This Court has time and again held that between an affidavit executed outside the court, and a testimony given in open court, the latter almost always prevails.
Discrepancies between a sworn statement and testimony in court do not outrightly justify the acquittal of an accused. Such discrepancies do not necessarily discredit the witness since ex parte affidavits are often incomplete. They do not purport to contain a complete compendium of the details of the event narrated by the affiant. Thus, our rulings generally consider sworn statements taken out of court to be inferior to in court testimony. x x x.[42]
A reading of the original affidavits[43] executed by Slagle and Atty. Ancheta, readily reveals that they concentrated on the facts and events leading up to the search and seizure of the contraband materials from the subject premises. They not only failed to mention Gemma Ong’s presence there, but they also failed to mention the other witnesses’ names and presence there as well. Although this might appear to be a mistake on the part of a known and established law firm like the Quasha Law Office, the firm immediately sought to rectify this by having the affidavits of Slagle, Atty. Ancheta, and Lara amended.
If it were true that Gemma was not at the subject premises at all on September 25, 1998, then she should have grabbed every chance to correct this notion and expose this mistake before she was arrested. She could have brought up her defense of mistaken identity or absence at the raid in the preliminary investigation conducted prior to the issuance of her warrant of arrest; but instead, she chose to ignore her subpoena and disregard the preliminary investigation. Even then, Gemma had the opportunity to raise the fact that she was not Gemma Ong; not only during her arrest, but also during the posting of the cash bond for her bail, and more importantly, during her arraignment, when she was asked if she understood the charges against her. Gemma also knew that the Information was filed against her on the basis of the amended affidavits, thus, she could have filed a motion to quash the information before she entered her plea, or asked that a reinvestigation be conducted. However, all these Gemma failed to do. We agree with the RTC that it is highly unlikely that a person of her stature and educational attainment would be so meek and timid that she failed to protest against her being wrongly identified, accused, arrested, and potentially imprisoned. If what she says were true, she would not have agreed to post bail or to be arraigned without at the very least, bringing up the fact that she was not the Gemma Ong the police officers were looking for. In addition, her own lawyer, Atty. Maglinao, brought up the fact that she was not Gemma Ong, only for the purpose of correcting the Information, and not to contest it, to wit:
WITNESS ROGER SHERMAN SLAGLE UNDER THE SAME OATH FOR CONTINUATION OF DIRECT EXAMINATION BY:
ATTY. ERESE:
With the kind permission of the hon. court.
COURT: Proceed.
ATTY. MAGLINAO:
I would just want to be on record that my client, Gemma Catacutan has never been known as Gemma Ong because her real name is Gemma Catacutan.
COURT: Do you have any objection to the amendment of the information?
ATTY. MAGLINAO:
No, your Honor. May we request to correct the information from Gemma Ong to Gemma Catacutan.[44]
Gemma further accuses the prosecution witnesses of falsely testifying and of perjuring themselves just so they can satisfy a big client like PMPI by showing that somebody had been arrested for counterfeiting its cigarettes. The crimes Gemma is imputing on these witnesses are serious crimes, and in the absence of concrete and convincing evidence, this Court could not believe her mere allegations that imply that these people would destroy someone’s life just so they can please a client, more so over mere cigarettes. In Principio v. Hon. Barrientos,[45] we said:
Bad faith is never presumed while good faith is always presumed and the chapter on Human Relations of the Civil Code directs every person, inter alia, to observe good faith, which springs from the fountain of good conscience. Therefore, he who claims bad faith must prove it. For one to be in bad faith, the same must be “evident.” x x x.[46]
The prosecution witnesses, contrary to Gemma’s claim, had positively identified her as the person who initially refused the search team entrance, then later acquiesced to the search operations. Slagle explained that even though he mentioned Gemma only in his amended affidavit, he was sure that she was at the subject premises on the day that they searched it:
Testimony of Roger Sherman Slagle
ATTY. MAGLINAO:
Q In this amended affidavit you mentioned the name, Gemma Catacutan as one of the accused?
A Yes sir.
Q Can you tell the court how you were able to include the name of Gemma Catacutan in your amended affidavit, when in fact it did not appear in the first affidavit?
A When we arrived she was there and she was very nervous and upset.
x x x x
A It is very clear to me when I arrived there that she was somehow involved.[47] (Emphases ours.)
Lara on the other hand, even pointed to her and thus positively identified her to be the one who had signed the search documents,[48] as the owner of the subject premises, to wit:
Testimony of Jesse Lara
ATTY. FREZ
Q : Mr. Witness, do you know this person who wrote the name Gemma Ong?
A : Yes, sir, Gemma Ong is the owner of the premises when we served the search warrant and also, she was the one who refused us to gain entry during the service of the search warrant.
Q : Were you able to gain entry at the premises?
A : Yes, sir.
Q : So, as regard to the person whom you identify as the one who refused you to gain entry, would you be able to identify this person?
A : Yes, sir, that lady in pink is Mrs. Gemma Ong.
(As witness is pointing to the accused Gemma Ong).
Q : Mr. Witness, why do you say that the person whom you pointed to us is the one who wrote the name Mrs. Gemma Ong?
WITNESS
Because when we served the search warrant she signed it in our presence and that is her own signature.
x x x x
ATTY. FREZ
Q : So, Mr. Witness, in this Inventory, we made some markings during the pre-trial conference and I see here above the signature (Owner/Representative), there exist a handwritten name which reads GEMMA ONG and above it, there exist a signature, are you familiar with this person which appears to be Gemma Ong?
A : Yes, sir, Gemma Ong signed that in my presence.
Q : Your Honor, during the pre-trial conference, it was previously marked as Exhibit “D-1”. Mr. Witness, I also see here a Verification but there also exist an entry below the name and I quote “Owner/Claimant/Representative”, there appears a handwritten name Gemma Ong and a signature above it, are you familiar with this person which appears to be Gemma Ong?
A : Yes, sir, Gemma Ong signed that in my presence.
x x x x
Q : Mr. Witness, in this document which is the certification in the Conduct of Search and I have here above the entry (Owner/Representative), a handwritten name which reads Gemma Ong and there exist a signature above the handwritten name, can you identify the signature?
A : Yes, sir, this was signed by Gemma Ong in my presence.[49](Emphases ours.)
Lara further attested to the fact that the search warrant was served on Gemma, who later on entertained the search team:
ATTY. FREZ
Mr. Witness, the person to whom you served the search warrant is identified as Mrs. Gemma Ong, do you know her relationship with the accused Jackson Ong?
ATTY. FERNANDEZ
Objection, your honor, the witness would be incompetent . . .
COURT
May answer.
(The stenographer read back the question).
WITNESS
I am not familiar with the relationship of Mrs. Gemma Ong with Jackson Ong because during the service of the search warrant, Mrs. Gemma Ong was there together with two employees and when I asked where was Jackson Ong, she was the one who entertained us.
ATTY. FREZ
So, the search warrant was served against Gemma Ong?
WITNESS
Yes, Sir.[50]
Positive identification of a culprit is of great weight in determining whether an accused is guilty or not.[51] Gemma, in claiming the defense of mistaken identity, is in reality denying her involvement in the crime. This Court has held that the defense of denial is insipid and weak as it is easy to fabricate and difficult to prove; thus, it cannot take precedence over the positive testimony of the offended party.[52] The defense of denial is unavailing when placed astride the undisputed fact that there was positive identification of the accused.[53]
