THIRD
DIVISION
PEOPLE
OF THE PHILIPPINES,
laintiff-Appellee,
G. R. No. 118607
March 4, 1997
-versus-
JULITO
FRANCO y TIANSON,
Accused-Appellant.
D
E C I S I O N
FRANCISCO, J.:
Appellant
Julito Franco y Tianson was
charged with[1]
and convicted[2]
of the crime of Robbery with Homicide.[3]
He was sentenced to reclusion perpetua and directed to
indemnify
Dunkin' Donuts and the heirs of Aurelio Cuya, in the amounts of
P12,000.00
and P30,000.00, respectively. Contending "that the trial court erred in
convicting him [based] on evidence illegally obtained",[4]
appellant now interposes this appeal. For its part, the Solicitor
General
recommended appellant's acquittal on the ground that "his guilt was not
proven beyond reasonable doubt."[5]
The appeal is
impressed with merit.cralaw:red
Quoted hereunder
is the narration of the factual
antecedents of this case, as summarized by the Solicitor General in its
Manifestation,[6]
and duly supported by the evidence on record:
On August 9, 1991
at around 6:45 a.m., Angelo
Tongko, then an employee of Dunkin' Donuts located at Quintin Paredes
[Street],
Binondo, Manila, discovered the lifeless body of Aurelio Cuya, a
security
guard of the said establishment [T.S.N., Nov. 19, 1991, pp. 2-3]. Upon
discovery of the lifeless body, Tongko informed his co-workers, [Ibid,
p. 3] who then reported the matter to the police [Ibid, p. 3].
Upon investigation by the police, the branch
supervisor of Dunkin' Donuts informed the police that the total sales
of
the establishment on August 8, 1991 in the amount of P10,000.00 and
which
was allegedly kept in the safety locker in the same place where the
dead
body was found, was missing [Ibid, p. 7, Exh. K]. The supervisor
of the security agency where the victim was employed also informed the
police that he suspected the appellant as the culprit [Ibid, p.
15, Exh. K]. Acting on this allegation by the supervisor, the police
proceeded
to the place of appellant and were able to interview Maribel Diong ["Diong"]
and Hilda Dolera ["Dolera"] [Ibid, p. 15; Exh. L]. The
police
then tried to convince Diong and Dolera, who allegedly told the police
that appellant allegedly confessed to them that he killed somebody in
the
evening of August 8, 1991 [ibid]. Diong and Dolera were not
presented
in court to substantiate their affidavits.cralaw:red
Based on the
alleged statements of Diong and Dolera,
the police formed a team to apprehend the appellant who allegedly had
an
agreement to meet Dolera [Exh. L]. On August 10, 1991, appellant was
apprehended
by the police in front of Jollibee Restaurant in Caloocan City [ibid,
pp. 9, 16]. Allegedly recovered from the appellant were the amount of
P2,415.00
and one handgun which was in his cousin's residence [ibid, p.
16].cralaw:red
Thereafter,
appellant was brought to the police
headquarters where his confession [Exh. N] was taken on August 12, 1991
allegedly on his free will and with the assistance of a lawyer [Ibid,
pp. 13-14]. A booking and arrest report was also prepared by Pat.
Nestor
Napao-it on August 12, 1991 [Exh. J].[7]
The trial court
convicted the appellant on the
basis principally of his alleged extra-judicial confession.[8]
This is evident from the assailed decision which even quoted the
pertinent
portions of the aforementioned extra-judicial confession.[9]
But gospel truth as it may seem, We cannot stamp with approval the
trial
court's undue consideration and reliance on this extra-judicial
confession
for, as the records reveal, the same was not offered in evidence by the
prosecution.[10]
Neither were its contents recited by the appellant in his testimony.[11]
It was a grave error for the trial court, therefore, to have considered
the same, let alone be the basis of appellant's conviction.cralaw:red
We, thus,
reiterate the rule that the court shall
consider no evidence which has not been formally offered.[12]
So fundamental is this injunction that litigants alike are corollarily
enjoined to formally offer any evidence which they desire the court to
consider.[13]
Mr. Chief Justice Moran explained the rationale behind the rule in this
wise:
The offer is necessary because it is the
duty
of a judge to rest his findings of facts and his judgment only and
strictly
upon the evidence offered by the parties to the suit.[14]
It cannot be
argued either that since the extra-judicial
confession has been identified and marked as Exhibit "N" by the
prosecution
in the course of the cross-examination of the appellant,[15]
then it may now be validly considered by the trial court. Indeed, there
is a significant distinction between identification of documentary
evidence
and its formal offer.[16]
The former is done in the course of the trial and is accompanied by the
marking of the evidence as an exhibit, while the latter is done only
when
the party rests its case. Our settled rule incidentally is that the
mere
fact that a particular document is identified and marked as an exhibit
does not mean that it has thereby already been offered as part of the
evidence
of a party.[17]
From the records,
it appears that not a single
person witnessed the incident. In fact, aside from the testimony of
police
investigator Pat. Nestor Napao-it, none of the other three prosecution
witnesses, to wit: (1) Angelo Tongko, a Dunkin' Donut employee who
testified
to have found the body of Aurelio Cuya inside the supervisor's room of
the establishment in the early morning of August 9, 1991,[18]
(2) Dr. Marcial Cenido. the physician who autopsied the body of Aurelio
Cuya, and who testified on the cause of the latter's death;[19]
and (3) Teresita Cuya, the wife of Aurelio Cuya who testified on the
civil
aspect of the case,[20]
ever imputed, directly or indirectly, to the appellant the commission
of
the crime. With respect to the testimony of Pat. Nestor Napao-it,[21]
there is no dispute that his testimony on the conduct of investigation
is admissible in evidence because he has personal knowledge of the same.[22]
However, his testimony on appellant's alleged separate
confession/admission
to Hilda Dolera and Maribel Diong, which the trial court invariably
considered
in its decision as establishing the truth of the facts asserted
therein,
is hearsay. In the terse language of Woodroffes, said testimony is "the
evidence not of what the witness knows himself but of what he has heard
from others".[23]
And whether objected to or not, as in this case, said testimony has no
probative value.[24]
To repeat, the failure of the defense to object to the presentation of
incompetent evidence, like hearsay, does not give such evidence any
probative
value.cralaw:red
Anent the issue
of admissibility of Exhibits "F"[25]
and "G"[26]
original and additional sworn statements of Maribel Diong, and Exhibits
"H"[27]
and "I"[28]
original and additional sworn statements of Hilda Dolera, it assumes
significance
to note that their admission in evidence has been seasonably objected
to
by the appellant on the ground that they are hearsay.[29]
The trial court nonetheless admitted them "as part of the testimony of
Pat. Nestor Napao-it".[30]
While We agree that these exhibits are admissible in evidence, their
admission
should be for the purpose merely of establishing that they were in fact
executed.[31]
They do not establish the truth of the facts asserted therein.[32]
In this case, Our reading of the assailed decision, however, reveals
that
the foregoing exhibits were undoubtedly considered by the trial court
as
establishing the truth of the facts asserted therein. And herein lies
another
fatal error committed by the trial court because, without Maribel Diong
and Hilda Dolera being called to the witness stand to affirm the
contents
of their sworn statements, the allegations therein are necessarily
hearsay[33]
and, therefore, inadmissible. A contrary rule would render nugatory
appellant's
constitutional right of confrontation which guarantees him the right to
cross-examine the witnesses for the prosecution.cralaw:red
Truly, it is Our
policy to accord proper deference
to the factual findings of the court below especially when the issue
pertains
to credibility of witnesses. But no such issue is involved here.
Instead,
the principal issue raised herein is whether or not the evidence
adduced
by the prosecution are sufficient to overcome appellant's
constitutional
right to be presumed innocent. We believe in the negative, hence, We
acquit.cralaw:red
WHEREFORE, the
decision of the Regional Trial
Court of Manila, Branch 33, convicting the appellant of the crime of
robbery
with homicide is reversed. Appellant Julito Franco y Tianson is hereby
acquitted and his immediate release from prison is ordered unless he is
being held on other legal grounds. No costs.cralaw:red
SO ORDERED.cralaw:red
Narvasa, C.J.,
Davide, Jr., Melo and Panganiban,
JJ., concur.cralaw:red
______________________________
Endnotes
[1]
Information dated August 15, 1991; Record, p.1
[2]
Regional Trial Court of Manila [RTC], Branch 33; Decision dated
December
9, 1992, penned by Judge Rodolfo G. Palattao; Rollo, pp. 12-19.
[3]
Defined and penalized under Article 294 par. [1] of the Revised Penal
Code.
[4]
Memorandum for the Accused-Appellant dated September 23, 1995, p. 14;
Rollo,
p. 45.
[5]
Manifestation, dated January 25, 1996, p. 20; Rollo, p.77.
[6]
Rollo, pp. 59-78.
[7]
Id.; Rollo, pp. 60-61.
[8]
Appellant was then assisted by Atty. Apolinario Marasigan of the Public
Attorneys Office.
[9]
RTC decision, p. 6; Rollo, p. 17.
[10]
See TSN, Teresita Cuya, January 21, 1992, pp. 3-5.
[11]
See Tabuena v. C.A., 196 SCRA 650 [1991].
[12]
Rules of Court, Rule 132, Sec. 34.
[13]
De Castro v. CA, et. al., 75 Phil 834, citing Ayala v. Valencia, 5
Phil.
182.
[14]
Comments on the Rules of Court, Vol. 6, 1980 edition, p. 123, citing
U.S.
v. Solana, 33 Phil. 582 and Dayrit v. Gonzales, 7 Phil. 182.
[15]
TSN, Julito France, August 4, 1992, p. 20.
[16]
Republic of the Philippines v. Sandiganbayan, G. R. Nos. 112708-09,
March
29, 1996, citing People v. Santito, Jr., 201 SCRA 87, 95 [1991]; People
v. Sayat, 223 SCRA 285, 296 [1993]
[17]
People v. Gecomo, 254 SCRA 82, 101 [1996]; Tabuena v. CA, 196 SCRA 650,
654 [1991].
[18]
His testimony was cut-short by Prosecutor Formoso because, as the trial
court observed, the robbery aspect of the crime cannot be established
through
his testimony [TSN, Angelo Tongko, November 19, 1991, pp. 3 and 5].
[19]
TSN, Marcial Cenido, January 7, 1991, pp. 3-4.
[20]
TSN, Teresita Cuya, January 21, 1991, pp. 1-3.
[21]
In the course of his testimony the following exhibits were marked, and
therefore, considered part of his testimony: (1) Exhibit "J"
Booking
Sheet and Arrest Report; (2) Exhibit "K" Advance Information
Report;
and (3) Exhibits "L" and "M" Progress Reports.
[22]
Rule 130, Section 36. Testimony generally confined to personal
knowledge;
hearsay excluded. A witness can testify only to those facts which
he knows of his personal knowledge; that is, which are derived from his
own perception, except as otherwise provided in these rules.
[Emphasis
ours].
[23]
Woodrofles, Law on Evidence, 9th Edition, p. 512.
[24]
People v. Abelardo Parungao, G. R. No. 125812, November 28, 1996;
People
v. Ronnie Villaviray and Edgar Gutierrez, G. R. No. 105084, September
18,
1996; Philippine Home Assurance Corp. v. CA et. al., G. R. No. 106999,
June 20, 1996; People v. Cabintoy, 247 SCRA 442 [1995]; Baguio v. CA,
226
SCRA 3660 [1993]; People v. Damaso, 212 SCRA 547 [1992]; People v.
Nebreja,
203 SCRA 45 [1991].
[25]
Folder of Exhibits, pp. 7-8.
[26]
Id., p. 9.
[27]
Id., p. 10.
[28]
Id., p. 11.
[29]
Supplemental Opposition to the Offer of Evidence dated February 8,
1992;
Record, pp. 30-38.
[30]
RTC Order, dated March 17, 1992; Record, p. 68.
[31]
See Gotesco Investment Corp. v. Chatto, 210 SCRA 31 [1992], and Cornejo
V. Sandiganbayan, 142 SCRA 566 [1987]; See also People v. Porras, G. R.
Nos. 114263-64, March 29, 1996.
[32]
People v. Cusi, Jr., 14 SCRA 944 [1965]; See Wharton on Evidence, Sec.
254; Greenleaf on Evidence, Sec. 100; People v. Mcrea, 32 Cal. 98;
People
v. Estrado, 49 Cal. 171.
[33]
People v. Santos, 139 SCRA 583 [1985]. |