PEOPLE V. LI KA KIM ALIAS ED (REMEDIAL)

The requisites of NEWLY DISCOVERED EVIDENCE in order to justify a new trial are that:

1. the evidence is discovered after trial;
2. such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; and
3. the evidence is material, not merely cumulative, corroborative, or impeaching, and of such weight that if admitted, would likely change the judgment.

NOT ONE OF THE REQUISITES MENTIONED IS ATTENDANT. Appellant's PASSPORT could have easily been presented during the trial. then, too, the presentation of appellant's passport would hardly be material to the outcome of the case. Appellant was positively identified by the prosecution witnesses as being the perpetrator of the crime.

There is merit, however, in appellant's contention that the court a quo erred in imposing the penalty of death. Rule 110 of the Rules of Court on Criminal Procedure requires the recitation in the information of aggravating or qualifying circumstances in order to be appreciated as such. The use of a motor vehicle considered by the trial court in decreeing death penalty is inappropriate, that aggravating circumstance not having been aptly alleged in the Information.

The requirements are mandatory not only to afford the accused the right to object to the presentation of evidence showing such aggravating circumstances not so alleged but also to preclude the court from even taking such aggravating circumstances into account.