State Prosecutors vs Muro, 236 SCRA 505 (19 September 1994) “the “the doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take judicial notice is to be exercised by the courts with caution; care must be taken that the requisite notoriety exists; and reasonable doubt on the subject should be resolved in the negative” Facts: The state prosecutors who are members of the DOJ Panel of Prosecution filed a complaint against respondent Judge Muro on the ground of ignorance of the law, grave misconduct and violation of the provisions in the Code of Judicial Conduct. The case at bar involves the prosecution of the 11 charges against Imelda Marcos in violation of the Central Bank Foreign Exchange Restriction in the Central Bank Circular 960. The respondent judge dismissed all 11 cases solely on the basis of the report published from the 2 newspapers, which the judge believes to be reputable and of national circulation, that the Pres. of the Philippines lifted all foreign exchange restrictions. The respondent’s decision was founded on his belief that the reported announcement of the Executive Department in the newspaper in effect repealed the CB 960 and thereby divested the court of its jurisdiction to further hear the pending case thus motu propio dismissed the case. He further contends that the announcement of the President as published in the newspaper has made such fact a public knowledge that is sufficient for the judge to take judicial notice which is discretionary on his part. The complainants contend that the respondent judge erred in taking judicial notice on matters he purported to be a public knowledge based merely on the account of the newspaper publication that the Pres. has lifted the foreign exchange restriction. It was also an act of inexcusable ignorant of the law not to accord due process to the prosecutors who were already at the stage of presenting evidence thereby depriving the government the right to be heard. The judge also exercised grave abuse of discretion by taking judicial notice on the published statement of the Pres. In the newspaper which is a matter that has not yet been officially in force and effect of the law. Issue: Whether or not the respondent judge committed grave abuse of discretion in taking judicial notice on the statement of the president lifting the foreign exchange restriction published in the newspaper as basis for dismissing the case? Ruling:The Supreme Court held the respondent judge guilty for gross ignorance of the law. It cannot comprehend his assertion that there is no need to wait for the publication of the circular no. 1353 which is the basis of the President’s announcement in the newspaper, believing that the public announcement is absolute and without qualification and is immediately effective and such matter becomes a public knowledge which he can take a judicial notice upon in his discretion. It is a mandatory requirement that a new law should be published for 15 days in a newspaper of general circulation before its effectivity. When the President’s statement was published in the newspaper, the respondent admitted of not having seen the official text of CB circular 1353 thus it was premature for him to take judicial notice on this matter which is merely based on his personal knowledge and is not based on the public knowledge that the law requires for the court to take judicial notice of. For the court to take judicial notice, three material requisites should be present: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; (3) it must be known to be within the limits of the jurisdiction of the court. The fact that should be assumed as judicially known must be on such notoriety that such fact cannot be disputed. Judicial notice is not judicial knowledge where the personal knowledge of the judge does not amount to the judicial notice of the court. The common knowledge contemplated by the law where the court can take judicial notice must come from the knowledge of men generally in the course of ordinary experiences that are accepted as true and one that involves unquestioned demonstration. The court ruled that the information he obtained from the newspaper is one of hearsay
evidence. The judge erred in taking cognizant of a law that was not yet in force and ordered the dismissal of the case without giving the prosecution the right to be heard and of due process. The court ordered for the dismissal of the judge from service for gross ignorance of the law and grave abuse of discretion for dismissing the case motu proprio and for erring in exercising his discretion to take judicial notice on matters that are hearsay and groundless with a reminder the power to take judicial notice is to be exercised by the courts with caution at all times. ALVAREZ vs. RAMIREZ FACTS: Respondent Susan Ramirez was the complaining witness in a criminal case or arson pending before the RTC. The accused was petitioner Maximo Alvarez, stranged husband of Esperanza Alvarez, sister of respondent. On June 21, 1999, Esperanza Alvarez was called to the witness stand as the first witness against petitioner, her husband. Petitioner filed a motion to disqualify Esperanza from testifying against him pursuant to Rule 130 of the Revised Rules of Court on marital disqualification. Respondent filed an opposition to the motion. Pending resolution of the motion, the trial court directed the prosecution to proceed with the presentation of the other witnesses. On September 2, 1999, the trial court issued the questioned Order disqualifying Esperanza Alvarez from further testifying and deleting her testimony from the records. The prosecution filed a motion for reconsideration but was denied in the other assailed Order dated October 19, 1999. This prompted respondent to file with the Court of Appeals a petition for certiorari with application for preliminary injunction and temporary restraining order. On May 31, 2000, the Appellate Court rendered a Decision nullifying and setting aside the assailed Orders issued by the trial court. Hence, this petition for review on certiorari. ISSUE: Whether or not Esperanza can testify over the objection of her estranged husband on the ground of marital privilege. HELD: Yes, Esperanza may testify over the objection of her husband. The disqualification of a witness by reason of marriage under Sec. 22, Rule 130 of the Revised Rules of Court has its exceptions as where the marital relations are so strained that there is no more harmony to be preserved. The acts of the petitioner stamp out all major aspects of marital life. On the other hand, the State has an interest in punishing the guilty and exonerating the innocent, and must have the right to offer the testimony of Esperanza over the objection of her husband. PNOC SHIPPING AND TRANSPORT CORPORATION VS. COURT OF APPEALS and MARIA EFIGENIA FISHING CORPORATION [G.R. No. 107518. October 8, 1998] Facts: This is a civil case for damages arising from a sea collision incident when plaintiff's tanker hit respondent's fishing boat, causing the boat to sink. The lower court and CA ruled in favor of respondent on the basis of documentary exhibits presented, mainly the price quotations. These price quotations were issued personally to Del Rosario who requested for them from dealers of equipment similar to the ones lost at the collision of the two vessels. However, these are not published in any list, register, periodical or other compilation nor containing data of everyday professional need and relied upon in the work of the occupation.T Issue: Are price quotations considered commercial list, thus can be admissible in evidence? Held: NO. Price quotations are not within the purview of commercial lists as these are not standard handbooks or periodicals, containing data of everyday professional need and relied upon in the work of the occupation.These are simply letters responding to the queries of Del Rosario. The price quotations are ordinary private writings which under the Revised Rules of Court should have been proffered along with the testimony of the authors thereof. Del Rosario could not have testified
on the veracity of the contents of the writings even though he was the seasoned owner of a fishing fleet because he was not the one who issued the price quotations. A document is a commercial list if: (1) it is a statement of matters of interest to persons engaged in an occupation; (2) such statement is contained in a list, register, periodical or other published compilation; (3) said compilation is published for the use of persons engaged in that occupation, and (4) it is generally used and relied upon by persons in the same occupation.
Fortun v. Quinsayas, et.al. (Confidentiality Rule in Disbarment Proceedings; Exception) Facts: Petitioner Atty. Philip Sigfrid Fortun, the lead defense counsel of Ampatuan, Jr. in the prominent "Maguindanao Massacre Case," filed this present petition for contempt against Atty. Prima Jesusa Quinsayas, et.al., including media men and broadcasting companies. Quinsayas, et.al. filed a disbarment case against Fortun for dishonest and deceitful conduct violative of the Code of Professional Responsibility. They alleged that Fortun is "engaging in activities misleading the prosecution and the trial court." Pending the disbarment case, Quinsayas was invited to a show "ANC Presents: Crying for Justice: the Maguindanao Massacre," where he discussed the disbarment case against Fortun, including its principal points. This tempted Fortun to file this present petition against him and various media men and companies. Fortun alleged that Quinsayas, et al. actively disseminated the details of the disbarment complaint against him in violation of Rule 139-B of the Rules of Court on the confidential nature of disbarment proceedings. Petitioner further alleged that respondent media groups and personalities conspired with Quinsayas, et al. by publishing the confidential materials on their respective media platforms. He said that the public circulation of the disbarment complaint against him exposed this Court and its investigators to outside influence and public interference. In their comments, respondents, among others, contended that the filing of the disbarment complaint against petitioner was already the subject of widespread news and already of public knowledge, and that petitioner is a public figure and the public has a legitimate interest in his doings, affairs, and character. Issue: Whether or not respondents violated the confidentiality rule in disbarment proceedings, warranting a finding of guilt for indirect contempt of court. Held: Quinsayas violated the confidentiality rule, but the media men and companies are not liable thereto. The Court recognizes that publications which are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of speech. As a general rule, disbarment proceedings are confidential in nature until their final resolution and the final decision of this Court. In this case, however, the filing of a disbarment complaint against petitioner is itself a matter of public concern considering that it arose from the Maguindanao Massacre case. The interest of the public is not on petitioner himself but primarily on his involvement and participation as defense counsel in the case. Indeed, the allegations in the disbarment complaint relate to petitioners supposed actions involving the Maguindanao Massacre case. Since petitioner is a public figure or has become a public figure because he is representing a matter of public concern, and because the event itself that led to the filing of the disbarment case against petitioner is a matter of public concern, the media has the right to report the filing of the disbarment case as legitimate news. It would have been different if the disbarment case against petitioner was about a private matter as the media would then be bound to respect the confidentiality provision of
disbarment proceedings under Section 18, Rule 139-B of the Rules of Court. Said provision of the Rules of Court is not a restriction on the freedom of the press. If there is a legitimate public interest, media is not prohibited from making a fair, true, and accurate news report of a disbarment complaint. In the absence of a legitimate public interest in a disbarment complaint, members of the media must preserve the confidentiality of disbarment proceedings during its pendency. As to Quinsayas, he is bound by Section 18, Rule 139-B both as a complainant in the disbarment case against petitioner and as a lawyer. As a lawyer and an officer of the Court, Quinsayas is familiar with the confidential nature of disbarment proceedings. However, instead of preserving its confidentiality, he disseminated copies of the disbarment complaint against petitioner to members of the media which act constitutes contempt of court. The premature disclosure by publication of the filing and pendency of disbarment proceedings is a violation of the confidentiality rule . The purpose of the rule is not only to enable this Court to make its investigations free from any extraneous influence or interference, but also to protect the personal and professional reputation of attorneys and judges from the baseless charges of disgruntled, vindictive, and irresponsible clients and litigants. It is also to deter the press from publishing administrative cases or portions thereto without authority. In view thereof, the court found Quinsayas liable for indirect contempt of court, with a fine of P20,000. THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MARIO TANDOY y LIM, Defendant-Appellant . FACTS: On May 27, 1986, at about 3:30 p.m. Lt. Salido, Jr. of the Makati Police Station dispatched Pfc. Herino de la Cruz, and Detectives Pablo R. Singayan, Nicanor Candolesas, Luisito de la Cruz, Estanislao Dalumpines, Antonio Manalastas and Virgilio Padua to conduct a buy-bust operation at Solchuaga St., Barangay Singkamas, Makati. The target area was a store along the said street, and Singayan was to pose as the buyer. He stood alone near the store waiting for any pusher to approach. The other members of the team strategically positioned themselves. Soon, three men approached Singayan. One of them was the accused-appellant, who said without preamble: "Pare, gusto mo bang umiskor?" Singayan said yes. The exchange was made then and there — two rolls/pieces of marijuana for one P10.00 and two P5.00 bills marked ANU (meaning Anti-Narcotics Unit). The team then moved in and arrested Tandoy. Manalastas and Candolesas made a body search of the accused-appellant and took from him the marked money, as well as eight more rolls/foils of marijuana and crushed leaves.: nad The arresting officers brought Tandoy to the Office of the AntiNarcotics Unit, Makati Police Station, for investigation by Detective Marvin Pajilan. The accused-appellant chose to remain silent after having been informed of his constitutional rights. These events were narrated under oath by De la Cruz, Singayan and Pajilan. Microscopic, chemical and chromotographic examination was performed on the confiscated marijuana by Raquel P. Angeles, forensic chemist of the National Bureau of Investigation, who later testified that the findings were positive. The marijuana was offered as an exhibit. ISSUES: 1. The Court a quo erred in finding accused guilty beyond reasonable doubt of the crime charged despite lack of evidence to prove that he sold marijuana to the poseur-buyer. 2. The Court a quo erred in admitting in evidence against the accused Exh. "E-2-A" which is merely a xerox copy of the P10.00 bill allegedly used as buy-bust money. RULING: The trial court, which had the opportunity to observe the demeanor of the witnesses and to listen to their respective testimonies, gave more
credence to the statements of the arresting officers. Applying the presumption that they had performed their duties in a regular manner, it rejected Tandoy's uncorroborated allegation that he had been manhandled and framed. Tandoy had not submitted sufficient evidence of his charges, let alone his admission that he had no quarrel with the peace officers whom he had met only on the day of his arrest. We are convinced from the evidence on record that the prosecution has overcome the constitutional presumption of innocence in favor of the accused-appellant with proof beyond reasonable doubt of his guilt. He must therefore suffer the penalty prescribed by law for those who would visit the scourge of drug addiction upon our people. Under the second assigned error, the accused-appellant invokes the best evidence rule and questions the admission by the trial court of the xerox copy only of the marked P10.00 bill.:This assigned error centers on the trial court's admission of the P10.00 bill marked money (Exh. E-2-A) which, according to the appellant, is excluded under the best evidence rule for being a mere xerox copy. Apparently, appellant erroneously thinks that said marked money is an ordinary document falling under Sec. 2, Rule 130 of the Revised Rules of Court which excludes the introduction of secondary evidence except in the five (5) instances mentioned therein.:-cralaw The best evidence rule applies only when the contents of the document are the subject of inquiry. Where the issue is only as to whether or not such document was actually executed, or exists, or in the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. Since the aforesaid marked money was presented by the prosecution solely for the purpose of establishing its existence and not its contents, other substitutionary evidence, like a xerox copy thereof, is therefore admissible without the need of accounting for the original. ASSOCIATE JUSTICE DELILAH VIDALLON-MAGTOLIS, COURT OF APPEALS, Complainant, vs. CIELITO M. SALUD, CLERK IV, COURT OF APPEALS, Respondent. Facts:Respondent is charged and held liable for offenses on inefficiency and incompetence of official duty; conduct grossly prejudicial to the best interest of the service; and directly and indirectly having financial and material interest in an official transaction considering his undue interest in the service of the order of release and actual release of Melchor Lagua. Lagua was found guilty of homicide and was then detained at the Bureau of Prisons National Penitentiary in Muntinlupa City. Lagua’s petition for bond was approved in a Resolution where the appellate court directed the issuance of an order of release in favor of Lagua. The resolution was brought to the office of Atty. Madarang, Division Clerk of Court, for promulgation. Respondent served the resolution and order of release of Lagua at the National Penitentiary, where Lagua was detained for homicide. Meanwhile, Atty. Madarang received a call from a certain Melissa Melchor, who introduced herself as Lagua’s relative, asking how much more they had to give to facilitate Lagua’s provisional liberty, and that they sought the help of a certain Rhodora Valdez of RTC Pasig, but was told that they still had a balance. When Atty. Madarang was able to get the mobile number of respondent, he represented himself as Lagua’s relative and exchanged text messages with said respondent for a possible pay-off for the Lagua’s provisional liberty. Atty. Madarang later discovered that the respondent did not properly serve the copies of the Resolution and Order of Release upon the accused-appellant and his counsel. but gave them to a certain Art Baluran, allegedly Lagua’s relative. Later on, Complainant called the respondent to her office. When confronted, the respondent denied extorting or receiving money for Lagua’s release, or in any other case. He, however, admitted serving the copies of resolution and order of release intended for Lagua and his counsel to Art Baluran. Complainant then lodged the complaint against the respondent in a Letter dated November 14, 2003. Issue: Whether or not the admission of text messages as evidence constitutes a violation of right to privacy of the accused?
Held: No. The respondent’s claim that the admission of the text messages as evidence against him constitutes a violation of his right to privacy is unavailing. Text messages have been classified as “ephemeral electronic communication” under Section 1(k), Rule 2 of the Rules on Electronic Evidence, and “shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof.” Any question as to the admissibility of such messages is now moot and academic, as the respondent himself, as well as his counsel, already admitted that he was the sender of the first three messages on Atty. Madarang’s cell phone.
This was also the ruling of the Court in the recent case of Zaldy Nuez v. Elvira Cruz-Apao. In that case, the Court, in finding the respondent therein guilty of dishonesty and grave misconduct, considered text messages addressed to the complainant asking for a million pesos in exchange for a favorable decision in a case pending before the CA. The Court had the occasion to state: … The text messages were properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence, which provides: “Ephemeral electronic communication” refers to telephone conversations, text messages … and other electronic forms of communication the evidence of which is not recorded or retained.” THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ROGELIO DE JESUS y QUIZON, alias "ELIONG," accusedappellant. The accused, Rogelio de Jesus y Quizon appeals from the decision of the Circuit Criminal Court, First Judicial District in its Criminal Case No. CCC-1-80, Isabela (II-329) finding him guilty beyond reasonable doubt, of the crime of rape as defined and penalized under Article 335, paragraph 2 of the Revised Penal Code and sentencing him, after appreciating in his favor the mitigating circumstance of voluntary surrender, to suffer the penalty of reclusion perpetua to indemnify the offended party Clara Mina y Simon in the amount of P10,000.00 plus another P5,000.00 as moral and exemplary damages, without subsidiary imprisonment in case of insolvency, and to pay the costs. The facts are as follows: têñ.£îhqw⣠Clara Mina, an unmarried woman of 28, lived with her parents in barrio Amistad, Alicia, Isabela (p. 7, tsn., March 21, 1974). Clara Mina, however, is feeble-minded. She is unable to comb her hair, bathe herself and wash her clothes (pp. 21, 31, 32, tsn., March 21, 1974). Because of her mental condition, she just stayed in the house, doing no household chores (p. 31, tsn., Id .). The accused, Rogelio de Jesus, a 19-year old farmer, who lived in the house of his sister some 15 meters away from the victim's house, knew of Clara's mental infirmity, and has often seen her left alone in the house (p. 20, tsn., March 21, 1974; pp. 38, 47, 49, tsn., April 25, 1974). At about 2:00 o'clock in the afternoon of Jan. 3, 1974, Pastora Simon went out to the field in order to plant palay, leaving her daughter Clara Mina alone in the house. Her husband (Clara's father), had gone to a place called Soliven four days before, while the other members of the household had also left for the field (pp. 17, 18, 19, tsn., March 21, 1974). That afternoon, Clara Mina was seated on top of a trunk when Rogelio de Jesus suddenly entered the house, carried her in his arms and laid her on the floor (pp. 8, 13, tsn., March 21, 1974). Objecting to what was being done to her, Clara gave an outcry "Madi! Madi!" (which translated means "I don't like! I don't like!") Rogelio, ignoring her cries, removed her panties as well as his own trousers. He lay on top of her, inserted his penis into her vagina and performed the sexual act (pp. 7, 8, 9, 13,14, 15, tsn., Id .).
Meanwhile, Pastora Simon, who had already walked some 150 meters away from their house, when sensing it was about to rain, hurried back to the house to get cellophane with which to shield her from the rain (p. 17, tsn., March 21, 1974). Upon her return to the house, she found Rogelio de Jesus naked lying on top of Clara Mina whose legs were spread apart (p. 19, tsn., Id .). Seeing them in that position, she rushed to the kitchen to get a club but Rogelio spotted her and ran away. (p. 20, tsn., Id .). The barrio captain, Glicerio Guzman, to whom Pastora Simon had immediately reported the incident, looked for Rogelio but failed to locate him (p. 20, tsn., March 21, 1974; pp. 10, 20, tsn., March 22, 1974). Returning from the barrio captain's house, Pastora Simon investigated Clara, who revealed to her that she was carried away from the trunk where she was seated, then forcibly laid on the floor to have sexual intercourse with Rogelio (pp. 20, 21, tsn., March 21, 1974). The next day — January 4, 1974 — Clara Mina, accompanied by her parents, denounced Rogelio de Jesus to the police authorities (p. 20, tsn., March 22, 1974). Clara Mina was examined by Fernando Babaran, Municipal Health Officer of Echague, lsabela at the Southern Isabela Emergency Hospital, the municipal health officer of Alicia being then on leave (p. 6, tsn., March 22, 1974). The medical certificate, Exhibit "C", issued by Dr. Babaran, shows the following findings: (1) hymenal lacerations at 3 o'clock, 8 o'clock and 11 o'clock. (2) vagina admits one finger with ease. Two fingers with difficulty. (3) fresh perineal abrasion. (4) smear, not done due to lack of microscope. (5) contusion — left temporal area. Lesions to heal within one week. (p. 3, Record).
According to Dr. Babaran, the abrasions were possibly inflicted the day prior to the examination and that the contusion on the left temporal area of the girl's head could have been caused when her head was pushed against a hard object (pp. 11, 12, tsn., March 22, 1974). Subsequently, Rogelio de Jesus was surrendered by his brother-inlaw, a councilor to the Alicia Police Department. He executed an affidavit, Exhibit "D" subscribed before Alicia Municipal Judge Flor Egipto on January 5, 1974, admitting that he had sexual intercourse once with Clara Mina, but denying that he raped her (p. 7, record). The accused denied that he had forced the complainant to have sexual intercourse with him and that he only inserted his forefinger inside the complainant's private parts. He testified that he admitted having sexual intercourse once with complainant in his affidavit 1 because of maltreatment employed upon him by the jail guards. While the affidavit executed by the accused is not admissible in evidence for lack of evidence showing that the accused during the custodial investigation was apprised of his constitutional rights under Art. IV, Sec. 20, of the New Constitution, 2 still there is sufficient evidence on record that the accused had performed the sexual act to wit: têñ.£îhqw⣠1. The accused testified that he merely inserted his forefinger into the complainant's vagina to cure her of her mental malady. The records, however show, from the testimony of both the prosecution and the defense, that the accused laid on top of complainant. If appellant's purpose was merely to insert his forefinger into the complainant's vagina, then there is no necessity of lying on top of complainant. 2. Complainant testified, contrary to the testimony of the accused, that the latter brought out his penis and inserted it into her vagina which pained her a lot.
3. The hymenal lacerations and the fresh perineal abrasions in complainant's vagina corroborated her testimony that the accused had sexual intercourse with her. The accused assailed the competence of the complainant as a witness on the ground that being feeble minded she is not a competent witness in contemplation of the rules and therefore her testimony should have been rejected by the lower court. That the complainant was feeble-minded and had displayed difficulty in comprehending the questions propounded on her is an undisputed fact. However, there is no showing that she could not convey her Ideas by words or signs. It appears in the records that complainant gave sufficiently intelligent answers to the questions propounded by the court and the counsels. The court is satisfied that the complainant can perceive and transmit in her own way her own perceptions to others. She is a competent witness. Having sexual intercourse with a feeble-minded woman is rape. The offense is described under paragraph 2 of Article 335 of the Revised Penal Code, that is, the offender having carnal knowledge of a woman deprived of reason. The Court, in the case of People vs. Daing , 3 said: The offense committed by appellant is rape described under paragraph 2 of Article 335 of the Revised Penal Code, that is, the offender having carnal knowledge of a woman deprived of reason. The deprivation of reason contemplated by law does not need to be complete. Mental abnormality or deficiency is enough. So it was held by the Supreme Court of Spain that a man having carnal knowledge of a woman whose mental faculties are not normally developed or who is suffering from hemiplegia and mentally backward or who is an Idiot commits the crime of rape. ... Being feeble-minded, complainant is incapable of thinking and reasoning like any normal human being and not being able to think and reason from birth as aforesaid, and undoubtedly devoid or deficient in those instincts and other mental faculties that characterize the average and normal mortal, she really has no will that is free and voluntary of her own; hers is a defective will, which is incapable of freely and voluntarily giving such consent so necessary and essential in lifting coitus from the place of criminality. 4 In this connection, the Solicitor General properly stated: têñ.£îhqw⣠That complainant possesses such a low mental capacity, to the extent of being incapable of giving consent, could be gleaned from the fact, as testified to by her mother, that she is unable to do the simple tasks of combing her hair and bathing herself. Thus, even granting it to be true, as counsel has insinuated, that complainant had submitted to the sexual act without resistance (p. 9 Appellant's Brief) such cannot be construed as consent on her part, so as to preclude it from being rape. Incapable of giving consent, she could not thus consent in intelligently. 5 WHEREFORE, the appealed decision is AFFIRMED in toto. Makasiar (Chairman), Aquino, Guerrero, Abad Santos, De Castro and Escolin, JJ., concur.
