[G.R. Nos. 138268-69. June 15, 1999]

JURRY ANDAL et al. vs. PEOPLE OF THE PHILIPPINES, et al.

EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 15, 1999.

G.R. Nos. 138268-69 (Jurry Andal, Ricardo Andal and Edwin Mendoza vs. People of the Philippines, Regional Trial Court of Lemery, Batangas, Branch 5, The Director of Corrections and the Secretary of Justice.)

Submitted for the Court's consideration is petitioners' Omnibus Motion for Reconsideration and Stay of Execution due to Ongoing Legislative and NBI Investigation of the case if Jurry Andal, Ricardo Andal and Edwin Mendoza.

The Omnibus Motion raises the following issues:

1. That the House of Representatives subcommittee on the enhancement or protection of human rights as requested by Director Opinion of the National Bureau of Investigation is investigating the crimes

committed on other women of San Luis, Batangas, which appear similar to the crime involved in the case at bar and that the committee needs to locate the "star witness" for the prosecution Olimpio Corrales in order to aid the committee in better appreciating the case and in coming up with legislation on the matter.

2. That it is not too late to conduct a DNA testing;

3. That pre-trial identification of the accused-petitioners violated their constitutional right; and

4. That the failure of the trial counsel of the accused-petitioners to present relevant evidence in their defense violated their right to counsel.

First. The issue of an on-going Congressional investigation of crimes allegedly similar to the one charged against the accused-petitioners, being committed on the women of San Luis, Batangas is irrelevant hereto. Such investigation will not affect the final and executory judgment of this Court. The on-going investigation is based on suspicious and suppositions that cannot overturn a judgment at after a careful consideration of the evidence presented in a court of competent jurisdiction. "suspicion cannot give probative force to testimony which is itself insufficient to establish or justify an inference of a particular fact --- the sea of suspicion has no shore, and the court that embarks upon it is without rudder or compass."1 [People vs. Ganaan, 265 SCRA 260.]

Second. The proposed DNA testing of the semen found on the victim Nancy Siscar is not ground to re-open the final judgment in the case at bar. It is not

only late and the probability that it will bring about the acquittal of appellants is at best, arguable. The conviction of the accused is based on nothing less than the testimony of an aye-witness whose credibility has been passed upon by the trial court and this Court.

Indeed, we have ruled that 'a witness' testimony ought to be entitled to great weight when the accusing words are directed against a close relative."2 [Antonio vs. Court of Appeals, 273 SCRA 328.] And in the case at bar, witness Olimpio Corales is a brother-in-law of two of the accused.

Third. The issue of the violation of the constitutional rights of the accused because of the allegedly "tainted" pre-trial identification, has been addressed in our Resolution issued on May 26, 1999. We need not engage in reiterations.

Fourth. We reject the contention that the accused was denied his right to counsel because the counsel failed to present Rufino Andal as one of the witnesses for the defense. "The rule is that the client is bound by the acts, even mistakes of his counsel in the realm of procedural technique. The exception is when the negligence of the lawyer or counsel is one so gross, palpable, pervasive, reckless and inexcusable that a party may say he is deprived of his right to counsel."3 [Legarda vs. Court of Appeals, 280 SCRA 642.] There is no showing that the counsel for the accused committed such kind of negligence.

We stress that the guilt of an accused should he established beyond reasonable doubt, not beyond absolute doubt. By our applicable rules of evidence, we find that the prosecution successfully proved the guilt of the accused beyond reasonable doubt. Nonetheless petitioners may raise the

foregoing issues, especially the need for DNA test, in a plea for clemency addressed to the President of the Philippines who under the Constitution, is vested with the pardoning power.

IN VIEW WHEREOF, we resolve to DENY with finality the petitioners' motion for reconsideration and for stay of execution. We AFFIRM our Resolution of May 26, 1999. Panganiban, J., is on leave.

Very truly yours,

[G.R. No. 121980. February 23, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GONZALO PENASO @ "LULU", accused-appellant.

D E C I S I O N

QUISUMBING, J.:

On appeal is the judgment of the Regional Trial Court of Tagbilaran City, Branch 1, in Criminal Cases Nos. 6775, 6787, 6788, and 6789, promulgated on March 10, 1995, finding appellant Gonzalo Penaso guilty of rape in Criminal Case No. 6775, and imposing upon him the penalty of reclusion perpetua while acquitting him in the other cases. The fallo reads:

"PREMISES CONSIDERED, in Criminal Case No. 6775, the Court finds the accused GONZALO PENASO guilty of the crime of Rape punished under Article 335 of the Revised Penal Code and hereby sentences him to suffer an imprisonment of Reclusion Perpetua, with the accessories of the law and to pay the cost(s).

"The accused Gonzalo Penaso is hereby ordered to indemnify the complainant Basilisa Lacar in the amount of Fifty Thousand Pesos (P50,000.00) representing indemnity and moral damages, without subsidiary imprisonment in case of insolvency.

"It appearing that the accused Gonzalo Penaso has undergone preventive imprisonment he is entitled to the full time of his preventive imprisonment to be deducted from his term of sentence if he has executed a waiver otherwise he will only be entitled to 4/5 of the time he has undergone preventive imprisonment to be deducted from the term of sentence if he has not executed a waiver.

"In Criminal Cases Nos. 6787, 6788 and 6789 the accused Gonzalo Penaso is hereby ACQUITTED of the crimes charged, with cost(s) de officio.

"SO ORDERED."1 [Records, p. 114.]

The facts of this case, as culled from the records, are as follows:

On April 16, 1990, private complainant, assisted by her mother Rosalina Lacar, filed with the 8th Municipal Circuit Trial Court of Candijay-Anda, Bohol, a complaint for multiple rape, docketed as Criminal Case No. 372, stating:

"That on the 16th of November 1989 at about 9:00 in the morning more or less, particularly in the house of the accused Gonzalo Penaso, when I, the victim Basilisa Lacar was there to borrow a book from my classmate which (sic) is the daughter of the accused, did then and there, willfully, unlawfully and felonuously (sic) with the use of superior strenght (sic) and intimidation, pulled me forcibly and boxed my abdomen and once in the state of almost unconcious have carnal knowledge and to the effect caused me to bleed for he had broken through my virginity, and threatens me of killing if I tell of what had happened, to my parents, and repeated the same to my person

with the same threats one week after, and repeated on the third and fourth time on the month of January 1990 in the fear that he might kill me once I told everything to my parents, and as a result of his devil(ish) act caused me to have an unwanted pregnancy of an unwanted child, to the damage and prejudices to myself and to my parents.

"ACT CONTRARY TO LAW."2 [Id. at 1.]

Following the preliminary investigation on April 25, 1990, the municipal circuit court issued an order for the arrest of the accused who, by then, had left Bohol for Misamis Oriental.

Meanwhile, on July 10, 1990, appellant was arrested in Magsaysay, Misamis Oriental, for illegal possession of firearms. Notwithstanding the warrant of arrest for rape against him, he posted bail for the case for which he was arrested, and then he disappeared.

On July 16, 1990, private complainant gave birth to a baby boy.

In August 1990, private complainant filed three additional complaints for rape with the circuit court, docketed as Criminal Case Nos. 397,3 [Exhibit "B", Exhibit "3", Index of Exhibits, p. 2.] 398,4 [Exhibit "C", Exhibit "4", Id. at 5.] and 399.5 [Exhibit "D", Exhibit "5", Id. at 8.] These rapes allegedly took place in November and December 1989. She likewise amended her complaint in Criminal Case No. 372, limiting it to just one charge of rape allegedly committed on November 16, 1989.6 [Supra Note 1, at 63.]

On August 27, 1990, the Provincial Prosecutor of Bohol filed an information for the first rape complained of, to wit:

"That on or about the 16th day of November, 1989, in the municipality of Candijay, Province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with lewd designs using force and intimidation, did then and there willfully, unlawfully and feloniously succeed in having sexual intercourse with the offended party one Basilisa Jugarap Lacar, a 15 years old girl, against her will and without her consent, to the damage and prejudice of the offended party and her parents in the amount to proved during the trial.

"Acts committed contrary to the provisions of Article 335 of the Revised Penal Code as amended by Republic Act(s) 2632 and 4111."7 [Id. at 17.]

The case was docketed as Criminal Case No. 6775 in the RTC of Tagbilaran City and raffled to Branch 1 of said court.

On September 3, 1990, the Provincial Prosecutor filed with the RTC three additional informations docketed as Criminal Cases Nos. 6787, 6788, and 6789. Except as to the dates of the incidents complained of, the informations in these three cases were virtually identical to the information in Criminal Case No. 6775.

On April 17, 1991, appellant was arrested in Magallanes, Agusan del Norte.

On May 5, 1991, appellant escaped from his police escort in Cebu City while being transported from Agusan del Norte to Bohol.8 [Id. at 41.]

In March 1993, police operatives in Cagayan de Oro City finally apprehended appellant.

When arraigned, appellant pleaded not guilty to the four counts of rape. The cases were consolidated and trial on the merits ensued. Appellant raised the defenses of denial and alibi.

After trial, the court summarized its factual findings as follows:

"a) That on November 16, 1989 at 9:00 oclock in the morning at the house of the accused Gonzalo Penaso (Criminal Case No. 6775) the complainant Basilisa Lacar who was then fifteen years old knocked at the door of the house of the aforementioned accused Gonzalo Penaso who opened the door and upon inquiry whether his daughter, who was a classmate of complainant, was present which the latter told the complainant that her (sic) daughter was in the kitchen when in fact and in truth his daughter was out;

"b) That the accused Gonzalo Penaso forcibly pulled the complainant Basilisa Lacar and pushed her into the bamboo bed and boxed the abdomen of the complainant Basilisa Lacar and subsequently took off her panty and inserted his penis into the vagina of the complainant Basilisa Lacar causing it to bleed;

"c) That the accused Gonzalo Penaso warned the complainant Basilisa Lacar not to report to her parents otherwise he would kill her;

"d) That the complainant reported the incident to her parents after the accused Gonzalo Penaso escaped to avoid being arrested;

"e) That the second, third and fourth rape incidents were committed in the same place in the vicinity of Cogtong Elementary School;

"f) The defense witnesses and the accused Gonzalo Penaso vehemently denied the rape charges and interposed the defense that four men impregnated the complainant Basilisa Lacar;

"g) The first charge of rape was committed at the house of the accused Gonzalo Penaso at Cogtong, Candijay, Bohol;

"h) The second, third and fourth charges of rape were allegedly committed in the afternoon at the same premises near the Cogtong Elementary School."9 [Id. at 111-112.]

The trial court convicted appellant in Criminal Case No. 6775 and sentenced him to reclusion perpetua.

Hence, this appeal with the sole assignment of error, as follows:

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT GONZALO PENASO BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE.

In his brief, appellant assails the trial court for giving credence to private complainants account and disregarding his alibi. He submits that the rape charges against him are fabricated.

In rape cases the issue, more often than not, is the credibility of the victim. Rape is generally unwitnessed and very often the victim is left to testify for herself. Her testimony is most vital and must be received with the utmost caution.10 [People v. Domogoy, et al., G.R. No. 116738, March 22, 1999, p. 11, citing People v. Casim, 213 SCRA 390 (1992).] When a rape victims testimony is straightforward, unflawed by any material or significant inconsistency, then it deserves full faith and credit and cannot be discarded. Once found credible, her lone testimony is sufficient to sustain a conviction.11 [People v. Caratay, G.R. Nos. 119418, 119436-37, October 5, 1999, p. 8.]

In assessing the credibility of witnesses, we are guided by the following doctrinal principles:

(1) The reviewing court will not disturb the findings of the lower court unless there is a showing that it had overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that could affect the results of the case;

(2) The findings of the trial court respecting the credibility of witnesses are entitled to great respect and even finality as it had the opportunity to examine their demeanor when they testified on the witness stand; and

(3) A witness who testified in clear, positive, and convincing manner and remained consistent on cross-examination, is a credible witness.12 [People v. Vergilio Reyes, G.R. No. 113781, September 30, 1999 citing People v. Bañago,, G.R. No. 128384, June 29, 1999.]

Applying these guidelines, we find no reason to disturb the trial courts assessment of private complainants credibility. Appellant has shown no reason whatsoever for us to doubt her testimony. The records show that private complainant testified as to her ravishment in a categorical, straightforward, spontaneous, and frank manner. She positively identified appellant as her rapist. She was consistent in her narration of how she was dragged inside appellants house, boxed into submission, and ravished.13 [Records, p. 6-8.] We find that private complainant did not waiver in her account of her harrowing experience under intense and grueling cross-examination14 [TSN, August 13, 1993, pp. 12-20; TSN, August 24, 1993, pp. 3-6.] Absent any showing that the trial courts assessment of her credibility was flawed, we are bound by its findings.15 [People v. Mengote, G. R. No. 130491, March 25, 1999, p. 8.]

We also note the finding of the trial court that:

"...in the course of the first trial of the above-entitled Criminal Cases Nos. 6775, 6787, 6788 and 6789 the accused Gonzalo Penaso was smiling while the complainant Basilisa Lacar cried and was seriously and emotionally disturbed (as) characterized by anger as shown on her facial expression."16 [Records, p. 108.]

A woman who says she has been raped, as a rule, says almost all that is necessary to signify that the crime has been committed.17 [People v. Tumala, Jr., 284 SCRA 436, 439 (1998).] More so, if she was crying throughout her testimony, for we have found the same to be a badge of truthfulness.18 [People v. Mosqueda, G.R. No. 131830-34, September 3, 1999, p. 10; People v. Bea, Jr., G.R. No. 109618, May 5, 1999, p. 5; People v. Maglantay, G.R. No. 125537, March 8, 1999, p. 7; People v. Ramos, 296 SCRA 559, 570 (1998).]

Appellant argues that he could not have raped complainant on November 16, 1989 at about 9:00 0clock in the morning, since the latter was attending classes at the Bohol School of Fisheries in Cogtong, Candijay, Bohol, while he was in Sun-oc, Ubay, Bohol making banana chips. Inasmuch as they were in separate places, the rape could not have taken place. His wife and another defense witness corroborated his testimony. The latters testimony, was given scant consideration by the trial court, as said witness admitted receiving one hundred pesos (P100.00) from appellants wife before testifying. Appellant further points to the testimony of his daughter, Jonalou Penaso, who was the victims classmate, to the effect that the victim was attending classes with her at the Bohol Fisheries School at the time and date the rape took place, so it was impossible for the victim to have been at his house at that time.

We find complainants testimony credible, while appellants defenses of alibi and denial are lacking in truth and candor. Nothing is more settled in

criminal law jurisprudence than that alibi and denial cannot prevail over the positive and categorical testimony of the complainant.19 [People v. Tabion, G.R. No. 132715, October 20, 1999, p. 18; People v. Accion, G.R. Nos. 122550-51, August 11, 1999, p. 11.] Alibi is an inherently weak defense, which is viewed with suspicion and received with caution because it can easily be fabricated.20 [People v. Hivela, G.R. No. 132061, September 21, 1999, p. 5.] Denial is an intrinsically weak defense which must be buttressed with strong evidence of non-culpability to merit credibility.21 [People v. Hivela, supra. citing People v. Burce, 269 SCRA 293 (1997).] We find that despite his stance that several persons watched him demonstrate how to cook banana chips in Ubay, Bohol in the morning of November 16, 1989,22 [TSN, December 29, 1994, pp. 3-4.] appellant failed to present any disinterested witness to support his claim. For alibi to prosper, it is not enough that accused show he was elsewhere at the time the crime was committed, but there must also be clear and convincing proof that it was impossible for him to be at the locus criminis at the time of its commission.23 [People v. Agunos, G.R. No. 130961, October 13, 1999, p. 9.]

With respect to the appellants claim that the victim was attending her classes at the time she was raped, we note that complainants explanation that it was their vacant period,24 [TSN, August 13, 1993, p. 11.] was not rebutted by the defense. All told, we see no reason to depart from the rule that positive identification of the malefactor prevails over the defenses of alibi and denial.

Appellant insists that he did not get private complainant pregnant. He cites the testimony of defense witness Rafael Libres, a classmate of the victim, to the effect that complainant admitted to him that appellant had not caused her pregnancy. According to Libres, complainant identified either one Willy Guitano or a certain man from Sagumay, Candijay, Bohol as the possible father of her child. Appellant also points an accusing finger at private complainants stepfather as a possible culprit. This attempt to impugn the

victims moral character by the appellant is self-serving and unsupported by the evidence. Furthermore, the question of who sired the victims child has no bearing here, for in rape cases, the identity of the father of the victims child is not an issue, pregnancy not being an element of the crime.25 [People v. Villaluna, G.R. No. 117666, February 23, 1999, p. 14; People v. Malapo, 294 SCRA 579, 588 (1998); People v. Sta. Ana, 291 SCRA 188, 214 (1998).]

In a last-ditch effort to win an acquittal, appellant asked for a DNA test or blood test.26 [Rollo, p. 116.] We find the motion futile. As held in one case:

"The issue of "DNA tests" as a more accurate and authoritative means of identification than eye-witness identification need not be belabored. The accused were all properly and duly identified by the prosecutions principal witnessDNA testing proposed by petitioners to have an objective and scientific basis of identification of "semen samples to compare with those taken from the vagina of the victim" are thus unnecessary or are forgotten evidence too late to consider now."27 [Andal v. People, G.R. Nos. 138268-69, May 26, 1999, pp. 4-5.]

Moreover, the records show that appellant escaped from his police escort while being transported to face charges, and then remained at large for two years. His claims of abduction by the members of the New Peoples Army or by relatives of the victim are both incredible and wanting in substantive proof, given his admission that he hid out for a while with a relative in Metro Manila.28 [TSN, February 28, 1995, pp. 12-13.] Flight is an implied admission of guilt, and appellants escape betrays both his guilt and his desire to evade responsibility.29 [People v. Villanueva, 284 SCRA 501, 510 (1998).] A truly innocent person would naturally grasp the first available opportunity to defend himself and assert his innocence as to the crime imputed to him.30 [People v. Solis, 291 SCRA 529, 540 (1998).]

The prosecution has proved beyond reasonable doubt the pertinent elements of the felony of rape as defined and penalized under Article 335 of the Revised Penal Code, namely: that appellant Gonzalo Penaso had carnal knowledge of the victim against her will and through the use of force and intimidation. No reversible error can be attributed to the trial court in finding appellant guilty of rape. Hence, his conviction must be upheld.

We note, however, that the trial court awarded only P50,000.00 as indemnity and moral damages. Pursuant to current jurisprudence, the award of P50,000.00 as civil indemnity is mandatory upon the finding of the fact of rape.31 [People v. Maglente, G.R. Nos. 124559-66, April 30, 1999, p. 36.] In addition, moral damages amounting to P50,000.00 at the least should be imposed in rape cases involving young and immature girls between the ages of thirteen and nineteen, without need of further proof.32 [People v. Batoon, G.R. No. 134194, October 26, 1999, pp. 8-9.]

WHEREFORE, the appealed judgment of the court a quo finding appellant Gonzalo Penaso guilty beyond reasonable doubt of the crime of rape and sentencing him to suffer the penalty of reclusion perpetua is hereby AFFIRMED, with the MODIFICATION that CIVIL INDEMNITY in the amount of FIFTY THOUSAND PESOS (P50,000.00) and MORAL DAMAGES also in the amount of FIFTY THOUSAND PESOS (P50,000.00) should be paid by appellant to private complainant, Basilisa Lacar. Costs against appellant.

SO ORDERED.

[G.R. No. 125901. March 8, 2001]

EDGARDO A. TIJING and BIENVENIDA R. TIJING, petitioners, vs. COURT OF APPEALS (Seventh Division) and ANGELITA DIAMANTE, respondents.

D E C I S I O N

QUISUMBING, J.:

For review is the decision of the Court of Appeals dated March 6, 1996, in CA-G.R. SP No. 39056, reversing the decision of the Regional Trial Court in a petition for habeas corpus of Edgardo Tijing, Jr., allegedly the child of petitioners.

Petitioners are husband and wife. They have six children. The youngest is Edgardo Tijing, Jr., who was born on April 27, 1989, at the clinic of midwife and registered nurse Lourdes Vasquez in Sta. Ana, Manila. Petitioner Bienvenida served as the laundrywoman of private respondent Angelita Diamante, then a resident of Tondo, Manila.

According to Bienvenida in August 1989, Angelita went to her house to fetch her for an urgent laundry job. Since Bienvenida was on her way to do some marketing, she asked Angelita to wait until she returned. She also left her four-month old son, Edgardo, Jr., under the care of Angelita as she usually let Angelita take care of the child while Bienvenida was doing laundry.

When Bienvenida returned from the market, Angelita and Edgardo, Jr., were gone. Bienvenida forthwith proceeded to Angelitas house in Tondo, Manila, but did not find them there. Angelitas maid told Bienvenida that her

employer went out for a stroll and told Bienvenida to come back later. She returned to Angelitas house after three days, only to discover that Angelita had moved to another place. Bienvenida then complained to her barangay chairman and also to the police who seemed unmoved by her pleas for assistance.

Although estranged from her husband, Bienvenida could not imagine how her spouse would react to the disappearance of their youngest child and this made her problem even more serious. As fate would have it, Bienvenida and her husband reconciled and together, this time, they looked for their missing son in other places. Notwithstanding their serious efforts, they saw no traces of his whereabouts.

Four years later or in October 1993, Bienvenida read in a tabloid about the death of Tomas Lopez, allegedly the common-law husband of Angelita, and whose remains were lying in state in Hagonoy, Bulacan. Bienvenida lost no time in going to Hagonoy, Bulacan, where she allegedly saw her son Edgardo, Jr., for the first time after four years. She claims that the boy, who was pointed out to her by Benjamin Lopez, a brother of the late Tomas Lopez, was already named John Thomas Lopez.[1] She avers that Angelita refused to return to her the boy despite her demand to do so.

Bienvenida and Edgardo filed their petition for habeas corpus with the trial court in order to recover their son. To substantiate their petition, petitioners presented two witnesses, namely, Lourdes Vasquez and Benjamin Lopez. The first witness, Vasquez, testified that she assisted in the delivery of one Edgardo Tijing, Jr. on April 27, 1989 at her clinic in Sta. Ana, Manila. She supported her testimony with her clinical records.[2] The second witness, Benjamin Lopez, declared that his brother, the late Tomas Lopez, could not have possibly fathered John Thomas Lopez as the latter was sterile. He recalled that Tomas met an accident and bumped his private

part against the edge of a banca causing him excruciating pain and eventual loss of his child-bearing capacity. Benjamin further declared that Tomas admitted to him that John Thomas Lopez was only an adopted son and that he and Angelita were not blessed with children.[3]

For her part, Angelita claimed that she is the natural mother of the child. She asserts that at age 42, she gave birth to John Thomas Lopez on April 27, 1989, at the clinic of midwife Zosima Panganiban in Singalong, Manila. She added, though, that she has two other children with her real husband, Angel Sanchez.[4] She said the birth of John Thomas was registered by her common-law husband, Tomas Lopez, with the local civil registrar of Manila on August 4, 1989.

On March 10, 1995, the trial court concluded that since Angelita and her common-law husband could not have children, the alleged birth of John Thomas Lopez is an impossibility.[5] The trial court also held that the minor and Bienvenida showed strong facial similarity. Accordingly, it ruled that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person who is the natural child of petitioners. The trial court decreed:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered GRANTING the petition for Habeas Corpus, as such, respondent Angelita Diamante is ordered to immediately release from her personal custody minor John Thomas D. Lopez, and turn him over and/or surrender his person to petitioners, Spouses Edgardo A. Tijing and Bienvenida R. Tijing, immediately upon receipt hereof.

Branch Sheriff of this Court, Carlos Bajar, is hereby commanded to implement the decision of this Court by assisting herein petitioners in the

recovery of the person of their minor son, Edgardo Tijing Jr., the same person as John Thomas D. Lopez.

SO ORDERED.[6]

Angelita seasonably filed her notice of appeal.[7] Nonetheless, on August 3, 1994, the sheriff implemented the order of the trial court by taking custody of the minor. In his report, the sheriff stated that Angelita peacefully surrendered the minor and he turned over the custody of said child to petitioner Edgardo Tijing.[8]

On appeal, the Court of Appeals reversed and set aside the decision rendered by the trial court. The appellate court expressed its doubts on the propriety of the habeas corpus. In its view, the evidence adduced by Bienvenida was not sufficient to establish that she was the mother of the minor. It ruled that the lower court erred in declaring that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person,[9] and disposed of the case, thus:

IN VIEW OF THE FOREGOING, the decision of the lower court dated March 10, 1995 is hereby REVERSED, and a new one entered dismissing the petition in Spec. Proc. No. 94-71606, and directing the custody of the minor John Thomas Lopez to be returned to respondent Angelita Diamante, said minor having been under the care of said respondent at the time of the filing of the petition herein.

SO ORDERED.[10]

Petitioners sought reconsideration of the abovequoted decision which was denied. Hence, the instant petition alleging:

I

THAT THE RESPONDENT COURT OF APPEALS COMMITTED A GRAVE ERROR WHEN IT DECLARED THAT THE PETITIONERS ACTION FOR HABEAS CORPUS IS MERELY SECONDARY TO THE QUESTION OF FILIATION THAT THE PETITIONERS HAD LIKEWISE PROVEN.

II

THAT THE RESPONDENT COURT OF APPEALS ERRED IN REVERSING THE DECISION OF THE REGIONAL TRIAL COURT DISMISSING THE PETITION FOR HABEAS CORPUS AND DIRECTING THAT THE CUSTODY OF THE MINOR JOHN THOMAS LOPEZ WHO WAS PROVEN TO THE SAME MINOR AS EDGARDO R. TIJING, JR., BE RETURNED TO THE PRIVATE RESPONDENT.[11]

In our view, the crucial issues for resolution are the following:

(1) Whether or not habeas corpus is the proper remedy?

(2) Whether or not Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person and is the son of petitioners?

We shall discuss the two issues together since they are closely related.

The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.[12] Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of his own free will. It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose of determining the right of custody over a child.[13] It must be stressed too that in habeas corpus proceedings, the question of identity is relevant and material, subject to the usual presumptions including those as to identity of the person.

In this case, the minors identity is crucial in determining the propriety of the writ sought. Thus, it must be resolved first whether the Edgardo Tijing, Jr., claimed by Bienvenida to be her son, is the same minor named John Thomas Lopez, whom Angelita insists to be her offspring. We must first determine who between Bienvenida and Angelita is the minors biological mother. Evidence must necessarily be adduced to prove that two persons, initially thought of to be distinct and separate from each other, are indeed one and the same.[14] Petitioners must convincingly establish that the minor in whose behalf the application for the writ is made is the person upon whom they have rightful custody. If there is doubt on the identity of the minor in whose behalf the application for the writ is made, petitioners cannot invoke with certainty their right of custody over the said minor.

True, it is not the function of this Court to examine and evaluate the probative value of all evidence presented to the concerned tribunal which formed the basis of its impugned decision, resolution or order.[15] But since the conclusions of the Court of Appeals contradict those of the trial court, this Court may scrutinize the evidence on the record to determine which findings should be preferred as more conformable to the evidentiary facts.

A close scrutiny of the records of this case reveals that the evidence presented by Bienvenida is sufficient to establish that John Thomas Lopez is actually her missing son, Edgardo Tijing, Jr.

First, there is evidence that Angelita could no longer bear children. From her very lips, she admitted that after the birth of her second child, she underwent ligation at the Martinez Hospital in 1970, before she lived with Tomas Lopez without the benefit of marriage in 1974. Assuming she had that ligation removed in 1978, as she claimed, she offered no evidence she gave birth to a child between 1978 to 1988 or for a period of ten years. The midwife who allegedly delivered the child was not presented in court. No clinical records, log book or discharge order from the clinic were ever submitted.

Second, there is strong evidence which directly proves that Tomas Lopez is no longer capable of siring a son. Benjamin Lopez declared in court that his brother, Tomas, was sterile because of the accident and that Tomas admitted to him that John Thomas Lopez was only an adopted son. Moreover, Tomas Lopez and his legal wife, Maria Rapatan Lopez, had no children after almost fifteen years together. Though Tomas Lopez had lived with private respondent for fourteen years, they also bore no offspring.

Third, we find unusual the fact that the birth certificate of John Thomas Lopez was filed by Tomas Lopez instead of the midwife and on August 4, 1989, four months after the alleged birth of the child. Under the law, the attending physician or midwife in attendance at birth should cause the registration of such birth. Only in default of the physician or midwife, can the parent register the birth of his child. The certificate must be filed with the local civil registrar within thirty days after the birth.[16] Significantly, the birth certificate of the child stated Tomas Lopez and private respondent were legally married on October 31, 1974, in Hagonoy, Bulacan, which is false because even private respondent had admitted she is a common-law wife.[17] This false entry puts to doubt the other data in said birth certificate.

Fourth, the trial court observed several times that when the child and Bienvenida were both in court, the two had strong similarities in their faces, eyes, eyebrows and head shapes. Resemblance between a minor and his alleged parent is competent and material evidence to establish parentage.[18] Needless to stress, the trial courts conclusion should be given high respect, it having had the opportunity to observe the physical appearances of the minor and petitioner concerned.

Fifth, Lourdes Vasquez testified that she assisted in Bienvenidas giving birth to Edgardo Tijing, Jr., at her clinic. Unlike private respondent, she presented clinical records consisting of a log book, discharge order and the signatures of petitioners.

All these considered, we are constrained to rule that subject minor is indeed the son of petitioners. The writ of habeas corpus is proper to regain custody of said child.

A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test[19] for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage.[20] Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge.[21] Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress.[22] Though it is not necessary in this case to resort to DNA testing, in future it would be useful to all concerned in the prompt resolution of parentage and identity issues.

WHEREFORE, the instant petition is GRANTED. The assailed DECISION of the Court of Appeals is REVERSED and decision of the Regional Trial Court is REINSTATED. Costs against the private respondent.

SO ORDERED.

People v. Vallejo, GR No. 144656, May 09, 2002

G.R. No. 161434 March 3, 2004

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR. vs.COMELEC, FPJ and VICTORINO X. FORNIER,

G.R. No. 161634 March 3, 2004

ZOILO ANTONIO VELEZ vs.FPJ

G. R. No. 161824 March 3, 2004

VICTORINO X. FORNIER, vs. HON. COMMISSION ON ELECTIONS and FPJ

Facts:

Petitioners sought for respondent Poe’s disqualification in the presidential elections for having allegedly misrepresented material facts in his (Poe’s) certificate of candidacy by claiming that he is a natural Filipino citizen despite his parents both being foreigners. Comelec dismissed the petition, holding that Poe was a Filipino Citizen. Petitioners assail the jurisdiction of the Comelec, contending that only the Supreme Court may resolve the basic issue on the case under Article VII, Section 4, paragraph 7, of the 1987 Constitution.

Issue:

Whether or not it is the Supreme Court which had jurisdiction.

Whether or not Comelec committed grave abuse of discretion in holding that Poe was a Filipino citizen.

Ruling:

1.) The Supreme Court had no jurisdiction on questions regarding “qualification of a candidate” for the presidency or vice-presidency before the elections are held.

"Rules of the Presidential Electoral Tribunal" in connection with Section 4, paragraph 7, of the 1987 Constitution, refers to “contests” relating to the election, returns and qualifications of the "President" or "Vice-President", of the Philippines which the Supreme Court may take cognizance, and not of "candidates" for President or Vice-President before the elections.

2.) Comelec committed no grave abuse of discretion in holding Poe as a Filipino Citizen.

The 1935 Constitution on Citizenship, the prevailing fundamental law on respondent’s birth, provided that among the citizens of the Philippines are "those whose fathers are citizens of the Philippines."

Tracing respondent’s paternal lineage, his grandfather Lorenzo, as evidenced by the latter’s death certificate was identified as a Filipino Citizen. His citizenship was also drawn from the presumption that having died in 1954 at the age of 84, Lorenzo would have been born in 1870. In the absence of any other evidence, Lorenzo’s place of residence upon his death in 1954 was presumed to be the place of residence prior his death, such that Lorenzo Pou would have benefited from the "en masse Filipinization" that the Philippine Bill had effected in 1902. Being so, Lorenzo’s citizenship would have extended to his son, Allan---respondent’s father.

Respondent, having been acknowledged as Allan’s son to Bessie, though an American citizen, was a Filipino citizen by virtue of paternal filiation as evidenced by the respondent’s birth certificate. The 1935 Constitution on

citizenship did not make a distinction on the legitimacy or illegitimacy of the child, thus, the allegation of bigamous marriage and the allegation that respondent was born only before the assailed marriage had no bearing on respondent’s citizenship in view of the established paternal filiation evidenced by the public documents presented.

But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in relation to Section 74 of the Omnibus Election Code.