1. G.R. No. 121099. February 17, 1999.

FIDEL T. SALAMERA, petitioner, vs. SANDIGANBAYAN, FIRST DIVISION, respondent.

Topic: The court can not take judicial notice of a disputed fact. The court may take judicial notice of matters
of public knowledge, or which are capable of unquestionable demonstration, or ought to be known to judges
because of their judicial functions. Otherwise, the court must receive evidence of disputed facts with notice
to the parties.

Facts: Casiguran Barangay Captain Antonio Benavidez voluntarily turned over a .38 caliber Smith &
Wesson revolver to petitioner mayor of the town of Casiguran, Aurora, Fidel Salamera. The said gun was
duly licensed and owned by Antonio’s uncle, Ponciano Benavidez, who mortgaged the gun to him. After a
week, petitioner with his men, went to Manila and brought with them the gun. Meanwhile, the gun was
confiscated by a police officer at a checkpoint in Quezon City. The policeman did not turn over the
confiscated gun to the Constabulary Firearm and Explosive Unit in Camp Crame, Quezon City. Instead, he
turned it over to the security aide of the petitioner who died, and apparently, the gun got lost.

In September 1988, Ponciano Benavidez claimed the gun to the petitioner, to no avail. He then filed
with the Provincial Office of Aurora a complaint for theft and an administrative case for abuse of authority,
ignorance of the law, and conduct unbecoming of a public servant, which was both subsequently dismissed
because of the affidavit of desistance filed by Ponciano acknowledging that petitioner had paid the value
of the gun. But on March 1992, the Ombudsman approved the filing of an information against petitioner
for malversation of public funds.

After the issuance of a warrant of arrest, the posting of bail, the entering of a not guilty plea and
the trial of the case proceeded, the Sandiganbayan convicted petitioner of malversation of public property
under Article 217 in relation to Article 222 of the Revised Penal Code with the penalty perpetual special
disqualification and a fine of P5,000.00, the value of the gun. Petitioner moved for a motion for
reconsideration, but was denined, hence this appeal via certiorari.

Issue: WON the Sandiganbayan erred in finding Salamera guilty of the crime charged and the penalty
imposed

Ruling: No. The Supreme Court ruled that in convicting an accused with the crime of malversation of
public property, it is essential that the existence of the presumption of conversion of the property into public
property and the evidence of the actual conversion must exist. However, in this case, neither of those
existed.

The Supreme Court also pointed that the Sandiganbayan erred in taking judicial notice on the value of the
gun. The Sandiganbayan based its penalty on the minimum value of the gun in the absence of presented
evidence with regard to its amount. It took judicial notice of its market value and estimated its “reasonable
value at P5,000, which is a grievous error. The Sandiganbayan could not take judicial notice of the value
of the gun. It must be duly proved in evidence as a fact. The court can not take judicial notice of a disputed
fact.

Pahati, Pia Roelen C.

Topic: In this case, judicial notice of the age of the victim is improper, despite the defense counsel’s
admission, thereof acceding to the prosecution’s motion.

Facts: Mary Ann Tundag filed two separate complaint for incestuous rape against the accused, Tomas
Tundag, her own father. Upon arraignment, appellant entered a not guilty plea. Thereafter, the two
complaints were consolidated and proceeded for joint trial. During the trial, Mary Ann testified that she
was 13 years of age when she was raped, but she did not know exactly when she was born. Unable to secure
a copy of her birth certificate, the prosecution moved that judicial notice be taken of the fact that she was
below 18 years old at the time of the rape. The trial court took judicial notice over the age of Mary Ann,
and ruled that the accused is guilty of the crime charged against him. Hence, the automatic review of the
Supreme Court.

Issue: WON the trial court erred in taking judicial notice of the victim’s age

Ruling: Yes. The Supreme Court held that despite the admission by the defense of such fact, the Court held
that the age of the victim is not a matter of judicial notice, whether mandatory or discretionary. Under
Section 3, Rule 129 of the Rules on Evidence, a hearing is required before such fact can be taken judicial
notice of by courts.

Judicial notice is the cognizance of certain facts which judges may properly take and act on without
proof because they already know them. Under the Rules of Court, judicial notice may either be mandatory
or discretionary. In this case, judicial notice of the age of the victim is improper, despite the defense
counsel’s admission thereof acceding to the prosecution’s motion. As required by Section 3 of Rule 129,
as to any other matters such as age, a hearing is required before courts can take judicial notice of such fact.
Generally, the age of the victim may be proven by the birth or baptismal certificate of the victim, or in the
absence thereof, upon showing that said documents were lost or destroyed, by other documentary or oral
evidence sufficient for the purpose. The minority of the victim must be proved with equal certainty and
clearness as the crime itself.

Considering the statutory requirement in Section 335 of the Revised Penal Code as amended by R.A.
No. 7659 and R.A. No. 8353, the Court reiterated here what it has held in Javier without any dissent, that
the failure to sufficiently establish victim’s age by independent proof is a bar to conviction for rape in its
qualified form. For, in the words of Melo, J., “independent proof of the actual age of a rape victim becomes
vital and essential so as to remove an ‘iota of doubt’ that the case falls under the qualifying circumstances”
for the imposition of the death penalty set by the law.

Pahati, Pia Roelen C.

Topic:

 No precise minimum age can be fixed at which children shall be excluded from testifying—the
intelligence, not the age, of a young child is the test of the competency as a witness.

 The term “hearsay” as used in the law on evidence, signifies evidence which is not founded upon
the personal knowledge of the witness from whom it is elicited and which consequently does not
depend wholly for its credibility and weight upon the confidence which the court may have in him;
The reason for the exclusion of hearsay evidence is that the party against whom the hearsay
testimony is presented is deprived of the right or opportunity to cross-examine the person to whom
the statements are attributed.

Facts: Lizette Arabelle Gonzales, a three-year old girl, has been raped by Manuel Pruna, while defecating
at the back of the house of their neighbor Gloria Tolentino. Lizette told her mother that she was raped by
Pruna on the grassy area near their house. Jacqueline and Lizette hurriedly went to the hospital. On January
3, 1995, Jacqueline filed a complaint against Pruna. Trial ensued, the police officer who blottered Pruna
testified, as well as Jacqueline, and Lizette, the victim, who was then four years old when the proceedings
happened. Lizette was able to testify and directly point out the identity of the accused. However, Lizette’s
age was never proved in the trial court. After trial, Pruna was convicted by the trial court of the crime of
rape in its qualified form and sentenced to suffer the supreme penalty of death and to indemnify the victim
in the sum of 50,000. Thus, the automatic review.

Manuel Pruna raised the following on his appellant’s brief: (1) that the trial court erred in relying on the
testimony of Jacqueline as to the age of Lizette; (2) that the testimony of Jacqueline is hearsay; and that (3)
that the court should not admit the testimony of a five year old child.

Issue: WON the accused is correct in his arguments

Ruling: The testimony of Jacqueline as to the rape of her child is not hearsay. The Supreme Court defined
“hearsay” as used in the law on evidence, signifies evidence which is not founded upon the personal
knowledge of the witness from whom it is elicited and which consequently does not depend wholly for its
credibility and weight upon the confidence which the court may have in him; its value, if any, is measured
by the credit to be given to some third person not sworn as a witness to that fact, and consequently not
subject to cross-examination. If one therefore testifies to facts which he learned from a third person not
sworn as a witness to those facts, his testimony is inadmissible as hearsay evidence. The mother’s testimony
on the incident related to her by her daughter cannot be disregarded as hearsay evidence where the
daughter herself was sworn as a witness to the fact testified by the mother.

He is also not correct in attacking the competency of the child as a witness, on the ground that there is no
precise minimum age that can be fixed at which children shall be excluded from testifying—the intelligence,
not the age, of a young child is the test of the competency as a witness.

As for the last argument, the Supreme Court sided with the accused on the ground that the testimony of the
mother is not sufficient to establish the age of the victim. They did not present any document that will prove
Lizette’s minority, hence, the Supreme Court did not appreciate it as a qualifying circumstance. Thus, the
accused was instead convicted with the crime of statutory rape rather than qualified rape.

Pahati, Pia Roelen C.