Magdayao vs.

People of the Philippines

G.R. No. 152881, promulgated August 17, 2004 436 SCRA

AN ANNOTATION
by:
JUDGE ALICIA GONZALEZ DECANO (Ret.)

PRELIMINARY STATEMENT

The petitioner in the above-entitled case was convicted of Violation of Batas Pambansa
(B.P.) Blg. 22. On the first assignment of error, the petitioner averred among others that the
prosecution failed to prove the guilt of the accused beyond reasonable doubt on the ground
that (a) the photocopy of PNB Check No. 399967, adduced in evidence by the prosecution, is
inadmissible in evidence, hence, has no probative weight. xxx

On this score, the petitioner appealed his case to the Supreme Court. Before a definition
of the Rule be stated, it is imperative that the history of the Best Evidence Rule be recalled.

HISTORY OF THE RULE.

In the beginning, the so-called best evidence rule was initially different. It applied to all classes of
evidence, not merely writings, and merely meant that the best evidence of which the nature of the case
would permit was receivable. (Thayer, Preliminary Treatise on Evidence, 489, cited by Salonga, Evidence,
1964, p.108.) In the course of time, the phrase producing the best evidence was employed for the rule that
the terms of a document must be proved by the production of the document itself, in preference to evidence
about the document; at times, it was employed to designate the hearsay rule, namely, that the testimony on
the witness stand is the best in preference to an extra-judicial assertion not subjected to the test of cross
examination; still at other times, it was employed to designate the group of rules by which the testimony of
certain classes of witnesses is preferred to that of others, e.g., the rule requiring the production of attesting
witnesses to an instrument. It is probable because of the looseness of the term and its consequent
susceptibility to various uses, that one writer has stated: The sooner the phrase is wholly abandoned, the
better. (Wigmore, Sec. 1704 p.303 cited by Salonga, supra.)

Today, the best evidence rule is applied only to writings and is now recognized as an excluding rule, as
Section 2 undoubtedly is. Then can be no evidence of a writing other than writing itself the contents of
which is the subject of inquiry is certainly exclusionary in character. (Salonga, supra;)

RATIONALE OF THE BEST EVIDENCE RULE.

The purpose of the rule requiring the production of the best evidence is the prevention
of fraud, because if a party is in possession of such evidence and withholds it, and seeks to
substitute inferior evidence in its place, the presumption naturally arises that the better
evidence is withheld for fraudulent purposes which its production would expose and defeat.
(Bagley vs. Mc Mickie, 9 Cal. 430, cited by R.J-Francisco, Evidence, 1993, p.56; cited by
2nd Division Supreme Court, Magdayao vs. People, G.R. 152881 August 17, 2004.)

BEST EVIDENCE RULE DEFINED.

The best evidence rule simply means that if a party wants to prove the contents of a writing what the
document says he must present to the court the original of the writing, if available. Therefore, what is
stated in the document cannot be proven by a mere copy of the writing or by the oral recollection of a
witness, unless the existence and non-production of the original document are accounted for. The original is
considered preferred evidence, preferred to a mere copy of the writing. (Ricardo L. Pronove, Jr. Bench
Guide Series, UP Law Complex, Diliman, Q.C. 1986, p.91.)

The best evidence rule, applied to documentary evidence, operates as a rule of exclusion, that is,
secondary (or substitutionary) evidence cannot be inceptively introduced as the original writing itself must
be produced in court, except the four instances mentioned in Section 3, Rule 130 of the Rules of Court
which will be discussed subsequently. (Regalado, Remedial Law Compendium, Volume II, 1995 p.555.)

R.J. Francisco in his book Evidence 1993 Edition, p. 54 defines the best evidence rule as that which
requires the highest grade of evidence obtainable to prove a disputed fact. The best evidence rule cannot be
invoked unless the contents of a writing is the subject of judicial inquiry, in which case, the best evidence is
the original writing itself;

Aside from defining the best evidence rule, an explanation of documentary evidence, and original
document, is imperative.

Section 2 of Rule 130 provides:

Documentary Evidence. Documents as evidence consist of writings

or any material containing letters, words, numbers, figures, symbols or
other modes of written expressions offered as proof of their contents.
(n)

A document is a deed, instrument or other duly authorized paper by which something is proved,
evidenced or set forth (U.S. vs. Orera, 11 Phil 596. cf. People vs. Camacho, 44 Phil 484) cited by Regalado,
supra.)

Documentary evidence is that which is furnished by written instruments, inscriptions and documents of
all kinds. (32 C.J.S. 475) cited by Regalado, loc. cit.)

But even with respect to documentary evidence, the best evidence rule applies only when the content
of such document is the subject of inquiry.(Ibid.)

Original of document is explained in Section 4 a, b & c, Rule 130 of the Rules of court, to wit:

(a) The original of a document is one the contents of which are the subject
of inquiry.
(b) When a document is in two or more copies executed at or about the
same time, with identical contents, all such copies are equally regarded
as originals.
(c) When an entry is repeated in the regular course of business, one being
copied from another at or near the time of the transaction, all the entries
are likewise equally regarded as originals.

Section 4. declares when other copies of a document are considered originals. These include
regular entries in journals and ledgers. A signed carbon copy or duplicate of a document executed at the
same time as the original is known as a duplicate original and may be introduced for the non production of
the original. (Mahilum et. al. vs. CA. et. al. L-17970, June 30 1966, cited by Regalado, op. cit. 557. With
respect to document prepared in several copies through the use of carbon sheets, the Supreme Court has
held that each carbon copy is considered an original provided that the writing of contract upon the outside
sheet, including the signature of the party sought to be charged thereby, produces a facsimile upon the
sheets beneath, such signatures being thus reproduced by the same stroke of the pen which made the
surface or exposed impression. (People vs. Tan, et. al, 106 Phil 1242; cf. People vs. Quinoes 44 O.G.
1520) However, even if said signature on each copy was written through separate acts, or even on separate
occasions, it would be more accurate to say that all of said carbon copies are regarded as originals. (People
vs. Quinoes; People vs. Mangulibnan, et. al 99 Phil. 952) if each copy was intended as a repository of the
same legal act of the party thereto. (Regalado, loc. cit.)

The court shall not receive any evidence that is merely substitutionary in its nature, such as
photocopies, as long as the original evidence can be had. In absence of a clean showing that the original
writing has been lost or destroyed or cannot be produced in court, the photocopy submitted, in lieu thereof
must be disregarded being unworthy of any probative value and being an inadmissible piece of evidence.
(Intestate Estate of the Late Don Mariano San Pedro vs. Court of Appeals, 265 SCRA 733 [1996] cited in the
case under annotation.

EXCEPTIONS TO THE BEST EVIDENCE RULE.

Section 3 of Rule 130 provides:

Original document must be produced: exceptions. When the subject

of inquiry is the contents of a document, no evidence shall be

admissible other than the original document itself, except in the

following cases:

(a)

When the original has been lost or destroyed, or cannot

be produced in court without bad faith on the part of the
offeror;

(b)

When the original is in the custody or under the control of

the party against whom the evidence is offered, and the
latter fails to produce it after reasonable notice;

(c)

When the original consists of numerous accounts or other

documents which cannot be examined in court without
great loss of time and the fact sought to be
established from the whole; and

(d)

When the original is a public record in the custody of a

public officer or is recorded in a public office.

Section 5, of Rule 130 elucidates further letter (a) of

Section 3. When original document is unavailable. ___ When
the original document has been lost or destroyed, or cannot be
produced in court, the offeror, upon proof of its execution or
existence and the cause of its unavailability without bad faith
on his part, may prove its contents by a copy, or by a recital of
its contents in some authentic document, or by the testimony
of witnesses in the order stated.

LOSS OR DESTRUCTION OF THE ORIGINAL

Technically, loss means disappearance, whereas destruction imports that the object no
longer exists. If loss is claimed, it must be shown that diligent search has been made, and
every reasonable effort was exhausted to find it. xxx It is sometimes said as a sensible
requirement, but not a fixed rule, that such must be made in the place where the document
was lost known to be, or that inquiry must be made of the last custodian, or that the last
custodian must be summoned, when the paper has a particular place of deposit. (Salonga,
supra)

If destruction be the excuse, and it is sufficiently proved that the writing is no longer in
existence, secondary evidence is at once admissible. (Ibid.)

Regalado commented that in order that such secondary evidence may be admissible,
the following facts must be proved satisfactorily:

(1)

due execution of the original;

(2)
(3)

loss, destruction or unavailability of all such originals;

reasonable diligence and good faith in the search for or
attempt to produce the original;
(4)
loss, destruction or unavailability of the document was not due
to the offerors bad faith.

In the case of Director of Lands, et. al vs. CA et. al. L-29575, April 30, 1971, the Supreme Court ruled:

xxx The due execution of the document should be proved through the testimony of either (1) the person/s
who executed it; (2) the person before whom its execution was acknowledged; or (3) any person who was
present and saw it executed and delivered or who thereafter saw it and recognized the signatures, or one to
whom the parties thereto had previously confessed the execution thereof. (Regalado op. cit. p.559) In the
case of E. Michael & Co. Inc., vs. Enriquez 33 Phil 87 as cited by Regalado, supra, the Supreme Court held:
xxx the secondary evidence may consist of (1) a copy of said
document, (2) a recital of its contents in an authentic document, or (3)
the recollection of witnesses.xxx
The second exception to the best evidence rule is cited in Section 6 of Rule 130 of the Revised
Rules of Court which provides:

Sec. 6. When original document is in adverse partys custody

or control. If the document is in the custody or under the control of the
adverse party, he must have reasonable notice to produce it. If after
such notice and after satisfactory proof of its existence, he fails to
produce the document, secondary evidence may be presented as in the
case of its loss.

ORIGINAL IN THE HANDS OF ADVERSE PARTY

Possession by the opponent is not to be interpreted literally. It is sufficient if he has
control over the document, though technically it may be in the possession of a third
person. There are three (3) essential requisites that must co-exist before secondary
evidence may be permitted;
(1) possession or control by the opponent;
(2) demand or notice, made to him by the proponent, signifying that the document
will be needed; and
(3) failure or refusal, by the opponent to produce the document in court. (Salonga,
supra.)
In many cases, the primary evidence will be found in the hands of the adverse party, but this fact alone
does not justify admission of secondary evidence as to its contents. The proponent must show that he has
all in his power to secure the original by giving the adversary timely notice to produce it. It is sufficient in
such cases if the adversary states that he does not have the originals. On the other hand, if he does
produce it, secondary evidence is not admissible. If the adversary has the document but refuses to produce
it upon proper demand, he cannot later introduce the original on his own behalf. (Francisco, supra.)

No particular form of notice is required, as long as it fairly apprises the other party as to what papers
are desired. Even an oral demand in open court for such production at a reasonable time thereafter will
suffice. Such notice must, however, be given to the adverse party, or his attorney, even if the document is in
the actual possession of a third person. It has been held that where receipt of the original of a letter is
acknowledged on a carbon copy thereof, there is no need for a notice to the other party to produce the
original of the letter. (Phil ____-mix Concrete Co. vs. Villacorte, it. al. 98 Phil. 993, cited by Regalado,
supra.)
In the instant case under annotation, Olvis the private complainant, testified that after the check was
dishonored by the drawee bank for insufficiency of funds, he returned it to the petitioner upon the latters
offer to pay the amount of the checks.
The petitioner admitted that he received the original copy of the dishonored checks from the private
complainant and that he caused the non-payment of the dishonored checks, but he never produced the
original of the check, much less offered to produce the same. The petitioner deliberately withheld the original
of the check as a bargaining chip for the court to grant him an opportunity to adduce evidence in his
defense, which he failed to do following his numerous unjustified postponements as shown by the records.
(Decision, p. 12)
The machine or Photostatic copy of PNB check no. 399967 dated September 30, 1991 was held
admissible in evidence because despite the admission that the original is in the possession of the petitioner,
the latter failed to produce the same.
The third exception to the best evidence rule is justified not only by the fact that the records are
VOLUMINOUS but by the fact that the factum probandum is only the general result of the whole and not the
detailed contents of the records. However, where the detailed contents of the records of accounts are
challenged for being hearsay or issues are raised as to the authenticity or correctness of the detailed
entries, the originals have to be produced. Thus, for this exception to apply, the following factors have to be
reckoned with:
(a) the voluminous character of the records must be established and;
(b) such records must be made accessible to the adverse party so that their correction may be tested
on cross examination. (Cia Maritime vs Allied Free Workers Union, et. al L-28999, May 24 1977)
cited by Regalado, supra)
The fourth exception is elaborated further by Section 7 of Rule 130 which reads:
Sec. 7. Evidence admissible when original document is a public record.
When the original of a document is in the custody of a public officer or
is recorded in a public office, its contents may be proved by a certified
copy issued by the public officer in custody thereof.
This section complements the fourth exception to the best evidence rule under Rule 130, Section 3,
which provides that the original is a public record in the custody of a public officer or is recorded in a public
office. This is so because by virtue of the specific provision of Rule 132, Section 24; such document may be
evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of
the records and in the case of an authorized public record of a private writing, the same may be also proved
by a copy thereof attested by the legal keeper of the record. (Sec. 27) Regalado, supra.)
CONCLUDING STATEMENT
It is, therefore, incumbent upon lawyers to present when so available the originals of documents.
When the original writing is not available for one reason or another, the next best or second best evidence to
prove its contents is a copy of the writing, the testimony of someone who has read or one who knows about
it or another document reciting its contents. The said secondary evidence however may be admissible upon

proof of satisfactory evidence of due execution of the original, loss, destruction, without bad faith on the part
of the offeror, or unavailability of all such originals with reasonable diligence and good faith in the search for
or attempt to produce the original.
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