G.R. No. 143085 March 10, 2004

PEOPLE, appellee, vs. EDGARDO BORBON y BOTER, appellant.

D E C I S I O N CALLEJO, SR., J.:

This is an appeal from the Decision of the Regional Trial Court of Manila, Branch 18, in Criminal Case No. 95-145714, convicting appellant Ricardo Borbon of murder, sentencing him to suffer the penalty of reclusion perpetua and ordering him to pay damages to the victim as follows: P150,000.00 as actual damages, P250,000.00 as moral damages, and P50,000.00 with interest at 6% per annum by way of indemnity for the loss of the victim’s life.

An Information against the appellant was filed on October 12, 1995, which reads as follows:

That on or about June 17, 1995, in the City of Manila, Philippines, the said accused, did then and there willfully, unlawfully and feloniously, with intent to kill and with treachery and evident premeditations, attack, assault and use personal violence upon one GREGORIO SUCK by then and there stabbing him with a kitchen knife and hitting his abdomen, thereby inflicting upon him mortal stab wound which was the direct and immediate cause of his death thereafter.

Upon arraignment, the appellant entered a plea of not guilty. Trial of the case ensued.

The Evidence for the Prosecution

Between 11:00 p.m. and 12:00 midnight of June 16, 1995, Jaime Tabilangan was in front of the house of a certain Aling Pet Pingol in San Lorenzo St., Tondo, Manila. He was seated at a bench and was conversing with the appellant and Christina David, the appellant’s niece. The appellant was seated beside Jaime. The appellant reeked of liquor and appeared to be drunk.

Amado Vicmudo, Jr. had just come from watching a basketball game. He was on his way home, accompanied by Gregorio Suck and Richard Tabilangan. The group stopped in front of Aling Pet’s house. Christina left upon the arrival of Gregorio, Amado and Richard. Amado then sat beside Jaime on the bench, while Gregorio and Richard remained standing. The group began talking about the basketball game that Amado had just seen. The appellant, who was seated beside Jaime, did not take part in the conversation.

Suddenly, the appellant frisked Jaime’s waist and uttered that he “wanted to kill.” Jaime became frightened and immediately went to his house, which was just adjacent to Aling Pet’s house. Richard, Jaime’s brother, likewise went home. Jaime drank about two glasses of water, which took about three to five minutes, as soon as he reached his house.

Meanwhile, Amado and Gregorio continued their conversation while the appellant remained seated at the bench. Minutes later, the appellant stood up and went inside the house of Aling Pet. Amado and Gregorio remained outside, still conversing with each other. About a minute later, the appellant, carrying two knives, emerged from the house. Immediately and without warning, he stabbed Gregorio at the right side of the belly with one of the knives. Amado was shocked at what transpired, but managed to run away towards his house, which was not far away.

Jaime returned and saw Gregorio and the appellant. He asked Gregorio what happened. Gregorio replied not to come near him as he was stabbed by the appellant. The appellant, still holding a knife, turned his attention to Jaime and uttered, “O, ikaw!” The appellant then fled, while Gregorio tried to pursue him. Weakened by his injury, Gregorio fell down on his right knee. With the appellant gone, Jaime assisted Gregorio. Amado, likewise, returned and assisted Gregorio. Jaime and Amado brought Gregorio to the house of the Allan Suck, Gregorio’s brother, not far from the place of the incident.

When Allan heard the commotion outside of his house, he went out and saw Jaime and Amado carrying his brother, Gregorio. Allan noticed that Gregorio was bleeding from a stab wound in the stomach. Jaime and Amado informed Allan that Gregorio had been stabbed by the appellant. Allan then asked his brother, Gregorio, what happened. Gregorio replied “Allan, nasaksak ako ni Edgardo Borbon” (Allan, I was stabbed by Edgardo Borbon). Allan, Amado and Jaime then hailed a taxi to

bring the victim to a hospital. Inside the taxi, Gregorio said nothing more, as he was already weak and bleeding profusely. The group arrived at the Metropolitan Hospital in Tondo, Manila, where Gregorio was immediately operated. After the operation, Gregorio was placed in the Intensive Care Unit (ICU) where he went on comatose.

Gregorio died on June 19, 1995. Dr. Manuel O. Lagonera, Medico-Legal Officer of the PNP, conducted an autopsy on the cadaver of the victim which yielded the following findings:

EXTERNAL FINDINGS:

1. Abrasion, outer angle of the mouth, right, measuring 1.5 x 0.8 cms.

2. Exploratory laparotomy incision, mid-abdomen, measuring 27 cms.

3. Drainage incisions, right upper quadrant, abdomen.

4. Stab wound, right upper quadrant, abdomen, 42 inches from heel, 8 cms. from anterior midline, measuring 3 x 0.6 cms., directed slightly upwards, backwards towards midline, piercing the right lobe of the liver, right kidney, transecting blood vessels of the mesentery and omentum of the transverse colon and head of the pancreas.

Depth of the wound — 13 cms.

INTERNAL FINDINGS:

1. Injured tissues and organs were surgically repaired.

Right nephrectomy was performed.

2. Patchy and confluent consolidations were noted on both lungs.

CAUSE OF DEATH:

STAB WOUND, RIGHT SUB-COSTAL REGION.

According to Dr. Lagonera, the immediate cause of death was pneumonia bilateral secondary to stab wound in the right sub-costal region.

The Evidence For The Defense

The appellant denied the charge against him. He testified that he was a resident of Plaridel, Bulacan since 1991, and lived with his mother. He worked in a rice mill.

The appellant testified that he was once ganged upon by Gregorio and Allan. Allan threw a bottle and hit the appellant on the head, and the wound left a scar. The appellant filed a case against the two, but the same was withdrawn when the matter was settled amicably.

The appellant denied that he went to Manila on June 17, 1995. He maintained that he did not know anything about the death of Gregorio Suck. He averred that he traveled to Manila only about once a month, to give his daughter her allowance for her studies. The travel time from Plaridel, Bulacan to Manila, would take about an hour to an hour and a half, depending on the volume of traffic.

On April 5, 2000, the trial court rendered a decision convicting the appellant of murder, the dispositive portion of which reads as follows:WHEREFORE, the Accused, Edgardo Borbon y Boter, is hereby convicted of murder under Article 248 of the Revised Penal Code, attended by the mitigating circumstance of intoxication, and sentenced to suffer reclusion perpetua with all the accessory penalties provided by law, and to pay the costs.

On the civil liability of the accused, he is further sentenced to pay the private complainant, Rosary Roxas Suck, actual and moral damages in the respective sums of P150,000.00 and P250,000.00,

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plus indemnity for the loss of the victim’s life in the sum of P50,000.00 with interest thereon at the legal rate of 6% per annum from today until paid.

SO ORDERED.

Appealing to this Court, the appellant raises the following errors:

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.

ON THE ASSUMPTION THAT THE ACCUSED-APPELLANT COMMITTED THE ACTS COMPLAINED OF, THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE AGGRAVATING CIRCUMSTANCES OF TREACHERY AND EVIDENT PREMEDITATION WERE PRESENT IN THE CASE AT BAR.

Anent the first assigned error, the appellant points out that the testimonies of the prosecution witnesses were inconsistent. First, although Jaime testified that the appellant said he wanted to kill and frisked Jaime in the presence of other people, this was not mentioned in the testimony of Amado, who was also present at the time. Second, Allan Suck testified that when he saw his brother, Gregorio, bleeding, he went out of the house to help the latter. This was, however, not mentioned in the respective testimonies of Amado and Jaime. Third, Jaime testified that when he was frisked by the appellant, he went home at around 11:00 p.m., but on cross-examination stated that when he went out of the house and saw Gregorio already stabbed, it was already past 12:00 midnight. The appellant stresses that the above inconsistencies in the testimonies of the prosecution witnesses cast a doubt on his guilt.

The appellant’s contention is bereft of merit.

The matters pointed to by the appellant are merely minor and trivial, and do not pertain to the actual act constitutive of the offense charged. They do not affect the substance of their declaration, nor the veracity or weight of the witnesses’ testimonies. Such minor inconsistencies even have the effect of enhancing the credibility of the witnesses, as they remove any suspicion that the testimonies of the witnesses were coached or rehearsed. In People v. Albarido, it was declared:

Indeed, the fact that the statements of the two prosecution witnesses differ on some minor details, does not in any way affect their credibility. This is in accord with ordinary human experience that persons who witness an event perceive the same from their respective points of reference. Therefore, almost always, they have different accounts of how it happened. Certainly, we cannot expect the testimonies of witnesses to a crime to be consistent in all aspects because different persons have different impressions and recollections of the same incident. …

The fact is that Amado categorically identified the appellant as the one who stabbed the victim. He described the manner how the stabbing occurred, thus:

Q: After the companions of Edgardo Borbon left Edgardo Borbon, what happened?

A: I and Borbon were seated on the wooden bench while Gregorio standing (sic) in front of me.

Q: While you were on (sic) that position, what happened?

A: I noticed Edgardo Borbon stood up.

Q: What happened after Edgardo Borbon stood up?

A: He entered the house of Aling Pet.

Q: After Edgardo Borbon entered the house of Aling Pet what happened? next? (sic)

A: While he was inside the house, Gregorio and I conversed with each other and when Edgardo Borbon came out of the house, he stabbed Greg.

Q: Where is that house located?

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A: We were right in front of the house of Aling Pet and there was a fence separated (sic) us from the house.

Q: Did you see Edgardo Borbon when he emerged from that house of Aling Pet?

A: My back was turned to the house of Aling Pet, so I did not see Edgardo Borbon when he came out from the house, I saw him only when he stabbed Greg.

Q: What particular [part] of the body of Greh (sic) was hit when he was stabbed?

A: Witness pointing to the right side of his stomach.

Q: What was the position of the victim Gregorio Suck when he was stabbed by the accused, Edgardo Borbon?

A: After he was stabbed, he moved backward and at the same time, he was holding the right side of hisstomach. (sic).

Q: How many times Gregorio Suck was (sic) stabbed by Edgardo Borbon?

A: Once, sir.

Q: Where did Edgardo Borbon proceed after he was stabbed (sic) by the victim? once? (sic)

A: He simply moved backward and he was about to draw his other knife, it was at that point that I ran away.

The appellant put up the twin defenses of alibi and denial, asserting that at the time the victim was stabbed, he was in Plaridel, Bulacan. For alibi to prosper, it is not enough for the accused to prove that he was somewhere else when the crime was committed; he must demonstrate that it was physically impossible for him to be at the scene of the crime at the time of its commission. In this case, the appellant himself admitted that the travel from Plaridel, Bulacan to Tondo, Manila, would take only about an hour to an hour and a half. This negates the physical impossibility of him travelling from Plaridel, Bulacan to Tondo, Manila, at the time the stabbing incident took place. The defense presented only the appellant as its lone witness and never presented other witnesses to, at the very least, corroborate the theory of alibi.

It is well settled that a bare and unsubstantiated denial, being merely self-serving, is itself hardly given credence. Alibi is the weakest of all defenses because it is easy to concoct and difficult to disprove. Furthermore, alibi and denial cannot prevail over the positive and unequivocal identification by an eyewitness. Categorical and consistent positive identification, absent any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over the twin defenses of denial and alibi.

In the light of the positive and categorical identification by Amado that the appellant was the perpetrator of the crime charged, the appellant’s defense cannot prosper.

From the foregoing, the guilt of the appellant was proved beyond reasonable doubt.

Anent the second assignment of error, the appellant asserts that the court a quo erred when it considered that the qualifying circumstances of treachery and evident premeditation attended the killing of the victim.

The appellant posits that treachery was not present, as the victim was forewarned of the attack. As testified to by Jaime, the appellant, in the presence of other people, frisked Jaime’s waist and uttered that “he wanted to kill,” clearly sending a message that the appellant might harm someone. Hence, the appellant’s attack on the victim should not be considered as sudden and unexpected. The appellant adds that treachery was not present, since his meeting with Gregorio was only accidental and the appellant had no time to reflect on the method of executing the crime.

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Treachery requires the concurrence of two conditions: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) the deliberate and conscious adoption of the means of execution. The essence of treachery is the sudden and unexpected attack by the aggressor on the unsuspecting victim, depriving the latter of any real chance to defend himself, thereby ensuring its commission without risk to the aggressor, and without the slightest provocation on the part of the victim.

In this case, the appellant stood up from the bench and went inside the house of Aling Pet, while Gregorio and Amado remained outside. About a minute later, the appellant emerged, carrying two knives, and immediately stabbed Gregorio without warning. The attack was sudden and unexpected. The fact that the appellant brought two knives with him clearly indicated that he made a deliberate and conscious adoption of the means to kill Gregorio. He wanted to insure the execution of the killing, without risk to himself, not to afford the victim of putting up any means of defense.

From the foregoing, treachery or alevosia has been sufficiently established.

Anent the existence of evident premeditation, the appellant posits that for evident premeditation to be appreciated, the following requisites must concur: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit has clung to his determination; and (3) sufficient lapse of time between the determination and execution to allow him to reflect upon the consequences of his act. The appellant stressed that the prosecution failed to prove the existence of the aforesaid requisites. The appellant added that the meeting between him and Gregorio was merely accidental; hence, there could be no pre-determined or pre-conceived plan on his part to attack Gregorio.

We agree with the appellant’s pose. The essence of evident premeditation is that the execution of the criminal act was preceded by cool thought and reflection upon the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm judgment. It must be based on external acts which must be notorious, manifest and evident – not merely suspecting – indicating deliberate planning. Evident premeditation, like other circumstances that would qualify a killing as murder, must be established by clear and positive evidence showing the planning and preparation stages prior to the killing. Without such evidence, mere presumptions and inferences, no matter how logical and probable, will not suffice.

It is indispensable to show how and when the plan to kill was hatched or how much time had elapsed before it was carried out. The prosecution in this case failed to show when the appellant decided to commit the crime and that a sufficient amount of time elapsed for him to reflect upon his resolution to kill Gregorio. Where there is no evidence as to how and when the plan to kill was decided and what time had elapsed before it was carried out, evident premeditation cannot be considered as an aggravating circumstance.

Nevertheless, even if the prosecution failed to prove the existence of evident premeditation, the killing of Gregorio is still classified as murder, as it was attended with the qualifying circumstance of treachery.

In its decision, the court a quo appreciated the mitigating circumstance of intoxication in favor of the appellant. This Court, however, disagrees with such finding. Under the third paragraph of Article 15 of the Revised Penal Code, intoxication is considered as an alternative circumstance, it may either be taken as an aggravating or a mitigating circumstance. For intoxication to be considered as a mitigating circumstance, the following conditions must be present: (1) the same is not habitual or is not subsequent to a plan of the commission of a felony; otherwise, it is aggravating if it is habitual and intentional; and (2) the consumption of alcoholic drinks was in such quantity as to blur the accused’s reason and deprive him of certain degree of control. In People v. Ventura, this Court had the occasion to state, thus:

Intoxication or drunkenness is mitigating if not habitual nor intentional, and it must be indubitably proved (Art. 15, Revised Penal Code; People v. Camano, 115 SCRA 688 [1982]). Accused-appellant is not entitled to the mitigating circumstance of intoxication merely on the declaration of the prosecution witness that appellant was drunk (Exh. D, Original Record, page 151). Accused-

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appellant must prove that such intoxication is not habitual nor intentional. This he failed to do, for the reason that the accused-appellant’s defense was that of alibi.

Jaime testified that he noticed that the appellant was drunk as his movement was swaying and he smelled of liquor. Nothing else was mentioned about the appellant’s drunkenness during the incident. For his part, the appellant presented nothing to prove that he was, indeed, not drunk. Having failed to prove that intoxication was neither habitual nor intentional, the mitigating circumstance of intoxication cannot be appreciated against or in favor of the appellant.

The imposable penalty for murder is reclusion perpetua to death, an indivisible penalty, which is not affected by a mitigating circumstance.

With respect to the amount of damages, the court a quo awarded the amount of P150,000.00 as actual damages,P250,000.00 as moral damages, and P50,000.00 as indemnity for the loss of the victim’s life with interest at 6% per annum from the date of the decision until fully paid.

Rowena Manalansang, the victim’s sister-in-law, testified to prove the amount incurred for the hospitalization and burial expenses of Gregorio. Based on her computation, the total amount incurred was P150,000.00. However, based on said amount, only a total amount of P124,388.55 was supported by receipts. Hence, we only grant the amount of P124,388.55 by way of actual damages.

The award of moral damages, likewise, needs to be modified, as the amount of P250,000.00 granted by the court a quo is deemed excessive. Based on prevailing jurisprudence, the amount of P50,000.00 by way of moral damages is sufficient. In People v. Galvez, this Court stressed that the purpose of the award of moral damages is not to enrich the heirs of the victim but to compensate them for the injuries to their feelings.

The amount of P50,000.00 granted by the court a quo by way of indemnity is commensurate, based on prevailing jurisprudence.

IN THE LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Manila, Branch 18, in Criminal Case No. 95-145714 is AFFIRMED WITH MODIFICATION. The appellant Edgardo Borbon y Boter is found GUILTY beyond reasonable doubt of murder under Article 248 of the Revised Penal Code and is sentenced to the penalty of reclusion perpetua. The appellant is ordered to pay to the heirs of the victim Gregorio Suck the amount of P124,388.55 as actual damages, P50,000.00 as moral damages, and P50,000.00 by way of indemnity for the death of the victim.

SO ORDERED.

Quisumbing, (Acting Chairman), Austria-Martinez, and Tinga, JJ., concur.Puno, (Chairman), J., on leave.

People of the Philippines vs Edgardo BorbonBy Howard On August 6, 2011 · 1 Comment

Aggravating Circumstance – Treachery – Evident Premeditation

On July 17, 1995, Barbon was drunk and he announced he wish to kill Jaime Fahilangan. Upon hearing this, Jaime got scared and he went inside his house. Barbon then went inside a house and emerged therefrom with 2 knives. Then an unsespecting Gregorio was stabbed on the belly by Barbon. Gregorio died. Barbon averred during trial taht he was not at the scene of the crime when it was committed.

ISSUE: Whether or not evident premeditation and treachery are attendant.

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HELD: Barbon’s alibi is not credible. The fact that Barbon is armed with two knives and he announced his intent to kill and his sudden and unexpected attack upon the victim Gregorio (which gave Gregorio no means of defense) indicates the presence of treachery. However, evident premeditation is not proved for there was no sufficient time for him to reflect upon the crime he was about to commit.

[G.R. No. 138541.  June 12, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. JOSE LARRY COLONIA, appellant.

D E C I S I O N CORONA, J.:

Before us is an appeal from the Decision dated September 17, 1998 of the Regional Trial Court of Malaybalay City, Branch 9, in Criminal Case No. 6725-94, finding herein appellant, Jose Larry Colonia, guilty beyond reasonable doubt of murder for killing Leonardo Mallari.  His brothers and co-accused, Eduardo and Rene Colonia, were acquitted of the charge.

The appellant and his co-accused were charged with the crime of murder as defined and penalized under Article 248 of the Revised Penal Code in an Information which read:

That on or about the 2nd day of January 1994, at dawn, at Purok 2, Barangay Kiburiao, Municipality of Quezon, Province of Bukidnon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another, with intent to kill, by means of treachery and taking advantage of their superior strength, armed with pieces of wood and a sharp bladed weapon, did then and there wilfully, unlawfully and criminally attack, assault, strike and stab CPL. LEONARDO MALLARI, inflicting upon the latter mortal injuries which caused the instantaneous death of LEONARDO MALLARI; to the damage and prejudice of the legal heirs of LEONARDO MALLARI in such amount as may be allowed by law.

Contrary to and in violation of Article 248 of the Revised Penal Code.

Upon arraignment on November 25, 1994, all three accused, assisted by counsel, pleaded “not guilty.” Thereafter, trial on the merits ensued.

The prosecution presented two witnesses: Antonio Urcinado, an eyewitness to the stabbing incident and the victim’s widow, Gretel O. Mallari. On the other hand, the defense presented accused Eduardo Colonia and his neighbor, Daylinda Oro.

The records disclose that, at around 1:45 a.m. on January 2, 1994, prosecution witness Antonio Urcinado and the victim, Leonardo Mallari, both soldiers of the Philippine Army, were walking in Purok 2, Kiburiao, Quezon, Bukidnon.  Both came from a disco party in Kiburiao proper where they had a drinking spree with some of their friends.  On the other side of the road was a group of nine men, from one of whom Mallari requested a match with which to light his cigarette. Moments later, an argument broke out between Mallari and a member of the group, Eduardo Colonia, who approached the two soldiers. Whereupon Urcinado saw Mallari kick Eduardo, causing the latter to fall.  As Urcinado was pacifying Mallari, Eduardo’s brother, Rene Colonia, struck Mallari’s head with a round stick, causing Mallari to fall face down.  As Mallari lay flat on his stomach, another brother of Eduardo, accused Jose Larry Colonia, stabbed Mallari on the left side of his back with a hunting knife, penetrating his chest. Urcinado ran to the army camp for assistance but, upon his return with companions from the detachment, Mallari was already dead and the group had fled.

The police authorities conducted an investigation before proceeding to the army camp in Kipulot, Palalapaw.  Although no post-mortem examination was conducted on Mallari’s cadaver, the defense admitted that the cause of death was massive hemorrhage due to a stab wound.

The second witness for the prosecution was the victim’s wife, Gretel O. Mallari, who testified that she learned of her husband’s death only the following morning.  She declared that, by reason of her

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husband’s death, she suffered mental anguish and sleepless nights.  She further asked the court to award her the amount of P5,000 for attorney’s fees, P3,000 for litigation expenses, P15,000 for embalming and coffin, and P3,000 for the vigil.  On cross-examination, she admitted that the GSIS released P10,000 as burial benefits.

The defense of Eduardo Colonia consisted mainly of denial and alibi.  He claimed that he arrived home on January 1, 1994 at around 8:00 p.m. from Cagayan de Oro City where he worked in a construction project.  While the family was eating dinner, Daylinda Oro arrived and asked him about her son who was working with him there.  After a while, he went to sleep.  So did his brothers, Jose Larry and Rene. The following morning, Eduardo was awakened by a commotion in the neighborhood.  They heard that someone had been killed in the plaza.  He went out of the house to inquire into what it was all about but soldiers arrested him and brought him to the barracks for interrogation as one of the suspects in the killing. The next day, his two brothers were also arrested.  He did not personally know Antonio Urcinado and was surprised to learn that Urcinado knew them.

Daylinda Oro corroborated Eduardo’s testimony that, at the time Mallari was killed at Kiburiao, Quezon, Bukidnon on January 2, 1994, the three Colonia brothers were already asleep.  She declared that she knew the Colonias because they were neighbors.  On January 1, 1994, on learning that Eduardo had arrived from Cagayan de Oro City, she proceeded to their house to ask about her son who was working with him there.  Eduardo told Daylinda that her son had no money for fare so he did not come home.  Eduardo’s mother,  Bonifacia, requested Daylinda to help her dress the chicken and cook “biko.” She acceded to Bonifacia’s request and stayed up to midnight in her house.  At around 9:00 p.m., she noticed that Eduardo, Rene and Jose Larry were already asleep in the sala.  At past midnight, Daylinda heard gunshots, prompting her to go out of her house to look for her youngest daughter who was not yet home. She returned to Bonifacia’s house to seek assistance.  While there, she saw Jose Larry, Eduardo and Rene still sleeping in the sala.

After weighing the evidence on record, the trial court rendered judgment finding appellant Jose Larry Colonia guilty of murder.  Accused Eduardo Colonia and Rene Colonia were acquitted for insufficiency of evidence and for having acted in defense of their brother.  The dispositive portion of the decision read:

WHEREFORE, the Court hereby acquits accused Eduardo Colonia for failure of the prosecution to prove his guilt beyond reasonable doubt while accused Rene Colonia having acted in defense of his brother co-accused Eduardo is likewise acquitted.

The Court having found Jose Larry Colonia guilty beyond reasonable doubt of the crime of Murder, hereby sentences him to Life Imprisonment and to indemnify the heirs of Leonardo Mallari the following:

1)           P50,000.00 for his death;

2)           P50,000.00 for moral damages;

3)           P5,000.00 for attorney’s fees;

4)           P3,000.00 for litigation expenses;

5)           P3,000.00 for the expenses during the vigil; and

6)           P15,000.00 for the embalmment and coffin; less the P10,000.00 released by the GSIS for burial expenses.

SO ORDERED.

The two principal issues for resolution are: (1) whether the trial court erred in appreciating the qualifying circumstance of treachery against appellant and (2) whether the trial court erred in

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convicting appellant of murder, instead of homicide, when the guilt for murder was not proven by the prosecution beyond reasonable doubt.

Appellant raises the following arguments:

First, appellant argues that he should be acquitted because of Urcinado’s failure to identify Mallari’s assailants when he was presented in court.  To support his argument, petitioner cites the case of People vs. Esmale which held that the first duty of the prosecution is not to prove the crime but to prove the identity of the criminal for, even if the commission of the crime can be established, without proof of the identity of the criminal beyond reasonable doubt, there can be no conviction.

Once again, we stress that the correct identification of the author of a crime should be the primary concern of criminal prosecution in a civilized legal system and corollary to this is the actuality of the commission of the offense with the participation of the accused. In the case at bar, Urcinado’s error about the Colonia brothers’ names cannot justify appellant’s acquittal.  This Court has repeatedly held that identification of a person is not solely through knowledge of his name.  In fact, familiarity with physical features, particularly those of the face, is the best way to identify a person.  One may be familiar with the face but not necessarily the name.  It does not follow therefore that, to be able to identify a person, one must first know his/her name. Experience in fact shows that, precisely because of peculiar acts committed before them, eyewitnesses, especially victims of a crime, can remember the identity of criminals with a high degree of reliability.  Most often, the face and body movements of the assailant create an impression which cannot easily be erased from their memory. While Urcinado failed to identify the Colonias by name, he was able to positively identify them by face.  On direct examination, Urcinado testified:

ATTY. OKIT:

Q    You said that there was a group of persons whom you did not know at that time, you could identify the faces of those persons that made the rumble?

A     Yes.

Q    If the persons who joined the rumble which you saw are in this court, can you point to them if they are in this court?

A     Yes.

Q    Kindly step down from the witness stand and go to the persons who are seated in the bench for the accused and point to this court the persons whose faces you were able to identify at that time of the rumble and touch the shoulders of the persons?

A     (witness stepped down from the witness stand and proceeded to the bench assigned for the accused and touched the shoulder of accused Rene Colonia, witness touched the shoulder of accused Eduardo Colonia and witness touched the shoulder of accused Jose Larry Colonia).

xxx                                      xxx                                                                               xxx

Q    What was the last act that you saw after Rene struck Mallari with a wood?

A     The stabbing.

Q    Who stabbed Mallari?

A     Larry Colonia.

Q    If Larry is in court, can you identify him?

A     Yes.

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Q    How far were you from Mallari and Larry Colonia when Larry stabbed Mallari?

A     Three meters.

Q    What did you see, what weapon did Larry Colonia use in stabbing Mallari?

A     A hunting knife.

Q    How many times did you see Larry stabbed (sic) Mallari?

A     Once.[

No cogent reason exists to overturn the trial court’s finding that Urcinado positively and unequivocally identified appellant as the felon who stabbed Mallari. Urcinado had a good look at his companion’s assailant. He actually saw appellant stab Mallari as he was just three meters away from the victim.  This is in addition to the fact that the Colonia brothers were familiar to him since he had been stationed in Kiburiao, Quezon, Bukidnon for a year prior to the incident.  It is doctrinal that the trial court’s evaluation of the credibility of a witness and his testimony is accorded the highest respect, for the trial court has an untrammeled opportunity to observe directly the demeanor of a witness and thus, to determine whether he is telling the truth.

Second, appellant raises the defense of alibi, saying that, at the time of the incident, he was at home asleep. Such defense does not merit serious consideration. For alibi to prosper, it is not enough for the accused to prove that he was somewhere else when the crime was committed. He must also prove that he could not have been physically present at the scene of the crime or its immediate vicinity at the time of its commission. In this case, Eduardo claimed that, at time of the incident, he and his brothers, Rene and Jose Larry, were already asleep in their house which was 300 meters away from the crime scene. Clearly, there was no physical impossibility for the appellant to be at the scene of the crime when it happened. Likewise, the defense of alibi must be supported by credible corroboration, preferably from disinterested witnesses.  While appellant’s alibi was corroborated by Daylinda Oro, such corroboration was not credible and, as observed by the trial court:

Likewise, the Court cannot believe defense witness Daylinda Oro’s testimony as it is unnatural and highly improbable for a housewife to be out from her house that very evening from 8:00 o’clock to 12:00 o’clock to assist a neighbor in the household chores unmindful of her own family’s needs and desires at that time. The Court cannot also believe her story of taking solely the task of looking for her daughter without asking her husband to join her.

Moreover, Urcinado’s positive identification of appellant as the author of the crime negates alibi. Alibi cannot prevail over the positive identification of the accused by an eyewitness who has no untoward motive to falsely testify.

Third, appellant contends that the trial court erroneously appreciated treachery in the commission of the crime of murder.  He claims it should be downgraded to homicide.  We agree.

Although it was established that appellant inflicted the fatal stab wound on Mallari, the trial court erroneously appreciated the qualifying circumstance of treachery.  For treachery to be considered, it must be clear that the accused deliberately and consciously adopted the means of execution that rendered the person attacked with no opportunity to defend himself or to retaliate. Treachery is not presumed; it has to be proved as convincingly as the killing itself. The prosecution evidence showed that the victim and accused Eduardo had a heated argument. It was only when the victim kicked Eduardo that Rene and Jose Larry joined the fracas.  There was an initial aggression on the part of the victim that resulted in the rumble and ultimately his death.  Thus, the victim was not totally defenseless. He was sufficiently forewarned of the possible reprisal from Eduardo’s group.  Hence, we rule out treachery.

In the absence of the qualifying circumstance of treachery, the crime committed by appellant was not murder but homicide.

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The penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal.  There being no mitigating or aggravating circumstances attending the crime, the penalty should be imposed in its medium period. Applying the Indeterminate Sentence Law, the maximum term of the indeterminate penalty shall be the medium period ofreclusion temporal while the minimum term is anywhere within the range of prision mayor, the penalty next lower to that of reclusion temporal.

We sustain the award by the trial court of civil indemnity and moral damages in the amount of P50,000 each, pursuant to prevailing jurisprudence.

Regarding the attorney’s fees and litigation expenses, Article 2208 of the New Civil Code enumerates the instances where such may be awarded and, in any event, it must be reasonable, just and equitable. Attorney’s fees as part of damages are not meant to enrich the winning party at the expense of the losing litigant.  They are not awarded every time a party prevails in a suit because of the policy that no premium should be placed on the right to litigate.  The award of attorney’s fees is the exception rather than the rule.  As such, it is necessary for the court to make findings of fact and law that would bring the case within the exception and justify the grant of such award.[  Aside from the dispositive portion, nothing was ever said by the trial court in the body of the decision to justify the award of attorney’s fees and litigation expenses.  Hence, we disallow them.

The award of actual damages should also be deleted.  Article 2199 of the Civil Code provides that a party may recover actual and compensatory damages only for such loss as he has duly proved.  Nonetheless, appellant should pay the heirs of the deceased temperate damages in the amount of P25,000.  Under Article 2224 of the Civil Code, temperate damages “may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty.”

WHEREFORE, the decision of the Regional Trial Court of Malaybalay City, Branch 9, is hereby AFFIRMED with the MODIFICATION that appellant Jose Larry Colonia is found guilty of homicide only and sentenced to an indeterminate penalty of 8 years and 1 day of prision mayor, as minimum, to 14 years and 8 months and 1 day of reclusion temporal, as maximum. Appellant is also ordered to pay the amount of P25,000 as temperate damages to the heirs of the deceased. The award of actual damages, litigation expenses and attorney’s fees is hereby deleted.

SO ORDERED.

People of the Philippines vs Rene ColoniaBy Howard On August 6, 2011 · 1 Comment

Aggravating Circumstance – When Treachery is Not Present

On January 2, 1994, at around 1:45 pm in the morning, Leonardo Mallari and a certain Eduardo had an argument. Mallari kicked Eduardo then after Rene Colonia and Jose Larry joined the fracas and a rumble ensued. The group was alleged to be armed with pieces of wood and a bladed weapon. Consequently, Mallari died due to the wounds he sustained. Only Colonia was convicted. He was convicted for murder.

ISSUE: Whether or not treachery is attendant.

HELD: Treachery was not proved. The victim provoked the fight when he kicked Eduardo. It was only then when the group of Colonia joined the fight which indicated that there was no premeditation on his part or their part for that matter. The crime committed is then changed to homicide.

[G.R. No. 150590. August 21, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff–appellee, vs. WILLIE ALMEDILLA y ARCILLA, accused–appellant.

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D E C I S I O N PUNO, J.:

Before us is an appeal from the decision of the Regional Trial Court of Manila, Branch 27 (“RTC”), convicting appellant, Willie Almedilla y Arcilla (“Almedilla”) of the crime of murder, viz:

WHEREFORE, in view of all the foregoing, the court finds accused WILLIE ALMEDILLA y ARCILLA guilty beyond reasonable doubt of the crime of MURDER and hereby sentencing (sic) him to suffer the penalty of Reclusion Perpetua.

Accused is ordered to indemnify the heirs of the victim the sum of P126,000.00 and a further sum of P50,000.00 as moral damages.

Accused is further directed to pay the heirs of his victim the amount of P322,666.66 as his unearned income.

Costs against the accused. SO ORDERED.

Almedilla was charged with the crime of murder committed as follows:

That on or about July 3, 1997, in the City of Manila, Philippines, the said accused, did then and there willfully, unlawfully and feloniously, with intent to kill and with evident premeditation and treachery, attack, assault and use personal violence upon one RUEL BORELA y TAUY, by then and there suddenly and treacherously shooting him with a .38 cal. revolver while his back was against said accused, hitting him on the left side of the body below the armpit, thereby inflicting upon him (a) mortal and fatal gunshot wound, which was the direct and immediate cause of his death thereafter.

Contrary to law.

The eyewitness of the prosecution, Ruben Mesa y Catason (“Mesa”) testified that on July 3, 1997, he reported for work at OIC Construction where he was a leadman/welder. At 7:00 o’clock in the evening, he was waiting for his men who were to work overtime. While seated near the office waiting, he saw their manager, the victim Ruel Borela (“Ruel”) and the security guard, appellant Almedilla arguing outside the office. An armslength away, he saw Almedilla throw a chair at the door of the office. Ruel, who was inside his office, went out and asked who threw the chair. Almedilla replied “Ikaw kasi(,) sir.” Ruel turned his back and was about to go back into the office when Almedilla shot him. Mesa called his men and they rushed the victim to the Philippine General Hospital. Ruel was declared dead-on-arrival.

Dr. Ludivino J. Lagat, the medico-legal officer of the National Bureau of Investigation, conducted the autopsy. He testified that “a gunshot wound was noted at the back portion, back lateral portion of the body on the left side and this gunshot wound involves (sic) the heart and the lungs.” He stated that the trajectory of the bullet was “forward, downward and middle, meaning the barrel of the gun is (sic) at a higher ground than that of the point of entry.” He concluded that the death was caused by “massive hemorrhage secondary to gunshot wound.”

Gemma Sus Borela (“Gemma”), the widow of the victim, testified that Ruel was the breadwinner of their family of two children. She stated that her husband earned P22,000.00 monthly as an employee. He was also paid P10,000.00 for every plan of an ordinary house which he did as a sideline. She likewise alleged that after the death of her husband, she was unable to sleep and eat normally due to physical and mental sufferings. She claimed actual damages in the amount of P100,000.00, for the coffin and funeral services, the cemetery lot and other burial expenses.

The testimony of SPO1 Diomedes A. Labarda, police investigator, was dispensed with. The parties stipulated that:

1. The police investigator of this case was informed by the informant of the killing incident x x x and x x x proceeded to the crime scene and conducted an investigation.

2. He prepared the pertinent documents: the Advance Information marked as Exh. “F,” Progress Report marked as Exh. “G” and Sworn Statement of eyewitness by the name of Ruben Mesa y Catason, marked as Exh. “H.”

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Appellant Almedilla was the lone defense witness. He stated that on April 3, 1997, he was on duty as a security guard of OIC Construction. While he was eating, Ruel approached and cursed him because the gate of the construction site was open. Almedilla told Ruel to mind his own business. Ruel threatened to hit him with a chair and he dared Ruel to do it. Ruel did so, but Almedilla evaded the blow. Ruel rushed towards him and took the gun tucked at his waist. They grappled for the possession of the gun until it went off. Fearful that someone got hurt, Almedilla left and reported the incident to Mr. Dumaycos, the owner of the security agency. The latter assured him that he would take care of everything. With that assurance, Almedilla went to the province until he was arrested in 1998.

The RTC found the appellant guilty of murder. It held that the killing was aggravated by treachery.

This appeal is grounded on the lone assignment of error that the lower court gravely erred in appreciating the qualifying circumstance of treachery. Citing People vs. Academia, Jr., appellant avers that “treachery may not be appreciated where an altercation preceded the shooting, and the time between the altercation and shooting was not significant as to create a break in the series of events.” He claims that the shooting in the case at bar occurred immediately after the altercation between the victim and the accused.

We find no merit in the argument of the appellant.

It is given that appellant killed Ruel. Appellant merely assails the decision of the RTC appreciating the aggravating circumstance of treachery that qualified the killing to murder. He contends that there could be no treachery since there was an altercation which preceded the killing. However, the records show that although Almedilla and Ruel got engaged in an argument before the incident, there was a gap of about a minute between the argument and the shooting, viz:

ATTY. LEE:Q: How long were they quarrelling when you heard the gunshot?

A: After one minute approximately I heard the phrase “Ikaw kasi sir” when I heard the gunshot (sic).

This shows that the shooting did not immediately follow the altercation of the parties. In fact, Almedilla waited for Ruel to turn around and head for the office before he fired the fatal shot:

ATTY. LEE:

Q: How far were you at that time when you were seating beside the office, from the door of the office?

A: Also an armslength, sir.

Q: How far were you from the accused Almedilla at that time when you were seating (sic)?

A: Approximately 6 meters away, sir.

Q: And how far were you at that time when you were seating (sic), from Architect Borela?

A: Less than an armslength.

Q: And this is (sic) also the time when you heard him say “IKAW KASI SIR”?

A: Yes, sir.

Q: And at this time, this door where you are a (sic) distance is only an armslength is the same door Architect Borela entered (sic). Is that correct?

A: Yes, sir.

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Q: And Architect Borela was able to enter the room. Is that correct?

A: No more, sir.

Q: I thought you said a while ago (that) Architect Borela entered the door?

A: He was not able to enter the room because when he was about to enter, he was shot at the side of his body.[

To justify a finding of treachery, it must be shown that at the time of the attack, the victim was not in a position to defend himself, and accused consciously and deliberately adopted the particular means, methods or forms of the attack employed by him. What is decisive in treachery is that the execution of the attack made it impossible for the victim to defend himself or retaliate.

In the case at bar, it is clear that Ruel was shot while not in a position to defend himself. As testified by Mesa, appellant waited for Ruel to turn around before shooting him. The victim was shot at his back. Indeed, the victim had no weapon with which to defend himself. There was a lapse of time between the argument and the shooting. With that gap of time, appellant cannot claim that the shooting was not deliberate.

We now come to the civil liabilities of Almedilla. The civil indemnity due the heirs of the victim should be P50,000.00 in accord with recent jurisprudence. There should also be an award of moral damages in the amount of P50,000.00 for the anguish Gemma suffered due to the death of Ruel. It is the rule that claims of actual damages must be supported by evidence. In this case, although Gemma claimed P100,000.00 as actual damages, she was able to present receipts showing actual expenses the total of which is onlyP80,600.00. Similarly, the award of loss of earning capacity should be deleted for lack of proof. When asked to present evidence of her claim that Ruel earned P22,000.00 a month and P10,000.00 for every plan that he used to make as a sideline, Gemma replied that she did not bring the proofs with her to court. In People vs. Castillano, we held that “compensation for lost income is in the nature of damages and as such requires due proof of the damage suffered; there must be unbiased proof of the deceased’s average income.”Nonetheless, we award P25,000.00 as temperate damages in view of the lack of proof of the average income of the victim.

IN VIEW WHEREOF, the assailed decision of the Regional Trial Court finding appellant Willie Almedilla guilty of murder and sentencing him to suffer the penalty of reclusion perpetua, is AFFIRMED with the MODIFICATION that appellant is ordered to pay the heirs of the victim, Ruel Borela the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P80,600.00 as actual damages, and P25,000.00 as temperate damages. Costs against the appellant.

SO ORDERED.

People of the Philippines vs Willie AlmedillaBy Howard On August 6, 2011 · 1 Comment

Aggravating Circumstance – Treachery – Hitting Behind the Back

On July 3, 1997, Almedilla waited for Ruel Barela. Upon seeing him, he went behind him and fired upon Ruel’s back. He used a .38 caliber gun. The wound sustained by Ruel led to his death. During trial, Almedilla alleged that he and Ruel had an argument which irked him. Almedilla was convicted for murder.

ISSUE: Whether or not treachery qualified the killing to murder?

HELD: The heated argument claimed by Almedilla and the time of the killing are separated by a lapse of time hence he cannot argue any justifying or mitigating circumstance. Treachery is attendant for Almedilla fired upon Ruel whose back was against him, thereby Ruel has no means to defend himself.

G.R. Nos. 135779-81. November 21, 2003]

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PEOPLE OF THE PHILIPPINES, appellee, vs. LUCIANO DE GUZMAN, EFREN REYES and BERNARD BUSTAMANTE, appellants.

D E C I S I O N CORONA, J.:

This is an appeal from the decision of the Regional Trial Court, Branch 54, Alaminos, Pangasinan, in Criminal Case Nos. 2504-A, 2505-A and 2506-A finding herein appellants Luciano de Guzman, Efren Reyes and Bernardo Bustamante guilty of three counts of murder.

The separate informations charging the appellants with murder read:

CRIMINAL CASE NO. 2504-A

That on or about March 9, 1992, at sitio Mandapat, Brgy. Malimpin, Municipality of Dasol, Province of Pangasinan, New Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, with treachery and evident premeditation with abuse of superior strength and taking advantage of the night time to ensure (the) commission of the offense did then and there wilfully, unlawfully and feloniously shoot Presente Calamno with the use of M-16 and M-14 rifles, inflicting upon him multiple gun shot wounds which caused his instantaneous death, to the damage and prejudice of his heirs.

Contrary to Article 248 of the Revised Penal Code.CRIMINAL CASE NO. 2505-A

That on or about March 9, 1992, at sitio Mandapat, Brgy. Malimpin, Municipality of Dasol, Province of Pangasinan, New Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, with treachery and evident premeditation, with abuse of superior strength and taking advantage of the night time to ensure the commission of the crime, did then and there wilfully, unlawfully and feloniously shoot Bernardo Calamno with M-16 and M-14 rifles inflicting upon him several gun shot wounds which caused his instantaneous death, to the damage and prejudice of his heirs.

Contrary to Article 248 of the Revised Penal Code.

CRIMINAL CASE NO. 2506-A

That on or about March 9, 1992, at sitio Mandapat, Brgy. Malimpin, Municipality of Dasol, Province of Pangasinan, New Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, with treachery and evident premeditation, with abuse of superior strength and taking advantage of the night time to ensure (the) commission of the offense, did then and there wilfully, unlawfully and feloniously shoot Teofilo Calamno, Jr. with M-16 and M-14 rifles inflicting upon him several gun shot wounds which caused his instantaneous death, to the damage and prejudice of his heirs.

Contrary to Article 248 of the Revised Penal Code.

The facts of the case, based on the testimonies of the prosecution witnesses, were summarized by the Solicitor General in his brief:

On March 9, 1992, about 8:00 oclock in the evening, Ariston (Ariston) Calamno was on the way to the house of his father, Bernardo (Bernardo) Calamno, to get a match. Bernardos house was located at Mandapat, Malimpin, Dasol, Pangasinan. Before Ariston could reach Bernardos house, from a distance of five (5) to six (6) meters, Ariston saw six (6) persons and recognized three (3) of them as appellants, who had long firearms pointed at his father, Bernardo, his brother, Presente (Presente) Calamno, and his cousin, Teofilo (Teofilo) Calamno.

Ariston saw Bernardo sitting on the armrest of a sofa; beside Bernardo was Teofilo. Presente was between the two (2). The three (3) were seated against the wall of Bernardos house. The place was

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illuminated by moonlight. Ariston then hid behind banana trees. He saw appellant de Guzman shoot Bernardo, Presente and Teofilo one after the other. Appellants Reyes and Bustamante were beside de Guzman. Bernardo, Teofilo and Presente fell from their seats. Appellants watched the three (3) victims for about three (3) minutes. After ascertaining that the victims were dead, appellants left. Because of fear and feeling that the assailants were still around, Ariston went back to his house, which was located west of his fathers house, 20 to 25 meters away.

Aristons and Teofilos wives, Salvacion and Nelia, reported the incident to the Barangay Captain. Ariston was present when the police conducted an investigation and took pictures of Bernardos house and its wall; the sofa, where Bernardo and Presente were seated at the time of the incident; the bodies of Bernardo, Presente, and Teofilo. Thereafter, Ariston executed a statement about the incident.

Teofilo (Teofilo, Sr.) Calamno, Sr., father of deceased Teofilo Calamno, Jr., testified that on March 9, 1992, about 8:00 oclock in the evening, he was resting at his house at Barangay Malimpin, Dasol, Pangasinan, when he heard gunshots coming from the house of Bernardo Calamno, about twenty (20) meters away.

Teofilo, Sr. went down his house and crawled up to the house of Bernardo. From a distance of about seven (7) to eight (8) meters, he saw eight (8) armed men, three (3) of whom he recognized as appellants. The moon was bright and he saw de Guzman fire at Bernardo, Presente and Teofilo, Jr. Appellants Reyes and Bustamante were about one-half meter away from de Guzman, standing on the latters right side and facing the three (3) victims. Reyes and Bustamante also carried long firearms.

After the shots were fired, appellants stayed at the scene of the incident for a while to determine if the victims were still alive. After appellants had left, Teofilo, Sr. came out from where he was hiding to check on the victims. Finding that the three (3) victims were dead, he went home. He did not report the incident to the barangay authorities because appellants might see him and shoot him. The next morning, on his way to report the incident to the barangay authorities, he first went to the house of Nelia Calamno, husband of Teofilo Calamno, Jr. He was informed that Nelia Calamno had gone to report the incident to the Barangay Captain. Thus, Teofilo, Sr. went to town where he met the Barangay Captain and his companions, Chief of Police Nacar and some policemen, who were on their way to the house of the deceased Bernardo Calamno to conduct an investigation.

Teofilo, Sr. went with Chief Nacars group. A photographer took pictures of the victims, Presente Calamno, Teofilo Calamno, Jr., (and) Bernardo Calamno. The cadavers were taken by the policemen to the Municipal Hall of Dasol, Pangasinan for autopsy. Teofilo, Sr. then executed a sworn statement regarding the incident.

Nelia Calamno, wife of Teofilo Calamno, Jr., testified that her house was more than fifty (50) meters away from the house of deceased Bernardo Calamno. On March 9, 1992, about 8:00 oclock in the evening, while feeding her dog, she heard the barking of dogs and footsteps going northward, after which she saw a group of armed men pass by her house. They were dressed in fatigue uniforms and carrying long firearms. She recognized appellant Luciano de Guzman as one of them. Nelia was holding a kerosene lamp and the place was illuminated by moonlight.

The group had walked about fifty (50) meters from her house when Nelia heard successive gunshots coming from the house of Bernardo Calamno. She was frightened as she was alone with her child. Her husband, Teofilo Calamno, Jr., was not in their house as he had gone to the house of Bernardo Calamno that evening. She did not go out of her house that night and she was not able to sleep since her husband did not come home.

The following morning, on March 10, 1992, Salvacion Calamno, wife of Ariston Calamno, went to Nelias house and told her that Teofilo, Jr. was dead. Salvacion asked her to come with her to report the matter to the Barangay Captain, Emilio Cabrido. After reporting the incident to Cabrido, the latter in turn reported the matter to the police. Nelia and Salvacion proceeded to the house of deceased Bernardo Calamno where they saw the bodies of Bernardo, Teofilo, Jr. and Presente. After a while, the policemen arrived with a photographer. Pictures of the place and the bodies were taken. The bodies of the victims were taken to the municipal hall for autopsy. Nelia executed a sworn statement before the Dasol PNP station. She testified that she spentP12,000.00 for Teofilo,

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Jr.s funeral. She declared that her husband was a farmer and earned the equivalent of fifty (50) to seventy (70) cavans of palay a year; they had one child who was two (2) years old when Teofilo, Jr. was slain.

Salvacion Calamno, wife of Ariston Calamno, testified that the deceased Bernardo Calamno was her father-in-law, Teofilo Calamno, Jr. the cousin of her husband and Presente Calamno her brother-in-law. She knew appellants Luciano de Guzman, who was a resident of Barangay Malimpin, Mandapat, Pangasinan, Efren Reyes and Bernardo Bustamante because they were CAFGU members in San Vicente, Dasol, Pangasinan but she did not know accused Sgt. Orpilla. She and her husband spent the total amount of P23,000.00 for the funeral expenses of Bernardo and Presente. She was with Nelia Calamno when the incident was reported to the Barangay Captain.

SPO3 Fredelito Nacar, Deputy Chief of the Dasol PNP Station, Pangasinan, testified that he headed the investigation conducted on the killing of Bernardo, Presente and Teofilo, Jr., all surnamed Calamno. He recovered at the crime scene twelve (12) empty shells of M-14 bullets and twelve (12) empty shells of M-16 bullets, some of which were about two (2) meters away from the bodies of the victims and some scattered on the dead bodies. He testified that some of the CAFGU members were issued garand rifles and some Armalites M-14 and M-16. He took the statements of the relatives of the victims. (citations omitted)

Appellants put up the defense of denial and alibi. Appellants de Guzman and Reyes testified that they did not know anything about the killing of the Calamnos. On the day of the incident, they were on duty from 6:00 to 8:00 p.m. at the Citizen Armed Force Geographical Unit (CAFGU) camp in San Vicente, Dasol, Pangasinan. After their duty, they cooked and ate their supper, went to sleep in their bunkhouse and woke up at 6:00 a.m. the following day. Appellant Bustamante also denied killing the Calamnos but had a different alibi. He testified that, on the day of the incident, he was on leave and was at home cementing hisbalcon, together with Wilfredo de Leon, Eduardo Bustamante and Patricio Pulido. They started working around 8:00 a.m. and finished at 9:00 p.m. Defense witness Wilfredo de Leon, the cousin of appellant Bustamante, corroborated his alibi. He claimed that since it was already late, he slept in appellant Bustamantes house that night. They woke up at 6:00 a.m. the following day and only learned of the Calamno murders at about 9:00 a.m.

The trial court, however, gave credence to the prosecutions version and convicted appellants of murder:

WHEREFORE, in consideration of the foregoing premises, judgment is hereby rendered, declaring all the accused Luciano de Guzman, Bernardo Bustamante and Efren Reyes in conspiracy with and acting in concert with one another, in Criminal Case Nos. 2504-A, 2505-A and 2506-A GUILTY BEYOND REASONABLE DOUBT of the crime of Murder as defined under Article 248 of the Revised Penal Code with the aggravating circumstances of nighttime and treachery and shall, therefore, suffer the single indivisible penalty of Reclusion Perpetua in Criminal Case No. 2504-A for each of the above-mentioned accused; another single indivisible penalty of Reclusion Perpetua in Criminal Case No. 2505-A for each of the above-mentioned accused and another single indivisible penalty of Reclusion Perpetua in Criminal Case No. 2506-A for each of the above-mentioned accused.

The Court finds that all the accused are liable for damages in the sum of P50,000.00 for each of the victims in accordance with law and all accused are severally liable for these indemnities imposed.

Until accused Samuel Orpilla is apprehended by the authorities, together with his co-accused, John Doe and Peter Doe, these Does not having been identified as yet, these cases are ordered archived in the meantime. However, let Alias Warrant of Arrest issue as against them.

IT IS SO ORDERED.

Dissatisfied with the decision, appellants elevated these cases to us on appeal. Two separate briefs were filed, one by appellant de Guzman and another by appellants Reyes and Bustamante.

Appellant de Guzman raises the following assignments of error:

I. THE TRIAL COURT ERRED IN DISREGARDING THE APPELLANTS DEFENSE OF ALIBI;

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II. THE TRIAL COURT VIOLATED THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE AS IT RESOLVED ALL DOUBTS AGAINST THE APPELLANT LUCIANO DE GUZMAN.

On the other hand, appellants Reyes and Bustamante raise the following assignments of error:I. THE LOWER COURT GRAVELY ERRED IN CONCLUDING THAT ACCUSED-APPELLANT BERNARDO BUSTAMANTE PARTICIPATED IN THE COMPLAINED INCIDENT BECAUSE HE WAS FOUND POSITIVE OF POWDER BURNS;

II. THE LOWER COURT GRAVELY ERRED IN HOLDING THAT ACCUSED-APPELLANTS EFREN REYES AND BERNARDO BUSTAMANTE CONSPIRED WITH THEIR CO-ACCUSED LUCIANO DE GUZMAN;

III. LOWER COURT GRAVELY ERRED IN CONCLUDING THAT THE CRIME COMPLAINED OF WAS PERPETRATED BY TREACHERY AND NIGHTTIME;

IV. THE LOWER COURT GRAVELY ERRED IN DISREGARDING THE EVIDENCE PROFFERED BY ACCUSED-APPELLANT EFREN REYES AND BERNARDO BUSTAMANTE.

In essence, both briefs assail the trial court decision which gave full faith and credence to the testimonies of the prosecution witnesses.

After a thorough study of the records, this Court finds that the testimony of Ariston Calamno (the son of victim Bernardo and brother of victim Presente) should be disregarded. We are not convinced that he was really present at the crime scene and that he actually witnessed the killing of his father and relatives. His testimony on cross-examination was as follows:

ATTY. BERNAL:

Q: Now you made mention that on the night of March 9, 1992, you arrived from San Vicente, Dasol, Pangasinan where you were making charcoal, can you tell us what ride did you take (sic) from the place you were making charcoal to Malimpin?

A: By carabao back, sir.

Q: With cart?

A: Yes, sir. Sled.

Q: This sled was loaded with something?

A: Yes, sir.

Q: What was loaded in it?

A: Cogon.

Q: What time did you leave that place where you were making charcoal?

A: About three oclock in the afternoon, sir.

Q: My question is, from your house in Mandapat, Malimpin, Dasol, Pangasinan, from the place were you (sic) making charcoal, how many kilometers?

A: 15-20 kilometers, sir.

Q: And whenever you go to the place where you are making charcoal, and you will ride a sledge, how many hour (sic) will it take you?

A: 4-5 hours, sir, if the sledge is empty.

Q: And if it is loaded, how many hours?

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A: 7-8 hours, sir.

From the foregoing, it is logical to conclude that if Ariston left San Vicente at 3:00 p.m. on March 9, 1992 using a carabao-drawn sled loaded with cogon, he should have arrived at Malimpin between 10:00 and 11:00 p.m. Consequently, he could not have possibly witnessed the incident at about 8:00 p.m. For this reason, we doubt the veracity of his alleged eyewitness account. It is a cardinal rule in criminal law that all doubts must be resolved in favor of the accused.

The failure of the court a quo to admit defense witness Rudy Bastillos sworn statement impeaching the testimony of Ariston, assigned as error no. IV by appellants Reyes and Bustamante, need not therefore be discussed because of our misgivings about Ariston Calamnos testimony.

However, the inadmissibility of Aristons testimony notwithstanding, the appellants guilt for the crimes charged was established beyond reasonable doubt by the prosecution through the eyewitness account of Teofilo, Sr. regarding the murder of Teofilo, Jr., and through circumstantial evidence regarding the murders of Bernardo and Presente.

With respect to the murder of his son Teofilo, Jr., Teofilo Sr. testified as follows:

ATTY. BERNAL:

Q: Now, you mentioned Mr. Calamno that you were then resting in the evening of March 9, 1992, at about eight oclock when you heard a gun fire, do you still maintain that, gun burst or gun fire?

A: Yes, sir.xxx xxx xxx

Q: How is that gun fire that you heard first? Will you describe to us how you heard the first gun fire?

A: Prrrrt,- sound denoting a successive burst or gun fire.

Q: And after hearing that first burst or gun fire according to you, you went down and went near the house of your brother Bernardo Calamno, is that correct?

A: Yes, sir.

xxx xxx xxxCOURT:

Q: When you reached the place, the place where you said you hid, did you hear another gun burst?

WITNESS:

A: Yes, sir.

ATTY. BERNAL:

Q: How many burst of gun fire?

A: One (1), sir.

Q: So there were only two burst (sic) of gun fire that you heard therefore Mr. Calamno?

A: As if three (3), sir, because the gun burst is long. (Witness indicating the sound of successive gunshots).

Q: So you are telling us therefore that on the second burst, second long burst of gun fire you have already witness (sic) that?

A: Yes, sir.xxx xxx xxx

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ATTY. BERNAL:

Q: You saw Luciano de Guzman fired (sic) his gun. To whom was he firing at that time?

A: Teofilo Calamno, Jr., sir.

Q: Teofilo Calamno, Jr. only?

A: Yes, sir, because there is a series of gun shots, sir, successively, and I only saw Teofilo Calamno, Jr., who fell down.

Q: Now, we will abbreviate this, we will make it short Mr. Calamno. You mentioned that there were only, you heard two burst (sic) of gun fire, one, when you were still at your house resting, second, you are or when you were already at the place at the side of the house of your brother Bernardo Calamno and you are telling us now that when, on the second burst of fire you only saw Luciano de Guzman fire only at Teofilo Calamno, Jr., is that correct?

A: Yes, sir.

Q: Who shot Bernardo Calamno and Presente Calamno?

A: I did not see, sir, perhaps when I was still in my house, during the first gun burst, they were already hit.

His testimony on the murder of his son Teofilo, Jr. was clear, categorical and worthy of belief. The defense attempted to discredit his testimony by alleging certain inconsistencies between his sworn statement and testimony in open court. In his sworn statement, he declared that, of the eight men present at the crime scene, he only recognized appellant de Guzman; in open court, he declared that he recognized appellants Efren Reyes and Bernardo Bustamante as part of the group. As pointed out by the trial court, however, this seeming inconsistency was adequately explained by witness Teofilo, Sr. who said that he did not name appellants Reyes and Bustamante in his affidavit since he did not see them fire at Teofilo, Jr. It was appellant de Guzman he saw gun down his son. There was thus no inconsistency to speak of.

Appellants Reyes and Bustamante also argue that, because the gun bursts were in succession, it was impossible for Teofilo, Sr. to have witnessed the killing as he had to go down his house and crawl towards the eastern wall in a minute or less. We fail to see how it was impossible for Teofilo, Sr. to have gone down his house and climbed the eastern wall in a minute or less. According to Nelia Calamno, there was a one-minute interval between the first and second gun bursts. Teofilo, Sr.s house was small and it was completely possible for him to run down and crawl to the eastern wall in less than a minute. It was even smaller than Bernardos and from the pictures forming part of the records of the case, Bernardos house was not big at all.

As for the shooting of Bernardo and Presente, although no one actually saw who shot them, the guilt of appellants for their death was established by circumstantial evidence. Under Rule 133, Section 4 of the Revised Rules of Court, circumstantial evidence is sufficient for conviction if:

(a) there is more than one circumstance;

(b) the facts from which the inferences are derived are proven and

(c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

In the case at bar, the following circumstances proved beyond doubt that the appellants were responsible for the murder of Presente and Bernardo: (a) prosecution witness Nelia Calamno saw them pass her house, carrying long firearms and walking northward; (b) after three minutes or so, she heard a burst of gun fire coming from the direction of Bernardos house, about 50 meters north of hers; (c) Teofilo, Sr. also saw appellants at the scene of the crime when Teofilo, Jr. was shot and

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(d) based on the empty M-14 and M-16 shells found at the crime scene, the long firearms Nelia and Teofilo, Sr. saw being carried by appellants were actually used by them.

These circumstances constitute an unbroken chain leading to the fair and reasonable conclusion that the appellants, to the exclusion of all others, were the guilty persons. Appellants defenses of denial and alibi were weak. Alibi is easy to fabricate but difficult to prove. It cannot prevail over the positive identification of the accused by witnesses. We have held that for the defense of alibi to prosper, the requirements of time and place (or distance) must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed. He must also demonstrate by clear and convincing evidence that it was physically impossible for him to have been at the scene of the crime during its commission. Appellants miserably failed in this respect.

The trial court was correct that there was conspiracy among the appellants in killing the victims. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Proof of conspiracy may be inferred from the acts of the accused before, during and after the incident, direct proof not being essential at all. The acts must point to a joint purpose, concert of action or community of interest, that is, all the accused acted in concert, each of them doing his part to fulfill the common design to kill the victim. Thus, the act of one becomes the act of all and each accused is deemed equally guilty of the crime committed, regardless of who pulled the trigger.

In the case at bar, conspiracy may be inferred from the concerted acts of appellants. They arrived at the house of Bernardo together, all of them bearing long firearms. Appellants Reyes and Bustamante stood three meters to the right of appellant de Guzman while he fired at Teofilo, Jr. All of them stayed after the shooting to ascertain that their victims were dead and thereafter left together at the same time. These actions clearly suggested that their only purpose in going to the house of Bernardo was to kill the victims.

We also affirm the trial courts appreciation of the qualifying circumstance of treachery. The means, methods and manner of the attack were adopted obviously to insure its execution, without risk to appellants arising from any defense which the victims might have made. Appellants, together with four other armed men, surrounded the unarmed and defenseless victims and fired at them using high-caliber automatic weapons. Because of the weapons used and the victims relative positions, i.e., seated together on a sofa against the wall, the victims could not have defended themselves against appellants attack. The fact that the killings were frontal did not negate treachery because the carnage was so sudden and unexpected, and the victims unarmed, that they were not in a position to offer any defense at all. The crime committed was doubtlessly murder.

The aggravating circumstances of nighttime and abuse of superior strength were absorbed by the treachery. Although evident premeditation was likewise alleged in the information, the court a quo was correct in not appreciating it since the prosecution was not able to prove it.

Consequently, in the absence of any aggravating or mitigating circumstances, the proper penalty imposable on appellants for murder qualified by treachery is reclusion perpetua.

We affirm the award of P50,000 as civil indemnity for each of the victims. Civil indemnity is automatically granted to the heirs of the victim without need of any evidence other than the fact of the commission of the crime.

We also award P50,000 as moral damages as the circumstances surrounding the untimely and violent deaths, in accordance with human nature and experience, could have brought nothing but emotional pain and anguish to the victims family. Further, an award of P25,000 as temperate damages is also granted to the victims family for their funeral expenses, in lieu of actual damages. This is in light of our ruling in People vs. Abrazaldo, where we ruled that, despite the absence of receipts to prove actual damages, if it is shown that the heirs are entitled thereto, temperate damages of P25,000 may be awarded.Lastly, exemplary damages of P25,000 are also awarded, given that the qualifying circumstance of treachery attended the commission of the crime.

WHEREFORE, the decision dated April 15, 1998 of the Regional Trial Court of Alaminos, Pangasinan, Branch 54 in Criminal Case Nos. 2504-A, 2505-A and 2506-A finding Luciano de Guzman, Efren

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Reyes and Bernardo Bustamante guilty beyond reasonable doubt of three counts of murder each, is hereby AFFIRMED, with the MODIFICATION that only the qualifying circumstance of treachery attended the commission of the crime. They are hereby sentenced to suffer the penalty of reclusion perpetua for each count of murder and to pay jointly and severally the legal heirs of each victim P50,000 as civil indemnity, P50,000 as moral damages, P25,000 as temperate damages and P25,000 as exemplary damages.

SO ORDERED.

People of the Philippines vs Luciano de GuzmanBy Howard On August 6, 2011 · 1 Comment

Aggravating Circumstance – Treachery Absorbs other Selected Circumstances

At around 8 pm on March 9, 1992, de Guzman and two others entered the house of the Calamnos. Luciano and the two others let the victims face the wall then after fired upon them. They even surrounded the victims. The accused were later convicted for murder.

ISSUE: Whether or not the aggravating circumstance of nighttime and treachery be appreciated.

HELD: The aggravating circumstance of nighttime as well as abuse of superior strength (as the accused outnumbered and out armed the victims for they used high powered guns) are absorbed by treachery. The means and ways employed by the accused ensured them impunity as they fired upon the victims while the victims were facing the wall giving the victims no means to defend themselves.

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Legal Maxims AB INITIOFrom the beginning (Heirs of Arches vs. Diaz, L-27136, 30April 1973; 50 SCRA 445).

ABERRATIO ICTUSBlow or stroke gone astray as when a person receives a blow or a bullet intended for another (People vs. Salarda,05494-CR,11 June 1971). “The only rational explanation for that lamentableaberratio ictus or error en la persona is that, inasmuch as the stabbing was perpetrated at night, the inebriated assailants mistakenly assumed that Metucua, whom they had intended to kill, and who was not a pedicab driver, was the person inside the sidecar (for the passenger) and that Candel, a pedicab driver, was the person on the driver’s seat of the pedicab. As previously recounted, Candel, who must have been drunk, was the one inside the sidecar while Metucua was on the driver’s seat.” (THE PEOPLE OFTHE PHILIPPINES vs. WARLITO PLATEROS Y CALATRAVA, alias BABIE, and MURILLO LAHOY Y BUENO, alias BOY, G.R.No. L-37162, May 30, 1978). “For the killing of Teotimo Fameronag, the same cannot be said to be accidental as it was the result of an aberratio ictus, or miscarriage of the blow.” (PEOPLE OFTHE PHILIPPINES vs. LEONITO MACAGALING y ATILLANO,G.R. Nos. 109131-33, October 3, 1994). Also refer to ERROR IN PERSONA. ABNEGATIONDenial, a renunciation, self-denial (People vs. Bacalso,3159-R, 30 September 1950).

ABREACTIONRelieving of suppressed emotion as by talking about it(People vs. Valdemoro, 16159-CR, 30 July 1979). See also RES GESTAE — equivocal act, RES IPSA LOQUITUR —the act speaks for itself, and ABREACTION — relieving suppressed emotions.

ABUELOS MATERNOSMaternal grandparents (Velasquez vs. Velasquez, 54709-R, 13 Oct. 1977). See also ABUELOS PATERNOS ,paternal grandparents. ABUELOS PATERNOS Paternal grandparents (Velasquez vs. Velasquez, 54709-R, 13 October 1977). See ABUELOS MATERNOS, maternal grandparents

ABUSO DE CONFIANZAAbuse of confidence (U.S. vs. Chu Chang, 06Phil. 75). See ABUSO DESHONESTOS below.

ABUSO DESHONESTOSAct of lasciviousness (People vs. Aguinaldo,34 O.G. 1898; 1 A.C.R 337 cited in page 8, Philippine Law Dictionary,3rd edition, F. B. Moreno, Vera-Reyes, Inc., Mla.) or abuse of chastity(U.S. vs. Mendez, 19 Phil. 28 cited in ibid.)

ACCESSORIUM SEQUITUR PRINCIPALEAccessory follows the principal (Morando vs. Rovia, 2 A.C.R. 815 cited in page 11, Philippine Law Dictionary, 3rd edition, F. B. Moreno, Vera-Reyes, Inc., Mla.).

ACCESSIO CEDIT PRINCIPALIAccessory right must yield to the principal. “This is an action to recover the possession of a house. It was filed following our decision in Palileg vs. Cosio, 97Phil., 919; 51 Off. Gaz., 6181, in which We ruled that the house in question had not been sold but had merely been given as security for a debt the pacto de retro sale between the parties being in reality a loan with an equitable mortgage. In a sense, therefore, this case is a sequel to Palileo vs. Cosio. The parties are here this time to litigate on the issue of possession and its effects. The house in this case, a two-story building, was formerly owned by Felicisima Vda. de Barza. It is located ** * on a lot belonging to the Hospicio de San Juan de Dios. ** * this house and the leasehold right to the lot were bought by respondent Cherie Palileo who paid part of the purchase price and mortgaged the house to secure the payment of the balance. It appears that respondent Palileo defaulted in her obligation, * * *

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however, respondent Palileo was able to raise money on December 18, 1951 before the house could be sold at public auction. On this date, respondent Palileo received from petitioner Beatriz Cosio de Rama the sum of P12,000 in consideration of which she signed a document entitled ‘Conditional Sale of Residential Building,’ purporting to convey to petitioner Cosio de Rama the house in question. Under this document, the right to repurchase the house within one year was reserved to respondent Palileo. On the same day, the parties entered into an agreement whereby respondent Palileo remained in possession of the house as tenant, paying petitioner Cosiode Rama a monthly rental of P250. Petitioner Cosio de Rama subsequently insured the house against fire with the Associated Insurance & Surety Co., Inc. On October 25, 1952, fire broke out in the house and partly destroyed the same. For the loss, petitioner Cosio de Rama was paid * * * by the insurance company. At the instance of his sister, petitioner Cosio de Rama, the other petitioner Augusto Cosio entered the premises and began the repair of the house. Soon after an action was filed by respondent Palileo against Cosio de Rama for the reformation of the deed of pacto de retro sale into a loan with an equitable mortgage. * * * . Just the same, however, repair work went on * * * .

* * * *The error of the appellate court lies in its failure to appreciate the distinction that while petitioner Cosio de Rama is a possessor in bad faith, she is not a builder in bad faith. Thus in describing petitioners as ‘builders in bad faith’ and, consequently, in holding that they have no right to be reimbursed, the court obviously applied Article 449 which states that ‘he who builds, plants or sows in bad faith on the land of another loses what is built, planted or sown without right to indemnity.’ But article 449 is a rule of accession and We are not here concerned with accession. There is here no reason for the application of the principle accesio cedit principali, such as is contemplated incases of accession continua of which article 449 is a rule. For what petitioners did in this case was not to build a new house on the land of another. Rather, what they did was merely to make repairs on a house that had been partly destroyed by fire and We are asked whether they have aright to be refunded for what they spent in repairs. The land on which the house is built is not even owned by respondent Palileo, that land being the property of the Hospicio de San Juan de Dios. This case comes under article 546 which, as We have already indicated, provides for the refund of necessary expenses ‘to every possessor.’”

ACCION DIRECTADirect action (not a subrogatory one) by the creditor against the debtor’s debtor (Articles 1652, 1729, 1893, 1608,Civil Code; Syyap vs. Asian Surety & Insurance Co., 19 C.A.R. [2s] 998).

ACCION HIPOTECARIAReal action to foreclose a lien or mortgage(Sunico vs. Ramirez, 14 Phil. 504).

ACCION INDIRECTAIndirect action. Also refer to ACTION SUBROGATORIA And ACCION DIRECTA. ACCION INTERDICTALAction to recover physical possession of property, which could be brought within one year, in a summary proceeding, for forcible entry or detainer (Bishop of Cebu vs. Mangaron, 06 Phil. 290; and Reyes vs. Sta. Maria, L-33213, 29 June1979; 91 SCRA 168).

ACCION NEGATORIARight of a landowner to defend the free dominion of his tenement (North Sugar Co. vs. Hidalgo, 63 Phil. 707).This is an action in Roman law and the ancient Spanish procedural law. “IV. From what has been said, it does not, however, follow that plaintiff is entitled to the equitable remedy of injunction. In the first place, the plaintiff styled the relief it is seeking as an ‘Accion Negatoria’ which, under the old Spanish procedural law and under the Roman law, consisted in the right of a landowner to defend the free dominion of his tenement. This action which has specific application to servitudes has, however, been repealed by the Code of Civil Procedure now in force. The right of the plaintiff should, consequently, be tested by the rules governing the issuance of the new remedy of injunction. The circumstances under which, in accordance with the former procedural law, the accion negatoria could properly issue, would not necessarily justify the issuance of an injunction, as defined and provided in the new Code (as to the other Spanish interdictos de adquirir, de retener and de recobrar or de despojo, see Devesa vs. Arbes, 13 Phil.,273, 279; Liongson vs. Martinez, 36 Phil., 948, 952). In the second place, injunction, being an equitable remedy, the granting thereof is dependent upon the sound discretion of the court (32 C.J., pp. 29-33; 14 R.C.L.,

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pp. 307, 308). It is only in clear cases of abuse of discretion on the part of the trial judge that review on appeal would be made (32 C.J., p.33). ‘There is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case, than the issuing an injunction; it is the strong arm of equity, that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction.’ (Bonaparte vs. Camden, etc., R. Co., 3 Fed.Cas. No. 1617; Baldw., 205, 217.) * * * .” (NORTH NEGROSSUGAR CO., INC. vs. SERAFIN HIDALGO, G.R. No. 42334,October 31, 1936, 63 Phil. 664).

ACCION PAULIANAAction to rescind contract under Art. 1387 of the Civil Code where one alienates property by gratuitous title but fails to reserve property to pay all debts contracted before the donation (Cabanig vs. Pangga, 50251-R, 15 Nov. 1977).

ACCION PLENARIA DE POSESION or ACCION PUBLICIANAPlenary action to recover possession of real property after one year from the time of unlawful possession independent of title (Barredo vs. Santiago,102 Phil. 130; Aguilon vs. Bohol, L-27169, 20 October 1977, 79 SCRA485; Reyes vs. Sta. Maria, L-33213, 29 June 1979, 91 SCRA 168; Bishop of Cebu vs. Mangaron, 06 Phil. 291, Ledesma vs. Marcos, 09 Phil. 620;City of Manila vs. Anselmo, 58 O.G. 8255, 02 C.A.R. (2s) 243; and Lopez vs. Franco, 26789-R, 27 May 1961).

ACCION REIVINDICACIONAction to recover real property including the jus utendi (use) and jus fruendi (fruits) (Reyes vs. Sta. Maria, L-33213, 29 June 1979; 91 SCRA 168).

ACCION REIVINDICATORIAAction to recover possession of property by setting-up title (Alo vs. Rocamora, 06 Phil. 198; City of Manila vs.Anselmo, 58 O.G. 8255, 2 C.A.R. (2s) 243; and Ledesma vs. Marcos, 09Phil. 620).

ACCION SUBROGATORIAIndirect action or subrogatory action. See ACCION DIRECTA and ACCION INDIRECTA.

A CONTRARIO SENSUIn a contrary sense (People vs. Salico, 84 Phil.734 cited in page 1, Philippine Law Dictionary, Federico B. Moreno, 2nded., Vera-Reyes, Inc., Manila).

A CONVERSOConversely (Republic vs. Luzon Stevedoring Corp., L-21749, Sept. 09, 1967; 21 SCRA 281 cited in page 1, Philippine Law Dictionary, Federico B. Moreno, 2nd ed., Vera-Reyes, Inc., Manila). See A SENSU CONTRARIO and PER CONTRA.

ACREEDOR MERAMENTE ESCRITURARIONCreditor evidenced by a written instrument (Gonzalez Diez vs. Delgado, 37 Phil. 405).

ACTIO NON DATUR NON DAMNIFICATONo right of action is given when no injury is sustained (Metropolitan Bank vs. Tan, L-46539, June 25, 1986; 142 SCRA 358).

ACTIO PERSONALIS MORITUR CUM PERSONAPersonal action terminates or dies with the person (Santos vs. Secretary of Labor, L-21624, 27 Feb. 1968; 22 SCRA 850).

ACTO SEGUNDOIn a successive or continued action (Villanueva vs. Ramirez, 56577-R, March 27, 1978).

ACTOR QUI CONTRA REGULAM QUID ADDUXIT, NON EST AUDIENDUSPlaintiff is not to be heard who has advanced anything against authority (Formalego vs. Penano, 10563-C.A.R., 30 July 1980).

ACTOR SEQUITUR FORUM REI

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Plaintiff must sue in the court of the domicile of the defendant (Montalban vs. Maximo, L-22997, 05 March1968; 22 SCRA 1076).

ACTUS ME INVITO FACTUS NON EST MEUS ACTUSAct done against my will is not my act (U.S. vs. Ah Chong, 15 Phil. 499).

ACTUS NON FACIT REUM, NISI MENS SIT REAThe act itself does not make a man guilty unless his intentions were so (U.S. vs. Ah Chong, ibid; U.S. vs. Elvina, 24 Phil. 233; People vs. Pacana, 47 Phil.55). “Article 8 of the Penal Code provides that— ‘The following are not delinquent and are therefore exempt from criminal liability: 4. He who acts in defense of his person or rights, provided there are the following attendant circumstances: xxx xxx xxx (1) Illegal aggression. (2) Reasonable necessity of the means employed to prevent or repel it. (3) Lack of sufficient provocation on the part of the person defending himself. Under these provisions we think that there can be no doubt that defendant would be entitled to complete exemption from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his room had been in fact a dangerous thief or ‘ladron, ’as the defendant believed him to be. No one, under such circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the thief having forced open the door notwithstanding defendant’s thrice-repeated warning to desist, and his threat that he would kill the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a small room, with no means of escape, with the thief advancing upon him despite his warning, defendant would have been wholly justified in using any available weapon to defend himself from such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts and deliver the first blow. But the evidence clearly discloses that the intruder was not a thief or a ‘ladron.’ That neither the defendant nor his property nor any of the property under his charge was in real danger at the time when he struck the fatal blow. That there was no such ‘unlawful aggression’ on the part of a thief or ‘ladron’ as defendant believed he was repelling and resisting, and that there was no real ‘necessity’ for the use of knife to defend his person or his property or the property under his charge.

The question then squarely presents itself, whether in this jurisdiction one can be held criminally responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if the facts were as he supposed them to be, but which would constitute the crime of homicide or assassination if the actor had known the true state of the facts at the time when he committed the act. To this question we think there can be but one answer, and we hold that under such circumstances there is no criminal liability, provided always that the alleged ignorance or mistake of fact was not due to negligence or bad faith. In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense charged (e. g., in larceny, animus furendi ; in murder, malice; in crimes and misdemeanors generally some degree of criminal intent) ‘cancels the presumption of intent,’ and works an acquittal; except in those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence; and in cases where, under the provisions of Article 1 of the Penal Code one voluntarily committing a crime or misdemeanor incurs criminal liability for any wrongful act committed by him, even though it be different from that which he intended to commit. (Wharton’s Criminal Law, sec. 87 and cases cited; McClain’s Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap.; 240; Commonwealthvs. Power, 7 Met., 596; Yates vs. People, 32 N. Y., 509;Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7Met., 500).

The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is whether malice of criminal intent is an essential element or ingredient of the crimes of homicide and assassination as defined and penalized in the Penal Code. It has been said that since the definitions there given of these as well as most other crimes and offenses therein defined, do not specifically and expressly declare the acts constituting the crime or offense must be committed with malice or with criminal intent in order that the actor may be held criminally liable, the commission of the acts set out in the various definitions subjects the actor to the penalties described therein, unless it appears that he is exempted from liability under one or other of the express provisions of article 8 of the code, which treats of exemptions.

But while it is true that contrary to the general rule of legislative enactment in the United States, the definitions of crimes and offenses as set out in the Penal Code rarely contain provisions

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expressly declaring that malice or criminal intent is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and offenses therein defined, in the absence of express provisions modifying the general rule, such as are those touching liability resulting from acts negligently or imprudently committed, and acts done by one voluntarily committing a crime or misdemeanor, where the act committed is different from that which he intended to commit. And it is to be observed that even these exceptions are more apparent than real, for ‘There is a little distinction, except in degree, between a will to do a wrongful thing and indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies the place of the affirmative criminal intent’ (Bishop’s New Criminal Law, vol. 1, s. 313); and, again, ‘There is so little difference between a disposition to do a great harm and a disposition to do harm that one of them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and since this disposition is greater or less in proportion to the harm which is done by the crime, the consequence is that the guilt of the crime follows the same proportion; it is greater or less according as the crime in its own nature does greater or less harm’ (Ruth. Ints. C. 18, p. 11); or, as it has-been otherwise stated, the thing done, having proceeded from a corrupt mind, is to be viewed the same whether the corruption was of one particular form or another Article 1 of the Penal Code is as follows: ‘Crimes or misdemeanors are voluntary acts and omissions punished by law.

Acts and omissions punished by law are always presumed to be voluntary unless the contrary shall appear. Any person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the wrongful act committed be different from that which he had intended to commit’ The celebrated Spanish jurist Pacheco, discussing the meaning of the word ‘voluntary’ as used in this article, says that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention (intention to do wrong or criminal intention) there can be no crime; and that the word ‘voluntary’ implies and includes the words ‘con malicia.’ , which were expressly set out in the definition of the word ‘crime’ in the code of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use in the former code was redundant, being implied and included in the word’ voluntary.’ (Pacheco, Codigo Penal, vol. 1, p. 74.). Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from criminal responsibility when the act which was actually intended tube done was in itself a lawful one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his discussion of the provisions of this article of the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are more apparent than real. Silvela, in discussing the doctrine herein laid down, says: ‘In fact, it is sufficient to remember the first article, which declares that where there is no intention there is no crime . . . . in order to affirm, without fear of mistake, that under our code there can bee no crime if there is no act, an act which must fall within the sphere of ethics if there is no moral injury.’ (Vol. 2, The Criminal Law, folio 169.). And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of May 31, 1882, in which it made use of the following language:

‘It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the operation of the will and an intent to cause the injury which may be the object of the crime.’ ‘And again in its sentence of March 16, 1892, wherein it held that considering that, whatever ay be the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church, there can be no crime because of the lack of the necessary elements or criminal intention, which characterizes every action or omission punished by law; nor is he guilty of criminal negligence.’ And again in its sentence of March 16, 1892, wherein it held that: ‘Considering that, whatever may be the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church, there can be no crime because of the lack of the necessary element or criminal intention, which characterizes every action or omission punished by law; nor is he guilty of criminal negligence.’ And to the same effect in its sentence of December30, 1896, it made use of the following language: ‘ . . . Considering that the moral element of the crime, that is, intent or malice or their absence in the commission of an act defined and punished by law as criminal, is not a necessary question of fact submitted to the exclusive judgment and decision of the trial court.’ That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various crimes and misdemeanors therein defined becomes clear also from an examination of the provisions of article 568, which are

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as follows: ‘He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prision correccional in its minimum degree, and with arresto mayor in its minimum and medium degrees if it shall constitute a less grave crime He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall incur the penalty of arresto mayor in its medium and maximum degrees. In the application of these penalties the courts shall proceed according to their discretion, without being subject to the rules prescribed in Article 81. The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or less than those contained in the first paragraph thereof, in which case the courts shall apply the next one thereto in the degree which they may consider proper.’ The word ‘malice’ in this article is manifestly substantially equivalent to the words ‘criminal intent,’ and the direct inference from its provisions is that the commission of the acts contemplated therein, in the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal liability on the actor. The word ‘voluntary’ as used in article 1 of the Penal Code would seem to approximate in meaning the word ‘willful’ as used in English and American statutes to designate a form of criminal intent. It has been said that while the word ‘willful’ sometimes means little more than intentionally or designedly, yet it is more frequently understood to extend a little further and approximate the idea of the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case it was said to mean, as employed in a statute in contemplation,‘wantonly’ or ‘causelessly;’ in another, ‘without reasonable grounds to believe the thing lawful.’ And Shaw, C. J., once said that ordinarily in a statute it means ‘not merely ‘voluntarily’ but with a bad purpose; in other words, corruptly.’ In English and the American statutes defining crimes ‘malice,’ ‘maliciously,’ and ‘malice aforethought’ are words indicating intent, more purely technical than‘willful’ or ‘willfully,’ but ‘the difference between them is not great;’ the word ‘malice’ not often being understood to require general malevolence toward a particular individual, and signifying rather the intent from which flows any unlawful and injurious act committed without legal justification. (Bishop’s New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.). But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be committed ‘voluntarily’, ’willfully’, ‘maliciously’, ‘with malice aforethought’, or in one of the various modes generally construed to imply a criminal intent, we think that reasoning from general principles it will always be found that, with the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an act.Mr. Bishop, who supports his position with numerous citations from the decided cases, thus forcefully presents this doctrine: ‘In no one thing does criminal jurisprudence differ more from civil than in the rule as to intent. In controversies between private parties the quo animo with which a thing was done is sometimes important, not always; but crime proceeds only from a criminal mind. So that — ‘There can be no crime, large or small, without an evil mind. In other words, punishment is the sequence of wickedness, without which it can not be. And neither in philosophical speculation nor in religious or moral sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so.

It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it can not exist. We find this doctrine confirmed by— ‘Legal maxims.—The ancient wisdom of the law, equally with the modern, is distinct on this subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea , ‘the act itself does not make a man guilty unless his intention were so;’Actus me invito factus non est meus actus , ‘an act done by me against my will is not my act; ’and others of the like sort. In this, as just said, criminal jurisprudence differs from civil.

So also— Moral science and moral sentiment teach the same thing. ‘By reference to the intention, we inculpate or exculpate others or ourselves without any respect to the happiness or misery actually produced. Let the result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the same ground, we hold him innocent.’ The calm judgment of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason comes the public voice that where the mind is pure, he who differs in act from his neighbors does not offend. And— ‘In the spontaneous judgment which springs from the nature given by God to man, no one deems another to deserve punishment for what the did from an upright mind, destitute of every form of evil. And whenever a person is made to suffer a punishment which the community deems not his due, so far from its placing an evil mark upon him, it elevates him to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with the utmost confidence that the plea, if its truth is credited, will be

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accepted as good. Now these facts are only the voice of nature uttering one of her immutable truths. It is, then the doctrine of the law, superior to all other doctrines, because first in nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is wrong.’ (Bishop’s New Criminal Law, vol. 1,secs. 286 to 290.).

Compelled by necessity, ‘the great master of all things,’ and apparent departure from this doctrine of abstract justice results from the adoption of the arbitrary rule that Ignorantia juris non excusat (‘Ignorance of the law excuses no man’), without which justice could not be administered in our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make their commission criminal without regard to the intent of the doer. Without discussing these exceptional cases at length, it is sufficient here to say that the courts have always held that unless the intention of the lawmaker to make the commission of certain acts criminal without regard to the intent of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76and 77); and the rule that ignorance of the law excuses no man has been said not to be a real departure from the law’s fundamental principle that crime exists only where the mind is at fault, because ‘the evil purpose need not be to break the law, and it suffices if it is simply to do thing which the law in fact forbids.’ (Bishop’s New Criminal Law,Sec. 300, and cases cited.).

But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in fact to be dealt with otherwise than in strict accord with the principles of abstract justice. On the contrary, the maxim here is Ignorantia facti excusat (‘Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse’). (Brown’s Leg. Max., 2d ed., 190.). Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability, provided always there is no fault or negligence on his part; and as laid down by Baron Parke, ‘The guilt of the accused must depend on the circumstances as they appear to him.’(Reg. vs. Thurborn, 1 Den. C. C., 387; P. vs. Anderson, 44Cal., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N.Y.,509; Patterson vs. P., 46 Barb., 625; Reg. vs Cohen, 8 CoxC. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be determined by the circumstances as they appeared to him at the time when the mistake was made, and the effect which the surrounding circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or otherwise upon which he acted. ‘If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will justify a killing —or, in terms more nicely in accord with the principles on which the rule is founded, if without fault or carelessness he does believe them — he is legally guiltless of the homicide; though he mistook the facts, and so the life of an innocent person is unfortunately extinguished.

In order words, and with reference to the right of self-defense and the not quite harmonious authorities, it is the doctrine of reason, and sufficiently sustained in adjudication, that notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to him. If without fault or carelessness, he is misled concerning them, and defends himself correctly according to what he thus supposes the facts to be, the law will not punish him though they are in truth otherwise, and he has really no occasion for the extreme measure.’(Bishop’s New Criminal Law, sec. 305, and large array of cases there cited.). The common illustration in the American and English textbooks of the application of this rule is the case where a man, masked and disguised as a footpad, at night and on a lonely road, ‘holds up’ his friend in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one will doubt that if the facts were such as the slayer believed them to be he would be innocent of the commission of any crime and wholly exempt from criminal liability, although if he knew the real state of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of homicide or assassination. Under such circumstances, proof of his innocent mistake or criminal intent, and (since malice or criminal intent is a necessary ingredient of the ‘act punished by law’ in cases of homicide or assassination) overcomes at the same time the presumption established in article 1 of the code, that the ‘act punished by law’ was committed ‘voluntarily’. Parsons, C. J., in the Massachusetts court, once said: ‘If the party killing had a felonious design against him, and under that supposition killed him, although it should

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afterwards appear that there was no such design, it will not be murder, but it will be either manslaughter or excusable homicide, according to the degree of caution used and the probable grounds of such belief.’(Charge to the grand jury in Selfridge’s case,Whart. Hom., 417, 418, Lloyd's report of the case, p. 7.).

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows: ‘A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arm and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the instant the pistol is discharged; and of the wound B dies. It turns out the pistol was loaded with powder only, and that the real design of B was only to terrify A. Will any reasonable man say that A is more criminal than he would have been if there had been a bullet in the pistol? Those who hold such doctrine must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded — a doctrine which would entirely take away the essential right of self-defense. And when it is considered that the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this principle.’ (Lloyd's Rep., p. 160.). To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here setout in full because the facts are somewhat analogous to those in the case at bar.

‘QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of his wife, without other light than that reflected from the fire, and that the man with his back to the door was attending to the fire, there suddenly entered a person whom he did not see or know, who struck him one or two blows, producing a contusion on the shoulder, because of which he turned, seized the person and took from him the stick with which he had undoubtedly been struck, and gave the unknown person a blow, knocking him to the floor, and afterwards striking him another blow on the head, leaving the unknown lying on the floor, and left the house. It turned out the unknown person was his father-in-law, to whom he rendered assistance as soon as he learned his identity, and who died in about six days in consequence of cerebral congestion resulting from the blow. The accused, who confessed the facts, had always sustained pleasant relations with his father-in-law, whom he visited during his sickness, demonstrating great grief over the occurrence. Shall he be considered free from criminal responsibility, as having acted in self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient provocation, and that there did not exist rational necessity for the employment of the force used, and in accordance with articles 419 and 87 of the Penal Code condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the accused, he was acquitted by the supreme court, under the following sentence: ‘Considering, from the facts found by the sentence to have been proven, that the accused was surprised from behind, at night, in his house beside his wife, who was nursing her child, was attacked, struck, and beaten, without being able to distinguish the person or persons attacking, nor the instruments with which they might have executed their criminal intent, because of the fact that the attack was made from behind and because there was no other than fire light in the room, and considering that in such a situation and when the acts executed demonstrated that they might endanger his existence, and possibly that of his wife and child, more especially because his assailant was unknown, he should have defended himself, and in doing so with the same stick with which he was attacked, he did not exceed the limits of self-defense, nor did he use means which were not rationally necessary, particularly because the instrument with which he killed was the one which he took from his assailant, and was capable of producing death, and in the darkness of the house and the consternation which naturally resulted from such strong aggression, it was not given him to know or distinguish whether there was one or more assailants, nor the arms which they might bear, nor that which they might accomplish, and considering that the lower court did not find from the accepted facts that there existed rational necessity for the means employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it erred, etc.’ (Sentence of supreme court of Spain, February 28, 1876.)’ (Viada, Vol. I, p.266.).

‘QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8 paces, saying: ‘Facedown, hand over your money!’ because of which, and almost at the same moment, he fired two shots from his pistol, distinguishing immediately the voice of one of his friends (who had before stimulated a different voice) saying, ‘Oh! they have killed me,’ and

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hastening to his assistance, finding the body lying upon the ground, he cried, ‘Miguel, Miguel, speak, for God’s sake, or I am ruined, ’realizing that he had been the victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he retired from the place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as having acted in just self-defense under the circumstances defined in paragraph 4, article8, Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but only found in favor of the accused two of the requisites of said article, but not that of the reasonableness of the means employed to repel the attack, and therefore, condemned the accused to eight years and one day of prision mayor , etc. The supreme court acquitted the accused on his appeal from this sentence, holding that the accused was acting under a justifiable and excusable mistake of fact as to the identity of the person calling to him, and that under the circumstances, the darkness and remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme court, March 17, 1885.)’(Viada, Vol. I, p. 136.).

‘QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown against his window — at this, he puts his head out of the window and inquires what is wanted, and is answered ‘the delivery of all his money, otherwise his house would be burned’ — because of which, and observing in an alley adjacent to the mill four individuals, one of whom addressed him with blasphemy, he fired his pistol at one of the men, who, on the next morning was found dead on the same spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense with all of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to exempt him from criminal responsibility, but not that of reasonable necessity for the means, employed, and condemned the accused to twelve months of prision correccional for the homicide committed. Upon appeal, the supreme court acquitted the condemned, finding that the accused, in firing at the malefactors, who attacked his mill at night in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of his person, property, and family. (Sentence of May 23,1877).’ (I Viada, p. 128.). A careful examination of the facts as disclosed in the case at the bar convinces us that the defendant Chinaman struck the fatal below alleged in the information in the firm belief that the intruder who forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property and of the property committed to his charge; that in view of all the circumstances, as they must have presented themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the facts, or in the means adopted by him to defend himself from the imminent danger which he believed threatened his person and his property and the property under his charge.” (UNITED STATES vs. AH CHONG, G.R. No. 5272,March 19, 1910). It is necessary that the act must concur with the intention to constitute the crime (People vs. Pangilinan, 47 O.G. 1863 and People vs. Alvar, 18578-CR, 21 Dec. 1977).

ACTION IN PERSONAMAction against a person on the basis of his personal liability (Hernandez vs. Rural Bank of Lucena, Inc., L-29791, 10 January 1978; 81 SCRA 85). “ * * * This is the only legal conclusion that can be drawn from the situation now obtaining, and this emanates from the theory that a labor contract merely creates an action in personam and does not create any real right which should be respected by third parties. This conclusion draws its force from the right of an employer to select his employees and to decide when to engage them guaranteed by our Constitution which can only be restricted by law through the proper exercise of police power (31 Am. Jur., section 9, p. 387). Here there is no showing, nor the slightest intimation, that the right given to Pablo Java with regard to the stevedoring work has been respected in the different deeds of sale covering the boat in question. This being the case, Pablo Java has no recourse against the new owner. As the case now stands his only remedy is to take up the matter with his original employer, the Southern Lines, Inc.” (VISAYANTRANSPORTATION CO., INC. vs. PABLO JAVA, G.R. No. L-6111, October 22, 1953, 93 Phil. 962). “In fact, in said case of Arriete vs. Director of Public Works, this Court has already squarely decided that the owner of land delinquent in the payment of irrigation fees should be personally notified of the proceeding. The trial court was aware of this case of Arriete but it declined to be bound by its ruling on the ground that the reason this Tribunal considered the proceedings in that case as an action in personam was because the judgment rendered against defendant was a personal one.” (JOSE GATMAITAN,ET AL. vs. THE DIRECTOR OF PUBLIC WORKS, ET

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AL., G.R.No. L-10012, December 27, 1956, 100 Phil. 581). Refer to ACTION IN REM and QUASI IN REM. ACTION IN REMAction against the whole world. An action against the thing itself, instead of against the person (Hernandez vs. Rural Bank of Lucena, Inc., L-29791, 10 January 1978; 81 SCRA 85). “ * * * It is clothed with all the forms of an action and the result is final and binding upon all the world. It is anAction in rem. (Escueta vs. Director of Lands (supra);Grey Alba vs. De la Cruz, 17 Phil. Rep., 49; Roxas vs.Enriquez, 29 Phil. Rep., 31; Tyler vs. Judges, 175 Mass., 71; American Land Co. vs. Zeiss, 219 U. S., 47.)” (CONSUELOLEGARDA, with her husband MAURO PRIETO vs. N. M.SALEEBY, G.R. No. 8936, October 2, 1915). “As to the contention that the exercise of the right to obtain the confirmation and registration of a title is not an ‘action’ as this word is defined in section 1 of the Code of Civil Procedure and as used in section 144 of the same Code, which makes this section inapplicable to ordinary registration or cadastral proceedings, it suffices to cite this court’s decision in the case of Lopez Castelo vs. Director of Lands (48 Phil., 589), the first paragraph of the syllabus of which reads as follows: ‘LAND REGISTRATION; ACTION ‘IN REM’;

CONCLUSIVENESS OF DECREE.— A land registration proceeding is in the nature of a suit in rem; the decree entered therein operates directly on the land and, in the absence of fraud, is ‘conclusive upon and against all persons’ (sec. 1, Act No. 496) though they may not have received actual notice of the proceedings.’ (THE DIRECTOR OFLANDS, in behalf of the Government of the Philippine Islands vs. THE COURT OF FIRST INSTANCE OF TARLAC, ET AL., G.R. No. 29837,August 1, 1928). Requisite of an action in rem: “In order that an action in rem may affect all persons in general, it is not enough to publish a notice of its institution; it must be addressed to the whole world, like a notice of application for registration under the Torrens system, and must be published in a periodical of general circulation. Section 24 of Act No. 1956 requires that the order declaring the debtor insolvent be published in a newspaper of general circulation in the province or city in which the petition is filed, and if there be none, in a newspaper which, in the opinion of the judge, will best give notice to the creditors of the said insolvent: therefore, it cannot affect the whole world. Inasmuch as the order declaring a debtor insolvent is published merely to give notice to his creditors, and as the plaintiff-appellee was not a creditor of the defendant-appellant Tan Lua, he cannot legally be presumed to have been apprised of said order, or deemed to have acted in bad faith in giving said insolvent debtor, a loan of P16,000,upon the security of the land here in question, which is registered in the name of said debtor with a Torrens title. ”(ENRIQUE BRIAS DE COYA vs. TAN LUA and VICENTE NEPOMUCENO, G.R. No. 30756, September 22, 1931).

Action in personam compared to an action in rem: “An action in rem may de defined as an action or proceeding instituted against a thing and not against a particular person. (In re Storey’s Will, 20 Ill. App., 183,190). Chief Justice Marshall, in discussing an action in rem, said: ‘I have always understood that where a process is to be served on the thing itself, by the service of a process and making proclamation, the court is authorized to decide upon it (the thing) without notice to any individual defendant, to which all the world are parties. The claimant is a party, whether he speaks or is silent, whether he asserts his claim or abandons it.’ Decisions in such cases are binding and conclusive, not only on the parties litigating, but on all others. Every one who can possibly be affected by the decision has a right to appear and assert his own rights by becoming an actual party to the proceeding (Cunningham vs. Shanklin, 60 Cal., 118, 125.).A proceeding in rem, in a strict sense, is one taken strictly against property, and has for its object the disposition of the property, without reference to the title of individual claimants. But in a larger and more general sense the phrase ‘proceedings in rem’ is applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein (Arndt vs. Griggs, 134 U.S., 316.). A proceeding brought to determine the status of a particular thing itself and which is confined to the subject-matter in specie, is in rem, the judgment being intended to determine the state or condition, and, pro facto, to render the thing what the judgment declares it to be. Process may be served on the thing itself and by such service and making proclamation, the court is authorized to decide upon it without notice to persons, all the world being parties (Cross vs. Armstrong, 44 Ohio St., 613;Woodruff vs. Taylor, 20 Vt., 62, 73.). A ‘judgment in rem’ is an adjudication pronounced upon the state of some particular subject-matter by a court having competent authority for that purpose; while a ‘judgment in personam’ is, in form as well as in substance, between persons claiming a particular right, and that it is so inter parties, appears by the record itself. A ‘judgment in rem’ differs from a ‘judgment in personam’ in this, that the latter is, in form as well as substance, between the parties claiming the right, and that it is so inter parties,

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appears by the record, and it is binding only upon the parties appearing to be such by the record, and those claiming by them. But a ‘judgment in rem’ is founded upon a proceeding instituted not against the person as such but against or upon a particular thing or subject-matter, whose state or condition is to be determined, and a judgment is a solemn declaration upon the status of the thing and it ipso facto renders it what it declares it to be (Woodruff vs. Taylor, supra.). In a ‘judgment in personam’ when property is sold there under at public auction, the rights of the owner only are sold, while in a ‘judgment in rem’ the res itself is sold.” (RAMON LOPEZ vs. THE DIRECTOR OF LANDS, G.R. No.22136, December 17, 1924). “The attempt of the respondent judge to hold the said summons by publication binding upon the petitioner AngLam on the theory that the action was one in rem and that said petitioner is the surviving husband of the defendant and is the administrator of the property in question, is, in our opinion, untenable. An action to redeem, or to recover title to or possession of, real property is not an action in rem or an action against the whole world, like a land registration proceeding or the probate of a will; it is an action in personam, so much so that a judgment therein is binding only upon the parties properly impleaded and duly heard or given an opportunity to be heard. (See Patriarcavs. Orate, 7 Phil., 390, 393-394.). ‘Actions in personam and actions in rem differ in that the former are directed against specific persons and seek personal judgments, while the latter are directed against the thing or property or status of a person and seek judgments with respect thereto as against the whole world.’ (1 C. J. S., 1148.). An action to recover a parcel of land is a real action, but it is an action in personam, for it binds a particular individual only although it concerns the right to a tangible thing. An action for resolution of a contract of sale of real property is an action in personam (Sandejas vs. Robles, 46Off. Gaz., [Supp. to No. 1], 2031). If, on the other hand, the object is to bar indifferently all who might be minded to make an objection of any sort against the right sought to be established, and if any one in the world has a right to be heard on an allegation of facts which, if true, shows an inconsistent interest, the proceeding is in rem (Grey Albavs. Cruz, 17 Phil., 49, 62). For instance, an application for the registration of land under Act No. 496 is an action in rem, for the judgment which may be rendered therein is binding upon the whole world (Reyes vs. Razon, 38 Phil.,480, 482). The probate of a will is a proceeding in rem, because the order of probate is effective against all persons wherever residing (In re Estate of Johnson, 39 Phil.,156). (Moran, Rules of Court, 2d Ed., Vol. 1, p. 9.).” (ANGLAM vs. POTENCIANO ROSILLOSA and VICENTE SANTIAGO, Judge of the Court of First Instance of Quezon, G.R. No. L-3595, May 22, 1950, 86 Phil. 447).

In contrast to an action quasi in rem: “In the terminology of American law the action to foreclose a mortgage is said to be a proceeding quasi in rem, by which is expressed the idea that while it is not strictly speaking an action in rem yet it partakes of that nature and is substantially such. The expression, ‘action in rem’ is, in its narrow application, used only with reference to certain proceedings in courts of admiralty wherein the property alone is treated as responsible for the claim or obligation upon which the proceedings are based. The action quasi in rem differs from the true action in rem in the circumstance that in the former an individual is named as defendant, and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property. All proceedings having for their sole object the sale or other disposition of the property of the defendant, whether by attachment, foreclosure, or other form of remedy, are in general way thus designated. The judgment entered in these proceedings is conclusive only between the parties.” (EL BANCO ESPAÑOL-FILIPINO vs. VICENTE PALANCA, administrator of the estate of Engracio Palanca Tanquinyeng, G.R. No. L-11390, March26, 1918; JOSE P. SANDEJAS vs. ZACARIAS C. ROBLES,ELENA C. VDA. DE ROBLES and ROSARIO Y. SINGSON, G.R.No. L-803, August 27, 1948). See also ACTION IN PERSONAM and QUASI IN REM.

ACTION QUASI IN REM Action not strictly speaking an action in rem yet it partakes of that nature and is substantially such. “In the terminology of American law the action to foreclose a mortgage is said to be a proceeding quasi in rem, by which is expressed the idea that while it is not strictly speaking an action in rem yet it partakes of that nature and is substantially such. The expression, ‘action in rem’ is, in its narrow application, used only with reference to certain proceedings in courts of admiralty wherein the property alone is treated as responsible for the claim or obligation upon which the proceedings are based. The action quasi in rem differs from the true action in rem in the circumstance that in the former an individual is named as defendant, and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property. All proceedings having for their sole object the sale or other disposition of the property of the defendant, whether by attachment, foreclosure, or other form of remedy, are in general way thus designated. The judgment entered in these proceedings is conclusive only between the parties.” (EL BANCO ESPAÑOL-FILIPINO vs. VICENTE PALANCA, administrator of the estate of Engracio

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Palanca Tanquinyeng, G.R. No. L-11390, March26, 1918; JOSE P. SANDEJAS vs. ZACARIAS C. ROBLES,ELENA C. VDA. DE ROBLES and ROSARIO Y. SINGSON, G.R.No. L-803, August 27, 1948). See also ACTION IN REM and ACTION IN PERSONAM.

ACTION INTER PARTES Action that concerns principally two parties(Venzon vs. Philippine Pacific Trade, Inc., SP- 11066-R, 03 December1980).

“In its answer to the opposition VOIC prayed for its dismissal on the ground that when the law firm of Lichauco, Picazo & Agcaoili moved for extension of time to file the notice of opposition on July 31, 1961, it did not yet have a written power of attorney or authorization to intervene in the case, as required by Rule 19 of the Revised Rules of Practice before the Philippines Patent Office, which provides: ‘19. Power of attorney or authorization. —Before any attorney-at-law or other recognized person will be allowed to take action in any case or proceeding, ex parte orinter partes, a written power of attorney or authorization must be filed in the particular case or proceeding.

xxx xxx xxx ’The requisite power of attorney given the law firm by the Cudahy Packing Company was executed on August 7,1961, a week after the law firm filed the motion for extension. VOIC contended in its answer that since the authority embodied therein had not yet been given when the said motion was filed on July 31, 1961, the grant of the extension, as well as the filing of the notice of opposition itself within the period allowed therefore, did not cure the fatal defect in the law firm’s initial intervention in the inter-partes case, i.e. the absence of the requisite authority to file the motion for extension of time in the first place.”(THE CUDAHY PACKING COMPANY vs. THE DIRECTOR OFPATENTS AND VEGETABLE OIL INDUSTRIES CORPORATION,G.R. No. L-22647, July 30, 1971).

ACTO NULOVoid act; an act declared void (Municipality of Camilingvs. Lopez, 99 Phil. 189).

ACTO PERSONALISMA very personal act. The individual’s freedom orliberty to do an act he has promised to do, or not to do it, as he pleases (Woodhouse vs. Halili, 93 Phil. 539). See ACTION IN REM and ACTION IN PERSONAM. ACTOR NON PROBANTE REUS ANSOLVITURWhen plaintiff has not sufficiently proven his complaint, defendant must be absolved. A companion maxim is “he who alleges the affirmative must prove it.” Or that “ the rule in procedure is that upon him who affirms devolves the burden of proof.” (Regner vs. Librea, 34 Phil. 575).

AD ARGUENDOA hypothetical argument (Chamber of Filipino Retailers, Inc. vs. Villegas, L-29819, 14 April 1972, 44 SCRA 408 cited in page 29, Philippine Law Dictionary, Federico B. Moreno, 2nd ed., Vera-Reyes, Inc., Manila).

AD INFINITUM Infinitely. “Petitioner’s insistence that private respondents became regular employees only when they were extended appointments on July 13, 1988 is deplorable. Articles 280and 281 of our Labor Code, put an end to the pernicious practice of making permanent casuals of our lowly employees by the simple expedient of extending to the probationary appointments, ad infinitum.

Thus, Article 281, placed a ceiling on probationary employment, i.e., not to exceed six (6) months from the date the employee started working. On the other hand, Article 280, defined when an employment shall be regular notwithstanding any written agreement to the contrary. In other words, the graduation of an employee from casual or probationary to regular does not depend on the arbitrary will of his employer.” (Central Negros Electric Cooperative, Inc.(CENECO) vs. NLRC, G.R. No. 106246, September 1, 1994).

AD ULTIMAM VIM TERMINORUMTo the most extended import of the terms. In a sense as universal as the terms will reach. “There is another reason why we cannot agree with the disposition of the Court of Appeals. Viewed ad ultimam vim terminorum, such disposition would simply mean that since the judgment in Civil

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Case No. C-2947 was not revived within the prescriptive period of ten years, the petitioners lost forever their ownership over the ¾ portion of the lot in question, less what had been awarded to Raymunda Damaso and Atty. Fuggan. This would be contrary to Section 47 of P.D. No 1529 which provides that‘[n]o title to registered land in derogation of the title of the registered owner shall be acquired by prescription or adverse possession.’ Since the petitioners are the registered owners of ¾ of the lot in question, the adverse possession of the private respondent cannot result to the forfeiture of their ownership. The memorandum of agreement between her father and Atty. Lorenzo Fuggan did not provide any legal basis for her possession because Atty. Fuggan had not caused the execution of the judgment in Civil Case No. C-2947 in his favor and the memorandum of agreement was not a deed of sale.”(MANUEL CAIÑA, MIRIAM CAIÑA, and LEVITA CAIÑA vs. THECOURT OF APPEALS and ELVIE NABONG MAPA, G.R. No.114393, December 15, 1994).

AEQUITAS NUNQUAM CONTRAVENIT LEGISEquity never counteracts the law (page 77, Black’s Law Dictionary, 4th ed., Henry Campbell Black). “. . . an earlier case (Zabat Jr. vs. CA, 142 SCRA 587), and we repeat it now, that all abstract arguments based only on equity should yield to positive rules, which preempt and prevail over such persuasions. Emotional appeals for justice, while they may wring the heart of the Court, cannot justify disregard of the mandate of the law as long as it remains in force. The applicable maxim, which goes back to the ancient days of the Roman jurists - and is now still reverently observed - is aequ[i]tas nunquam contravenit legis.”(VIOLETA ALDOVINO, et al. vs. SECRETARY RAFAEL ALUNAN III, et al., G.R. No. 102232,March 9, 1994, EN BANC, DAVIDE, JR., J ., dissenting). “Petitioners insist that the delay of seven years was unreasonable and unexplained, because demand was not necessary. Again we point that, unless reasons of inequitable proportions are adduced, a delay within the prescriptive period is sanctioned by law and is not considered to be a delay that would bar relief. In Chavez v. Bonto-Perez, the Court reiterated an earlier holding, viz: ‘Laches is a doctrine in equity while prescription is based on law. Our courts are basically courts of law and not courts of equity. Thus, laches cannot be invoked to resist the enforcement of an existing legal right. We have ruled in Arsenal v. Intermediate Appellate Court . . . that it is a long standing principle that equity follows the law. Courts exercising equity jurisdiction are bound by rules of law and have no arbitrary discretion to disregard them. In Zabat, Jr. v. Court of Appeals . . . , this Court was more emphatic in upholding the rules of procedure. We said therein: ‘As for equity, which has been aptly described as ‘justice outside legality,’ this is applied only in the absence of, and never against, statutory law or, as in this case, judicial rules of procedure.

Aequ[i]tasnunquam contravenit legis. The pertinent positive rules being present here, they should preempt and prevail over all abstract arguments based only on equity.’ ” (ANTONIOR. AGRA, CAYETANO FERRERIA, NAPOLEON M.GAMO and VICENTE O. NOVALES vs. PHILIPPINE NATIONAL BANK, G.R. No. 133317, June 29,1999). See also, AEQUITAS AGIT IN PERSONAM,

AEQUITAS EST CORRECTIO LEGIS GENERALITER LATAE, QUA PARTE DEFICIT,

AEQUITAS EST CORRECTIO QUAEDAM LEGI ADHIBITA, QUIA ABEA ABEST ALIQUID

PROPTER GENERALEM SINE EXCEPTIONECOMPERHENSIONEM

And DURA LEX SED LEX.

AEQUITAS AGIT IN PERSONAMEquity acts upon the person.

AEQUITAS EST CORRECTIO LEGIS GENERALITER LATAE, QUAPARTE DEFICIT Equity is the correction of that wherein the law, by reason of its generality, is deficient.

AEQUITAS EST CORRECTIO QUAEDAM LEGI ADHIBITA, QUIA ABEA ABEST ALIQUID

PROPTER GENERALEM SINE EXCEPTIONE COMPERHENSIONEMEquity is a certain correction applied to law, because on account of its general comprehensiveness, without an exception, something is absent from it.

A FORTIORI

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With more reason (Compania General de Tabacos vs.Martinez, 17 Phil. 168).

A GRATIA ARGUMENTISFor the sake of argument (Manuel vs.Cordoba, 43224-R, 10 March 1971 cited in page 1, Philippine Law Dictionary, Federico B. Moreno, 2nd ed., Vera-Reyes, Inc., Manila).

ALLEGANS SUAM TURPITUDINEM NON EST AUDENDUSHe who goes to court must do so with clean hands. It is axiomatic that he who alleges his own disgrace should not be heard (Dir. of Lands vs.Abiertas, 44 O.G. 937).

ALLEGATIO FALSIFalse allegation (North Camarines Lumber vs.Metropolitan Ins., 65 O.G. 1312; 12 C.A.R. (2s) 978).

A MENS ET THOROFrom bed and board (Chereau vs. Funtabella, 43Phil. 220).

ANIMUS FRUENDIIntent to gain.

ANIMUS HOMINIS EST ANIMA SCRIPTIThe intention of the parties is the soul of the instrument. “We agree with the petitioners that it does, notwithstanding its denomination or designation as a Contract of Lease. We are neither convinced nor moved or fazed by the insistence and forceful arguments of the PGMC that it does not because in reality it is only an independent contractor for a piece of work, i.e., the building and maintenance of a lottery system to be used by the PCSO in the operation of its lottery franchise. Whether the contract in question is one of lease or whether the PGMC is merely an independent contractor should not be decided on the basis of the title or designation of the contract but by the intent of the parties, which may be gathered from the provisions of the contract itself.

Animushominis est anima scripti. The intention of the party is the soul of the instrument. In order to give life or effect to an instrument, it is essential to look to the intention of the individual who executed it. And, pursuant to Article 1371 of the Civil Code, ‘to determine the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered.’ To put it more bluntly, no one should be deceived by the title or designation of a contract.” (Kilosbayan, Inc. vs. Guingona, Jr., 232 SCRA 143).

ANIMUS NOVANDIIntent to novate. “1. What was done by respondent Judge in setting aside the writ of execution in Civil Case No. 5111 finds support in the applicable authorities. There is this relevant excerpt in Barretto v. Lopez, this Court speaking through the then Chief Justice Paras: ‘Alleging that the respondent judge of the municipal court had acted in excess of her jurisdiction and with grave abuse of discretion in issuing the writ of execution of December 15, 1947, the petitioner has filed the present petition for certiorari and prohibition for the purpose of having said writ of execution annulled. Said petition is meritorious. The agreement filed by the parties in the ejectment case created as between them new rights and obligations which naturally superseded the judgment of the municipal court.’ In Santos v. Acuña, it was contended that a lower court decision was novated by subsequent agreement of the parties. Implicit in this Court’s ruling is that such a plea would merit approval if indeed that was what the parties intended. Nonetheless, it was not granted, for as explained by the ponente, Justice J.B. L. Reyes: ’Appellants understood and expressly agreed to be bound by this condition, when they stipulated that ‘they will voluntarily deliver and surrender possession of the premises to the plaintiff in such event’ . . . Hence, it is plain that in no case were the subsequent arrangements entered into with any unqualified intention to discard or replace the judgment in favor of the plaintiff-appellee; and without such intent or animus novandi, no substitution of obligations could possibly take place.’ Can there be any doubt that if it could be shown, as it was in this case, that there was such clear manifestation of will by the parties, the original decision had lost force and effect? To ask the question is to answer it. The presence of the animus novandi is undeniable. Nor is there anything novel in such an approach. So it was noted by then Chief Justice Concepcion in De los Santos v. Rodriguez: ‘As early as Molina v. De la Riva the principle has been laid down that, when, after judgment has become final, facts and circumstances transpire which render its execution impossible or unjust, the interested party

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may ask the court to modify or alter the judgment to harmonize the same with justice and the facts’ Molina v. de la Riva was a1907 decision. Again, the present case is far stronger, for there is a later decision expressly superseding the earlier one relied upon on which the writ of execution there after set aside was based.” (AGUSTIN DORMITORIO and LEONCIAD. DORMITORIO vs. HONORABLE JOSE FERNANDEZ, Judge of the Court of First Instance of Negros Occidental, BranchV, Bacolod City, and SERAFIN LAZALITA, G.R. No. L-25897,August 21, 1976).

ANIMUS POSSIDENDIIntent to possess. “Possession has been defined to be the detention or enjoyment of a thing which a man holds or exercises by himself or by another who keeps or exercises it in his name. (Bouvier’s Law Dictionary, Rawles’ revision, Vol. II.) Clearly it involves a state of mind on the part of the possessor whereby he intends to exercise, and as a consequence of which, he does exercise a right of possession, whether that right be legal or otherwise; and while the intention and the will to possess may be, and usually are inferred from the fact that the thing in question is under the apparent power and control of the alleged possessor, nevertheless, the existence of the Animus possidendi is subject to contradiction, and may be rebutted by evidence which tends to prove that the person under whose power and control the thing in question appears to be, does not in fact exercise such power of control and does not intend so to do. In order to complete a possession two things are required, that there be an occupancy, apprehension, or taking; that the taking be with an intent to possess (animus possidendi). Hence persons who have no legal wills, as children of insufficient understanding and idiots, can not possess or acquire a complete possession (Pothier, Etienne, see 1 Mer., 358;Abb. Sh., 9); so here stolen property is placed in the house or upon the premises of A, without his knowledge or consent, A is not properly speaking in possession of such property, so long as he does not assert a right to its control, and is not moved by the animus possidendi with reference thereto.” (THE UNITED STATES vs. TAN TAYCOAND CO SENCHO, G.R. No. 4723, February 8, 1909, ENBANC).

ANTE MORTEM DECLARATIONDying declaration. An ante mortem declaration is entitled to highest credence for scarcely would a person who knows of his impending death make a careless and false accusation. The declaration of the victim made a few hours before his death meets the requirements as a dying declaration,i.e., that (a) it concerns the cause and surrounding circumstances of the declarant’s death; (b) that at the time it is made, the declarant is under a consciousness of being on the verge of death; (c) that he is a competent witness; and (d) that his declaration is offered in a criminal case in which the declarant is the victim. Moreover, the statement of the deceased, even assuming it is not a dying declaration, would still have strong positive value as part of res gestae which requires that (a) the statement is spontaneous; (b) it is made during, immediately prior or subsequent to a startling occurrence; and (c) it relates to the circumstances of such occurrence (People vs. Esquilona, G.R. No.89213, 08 Sept. 1995). Also refer to

RES GESTAE-equivocal act,

ABREACTION—relieving suppressed emotions, and

RES IPSA LOQUITUR— the act speaks for itself.

A PERSON IN LOCO PARENTISFather’s authority to a child or a child under the authority of a father. To a child is one who means to put himself in the situation of the lawful father of the child, with reference to the father’s office and duty of making provision for the child. (Miranovs. Banawa, 23597-R, 12 April 1965).

A SENSU CONTRARIOIn contrary sense (Borres vs. Municipality of Panay, 42 Phil. 656) SeePER CONTRA and A CONVERSO.

A QUOFrom which or whom (Beech vs. Jimenez, 12 Phil. 221 cited in page 1, Philippine Law Dictionary, Federico B. Moreno, 3rd ed., Vera-Reyes, Inc., Manila).

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AVERBA LEGISThe language of the law. “The language of a statute affords the best means of its exposition and the legislative intent must be determined primarily there from” (Van Pelt vs. Hillard, 78 So. 693; Jonesvs. Pebler, 125 A.L.R., p 451).

STRICTISSIMI JURIS, strictly according to the language of the law, is an associate doctrine. When the law is clear, it must be applied as found. The ordinary language of a statute must be given its ordinary meaning, and limited to a reasonable interpretation. Construction and interpretation come only when it has been demonstrated that application is impossible or the law is inadequate. Interpretation should be geared towards upholding the very purpose of the statute. (Republic Flour Mills vs. Comm. of Customs, L-28463, 31 May 1971, 39SCRA 269).

A VERBA LEGIS NON EST RECEDENDUMFrom the words of the statute there should be no departure (Villafranca vs. Villaluna, 00831-R, 09 March 1996 cited in page 1, Philippine Law Dictionary, FedericoB. Moreno, 3rd ed., Vera-Reyes, Inc., Manila). However, in penal cases, penal laws are construed favorably against the accused.

A VINCULO MATRIMONIIAbsolute divorce which dissolves the bonds of marriage (SY JOC LIENG, SY YOC CHAY, SY JUI NIU and SY CHUA NIU vs. PETRONILA ENCARNACION, GREGORIO SY QUIA, PEDRO SY QUIA,JUAN SY QUIA and GENEROSO MENDOZA SY QUIA, G.R. No. 4718,March 19, 1910, 16 Phil. 137; Gabriel vs. Gabriel, 60 O.G. 4974 cited in page 1, Philippine Law Dictionary, Federico B. Moreno, 3rd ed., Vera-Reyes, Inc., Manila).

BONUS JUDEX SECUNDUM AEQUUM ET BONUM JUDICAT STRICTO JURI PRAEFERT Justice is preferred than to a too strict interpretation of the law which will cause injustice.Faced with a choice between a decision that will serve justice and another that will deny it because of a too strict interpretation of the law, we must resolve in favor of the former, for the ultimate end of the law is justice (Page 17, Latin and French in Philippine Jurisprudence, The Lawyers Review, Vol. XII, No. 10, 31 October 1998, Mla., Phil., Atty.Baldomero S.P. Gatbonton, Jr.).

CASUS OMISSUS PRO OMISSO HABENDUS EST Words or phrases may be supplied in a law to eliminate repugnancy, inconsistencies, to complete the sense, give effect to the intention of the legislature, to supply omissions because of clerical errors because of accident or inadvertence. This rule is necessary to prevent the law from becoming a nullity. (Hazelrigg vs. Penitentiary Comrs. 184 Ark. 154; Am. Jur., p. 233). But, in general, what has been omitted is deemed to have been done so intentionally. The maxim can operate only when the inadvertent omission has been clearly established. (People vs. Manantan, G.R. No.L-14129, 31 July 1962). (pp. 80-81, Statutory Construction, Ruperto G.Martin, Premium Book Store).

CERTUM EST QOUD CERTUM REDDI POTEST That is certain which is able to be certain. This applies mostly to construction of deeds, e.g., if a deed provides that so much shall be paid to one as another shall determine, although the amount is not certain in the deed, it is capable of being specific by the payment. (Vol. X, 31 March 1996, The Lawyers Review).

CESSANTE RASIONE LEGIS, CESSAT IPSA LEX When the reason for the law ceases, the law itself ceases (Commendador vs. De Villa, 200SCRA 80, 94 (1991) and Llorin vs. Court of Appeals, 218 SCRA 436, 443(1993) cited in page 16, Latin and French in Philippine Jurisprudence, The Lawyers Review, Vol. XII, No. 10, 31 October 1998, Mla., Phil., Atty. Baldomero S.P. Gatbonton, Jr.).

CESTUI QUE TRUST Other co-owners for whom a co-owner holds property in trust for (Salvador vs. CA, G.R. No. 109910, 05 April 1995).

COMMODUM EX INJURIA SUA NEMO HABERE DEBET

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No one should be a gainer of his own wrong (Ramos vs. Central Bank, 141SCRA 142, 164 (1986) cited in page 16, in Latin and French in Philippine Jurisprudence, The Lawyers Review, Vol. XII, No. 10, 31 October 1998, Mla., Phil., Atty. Baldomero S.P. Gatbonton, Jr.).

CONFESSIO, FACTO IN JUDICIO, OMNI PROBATIONE MAJOR EST Confession made in a judicial proceedings is of greater force than allot her proof. But this maxim should be applied cautiously. A plea of guilty takes a lot of explanation, it is not uncommon for the innocent to make a guilty plea with various objects. (Vol. X, 31 March 1996, The Lawyers Review).

CONSUETUDO, CONTRA RATIONEM INTRODUCTA,POTIUS USURPATIO QUAM CONSUETUDO APPELLARI DEBET A custom against reason is rather an usurpation. In the hierarchy of sources of legislative procedure. “Firstly, that usage or custom has sanctioned this abbreviated, if questionable, procedure does not warrant its being legitimized and perpetuated any longer. Consuetudo, contra rationem introducta, potius usurpatio quam consuetudo appellari debet. A custom against reason is rather an usurpation. In the hierarchy of sources of legislative procedure, constitutional rules, statutory provisions and adopted rules (as for example, the Senate and House Rules), rank highest, certainly much ahead of customs and usages.” (ARTUROM. TOLENTINO vs. THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL REVENUE, G.R. No. 115455, August 25, 1994, EN BANC; JUAN T. DAVID vs. TEOFISTO T.GUINGONA, JR., as Executive Secretary et al., G.R. No.115525; RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES vs. THE SECRETARY OF THE DEPARTMENT OFFINANCE; THE COMMISSIONERS OF THE BUREAU OF INTERNAL REVENUE AND BUREAU OF CUSTOMS, G.R. No.115543; PHILIPPINE PRESS INSTITUTE, INC., et al. vs. HON.LIWAYWAY V. CHATO, in her capacity as Commissioner of Internal Revenue, et al., G.R. No. 115544; CHAMBER OFREAL ESTATE AND BUILDERS ASSOCIATIONS, INC., (CREBA) vs. THE COMMISSIONER OF INTERNAL REVENUE, G.R. No.115754; KILOSBAYAN, INC., et al. vs. THE EXECUTIVESECRETARY, et al., G.R. No. 115781; PHILIPPINE AIRLINES,INC. vs. THE SECRETARY OF FINANCE, and COMMISSIONER OF INTERNAL REVENUE, G.R. No. 115852; COOPERATIVE UNION OF THE PHILIPPINES vs. HON. LIWAYWAY V. CHATO in her capacity as the Commissioner of Internal Revenue, et al., G.R. No. 115873; and PHILIPPINE EDUCATIONALPUBLISHERS ASSOCIATION, INC., and ASSOCIATION OF PHILIPPINE BOOKSELLERS vs. HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance, et al., G.R. No.115931).

CUILIBET IN SUA ARTE PERITO EST CREDENDUMWhoever is skilled in his profession is to be believed. Ordinary witnesses are called to witness facts, experts are allowed to give opinions (Vol. X, 31 March1996, The Lawyers Review).

DEFENSOR VINCULIDefender of the bond (Republic of the Philippines vs. Court of Appeals and Roridel Olaviano Molina, G.R. No. 108763, 13 February 1997). From the root words defensor, “Civil Law. A defender; one who assumed the defense of another’s case in court. Also an advocate. A tutor or curator.” (p. 421, Black’s Law Dictionary,Henry Campbell Black, 6th ed., St. Paul Minn. West Publishing Co.,1990); and vinculo, “In Spanish law, the bond, chain or tie of marriage.” (p. 1570, ibid.).

DE NON APPARENTIBUS, ET NON EXISTENTIBUS, EADEM EST RATIOOf things that do not appear and things which do not exist, the rule in legal proceedings is the same -the law acts only on things which has been proven. For example, statutes, parliamentary proceedings, privileges of Congress (Vol. X, 31 March 1996, The Lawyers Review).

DESIDERATUMWhat is desired or the standard desire (Philippine Law Dictionary, Federico B. Moreno, 3rd. ed., Vera-Reyes, Inc., Mla. Citing IÑIGO vs. CABRERA, 77 Phil. 656). “ * * * the desideratum is that civil trials should not be carried on in the dark * * * .” (Fortune Corp. vs. Hon. Court of Appeals and Intermerchants Corp., G.R. No. 108119, January 19, 1994).

DILIGENTISSIMI PATRIS FAMILIASDiligence of a good father of a family. “Coming, now to the case at bar, while there is no rule which requires that testimonial evidence, to hold sway, must be corroborated by documentary evidence, or even object evidence for that matter, inasmuch as the witnesses’ testimonies dwelt on mere generalities, we cannot consider the same as sufficiently persuasive proof that there was observance of due diligence in the selection and supervision of employees. Petitioner’s attempt

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to prove its diligentissimi patris familias in the selection and supervision of employees through oral evidence must fail as it was unable to buttress the same with any other evidence, object or documentary, which might obviate the apparent biased nature of the testimony.” (METRO MANILA TRANSIT CORPORATION (MMTC), PEDRO A. MUSA,CONRADO TOLENTINO, FELICIANA CELEBRADO and THE GOVERNMENT SERVICE INSURANCE SYSTEM vs. COURT OFAPPEALS, SPS. RODOLFO V. ROSALES and LILY R. ROSALES,G.R. No. 116617, November 16, 1998; and RODOLFO V.ROSALES, and LILY R. ROSALES vs. THE COURT OF APPEALS, METRO MANILA TRANSIT CORPORATION, (MMTC)PEDRO A. MUSA, CONRADO TOLENTINO, FELICIANA CELEBRADO and THE GOVERNMENT SERVICE INSURANCE SYSTEM, G.R. No. 126395, November 16, 1998).

DURA LEX SED LEX The law is harsh but it is the law. “ x x x This maxim enunciates the supremacy of the law. That law, however, must be an ambiguously and unequivocally clear so as to call for application, however hard or harsh its effect might be. Any interpretation of the law is restricted towards its application. x x x ” (Palo vs.Militante, 184 SCRA 395, 402 (1990); Feati Bank and Trust Company vs. Court of Appeals, 196 SCRA 576, 594 (1991); Republic vs. Court of Tax Appeals, 213 SCRA 266, 273(1992) and De la Cruz vs. Court of Appeals, G.R. No.120652, 11 February 1998 cited in page 17, Latin and French in Philippine Jurisprudence, The Lawyers Review, Vol. XII, No. 10, 31 October 1998, Mla., Phil., Atty. Baldomero S.P. Gatbonton, Jr.) (Atty. Gatbonton continues that

A progeny of dura lex is Aequetas nunquamcontravenit legis.Equity predominates over, nor contravene the law. Therefore, equity cannot soften the strictness or hardness of the law. But the law is the law. As judges, we have the duty to apply it, for all its seeming harshness, notwithstanding consideration of compassion that can at best only mitigate but not entirely condone the punishment. Yet the courts of the land are not only courts of law. They are also courts of justice and equity. At times the extreme rigor of the law may be productive of the highest injustice.

Summum jus, summa injuria. Should it arise, the injustice is remedied by ‘justice outside legality.’, which is the essence of equity. Thus, whenever equity is rightfully claimed by the destitute, the down trodden, and the disadvantaged, equity is upheld to temper the harshness of the law and to achieve compassionate justice. The clash between strict law and equity also resolved by another latin maxim. Faced with a choice between a decision that will serve justice and another that will deny it because of a too-strict interpretation of the law, we must resolve in favor of the former, for the ultimate end of the law is justice.

Bonusjudex secundum aequum et bonum judicat stricto juripraefert. This is a maxim we will follow here in ruling for the deprived and ignorant old widow.”). “The reason for this rule is that the legislature is presumed to know the meaning of the words, to have used the words advisedly and to have expressed its intent by the use of such words as are found in the statute (50 Am.Jr., p. 212).” (cited in page 58, Statutory Construction,Ruperto G. Martin, Premium Book Store, C.M. Recto, Mla.,1980, 6th ed.). Also see AEQUITAS NUNQUAM CONTRAVENIT LEGIS.

EI INCUMBIT PROBATIO QUI DICIT, NON QUI NEGAT He who asserts must prove, not he who denies (U.S. vs. de la Torre, 42 Phil. 65;Reyes vs. Manaot, 63 O.G. 76; Rosaba vs. Balili, 11637-SP, 25 Feb.1981).

EJUSDEM GENERISWhere general terms follow a particular enumeration, the general terms include all those specifically enumerated. “The purpose of the rule is to give effect to both the particular and the general words, by treating the particular words as indicating the class and the general words as including all that is embraced in said class, although not specifically named by the particular words. This is justified on the ground that if the legislature intended the general terms to be used in their unrestricted sense, it would have not made an enumeration of particular subjects but would have used only general terms. (2 Sutherland, Stat. Const.,3rd ed., pp. 395, 400). Where the statute makes use of both particular and general words, the particular words should be treated as including all that is embraced in said class. The following were imported . . . ‘one steam turbine, condensing machinery . . .’ The steam turbine was classified by customs officials under paragraph 257 letter (b) as otherwise provided for. The trial court reversed the classification . . . A turbine engine and generator, although intended for use in the generation of electricity, do not constitute a complete

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machine . . . and the component parts must, therefore, be considered separately. Such machinery is properly classified [under paragraph 257 (b)]. (Calder & Co. vs. U.S., 8 Phil. 303). When a law describes things of a particular class or kind, accompanied by words of a generic character, preceded by the word ‘other’, the generic words will be limited to things of a kindred nature with those particularly enumerated, unless there be something in the context or history of the statute to repeal such inference.

‘The accused was charged for having concealed in his possession one (1) iron bar, about 15 inches provided with an iron ball on the end and a string to the other to tie to the wrist in violation of section 26 of Act 1780 - ‘It shall be unlawful for any person to carry concealed . . . Any bowie knife, dirk, dagger, Kris, or other deadly weapon . . . ’. The accused is liable because the phrase ‘other deadly weapon, include arms which are of a different class from those particularly specified in the law. The rule of ejusdem generis cannot apply. The rule is to be resorted to only for the purpose of determining legislative intent. If the intent clearly appears from the law, and such intent is contrary to the result which would be reached by the application of the rule ejusdem generis, the latter must give way. (U.S. vs. Sto. Niño, 13 Phil. 141). A marine policy stipulated that the insurer should be liable for losses incident to the perils of the sea ‘and all other perils, losses and misfortunes that have come to the hurt, detriment, or damage of the said goods.’ Sea water entered through a defective drain pipe which was the result of ordinary use of the ship and was known to the ship-owner even before the trip started. The insurer was not liable because general terms following an enumeration of the particular risks interpreted through the maxim ejusdem generis, as those particularly mentioned and not extending the liability to risks incident to defects of the equipment. (Go Tiaco vs. Union Ins. Society of Camilon, 40Phil. 40). But where the specific things enumerated have nothing in common and vary greatly from each other, where they are of different genera, and the rule of ejusdem generis applies only where the specific words preceding the general expression are of the same nature, the meaning of the general words are unaffected by its connection with them. (Comm. of Customs vs. CTA, L-33471, 31 January 1972, 43 SCRA 192).” (Pp. 67-71, Statutory Construction,Ruperto G. Martin, Premium Book Store, C.M. Recto, Mla.,1980, 6th ed.).

EL DEUDOR DE MI DEUDOR ES DEUDOR MIOUnder Art. 1177 of the Civil Code — ACCION INDIRECTA or ACCION SUBROGATORIAIndirect or subrogatory action predicated upon the Spanish legal maxim (Syyap vs. Asian Surety & Insurance Co., 19 C.A.R. (2s) 997).

ERROR EN LA PERSONAMistake in the identity. As applied, mistake by the assailant in the identity of the person killed (People vs. Chaves,08463-CR, 03 August 1973). See also ABERRATION ICTUS.

ERROR PLACITANDI AEQUITATEM NON TOLLIT A clerical error does not take away equity. “There is in the civil law what is known as errors in fact. There is in the common law what is known as a mistake of fact. In applying the principles relating to errors in fact and a mistake of fact, the courts are guided by the maxim Error placitandi aequitatem non toll it (‘A clerical error does not take away equity’), and the maxim Error scribentis nocere non debit (‘An error made by a clerk ought not to injure; a clerical error may be corrected’). ”(RESCENCIANO INGSON vs. JUAN OLAYBAR, G.R. No.28734, December 4, 1928).

ERROR SCRIBENTIS NOCERE NON DEBIT An error made by a clerk ought not to injure. A clerical error may be corrected. “There is in the civil law what is known as errors in fact. There is in the common law what is known as a mistake of fact. In applying the principles relating to errors in fact and a mistake of fact, the courts are guided by the maxim Error placitandi aequitatem non tollit (‘A clerical error does not take away equity’), and the maxim Error scribentisnocere non debit (‘An error made by a clerk ought not to injure; a clerical error may be corrected’).” (RESCENCIANOINGSON vs. JUAN OLAYBAR, G.R. No. 28734, December 4,1928).

EXCEPTIO FIRMAT REGULUM IN CASIBUS NON EXCPETIThe mention of one thing implies the exclusion of another. The all inclusive words ‘any unmarried male’ and ‘any unmarried female’ to which are annexed certain specific, enumerated exception, exclude the operation of any other causes of disability than those mentioned in the law (In re Estate of Enriquez, 29 Phil. 167). The rule means that the mention of a thing implies the exclusion of

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another. (WallaWalla vs. Walla Water Co., 43 L. ed., p. 341). Hence, where a statute enumerates the subjects or things on which it is to operate it is to be construed as excluding all those not expressly mentioned. (Dave’s Place vs. Liquor ControlComm., 269 N.W., p. 504). And where it directs the performance of certain things in a particular way or by a particular person, it implies that it shall not be done differently or by a different person. (Martin vs. Com. of Internal Revenue, C.C.A. 61 F. 2d., p. 942). The maxim is only an auxiliary rule of construction. Its application is not universal neither is it conclusive. It is applied only as a means of discovering the legislative intent which is not manifest and should not be permitted to defeat the plainly indicative purpose of the legislature. (82C.J.S. p. 668). The maxim is not applicable if there is some special reason for mentioning one thing and none for mentioning another so that the absence of any mention of such other will not exclude it (82 C.J.S. 670). The maxim cannot be applied in this case because, as shown above, the fact that the Court of First Instance is not mentioned in the amendment, as being empowered to conduct a preliminary investigation in cases of written defamation, has nothing to-do with the amendment. It should be stressed that in construing a law, the court must look to the object to be accomplished, the evils and mischief sought to be remedied, or the purpose to be sub served, and it should give the law a reasonable or liberal construction which will best effect its purpose rather than one which will defeat it(82 C.J.S. 593). (Escribano vs. Avila, G.R. No. 30375,September 12, 1978) Where a statute lists the subjects or things on which it is to operate it is to be construed as excluding all those not expressly named (Dave’s Place vs. Liquor Control Comm.,269 N.W., p. 504). And where it directs the operation of certain things in a particular manner or by a particular person, it suggests that it shall not be done otherwise or by a different person. (Martin vs. Com. of Internal Revenue,C.C.A. 61 F. 2d., p. 942). (pp. 71 -79, Statutory Construction, Ruperto G. Martin, Premium Book Store, C.M.Recto, Mla., 1980, 6th ed. and Villanueva vs. City of Iloilo,G.R. No. L-26521, Dec. 28, 1968) Further, the maxim does not apply to words mentioned as an example or to remove doubt. (Gomez vs. Ventura, 54 Phil.726). (Ibid.). Or,

EXPRESSIO UNIUS VEL REI, EST EXCLUSIO ALTERUS— The express mention of one person or thing is the exclusion of another. This applies to the construction of statutes or documents. But caution must be exercised in applying this maxim as its application depends upon the intention of the parties as discoverable from the face of the document. As an example, if a document states that one was killed by a sharp instrument then goes on to state that he was killed by a knife, the mention of a knife excludes any other sharp instrument. (Vol. X, 31March 1996, The Lawyers Review). See also EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS and INCLUSIO UNIUS EST EXCLUSIOALTERIUS. EX MERO MOTUOf the court’s own motion; of his own accord; voluntarily and without prompting or request.

EXPLICATIO NON PETITAUnsolicited explanation. (Tayag vs.Ancheta, SP-03475, 21 May 1975). It is very surprising for one not made to explain would attempt to explain. See RES GESTAE.

EX POST FACTO LAW Law making an act criminal after its performance. Per our Constitution,ex post facto laws are: 1) statutes that make an act criminal when such act was not an offense when committed; 2) laws which, while not creating new offenses, aggravates the seriousness of a crime, or makes it greater than when it was committed; 3) laws which prescribe greater punishment for a crime already done; or 4) laws which alter the rules of evidence to make it substantially easier to convict, or authorizes conviction upon less or different testimony than the law required when the offense was committed. In In re: Kay Villegas Kami, Inc., L-32485, 22 October 1970, 35 SCRA431, the following were added: 5) assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful; 6) deprives an accused some lawful protection to which he has become entitled to, such as the protection of double jeopardy, or a proclamation of amnesty. Applying the constitutional principle, the prohibition applies only to criminal legislation which affects the substantial rights of the accused. Thus, there is no merit in a contention that a treaty’s retroactive effect with respect to crimes committed before the Treaty’s effectivity violates the prohibition of ex post facto laws. A treaty is not a criminal legislation nor a penal procedural statute. It merely provides for the extradition of those wanted for prosecution of an offense or a crime which offense or crime was already committed or consummated at the time the treaty was ratified. (Wright vs. Court of Appeals, G.R. No. 113213, 15 August1994). This only applies to penal and criminal statutes.

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EXPRESSIO UNIUS EST EXCLUSIO ALTERIUSWhat is not included is deemed excluded (Alba Patio De Makati vs. Alba Patio De MakatiEmpl. Ass., L-37922, March 1984; 128 SCRA 261). “As a rule, when the law enumerated, the enumeration is to the exclusion of others not mentioned. * * * the maxim ‘is only an auxiliary rule of statutory construction’ and ‘is not a universal application neither is it conclusive.’ * * * [It] ‘should be applied only as means of discovering legislative intent which is not otherwise manifest and should not be permitted to defeat the plainly indicative purpose of the Legislature.’ * * * ‘It does not apply when words are mentioned by way of example, or to remove doubts,’ * * * [T]he maxim cannot frustrate the ends of justice. ‘Where a statute appears on its face to limit the operation of its provisions to particular persons or things by enumerating them, but no reason exists why other x x x things not so enumerated should not have been included, and manifest injustice will follow by not so including them, the maxim * * * should not be invoked.’ ” (Primero vs. CA,179 SCRA 542 and 548-549, citing Martin, Statutory Construction, 6th ed., 1985, pp. 71-72, 79; and Gomez vs.Ventura and Board of Medical Examiners, 54 Phil. 726 and733 (1930) all cited in p. 19, Latin and French in Philippine Jurisprudence, p. 18, The Lawyers Review, Vol. XII, No. 10,31 October 1998, Mla., Phil., Atty. Baldomero S.P.Gatbonton, Jr.). Also, EXCEPTIO FIRMAT REGULUM IN CASIBUS NON EXCPETI, INCLUSIO UNIUS EST EXCLUSIO ALTERIUS and EXPRESSIOUNIUS EST EXCLUSIO ALTERIUS

EXPRESSIO UNIUS VEL REI, EST EXCLUSIO ALTERIUSThe express mention of one person or thing is the exclusion of another. This applies to the construction of statutes or documents. But caution must be exercised in applying this maxim as its application depends upon the intention of the parties as discoverable from the face of the document. As an example, if a document states that one was killed by a sharp instrument then goes on to state that he was killed by a knife, the mention of a knife excludes any other sharp instrument. (Vol. X, 31 March 1996, The Lawyers Review). Refer also to EXCEPTIO FIRMAT REGULUM IN CASIBUS NON EXCPETI and EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS.

EX PROPRIO MOTUOf his own motion; of his own accord; voluntarily and without prompting or request. Relate to SUA SPONTE and EX MERO MOTU.

EX VI TERMINIActual residence. “It is true that plaintiff's complaint should have alleged defendant’s place of actual residence, not his postal office address. The allegation of defendant’s actual residence would have been ideal to determine venue, which is plaintiff's choice of either his place of residence or that of the defendant or any of the principal defendants. ‘In procedural law, however, specifically for purposes of venue it has been held that the residence of a person is his personal, actual or physical habitation or his actual residence or place of abode, which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency, thus: ‘ . . . We lay down the doctrinal rule that the term ‘resides’ connotes ex vi termini ‘actual residence’ as distinguished from ‘legal residence or domicile’. The term ‘resides’ like the term ‘residing’ or ‘residence’ is elastic and should be interpreted in the light of the objector purpose of the statute or rule in which it is employed. . . . In other words, ‘resides’ should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay there at. . . . No particular length of time of residence is required though; however, the residence must be more than temporary’ (Emphasis supplied).” Nevertheless, the complaint clearly implies that the parties do not reside in the same city or municipality. The venue of the action is not affected by the filing of defendant’s (respondent’s) motion to dismiss stating that he also resided in Baguio City. That is not decisive to determine the proper venue.

Consequently, we rule that there is no need of prior referral of the dispute to the barangay lupon or pangkat in the absence of showing in the complaint itself that the parties reside in the same city or municipality. In thus dismissing the complaint for insufficiency of cause of action or pre-maturity, the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction, entitling petitioner to the relief prayed for. WHEREFORE, the Court hereby GRANTS the petition for certiorari and ANNULS the orders of the Regional Trial Court, Baguio City, Branch 07, dated November 20, 1997,and April 28, 1998, in Civil Case No. 3483-R. The Court orders the trial court to forthwith deny private respondent’s motion to dismiss, and proceed to the disposition of the case with all deliberate dispatch.” (ANGEL L. BOLEYLEY vs. HON. CLARENCE J. VILLANUEVA,

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Presiding Judge, Branch 7, Regional Trial Court, Baguio City, and ALBERT S. SURLA, G.R. No. 128734, September14, 1999).

FACTUM PROBANDUMFact sought to be proven. (Page 4, Evidence,Vol. 1, Ambrosio Padilla, Rex Book Store, 856 Nicanor Reyes Sr. St.,Manila). Relate to FACTUM PROBANS.

FACTUM PROBANSFact proved. Factum probandum is the proposition to be established while factum probans is the material evidencing the proposition (Page 4, Evidence, Vol. 1, Ambrosio Padilla, Rex Book Store, 856 Nicanor Reyes Sr. St., Manila). “Evidence is always a relative term. It signifies a relation between facts, the factum probandum, or proposition to be established and the factum probans, or material evidencing the proposition. The former is necessarily to be conceived of as hypothetical; it is that which the one party affirms and the other party denies, the tribunal being yet not committed on either direction. The latter is conceived of for practical purposes as existent, and is offered as such for the consideration of the tribunal. The latter is brought forward as reality for the purpose of convincing the tribunal that the former is also a reality. No correct and sure comprehension of the nature of any evidential question can ever be had unless this double or relative aspect of it is distinctly pictured. On each occasion the question must be asked, What is the proposition desired to be proved? What is the evidentiary fact offered to prove it? Part of the confusion which often is found arises from the circumstances that each evidentiary fact may in turn become a proposition to be proved, until finally some ultimate evidentiary fact is reached.

For instance, in an action against an express truck owner for misdelivery of a trunk to A instead of to B, witness M testifies to the signature of the driver on a receipt, and to an inscription of B’s address on the trunk; witness N testifies to seeing the trunk afterwards at A’s residence. The Probanda are: (1) the promise of the owner to deliver the trunk to B, and (2) the actual delivery to A. For the former probandum, the driver’s receipt and the address on the trunk are evidence; for the latter probandum , the presence of the trunk in A’sresidence is evidence.” (Page 3, Vol. VII, The Revised Rules of Court in the Philippines by Vicente J. Francisco). Relating the above to “cause of action”—only factum probandum and not the factum probans is what is required to be stated in a complaint. A cause of action, according to the 1997 Rules of Civil Procedure, “ * * * is the act or omission by which a party violates the right of another.” (Section 2, Part 1 (A), Rule 1). “A cause of action is an act or omission of one party in violation of the legal right or rights of the other, it is not evidentiary facts (Page 20, Philippine Legal Studies, Series No. 5, 1997 Rules of Civil Procedure, Justice J. Y. Feria, Central Law Book Publishing Co., Inc., 927 Quezon Ave., Q.C.); and its essential elements are legal right of the plaintiff, correlative obligation of the defendant and act or omission of the defendant in violation of said legal right (Ma-ao Sugar Central vs. Barrios, 79 Phil. 606)”. Therefore, a complaint is the hypothesis (the factum probandum) of plaintiff’s ultimate legal right, the correlative obligation of the defendant, and actor omission of the defendant in violation of said legal right stated in a concise and precise manner. See also FACTUM PROBANDUM. FALLACIA CONSEQUENTISFallacy of presuming a consequence. The equivalent of the rhetoric principle of non sequitur (Roque vs. Ericta, L-30244, 28 September 1973; 53 SCRA 164).

FALSUS IN UNO, FALSUS IN OMNIBUSFalse in one, false in all. The rule is not a mandatory rule of evidence (Evidence Annotated by Ambrosio Padilla, 1979 Ed., Vol. II, pp. 456, 530), but rather a permissible one, which allows the jury or the court to draw the inference or not to draw it as circumstances may best warrant (70 C.J.783). The rule has limitations, when the mistaken statement is consistent with good faith and is not conclusively indicative of a deliberate perversion, the believable portion of the testimony should be admitted (III Wigmore, Secs. 1009, pp. 674-683). There are, therefore, these requirements for the application of the rule, i.e., that the false testimony is as to a material point, and there should be a conscious and deliberate intention to falsify (Lyric Film vs. Rural Bank of Lucena, Inc., L-29791, 10 January 1978; 81 SCRA 85). “The Supreme Court has made it clear that a falsity in one part of a testimony does not affect and destroy the whole because the ‘trend of modern jurisprudence is that the testimony of a witness may be believed in part and disbelieved in part, depending upon the corroborative evidence and the probabilities and improbabilities of the case. It is not a positive rule of law. * * * It must be shown that the witness has ‘willfully falsified the truth on one or more material points’. Still his entire testimony is not regarded as ‘totally incredible.’ The credible parts

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are admitted as evidence. [But] the maxim is not discreditable. [The maxim] is addressed to the weight of evidence [and upon the credibility of the testimony]” (People vs. Surban,123 SCRA 218 and 236 (1983); People vs. Sotto, 275 SCRA191 and 202; People vs. Turingan G.R. No. 121628, 04 Dec.1997; People vs. Pacis, 130 SCRA 540 and 546 (1984);Naval vs. Panday, 275 SCRA 654 and 684 (1997); People vs. Dulay, 217 SCRA 132 and 151 (1993); People vs. Ramos, 188 SCRA 450 (1990), and Latin and French in Philippine Jurisprudence, p. 19, The Lawyers Review, Vol. XII, No. 10, 31 October 1998, Mla., Phil.).

Also, it was explained: “In the case of Godair vs. Ham National Bank, 80 N. E.,407, the Supreme Court of Illinois made the following very illuminating expression of the scope of the rule: ‘As to the second criticism, it has uniformly been held by this Court that the maxim, ‘falsus in uno, falsus in omnibus,’ should only be applied in cases where a witness has knowingly and willfully given false testimony. Chittenden vs. Evans, 41 Ill. 251; City of Chicago vs. Smith, 48 Ill. 107; United States Express Co. vs. Hutchings, 58 Ill. 44; Pope vs.Dodson, Id. 860; Guliher vs. People, 82 Ill. 145;Swan vs. People, 98 Ill. 610; Hoge vs. People,117 Ill. 35, 6 N. E. 796; Freeman vs. Easly, 117Ill. 317, 7 N. E. 856; Overtoom vs. Chicago & Eastern Illinois Railroad Co., 181 Ill. 323, 54 N.E. 898; Matthews vs. Granger, 196 Ill. 164, 63N. E. 658. ‘In City of Chicago vs. Smith, supra, on page 108 of 48 Ill., it was said:

‘As to the eight instructions asked by the defendant and refused, we are of opinion, under the authority of the case of Brennan vs. People, 15 Ill. 511, it should not have been given. There the court say it does not follow, merely because a witness makes an untrue statement, that his entire testimony is to be disregarded. This must depend on the motive of the witness. If he intentionally swears falsely as to one matter, the jury may properly reject his whole testimony as unworthy of credit. But, if he makes a false statement through mistake or misapprehension, they ought not to disregard his testimony altogether. The maxim, ‘falsus in uno, falsus in omnibus,’ should only be applied in cases where a witness willfully and knowingly gives false testimony. ‘And in Pope vs. Dodson, supra, on page 365 of 58 Ill.: ’

The tenth instruction in the series given for appellee is palpably erroneous. It told the jury that, if the witness Lovely, ‘has sworn falsely in any material statement,’ the jury might disregard her entire statement except so far as it was corroborated. A witness cannot be discredited simply on the ground of an erroneous statement. It is only where the statements of a witness are willfully and corruptly false in regard to material facts that the jury are authorized to discredit the entire testimony. The most candid witness may innocently make an incorrect statement, and it would be monstrous to hold that his entire testimony, for that reason, should be disregarded.’ This statement was quoted with approval in Matthews vs. Granger, supra, on page 72 of 196 Ill., on page 661 of 63 N. E. ‘In Guliher vs. People, supra, the court instructed the jury that, if they believed the defendant had ‘been contradicted on a material point,’ then the jury had the right to disregard his whole testimony unless corroborated by other testimony. The court said (page 146 of 82 Ill.): ‘the instruction was clearly erroneous. When analyzed, it plainly tells the jury that ‘if they believe, from the evidence, that Alfred F. Foote has been contradicted on a material point, then the jury have a right to disregard his whole testimony unless corroborated by other testimony.’ This is not the law. If the witness, whether defendant or otherwise, is shown, by proof, to have sworn willfully and knowingly false on any material matter, his evidence may be rejected so far as it is not corroborated. The mere fact, however, that he is contradicted as to some material matter is not enough to warrant the rejection of his evidence altogether.’. ‘In Overtoom vs. Chicago & Eastern Illinois Railroad Co., supra, the court instructed the jury that ‘if they believe any witness has testified falsely, then the jury may disregard such witness’ testimony except in so far as it may have been corroborated.’ In disposing of this instruction the court said (page 330 of 181Ill., page 901 of 54 N. E.):

‘A witness may have testified falsely upon some matter inquired about from forgetfulness or honest mistake and in such case the jury would not be authorized to disregard his entire testimony, whether corroborated or not. It is the corrupt motive, or the giving of false testimony knowing it to be false, that authorizes a jury to disregard the testimony of a witness and the court to so instruct them.’. With the above limitations of the rule in mind, it is clear that the maxim should not apply in the case at bar, for three reasons. First, there is sufficient corroboration on many grounds of the testimony. Second, the mistakes are not on the very material points. Third, the errors do not arise from an apparent desire to pervert the truth, but from innocent mistakes and the desire of the witness to exculpate himself though not completely.” (THE PEOPLE OFTHE PHILIPPINES vs.

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JUANITO DASIG, BALBINO GABUNI andMARCELINO DAYAO, G.R. No. L-5275, August 25, 1953, ENBANC).

IGNORANTIA FACTI EXCUSAT, IGNORANTIA JURIS NON EXCUSAT Ignorance of the facts excuses but not ignorance of the law. In theory every one is supposed to know the law, except children under a certain age and insane persons. Ignorance of a material fact may excuse a party from legal consequences of his conduct; as in, in the absence of fraud, money paid with full knowledge of the facts but through ignorance of the law is not recoverable, but not in ignorance of the facts. Thus, where credit was not paid in an account for a sum already paid by the plaintiff, who in mistake and in the hurry of business, paid the balance shown to be due, recovery of the over payment is allowed.(Vol. X, 31 March 1996, The Lawyers Review).

IGNORANTIA LEGIS QUOD QUISQUE SCIRE TENETUR NONEXCUSAT NEMINEMIgnorance of the law excuses no one from compliance therewith (On the Abrogation of the Compulsory Refresher Course and the Abolition of the Additional Fee of P100 Every Failure in the Bar Exams, Romeo Lozada, The Lawyers Review, 30 June 1999,Vol. XIII, No. 6). INCLUSIO UNIUS EST EXCLUSIO ALTERIUS What is excluded is deemed not included (Marcos vs. Manglapus, G.R. 88211, 15September 1989; and Acosta vs. Flor, 5 Phil. 18). Relate to EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS And EXCEPTIOFIRMAT REGULUM IN CASIBUS NON EXCPETI.

INTERPRETARE ET CONCORDARE LEGIBUS EST OPTIMUSINTERPRETANDIThe best method of interpretation is that which makes laws consistent with other laws. “Similarly, every new statute should be construed in connection with those already existing in relation to the same subject matter and all should be made to harmonize and stand together, if they can be done by any fair and reasonable interpretation. Interpretare et concordarelegibus est optimus interpretandi, which means that the best method of interpretation is that which makes laws consistent with other laws. Accordingly, courts of justice, when confronted with apparently conflicting statutes, should endeavor to reconcile them instead of declaring outright the invalidity of one against the other. Courts should harmonize them, if this is possible, because they are equally the handiwork of the same legislature.” (AKBAYAN – Youth, SCAP, UCSC, MASP, KOMPIL II – Youth, ALYANSA, KALIPI, PATRICIA O. PICAR, MYLA GAIL Z.TAMONDONG, EMMANUEL E. OMBAO, JOHNNY ACOSTA,ARCHIE JOHN TALAUE, RYAN DAPITAN, CHRISTOPHEROARDE, JOSE MARI MODESTO, RICHARD M. VALENCIA,EDBEN TABUCOL vs. COMMISSION ON ELECTIONS, G.R. No.147179, March 26, 2001, EN BANC; and MICHELLE D.BETITO, vs. CHAIRMAN ALFREDO BENIPAYO,COMMISSIONERS MEHOL SADAIN, RUFINO JAVIER,LUZVIMINDA TANCANGCO, RALPH LANTION, FLORENTINOTUASON and RESURRECCION BORRA, all of the Commission on Elections (COMELEC), G.R. No. 147066, March 26, 2001,EN BANC).

IN DUBIIS REUS EST ABSOLVENDUSAll doubts should be resolved in favor of the accused (People vs. Federico Geronimo alias Cmdr.Oscar, G.R. No. L-8936, 23 October 1956, EN BANC, 100 Phil. 90; and People vs. Ong Kee, 38 O.G. 2334). “ * * * fundamental rule of criminal law that all doubts should be resolved in favor of the accused: ‘in dubiis reus est absolvendus’;‘nullum crimen, nulla poena, sinelege.’ ”

JUS FRUENDIRight to the fruits.

JUS UTENDIRight to use.

JUS POSSIDENDIRight to possess.

LEX NEMINEM COGIT AD VANAThe law compels no one to performa useless act (Hicks vs. Manila Hotel Co., 28 Phil. 336). See also, the law requires not what is vain and useless— QUOD VANUM ET INUTILEST, LEX NON REQUIRIT. LEGIS VACUUM ABHOREST The law abhors a vacuum (Sanidad vs. Commission, L-44640, 12 Oct. 1976; 73 SCRA 453).

LOCUS STANDI

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Legal standing; standing in law. “ * * * In the deliberation on this case on 26 April 1994, we resolved to consider only these issues: (a) the locus standi of the petitioners, * * * On the first issue, seven Justices voted to sustain the locus standi of the petitioners, while six voted not to. * * * The preliminary issue on the locus standi of the petitioners should, indeed, be resolved in their favor. A party’s standing before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the importance of the issues raised. In the landmark Emergency Powers Cases , this Court brushed aside this technicality because ‘the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. (Avelino vs. Cuenco, G.R.No. L-2821). Insofar as taxpayers suits are concerned, this Court had declared that it is not devoid of discretion as to whether or not it should be entertained, or that it ‘enjoys an open discretion to entertain the same or not.’ In De LaLlana vs. Alba, this Court declared: ‘1. The argument as to the lack of standing of petitioners is easily resolved. As far as Judge de la Llana is concerned, he certainly falls within the principle set forth in Justice Laurel’s opinion in People vs. Vera [65 Phil. 56 (1937)].

Thus: ‘The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement [Ibid,89].’ The other petitioners as members of the bar and officers of the court cannot be considered as devoid of ‘any personal and substantial interest’ on the matter. There is relevance to this excerpt from a separate opinion in Aquino, Jr. v. Commission on Elections [L-40004, January 31, 1975, 62 SCRA275]: ‘Then there is the attack on the standing of petitioners, as vindicating at most what they consider a public right and not protecting their rights as individuals. This is to conjure the specter of the public right dogma as an inhibition to parties intent on keeping public officials staying on the path of constitutionalism. As was so well put by Jaffe: ‘The protection of private rights is an essential constituent of public interest and, conversely, without a well-ordered state there could be no enforcement of private rights. Private and public interests are, both in a substantive and procedural sense, aspects of the totality of the legal order.’ Moreover, petitioners have convincingly shown that in their capacity as taxpayers, their standing to sue has been amply demonstrated. There would be a retreat from the liberal approach followed in Pascual v. Secretary of Public Works, foreshadowed by the very decision of People v. Vera where the doctrine was first fully discussed, if we act differently now. I do not think we are prepared to take that step. Respondents, however, would hark back to the American Supreme Court doctrine in Mellon v. Frothingham, with their claim that what petitioners possess ‘is an interest which is shared in common by other people and is comparatively so minute and indeterminate as to afford any basis and assurance that the judicial process can act on it.’ That is to speak in the language of a bygone era, even in the United States. For as Chief Justice Warren clearly pointed out in the later case of Flast v. Cohen, the barrier thus setup if not breached has definitely been lowered.’

In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, reiterated in Basco vs. Philippine Amusements and Gaming Corporation, this Court stated: ‘Objections to taxpayers’ suits for lack of sufficient personality standing or interest are, however, in the main procedural matters. Considering the importance to the public of the cases at bar, and in keeping with the Court’s duty, under the 1987 Constitution, to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, this Court has brushed aside technicalities of procedure and has taken cognizance of these petitions.’ and in Association of Small Landowners in the Philippines,Inc. vs. Secretary of Agrarian Reform, it declared: ‘With particular regard to the requirement of proper party as applied in the cases before us, we hold that the same is satisfied by the petitioners and intervenors because each of them has sustained or is in danger of sustaining an immediate injury as a result of the acts or measures complained of. [Ex ParteLevitt, 303 US 633]. And even if, strictly speaking, they are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised. In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were invoking only an indirect and general interest shared in common with the public. The Court dismissed the objective that they were not proper parties and ruled that the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. We have since then applied this exception in many other cases.’ (Emphasis supplied) In Daza vs. Singson, this Court once more said: ‘xxx For another, we have early as in the Emergency Powers Cases that where serious constitutional questions are involved, ‘the

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transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.’ The same policy has since then been consistently followed by the Court, as in Gonzales vs. Commission on Elections [21 SCRA 774] xxx.’ The Federal Supreme Court of the United States of America has also expressed its discretionary power to liberalize the rule on locus standi. In United States vs. Federal Power Commission and Virginia Rea Association vs. Federal Power Commission, it held: ‘We hold that petitioners have standing. Differences of view, however, preclude a single opinion of the Court as to both petitioners. It would not further clarification of this complicated specialty of federal jurisdiction, the solution of whose problems is in any event more or less determined by the specific circumstances of individual situations, to set out the divergent grounds in support of standing in these cases.’ In line with the liberal policy of this Court on locus standi, ordinary taxpayers, members of Congress, and even association of planters, and non-profit civic organizations were allowed to initiate and prosecute actions before this Court to question the constitutionality or validity of laws, acts, decisions, rulings, or orders of various government agencies or instrumentalities. * * * In the 1975 case of Aquino vs. Commission on Elections, this Court, despite its unequivocal ruling that the petitioners therein had no personality to file the petition, resolved nevertheless to pass upon the issues raised because of the far-reaching implications of the petition. We did no less in De Guia vs. COMELEC where, although we declared that De Guia ‘does not appear to have locus standi, a standing in law, a personal or substantial interest,’ we brushed aside the procedural infirmity ‘considering the importance of the issue involved, concerning as it does the political exercise of qualified voters affected by the apportionment, and petitioner alleging abuse of discretion and violation of the Constitution by respondent.’ We find the instant petition to be of transcendental importance to the public. The issues it raised are of paramount public interest and of a category even higher than those involved in many of the aforecited cases. The ramifications of such issues immeasurably affect the social, economic, and moral well-being of the people even in the remotest barangays of the country and the counter-productive and retrogressive effects of the envisioned on-line lottery system are as staggering as the billions in pesos it is expected to raise. The legal standing then of the petitioners deserves recognition and, in the exercise of its sound discretion, this Court hereby brushes aside the procedural barrier which the respondents tried to take advantage of. * * * .” (Kilosbayan vs. Guingona, 232 SCRA110; also see Locus Standi or Can a Taxpayer Sue on oneLeg, The Lawyers Review, 31 May 1998, Vol. XII, Hon.Camilo D. Quiason).

MALA IN SEOffense that is inherently wrong. Compare with MALAPROHIBITA.

MALA PROHIBITAAn act made an offense by law or statute. “In non-possessory MALA PROHIBITA offenses, ‘mere performance of the prohibited act’ does not necessarily justify imposition of the penalty provided by the special law. It is essential for the court to determine whether imposition of such penalty upon the respondent will best serve the best interest of the allegedly wronged society with the noble purposes of the law. Conviction should not glorify the practice of the ‘actual wrong doer’ if he is other than the accused.” (The Malum Prohibitum Doctrine in Philippine Criminal Law, 223 SCRA 615). “The objective of retribution of a wronged society should be directed against the ‘actual . . . wrongdoer’.” (Magno vs.Court of Appeals, et al., 210 SCRA 471). Also look at— “In a string of cases, in mala prohibita, while there is no need of the criminal intent, there must be ‘knowledge’.Without the ‘knowledge’ and ‘voluntariness’ there is no crime.” (Veroy vs. Layague, 210 SCRA 97; U.S. vs. Jose andTan Bo, 34 Phil. 715).

“This Court held that: ‘The animus possidendi must be proved in opium cases where the prohibited drug was found on the premises of the accused and the same rule is applicable to the possession of firearms. The appellant denied all knowledge of the existence of the revolver, and the Government’s principal witness stated that there were a number of employees in the store. The only testimony which tends to show that the appellant had the possession or custody of this revolver is the inference drawn from the fact that it was found in his store, but we think that this inference is overcome by the positive testimony of the appellant, when considered with the fact that there were a number of employees in the store, who, of course, could have placed the revolver in the secret place where it was found without the knowledge of the appellant. At least there is a very serious doubt whether he knew of the existence of this revolver. In such case the doubt must be resolved in favor of the appellant.’ (U.S. v. Jose and Tan Bo., 34 Phil. 724[1916]) * * *

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Undeniably, the offense of illegal possession of firearms is malum prohibitum but it does not follow that the subject thereof is necessarily illegal per se. Motive is immaterial in mala prohibita but the subjects of this kind of offense may not be summarily seized simply because they are prohibited. A search warrant is still necessary. Hence, the rule having been violated and no exception being applicable, the articles seized were confiscated illegally and are therefore protected by the exclusionary principle. They cannot be used as evidence against the petitioners in the criminal action against them for illegal possession of firearms. (Roan v. Gonzales, 145 SCRA 689-690 [1986]).Besides, assuming that there was indeed a search warrant, still in mala prohibita, while there is no need of criminal intent, there must be knowledge that the same existed. Without the knowledge or voluntariness there is no crime.” (SPOUSES LEOPOLDO and MA. LUISA VEROY vs. THE HON.WILLIAM L. LAYAGUE, Presiding Judge, Branch XIV, Regional Trial Court at Davao City; and BRIG. GEN. PANTALEON DUMLAO, Commanding General, PC-Criminal Investigation Service, G.R. No. 95630, June 18, 1992.). “In the case of Gardner vs. The People (62 N.Y., 299) * ** Chief Justice Church, writing the opinion of the court, says in relation to criminal intent: ‘In short, the defense was an honest misconstruction of the law under legal advice. The court ruled out the evidence offered, and held that intentionally doing the act prohibited constituted the offense. It is quite clear that the facts offered to be shown, if true, would relieve the defendant from the imputation of a corrupt intent, and, indeed, from any intent to violate the statute. The defendants made a mistake of law. Such mistakes do not excuse the commission of prohibited acts. The rule on the subject appears to be, that in acts mala inse, the intent governs but in those mala prohibita, the only inquiry is, has the law been violated?

xxx xxx xxxThe authorities seem to establish that to sustain an indictment for doing a prohibited act, it is sufficient to prove that the act was knowingly and intentionally done.

xxx xxx xxxIn this case, if the defendants could have shown that they believed that in fact notice had been given to the inspector, although it had not, they would not have been guilty of the offense, because the intention to do the act would have been wanting. Their plea is: True, we intended to remove the inspector without notice, but we thought the law permitted it. This was mistake of law, and is not strictly a defense.

xxx xxx xxx If the offense is merely technical, the punishment can be made correspondingly nominal; while a rule requiring proof of a criminal intent to violate the statute, independent of an intent to do the act which the statute declares shall constitute the offense, would, in many cases, prevent the restraining influence which the statute was designed to secure.’ In the case of Fiedler vs. Darrin (50 N. Y., 473) the court says: ‘But when an act is illegal, the intent of the offender is immaterial.’ In the case of The Commonwealth vs. Murphy (165Mass., 66) the court says: ‘In general, it may be said that there must by malus animus, or a criminal intent. But there is a large class of cases in which, on grounds of public policy, certain acts are made punishable without proof that the defendant understands the facts that give character to his act. In such cases it is deemed best to require everybody at his peril to ascertain whether his act comes within the legislative prohibition.

xxx xxx xxxConsidering the nature of the offense, the purpose to be accomplished, the practical methods available for the enforcement of the law, and such other matters as throw light upon the meaning of the language, the question in interpreting a criminal statute is whether the intention of the legislature was to make knowledge of the facts an essential element of the offense, or to put upon everyone the burden of finding out whether his contemplated act is prohibited, and of refraining from it if it is.’ In the case of Halsted vs. The State (41 N.J.L., 552; 32Am. Rep., 247), the question of a criminal intent arose under a statute, under which the defendant was convicted of a crime, providing that if any township committee or other body shall disburse or vote for the disbursement of public moneys in excess of appropriations made for the purpose, the persons constituting such board shall be guilty of a crime. The defendant was one who violated this law by voting to incur obligations in excess of the appropriation. He was convicted and appealed and the opinion from which the quotation is taken was written upon a decision of that appeal. The court says: ‘When the State had closed, the defense offered to show that the defendant, in aiding in the passage and effectuation of the resolution which I have pronounced to be illegal, did so under the advice of counsel and in good faith, and from pure and honest motives, and that he therein exercised due care and caution.

xxx xxx xxx

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As there is an undoubted competency in the lawmaker to declare an act criminal, irrespective of the knowledge or motive of the doer of such act, there can be, of necessity, no judicial authority having the power to require, in the enforcement of the law, such knowledge or motive to be shown. In such instances the entire function of the court is to find out the intention of the legislature, and to enforce the law in absolute conformity to such intention. And in looking over the decided cases on the subject it will be found that in the considered adjudications this inquiry has been the judicial guide.’

In the case of Rex vs. Ogden (6 C. & P., 631; 25 E.C.L.,611), the prisoner was indicted for unlawfully transposing from one piece of wrought plate to another the lion-poisson contrary to the statutes. It was conceded that the act was done without any fraudulent intention. The court said: ‘There are no words in the act of Parliament referring to any fraudulent intention. The words of it are, ‘’Shall transpose or remove, or cause or procure to be transposed or removed, from one piece of wrought plate to another.’ In the case of The State vs. McBrayer (98 N.C., 623) the court stated: ‘It is a mistaken notion that positive, willful intent to violate the criminal law is an essential ingredient in every criminal offense, and that where there is an absence of such intent there is no offense; this is especially true as to statutory offenses. When the statute plainly forbids an act to be done, and it is done by some person, the law implies conclusively the guilty intent, although the offender was honestly mistaken as to the meaning of the law he violates. When the language is plain and positive, and the offense is not made to depend upon the positive, willful intent and purpose, nothing is left to interpretation.’

In the case of the Commonwealth vs. Weiss (139 Pa. St.,247), the question arose on an appeal by the defendant from a judgment requiring him to pay a penalty for a violation of the statute of the State which provided that any person would be liable to pay a penalty ‘who shall manufacture, sell, or offer or expose for sale, or have in his possession with intent to sell,’ oleomargarine, etc. At the trial the defendant requested the court to instruct the jury that if they believed, from the evidence, that the defendant did not knowingly furnish or authorize to be furnished, or knew of there being furnished, to any of his customers any oleomargarine, but, as far as he knew, furnished genuine butter, then the verdict must be for the defendant. The court refused to make the charge as requested and that is the only point upon which the defendant appealed. The court says: ‘The prohibition is absolute and general; it could not be expressed in terms more explicit and comprehensive. The statutory definition of the offense embraces no word implying that the forbidden act shall be done knowingly or willfully, and, if it did, the designed purpose of the act would be practically defeated. The intention of the legislature is plain, that persons engaged in the traffic so engage in it at their peril and that they can not set up their ignorance of the nature and qualities of the commodities they sell, as a defense.’

The following authorities are to the same effect: State vs. Gould (40 Ia., 374); Commonwealth vs. Farren (9 Allen,489); Commonwealth vs. Nichols (10 Allen, 199);Commonwealth vs. Boynton (2 Allen, 160); Wharton's Criminal Law, section 2442; Commonwealth vs. Sellers(130 Pa., 32); 3 Greenleaf on Evidence, section 21; Farrellvs. The State (32 Ohio State, 456); Beekman vs. Anthony(56 Miss., 446); The People vs. Roby (52 Mich., 577). It is clear from the authorities cited that in the act under consideration the legislature did not intend that a criminal intent should be a necessary element of the crime. The statutory definition of the offense embraces no word implying that the prohibited act shall be done knowingly or willfully. The wording is plain. The Act means what it says. Nothing is left to interpretation. Care must be exercised in distinguishing the difference between the intent to commit the crime and the intent to perpetrate the act. The accused did not consciously intend to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself—intent and all. The wording of the law is such that the intent and the act are inseparable. The act is the crime. The accused intended to put the device in his window. Nothing more is required to commit the crime.” (THEUNITED STATES vs. GO CHICO, G.R. No. 4963, September15, 1909).

MEMO CUM ALTERIUS DETRIMENTO LOCUPLETARI POTEST No person should unjustly enrich himself at the expense of another (Mercantile Insurance Co. vs. Felipe Ysmael, Jr., Inc., 169 SCRA 66, 72(1989) and Francisco vs. IAC, 181 SCRA 731, 737, (1990) cited in Latinand French in Philippine Jurisprudence, page 16, The Lawyers Review,Vol. XII, No. 10, 31 October 1998, Mla., Phil., Atty. Baldomero S.P.Gatbonton, Jr.).

MENS LEGISLATORIES

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The object or purpose of legislation. “ . . . The term (the issue in this suit is the word ‘value of property’, does it refer to market or actual ‘value’ should be construed in relation to the whole context of the statue. The true meaning of the term should be construed after ascertaining the correlated provisions and the manifest purpose and object sought to be ascertained by the enactment. Considering the purpose and object of the law, the provisions related to the one in question, the striking juxtaposition of the different qualifications in the statue, the term ‘value’ cannot but mean ‘assessed value’. When the language of a particular section of a statute admits of more than one construction, that construction which gives effect to the evident purpose and object sought to be attained by the enactment of the statute as a whole, must be followed (U.S. vs. Navarro, 19 Phil. 134). It was within the inherent power of the court of first instance ‘to control its process and orders to make them conformable to law and justice’, to heed petitioner’s plea to endorse their appeal to the Court of Appeals. Within the spirit of Rule 50, Section 3, there is no reason why, in fairness and justice, the court of first instance should not also be bound by the same rule. ‘The paucity of the language of the rule and its failure to expressly provide for such cases should not deprive petitioners of their substantive right to appeal’. Courts have been constantly cautioned against narrow interpretations which will only subvert the ends of law and justice. (Bello vs. Court of Appeals, L-38161, March 29, 1974, 56 SCRA 509)”. (p. 67,Statutory Construction, Ruperto G. Martin, Premium BookStore, C.M. Recto, Mla., 1980, 6th ed.).

NEMO DAT QUOD NON HABET No one can give what he does not have (Mercado vs. Court of Appeals, 240 SCRA 616, 621 and Noel vs.Court of Appeals, 240 SCRA 78, 88 (1995) cited in Latin and French in Philippine Jurisprudence, page 16, The Lawyers Review, Vol. XII, No. 10,31 October 1998, Mla., Phil., Atty. Baldomero S.P. Gatbonton, Jr.).

NEMO DEBET LOCULETARI EX ALTERIUS INCOMMODONo man ought to be rich at the expense of another. Refer to MEMO CUMALTERIUS DETRIMENTO LOCUPLETARI POTEST.

NEMO POTEST PLUS JURIS AD ALIUM TRANSFERRE QUAM IPSEHABET No one can transfer a greater right to another than he himself has. The spring cannot rise higher than its source. “ * * *nemo potest plus juris ad alium transferrequam ipse habet. ‘No one can transfer a greater right to another than he himself has’. Thus, in Calalang vs. Register of Deeds of Quezon City, this Court held: ‘Needless to state, all subsequent certificates of title including petitioner’s titles are void because of the legal truism that the spring cannot rise higher than its source. The law must protect and prefer the lawful owner of registered title over the transferee of a vendor bereft of any transmissible rights.’ In sum, ‘defective titles cannot be upheld against the unblemished titles of the private respondents.’ ” (SPS.SONYA & ISMAEL MATHAY, JR. vs. HON. COURT OFAPPEALS, SPS. TEODULFO & SYLVIA ATANGAN, SPS.AGUSTINA & AMOR POBLETE, SPS. EDUARDO & FELICISIMATIRONA, G.R. No. 115788, September 17, 1998 citingLorenzana Food Corporation vs. Court of Appeals, 231SCRA 713 [1994]).

Recently in Caro et al. v. Quicho et al. (G.R. No. L-31426, February 29, 1988) this Court, thru Justice Yap ruled that: ‘The order of the CFI of Sorsogon being void is no order at all. It confers no right nor does it impose any duty. ‘It neither binds nor bars anyone.’ All acts performed under a void order or judgment and all claims flowing out of it are also void, for like the spring that cannot rise above its source, a void order cannot create a valid and legally enforceably right. A fortiori the order of October 19, 1968 of the CFI of Albay directing private respondent to deliver the possession and enjoyment of Lot No. 1-C toLuz Caro, is also void’. A null and void judgment is susceptible to direct as well as collateral attack. Directly avoid judgment may be questioned thru an action for annulment or it may be attacked collaterally by assailing its validity in another action where it is invoked. This is because a judgment rendered by a court without jurisdiction has no binding force and effect (Ang Lam vs. Rosillosa, 86 Phil. 447 [1950];Abbain vs. Chua, 22 SCRA 748 [1968]).”(SIMEON ESTOESTA SR. and LUCIA ESTOESTA vs. COURT OF APPEALS, HON. EDUARDO C.TUTAAN, as Presiding Judge, Regional Trial Court of Quezon City, Branch LXXXIII; QUEZONCITY SHERIFF and his Deputy Sheriff JUANITO B.LINDO; TRINIDAD ESTOESTA and LUISVILLAMOR, G.R. No. 74817, November 8, 1989, SECOND DIVISION).

NEMO TENETUR SEIPSUM ACCUSARENo one is bound to incriminate himself (Villaflor vs. Summers, 41 Phil. 68).

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NIHIL DE RE ACCRESCIT EI QUI NIHIL IN RE QUANDO JUSACCRECERET Nothing accrues when there is no claim or nothing accrues which does not exist more so to a person with no claim (Surigao Mine vs. Harris, 68 Phil. 122). A similar doctrine, that to which a man consents cannot be considered an injury—

VOLENTI NON FIT INJURIA(The Lawyers Review, Vol. X, No. 3, 31 March 1996). “In some cases a party has no power to consent—in other words consent makes no difference. Yet generally, ** * acquiescence and consent form a good defense. For example: if [one] voluntarily releases his rights he cannot afterwards enforce them, but he must not be deceived into making the release, and in most cases some consideration or deed is necessary for the effectual giving up of a right. There is another class * * * , however, in which consent and acquiescence are important factors. [One] who contributes to an injury which he sustains is precluded from recovering damages from the other party. This is what is called as ‘contributory negligence.’ ” (Lawyers Review, Vol. X, No. 3,31 March 1996).

NON SEQUITURIt does not follow (Fernandez vs. Dimagiba, L-23638,12 October 1962; 21 SCRA 432 cited in page 632, Philippine Law Dictionary, Federico B. Moreno, 3rd ed., Vera-Reyes, Inc., Manila).

NOSCITUR A SOCIISParticular terms in a law may be ascertained by other words associated or related to it (Animal Rescue League vs. Assessors, 138 A.L.R., p. 10 cited in p. 79, Statutory Construction, Ruperto G. Martin, Premium Book Store, C.M. Recto, Mla., 1980, 6thed.). Where words of the same meaning are used together in a law, they are used in their cognate sense, to express the same relation and to give color and expression to each other. (Caltex vs. Palomar, G.R. No.L-19650, 19 Sept. 1966 cited in p. 80, Statutory Construction, RupertoG. Martin, Premium Book Store, C.M. Recto, Mla., 1980, 6th ed.).

NULLUM CRIMEN, NULLA POENA, SINE LEGEThere is no crime where there is no law punishing (POTENCIANA M. EVANGELISTA vs. THE PEOPLE OF THE PHILIPPINES and THE HONORABLE SANDIGANBAYAN, G.R. Nos. 108135-36, August 14, 2000). All doubts should be resolved in favor of the accused (People vs. Federico Geronimo alias Cmdr. Oscar, G.R. No. L-8936, 23 October1956, EN BANC, 100 Phil. 90; People vs. Ong Kee, 38 O.G. 2334): “ * * * fundamental rule of criminal law that all doubts should be resolved in favor of the accused: ‘in dubiis reusest absolvendus’;‘nullum crimen, nulla poena, sinelege.’”

NULLUS COMMODUM CAPERE POTEST DE INJURIA SUA PROPRIANo one can take advantage of his own wrong. This is “one of the primary rules of justice. Supposing, for example, that Smith contracts with Jones . . . who finds the materials are not forthcoming . . . Jones cannot sue Smith for breach of contract.” (Vol. X, 31 March 1996, The Lawyers Review). Refer also to COMMODUM EX INJURIA SUA NEMOHABERE DEBET.

NUL DECISION A decision with nothing to support it is a nullity (Edwards vs. McCoy, 22 Phil. 598; Manila vs. Agustin, G.R. No. 45844,Nov. 29, 1937, 36 O.G. 1355). Please also see QUOD NULLUM EST NULLUM PRODUCIT.

OBSTA PRINSIPIISOppose and resist beginnings (Bermudez vs. Castillo, 64 Phil. 493).

ONUS PROBANDIBurden of proof.

PER CONTRAOn the other hand (Commissioner of Customs vs.Cloribel, L-20266, 31 January 1967; 19 SCRA 235). See also A SENSUCONTRARIO and A CONVERSO.

PER SCRIPTAIn writing (Brias vs. Hord, 24 Phil. 293).

PERSONA IN JUDICIO STANDI

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A person with judicial standing, personality and capacity to sue before courts of justice or tribunals(Kander vs. Dannug, 43 O.G. 3183; 8 App. Ct. Rep. 469). Relate toLOCUS STANDI. Also see PERSONA NON JUDICIO STANDI.

PERSONA NON GRATAUnwelcome or unacceptable person (People vs. Tuggung, 13120-CR, 01 September 1973).

PERSONA NON JUDICIO STANDIWith no cause of action complainant does not have any legal standing in the proceedings against respondent (Manlapaz vs. Phil. Wireless, CV-6582, 30 May1985) and does not have any personality to be heard (Arula vs. Espino,28 SCRA 543). In contrast to

PERSONA IN JUDICIO STANDI—a person with judicial standing, personality and capacity to sue before courts of justice or tribunals (Kander vs. Dannug, 43 O.G. 3183; 8 App. Ct. Rep.469). Relate to LOCUS STANDI.

PERSON SUI JURISPerson with full legal capacity to act, or with full civil capacity, or capacity to act with judicial effects (Arsonosa vs.Uberas, 64488-R, 30 January 1981).

POSSESSION DE FACTOPhysical possession (Asset Privatization Trust vs. CA, 229 SCRA 627 [1994] and Del Rosario vs. Court of Appeals, G.R. No. 109032, 21 February 1995).

POSSESSION DE JURELegal possession or legal claim of ownership (Asset Privatization Trust vs. CA, 229 SCRA 627 [1994] and Del Rosario vs. Court of Appeals, G.R. No. 109032, 21 February 1995).

PRIMA FACIEAt first sight; on the face of it (Song Fo & Co. v. Tui CaSiong, 13 Phil. 143, cited in page 734, Philippine Law Dictionary, Federico B. Moreno, 3rd ed., Vera-Reyes, Inc., Manila).

QUA TIMET Quieting of title.

QUAE AB INITIO NON VALENT, EX POST FACTO CONVALESCERENON POSSUNT Things that are invalid from the beginning are not made valid by a subsequent act. “Moreover, that which is void ab initio such as the objectionable provisions in the Conference Committee Report, cannot be ‘cured’ or ratified. For all intents and purposes, these never existed.

QUAE AB INITIO NONVALENT, EX POST FACTO CONVALESCERE NON POSSUNT.Things that are invalid from the beginning are not made valid by a subsequent act.” (ARTURO M. TOLENTINO vs. THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL REVENUE, G.R. No. 115455, August 25, 1994, ENBANC; JUAN T. DAVID vs. TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE OCAMPO, as Secretary of Finance; LIWAYWAY VINZONS-CHATO, as Commissioner of Internal Revenue; and their AUTHORIZED AGENTS OR REPRESENTATIVES, G.R. No. 115525; RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES vs. THESECRETARY OF THE DEPARTMENT OF FINANCE; THE COMMISSIONERS OF THE BUREAU OF INTERNAL REVENUEAND BUREAU OF CUSTOMS, G.R. No. 115543; PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.;KAMAHALAN PUBLISHING CORPORATION; PHILIPPINEJOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L. DIMALANTA vs. HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of Internal Revenue; HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary; and HON. OBERTO B. DE OCAMPO, in his capacity as Secretary of Finance, G.R. No. 115544; CHAMBER OF REALESTATE AND BUILDERS ASSOCIATIONS, INC., CREBA) vs. THE COMMISSIONER OF INTERNAL REVENUE, G.R. No.115754; KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A.RIGOS, ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T.APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN,QUINTIN S. DOROMAL, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.("MABINI"), FREEDOM FROM DEBT COALITION, INC., PHILIPPINE BIBLE SOCIETY, INC., and WIGBERTO TAÑADA vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE COMMISSIONER OF INTERNAL REVENUE and THE

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COMMISSIONER OF CUSTOMS, G.R. No. 115781; PHILIPPINE AIRLINES, INC. vs. THE SECRETARY OF FINANCE, and COMMISSIONER OF INTERNAL REVENUE, G.R. No.115852; COOPERATIVE UNION OF THE PHILIPPINES vs. HON. LIWAYWAY V. CHATO in her capacity as the Commissioner of Internal Revenue, HON. TEOFISTO T.GUINGONA, JR., in his capacity as Executive Secretary, and HON. ROBERTO B. DE OCAMPO, in his capacity as Secretary of Finance, G.R. No. 115873; and PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC., and ASSOCIATION OF PHILIPPINE BOOKSELLERS vs. HON.ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON. LIWAYWAY V. CHATO, as the Commissioner of Internal Revenue and HON. GUILLERMO PARAYNO, JR., in his capacity as the Commissioner of Customs, G.R. No.115931).

QUANTUM MERUIT Payment as much as the creditor deserves(Sesbreño vs. Court of Appeals, G.R. No. 117438, 08 June 1995).

QUID SIT JUS, ET IN QUO CONSISTIT INJURIA, LEGIS EST DEFINIREWhat constitutes right, and what constitutes injury, it is the business of the law to declare (P. 1248, Black’s Law Dictionary, Henry Campbell Black, 6th ed., St. Paul Minn. West Publishing Co., 1990). QUI FACIT PER ALIUM FACIT PER SE .He who acts through another acts himself “Agency is basically personal, representative, and derivative in nature. The authority of the agent to act emanates from the powers granted to him by his principal; his act is the act of the principal if done within the scope of the authority. Qui facit per alium facit per se. ‘He who acts through another acts himself.’ (RAMON RALLOS, Administrator of the Estate of CONCEPCION RALLOS vs. FELIX GO CHAN & SONS REALTY CORPORATION and COURT OF APPEALS, G.R. No. L-24332, January 31, 1978).

QUI TACIT CONSENTERE VIDETURSilence means consent. This must be applied with caution. For example if you propose to a lady and she remains silent, you must not assume that she consents. On the contrary, the implication is that she does not, unless the silence is accompanied by acts capable of only one construction. Refer to Section 23, Rule 130, 1997 Rules of Civil Procedure. “In this case, respondent’s willful refusal to pay a just debt has been clearly established. What was said in Grefaldeo v. Lacson, therefore, applies to this case: ‘The natural instinct of man impels him to resist an unfounded claim or imputation and defend himself. It is totally against our human nature to just remain reticent and say nothing in the face of false accusations. Hence, silence in such cases is almost always construed as implied admission of the truth thereof. In the case of respondent, after the numerous opportunities given her to comment on the charges, no comment came... Consequently, we are left with no choice but to deduce her implicit admission of the charges leveled against her.

Qui tacet consentirevidetur. Silence gives consent.’ “ (NAAWANCOMMUNITY RURAL BANK represented by counsel, ATTY. IKE L. ROA vs. MERCED R.MARTINEZ, Stenographer III, Regional Trial Court, Branch 18, Cagayan de Oro City, A.M.No. P-02-1587, June 5, 2002).

QUOD TACITE INTELLIGITUR DEESE NON VIDETUREWhat is tacitly understood is not wanting.

QUOD NULLUM EST, NULLUM PRODUCIT or QUOD NULLUM EST,NULLUM PRODUCIT EFFECTUM A nullity produces no effect whatsoever (Tongcoy vs. CA, L-45645, June 28, 1987; 123 SCRA 119 and Edwards vs. McCoy, 22 Phil. 598; Manila vs. Agustin, G.R. No.45844, Nov. 29, 1937, 36 O.G. 1355). “Our land registration laws do not give the holder any better title than what he actually has. Being null and void, the sale to Eda Jimenez and the transfer of the property she made to Salimbagat and Cimafranca produced no legal effects whatsoever.

Quod nullum est, nullum producit effectum. There being no valid title to the land that EdaJimenez acquired from Lucia, it follows that no title to the same land could be conveyed by the former to Salimbagatand Cimafranca.” (Lucia Embrado and Oreste Torregiani vs.Court of Appeals, Cimafranca, Salimbaga, Jimenez and Jimenez, G.R. No. 51457, June 27, 1994). “Now, a certificate of title fraudulently secured is null and void ab initio if the fraud consisted in misrepresenting that the land is part of the public domain, although it is not. As earlier stated, the nullity arises, not from the

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fraud or deceit but, from the fact that the land is not under the jurisdiction of the Bureau of Lands. Being null and void , the free patent granted and the subsequent titles produce no legal effects whatsoever. Quod nullum est, nullum producit effectum.” (MARCELINO C. AGNE, FELIX ORIANE,AGATON TAGANAS, HILARIO ESCORPIZO, ISABELOMAURICIO, HEIRS OF ROMAN DAMASO, NAMELY: JORGE DAMASO and ALEJANDRO DAMASO, HEIRS OF FRANCISCO RAMOS, NAMELY: ENCARNACION R. LEANO and DOMINGAR. MEDRANO, HEIRS OF SABINA GELACIO AGAPITO,NAMELY: SERAPIO AGAPITO, and NICOLASA AGAPITO, FELISA DICCION AGNE, ESTANISLAO GOROSPE, LIBRADOBADUA, NICOLAS VILLANUEVA, HEIRS OF CARLOS PALADO,NAMELY: FORTUNATA PALADO and ISABELITA PALADO,PRIMITIVO TAGANAS, PANFILO SOINGCO, BERNARDO PALATTAO, MARCELINO S. SANTOS and PAULINO D. AGNE,JR. (Minor), represented by his mother FELISA DICCIONAGNE vs. THE DIRECTOR OF LANDS, PRESENTACIONAGPOON GASCON, JOAQUIN GASCON and HON. ROSALIO C.SEGUNDO, Presiding Judge, Court of First Instance of Pangasinan, Branch V, G.R. No. 40399, February 6, 1990;MARCELINO C. AGNE, FELIX ORIANE, AGATON TAGANAS(deceased), represented by FLORENTINO C. TAGANAS,FELISA DICCION AGNE, HILARIO ESCORPIZO, NICOLASVILLANUEVA, ISABELO MAURICIO, ESTANISLAO GOROSPE(deceased), represented by ELIZABETH G. BADUA andSILVINA G. VALERIO, LIBRADO BADUA, JOSE ALSISTO,SERAPIO AGAPITO, NICOLASA AGAPITO, JORGE DAMASO,ALEJANDRO DAMASO, ENCARNACION RAMOS, DOMINGARAMOS and CARLOS PALADO vs. HON. INTERMEDIATEAPPELLATE COURT, PRESENTACION AGPOON GASCON and JOAQUIN GASCON, G.R. No. 72255, February 6, 1990).

QUOD EST EX NECESSITATE NUNQUAM INTRODUCITUR, NISIQUANDO NECESSARIUMThat which is of no necessity is never introduced, unless necessary (Black’s Law Dictionary, 4th ed., H.C.Black, M.A.).

QUOD SUBINTELLIGITUR NON DEEST What is understood is not wanting.

QUOD VANUM ET INUTIL EST, LEX NON REQUIRIT The law requires not what is vain and useless (Black’s Law Dictionary, 4th. ed.).

RAISON D’ETREReason for existence. “The resolution of controversies is, as everyone knows, the raison d’etre of courts. This essential function is accomplished by first, the ascertainment of all the material and relevant facts from the pleadings and from the evidence adduced by the parties, and second, after that determination of the facts has been completed, by the application of the law thereto to the end that the controversy may be settled authoritatively, definitely and finally. It is for this reason that a substantial part of the adjective law in this jurisdiction is occupied with assuring that all the facts are indeed presented to the Court; for obviously, to the extent that adjudication is made on the basis of incomplete facts, to that extent there is faultiness in the approximation of objective justice. It is thus the obligation of lawyers no less than of judges to see that this objective is attained; that is to say, that there be no suppression, obscuration, misrepresentation or distortion of the facts; and that no party be unaware of any fact material and relevant to the action, or surprised by any factual detail suddenly brought to his attention during the trial. Seventy-one years ago, in Alonzo v. Villamor, this Court described the nature and object of litigation and in the process laid down the standards by which judicial contests are to be conducted in this jurisdiction. It said: ‘A litigation is not a game of technicalities in which one, more deeply schooled and skilled in the subtle art of movement and position entraps and destroys the other. It is, rather a contest in which each contending party fully and fairly lays before the court the facts in issue and then brushing aside as wholly trivial and indecisive all imperfections of form and technicalities of procedure, asks that justice be done on the merits. Lawsuits, unlike duels, are not to be won by a rapier’s thrust. Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts. There should be no vested right in technicalities. xxx.’ The message is plain. It is the duty of each contending party to lay before the court the facts in issue—fully and fairly; i.e., to present to the court all the material and relevant facts known to him, suppressing or concealing nothing, nor preventing another party, by clever and adroit manipulation of the technical rules of pleading and evidence, from also presenting all the facts within his knowledge.” (Fortune Corp. vs. Hon. Court of Appeals and Inter-merchants Corp., G.R. No. 108119, January 19, 1994).

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RATIO LEGISReason behind the law. In construing a law, the court must look into the spirit or the reason for it. The spirit or intention of the law prevails over the letter thereof (U.S. vs. Yee Ngee How, D.C. Ca. 105, F. Supp. 577). (Page 62,Statutory Construction, Ruperto G. Martin, Premium Book Store, C.M.Recto, Mla., 1980, 6th ed.). The law may be extended to cases which are not included within the literal meaning of the words if such cases are within the reason for the statute (U.S. vs. Freeman, 11 L. ed., p. 724). And cases within the letter of the law, but not within the spirit thereof are not within the statute (Glenn vs. Oertel Co., 97 F. 2d., p. 459). (ibid.). The reason may be imputed to the legislature which is not supported by the fact of the law itself (Mackenzie vs. Howe, 50 L. ed.,p. 297). (supra). In determining the reason for the law, recourse may be had to its preamble or title. (ibid.).

Ratio legis - is especially applicable where adherence to the letter would lead to absurdity, injustice, contradictions, or defeat the plain purpose of the act (82 C.J.S., pp. 618-620). Apparent inaccuracies and mistakes in language or phraseology will be overlooked to give effect to the spirit of the law (Case vs. Olso, 14 .W. 2d., 0. 717).(supra). “ . . . (1) As announced at the outset of this opinion, a1954 Court of Appeals decision, Buenaventura vs. Bautista, interpreting a similar provision of the old Civil Code speaks unequivocally. If the policy of the law is, in the language of the opinion of then Justice J.B.L. Reyes of that Court, ‘to prohibit donations in favor of the other consort and his descendants because of fear of undue and improper pressure and influence upon the donor, a prejudice deeply rooted in our ancient law; porque amor no se engañen despojandose el uno al otro por que han de consuno’(according to) the Partidas (Part IV, Tit. XI, Law IV), reiterating the rationale ‘Ne mutuato amore invicem spoliarentur’ of the Pandects (Book 24, Tit. l, De donat,inter virum et uxorem); then there is every reason to apply the same prohibitive policy to persons living together as husband and wife without the benefit of nuptials. . .Moreover, as already pointed out by Ulpian (in his lib. 32and Sabinum, fr. 1), ‘it would not be just that such a donation should subsist, lest the condition of those who incurred guilt turn out better . . .’; (2) It is hardly necessary to add that even in the absence of the above pronouncement, any other conclusion cannot stand the test of scrutiny. It would be to indict the framers of the Civil Code for a failure to apply a laudable rule to a situation which in its essentials cannot be distinguished. Moreover, if it is at all to be differentiated, the policy of the law which embodies a deeply rooted notion of what is right would be nullified if such irregular relationship instead of being visited with disabilities would be attended with benefits. . .what is within the SPIRIT OF THE LAW is as much a part of it as what is written . . purely literal of the language used must be remedied by an adherence to its avowed objectives. In the language of Justice Pablo: ‘El espiritu queinforma la ley debe ser la luz que ha de guiar a lostribunale en la applicacion de sus disposiciones.’ ”(Matabuena vs. Cervantes, G.R. No. L-28771, March 31,1971). “ . . . [I]t is not indulging in judicial legislation but only endeavors to rectify the clear clerical error in the wordings of the statute. Under the rule of statutory construction, it is not the letter, but the spirit of the law and intent of the legislature that is important. When the interpretation of a statute according to the exact and literal import of its words would lead to absurdity, it should be construed according to the spirit and reason, disregarding if necessary the letter of the law. ..(Lopez vs. Court of Tax Appeals, 100 Phil. 850).” (P. 66, Statutory Construction, supra).

RATIO DECIDENDI Reason for the decision.

REDDENDO SINGULA SINGULISSentence with several antecedents and several consequents, they are to be read distributively and referred to their appropriate consequents and vice versa so that each word or phrase would have its proper force and effect so that none are useless or superfluous— Transposition of words and clauses may be made when the sentence or clause is without meaning as it stands. When the intention of the legislature is clear this rule should not be applied. (2 Sutherland, Stat.Const., 3rd ed., p. 24; Crawford, Stat. Const., Sec. 194; Murray vs.State, 57 Am. Rep. 623; Harris vs. Com., 128 S.E., p. 578). (Ruperto G.Martin, Premium Book Store, C.M. Recto, Mla., 1980, 6th ed.). Relate to the

DOCTRINE OF LAST ANTECEDENT - which states that qualifying or relative words or clauses such as “which,” “said” and “such” should be applied to preceding or antecedent words, phrases or clauses and not to extend to or include more remote ones, unless a contrary intention appears. Thus, where several words are followed by

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a general expression which is applicable to the first, other words, as well as to the last, they are applicable to all. This rule is not controlling nor is it inflexible. (Philippine Long Distance Co. vs. Public Service Commission, L-26762, 29 August 1975, 66 SCRA 354 cited in page 282,Philippine Law Dictionary, Federico B. Moreno, 3rd ed.; 82 C.J.S., pp.670, 671, Sixty Pipes of Brandy, 6 L. Ed., p. 356, Alexander vs. Lamar,123, A.L.R., p. 1032 cited in pp. 87 and 88, Statutory Construction,Ruperto G. Martin, Premium Book Store, C.M. Recto, Mla., 1980, 6thed.).

RES INTER ALIOS ACTA ALTERI NOCERE NON DEBET A person ought not to be injured by the acts of others to which he is a stranger (Vol. X, 31 March 1996, The Lawyers Review). “ * * * Plainly then, petitioner was a complete stranger to this award of death benefits, or the insurance contract insuring the Ongs’ liability therefore, or any of the events giving rise to the Ongs’ claim against OIC. Petitioner cannot therefore be held liable upon such a claim, even in a subsidiary capacity.

Res inter alios acta alteri nocere non debet. ‘Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising from the contract are not transmissible by nature, orby stipulation or by provision of law. The heir is not liable beyond the value of the property he received from the decedent.’ (PIONEERINSURANCE AND SURETY CORP. vs. THE HON.WILLELMO C. FORTUN, PRESIDING JUDGE,COURT OF FIRST INSTANCE OF PANGASINAN, LINGAYEN BRANCH I, ASUNCION TORIO ONGAND BEN ONG, G.R. No. L-44959. April 15,1987). “Defense counsel correctly argues in his brief that Exhibits ‘D’ and ‘L’ are ‘incompetent and inadmissible evidence against his client, Federico Fernandez’ (p. 17 of brief) invoking the maxim res inter alios acta alteri nocere non debet embodied in section 25, Rule 130 of the Rules of Court which provides: ‘The rights of a party cannot be prejudiced by an act, declaration, or omission of another, and proceedings against one cannot affect another, except as hereinafter provided.’ It is a settled rule that an extrajudicial confession made by a defendant is admissible against him but not against his co-defendant as to whom said confession is hearsay evidence for he had no opportunity to examine the former.” (THE PEOPLE OF THE PHILIPPINES vs. CELESTINO GARILLO Y ORJEL alias CELING (deceased) and FEDERICO FERNANDEZ Y ARELLANO Alias Putol, G.R. No. L-30281,August 2, 1978, MUÑOZ PALMA, J., dissenting)

“The Solicitor General agrees with appellant Plaza. He says: ‘We submit that as against appellant Paciano Plaza the statements of the Napal brothers including the above quoted portions are inadmissible under the doctrine res inter alios acta alteri nocere non debet which means that a transaction between two person sought not to operate to the prejudice of a third person. And, the philosophy behind the maxim is that: ‘on a principle of good faith and mutual convenience, a man's own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him.(Stark on Evidence, (3d ed.) pp. 58-59; Best on Evidence, (12th ed.) p. 430.’ ” (PEOPLE OF THEPHILIPPINES vs. PACIANO M. PLAZA, SOLOMONC. NAPAL, NARCISIO C. NAPAL, CIRILO C.NAPAL, TEODORO B. JABONITE, SATURNINO P.CALAMBA, ELEONOR QUIÑONEZ, and PATRICIOT. MARTINEZ, G.R. No. L-69511. November 22,1985).

“Appellant is the owner of the ‘Excelsior’ and as such was required by law to keep a book in which he should make the entries required by the regulation of the Collector of Internal Revenue. He is charged [for failure] to make an entry for 05 January 1915, indicating whether any business was done on that day or not. The accused must be acquitted [because it undisputably appears] that he regularly employs a bookkeeper who was in complete charge of the book in which the entries referred to should have been made and that the failure to make the entry was due to the omission of the bookkeeper of which appellant knew nothing. A person should not be held criminally liable for the acts of another without his knowledge or consent, unless the law clearly so provides. Courts will not hold a person criminally responsible for the acts of another committed without his knowledge or consent, unless there is a law requiring it in so plain in terms that there is no doubt of the intention of the legislation. No person should be brought within these terms who is not clearly within them.” (U.S. vs. Abad Santos, 36 Phil. 245 cited in p. 52, Statutory Construction, Ruperto G. Martin, Premium Book Store, C.M. Recto, Mla.,1980, 6th ed. and p. 12, Criminal Law Revised Penal Code,14th ed., 1987, Ambrosio Padilla, Rex Book Store, NicanorReyes, Sr. St., Mla.).

RES GESTAE

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Equivocal act. During a startling experience the acts of a person speaks louder than words. A statement is part of res gestae if it is: (a) spontaneous; (b) it is made during, immediately prior or subsequent to a startling occurrence; and (c) it relates to the circumstances of such occurrence. (People vs. Esquilona, G.R. No.89213, 08 Sept. 1995).

Similarly, because of the circumstances, when one is required to say or do something but does not say or do so, he is impliedly guilty, as his silence is part of the res gestae, the converse of res gestae. Conversely, when circumstances do not warrant that something be said or done, but something is said and/or done, indication of guilt is impliedly and equally strong because it is anticipatory defense. A companion maxim is

QUI TACIT CONSENTIRE VIDETURSilence is consent (People vs. Moscare, 10137-R, Oct. 23, 1954). Silence must be accompanied with an equivocal act capable of only one constructionor interpretation. (Vol. X, 31 March 1996, The Lawyers Review): “His silence when asked by the Barangay Captain ‘why he had done it?’ is likewise significant. His claim that there was no admission by silence on his part since he was not given the opportunity to make a reply besides the fact that whoever asked the question was not known to him, hardly deserves consideration. ‘Silence is assent as well as consent, and may, where a direct and specific accusation of crime is made, be regarded under some circumstances as a quasi-confession. An innocent person will at once naturally and emphatically repel an accusation of crime, as a matter of self-preservation and self-defense, and as a precaution against prejudicing himself. A person’s silence, therefore, particularly when it is persistent, will justify an inference that he is not innocent’ (Underhill’s Criminal Evidence, 4th ed., p. 401).” (PEOPLEOF THE PHILIPPINES vs. PAULINO MAGDADAROY GERONA, G.R. Nos. 89370-72, May 15,1991). See ABREACTION relieving suppressed emotion; ANTE MORTEM DECLARATION, declaration during impending death, and RES IPSA LOQUITUR, the act speaks for itself. Also refer to Section 42, Rule 130of the 1997 Rules of Civil Procedure (Section 36, Rule 130, 1964, Rules of Court).

RES JUDICATABarred by prior judgment. The doctrine embraces two different concepts: (1) bar by former judgment and (2) conclusiveness of judgment. The second concept, conclusiveness of judgment, states that a fact or question which was in issue in a former suit which was there judicially passed upon and determined by a court of competent jurisdiction, is conclusively settled by the judgment therein as far as the parties to that action and persons in privity with them are concerned and cannot be again litigated in any future action between such parties or their privies, in the same court or any other court of concurrent jurisdiction on either the same or different causes of action, while the judgment remains unreversed by proper authority. It has been held that in order that a judgment in one action can be conclusive as to a particular matter in another action between the same parties or their privies, it is essential that the issue be identical. If a particular point or question is in issue in the second action, and the judgment will depend on the determination of that particular point or question, a former judgment between the same parties or their privies will be final and conclusive in the second if that same point or question was in issue and adjudicated in the first suit. Identity of cause of action is not required but merely identity of issues. (Calalang v. Register of Deeds of Quezon City, G.R. No. 76265and De Leon v. Court of Appeals, G.R. No. 83280, March 11, 1994). Also see RES JUDICATA PRO VERITATE ACCIPTUR.

RES JUDICATA PRO VERITATE ACCIPTURWhen a matter has been adjudicated in proceedings between the same parties it is settled (Vol.X, 31 March 1996, The Lawyers Review). Compare with RES JUDICATA.

RES IPSA LOQUITURThe act speaks for itself. This doctrine is stated: “ ‘Where the thing which causes injury is shown to be under the management of the defendant, and the accident, in the ordinary course of things, does not happen with proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care.’ Res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence.

The doctrine is ‘not a rule of substantive law’, but merely a ‘mode of proof’ or a ‘mere procedural convenience’. The rule is not intended to and does not dispense with the requirement

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of proof of culpable negligence. It merely determines and regulates what shall be prima facie evidence and facilitates the burden of proving breach of the duty of due care.

The doctrine can be invoked when and only when direct evidence is absent and not readily available. (Batiquin vs.CA, G.R. No. 118231, 5 July 1996). ‘ * * * to give rise to a prima facie presumption of negligence from the fact or occurrence of an injurious accident provided it is shown the (1) the defendant had the exclusive control and management of the instrumentality which caused the injury; and (2) the accident was of such character that it would not have happened [had] the defendant used proper care. The maxim is ‘not a rule of substantive law,’ but ‘a mode of proof’ or ‘mere procedural convenience.’ It is designed to lighten the plaintiff’s onus probandi in establishing negligence in the absence or unavailability of direct proof of negligence or of the exact cause of the accident. Consequently, when direct proof of negligence or of the specific cause of the accident is adduced, the presumption or the maxim cannot be invoked.* * * it has been extended to cover misfeasance of lower court judges. * * *‘misfeasance is a matter of record,’ for which the erring judge may be penalized without formal administrative proceedings.** *

[The]application is impelled by the need ‘to assert its authority to impose prompt corrective discipline), even without a formal investigation, upon erring judges whose actuations on their faces show gross incompetence, gross ignorance of the law or gross misconduct.’ * * * The facts themselves, * * * proven or admitted, were of such a character as to give rise to a strong inference that evil intent was present. Such intent, in short was clearly deducible from the record. [But] the inference does no[t] do away with the indispensable proof of facts on which it is founded, nor does it dispense with hearing the side of the respondent who may, in defense or mitigation, submit a ‘credible explanation,’ failing in which, he is held culpable without ‘further hearing.’ ” (Layugan vs. IAC, 167 SCRA363; Africa vs. Caltex, 16 SCRA 448; F.F. Cruz &Co. vs. CA, 164 SCRA 731; Garcia-Rueda vs.Pascacio, G.R. No. 118141, 05 Sept. 1997;Rodriguez vs. CA, G.R. No. 121964, 17 June1997; People vs. Valenzuela, 135 SCRA 712;Prudential Bank vs. Castro, 142 SCRA 223(1986); Cathay Pacific vs. Romillo, Jr., 142SCRA 262; Consolidated Bank vs. Capistrano, 259 SCRA 47 and 49; In re Petition for the Dismissal from Service and/or Disbarment of Judge Baltazar R. Dizon, 173 SCRA 719 and724; Makalintal vs. Teh, A.M. No. RTJ-97-1375,16 Oct. 1997; In re Request of Judge Eduardo F.Cartagena, A.M. No. 95-9-98-MCTC, 04 Dec.1997; People vs. Alvarado, 94 SCRA 576 and585 (1979); and Pilipinas vs. Tirona-Liwag, 190SCRA 834 and 845 (1990) all cited in Latin and French in Philippine Jurisprudence, p. 18, The Lawyers Review, Vol. XII, No. 10, 31 October1998, Mla., Phil., Atty. Baldomero S.P.Gatbonton, Jr.).

But “[t]he doctrine of RES IPSA LOQUITUR does not apply to criminal cases. Indeed, we [the Supreme Court] have not been cited to no case where said doctrine has ever been applied to criminal proceedings.” (People vs. Hatton, 8310-R, 11 Feb. 1953). See

ABREACTION —relieving suppressed emotion, ANTE MORTEM DECLARATION —declaration during impending death, and RES GESTAE —equivocal act.

SALUS POPULI EST SUPREMA LEX The welfare of the people is the highest law (Fabie vs. City of Manila, 21 Phil. 486, 492 (1912); Calalangvs. Williams, 70 Phil. 726, 734-735 (1940); Villacorta vs. Bernardo, 143SCRA 480, 483 (1986); and Lim vs. Pacquing, 240 SCRA 649, 676(1995) cited in page 16, Latin and French in Philippine Jurisprudence, The Lawyers Review, Vol. XII, No. 10, 31 October 1998, Mla., Phil., Atty.Baldomero S.P. Gatbonton, Jr.).

SEMPRE ET UBIQUE JUDICIAL PROCESSAdministrative action, one may be heard, not only by verbal presentation but also, sometimesmore eloquently, through pleadings. “‘Due process [in administrative law] is not sempre et ubique judicial process.’ Hence, a formal or trial type hearing is not at all times necessary. So long as a party is afforded fair and reasonable opportunity to explain his side, the requirement of due process is complied with.”(Padilla vs. Sto. Tomas, G.R. No. 109444, 31 March 31,1995).

STRICTISSIMI JURISStrictly according to the language of the law. Where the law is clear, it must be applied as found.

SUA SPONTE Voluntarily, of its own will or motion, without prompting or suggestion. “ . . . on his own motion, he also authorized their provisional release on bail, which he set at P100,000.00 for

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every accused in each criminal charge. * * * * Anent the issue on the sua sponte grant of bail, without any motion or application therefore by any of the accused and without any notice to the prosecution or any hearing conducted therein, complainants have valid cause to complain.” (Enrica B. Aguirre and Nenita A. De La Cruz vs. JudgeCandido R. Belmonte, RTC, Branch 22, Malolos, Bulacan,A.M. No. RTJ-93-1052, October 27, 1994 and Black’s Law Dictionary, Henry Campbell Black, 4th ed., 1968). “IV. This is not a simple case of a misapplication or erroneous interpretation of the law. The very act of respondent judge is altogether dismissing sua sponte the eleven criminal cases without even a motion to quash having been filed by the accused, and without at least giving the prosecution the basic opportunity or on oral argument, is not only a blatant denial or elementary due process to the Government but is palpably indicative of bad faith and partiality.” (State Prosecutors vs. JudgeManuel T. Muro, RTC, Branch 54, Manila, A.M. RTJ-92-876,September 19, 1994). Also EX MERO MOTU:

“Of his own motion; of his own accord; voluntarily and without prompting or request. * * * When a court interferes, of its own motion, to object to an irregularity, or to do something which the parties are not strictly entitled to but which will prevent injustice, it is said to act

EX MERO MOTU, or EX PROPRIO MOTU, or SUA SPONTE, all these terms being here equivalent.” (Page 575, Black’s Law Dictionary, Henry Campbell Black, 6th ed., 1990, St.Paul, Minn., West Publishing Co., U.S.A.). “In contrast, the question of the propriety of the commencement of the criminal actions is not involved herein. The issue, as earlier mentioned, refers to the propriety of the order of respondent issued ex parte which granted bail ex mero motu to the accused who were charged with nonbailable offenses, without said accused having filed a motion therefor, without notice to the prosecution, and without any hearing having been conducted to determine the strength of the prosecution’s evidence which involves an evidential quantum different from that required in preliminary investigations. Compounding the responsibility of respondent judge is the fact that the accused were not even in the custody of the law.” (Enrica B. Aguirre and Nenita A. De La Cruz vs. JudgeCandido R. Belmonte, RTC, Branch 22, Malolos, Bulacan,A.M. No. RTJ-93-1052, October 27, 1994).

SUGGESTIO FALSI EST SUPPRESIO VERIA suggestion of falsity is a suppression of the truth (Iglesia ni Cristo vs. Gironella, 106 SCRA 1, 4 (1981) and Philippine Association of Free Labor Unions (PAFLU) vs.Bureau of Labor Relations, 69 SCRA 132, 143 (1976) cited in page 16,Latin and French in Philippine Jurisprudence, The Lawyers Review, Vol.XII, No. 10, 31 October 1998, Mla., Phil., Atty. Baldomero S.P.Gatbonton, Jr.). Thus, only to suggest a falsity draws the conclusion that “FALSUS IN OMNIBUS” was committed because to suggest a falsity is perversion of the truth since the doctrine SUGGESTIO FALSI EST SUPPRESIO VERI does not specify that it applies singularly.

STARE DECISIS ET NON QUIETA MOVERELet past decisions standand do not stir what is settled (Page 16, Latin and French in Philippine Jurisprudence, The Lawyers Review, Vol. XII, No. 10, 31 October 1998,Mla., Phil., Atty. Baldomero S.P. Gatbonton, Jr.). According to Atty. Baldomero S.P. Gatbonton, Jr., Chief Justice FredRuiz interpreted the foregoing as “Follow past precedents and do not disturb what has been settled.”; and that the Supreme Court has held that “faithful adherence to precedents is the enduring cornerstone in the administration of justice” (Mansalay Catholic School vs. NLRC, 172SCRA 465, 467 (1989) and Negros Navigation Co., Inc. vs. Court of Appeals, G.R. No. 110398, 07 Nov. 1997). In the latter the Supreme Court promulgated that “stare decisis ‘works as a bar against issues litigated in the previous case.’ ” So as stare decisis would apply, according to Chief Justice Fred Ruiz, “a substantial identity of the facts of a suit is necessary. Stare decisis has given stability and consistency in the law. Legal precedents form part of our legal system, Article 8, Civil Code. (Page 16, Latin and French in Philippine Jurisprudence, The Lawyers Review, Vol. XII, No. 10, 31 October 1998,Mla., Phil.).

SUMMA JUS, SUMMA INJURIAThe rigors of the law would be the highest injustice (People vs. Gutten, 36 SCRA 180). Also, “At times the extreme rigor of the law may be productive of the highest injustice. Summum jus, summa injuria.” (Latin and French in Philippine Jurisprudence, page 17, The Lawyers Review, Vol.XII, No. 10, 31 October 1998, Mla., Phil., Atty. Baldomero S.P. Gatbonton, Jr. citing ‘People vs. Gutierrez, 36 SCRA 172, 180 (1970),involving a transfer of venue to prevent a miscarriage of justice; and Philippine Commercial Industrial Bank vs. Villalva, 48 SCRA 31, 41-42(1972), where

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‘the harshness of the iron clad application of the principle attaching full faith and credit to a Torrens certificate’ was mitigated by the higher and more fundamental principles of justice, fairness and equity: the conclusiveness of a Torrens title cannot be used ’to perpetrate fraud and chicanery.’ ” This is better understood together with the pronouncement of Justice Enrique Fernando, “The proof against him must survive the test of reason, the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility of the offense.” (PEOPLE vs. DRAMAYO,42 SCRA 59 (1971) and restated in PEOPLE vs. RAMIREZ, 69 SCRA 144(1976); PEOPLE vs. MONTERO, 76 SCRA 437 (1977); PEOPLE vs.QUIAZON, 78 SCRA 513 (1977); and PEOPLE OF THE PHILIPPINES vs.ARISTON FRANCISCO, G.R. No. L-43789, July 15, 1981).

VERBA INTENTIONI, NONE CONTRA, DEBENT INSERVIRWords should be made subservient to the intent not contrary to it. In interpreting documents courts “ * * * ascertain the intention of the parties and give effect to it.” (Vol. X, 31 March 1996, The Lawyers Review).

VIGILANTIBUS, SED NON DORMINETIBUS JURA SUBVERNIUNT The law helps the vigilant but not those who sleep on their rights. (Salandanan vs. Court of Appeals, G.R. No. 127783, June 5, 1998).

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