelling in the genitalia of the victim that could have been caused by a male organ. The medical findings of the physician also showed that she had lacerations in her vagina at 6, 7, 1 and 8 o’clock positions.14 Said lacerations, whether healed or fresh, are the best physical evidence of forcible defloration.15

To discredit the victim, the accused-appellant claims it was easy for the victim to shout and ask for help as her siblings were in the vicinity when the rape took place. She did not. Thus, he submits that her accusations do not deserve credit. The allegation lacks merit.

A rape victim’s testimony is entitled to greater weight when she accuses a close relative of having raped her.16 Indeed, a young girl would not ordinarily file a complaint against anybody, much less her own father, if it were not true.17 Thus, the victim’s revelation that she had been raped, coupled with her voluntary submission to medical examination and willingness to undergo public trial where she could be compelled to give out details on an assault to her dignity cannot be dismissed as mere concoction.18

We also take judicial notice, and it can be considered of public knowledge, that the scene of the rape is not always or necessarily isolated or secluded. Lust is no respecter of time or place.19 It goes against human experience that a girl would fabricate a story which would drag herself as well as her family to a lifetime of dishonor, unless that is the truth, for her natural instinct is to protect her honor. More so, where her charges could mean the death of her own father, as in this case.20 Undoubtedly, the accused-appellant was correctly found guilty of raping his daughter.

Article 335 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659, reads:

"The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent x x x ."

We have always stressed the rule that the minority of the victim and her relationship to the accused must be duly alleged and proved to justify the imposition of the death penalty.21 In some cases,22 we did not mete out the death penalty for failure of the prosecution to present the minor’s birth certificate or for non-presentation of independent evidence that would prove the victim’s age.

In the case at bar, the information alleged that the victim was then eleven (11) years old. This fact was established through the testimony of the victim’s own mother, Laureta Daganio, and admitted by the defense at the trial that the presentation of the victim’s Certificate of Live Birth was dispensed with at the instance of the defense counsel.23 Being the victim’s mother, Laureta Daganio has personal knowledge of the age of the victim. Thus, we fully agree with the trial court that the minority of the victim was duly established. We do not doubt her because there was no showing that she was motivated by ill feelings to accuse her own husband of a grievous offense.

In the case of People vs. Dela Cruz,24 this Court has also relied on the testimony of the victims’ mother as to the minority of her daughters and imposed the death penalty on the accused. We held:

"In the case at bar, however, the prosecution proved the minority age of the victims beyond reasonable doubt. Delia, the victim’s mother, categorically testified in the hearing of October 9, 1996, that her daughters were both fourteen (14) years of age at the time of the rape incidents complained of. Thus:

x x x           x x x          x x x

There is no reason to doubt Delia's testimony. As a mother, she has personal knowledge of the ages of her children. Her testimony was never challenged by the accused who could have presented the victims’ birth certificates. Delia’s testimony stood unrebutted by any other evidence. To be sure, this is not the first time that the Court is relying on the testimony of the victim’s mother to establish the minority age of the victim. In People vs. Balgos, where the rape victim was six (6) years of age, we relied on the testimony of the victim’s mother to prove the victim’s age. Reposing trust on the testimony of the victim’s mother, we imposed the death penalty on the accused-appellant."

Stare decisis et non quieta movere.25 The doctrine leaves us no choice but to apply the full force of the law and impose the supreme penalty of death on the accused-appellant. As in the case of Dela Cruz, supra, we have no reason to doubt the sincerity of the victim’s mother when she told the trial court that her daughter was only eleven (11) years old when the accused-appellant raped her.

We note that the trial court awarded civil indemnity to the victim in the amount of Php 50,000.00. The present rule is to award civil indemnity in the amount of at least Php 75,000.00.00 as the rape was qualified by any of the circumstances under which the death penalty is authorized under R.A. No. 7659.26

Further, the victim is entitled to moral damages, in the amount of Php 50,000.00 and exemplary damages, in the amount of Php 25,000.00. In rape cases, moral damages may be awarded to the victim in the criminal proceeding in such amount as the Court deems just, without the need for pleading or proof of the basis thereof. The fact that the complainant has suffered the scars of mental, physical and psychological trauma which constitute the basis for moral damages are too obvious to still require the recital thereof at the trial by the victim, since the Court itself even assume and acknowledge such agony on her part as a gauge of her credibility.27 Exemplary damages, on the other hand, may be imposed in the case of incestuous rape to deter other fathers with perverse tendency or aberrant sexual behavior from sexually abusing their own daughters.28

Four (4) members of the Court maintain their position that R.A. No. 7659, insofar as it prescribes the death penalty, is unconstitutional. Nevertheless, they submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should be imposed accordingly.

IN VIEW WHEREOF, the Decision of the Regional Trial Court of Kapatagan, Lanao Del Norte, (Branch 21), in Criminal Case No. 21-197, sentencing the accused-appellant, RODITO DAGANIO, to death is AFFIRMED.1âwphi1 The civil indemnity in the amount of Php 50,000.00 is modified and increased to Php 75,000.00. In addition, the accused-appellant is ordered to pay the amount of Php 50,000.00 as moral damages, and Php 25,000.00 as exemplary damages.

Pursuant to Section 25 of R.A. No. 7659, amending Section 83 of the Revised Penal Code, upon finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of pardoning power.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.


Footnotes

1 Also referred to as Vergie Daganio in some parts of the records.
2 Rollo, p. 9.
3 Original Records, p. 19.
4 TSN, Virgie Daganio, September 26, 1995, pp. 4-5, 12.
5 Id., pp. 11-31; TSN, Laureta Daganio, November 14, 1995, p. 4.
6 TSN, Virgie Daganio, September 26, 1996, pp. 7-9.
7 TSN, Laureta Daganio, November 14, 1995, pp. 4-5.
8 TSN, William Canoy, March 18, 1998, pp. 3-5; cf. Exh. "C", Original Records, p. 2.
9 TSN, Rodito Daganio, September 15, 1998, pp. 2-4.
10 Rollo, pp. 15-25.
11 In Section 4 of the recently passed Rules on Examination of a Child Witness, a "child witness" has been defined as one who "at the time of giving testimony is below the age of eighteen (18) years." In child abuse cases, a "child witness" includes "one over eighteen (18) years but is found by the court as unable to fully take care of himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition."
12 Section 19.
13 TSN, Virgie Daganio, September 26, 1995, p. 12.
14 Supra note 8.
15 People vs. Acala, 307 SCRA 330 (1999).
16 People vs. Juntilla, 314 SCRA 568 (1999).
17 People vs. Sacapaño, 313 SCRA 650 (1999).
18 People vs. Molar, 286 SCRA 684 (1998).
19 People vs. Tundag, G.R. No. 135695-96, October 12, 2001.
20 Ibid.
21 People vs. Bayya, 327 SCRA 771 (2000).
22 See People vs. Javier, 311 SCRA 122, 140-141 (1999); People vs. Tipay, 329 SCRA 52 (2000); People vs. Cula, 329 SCRA 101 (2000); People vs. Brigildo, 323 SCRA 631 (2000).
23 TSN, Laureta Daganio, November 14, 1995, p. 4.
24 338 SCRA 582, 599 (2000).
25 It is best to adhere to decisions and not disturb questions put at rest.
26 People vs. Prades, 293 SCRA 411 (1998); People vs. Victor, 292 SCRA 186, 200-201 (1998); People vs. Dela Cruz, supra.
27 People vs. Prades, supra; People vs. Ramos, 296 SCRA 559 (1998).
28 People vs. Santos, G.R. Nos. 138308-10, September 26, 2001; People vs. Aquino, G.R. No. 136840-42, September 13, 2001; People vs. Catubig, G.R. No. 137842, August 23, 2001.

Friday, September 27, 2019

Modification of penalty imposed by the lower court favors accused who did not appeal.

419 Phil. 50

SECOND DIVISION

G.R. No. 130962, October 05, 2001

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOSE REAPOR Y SAN JUAN, NORBERTO NANALE Y ESPLANA, JOHN DOE, PETER DOE, RICHARD DOE, RICKY DOE, ALVIN DOE, RONALD DOE, STEVEN DOE AND ARNOLD DOE, ACCUSED. JOSE REAPOR Y SAN JUAN, ACCUSED-APPELLANT.

D E C I S I O N

QUISUMBING, J.:

On appeal is the decision[1] dated June 2, 1997, of the Regional Trial Court of Naga City, Branch 28, finding appellant Jose Reapor y San Juan guilty of murder, sentencing him to reclusion perpetua, and ordering him together with accused Norberto Nanale y Esplana to pay the surviving heirs of Larry Nivales the amount of P5,320 as actual damages, P50,000 as civil indemnity and P50,000 as moral damages.


The Information against them reads as follows:
The undersigned Assistant City Prosecutor of Naga City accuses JOSE REAPOR Y SAN JUAN, NORBERTO NANALE Y ESPLANA, JOHN DOE, PETER DOE, RICHARD DOE, RICKY DOE, ALVIN DOE, RONALD DOE, STEVEN DOE, and ARNOLD DOE of the crime of MURDER, committed as follows:

That on or about October 1, 1996, in the city of Naga, Philippines and within the jurisdiction of this Honorable Court, the above named accused conspiring, confederating and mutually helping one another, with treachery, with the aid of armed men and employing means to weaken the defense, did then and there willfully, unlawfully, and feloniously and with intent of taking the life of Larry Nivales, attack the latter in the following manner, that is while some of the armed men were holding the arms of the victim, JOSE REAPOR Y SAN JUAN stabbed him several times with a knife, causing to suffer the following wounds, to wit:

1. Stab wound located on the right chest wall, above the right nipple penetrating the upper lobe of the right lung.

2. Superficial incised wound located on the left chest above the left nipple.

3. Stab wound located on the left side of the chest above left nipple penetrating the upper lobe of the left lung.

4. Stab wound located on the left chest below nipple penetrating the lower lobe of the left lung.

5. Stab wound located on the anterior aspect of right leg.

6. Stab wound on the lateral aspect of the left leg.

as evidence by hereto attached Autopsy Report conducted from the victim, Larry Nivales, said wounds being necessarily mortal, thereby causing his death.

CONTRARY TO LAW

Naga City, October 3, 1996.[2]
On February 17, 1997, Reapor and Nanale were arraigned and they pleaded not guilty.[3] Thereafter, trial on the merits ensued.

For the prosecution, Elsie Carulla and Napoleon Penolio testified as eyewitnesses to the killing of the victim, Larry Nivales.

Elsie Carulla testified that after watching a dance at the Mac Mariano Elementary School, she saw Larry Nivales on the night he was killed.  According to her, she saw Jose Reapor stab Nivales once on the chest, while the victim was being held by three persons.  After being wounded by Reapor, Nivales was then stabbed by Norberto Nanale, also on the chest.[4]

Napoleon Penolio testified that at around 1:20 A.M., on October 1, 1996, he was on his way to the house of Moises Nivales to borrow some tools when he saw the latter's son, Larry, being held by three persons at the intersection in front of the Mac Mariano Elementary School.  While he was being held, Jose Reapor approached Larry and stabbed him once on the chest.  After Reapor was done, Norberto Nanale came and stabbed Larry also on the chest.[5]

Dr. Joel Jurado testified that he was the one who conducted an autopsy upon the body of Larry Nivales.  He reported that the victim suffered six stab wounds, four of which were inflicted on the chest area while two were on the legs of the victim.  Dr. Jurado declared that of these stab wounds, three were fatal[6] while the rest were merely superficial.[7] The cause of death was due to loss of blood because of multiple stab wounds.[8]

Nancy Dumalasa Nivales, the mother of the victim, testified on the expenses and damages she and her family incurred as a result of her son's death.[9]

SPO4 Leonardo Rañola stated that he was the Station Commander of Sub-station No. 2 at Peñafrancia Avenue, Naga City.  On October 1, 1996, Nancy Nivales, mother of the victim, went to their office with two persons whom he remembered to be Tomines and Amaro. They reported that Mrs. Nivales' son was stabbed and the assailants, whom they identified to be appellants Jose Reapor and Norberto Nanale, were still at large.  SPO4 Rañola accompanied Mrs. Nivales and her companion to the houses of Jose Reapor and Norberto Nanale.  The latter were brought to the police headquarters for investigation.[10]

The defense presented Raul Rosales, an elected barangay kagawad of Barangay Balatas, Naga City.  He testified that there was no dance held inside the compound of Mac Mariano Elementary School during the evening of September 30, 1996.  The only dance that night was held along Molave St., which is 100 meters from the said school.[11]

Norberto Nanale denied stabbing Larry Nivales or knowing Jose Reapor prior to October 1, 1996.  He alleged that he was at home from 9:00 P.M. of September 30, 1996 until 6:00 A.M. the following morning.[12]

Jesus Almiro, who testified for the defense, said that there was no dance inside the Mac Mariano Elementary School in the evening of September 30, 1996. Later, however, he declared that he was not absolutely certain that there was no dance inside the school after 7:30 P.M..  He said he was already home by this time and could not see what was going on inside the school compound.[13]

Jose Reapor testified that he was at his brother's residence during the night of the killing.  He denied the accusation against him.[14]

Eduviges Evangelista Reapor testified that she is the sister-in-law of appellant and that the latter was with them in their house at Zone 6, Balatas, Naga City in the evening of September 30, 1996 until the following morning.[15]

On June 2, 1997, the trial court rendered judgment finding the accused guilty of the crime of murder.  The dispositive portion of said decision reads:
WHEREFORE, in view of all the foregoing findings that the guilt of accused Jose Reapor y San Juan and Norberto Nanale y Esplana of the crime of murder of which they are presently charged has been proven beyond reasonable doubt, judgment is hereby rendered whereby accused Jose Reapor y San Juan, in the absence of any mitigating or aggravating circumstance, is hereby sentenced to suffer the penalty of reclusion perpetua. Accused Norberto Nanale who was fifteen (15) years old when the crime of which he is presently charged was committed, and therefore entitled to the privilege mitigating circumstance of minority and applying the Indeterminate Sentence Law, is hereby sentence to suffer the penalty of imprisonment of SIX (6) Years and ONE (1) Day to TWELVE (12) years of prision mayor; ordering both accused to pay the surviving heirs of the deceased, Larry Nivales the amount of FIVE THOUSAND THREE HUNDRED TWENTY (P5,320.00) PESOS representing actual damages for expenses incurred in connection with the death of Larry Nivales; FIFTY THOUSAND (P50,000.00) PESOS for the death of Larry Nivales; and FIFTY THOUSAND (P50,000.00) PESOS for moral damages. With costs de oficio.

SO ORDERED.
Jose Reapor appealed.  The verdict against Norberto Nanale became final and executory, since he did not appeal.

Before us, appellant Jose Reapor raises the lone assignment of error that:
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT AND EVENTUALLY ORDERING HIM TO PAY THE SURVIVING HEIRS OF THE VICTIM ACTUAL AND MORAL DAMAGES
Appellant seeks to discredit the credibility of the two eyewitnesses who testified for the prosecution.  He points out certain "improbabilities" and "inconsistencies" in their testimonies which, according to the appellant, point to the conclusion that these witnesses had been rehearsed or paid.

According to him, Elsie Carulla's testimony that she saw the stabbing incident after she watched a dance held "inside" the Mac Mariano Elementary School is false.  He insists that there was no such dance.  Raul Rosales and Jesus Almiro attested that no such event took place inside the school. Appellant likewise questions Elsie Carulla's identification of him as one of the offenders.  He points out that she could not categorically identify who the offender was since she admitted that she reported for work at 8:00 A.M. and went home at 8:00 in the evening.  According to appellant, he lived at Zone 6, Barangay Balatas, Naga City, about two (2) kilometers from the place of the incident.  Appellant says that in making identifications of the accused, Elsie Carulla was aided by somebody.[16] He adds that upon witnessing a person being attacked, the natural reaction of a woman is fright, and fear would prevent her from correctly identifying the attackers.

Appellant also contends that the testimony of Napoleon Penolio was contrary to human experience and unworthy of belief.  The natural and spontaneous reaction of one who witnessed the stabbing, according to appellant, would be to immediately go to the house of the victim, whom Penolio considered a friend, to report the incident.  But Penolio waited until the afternoon of October 1, 1996. This delay, says the appellant, strongly suggests that Penolio did not really see the crime as it unfolded. Appellant adds that Penolio could not have identified him as one of those who attacked Larry Nivales since a frightened witness could not possibly have identified anyone.  Appellant suggests that Penolio was prompted by the victim's relative[17] to point to him as the assailant.

For the State, the Office of the Solicitor General (OSG) urges that the testimonies of the prosecution witnesses should be upheld and afforded full faith and credence and the judgment of the trial court affirmed.  However, the OSG recommends that the maximum of Norberto Nanale's indeterminate sentence be corrected from "twelve years (12) of prision mayor" to "fourteen (14) years, eight (8) months and one (1) day of reclusion temporal". It also recommends that the award of P50,000 as civil indemnity by the trial court be increased[18] to P75,000 pursuant to this Court's ruling in People vs. Victor, 292 SCRA 186 (1998).

After carefully considering the records and the submissions of the parties, we find Jose Reapor's appeal unmeritorious.  Appellant asserts that Carulla's testimony should not be believed, because while a dance was indeed held in the vicinity of the crime scene, it was held along Molave Street in Mac Mariano Village Subdivision and not inside the compound of the Mac Mariano Elementary School as claimed by eyewitness Carulla.  However, while defense witness Jesus Almiro was not absolutely sure whether there was a dance party inside the Mac Mariano Elementary School after 7:30 P.M. of September 30, 1996,[19] another defense witness Raul Rosales' testified that there was a dance along Molave Street which took place from 10:00 P.M. of September 30, 1996 until 2:00 A.M. in the morning of October 1, 1996.[20]

Whether there was a dance inside or outside the compound of Mac Mariano School is not crucial on this issue.  Everyone is agreed that there was a killing and it happened outside the school premises. The dance was only a time-and-place reference used by Carulla. Carulla's identification of the accused is not belied by the fact of whether the dance was inside or outside the school premises.  Suffice it to state that there was indeed a dance party held in that vicinity at about the time and date of the killing.

Appellant likewise points out that Carulla could not have possibly identified him since she hardly knew him, and that she said she worked from 8:00 A.M. to 8:00 P.M., and she therefore had no opportunity to see him prior to the killing of Larry Nivales.

A close review of the records would show, however, that nothing in the testimony of Carulla negates the possibility of her seeing appellant in other places, such as in the basketball court earlier.  Neither law nor jurisprudence requires, as a condition sine qua non, that for a positive identification to be made by a prosecution witness of a felon, the witness must first know the latter personally.[21]

It has also been observed that people who are confronted with a shocking and unexpected event have different reactions.  It is not always that they are shocked into numbness.  Some in fact have heightened awareness during such events. Thus, as to witness Napoleon Penolio's reaction to the killing, such reaction does not render his testimony incredible.  Not every witness is expected to act with reason and conformably with the expectations of mankind.[22] Different people react in different ways especially when faced with an extraordinary and disturbing event.  In Penolio's case, his delayed reporting of what happened that day could be explained by fear, he was simply frightened.[23]

Absent any showing that the trial court had overlooked some important and vital fact which would lead to a different view of the outcome of the case, we find no reason to disturb the trial court's findings of fact and assessment of the credibility of the witnesses and their testimony.[24] We differ, however, in its appreciation of the aggravating circumstance in this case. The trial court found that there was treachery when Reapor and Nanale attacked the victim while three men held him immobile, thus affording the victim no means of defense.  Treachery, however, cannot be presumed but must be proved by clear and convincing evidence as conclusively as the killing itself.[25] In this case, the prosecution did not prove treachery convincingly.  The fact that the victim was held by unidentified men when he was stabbed by Reapor and Nanale is not enough to establish treachery.  Two conditions must concur to establish treachery: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or retaliate, and (2) the means of execution was deliberately or consciously adopted.[26] In our view the second requirement has not been shown.  The prosecution merely established that the victim was stabbed while he was being held by three persons.  It did not present any evidence to show how the aggression commenced.  Absent any particulars as to the manner in which the aggression commenced or how the act which culminated in the death of the victim began and developed, treachery cannot be appreciated to qualify the killing to murder.[27] In People vs. Agapinay, 186 SCRA 812 (1990), we held that the victim held by two persons while he was stabbed by a third does not demonstrate treachery.  In People vs. Daen, Jr., 244 SCRA 382 (1995), the victim was surrounded by appellant and five others, one of whom had pinned down the victim's hands.  In those cases, the prosecution failed to show that the manner of execution was deliberately chosen and designed. Treachery was ruled out.

In both Agapinay and the Daen, we held that there was abuse of superior strength qualifying the killing to murder.  But in said cases, abuse of superior strength was alleged in the Information.  Here no such allegation was made.  Under Secs. 8 and 9 of Rule 110 of the Revised Rules of Criminal Procedure, as amended, qualifying as well as mitigating circumstances must be alleged expressly:
SEC. 8.  Designation of the offense.- The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances.  If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

SEC. 9. Cause of accusation.-The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.
Conformably to this new amendment, there being no allegation of treachery nor abuse of superior strength, in the Information, they could not be taken into account.  The crime committed in the present case is only homicide, not murder.

Further, we are unable to agree with the trial court's finding that Nanale and Reapor conspired to kill Nivales.  Said the trial court:
... the evidence adduced by the prosecution show only conspiracy between the two accused by their concert of action and community of interest, but not with respect to the others... (judgment, 3rd par., p. 9).

The prosecution evidence, however, showed that appellant Reapor stabbed Nivales and after such stabbing, Reapor left.  It was after he left that Nanale came and also stabbed the victim.[28] The attacks were not simultaneous.  Nor was there any showing that these attacks were done for a common purpose.  The conclusion that the two conspired was based on nothing more than conjectures.  But the rule is well established that conspiracy must be shown as clearly and as convincingly as the commission of the crime itself.[29] Here, we find no positive and conclusive evidence shown as proof of conspiracy.[30]

The acts of the two felons before and after the crime were committed by each of them separately and singly.  One stabbed Nivales after the other had done so.  Appellant Reapor had left without waiting for accused Nanale.  The sequence of events shows that appellant acted alone.  That Nanale did not talk to appellant nor prevent him from leaving also indicate that he acted on his own.  There being no conspiracy, each felon should be held liable only for his individual acts.

The prosecution witnesses testified that Reapor stabbed the victim only once, and then left.  He was followed by accused Nanale who also stabbed the victim once.  Each assailant contributed separately to the fatal wounding of the victim.  Appellant stabbed the victim on the chest, a vulnerable part of the body.  It is not without reason that the trial court held appellant liable for the death of Larry Nivales.  Appellant and co-accused Nanale are without doubt guilty of homicide.

As to accused Nanale, the OSG recommends that the penalty imposed on him be modified.  Although Nanale did not appeal the decision, thereby accepting the verdict of guilt, Sec. 11 (a) of Rule 122 of the Rules of Court states:

Sec. 11. Effect of appeal by any of several accused. -


(a) An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter.
Accordingly, the penalty imposed by the trial court on Nanale could be modified, so that like appellant, Nanale should be declared guilty not of murder but only homicide.  For as we now find, the offense committed by Nanale as well as appellant was not attended by the qualifying circumstance of treachery.

Finally, the OSG recommends that the civil indemnity be increased to P75,000.  However, the indemnity of P75,000 only applies in a qualified rape case,  as in People vs. Victor,[31] cited by the OSG. For the violent and shocking death of the victim here, we find that the award of P50,000 as civil indemnity is justified.  This together with the actual damages of P5,320 and moral damages in the amount of P50,000 should be maintained.

WHEREFORE, the judgment of the Regional Trial Court of Naga City, Branch 28, is hereby MODIFIED. Appellant Jose Reapor y San Juan, as well as his co-accused Norberto Nanale, is declared guilty only of homicide, which is punishable with the penalty of reclusion temporal.  Applying the Indeterminate Sentence Law, and considering that there is no aggravating nor mitigating circumstance in the commission of the offense by appellant, the penalty that is hereby imposed on appellant is six (6) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. As for co-accused Norberto Nanale, considering the mitigating circumstance that he was a minor at the time he committed the crime of homicide, and applying the Indeterminate Sentence Law, his sentence is reduced to six (6) months and one (1) day of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum.  The award of P50,000 as civil indemnity, P5,320 as actual damages, and P50,000 as moral damages in favor of the victim's heirs is AFFIRMED.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.



[1] Rollo, pp. 22-32.

[2] Rollo, p. 5.

[3] Records, pp. 42-44.

[4] TSN, April 4, 1997, pp. 5-6.

[5] TSN, April 22, 1997, pp. 13-16.

[6] Stab wound located on the right chest wall, above the right nipple; stab wound located on the left side of the chest above the left nipple; stab wound located on the left chest below the left nipple.

[7] Superficial incised wound located on the left chest above the left nipple; stab wound measuring 2x1x2cm located on the lateral aspect of right leg; stab wound 2x1x2cm located on the lateral aspect of the left leg.

[8] TSN, April 3, 1997, pp. 2-7.

[9] Id. at 10, 16-19.

[10] TSN, April 4, 1997, pp. 24 and 27.

[11] TSN, April 28, 1997, pp. 5-6.

[12] Id. at 13-14.

[13] TSN, May 15, 1997, pp. 3-9.

[14] Id. at 11-14.

[15] TSN, May 16, 1997, pp. 29-32.

[16] Rollo p. 63.

[17] Id. at 65-66.

[18] Id. at 103.

[19] TSN, May 15, 1997, p.8.

[20] TSN, April 28, 1997, p. 5.

[21] People vs. Bracamonte, 257 SCRA 380, 381 (1996).

[22] People vs. Erardo, 277 SCRA 643, 654 (1997).

[23] TSN, April 22, 1997, p. 26.

[24] People vs. Landicho, 258 SCRA 1, 32 (1996).

[25] People vs. De Leon, 262 SCRA 445, 450 (1996).

[26] People vs. Valles, 267 SCRA 103, 113 (1997).

[27] People vs. Cruz, 262 SCRA 237, 243 (1996).  See also, People vs. Nalangan, 270 SCRA 234, 240 (1997); People vs. Naguita, 313 SCRA 292, 308 (1999).

[28] TSN, April 4, 1997, p. 6; April 22, 1997, p. 16.

[29] Pecho vs. People, 262 SCRA 518, 530 (1996).

[30] People vs. Berroya, 283 SCRA 111, 129 (1997).

[31] 292 SCRA 186 (1998).

Office logbook not the best evidence to prove absences, it's a mere locator; Daily Time Record (CSC Form 48) duly certified by the employee, verified by supervisor and authenticated by the head of the office is the best evidence to prove attendance.

417 Phil. 588

EN BANC

G.R. No. 142444, September 13, 2001

OFELIA D. ARTUZ, PETITIONER, VS. COURT OF APPEALS, CIVIL SERVICE COMMISSION AND RENE A. BORNALES, RESPONDENTS.

R E S O L U T I O N

BELLOSILLO, J.:

This resolves the 11 August 2000 Motion for Reconsideration of the 4 July 2000 Resolution of the Court finding no grave abuse of discretion on the part of public respondent Court of Appeals and dismissing the petition of Ofelia D. Artuz.

On 11 December 1991 private respondent Rene A. Bornales, Legal Aide, Regional Health Office No. VI (RHO VI), filed before the Office of Legal Affairs, Department of Health (DOH), a Letter-Complaint against petitioner Ofelia D. Artuz, then Legal Officer IV, RHO VI, DOH, for Estafa or Swindling through Falsification of Public Documents and/or Falsification of Public Documents.[1]

Before RHO VI of DOH could act on the Letter-Complaint, and in view perhaps of the delay, private respondent Bornales went to the Merit System Protection Board (MSPB) of the Civil Service Commission (CSC). On 10 November 1992 MSPB took cognizance of the Letter-Complaint and directed Regional Office No. VI. (RO VI) of CSC to conduct the necessary investigation, and to submit its report and recommendation. Thereafter, on 28 May 1993 the MSPB formally charged petitioner with Dishonesty and Falsification of Public Documents and directed her to file her answer within five (5) days from receipt thereof. Petitioner as respondent therein was advised accordingly of her right to formal investigation and to assistance of counsel.

In her answer dated 20 July 1993 petitioner Artuz vehemently denied the charges against her, contending that they were "malicious, fabricated and pure harassment." She maintained that the charges had no factual and legal basis as she had regularly reported to office and performed her duties as Legal Officer IV during the period in question, as shown by her Daily Time Records (DTRs) for July and August 1991, which were duly verified by the Personnel Section and finally approved by the Director of RHO VI.  Moreover, she asserted that her Punch Cards for those months would tally with her DTRs and further confirm the regularity of her office attendance. According to her, their office was implementing the Bundy clock system, and there was no office memorandum or circular requiring the use of the Logbook.

Petitioner attributed the filing of the Letter-Complaint against her by private respondent Bornales to vengeance as she had, as Legal Officer IV of RHO VI, previously filed a case against him for Gross Dishonesty, Grave Misconduct, Insubordination and Conduct Prejudicial to the Best Interest of the Service. Furthermore, she claimed that private respondent Bornales had no personal interest in the subject matter of the grievance; that the filing of the Letter-Complaint was premature and arbitrary for lack of prior notice, opportunity to be heard, and no investigation was conducted before the MSPB of the CSC assumed jurisdiction. Finally, petitioner invoked "forum shopping" in view of the pendency of the case before the Office of Legal Affairs of DOH.[2]


On 24 August 1993 the CSC issued Resolution No. 93-3285 directing CSC RO VI or its duly authorized representative to conduct a formal investigation and submit a report and recommendation on the matter, ratiocinating that "no fair and just decision can be made without the conduct of a formal investigation."[3] Thereafter, CSC RO VI reported -
Summing up the evidence from both sides, the prosecution proves by substantial evidence the fact that Artuz committed dishonesty and falsification when she claimed, by falsifying the entries in her daily time records, to have incurred no absences for July and August 1991 x x x Needless to say, the logbook is the best evidence to prove the attendance of any employee x x x x[4]
Meanwhile, on 9 December 1996 petitioner Ofelia D. Artuz was appointed Assistant City Prosecutor of the City of Iloilo.

On 15 July 1998 petitioner received copy of CSC Resolution No. 981650 dated 26 June 1998 finding her guilty of dishonesty and falsification of public documents and imposed upon her the penalty of dismissal from the service including all its accessory penalties.[5] According to the CSC -
x x x substantial evidence establishes the fact that respondent falsified entries in her DTRs for the months of July and August 1991 to enable her to claim her salaries in full. It is, therefore, clear that she benefited from said deliberate acts of falsification. "In falsification or forgery, the person or persons who are or were in possession of, or made use of, or benefited from the forged or falsified documents are legally presumed to be forgers."[6]
Petitioner's Motion for Reconsideration dated 30 July 1998 was denied for lack of merit in CSC Resolution No. 982942 dated 12 November 1998.[7]

On 29 December 1998 petitioner went to the Court of Appeals which on 29 September 1999 affirmed the Resolution of the CSC and dismissed her petition. The appellate court relied so much on the Logbook, calling it "the best evidence to prove the attendance of any employee" as against the DTRs and used the rationale of the CSC that it is in the Logbook that "the employee personally signs his/her name every time he/she reports for work or goes out after office hours. The Logbook is personally prepared by the employee himself or herself. This much credibility cannot be said of the daily time record since it is not too uncommon for us to hear employees asking their co-employees to punch for them their punch card at the Bundy clock."[8]

The appellate court also enumerated the accessory penalties to dismissal from the service which were meted petitioner Artuz: (a) cancellation of eligibility; (b) forfeiture of leave credits and retirement benefits; and, (c) disqualification from re-employment in government service.[9] Petitioner Artuz' Motion for Reconsideration dated 25 October 1999[10] and her Addendum to Motion for Reconsideration dated 15 November 1999[11]were denied in a Resolution of the Court of Appeals dated 28 February 2000.

On 19 April 2000 petitioner Artuz filed a petition for review on certiorari before this Court. On 4 July 2000 we dismissed the petition after finding no grave abuse of discretion on the part of the Court of Appeals. Hence, this Motion for Reconsideration.

We find petitioner's Motion for Reconsideration highly meritorious. Reduction of the penalty imposed on her is not enough; the petition must be granted and the case against her dismissed.

First.  Artuz filed a petition for review on certiorari under Rule 45 and not a petition for certiorari under Rule 65 of the Rules of Court. Curiously, we dismissed the petition on the ground of no grave abuse of discretion on the part of the Court of Appeals. Clearly, without going into the merits of the case, the basis for the dismissal was not proper.

Second.  The reliability and trustworthiness of the Logbook were the principal and only bases for finding petitioner guilty of falsification of public documents. Thus, it is important to determine the probative value of the Logbook vis-à-vis the DTRs and the Punch Cards.

As may be gleaned from the Resolution of the CSC and the Decision of the Court of Appeals, "the logbook is the best evidence to prove attendance of any employee." We do not agree.

One.  The CSC and the CA proceeded in disposing of this case on a wrong premise. Both assumed that the Logbook alone would be the best evidence of an employee's attendance in his office. This assumption is erroneous and baseless. Ordinarily, the Logbook is used as a mere locator for those employees who now and then are required to render service or sent on official business outside the office premises, or to record events or unusual happenings in the office, unless otherwise specified or required in an office memorandum or circular. Just to illustrate the fallacy of this assumption and the unreliability of the Logbook as piece of evidence: RHO VI sits in Iloilo City. It comprises the Provinces of Aklan, Antique, Capiz, Guimaras, Negros Occidental and the Cities of Iloilo, Bacolod, Roxas, Silay, etc. If an employee of RHO VI is sent on an official business to Bacolod City and takes the regular trip by boat that leaves Iloilo City at 6:00 o'clock in the morning, arriving at the pier of Bacolod City at 8:00 o'clock, he does not have to go to the regional office before departure time to sign the Logbook. Similarly, when he leaves Bacolod City after office hours at 6:00 o'clock in the afternoon and arrives in Iloilo at 8:00 o'clock in the evening, he does not have to pass the office to sign the Logbook, as it would be impractical, unreasonable and absurd! In such case, the office can only rely on his DTR which is not only certified correct by him but also by his chief of office. The lower portion of a DTR or Civil Service Form No. 48 provides -
I certify on my honor that the above is a true and correct report of the hours of work performed, record of which was made daily at the time of arrival at and departure from office.

_______________________

Verified as to the prescribed office hours.

_______________________
                                                                                                                                                                                                                                                                                                                                                                                                                                                 In Charge

Clearly, the employee concerned certifies or attests to the truthfulness of the entries made in the DTR. Moreover, the person in charge verifies the entries as to the prescribed hours. No such certification or attestation and verification are required in a Logbook.

In the case of petitioner Artuz, she certified and attested to the veracity of the entries she made in her DTRs for July and August 1991. The entries were verified by the Personnel Section of RHO VI and its Regional Director.  In the absence of evidence to the contrary, the presumption of regularity in the performance of their official functions must be upheld.

Two.  It was the uncontroverted claim of petitioner that in 1991 the common practice in Region VI, DOH, was that the employees would punch in their cards in the Bundy clock as they entered or left the office. These Punch Cards were compared with their DTRs, not with the Logbook, in determining entitlement to salaries as the signing of the Logbook, according to the Court of Appeals, was devised only as "a last precautionary measure."[12] Evidently, petitioner Artuz received her salaries for July and August 1991 as no irregularity was found in her attendance in office.

Interestingly, it was only in a Memorandum dated 26 October 1994 that Dr. Merceditas V. Cavaneyro, OIC-Director IV, DOH, Region VI, required the employees of the Regional Field Health Office of Region VI "to keep a daily record of office attendance registered in the Bundy Clock and in the logbook or attendance sheet."[13] It further provided -

The logbook or attendance sheet containing signatures of employees shall certify correctness of bundy clock entries in the punch card.  Both documents shall contain the same entries.

The Personnel Section is hereby authorized to check entries in the punch cards vis-à-vis the attendance sheet.  Falsification or irregularities in the keeping of time records shall be dealt with accordingly.[14]

The Letter-Complaint against petitioner Artuz was filed on 11 December 1991 and the aforementioned Memorandum was issued only on 26 October 1994. Obviously, the policy of strict compliance with the signing of the Logbook or attendance sheet was only made almost three (3) years after the filing of the instant Letter-Complaint against petitioner Artuz. This Memorandum of 26 October 1994, therefore, cannot be made to apply to her.

Third.  The CSC and the Court of Appeals faulted petitioner Artuz for her non-production of her Punch Cards. In its Resolution No. 981650, the CSC stated that petitioner Artuz never presented her Punch Cards and that she did not even explain where they were.[15] On its part, the appellate court noted that the Punch Cards were "not at all offered in evidence."[16] This assumes that the Punch Cards would prove that the entries therein did not tally with the DTRs of petitioner. This is pure speculation leading to a vicious conclusion.

Petitioner Artuz did not present her Punch Cards in evidence as she was not required to do so; but even assuming that she was, the Punch Cards were not in her custody. They were where they should be - in the possession of the Personnel Section, RHO VI, which should have presented those Punch Cards against her if they did not tally with her DTRs. Certainly, it was not the duty of petitioner to disprove what private respondent Bornales failed to prove. As complainant against petitioner, the burden was on private respondent Bornales to prove that the Punch Cards of petitioner did not tally with her DTRs. Conversely, it could be presumed that the Punch Cards if presented by private respondent Bornales would have confirmed the authenticity of the entries in the DTRs of petitioner Artuz, otherwise, why did he not present them in evidence when it was well within his means to do?

Fourth.  Private respondent Bornales had an evil motive to file the instant Letter-Complaint against petitioner Artuz. Indeed, if private respondent Bornales was only acting in good faith - and not moved to retaliate against petitioner - he should have reported the matter much earlier rather than wait, as he did, for the time when he was administratively charged by petitioner with Gross Dishonesty, Grave Misconduct, Insubordination and Conduct Prejudicial to the Best Interest of the Service, before filing his Letter-Complaint against petitioner.

Finally.  Findings of fact of an administrative agency must be respected and this Court should not be tasked to weigh once more the evidence submitted before the administrative body. However, it is axiomatic that such findings of fact should be supported by substantial evidence. We are not convinced that the non-signing in the Logbook by petitioner Artuz alone is substantial evidence considering that we have clearly shown in the above discussion that it is not "the best evidence to prove attendance of an employee," unlike the questioned DTRs that were duly certified by the employee concerned, verified by his immediate supervisor, and authenticated by the head of the regional office.

In administrative proceedings, the complainant has the burden of proving, by substantial evidence, the allegations in the complaint.[17] The DTR reflects the official attendance of the employee in the absence of proof that the employee concerned has falsified his DTR. In the instant case, private respondent Bornales failed to substantiate his claim of falsification by petitioner of her DTRs on the basis of the Logbook alone. As the burden was not carried out by private respondent, petitioner must be cleared of all charges and accountabilities under the law. After all, petitioner was wrongly charged of an offense that could have caused her her career, and even tranquility of the mind. She is a career public servant, then as Legal Officer IV of DOH, RHO VI, and now Assistant Prosecutor of the City of Iloilo. As such, we must correct the injustice done to her by rehabilitating her name through a finding of innocence.

IN VIEW WHEREOF, the Motion for Reconsideration is GRANTED. The Decision of the Court of Appeals affirming the Resolution of the Civil Service Commission dismissing petitioner Ofelia D. Artuz from the service with all its accessory penalties is REVERSED and SET ASIDE and the instant case against her is DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.
Melo, J., in the result.
Puno, J., on official leave.



[1] Rollo, pp. 74-75.

[2] Id., pp. 81-83.

[3] Penned by Chairman Patricia A. Sto. Tomas, concurred in by Commissioners Ramon P. Ereneta, Jr. and Thelma P. Gaminde.
[4] This report of RO No. VI was merely quoted from Resolution No. 981650, but there is no copy of the report in the Rollo.
[5] Penned by Commissioner Thelma P. Gaminde, concurred in by Chairman Corazon Alma G. De Leon and Commissioner Jose F. Erestain, Jr.
[6] Ibid., citing Galan v. Napase, A.M. No. P-90-417, 10 April 1992, 208 SCRA 1.

[7] See Note 5.

[8] Penned by Associate Justice Conrado M. Vasquez, Jr., concurred in by Associate Justices Rodrigo V. Cosico and Teodoro P. Regino.

[9] Id., citing Sec. 9, Rule XIV, Omnibus Rules Implementing Book V, Administrative Code of 1987.

[10] Rollo, pp. 154-175.

[11] Id., pp. 183-184.

[12] See Note 8, p. 4.

[13] Rollo, p. 126.

[14] Ibid.

[15] See Note 5, p. 5.

[16] See Note 13.

[17] Lorena v. Encomienda, A.M. No. MTJ-99-1177, 8 February 1999, 302 SCRA 632.