Professional Documents
Culture Documents
PART IV
RULES OF EVIDENCE
RULE 128
General Provisions
Section 1. Evidence defined. — Evidence is the means, sanctioned by these rules, of ascertaining in a
judicial proceeding the truth respecting a matter of fact. (1)
Section 2. Scope. — The rules of evidence shall be the same in all courts and in all trials and hearings,
except as otherwise provided by law or these rules. (2a)
Section 3. Admissibility of evidence. — Evidence is admissible when it is relevant to the issue and is not
excluded by the law of these rules. (3a)
Section 4. Relevancy; collateral matters. — Evidence must have such a relation to the fact in issue as to
induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed,
except when it tends in any reasonable degree to establish the probability or improbability of the fact in
issue. (4a)
RULE 129
What Need Not Be Proved
Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction
of evidence, of the existence and territorial extent of states, their political history, forms of government
and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their
seals, the political constitution and history of the Philippines, the official acts of legislative, executive
and judicial departments of the Philippines, the laws of nature, the measure of time, and the
geographical divisions. (1a)
Section 2. Judicial notice, when discretionary. — A court may take judicial notice of matters which are of
public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges
because of their judicial functions. (1a)
Section 3. Judicial notice, when hearing necessary. — During the trial, the court, on its own initiative, or
on request of a party, may announce its intention to take judicial notice of any matter and allow the
parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of
a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter
is decisive of a material issue in the case. (n)
Section 4. Judicial admissions. — An admission, verbal or written, made by the party in the course of the
proceedings in the same case, does not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that no such admission was made. (2a)
RULE 130
Rules of Admissibility
A. OBJECT (REAL) EVIDENCE
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Rules of Admissibility
A. OBJECT (REAL) EVIDENCE
Section 1. Object as evidence. — Objects as evidence are those addressed to the senses of the court.
When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court.
(1a)
B. DOCUMENTARY EVIDENCE
Section 2. Documentary evidence. — Documents as evidence consist of writing or any material
containing letters, words, numbers, figures, symbols or other modes of written expression offered as
proof of their contents. (n)
1. Best Evidence Rule
Section 3. 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 them is only the general
result of 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.
(2a)
Section 4. Original of document. —
(a) The original of the 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. (3a)
2. Secondary Evidence
Section 5. 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. (4a)
Section 6. When original document is in adverse party's custody or control. — If the document is in the
custody or under the control of 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. (5a)
Section 7. Evidence admissible when original document is a public record. — When the original of
document is in the custody of 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. (2a)
Section 8. Party who calls for document not bound to offer it. — A party who calls for the production of a
document and inspects the same is not obliged to offer it as evidence. (6a)
3. Parol Evidence Rule
Section 9. Evidence of written agreements. — When the terms of an agreement have been reduced to
writing, it is considered as containing all the terms agreed upon and there can be, between the parties
and their successors in interest, no evidence of such terms other than the contents of the written
agreement.
However, a party may present evidence to modify, explain or add to the terms of written agreement if
he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;
(b) The failure of the written agreement to express the true intent and agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors in interest after the
execution of the written agreement.
The term "agreement" includes wills. (7a)
4. Interpretation Of Documents
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The term "agreement" includes wills. (7a)
4. Interpretation Of Documents
Section 10. Interpretation of a writing according to its legal meaning. — The language of a writing is to
be interpreted according to the legal meaning it bears in the place of its execution, unless the parties
intended otherwise. (8)
Section 11. Instrument construed so as to give effect to all provisions. — In the construction of an
instrument, where there are several provisions or particulars, such a construction is, if possible, to be
adopted as will give effect to all. (9)
Section 12. Interpretation according to intention; general and particular provisions. — In the
construction of an instrument, the intention of the parties is to be pursued; and when a general and a
particular provision are inconsistent, the latter is paramount to the former. So a particular intent will
control a general one that is inconsistent with it. (10)
Section 13. Interpretation according to circumstances. — For the proper construction of an instrument,
the circumstances under which it was made, including the situation of the subject thereof and of the
parties to it, may be shown, so that the judge may be placed in the position of those who language he is
to interpret. (11)
Section 14. Peculiar signification of terms. — The terms of a writing are presumed to have been used in
their primary and general acceptation, but evidence is admissible to show that they have a local,
technical, or otherwise peculiar signification, and were so used and understood in the particular
instance, in which case the agreement must be construed accordingly. (12)
Section 15. Written words control printed. — When an instrument consists partly of written words and
partly of a printed form, and the two are inconsistent, the former controls the latter. (13)
Section 16. Experts and interpreters to be used in explaining certain writings. — When the characters in
which an instrument is written are difficult to be deciphered, or the language is not understood by the
court, the evidence of persons skilled in deciphering the characters, or who understand the language, is
admissible to declare the characters or the meaning of the language. (14)
Section 17. Of Two constructions, which preferred. — When the terms of an agreement have been
intended in a different sense by the different parties to it, that sense is to prevail against either party in
which he supposed the other understood it, and when different constructions of a provision are
otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the
provision was made. (15)
Section 18. Construction in favor of natural right. — When an instrument is equally susceptible of two
interpretations, one in favor of natural right and the other against it, the former is to be adopted. (16)
Section 19. Interpretation according to usage. — An instrument may be construed according to usage, in
order to determine its true character. (17)
C. TESTIMONIAL EVIDENCE
1. Qualification of Witnesses
Section 20. Witnesses; their qualifications. — Except as provided in the next succeeding section, all
persons who can perceive, and perceiving, can make their known perception to others, may be
witnesses.
Religious or political belief, interest in the outcome of the case, or conviction of a crime unless
otherwise provided by law, shall not be ground for disqualification. (18a)
Section 21. Disqualification by reason of mental incapacity or immaturity. — The following persons
cannot be witnesses:
(a) Those whose mental condition, at the time of their production for examination, is such that they are
incapable of intelligently making known their perception to others;
(b) Children whose mental maturity is such as to render them incapable of perceiving the facts
respecting which they are examined and of relating them truthfully. (19a)
Section 22. Disqualification by reason of marriage. — During their marriage, neither the husband nor
the wife may testify for or against the other without the consent of the affected spouse, except in a civil
case by one against the other, or in a criminal case for a crime committed by one against the other or
the latter's direct descendants or ascendants. (20a)
Section 23. Disqualification by reason of death or insanity of adverse party. — Parties or assignor of
parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator
or other representative of a deceased person, or against a person of unsound mind, upon a claim or
demand against the estate of such deceased person or against such person of unsound mind, cannot
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demand against the estate of such deceased person or against such person of unsound mind, cannot
testify as to any matter of fact occurring before the death of such deceased person or before such
person became of unsound mind. (20a)
Section 24. Disqualification by reason of privileged communication. — The following persons cannot
testify as to matters learned in confidence in the following cases:
(a) The husband or the wife, during or after the marriage, cannot be examined without the consent of
the other as to any communication received in confidence by one from the other during the marriage
except in a civil case by one against the other, or in a criminal case for a crime committed by one against
the other or the latter's direct descendants or ascendants;
(b) An attorney cannot, without the consent of his client, be examined as to any communication made
by the client to him, or his advice given thereon in the course of, or with a view to, professional
employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent
of the client and his employer, concerning any fact the knowledge of which has been acquired in such
capacity;
(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the
consent of the patient, be examined as to any advice or treatment given by him or any information
which he may have acquired in attending such patient in a professional capacity, which information was
necessary to enable him to act in capacity, and which would blacken the reputation of the patient;
(d) A minister or priest cannot, without the consent of the person making the confession, be examined
as to any confession made to or any advice given by him in his professional character in the course of
discipline enjoined by the church to which the minister or priest belongs;
(e) A public officer cannot be examined during his term of office or afterwards, as to communications
made to him in official confidence, when the court finds that the public interest would suffer by the
disclosure. (21a)
2. Testimonial Privilege
Section 25. Parental and filial privilege. — No person may be compelled to testify against his parents,
other direct ascendants, children or other direct descendants. (20a)
3. Admissions and Confessions
Section 26. Admission of a party. — The act, declaration or omission of a party as to a relevant fact may
be given in evidence against him. (22)
Section 27. Offer of compromise not admissible. — In civil cases, an offer of compromise is not an
admission of any liability, and is not admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to
be compromised, an offer of compromised by the accused may be received in evidence as an implied
admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not
admissible in evidence against the accused who made the plea or offer.
An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not
admissible in evidence as proof of civil or criminal liability for the injury. (24a)
Section 28. Admission by third party. — The rights of a party cannot be prejudiced by an act, declaration,
or omission of another, except as hereinafter provided. (25a)
Section 29. Admission by co-partner or agent. — The act or declaration of a partner or agent of the party
within the scope of his authority and during the existence of the partnership or agency, may be given in
evidence against such party after the partnership or agency is shown by evidence other than such act or
declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other
person jointly interested with the party. (26a)
Section 30. Admission by conspirator. — The act or declaration of a conspirator relating to the
conspiracy and during its existence, may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act of declaration. (27)
Section 31. Admission by privies. — Where one derives title to property from another, the act,
declaration, or omission of the latter, while holding the title, in relation to the property, is evidence
against the former. (28)
Section 32. Admission by silence. — An act or declaration made in the presence and within the hearing
or observation of a party who does or says nothing when the act or declaration is such as naturally to
call for action or comment if not true, and when proper and possible for him to do so, may be given in
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call for action or comment if not true, and when proper and possible for him to do so, may be given in
evidence against him. (23a)
Section 33. Confession. — The declaration of an accused acknowledging his guilt of the offense charged,
or of any offense necessarily included therein, may be given in evidence against him. (29a)
4. Previous Conduct as Evidence
Section 34. Similar acts as evidence. — Evidence that one did or did not do a certain thing at one time is
not admissible to prove that he did or did not do the same or similar thing at another time; but it may be
received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage,
and the like. (48a)
Section 35. Unaccepted offer. — An offer in writing to pay a particular sum of money or to deliver a
written instrument or specific personal property is, if rejected without valid cause, equivalent to the
actual production and tender of the money, instrument, or property. (49a)
5. Testimonial Knowledge
Section 36. Testimony generally confined to personal knowledge; hearsay excluded. — A witness can
testify only to those facts which he knows of his personal knowledge; that is, which are derived from his
own perception, except as otherwise provided in these rules. (30a)
6. Exceptions To The Hearsay Rule
Section 37. Dying declaration. — The declaration of a dying person, made under
the consciousness of an impending death, may be received in any case wherein his death is the subject
of inquiry, as evidence of the cause and surrounding circumstances of such death. (31a)
Section 38. Declaration against interest. — The declaration made by a person deceased, or unable to
testify, against the interest of the declarant, if the fact is asserted in the declaration was at the time it
was made so far contrary to declarant's own interest, that a reasonable man in his position would not
have made the declaration unless he believed it to be true, may be received in evidence against himself
or his successors in interest and against third persons. (32a)
Section 39. Act or declaration about pedigree. — The act or declaration of a person deceased, or unable
to testify, in respect to the pedigree of another person related to him by birth or marriage, may be
received in evidence where it occurred before the controversy, and the relationship between the two
persons is shown by evidence other than such act or declaration. The word "pedigree" includes
relationship, family genealogy, birth, marriage, death, the dates when and the places where these fast
occurred, and the names of the relatives. It embraces also facts of family history intimately connected
with pedigree. (33a)
Section 40. Family reputation or tradition regarding pedigree. — The reputation or tradition existing in a
family previous to the controversy, in respect to the pedigree of any one of its members, may be
received in evidence if the witness testifying thereon be also a member of the family, either by
consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings,
family portraits and the like, may be received as evidence of pedigree. (34a)
Section 41. Common reputation. — Common reputation existing previous to the controversy, respecting
facts of public or general interest more than thirty years old, or respecting marriage or moral character,
may be given in evidence. Monuments and inscriptions in public places may be received as evidence of
common reputation. (35)
Section 42. Part of res gestae. — Statements made by a person while a starting occurrence is taking
place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be
given in evidence as part of res gestae. So, also, statements accompanying an equivocal act material to
the issue, and giving it a legal significance, may be received as part of the res gestae. (36a)
Section 43. Entries in the course of business. — Entries made at, or near the time of transactions to
which they refer, by a person deceased, or unable to testify, who was in a position to know the facts
therein stated, may be received as prima facie evidence, if such person made the entries in his
professional capacity or in the performance of duty and in the ordinary or regular course of business or
duty. (37a)
Section 44. Entries in official records. — Entries in official records made in the performance of his duty
by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by
law, are prima facie evidence of the facts therein stated. (38)
Section 45. Commercial lists and the like. — Evidence of statements of matters of interest to persons
engaged in an occupation contained in a list, register, periodical, or other published compilation is
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engaged in an occupation contained in a list, register, periodical, or other published compilation is
admissible as tending to prove the truth of any relevant matter so stated if that compilation is published
for use by persons engaged in that occupation and is generally used and relied upon by them therein.
(39)
Section 46. Learned treatises. — A published treatise, periodical or pamphlet on a subject of history,
law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court
takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the
treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. (40a)
Section 47. Testimony or deposition at a former proceeding. — The testimony or deposition of a witness
deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving
the same parties and subject matter, may be given in evidence against the adverse party who had the
opportunity to cross-examine him. (41a)
7. Opinion Rule
Section 48. General rule. — The opinion of witness is not admissible, except as indicated in the following
sections. (42)
Section 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special
knowledge, skill, experience or training which he shown to posses, may be received in evidence. (43a)
Section 50. Opinion of ordinary witnesses. — The opinion of a witness for which proper basis is given,
may be received in evidence regarding —
(a) the identity of a person about whom he has adequate knowledge;
(b) A handwriting with which he has sufficient familiarity; and
(c) The mental sanity of a person with whom he is sufficiently acquainted.
The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a
person. (44a)
8. Character Evidence
Section 51. Character evidence not generally admissible; exceptions: —
(a) In Criminal Cases:
(1) The accused may prove his good moral character which is pertinent to the moral trait involved in the
offense charged.
(2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the
moral trait involved in the offense charged.
(3) The good or bad moral character of the offended party may be proved if it tends to establish in any
reasonable degree the probability or improbability of the offense charged.
(b) In Civil Cases:
Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of
character involved in the case.
(c) In the case provided for in Rule 132, Section 14, (46a, 47a)
RULE 131
Burden of Proof and Presumptions
Section 1. Burden of proof. — Burden of proof is the duty of a party to present evidence on the facts in
issue necessary to establish his claim or defense by the amount of evidence required by law. (1a, 2a)
Section 2. Conclusive presumptions. — The following are instances of conclusive presumptions:
(a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to
another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising
out of such declaration, act or omission, be permitted to falsify it:
(b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the
relation of landlord and tenant between them. (3a)
Section 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted,
but may be contradicted and overcome by other evidence:
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of his voluntary act;
(d) That a person takes ordinary care of his concerns;
(e) That evidence willfully suppressed would be adverse if produced;
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(e) That evidence willfully suppressed would be adverse if produced;
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the latter;
(h) That an obligation delivered up to the debtor has been paid;
(i) That prior rents or installments had been paid when a receipt for the later one is produced;
(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker
and the doer of the whole act; otherwise, that things which a person possess, or exercises acts of
ownership over, are owned by him;
(k) That a person in possession of an order on himself for the payment of the money, or the delivery of
anything, has paid the money or delivered the thing accordingly;
(l) That a person acting in a public office was regularly appointed or elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction;
(o) That all the matters within an issue raised in a case were laid before the court and passed upon by it;
and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid
before the arbitrators and passed upon by them;
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a sufficient consideration;
(t) That an endorsement of negotiable instrument was made before the instrument was overdue and at
the place where the instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the regular course of the mail;
(w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is
considered dead for all purposes, except for those of succession.
The absentee shall not be considered dead for the purpose of opening his succession till after an
absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall
be sufficient in order that his succession may be opened.
The following shall be considered dead for all purposes including the division of the estate among the
heirs:
(1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been
heard of for four years since the loss of the vessel or aircraft;
(2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four
years;
(3) A person who has been in danger of death under other circumstances and whose existence has not
been known for four years;
(4) If a married person has been absent for four consecutive years, the spouse present may contract a
subsequent marriage if he or she has well-founded belief that the absent spouse is already death. In
case of disappearance, where there is a danger of death the circumstances hereinabove provided, an
absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage.
However, in any case, before marrying again, the spouse present must institute a summary proceedings
as provided in the Family Code and in the rules for declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the absent spouse.
(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or
fact;
(y) That things have happened according to the ordinary course of nature and ordinary nature habits of
life;
(z) That persons acting as copartners have entered into a contract of copartneship;
(aa) That a man and woman deporting themselves as husband and wife have entered into a lawful
contract of marriage;
(bb) That property acquired by a man and a woman who are capacitated to marry each other and who
live exclusively with each other as husband and wife without the benefit of marriage or under void
marriage, has been obtained by their joint efforts, work or industry.
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marriage, has been obtained by their joint efforts, work or industry.
(cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other
and who have acquire properly through their actual joint contribution of money, property or industry,
such contributions and their corresponding shares including joint deposits of money and evidences of
credit are equal.
(dd) That if the marriage is terminated and the mother contracted another marriage within three
hundred days after such termination of the former marriage, these rules shall govern in the absence of
proof to the contrary:
(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is
considered to have been conceived during such marriage, even though it be born within the three
hundred days after the termination of the former marriage.
(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is
considered to have been conceived during such marriage, even though it be born within the three
hundred days after the termination of the former marriage.
(ee) That a thing once proved to exist continues as long as is usual with things of the nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be printed or published by public authority, was so
printed or published;
(hh) That a printed or published book, purporting contain reports of cases adjudged in tribunals of the
country where the book is published, contains correct reports of such cases;
(ii) That a trustee or other person whose duty it was to convey real property to a particular person has
actually conveyed it to him when such presumption is necessary to perfect the title of such person or his
successor in interest;
(jj) That except for purposes of succession, when two persons perish in the same calamity, such as
wreck, battle, or conflagration, and it is not shown who died first, and there are no particular
circumstances from which it can be inferred, the survivorship is determined from the probabilities
resulting from the strength and the age of the sexes, according to the following rules:
1. If both were under the age of fifteen years, the older is deemed to have survived;
2. If both were above the age sixty, the younger is deemed to have survived;
3. If one is under fifteen and the other above sixty, the former is deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived,
if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have
survived.
(kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as
to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in
the absence of proof, they shall be considered to have died at the same time. (5a)
Section 4. No presumption of legitimacy or illegitimacy. — There is no presumption of legitimacy of a
child born after three hundred days following the dissolution of the marriage or the separation of the
spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. (6)
RULE 132
Presentation of Evidence
A. EXAMINATION OF WITNESSES
Section 1. Examination to be done in open court. — The examination of witnesses presented in a trial or
hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated
to speak, or the questions calls for a different mode of answer, the answers of the witness shall be given
orally. (1a)
Section 2. Proceedings to be recorded. — The entire proceedings of a trial or hearing, including the
questions propounded to a witness and his answers thereto, the statements made by the judge or any
of the parties, counsel, or witnesses with reference to the case, shall be recorded by means of
shorthand or stenotype or by other means of recording found suitable by the court.
A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder
and certified as correct by him shall be deemed prima facie a correct statement of such proceedings.
(2a)
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(2a)
Section 3. Rights and obligations of a witness. — A witness must answer questions, although his answer
may tend to establish a claim against him. However, it is the right of a witness:
(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting
demeanor;
(2) Not to be detained longer than the interests of justice require;
(3) Not to be examined except only as to matters pertinent to the issue;
(4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise
provided by law; or
(5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue
or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his
previous final conviction for an offense. (3a, 19a)
Section 4. Order in the examination of an individual witness. — The order in which the individual witness
may be examined is as follows;
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross-examination by the opponent. (4)
Section 5. Direct examination. — Direct examination is the examination-in-chief of a witness by the
party presenting him on the facts relevant to the issue. (5a)
Section 6. Cross-examination; its purpose and extent. — Upon the termination of the direct
examination, the witness may be cross-examined by the adverse party as to many matters stated in the
direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy
and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts
bearing upon the issue. (8a)
Section 7. Re-direct examination; its purpose and extent. — After the cross-examination of the witness
has been concluded, he may be re-examined by the party calling him, to explain or supplement his
answers given during the cross-examination. On re-direct-examination, questions on matters not dealt
with during the cross-examination, may be allowed by the court in its discretion. (12)
Section 8. Re-cross-examination. — Upon the conclusion of the re-direct examination, the adverse party
may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other
matters as may be allowed by the court in its discretion. (13)
Section 9. Recalling witness. — After the examination of a witness by both sides has been concluded,
the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its
discretion, as the interests of justice may require. (14)
Section 10. Leading and misleading questions. — A question which suggests to the witness the answer
which the examining party desires is a leading question. It is not allowed, except:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or
a child of tender years, or is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or private
corporation or of a partnership or association which is an adverse party.
A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary
to that which he has previously stated. It is not allowed. (5a, 6a, and 8a)
Section 11. Impeachment of adverse party's witness. — A witness may be impeached by the party
against whom he was called, by contradictory evidence, by evidence that his general reputation for
truth, honestly, or integrity is bad, or by evidence that he has made at other times statements
inconsistent with his present, testimony, but not by evidence of particular wrongful acts, except that it
may be shown by the examination of the witness, or the record of the judgment, that he has been
convicted of an offense. (15)
Section 12. Party may not impeach his own witness. — Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his
credibility.
Evidence Page 9
credibility.
A witness may be considered as unwilling or hostile only if so declared by the court upon adequate
showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into
calling him to the witness stand.
The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached
by the party presenting him in all respects as if he had been called by the adverse party, except by
evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but
such cross-examination must only be on the subject matter of his examination-in-chief. (6a, 7a)
Section 13. How witness impeached by evidence of inconsistent statements. — Before a witness can be
impeached by evidence that he has made at other times statements inconsistent with his present
testimony, the statements must be related to him, with the circumstances of the times and places and
the persons present, and he must be asked whether he made such statements, and if so, allowed to
explain them. If the statements be in writing they must be shown to the witness before any question is
put to him concerning them. (16)
Section 14. Evidence of good character of witness. — Evidence of the good character of a witness is not
admissible until such character has been impeached. (17)
Section 15. Exclusion and separation of witnesses. — On any trial or hearing, the judge may exclude
from the court any witness not at the time under examination, so that he may not hear the testimony of
other witnesses. The judge may also cause witnesses to be kept separate and to be prevented from
conversing with one another until all shall have been examined. (18)
Section 16. When witness may refer to memorandum. — A witness may be allowed to refresh his
memory respecting a fact, by anything written or recorded by himself or under his direction at the time
when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his
memory and knew that the same was correctly written or recorded; but in such case the writing or
record must be produced and may be inspected by the adverse party, who may, if he chooses, cross
examine the witness upon it, and may read it in evidence. So, also, a witness may testify from such
writing or record, though he retain no recollection of the particular facts, if he is able to swear that the
writing or record correctly stated the transaction when made; but such evidence must be received with
caution. (10a)
Section 17. When part of transaction, writing or record given in evidence, the remainder, the remainder
admissible. — When part of an act, declaration, conversation, writing or record is given in evidence by
one party, the whole of the same subject may be inquired into by the other, and when a detached act,
declaration, conversation, writing or record is given in evidence, any other act, declaration,
conversation, writing or record necessary to its understanding may also be given in evidence. (11a)
Section 18. Right to respect writing shown to witness. — Whenever a writing is shown to a witness, it
may be inspected by the adverse party. (9a)
B. AUTHENTICATION AND PROOF OF DOCUMENTS
Section 19. Classes of Documents. — For the purpose of their presentation evidence, documents are
either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and
tribunals, and public officers, whether of the Philippines, or of a foreign country;
(b) Documents acknowledge before a notary public except last wills and testaments; and
(c) Public records, kept in the Philippines, of private documents required by law to the entered therein.
All other writings are private. (20a)
Section 20. Proof of private document. — Before any private document offered as authentic is received
in evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be. (21a)
Section 21. When evidence of authenticity of private document not necessary. — Where a private
document is more than thirty years old, is produced from the custody in which it would naturally be
found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence
of its authenticity need be given. (22a)
Section 22. How genuineness of handwriting proved. — The handwriting of a person may be proved by
Evidence Page 10
of its authenticity need be given. (22a)
Section 22. How genuineness of handwriting proved. — The handwriting of a person may be proved by
any witness who believes it to be the handwriting of such person because he has seen the person write,
or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus
acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also
be given by a comparison, made by the witness or the court, with writings admitted or treated as
genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction
of the judge. (23a)
Section 23. Public documents as evidence. — Documents consisting of entries in public records made in
the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All
other public documents are evidence, even against a third person, of the fact which gave rise to their
execution and of the date of the latter. (24a)
Section 24. Proof of official record. — The record of public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a
copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if
the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office
in which the record is kept is in foreign country, the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office. (25a)
Section 25. What attestation of copy must state. — Whenever a copy of a document or record is
attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct
copy of the original, or a specific part thereof, as the case may be. The attestation must be under the
official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under
the seal of such court. (26a)
Section 26. Irremovability of public record. — Any public record, an official copy of which is admissible in
evidence, must not be removed from the office in which it is kept, except upon order of a court where
the inspection of the record is essential to the just determination of a pending case. (27a)
Section 27. Public record of a private document. — An authorized public record of a private document
may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record,
with an appropriate certificate that such officer has the custody. (28a)
Section 28. Proof of lack of record. — A written statement signed by an officer having the custody of an
official record or by his deputy that after diligent search no record or entry of a specified tenor is found
to exist in the records of his office, accompanied by a certificate as above provided, is admissible as
evidence that the records of his office contain no such record or entry. (29)
Section 29. How judicial record impeached. — Any judicial record may be impeached by evidence of: (a)
want of jurisdiction in the court or judicial officer, (b) collusion between the parties, or (c) fraud in the
party offering the record, in respect to the proceedings. (30a)
Section 30. Proof of notarial documents. — Every instrument duly acknowledged or proved and certified
as provided by law, may be presented in evidence without further proof, the certificate of
acknowledgment being prima facie evidence of the execution of the instrument or document involved.
(31a)
Section 31. Alteration in document, how to explain. — The party producing a document as genuine
which has been altered and appears to have been altered after its execution, in a part material to the
question in dispute, must account for the alteration. He may show that the alteration was made by
another, without his concurrence, or was made with the consent of the parties affected by it, or was
otherwise properly or innocent made, or that the alteration did not change the meaning or language of
the instrument. If he fails to do that, the document shall not be admissible in evidence. (32a)
Section 32. Seal. — There shall be no difference between sealed and unsealed private documents
insofar as their admissibility as evidence is concerned. (33a)
Section 33. Documentary evidence in an unofficial language. — Documents written in an unofficial
language shall not be admitted as evidence, unless accompanied with a translation into English or
Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such
translation prepared before trial. (34a)
C. OFFER AND OBJECTION
Section 34. Offer of evidence. — The court shall consider no evidence which has not been formally
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C. OFFER AND OBJECTION
Section 34. Offer of evidence. — The court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be specified. (35)
Section 35. When to make offer. — As regards the testimony of a witness, the offer must be made at the
time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a party's testimonial
evidence. Such offer shall be done orally unless allowed by the court to be done in writing. (n)
Section 36. Objection. — Objection to evidence offered orally must be made immediately after the offer
is made.
Objection to a question propounded in the course of the oral examination of a witness shall be made as
soon as the grounds therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after notice of the unless a
different period is allowed by the court.
In any case, the grounds for the objections must be specified. (36a)
Section 37. When repetition of objection unnecessary. — When it becomes reasonably apparent in the
course of the examination of a witness that the question being propounded are of the same class as
those to which objection has been made, whether such objection was sustained or overruled, it shall not
be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing
objection to such class of questions. (37a)
Section 38. Ruling. — The ruling of the court must be given immediately after the objection is made,
unless the court desires to take a reasonable time to inform itself on the question presented; but the
ruling shall always be made during the trial and at such time as will give the party against whom it is
made an opportunity to meet the situation presented by the ruling.
The reason for sustaining or overruling an objection need not be stated. However, if the objection is
based on two or more grounds, a ruling sustaining the objection on one or some of them must specify
the ground or grounds relied upon. (38a)
Section 39. Striking out answer. — Should a witness answer the question before the adverse party had
the opportunity to voice fully its objection to the same, and such objection is found to be meritorious,
the court shall sustain the objection and order the answer given to be stricken off the record.
On proper motion, the court may also order the striking out of answers which are incompetent,
irrelevant, or otherwise improper. (n)
Section 40. Tender of excluded evidence. — If documents or things offered in evidence are excluded by
the court, the offeror may have the same attached to or made part of the record. If the evidence
excluded is oral, the offeror may state for the record the name and other personal circumstances of the
witness and the substance of the proposed testimony. (n)
RULE 133
Weight and Sufficiency of Evidence
Section 1. Preponderance of evidence, how determined. — In civil cases, the party having burden of
proof must establish his case by a preponderance of evidence. In determining where the preponderance
or superior weight of evidence on the issues involved lies, the court may consider all the facts and
circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which there are testifying, the nature of the facts to which they
testify, the probability or improbability of their testimony, their interest or want of interest, and also
their personal credibility so far as the same may legitimately appear upon the trial. The court may also
consider the number of witnesses, though the preponderance is not necessarily with the greater
number. (1a)
Section 2. Proof beyond reasonable doubt. — In a criminal case, the accused is entitled to an acquittal,
unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such
a degree of proof, excluding possibility of error, produces absolute certainly. Moral certainly only is
required, or that degree of proof which produces conviction in an unprejudiced mind. (2a)
Section 3. Extrajudicial confession, not sufficient ground for conviction. — An extrajudicial confession
made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of
corpus delicti. (3)
Section 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for
conviction if:
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conviction if:
(a) There is more than one circumstances;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt. (5)
Section 5. Substantial evidence. — In cases filed before administrative or quasi-judicial bodies, a fact
may be deemed established if it is supported by substantial evidence, or that amount of relevant
evidence which a reasonable mind might accept as adequate to justify a conclusion. (n)
Section 6. Power of the court to stop further evidence. — The court may stop the introduction of further
testimony upon any particular point when the evidence upon it is already so full that more witnesses to
the same point cannot be reasonably expected to be additionally persuasive. But this power should be
exercised with caution. (6)
Section 7. Evidence on motion. — When a motion is based on facts not appearing of record the court
may hear the matter on affidavits or depositions presented by the respective parties, but the court may
direct that the matter be heard wholly or partly on oral testimony or depositions. (7)
RULE 134 1
Perpetuation of Testimony
Section 1. Petition. — A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be
cognizable in any court of the Philippines, any file a verified petition in the court of the province of the residence of any expected adverse
party.
Section 2. Contents of petition. — The petition shall be entitled in the name of the petitioner and shall show: (a) that the petitioner expects to
be a party to an action in a court of the Philippines by is presently unable to bring it or cause it to be brought; (b) the subject matter of the
expected action and his interest therein; (c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to
perpetuate it; (d) the names of a description of the persons he expects will be adverse parties and their addresses so far as known; and (e)
the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall
ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of
perpetuating their testimony.
Section 3. Notice and service. — The petitioner shall thereafter serve a notice upon each person named in the petition as an expected
adverse party, together with a copy of a petition, stating that the petitioner will apply to the court, at a time and place named therein, for the
order described in the petition. At least twenty (20) days before the date of hearing the notice shall be served in the manner provided for
service of summons.
Section 4. Order of examination. — If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it
shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the
examination, and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken
in accordance with Rule 24 before the hearing.
Section 5. Reference to court. — For the purpose of applying Rule 24 to depositions for perpetuating testimony, each reference therein to
the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.
Section 6. Use of deposition. — If a deposition to perpetuate testimony is taken under this rule, or if, although not so taken, it would be
admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the
provisions of Sections 4 and 5 of Rule 24.
Section 7. Depositions pending appeal. — If an appeal has been taken from a judgment of the Regional Trial Court or before the taking of an
appeal if the time therefor has not expired, the Regional Trial Court in which the judgment was rendered may allow the taking of depositions
of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to
perpetuate the testimony may make a motion in the said Regional Trial Court for leave to take the depositions, upon the same notice and
service thereof as if the action was pending therein. The motion shall show (a) the name and the addresses of the persons to be examined
and the substance of the testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony.If the court finds
that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be
taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these
rules for depositions taken in actions pending in the Regional Trial Court. (7a)
Footnote
This rule will be transposed to Part 1 of the Rules of Court on Deposition and Discovery.
Evidence Page 13
First Meeting: Preliminaries and Rule 128
Grading System:
10% Attendance
10% Recit
30% Midterms
50% Finals
Textbooks: Regalado/Herrera
Evidence
Rule 128
Section 1. Definition of Evidence
Evidence is the means
…sanctioned by these rules
…of ascertaining in a judicial proceeding
…the truth
…of a matter of fact
Elements of Evidence
1. Means: a method, a procedure, a guide
2. ROC: "sanctioned by these rules"
3. Judicial Proceeding: Under Judiciary branch (3 branches of government essential)
4. Truth: Not moral truth but legal truth: what is proven by the evidence presented by the parties, not
what really happened
5. Matter of fact
Means...
…it is the means used in judicial proceedings…
…for fairness
Rules of Court
…the rules of evidence may be found in other laws or used in other proceedings BUT the RULES OF
EVIDENCE under the RULES OF COURT are only used in Judicial Proceedings
Does the rules of Evidence apply in all proceedings in our LEGAL SYSTEM?
Yes, if rules of evidece in general. The rules of evidence may be found in other laws and applied in other
proceedings.
e.g. In the Constitution (Bill of rights, Sections 2,3, 12, 17…)
No if Rules of Evidence under Rules of Court as Rule 128.1 specifically says that it only applies to Judicial
Proceedings
Judicial Proceedings
Differentiate the 3 branches of government
When did the Philippines had its first Republic (with 3 branches of Government)?
The Filipino-Spanish war was for 2 years (1896 to 1898) and in 1898, Aguinaldo declared Philippine
Independence and established the Malolos Congress. But the Filipino -American War ensued (3 years,
not sure though from when til when). The Philippines only had its own republic when it finally achieved
independence in 1945.
Branches of Government
1. Executive: it implements/enforces/execute laws. Does not make laws
Administrative proceedings: under the executive.
A Quasi-Judicial Agency is under the Executive but it performs quasi -judicial functions. Its proceedings
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are "quasi-judicial proceedings" and not Judicial proceedings, as specified under R128.1
Constitutional Commissions are NOT under the executive (they are independent bodies) but they also
perform "quasi-judicial proceedings" and not judicial proceedings.
2. Legislative: they make laws; they can either make you sad or happy
who the legislature?
Congress: Both houses
But are local legislative bodies considered part of the legislature? They do make laws in the form of
ordinances but they are not part of Congress...
YES, local legislative bodies are part of the legislative branch of government BUT they have only local
jurisdiction. The Congress has national jurisdiction to make laws, i.e. the laws they make apply to the
whole State.
Answer: Judicial proceedings, as governed by the ROC, are these when the Court of law is exercising its
judicial power/function
Courts of law are those whose jurisdiction is conferred by law
UNLESS: A special law requires otherwise
Example ni ma'am:
What if a judge saw and heard a man being beaten to death by his wife. Then the case for homicide
was raffled to his sala. Could he use what he had seen and heard in deciding the case?
NO. The judge should only use the EVIDENCE which was presented to him and the law governing the
case in deciding the case. Aspects of the lady justice with blindfold applies here. The judge should not let
his prejudices hinder his judgment and should decide only on the basis of evidence and law.
Truth
Not moral truth. Only legal truth, as established by the evidence presented by the parties.
Matter of Fact
Look for truths in respect to facts
2 Kinds of Facts:
1. Factum Probandum (UF) - the proposition which is sought to be proven. Usually an element of the
offense that is needed to establish the injury
2. Factum Probans (EF) - the facts that would support or establish the factum probandum
How to answer? Answer the 5Ws and 1H of journalists
Proof
- the effect of evidence
-it is when the evidence presented is sufficient to establish the QUANTUM of EVIDENCE required of the
situation
Example: When Hubert Webb presented as defense an Alibi that he was in the US, skiing at Lake Ohayo,
when the crime was committed
UF (for defense): He did not kill the Vizcondes
Intermediate Fact (which is both a EF and a UF): He has an Alibi that he was in the US
EF: Photos taken of him skiing (Object Evidence)
Testimony that he was in US (Testimonial Evidence)
His passport showing that he was in the US (Documentary Evidence)
*There are many intermediate facts that are needed to be proven to arrive at UF. It, itself, is a factum
probans.
Evidence Page 15
June 18 Meeting
Wednesday, June 24, 2009
11:49 PM
12 Angry Men
-film showing and exercises on Tuesday
Types of Evidence
Form
a. Object
b. Documentary
c. Testimonial
Relevance
-logical
-does the rule give a criterion for relevance? YES
WON the evidence would induce belief in the existence or non-existence of the fact in issue
Someone is killed - homicide
Fact in issue: WON the person is dead
Evidence: Body of the victim
*but Death is a Conclusion, not UF (there is presumptive death)
ULIT: if someone wants to claim as a successor of a person who dies, what should he show?
- Death Certificate from Register of Deeds
Existence/nonexistence: What does it mean? WON it happened? Is it true or false? How do ou know if
evidence would induce belief?
Common sense: Practice and experience
Induce belief…not completely convince you to believe but would INDUCE you to believe
…if more than 50%, Relevant
If the picture is merely circumstantial, it requires other evidences to make an inference on what
happened. But ma'am A said that each evidence should be relevant on its own.
FINAL ANSWER Re: Sexy Dancing Picture of Nicole: IRRELEVANT!!!! For defense
-would not induce belief that Nicole consented to sex just because she danced sexily
Evidence Page 16
-would not induce belief that Nicole consented to sex just because she danced sexily
A lady confessed to a priest and left her bag with diamonds in the confession booth. Since the said bag
was not found, the lady accused the priest of stealing the bag with diamonds. Priest presents evidence
that he had not committed a single crime in his life; he had been a sacristan when he was young and
even then, he showed signs that he would become a priest…
Are the evidence presented by the Accused Relevant?
YES. R130.4 As character evidence: it is relevant to prove MORAL CHARACTER
RELEVANT: Induce belief to existence/nonexistence of a fact in issue: WON he stole the diamonds
RELEVANCE
-degree
-reasonability
So if irrelevant, unreasonable + less than 50% degree of certainty
Instead of a gun, the policeman saw a driver's license upon inspection of the bag. The policeman did not
see the face of the man who was running from inside the bank.
Is the driver's license circumstantial evidence?
It is not even relevant! It is relevant to the police to establish leads of who the suspects are but this
alone could not be admissible before the court
TO CHECK RELEVANCE, ALWAYS LOOK AT THE FACTUM PROBANDUM (THE FACT IN ISSUE) and check if
the evidence would induce belief as to the existence or nonexistence of the factum probandum
Evidence Page 17
12 Angry Men
Thursday, June 25, 2009
7:51 AM
There was the lady from across the street (and in between their buildings were the El Train) who
allegedly saw the accused stabbing his father right when the last two trains of the El Train passed by.
Shopkeeper of the Knife store - said that at the night of the murder, the accused bought from him a
switchblade which is unique. The said switchblade was the same one left on the body of the victim.
There was also the fact that the kid was an expert in handling knives.
Object Evidence
The switchblade:
-the switchblade was allegedly brought by the accused at the night of the crime from a neighborhood
shop. The man at the shop said that it was a unique knife, and that the murder weapon (the
switchblade) was the same one the kid bought from him.
DEFENSE: the switchblade fell from his pocket before he went home
Another fact: Jury member #11 (James Fonda) bought another switchblade which is the same as the
murder weapon, showing that the switchblade is not the only one existing and thus, could show that the
accused did not own the knife, and thus, could not have been the person who killed his father
*note: there was no one who could positively identify the killer. The accused was linked to the murder
weapon because the shop owner said it was a unique knife and the accused was the one who bought it
from him at the night of the crime
Evidence
Exercise on 12 Angry M en (last year)
Exercises:
Group members:
(sagot ng group)
Bauza, Brian Ashley
Group 3
Cantre, Recolito Ferdinand
Azura, Jonas Julius Caesar (3A)
Capones, Joanna Eileen
Miura, Kiyoharu (3A)
Capul, Christopher
Tabamo, Jose Jat (3A)
Arcilla, Juan Antonio (4E) Estoy, Mary Grace
Mendoza, Charisse Mae (4E) Mendoza, Charisse Mae
Pineda, Giulia Francesca (4E) Po, Glaisa Christine
Villanueva, Aida Rose (4E) Sicat, Melissa
Evidence Page 18
prosecution to bolster their allegation that indeed it was the
3. Frequent quarrels of the accused with his father –
accused who killed the victim.
Relevant
Irrelevant: The accused was positively identified by a witness
Relevant to the PROSECUTION because it
as the one who stabbed the victim so there is no doubt as to the
would induce belief that the son has
identity of the accused; therefore, statements as to the existence
tumultuous relationship with his father and
could possibly have committed the crime of a motive is not relevant to the fact in issue of whether or not
of murdering his father. the accused did kill the victim. The statements do not have a
relation to the fact in issue as to induce belief in the existence of
the fact that the accused killed his father. Further, it does not
4. Identical knife produced – Relevant
necessarily follow that when a child is “kicked and slapped
It is relevant to the DEFENSE because the
around”, he would kill his father.
prosecution relied on the uniqueness of the
*Group’s decision: Irrelevant
knife to link the murder weapon to the
accused. In addition having an identical
knife presented in court would reasonably 2. The witness’ testimony that he heard the accused shout, “I’ll
induce belief that the murder weapon is not kill you!” during a fight with his father.
unique as claimed by the prosecution and Relevant: For the prosecution, the statement is relevant as it
that at the time of the murder, some other tends to establish the fact that the accused was so angry that he
person could have possessed the knife and even threatened to kill the victim.
committed the crime. Irrelevant: The statement does not induce belief that the
accused indeed killed the victim. First, they were fighting and
5. Height or direction of the stab wound – Relevant during a fight, one could get emotional to the point that he may
It is relevant to the DEFENSE because it hurl threats to the other. The statement made by the accused
would induce belief that the accused could could just be an expression of anger towards his father and is
not have committed the crime because a not really a threat on the latter’s life. Second, there is no
person who is used to handling a indication that the said fight happened right before the victim
switchblade knife, like the accused, would was stabbed as to lead one to believe that the accused stabbed
most likely plunge the knife from below with his father out of anger. The witness may have heard the accused
an upward motion. shout the said statement in another time, not particularly before
the victim was killed.
It is relevant to the PROSECUTION *Group’s decision: Irrelevant
because it would establish the position of
the accused relative to the victim when 3. That the murder weapon found by the police beside the body
the latter was stabbed. of the victim was identified as the same knife earlier bought by
the accused from a neighborhood junkshop
6. Impressed marks on the ridge of the nose – Relevant: The statement tends to induce belief that the accused
Relevant did kill the victim as the knife he bought was identified as the
It is relevant to the DEFENSE because the same knife found by the police beside the body of the victim
witness, whose testimony was being relied which was used as the murder weapon. He bought the knife,
on in identifying the accused as the killer, more likely he keeps it with him, and unlikely that he would let
could not have clearly seen the accused in other persons borrow it (as who would want to borrow a
the act of committing the crime. knife???).
*Group’s decision: Relevant
7. Limp of the old man – Relevant
It is relevant to the DEFENSE because it 4. That the accused “lied” about being in the theater at the time
tends to show that the old man could not of the murder because upon questioning, he could not even
have made it to the door in time to see the remember the titles of the movies he viewed, let alone the actors
accused rushing down the stairs. who played in them
Relevant: The statement could weaken the alibi of the accused
8. Personal and emotional history of the witness – that he was at the theater as it tends to establish the
Irrelevant improbability of the fact that he was indeed at the said place.
This is irrelevant because the witness' After having established that it was impossible for the accused
personal and emotional history does not to be at the theater when the victim was killed, then it could
erase the fact that he/she did not see or induce one to believe that he was at their house and that he
hear something. indeed killed his father.
Irrelevant: It does not mean that when the accused cannot
9. Time and motion demonstration – Irrelevant remember the titles of the movies he viewed nor the actors who
This is irrelevant because the demonstration played in them, he did not watch the film and was not in the
could not accurately depict the speed and theater as to lead one to believe that he was at the scene of the
manner of the old man walking down the crime and was the one who killed the victim. If he was indeed
hallway. lying, i.e. he was not really at the theater, it does not
automatically mean that he killed his father. He might even be a
10. Location of the scene of the crime beside the El pathological liar.
Train – Relevant *Group’s decision: Irrelevant
This is relevant to the DEFENSE because
the presence of the El Train obscures sight *5. That a juryman (a witness) once lived through the L-line and
and sound and could thus affect the said the sound of the passing train was “almost unbearable”,
accuracy of the perception of the witness. belying the witness’ claim of hearing something as to have
prompted her to look out and thus saw the stabbing through the
11. That the accused left in a hurry – Relevant last two cars of the passing train
It is relevant to the PROSECUTION since Relevant: The statement of the jury-witness bolsters the
flight refutes the alibi by pointing out that the testimony of the witness who said that she heard something
person was at home instead of being at the which prompted her to look out. The said witness claims that
movies. she saw the stabbing right after looking out which strengthens
her credibility as a witness, therefore, would lead one to believe
12. That the accused couldn't remember the titles that the witness positively saw the accused stabbing the victim.
and names of the actors in the movie – It is Irrelevant: The sound of the passing train being “almost
relevant to the PROSECUTION because it is a unbearable” does not have any relation to the fact being
way of disproving the alibi offered by the established, i.e., that the witness indeed saw the accused
accused. stabbing the victim. Whatever she did or did not hear does not
determine whether or not the son killed the father.
*Group’s decision: Irrelevant
Evidence Page 19
wears glasses often. People who wear glasses do not have 20/20
vision. The witness in the movie testified that she was already in
bed but could not fall asleep when she saw the stabbing. People
who wear glasses do not usually wear them to bed. Therefore, if
the witness did not have 20/20 vision and she probably did not
have her glasses on at that time, then she testified that she saw
the accused stab the victim, there is doubt if she was certain of
the identity of the accused. As the compression marks tend to
induce one to believe that the accused did not kill his father
(although indirectly), then it is relevant.
Irrelevant: The statement alone would not be relevant to the
case, as the compression marks would not prove anything.
Granted that the said marks could be seen on someone who
wears glasses and that the witness’ eyesight was not 20/20, still
there was no showing that the witness was not wearing her
glasses when she saw the stabbing. The witness could have
been wearing her glasses at that time so that she clearly saw the
accused stab the victim.
*Group’s decision: Relevant
Evidence Page 20
killed his father, and probably ran away because of guilt. Flight
is an indication of guilt.
Irrelevant: The reenactment is inherently subjective, i.e., the
result of the scene would depend on the actors who act out the
scene. The reenactment may not be accurate as to bolster the
testimony of the witness. Further, the witness may have been
driven by adrenalin rush after hearing the threat of the accused
to kill the victim. The “thud” that he heard could have induced
him to believe that something bad happened. With adrenalin
rush, the witness could have walked faster than how he did
during the trial.
*Group’s decision: Relevant
11. When asked by other members of the jury, one of them who
personally knew the witness said his motive for coming forward
with a false testimony could possibly be to get much-needed
attention, for the witness was a largely ignored old man in the
community
Relevant: The statement could cast doubt on the credibility of
the witness and would therefore induce one to believe that the
accused did not kill his father, as testified by the said witness.
Irrelevant: Even if a man is old, largely ignored in the
community, and just wanted attention, these would not mean
that he is a liar and not telling the truth. Further, there is no
showing that the old man has a motive against the accused to
impute to the accused a crime which he did not commit just to
get attention.
*Group’s decision: Irrelevant
Evidence Page 21
Air France vs. Carrascoso
Thursday, July 02, 2009
8:45 AM
Evidence Page 22
Hernaez vs. McGrath
Thursday, July 02, 2009
8:48 AM
HERNAEZ v McGRATH Hernaez v McGrath
TUASON; July 9, 1952
Do you agree w the ruling of the Ct?
G.R. No. L-4044
(jojo) BER dsnt apply bec the issue is the existence of a docum & not its contents
C t admitted the PE presented by the Jap Co to prove the existence of a deed of sale
NATURE
executed by Hernaez
- On action of ejectment and for damages commenced in the CFI of Manila by Pedro C. Hernaez and Asuncion de la Rama
Vda. de Alunan, in her ow n behalf and as an administratix of the estate of her deceased husband, Rafael R. Alunan, against Ruling of the C t: when its not the contents of a docum (a writing, matl containing a
the Philippine Alien Property Administration (PAPA). writing) that is the subj of inquiry, BER dsnt apply
Subj of inquiry was the existence of a deed of sale – was claiming that he ddnt sell
FACTS
his props
- Rafael Alunan and Pedro Hernaez formerly were registered owners in equal share of a land, 8 contiguous parcels with a
combined area of 4,533.34 sqm covered by TCT Nos. 46872-46880 and situated in the corner of Cortabitarte and Dew ey o But they did execute a sale
Boulev ard, Manila. 8 residential houses were built on these lots but they were destroyed by war operations in the early partof C ontents of the deed of sale weren’t in inquiry – so BER dsnt apply
1945.
In Feb. 1943, a deed of sale, on w hich Alunan's and Hernaez names were signed as sellers and the Hakodate Dock Co., Ltd., a C t didn’t consider it as the contents as in issue but the existence of the deed of sale
Japanese commercial firm, as buyer, in consideration of P170,000, was presented for registration in the office of register of If the Q is WON there was a sale, aren’t you asking abt the contents of the deed of
deeds, and on March 3, TCT Nos. 66832-66839 in the name of the purchaser were issued in lieu of the old CT Nos. sale?
53930-53938, w hic h were totally cancelled. On the strength of this registration,the lots and all improvements still existing
thereon w ere v ested as property of an enemy national by the PAPA, a US Government instrumentality, In April 1947, under the o Seems like you should
authority of the US Trading w ith the Enemy Act, as amended, the Philippine Property Act of 1946, and Ex ecutiv e Order No. o Bec how wld you know if there was a sale if you don’t examine if there
9818. was a sig or not – wc is part of the contents
- The RP as the transferee of the property in litigation came into the case as interv enor on the side of the defendant. Dr. If someone is claiming there was a deed of sale, isn’t he in effect talking abt the
Nicanor Jacinto also filed a complaint in intervention but in opposition to the defendant as w ell as the plaintiffs. The questioned
contents bec he’s telling you who the subjs are, what the subj of the sale was, etc?
property has been mortgaged to Jacinto before the outbreak of the w ar to secure a promissory note for P160,000, and although
the mortgage had been paid and cancelled in 1943, Dr. Jacinto alleged that he had accepted the pay ment and agreed to the Was saying it was a forgery, was being forced by the Jap to sell – he claimed the
cancellation in fear of Japanese reprisal. deed of sale was fake bec he ddnt sign
- The issue w as complicated by the theft after liberation from the office of the register of deeds, of the deed of sale, the transfer Why ds/dsnt BER apply?
certificates of title by v irtue thereof, and other papers pertaining to the last registration. The plaitiff‟s representation made
determined and repeated efforts to block the attempts of appellants any oral ev idence touching on the alleged contents of the Ruling of the C t is correct but 2 misleading sentences in the case –
documents supposedly executed by Alunan and Hernaez in fav or of the Hakodate, w hich efforts were futile. o Proofs of the execution aren’t dependent on the existence/non -
- As maters stand, only one unsigned copy of the aforesaid deed, which had been secured from the file of the Hakodate home existence of the docum
office in Hokaido, Japan, was introduced. Hakodate's signed copy is said to have been lost or destroyed in the bombing of
Toky o in 1945 along with the company's office in that city . And the copy or the copies which had been kept by the notary public
If its non-existent then why need proof for execution?!?!
before w hom the document w as acknowledged had also been burned with his other papers during the fight for liberation of To prove the existence of a docum, you have to prove its due
Manila. As a result, defendant's proofs on the controverted execution of the lost deed are only the entries thereof in the execution
registrar's office, collateral documents, and parol testimony, some direct, some circumstantial, but none precise or unequiv ocal J. Tuason shldve said: proofs of the execution aren’t dependent
in term. on the existence/non-existence of the ORIG of the docum
- Hernaez w as the lone w itness on his behalf and for his co-plaintiff. The gist of Hernaez' testimony is that if any document w as
presented the register of deeds' office purporting to hav e been ex ecuted by him and his co-owner, that document was a forgery. Bec even if the orig no longer exists, bec destroyed/lost,
Hernaez in part declared: "We w ere forced by the Japanese to vacate the houses. They told me they needed the property and I you can still prove its execution thru 2ndary E
had to cooperate, collaborate w ith them and I had no other alternativ e but to sell my property. They detained at the Port Area Bec when talking abt execution, you aren’t talking abt the
until midnight; it w as midnight when they sent me back to my house but they retained the titles. I think there w ere eight titles. contents w/in the meaning of the BER
They told me that I had to sign the deed of sale. I had been ex pecting that they w ill appear there to make me sign the deed of
sale in my house or in the office of the Nav y at Legaspi Landing, but what happened is that they did not appear in my house, C ant talk abt execution if it really didn’t exist
and afterw ards I found out that Captain Tanabe (Watanabe, Hakodate's manager) was sent back to Tokyo." You’re talking abt execution so that 2ndary E may be
- The principal w itness for the defendant on the dispute sale w ere Satoru Watanabe, Napoleon Garcia and Jose Ma. Recto. applied
- Watanabe: testifies that he w as in the Philippines in the early part of the w ar as acting manager of the Manila Branch of the
When want to prove execution, you’re talking abt the
Hakodate Dock. Co., Ltd; that he knew Hernaez and Alunan. He recalls the transaction between the Hackodate Dock Co., Ltd.,
on the one hand and Hernaez and Alunan on the other, concerning the sale of the land and buildings located at the corner of contents (vendor, vendee, when it tk place, etc) but if
Cortabitarte and Cav ite (Dew ey) Boulevard. He says that the deed of sale w as prepared in Doctor Recto's office but he w as not you’re proving the contents wrt to the terms of the
present hav ing gone to that office only after he had been informed that the document w as ready; that after he had been agreement, but to its execution, then BER dsnt apply
assured that the document w as complete, he affixed his signature thereto; that according to his memory he was asked to sign o Be that as it may the C t below was wrong in holding that PE of the
the document after the v endors, Alunan and Hernaez, had signed it; that as he left Manila for Japan shortly after he had signed execution was barred, the Ct confused/confounded the execution &
the deed of sale, he does not know what happened to the copy of said document which was deliv ered to Hakodate Dock. Ltd., contents of the docum…wc in this case aren’t in dispute …it’s the
that after he had returned to Toky o, the document was forw arded to the Tokyo office, at the beginning of the follow ing y ear; that contents wc cant be proved by 2ndary E when the inst itself is
the duplicate original and the unsigned copies thereof w ere kept in the Tokyo office; that the duplicate original w as burned accessible….due execution must be shown…
w hen the Tokyo office was bombed by the United States Airforce in 1945, but that a copy (made by the Hakodate Manila office)
of the duplicate original w hich was kept by the Manila Branch office was not destroyed and he brought it along w hen he came
(underlined) is wrong – bec whats in dispute that there was no
to the Philippines to testify ; that he saw that copy of the first time in the Hokaido office of the Hakodate Dock Co. w hen hew ent sale
there before coming to the Philippines. All they’re claiming is that they ddnt sign
- Garcia, an assistant in the office of Atty . Recto, declares that he w as a notary public and recall that, as such, he ratifieda C t said the argument was wrong bec he was confusing execution w content
document in w hich Alunan and Hernaez and the Hakodate Dock. Ltd., were the parties; and all the notarial copies were lost or
destroy ed; that he made at least fiv e copies of which he retained tw o and handed over the rest and the original to the parties;
that Hakodate at least receiv ed one copy. He says he did not remember to w hom he deliv ered the original. On cross- Pasted from <file:///C:\Documents%20and%20Settings\Cha\My%20Documents\LAW%
ex amination by the attorney for Dr. Jacinto, Garcia says that he does not know who engaged his firm; he only knows that Recto 20SCHOOL%20FILES\4y1s\Evidence%20take%202\LAW%20126%20evidence\REVIEWERS
requested him to notarize the document. Nevertheless he recalls that the v endors were Hernaez and Alunan and the vendee \notes%20from%20the%20future.doc>
the Hakodate Dock. Ltd, He say s that the documents were signed in his presence and that he must have giv en Alunan or
Hernaez a copy . He further says he cannot exactly tell where the document was ratified but that it must hav e been either in his
office or in the office of the parties w hether he w ent w ith his notarial equipment. He thinks he says, that he w ent to the office of
Secretary Alunan in the old legislative building.
- Recto: testifies that during the Japanese occupation his law office was on the 3rd floor of the Soriano Building. He recalls a
transaction betw een Alunan and hernaez on the one hand and the Hakodate Dock. Ltd., on the other. He thinks that he drew a
deed of sale and that the document w as signed in his office; that he w as in the same room. He was asked if he w as one of the
w itnesses to the document but the question w as objected to and the objection w as sustained. He further declares that he took
charge of registering the deeds of sale and that after the registration he succeeded in getting the certificates of title in the name
of the v endee and deliv ered them to the latter. He say s he did not remember if his firm was the retained the counsel for the
Hakodate Dock Co., nor is he sure where the transaction took place. He would not be able to identify the document if only a
copy thereof w as shown to him. He states that he does not remember if the transaction w as a sale; all he remembers is that it
w as a transaction between Hernaez and Alunan and the Hakodate Doc Ltd., and the papers were signed at his office at the
Soriano Building by alunan and Hernaez, as afar as he can recall. He recalls another transaction of Hakode in which the
preparation of the document w as more or less entrusted to him by the Hakodate Dock Co. He says that he w as informed by
Messrs. Hernaez and Alunan regarding the transaction that there had been an argument betw een them.
The trial Judge did not make ex press findings on Watanabe's credibility , and referring to Garcia's and Recto's testimony, noting
that the same are beclouded w ith the phrases "it could have been", "it must have been signed, in his presence". Moreover, the
judge insinuated that Hakodate's signed copy existed at the time of the trial and had been suppressed, and acting on this belief,
disregarded all parol ev idence by which the defendant had attempted to establish the genuineness of the deal. Said the court:
There is no sufficient ev idence on record to show the loss of all the signed copies of the questioned document. Loss of the
original and the signed copies must be satisfactorily established before secondary evidence can be admitted. Specially when
the signatures on the document is claimed to have been forged, it becomes absolutely necessary and indispensable the
production on original or a signed copy of the document. Thus, no secondary evidence can be entertained to prov e the
document of the lost document, especially if the supposed document is contested to be falsified of forged.
RTC ruled in fav or of the plaintiffs and dismissed the complaints in intervention.
ISSUE
WON the signatures of Alunan and Hernaez on the deed of sale are authentic
HELD
YES
- No v alid ground can be perceiv ed for the insinuation that the defendant or the Hakodate Dock Co. concealed any of the
signed copies of the disputed deed. It is highly inconceivable that the United States Gov ernment or the Philippine Government
representativ es would be capable or resorting to such dishonorable and shyster tactics in order to w in the case and dispossess
legitimate ow ners of their property . Much less can it be imagined that those representatives had a hand in the loss of pertinent
papers in the register of deeds' office. It w ould hav e been nonsensical on their part to steal the v ery documents on which they
based their action in v esting the property.
As for Hakodate Dock Company, his firm had no interest in the result of the suit. It could not hav e entertained any hope of
getting the property under any circumstances. Furthermore, Watanabe has no longer connected with Hakodate when he
testified at the trial.
Be that as it may , the court below was entirely mis taken in holding that parol ev idence of the ex ecution of the instrument was
barred. The court confounded the execution and the contents of the document. It is the contents, w hich in this case are not in
dispute, w hich may not be proved by secondary evidence when the instrument itself is accessible. Proofs of the ex ecution are
not dependent on the ex istence or non-existence of the document, and as a matter of fact, such proofs of the contents: due
ex ecution, besides the loss, has to be shown as foundation for the introduction of secondary evidence of the contents.
Section 46 ROC:
There can be no evidence of a writing other than the writing itself the contents of which is the subject of inquiry, except in the
following cases:
xxx xxx xxx
Section 51 ROC:
Evidence Page 23
Section 51 ROC:
When the original writing has been lost or destroyed upon proof of its execution and loss or destruction, its contents may be
proved by a copy, or by a recital of its contents in some authentic document, or by the recollection of witnesses.
- Ev idence of the ex ecution of a document is, in the last analy sis, necessarily collateral or primary. It generally consists ofparol
testimony or extrinsic papers. Even when the document is actually produced, its authenticity is not necessarily, if at all,
determined from its face or recital of its contents but by parol ev idence. At the most, failure to produce the document, when
av ailable to establish its execution may affect the w eight of the ev idence presented out not the admissibility of such evidence.
In spite of the defects w hich the trial court noted in Garcia's and Recto's testimony, the same and Watanabe's leave little or no
room for doubt that Alunan and her Hernaez did affix their signatures to the deed of sale. Hernaez' testimony which the trial
court say s "it finds no reason to doubt" actually has to many serious flaws to justify the court's faith. The testimony is highly
improbable in many important respects and is directly or indirectly contradicted by evidence more trustworthy and by well-
established facts. Without going to minute detail, the follow ing considerations should suffice to illustrate the point.
- The ev asive answers Hernaez in his cross-examination cast serious reflection on the truth of the protestations that the stolen
document w as forged. Hernaez did not hav e to be shown the deed to be able to tell that he had not signed it if that had been
the case. The point sought by the questions was very specific and must have been uppermost in the w itness‟ mind. It w as the
thesis of his complaint and had been the subject of a prolonged inv estigation before the suit w as filed. “Dates and years and
figures" "difficult to remember" had nothing to do w ith, and could not hav e obscured the right answer to the simple question
w hether Hernaez and Alunan had disposed of their property which they were trying to recover. In fact prev iously Hernaez and
v ehemently affirmed. "I nev er signed a deed of sale to any body, much less to Hakodate Dock Co."
- One other notable feature of Hernaez' testimony is the absence therefrom of any reference to Alunan in connection with the
alleged seizure of their houses and certificates of title. Although there is no proof on the record relativ e to Alunan's offic ial
position at the time other than that he had an office in the legislativ e building, the court may take judicial notice of the fact that
Alunan w as a member of the Ex ecutive Commission and later cabinet minister in the Japanese sponsored Government of the
Philippines. The point is that if w hat Hernaez says were correct, it does not seem probable that Alunan w ould not have known
the occurrence, and knowing it, taken steps to recover the seized titles or compensation for the property . It does not seem likely
that he w ould not hav e at least complained to the Japanese higher authorities and secured some information about what we
became of their certificates.
- Yet Hernaez w ould hav e the court believe, as we gather from his testimony, that neither he nor his partner learned of the
w hereabouts of their titles until after the Japanese had been driv en away from the Philippines and that for the tw o y ears they
allow ed themselv es to be deprived of the use of their property w ithout protest. Let it be remembered that the property had not
been taken by the armed forces for war purposes but by a private concern if attached to and operating under the superv ision of
the Japanese Navy. Contrary to Hernaez' assertions, Watanabe did not hold any military rank or status, and the houses and
lots w ere used as quarters for the firm's civ ilian employees and acquired in the firm's name with its own money.
The charge suggested by the line of plaintiff's ev idence that the Hakodate Dock Co. resorted to frauds and coercion so as notto
pay for the plaintiffs' land and houses is discredited by the fact that it settled the mortgage, pay ing an amount w hic h was only
P10,000 short of the purchase price. This payment bears witness to Hakodate's good faith and w illingness to spend for w hat it
got. At the same time, and this is more important to the immediate issue, it is mute testimony to the due ex ecution of the sale by
Alunan and Hernaez; for it is not logical to suppose that the Hakodate w ould hav e parted with a huge amount of cash, huge at
the time, if the ow ners had not ex ecuted a valid deed of conveyance.
Another idea that suggests itself is that the officers of the Hakodate, of the Hahodate, if they had a mind to commit frauds,
w ould not hav e been chosen Doctor Jacinto for the v ictim of its felony in preference to a senator-elect, which Mr. Hernaez was,
and a member of the Cabinet. To forge a deed of cancellation held by a private citizen who wielded no official influence would
hav e been undoubtedly the easier and the risks of failure, not to say punishment, the lesser.
- The premise of his ratiocination is wrong in that Hernaez testified that he and no the Hakodate Dock Co. paid off the
mortgage. How ever, the clear weight of the ev idence both as to quality and the number of witnesses is against the plaintiffs.
- Against the plaintiffs' ev idence there is the testimony of Watanabe and Jacinto who said the payment was affected by the
former, and of Recto and Garcia w ho said that the cancellation was arranged and perfected in their law office at the instanceof
the Hakodate representativ es.
- In contract, Hernaez said he did "not know who handled the cancellation," a matter which seemed too important not to be
remembered, contenting himself w ith the statement that "The thing is that w hen he paid him (Jacinto) he gave us the release."
And as to the place of cancellation, he said that it w as somewhere on the Escolta, in the office of the law firm of Duran, Lim &
Bausa, w hen, it is conclusiv ely established, Attuy. Lim, who was Jacinto's attorney, and whom Hernaez apparently had in mind,
separated from that firm as early as the beginning of the Japanese occupation in 1942, and, as a matter of fact, the cancellation
w as executed, as above, seen, in the Recto Law Office and not in the law office of Duran, Lim & Bausa. Note that the attesting
w itnesses to the cancellation were Napoleon Garcia and Jose Ma. Recto and the document was acknowledge before Garcia
w as notary public.
- The fact that the deed of cancellation w as made in the name of Alunan and Hernaez cannot be any means be taken as
ev idence of plaintiff's theory . The payment was in reality made in their name although the money came was received by the
pay ee from Watanabe. For the purpose of registration, the deed of cancellation had to be deframed the w ay it w as drawn.
- The ov erwhelming preponderance of the ev idence likewise discredits Hernaez' declaration that his and Alunan's certificates of
title w ere in his possession. Jacinto said he had them, and it could not hav e been otherwise. It is the inv ariable and sensible
practice of mortgagees to keep the title to the property mortgaged as a necessary measure of protection. In the testimony
before the court (he had lenghtly testified before the claim committee of the PAPA Hernaez admitted that Doctor Jacinto did not
depart from this practice. In answ er to the court's question whether he turned over to Doctor Jacinto the said certificates when
he ex ecuted the mortgage, he answered in the affirmativ e. How then could Hernaez have those certificates when he was
allegedly carried to the Legaspi Landing where, he said, they were taken away from him?
The deed of sale and the deed of cancellation w ere executed on the same date, February 20, and the genuineness of the latter
deed is admitted. This being so, Hernaez could not have had the certificates of title and these could not hav e been taken away
from him before that date. If it be asserted that the certificates might hav e been handed ov er to the Japanese on the same date
the mortgage w as cancelled and the cancellation was registered, the assertion would contradict Hernaez' testimony from which
the clear inference is that he had the titles in his home for day s or w eeks before the Legaspi Landing incident. Besides,
Watanabe and his attorney s and notary could not by any possibility have drawn or registered the deed of sale on the same date
the certificates w ere returned to Hernaez to Doctor Jacinto.
- One of the arguments adv anced to drive home the point that the questioned sale w as fake is that, it is said, Alunan and
Hernaez did not hav e any need to sell this property. Moreover, it is alleged purchase price was far below its actual value.
- Jacinto testified that hav ing heard that the property in question w as being sold to the Japanese, he immediately gave
instructions to his then attorney , Manuel Lim, to see Alunan and Hernaez and offer in his behalf to buy it. And Atty . Lim, who
w as SolGen when he testified corroborated his former client, stating that about the end of 1942 or the early part of 1943, he
requested Alunan to let Doctor Jacinto buy the said property, and proposed easy terms. He said that he called on Alunan tw ice
or three times in the latter's office in the Legislativ e Building; that in the first v isit Alunan said that he w ould consultw ith his
partner, Senator Hernaez, and in the second, that he and his partner w ere still undecided, but remarked that he had received
an offer from a Japanese firm and that he (Alunan) and Hernaez w ould prefer to make the sale of the Japanese. We have no
reason to suspect the v eracity at these witnesses.
That Alunan and Hernaez w ere not averse to selling the property in question may be inferred from the plaintiffs' ow n evidence.
Hernaez testified that he had sold to a Chinese in 1944 the land on Dew ey Boulevard where the Riviera is now located, for
P360,000 or P375,000 and a parcel, location not revealed, to Toyo Menka Kaisha for P40,000 "nearly the same time, March
1943," a lot by w hich the w ay, according to Hernaez he was also claiming from the PAPA. He also disclosed that he had "sold
many jewelries, watches and other things," which goes to show that they were not oversupplied with cash. Of equal significance
is the statement indicating that Hernaez and Alunan w ere engaged in real estate business. Hernaez stated, "We used to hav e
here some properties that w e sold on ten years installment before the w ar and after the w ar."
- In the matter of the v alue of the houses and lots registered by the Hakodate Dock Co., the trial court believ ed that the price
stated in the deed w as highly inadequate and regarded this alleged inadequate as supporting the contention that the sale w as
forged. The court seems to have overlooked the fact that the property sold to Hakodate Dock Co., was only eight parcels
containing a total area of 4,533,34 square meters, whereas the property which the plaintiff had bought from Chuan & Sons for
P185,000 and of w hich the property in questioned formed a part, measured 8,027.72 square meters. So that by selling the
abov e portion of P170,000, they were able to recoup nearly all their investment, without counting the rents they had theretofore
realized on the houses, and keep nearly one-half of their original acquisition as a clear profit. That was not a bad bargain. It is a
matter of common knowledge that in February 1943 Japanese war notes were still about at par w ith the Commonwealth peso.
The sale of the plaintiff's other land in Dew ey Boulevard for a much higher price in proportion to its size took place in 1944, or in
the latter part of 1943 at the earliest, w hen the Japanese war notes had been shipping down fast. At any rate, the proceeds of
the sale w ere more than enough to liquidate their mortgage debt, the pay ment of w hich the purchaser took charge of attending
to. As Hernaez said, "the thing is that w hen w e paid him (Jacinto) he gave us the release."
- For another thing, it is a mistake to take the alleged inadequacy of the price stated in the deed of ev idence of forgery, for
figures are easy to fabricate and a forger w ould endeavor to fix an amount in accord with the prevailing rates of real estate
v alue precisely to forestall such suspicion as is put forward in this case.
- The appealed decision says "another issue raised by the plaintiffs is the illegality of the alleged acquisition by the Hakodate
Dock Co. Ltd., of the property under litigation, assuming that a contract w as duly executed by Messrs. Alunan and Hernaez in
fav or of the said company," And citing Krivenco vs. Register of Deeds, the court concluded that the sale w ould be null and void
any w ay.
- As the appellants hav e noted, nowhere in the pleadings did the plaintiffs impeach the validity of the sale to Hakodate Dock
Co., on constitutional grounds. And even if they had, the present case would not be controlled by the doctrine laid down in the
Kriv enko case. The Philippine Constitution was not in force during the Japanese occupation of the Philippines. The constitution
w as inoperative at least with reference to Japanese citizens. Military Ordinance No. 2, promulgated on March 14, 1942,
ex pressly excluded "Japanese subjects from the operation of prohibition and limitations on civil rights, benefits and privileges,
w hich by reason, of their nationality are denied them by laws, statutes, administrative orders or regulations of the Philippines."
There is no doubt about the rights under the international law of the belligerent occupants to issue this decree.
- The court w ould also invalidate the sale on the theory "that the Hakodate Dock Co. Ltd., a purely Japanese concern, was
nev er registered as such in the Philippines nor was it authorized to transact business in accordance with existing Philippine
Corporation Law ." This question, like the just discussed, has not been raised in the pleadings. What is more, we know of no law
or prov ision of the Corporation Law which prohibits a business concern not authorized to transact business from buying or
ow ning real property. As to counsel's observation that "there w as no proof that Satoru Watanabe, w ho was then merely an
acting Manila manager of the company, was duly authorized to represent said company," the defect if there w as a defect was
one w hich the only principal or the party for whom Watanabe purported to act could use to rescind the sale.
- The probabilities of forgery are v ery remote and the direct ev idence for the defendant has abundantly and convincingly
Evidence Page 24
one w hich the only principal or the party for whom Watanabe purported to act could use to rescind the sale.
- The probabilities of forgery are v ery remote and the direct ev idence for the defendant has abundantly and convincingly
established that the property w as sold by its former owners for valuable consideration. The loss of the pertinent records in the
office of the register of deeds cannot be av ailed of to bolster the plaintiffs' case or w eaken the defense. If the loss is toproduce
any effect, the effect should be rev erse, considering all circumstances surrounding the theft.
Doctor Jacinto's case: Doctor Jacinto testified: He w as paid the amount of the mortgage by a Japanese, who said that he
represented the Hakodate Dock Co., at the beginning of 1943, and deposited the check, signed by a Japanese, in the
Philippine Bank of Commerce. He executed a release of the mortgage because he was told by the Japanese, accompanied by
a Filipino from the law firm of Mr. Recto that the document of cancellation was already prepared. He was informed that they had
purchased the property for the Hakodate Dock Co. He w as reluctant to sign the deed of cancellation because, in the first place,
the amount did not cov er the w hole balance, and in the second place, it w as not the money which he had loaned. When they
noticed his reluctance they told him that he could be grateful because they could have taken the property without anything for it.
The court can sy mpathize with the mortgagee and believe that at heart he w as opposed to the pay ment of his credit in
Japanese money and would not have rejected or protested against the payment if it had been tendered by the debtor directly .
Under the applicable law and uniform decisions of this Court, however, the payment w as enforceable irrespectiv e of the attitude
of the creditor. The debtor or his successor-in-interest had the right to pay the mortgage in Japanese war notes, which were the
authorized currency in circulation, not to say the only currency available. In other w ords, the pay ment would have released the
mortgage ev en if it had been tendered by the mortgagor personally and had been turned down by the mortgagee. That was the
unfortunate situation into w hich thousands of prewar creditors were thrust by the war, most of them being forced to accept
Japanese military notes when these were little better than useless.
- The disparity in value, if any , between Japanese war notes and the Philippine peso in February 1943 was not great, however.
According to the Ballanty ne conversion table, the exchange ratio between the tw o currencies in February 1943 was P1 to
P1.10. It is to be kept in mind that the scale did not pretend to be ex act. The ratio could hav e been still even. The beliefis,
perhaps, confirmed by the price of the absolute sale which was only P10,000 more than the mortgage debt.
In any ev ent, the mortgagee, whatever his feelings, did accept the payment, deposit the cash in the bank in current account,
and could hav e made use of it. At the then prev ailing value of Japanese war notes, the amount could have been invested
profitably in other real estate or business transactions. Under the circumstances, the principle of estoppel is not to be ruled out.
DISPOSITION:
Upon the foregoing considerations, the judgment as to interv enor Dr. Jacinto is affirmed and as to the defendant rev ersed the
defendant being hereby absolved, with costs of both instances against the plaintiffs and appellees.
Evidence Page 25
Alvarez vs. Ramirez
Saturday, July 18, 2009
9:49 PM
ALVAREZ V. RAMIREZ
GR No. 143439;
Sandov al-Gutierrez; 14 October 2005
(ice)
NATURE
Petition for rev iew on certiorari
FACTS
Susan Ramirez (respondent) is the complaining witness in the criminal case for arson pending before the RTC. The accused is Maximo Alv arez (petitioner). He is
the husband of Esperanza G. Alvarez, sis ter of respondent. Priv ate prosecutor called Esperanza Alvarez to the w itness stand as the first witness against
petitioner, her husband. Petitioner and his counsel raised no objection.Petitioner, through counsel, filed a motion to disqualify Esperanza from testifying against
him pursuant to Rule 130 of the Rev ised Rules of Court on marital disqualification.
Trial court issued an Order disqualify ing Esperanza Alvarez from further testify ing and deleting her testimony from the records.CA reversed the RTC decision.
ISSUE
WON Esperanza Alvarez can testify against her husband
HELD/ RATIO
Yes. Section 22, Rule 130 of the Revised Rules of Court has an exception, where the marital and domestic relations are so strained that there is no more
harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity of
interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of
priv ate life, w hich the law aims at protecting, will be nothing but ideals, which through their absence, merely leave a voidin the unhappy home. This is in lieu of
the justification for the rule w hich are
1. There is identity of interests betw een husband and wife;
2. If one w ere to testify for or against the other, there is consequent danger of perjury ;
3. The policy of the law is to guard the security and confidences of private life, even at the risk of an occasional failure of justice, and to prevent domestic
disunion and unhappiness; and
4. Where there is w ant of domestic tranquility there is danger of punishing one spouse through the hostile testimony of the other.
In Ordoño v s. Daquigan, this Court held: „The rule that the injury must amount to a phy sical wrong upon the person is too narrow; and the rule that any offense
remotely or indirectly affecting domestic harmony comes within the exception is too broad. The better rule is that, when an offense directly attacks, or directly and
v itally impairs, the conjugal relation, it comes within the exception to the statute that one shall not be a w itness against the other ex cept in a criminal prosecution
for a crime committee (by ) one against the other.‟”
Obviously, the offense of arson attributed to petitioner, directly impairs the conjugal relation between him and his wife Esperanza. His act, as
embodied in the Information for arson filed against him, eradicates all the major aspects of marital life such as trust, confidence, respect and love by
which virtues the conjugal relationship survives and flourishes.
“The act of priv ate respondent in setting fire to the house of his sister-in-law Susan Ramirez, knowing fully well that his w ife was there, and in fact with the alleged
intent of injuring the latter, is an act totally alien to the harmony and confidences of marital relation which the disqualification primarily seeks to protect.
The criminal act complained of had the effect of directly and vitally impairing the conjugal relation.It underscored the fact that the marital and domestic
relations betw een her and the accused-husband have become so strained that there is no more harmony, peace or tranquility to be preserved. The Supreme
Court has held that in such a case, identity is non-existent. In such a situation, the security and confidences of private life w hich the law aims to protect are
nothing but ideals w hich through their absence, merely leave a void in the unhappy home. (People v. Castañeda, 271 SCRA 504).Thus, there is no longer any
reason to apply the Marital Disqualification Rule.”
It should be stressed that as show n by the records, prior to the commission of the offense, the relationship betw een petitioner and his wife was already strained.
In fact, they w ere separated de facto almost six months before the incident. Indeed, the ev idence and facts presented reveal that the preservation of the marriage
betw een petitioner and Esperanza is no longer an interest the State aims to protect.
DISPOSITION
AFFIRMED
Evidence Page 26
Res Gestae to Public records from Reviewer
Tuesday, September 15, 2009
6:08 PM
Res Gestae
• Statement may not be a dying declaration because it was not made under the consciousness of
an impending death, but may be admissible as part of res gestae if made immediately after the
incident
Evidence Page 27
incident
• Where the elements of both are present, may be admitted as both
Res Gestae
• Basis: under external circumstances of physical shock, a stress of nervous excitement may be
produced which stills the reflective faculties and removes their control, so that the utterance
which then occurs is spontaneous and sincere response to the actual sensations and
perceptions already produced by the external shock.
• Since this utterance is made during the brief period when considerations of self -interest could
not have been brought fully to bear by reasoned reflection, the utterance may be taken as
particularly trustworthy
• Interval of time between the startling occurrence and the statement depends upon the
circumstances
• But statement must have been made while the declarant was under the immediate influence of
the startling occurrence
• If declarant rendered unconscious after the startling occurrence, his statement relative to
thereto upon regaining consciousness still forms part of re gestae regardless of the time that
intervened between
• If the statement was made under the influence of a startling event and the declarant did not
have time to concoct or contrive a story, even if made 9 hours after the killing, the statement
is admissible as part of res gestae
• Statement may not be a dying declaration because it was not made under the consciousness of
an impending death, but may be admissible as part of res gestae if made immediately after the
Evidence Page 28
incident
• Where the elements of both are present, may be admitted as both
• Notes taken regarding a transaction by a person who is not a party thereto and who has not
been requested to take down such notes are not part of the res gestae
• Presupposes that there is an act, relevant in some way under the issue, which needs for its full
support to be construed together with the words of the actor.
• The conduct has intrinsically no definite significance, or only an ambiguous one and its whole
legal purport or tenor is to be more precisely ascertained by considering the words
accompanying it.
• Verbal acts must have been made at the time and NOT after the equivocal act was being
performed, unlike spontaneous exclamations which may have been made before, during or
immediately subsequent to the startling occurrence.
• “Verbal act” – used to denote that such statements are the verbal parts of the equivocal act of
which such statements are explanatory
DELA CRUZ v CA
FACTS
Father Garabato shot to death by de la C ruz.
SPO3 Patriarca testified on the spontaneous exclamations he heard from the spectators who
witnessed the crime. Per his investigation conducted shortly after the shooting incident, he
inquired from several spectators whom he found hovering at the locus criminis, as to who shot
the victim and the spontaneous response he got was “Yun hong pulis na nakatira sa tapat.”
The people confided to him the name “Pablo de la Cruz”. It turned out that indeed, the
informants were referring to the house of the accused, who was later determined and identified
as the assailant.
HELD
The statements of the spectators are admissible.
Their statement was part of res gestae. Although the people who gave this information were
not presented on the witness stand, this C ourt still resolved to admit and consider this
spontaneous exclamation from the spectators competent as “PART OF RES GESTAE”.
―RES GESTAE‖ refers to those exclamations and statements made by either the participants,
the victim(s) or spectators to a crime immediately before, during or immediately after the
commission of the crime, when the circumstances are such that the statements were made as
a spontaneous reaction or utterance inspired by excitement of the occasion and there was no
opportunity for the declarant to deliberate and to fabricate a false statement.
As borne by evidence on record, all the elements of res gestae are sufficiently
established, insofar as the aforequoted spontaneous utterance is concerned:
a) the principal act (res gestae) – the killing of Fr. Garabato in broad daylight – is a startling
occurrence;
b) the statements were made before the declarants had time to contrive or devise – that is,
within several minutes after the victim was shot; and
c) that the statements must concern the occurrence in question and its immediately attending
circumstances – the identity of the assailant is a material and vital information that concerns
the aforementioned startling occurrence.
PEOPLE v CARIQUEZ
FACT
Ethel, 2 ½ years old; Ava her mother;Leezel her stepdad. When Lilia visited Ethel, she
was shocked to see Ethel's appearance; her hair was shaven, her face was full of
contusions, her neck had faded cigarette burns while her arms and legs had traces of
pinching and maltreatment. When Lilia asked the little girl to identify who inflicted the
injuries on her body, Ethel tearfully pointed to Ava and Leezel.
Neighbors asked what happened, Ethel replied: "pinaso po ako." When Michelle further
asked who burned her and caused her bruises, Ethel said, "Papa ko po," referring to
Leezel.
HELD
Ethel’s statements are admissible.
The declarations of Lilia and neighbors as to what they observed on ETHEL were not hearsay.
They saw her and personally noticed the injuries and telltale marks of torture.
- While the answer of ETHEL as to who inflicted the injuries may have been, indeed, hearsay
Evidence Page 29
They saw her and personally noticed the injuries and telltale marks of torture.
- While the answer of ETHEL as to who inflicted the injuries may have been, indeed, hearsay
because ETHEL could not be confronted on that, yet it was part of the res gestae and,
therefore, an exception to the hearsay rule.
- There are three requisites to the admission of evidence as constituting part of the res gestae.
1) that the principal act, the res gestae, be a startling occurrence;
2) the statements were made before the declarant had time to contrive or devise; and
3) that the statements must concern the occurrence in question and its immediately attending
circumstances.
- In this case the startling occurrences were the tortures inflicted on ETHEL, who when asked
who caused them spontaneously pointed to AVA and LEEZEL. That some time may have lapsed
between the infliction of the injuries and the disclosure, it must however, be pointed out that
there has been no uniformity as to the interval of time that should separate the occurrence of
the startling event from the making of the declarations.
PEOPLE v VELASQUEZ
FACTS
Halang ang kaluluwa, mahalay at nakakatakot na lolo!
While his daughter Regail was folding clothes, Aira walked into the room crying. Aira
complained that her grandfather did something to her, which she demonstrated by
opening her right leg and moving one of her right fingers toward her vagina.
The trial court based its conviction of accused-appellant for acts of lasciviousness
against Aira Velasquez on the testimony of Regail Velasquez, Aira’s mother, who
testified on what her daughter had told her. Aira herself was not presented in court,
being a mere child of two and a half years old.
HELD
The testimony of Regail Velasquez is admissible. Aira’s acts and statements constitute
exceptions to the hearsay rule because they were part of the res gestae.
Aira’s statements and acts constitute res gestae, as it was made immediately
subsequent to a startling occurrence, uttered shortly thereafter by her with spontaneity,
without prior opportunity to contrive the same.
Regail’s account of Aira’s words and, more importantly, Aira’s gestures, constitutes
independently relevant statements distinct from hearsay and admissible not as to the veracity
thereof but to the fact that they had been thus uttered.
ABALLE v PEOPLE
It is well to note that even before the taking of the extrajudicial confession, the accused, upon
being picked up in the morning of November 8, 1980 as he was coming out of the communal
bathroom and wearing a T-shirt covered with bloodstains which he tried to cover with his
hands, suddenly broke down and knelt before Sgt. Marante and confessed that he killed Jennie
Banguis. The testimony of Sgt. Marante on Aballe's oral confession is competent evidence to
positively link the accused to the aforesaid killing.
- The declaration of an accused expressly acknowledging his guilt of the offenses charged may
be given in evidence against him.
- The rule is that any person, otherwise competent as a witness, who heard the confession, is
competent to testify as to the substance of what he heard if he heard and understood all of it.
An oral confession need not be repeated verbatim, but in such case it must be given in its
substance.
PEOPLE v TAMPUS
Tampus and Avila stabbed Saminado, a co-prisoner in the national penitentiary. Immediately
after the stabbing, they surrendered to a prison guard with their knives. They told the guard:
"Surrender po kami, sir. Gumanti lang po kami."
HELD
Res gestae applies. The spontaneous statement elicited without any interrogation, was
part of the res gestae and at the same time was a voluntary confession of guilt.
PEOPLE V REYES
Pedro Reyes turned state evidence, testified that when he ran to the rice field and there he
met Oliveros and Gatchalian talking, the former declaring he was sure the MP he had shot will
die and Gatchalian making the same assurance as to the MP he (Gatchalian) had shot in turn.
Enough, however, may be gathered from his testimony in open court to identify Gatchalian as
one of the assailants, the conversation he overheard in the rice field being admissibile as an
admission and as part of the res gestæ.
PEOPLE v TULAGAN
FACTS
C atungal allegedly killed by the accused.
- TC : the testimony of the prosecution witness Natalia Macaraeg is clear that when she asked
de Guzman, Tulagan and Mendoza what they did to her neighbor who is working with the PNR,
Evidence Page 30
de Guzman, Tulagan and Mendoza what they did to her neighbor who is working with the PNR,
accused Vicente de Guzman, while standing side by side with Tulagan and Mendoza told her
that they killed atungal, her neighbor, an employee of the PNR.
HELD
The statement of the accused is not admissible as part of the res gestae. There is no evidence
whatsoever that the statement attributed to de Guzman was made by him "immediately
subsequent" to the startling occurrence which the TC obviously had in mind: the slaying of
C atungal.
Not every statement made on the occasion of a startling occurrence is admissible as
part of the res gestae; only such are admissible as appear to have been involuntarily
and spontaneously wrung from an observer by the shock or impact of the occurrence
such that, as has aptly been said, it is the event speaking through the witness, not the
witness speaking of the event.
The startling occurrence must produce so powerful an effect or influence on the observer
as to extract from his lips some description of the event practically without being
conscious of his utterance. There is no indication in the record that de Guzman was so
affected when he made the statement in question under the circumstances related by
Macaraeg.
- Indeed, it may reasonably be inferred from Natalia's testimony that he was in nowise
agitated, stunned or shocked but was, on the contrary, calm, composed, in full possession of
his faculties and fully aware of what he was doing and saying.
Purser made an entry in his notebooks reading "First class passenger was forced to go to the
tourist class against his will, and that the captain refused to intervene."
- Testimony of the entry does not come within the proscription of the best evidence rule. Such
testimony is admissible.
- Besides, from a reading of the transcript just quoted, when the dialogue happened, the
impact of the startling occurrence was still fresh and continued to be felt. The excitement had
not as yet died down. Statements then, in this environment, are admissible as part of the res
gestae.
- For, they grow "out of the nervous excitement and mental and physical condition of the
declarant".
- The utterance of the purser regarding his entry in the notebook was spontaneous, and
related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed.
- It thus escapes the operation of the hearsay rule. It forms part of the res gestae.
BORROMEO v CA
FACTS-
Deed of absolute sale alleged to be eqitable mortgages. Crispina claimed to have been
present when the transactions took place. She presented notes and memoranda which,
according to her, were her notations allegedly representing the deductions made by the
vendor Aznar for advance interest, attorney's fees and miscellaneous expenses, are
corroborative of her testimony that the transactions in controversy were really loans
with mortgages.
HELD
We cannot see how the disputed notes and memoranda can be considered in any sense
as part of the res gestae as this matter is known in the law of evidence.
- It must be borne in mind, in this connection, that C rispina was not a party to the transaction
in question.
The record does not reveal why Crispina was with her father at the time, hence, there can be
no basis for holding that she actually took part in the transaction. That she allegedly took notes
thereof while there present made her at best only a witness not a party.
- It cannot be said, therefore, that her taking down of her alleged notes, absent any showing
that she was requested or directed by the parties to do so or that the parties, more particularly
the Aznars, who are being sought to be bound by them, knew what she was doing, constitute
part of the transaction, the res gestae itself.
- If such alleged taking of notes by Crispina has to be given any legal significance at all, the
most that it can be is that it is one circumstance relevant to the main fact in dispute. It other
words it could be at the most be only circumstantial evidence.
- The trouble however is that the admission of said notes and memoranda suffers from a fatal
defect. No witness other than Crispina has testified as to the veracity of her testimony relative
to her alleged notes and memoranda.
- Not even her husband who, according to her, was present on one of the occasions in issue,
was called to testify. It cannot be denied that C rispina is interested in the outcome of this case.
- In the words of the C ourt of Appeals itself in its original decision, "her testimony cannot be
considered as absolutely unbiased or impartial", hence "unreliable and insufficient to justify the
reformation of the instruments in question." Such being the case, how can the notes and
memoranda in dispute and any weight to her testimony, when she herself created them?
Surely, they cannot have anymore credibility than her own declarations given under oath in
open court.
- The extensive and repeated arguments of the parties relative to the issue of whether or not
self-serving statements may be admitted in evidence as parts of the res gestae are very
Evidence Page 31
self-serving statements may be admitted in evidence as parts of the res gestae are very
interesting and illuminating, but We feel they are rather off tangent. The notes supposedly
prepared by witness Alcantara during the transaction between her father and the Aznars do not
partake at all of the nature of hearsay evidence.
- If anything they constitute memoranda contemplated in Section 10 of Rule 132.
- As may be observed, this provision applies only when it is shown beforehand that there is
need to refresh the memory of the witness, which is not the case here.
- Nowhere in the record is there any indication that Alcantara needed during her testimony the
aid of any memorandum in respect to the matters contained in the notes in dispute.
- Besides, under the above provision, the memorandum used to refresh the memory of the
witness does not constitute evidence, and may not be admitted as such, for the simple reason
that the witness has just the same to testify on the basis of refreshed memory. In other words,
where the witness has testified independently of or after his testimony has been refreshed by a
memorandum of the events in dispute, such memorandum is not admissible as corroborative
evidence. It is self-evident that a witness may not be corroborated by any written statement
prepared wholly by him. He cannot be more credible just because he supports his open -court
declaration with written statements of the same facts even if he did prepare them during the
occasion in dispute, unless the proper predicate of his failing memory is priorly laid down.
What is more, even where this requirement has been satisfied, the express injunction of the
rule itself is that such evidence must be received with caution, if only because it is not very
difficult to conceive and fabricate evidence of this nature. This is doubly true when the witness
stands to gain materially or otherwise from the admission of such evidence, which is exactly
the case of C rispina.
Res gestae, as an exception to the hearsay rule, refers to those exclamations and statements
made by either the participants, victims, or spectators to a crime immediately before, during,
or after the commission of the crime, when the circumstances are such that the statements
were made as a spontaneous reaction or utterance inspired by the excitement of the occasion
and there was no opportunity for the declarant to deliberate and to fabricate a false statement.
- The rule in res gestae applies when the declarant himself did not testify and provided that the
testimony of the witness who heard the declarant complies with the following requisites:
1. that the principal act, the res gestae, be a startling occurrence
2. the statements were made before the declarant had the time to contrive or devise a
falsehood
3. that the statements must concern the occurrence in question and its immediate attending
circumstances.
- The C ourt is not convinced to accept the declarations as part of res gestae. While it may
concede that these statements were made by the bystanders during a startling occurrence, it
cannot be said however, that these utterances were made spontaneously by the bystanders
and before they had the time to contrive or devise a falsehood.
- Both SFO III Rochar and Lt. C ol. Torres received the bystanders’ statements while they were
making their investigations during and after the fire. It is reasonable to assume that when
these statements were noted down, the bystanders already had enough time and opportunity
to mill around, talk to one another and exchange information, not to mention theories and
speculations, as is the usual experience in disquieting situations where hysteria is likely to take
place. It cannot therefore be ascertained whether these utterances were the products of truth.
That the utterances may be mere idle talk is not remote.
- At best, the testimonies of SFO III Rochar and Lt. C ol. Torres that these statements were
made may be considered as independently relevant statements gathered in the course of their
investigation, and are admissible not as to the veracity thereof but to the fact that they had
been thus uttered.
- Furthermore, admissibility of evidence should not be equated with its weight and sufficiency.
Admissibility of evidence depends on its relevance and competence, while the weight of
evidence pertains to evidence already admitted and its tendency to convince and persuade.
Even assuming that the declaration of the bystanders that it was the members of the CPP/NPA
who caused the fire may be admitted as evidence, it does not follow that such declarations are
sufficient proof. These declarations should be calibrated vis-à-vis the other evidence on record.
MARTURILLAS v PEOPLE
- The fact that the victim’s statement constituted a dying declaration does not preclude it from
being admitted as part of the res gestae, if the elements of both are present.
- Res gestae refers to statements made by the participants or the victims of, or the spectators
to, a crime immediately before, during, or after its commission. These statements are a
spontaneous reaction or utterance inspired by the excitement of the occasion, without any
opportunity for the declarant to fabricate a false statement.
- An important consideration is whether there intervened, between the occurrence and the
statement, any circumstance calculated to divert the mind and thus restore the mental balance
of the declarant; and afford an opportunity for deliberation.
- A declaration is deemed part of the res gestae and admissible in evidence as an exception to
the hearsay rule, when the following requisites concur:
Evidence Page 32
the hearsay rule, when the following requisites concur:
1) the principal act, the res gestae, is a startling occurrence;
2) the statements were made before the declarant had time to contrive or devise; and
3) the statements concerned the occurrence in question and its immediately attending
circumstances.
- All these requisites are present in this case. The principal act, the shooting, was a startling
occurrence.
- Immediately after, while he was still under the exciting influence of the startling occurrence,
the victim made the declaration without any prior opportunity to contrive a story implicating
petitioner.
- Also, the declaration concerned the one who shot the victim.
- Aside from the victim’s statement, which is part of the res gestae, that of Ernita -- “Kapitan,
ngano nimo gipatay ang akong bana?” (“Captain, why did you shoot my husband?”) -- may be
considered to be in the same category.
- Her statement was about the same startling occurrence; it was uttered spontaneously, right
after the shooting, while she had no opportunity to concoct a story against petitioner; and it
related to the circumstances of the shooting.
CAPILA v PEOPLE
FACTS
Robbery of P1.3M from Pilipinas Bank. Guard on duty told employee and police that the
accused was one of the robbers.
HELD
Part of res geatae.
- Res gestae is a Latin phrase which literally means “things done.” As an exception to the
hearsay rule, it refers to those exclamations and statements by either the participants, victims,
or spectators to a crime immediately before, during or immediately after the commission of the
crime, when the circumstances are such that the statements were made as spontaneous
reactions or utterances inspired by the excitement of the occasion, and there was no
opportunity for the declarant to deliberate and fabricate a false statement.
- The reason for the rule is human experience. It has been shown that under certain external
circumstances of physical or mental shock, the state of nervous excitement which occurs in a
spectator may produce a spontaneous and sincere response to the actual sensations and
perceptions produced by the external shock. As the statements or utterances are made under
the immediate and uncontrolled domination of the senses, rather than reason and reflection,
such statements or utterances may be taken as expressing the real belief of the speaker as to
the facts he just observed. The spontaneity of the declaration is such that the declaration itself
may be regarded as the event speaking through the declarant rather than the declarant
speaking for himself.
- For the admission of the res gestae in evidence, the following requisites must be met:
1) that the principal act or the res gestae be a startling occurrence;
2) the statement is spontaneous or was made before the declarant had time to contrive or
devise, and the statement is made during the occurrence or immediately or subsequent
thereto; and
3) the statement made must concern the occurrence in question and its immediately attending
circumstances.
• Requisites:
1. The person who made the entry must be dead or unable to testify
2. The entries were made at or near the time of the transaction to which they refer
3. The entrant was in a position to know the facts stated in the entries
4. The entries were made in his professional capacity or in the performance of a duty,
whether legal, contractual, moral or religious
5. The entries were made in the ordinary or regular course of business or duty
• Basis
- admissible on the ground that they were made in the due course of business as part of the
res gestae; and this is deemed to afford sufficient probability that the facts are as stated in the
memorandum.
- based on necessity; they are the best available evidence
- A learned judge: “what a man has actually done and committed to writing under obligation to
Evidence Page 33
- A learned judge: “what a man has actually done and committed to writing under obligation to
do the act, it being in the course of business he has undertaken, and he being dead, there
seems to be no danger in submitting to the consideration of the jury.”
• Terms “business” and “record” must be construed in the broadest sense.
• Business activity: can encompass schools, churches, hospitals, and every kind of business,
profession, occupation, and institution, WON carried on for profit.
• Based on the American counterpart provision: “record” may be any form of memorandum,
report, record or data compilation, including electronic computer storage.
• Language and form of entry are of no importance provided that the words are fairly intelligible
and distinctly communicate the facts which is sought to be proved.
• Declaration or entry may be in a public or a private writing or a book.
• The proponent should call the custodian or other qualified person who generally should be able
to testify about how the record was prepared, who prepared, where the record was kept and
the purpose of the record.
• If the entrant is available as a witness, the said entries will not be admitted as an exception to
the hearsay rule, but they may nevertheless be availed of by said entrant as a memorandum
to refresh his memory while testifying on the transactions reflected therein
• In the presentation and admission as evidence of entries made in the regular course of
business, there is no overriding necessity to bring into court all the clerks or EEs who
individually made the entries in a long account. It is sufficient that the person who supervises
the work of the clerks or other EEs making the entries testify that the account was prepared
under his supervision and that the entries were regularly entered in the ordinary course of
business (Yek Tong Fire v Gutierrez). – kala ko ba entrant dead or unable to testify? =)
• This provision applies only when it is shown beforehand that there is a need to refresh the
memory of the witness.
• Memorandum use to refresh the memory of the witness does not constitute evidence. And may
not be admitted as such for the simple reason that the witness has just the same to testify on
the basis of refreshed memory.
Yek Tong Fire & Marine Insurance Co., Inc. vs. Gutierrez, et al (CA, 59 OG 8122):
In the presentation and admission as evidence of entries made in the regular course of
business, there is no overriding necessity to bring into court all the clerks or employees who
individually made the entries in a long account. It is sufficient that the person who supervises
the work of the clerks or other employees making the entries testify that the account was
prepared under his supervision and that the entries were regularly entered in the ordinary
course of business.
CANQUE v CA (1999)
FACTS
RDC had construction contracts with the govt. it hired SOCOR as subcontractor. RDC
refused to pay SOCOR the amount claimed, alleging that the latter failed to submit the
delivery receipts showing the actual weight in metric tons of the items delivered and the
acceptance thereof by the government.
Evidence Page 34
acceptance thereof by the government.
SOC OR presented its VP and its bookkeeper;
Book of C ollectible Accounts containing a detailed account of SOCOR’s commercial transactions
with RDC which were entered therein in the course of business held to be admissible.
HELD
The entries in the Book of Collectible Accounts do NOT constitute competent evidence to show
delivery.
- The admission in evidence of entries in corporate books requires the satisfaction of the
following conditions:
1. The person who made the entry must be dead, outside the country or unable to testify;
2. The entries were made at or near the time of the transactions to which they refer;
3. The entrant was in a position to know the facts stated in the entries;
4. The entries were made in his professional capacity or in the performance of a duty, whether
legal, contractual, moral or religious; and
5. The entries were made in the ordinary or regular course of business or duty.
Basis of Admissibility
- Necessity is given as a ground for admitting entries, in that they are the best available
evidence.
- The person who may be called to court to testify on these entries being dead, there arises the
necessity of their admission without the one who made them being called to court be sworn
and subjected to cross-examination. And this is permissible in order to prevent a failure of
justice.
“What a man has actually done and committed to writing when under obligation to do the act,
it being in the course of the business he has undertaken, and he being dead, there seems to be
no danger in submitting to the consideration of the court.”
- The business entries in question do not meet the first and third requisites.
As to the 1st Requisite
- Bookkeeper presented in court. There was, therefore, neither justification nor necessity for
the presentation of the entries as the person who made them was available to testify in court.
As to the 3rd Requisite
- Bookkeeper admitted that she had no personal knowledge of the facts constituting the entry.
She said she made the entries based on the bills given to her. But she has no knowledge of the
truth or falsity of the facts stated in the bills.
- The deliveries of the materials stated in the bills were supervised by “an engineer for such
functions.” The person, therefore, who has personal knowledge of the facts stated in the
entries, i.e., that such deliveries were made in the amounts and on the dates stated, was the
company’s project engineer.
- Whether or not the bills given to Aday correctly reflected the deliveries made in the amounts
and on the dates indicated was a fact that could be established by the project engineer alone
who, however, was not presented during trial.
Evidence Page 35
Darryl Mario.” even suggests that it was Mario who printed the same and only handed the
print-out to Nubi. The identity of the entrant was not established. Neither did Aznar establish in
what professional capacity did Mario or Nubi make the entries, or whether entries were made
in the performance of their duty in the ordinary or regular course of business or duty.
Due execution and authentication of the Warning Cancellation Bulletins have been duly
established and identified by Citibank’s Dennis Flores, head of credit card department, and,
therefore, competent to testify on the said bulletins as having been issued by the defendant
bank showing that Aznar’s preferred master credit card was never blacklisted or placed in the
Bank’s “hot list”.
- Respondents failed to present a witness to prove the due execution and authenticity of the
C ertificate of Death.
Evidence Page 36
orders which she, however, knew nothing about. She had no personal knowledge of the facts
on which the accounts were based since, admittedly, she was not involved in the delivery of
goods and was merely in charge of the records and documents of all accounts receivable as
part of her duties as credit and collection manager.
- She thus knew nothing of the truth or falsity of the facts stated in the invoices and delivery
orders, i.e., whether such deliveries were in fact made in the amounts and on the dates stated,
or whether they were actually received by respondent.
- She was not even the credit and collection manager during the period the agreement was in
effect.This can only mean that she merely obtained these documents from another without any
personal knowledge of their contents.
- The foregoing shows that Rayos was incompetent to testify on whether or not the invoices
and delivery orders turned over to her correctly reflected the details of the deliveries made.
Thus, the C A correctly disregarded her testimony.
- Furthermore, the invoices and delivery orders presented by petitioner were self-serving.
Having generated these documents, petitioner could have easily fabricated them. Petitioner’s
failure to present any competent witness to identify the signatures and other information in
those invoices and delivery orders cast doubt on their veracity.
Debit Memos
- They are, at bottom, credit accommodations said to have been granted by the bank’s branch
manager Mr. Qui to the defendant, and they are, therefore loans, to prove which competent
Evidence Page 37
manager Mr. Qui to the defendant, and they are, therefore loans, to prove which competent
testimonial or documentary evidence must be presented.
- In the face of the denial by the defendant of the existence of any such agreement, and the
absence of any document reflecting it, the testimony of a party to the transaction, i.e., Mr. Qui,
or of any witness to the same, would be necessary.
- The plaintiff failed to explain why it did not or could not present any party or witness to the
transactions, but even if it had a reason why it could not, it is clear that the existence of the
agreements cannot be established through the testimony of Mr. Mercado, for he was not in a
position to know those facts.
- As a subordinate, he could not have done more than record what was reported to him by his
superior the branch manager, and unless he was allowed to be privy to the latter’s dealings
with the defendant, the information that he received and entered in the ledgers was incapable
of being confirmed by him.
- There is good reason why evidence of this nature is incorrigibly hearsay. Entries in business
records which spring from the duty of other employees to communicate facts occurring in the
ordinary course of business are prima facie admissible, the duty to communicate being itself a
badge of trustworthiness of the entries, but not when they purport to record what were
independent agreements arrived at by some bank officials and a client.
- In this case, the entries become mere casual or voluntary reports of the official concerned. To
permit the ledgers, prepared by the bank at its own instance, to substitute the contract as
proof of the agreements with third parties, is to set a dangerous precedent.
- Business entries are allowed as an exception to the hearsay rule only under certain conditions
specified in Section 43, which must be scrupulously observed to prevent them from being used
as a source of undue advantage for the party preparing them.
Yek Tong Fire & Marine Insurance Co., Inc. vs. Gutierrez, et al (CA, 59 OG 8122)
In the presentation and admission as evidence of entries made in the regular course of
business, there is no overriding necessity to bring into court all the clerks or employees
who individually made the entries in a long account. It is sufficient that the person who
supervises the work of the clerks or other employees making the entries testify that the
account was prepared under his supervision and that the entries were regularly entered
in the ordinary course of business
Evidence Page 38
• Requisites
1. Entries were made by:
a) a public officer in the performance of his duties or
b) by a person in the performance of a duty specially enjoined by law
2. The entrant had personal knowledge of the facts stated by him or such facts were acquired
by him from reports made by persons under a legal duty to submit the same
3. Such entries were duly entered in a regular manner in the official records
• Basis
- Disputable presumption that official duty has been performed
- To expect the presence of a public officer before the court will be taxing to the servant of the
people and time spent in the courtroom will be prejudicial to public service.
• Examples
1. Motor vehicle accident report made at about the time of the accident by a police officer in
the performance of his duties if given by the drivers who figured in and had personal
knowledge of the accident
2. Report submitted by a police officer in the performance of his duties and on the basis of his
own personal observation of the facts reported
3. Sheriff’s return is an official statement by a public official in the performance of a duty
specially enjoined by law
4. Tax records made by a tax officer
5. Official cash book kept by the disbursing officer
6. Records of the Register of Deeds
7. TSN
• Entrant must have been competent with respect to the facts stated in his entries.
• While a priest who officiates at a baptism acts pursuant to a legal duty in recording the facts of
such baptism in a register, such entries in the register are not admissible to prove the date of
birth of the child or its relation to particular persons as the entrant priest is not competent to
testify with respect to the truth of these latter facts
• Baptismal certificates or parochial records of baptism are not public or official records and are
not proof of relationship or filiation of the chills baptized.
• C hurch registries – no longer public writings pursuant to GO No. 58 and Act No. 190
- But still admissible as evidence of the facts stated therein with respect to marriages
solemnized by the priest w/o the necessity of calling him.
- But necessary to be authenticated as private writings
- A copy of the certificate transmitted to the public officer as required by law becomes a public
document and sdmissible without prior authentication
• Entries in official records may be proved and evidenced in the manner provided by Rule 132
Evidence Page 39
• Entries in official records may be proved and evidenced in the manner provided by Rule 132
Sections 24 and 25
Evidence Page 40
expense of another. One cannot conceal under the cloak of its provisions to perpetrate fraud
and obtain a better title than what he really and lawfully owns. Thus, if he secures a certificate
of title by mistake or obtain more land than what he really owns, the certificate of title should
be cancelled or corrected.
- It is clear that Decree No. 4244 issued in favor of the respondent municipality in 1911 has
become indefeasible; as such, petitioner is now barred from claiming the subject land.
- Although the municipality’s claim of ownership is based on the entry in the Ordinary Decree
Book, LRC (CLR) Rec. No. 6763, showing that Decree No. 4244 was issued on March 3, 1911
and that Lot 1 Plan II-2719 was one of the six parcels of land previously applied for
registration by the Municipality of Cabuyao in LRC (GLRO) Record No. 6763, being a public
document, the Ordinary Decree Book is prima facie proof of the entries appearing therein.
- Section 44, Rule 130, of the Rules of Court provides….
- The trustworthiness of public documents and the value given to the entries made
therein could be grounded on
(1) the sense of official duty in the preparation of the statement made
(2) the penalty which is usually affixed to a breach of that duty,
(3) the routine and disinterested origin of most such statements, and
(4) the publicity of record which makes more likely the prior exposure of such errors
as might have occurred.
- Besides, these incidents were attested to by Acting Chief, Division of Ordinary Registration,
Silverio G. Perez, in the report dated December 2, 1980.
- In the absence of evidence to the contrary, the Ordinary Decree Book, LRC (CLR) Rec. No.
6763, showing that Decree No. 4244 was issued on March 3, 1911, is presumed to have been
regularly issued by the accountable public officers who enjoy the legal presumption of
regularity in the performance of their functions.
Evidence Page 41
an illegitimate child, when signed only by the mother of the latter, is incompetent
evidence of fathership of said child. A birth certificate not signed by the alleged father
therein indicated is not competent evidence of paternity.
SOLINAP v LOCSIN, JR
FACTS
To support his claim that he is an acknowledged natural child of the deceased, Juan
Locsin, Jr. submitted a machine copy of his Certificate of Live Birth No. 477 (Exhibit D)
found in the bound volume of birth records in the Office of the Local Civil Registrar of
Iloilo C ity. Exhibit "D" contains the information that respondent's father is Juan C.
Locsin, Sr. and that he was the informant of the facts stated therein, as evidenced by
his signatures. To prove the existence and authenticity of Certificate of Live Birth No.
477 from which Exhibit "D" was machine copied, he presented Vencer, the Local Civil
Registrar of Iloilo C ity. She produced and identified in court the bound volume of 1957
records of birth where the alleged original of C ertificate of Live Birth No. 477 is included.
- Petitioners claimed that C ertificate of Live Birth No. 477 (Exhibit "D") is spurious. They
submitted a certified true copy of Certificate of Live Birth No. 477 found in the Civil Registrar
General, Metro Manila, marked as Exhibit "8", indicating that the birth of respondent was
reported by his mother, Amparo Escamilla, and that the same does not contain the signature of
the late Juan C . Locsin.
- They observed as anomalous the fact that while respondent was born on October 22, 1956
and his birth was recorded on January 30, 1957, however, his Certificate of Live Birth No. 447
(Exhibit "D") was recorded on a December 1, 1958 revised form.
HELD
Exhibit D is not admissible. Section 12 of Act 3753 (An Act to Establish a C ivil Register): the
records of births from all cities and municipalities in the Philippines are officially and regularly
forwarded to the C ivil Registrar General in Metro Manila by the Local C ivil Registrars.
- Since the records of births cover several decades and come from all parts of the country, to
merely access them in the C ivil Registry General requires expertise. To locate one single birth
record from the mass, a regular employee, if not more, has to be engaged. It is highly unlikely
that any of these employees in Metro Manila would have reason to falsify a particular 1957
birth record originating from the Local Civil Registry of Iloilo City.
- With respect to Local C ivil Registries, access thereto by interested parties is obviously easier.
Thus, in proving the authenticity of Exhibit "D," more convincing evidence than those
considered by the trial court should have been presented by respondent.
- The event about which Vercer testified in 1994 was the record of respondent's birth which
took place in a956, or 37 or 38 years ago. The Local Civil Registrar of Iloilo City at that time
was Emilio G. Tomesa. Necessarily, Vencer's knowledge of respondent's birth record allegedly
made and entered in the Local Civil Registry in January, 1957 was based merely on her general
Evidence Page 42
made and entered in the Local Civil Registry in January, 1957 was based merely on her general
impressions of the existing records in that Office.
- When entries in the C ertificate of Live Birth recorded in the Local Civil Registry vary from
those appearing in the copy transmitted to the C ivil Registry General, pursuant to the C ivil
Registry Law, the variance has to be clarified in more persuasive and rational manner. In this
regard, we find Vencer's explanation not convincing.
- Exhibit "8" of the petitioners found in the C ivil Registrar General in Metro Manila is on
Municipal Form No. 102, revised in July, 1956. We find no irregularity here. Indeed, it is logical
to assume that the 1956 forms would continue to be used several years thereafter. But for a
1958 form to be used in 1957 is unlikely.
- There are other indications of irregularity relative to Exhibit "D." The back cover of the 1957
bound volume in the Local Civil Registry of Iloilo is torn. Exhibit "D" is merely pasted with the
bound volume, not sewn like the other entries.
- The documents bound into one volume are original copies. Exhibit "D" is a carbon copy of the
alleged original and sticks out like a sore thumb because the entries therein are typewritten,
while the records of all other certificates are handwritten. Unlike the contents of those other
certificates, Exhibit "D" does not indicate important particulars, such as the alleged father's
religion, race, occupation, address and business. The space which calls for an entry of the
legitimacy of the child is blank. On the back page of Exhibit "D", there is a purported signature
of the alleged father, but the blanks calling for the date and other details of his Residence
C ertificate were not filled up.
- When asked to explain the torn back cover of the bound volume, Vencer had no answer
except to state, "I am not aware of this because I am not a bookbinder."
- There is no explanation why out of so many certificates, this vital document, Exhibit "D", was
merely pasted with the volume.
- The C ivil Registry Law requires, inter alia, the Local C ivil Registrar to send copies of
registrable certificates and documents presented to them for entry to the Civil Registrar
General. In light of the above provisions, a copy of the document sent by the Local Civil
Registrar to the Civil Registrar General should be identical in form and in substance with the
copy being kept by the latter. In the instant case, Exhibit "8", as transmitted to the Civil
Registrar General is not identical with Exhibit "D" as appearing in the records of the Local Civil
Registrar of Iloilo C ity. Such circumstance should have aroused the suspicion of both the trial
court and the C ourt of Appeals and should have impelled them to declare Exhibit "D" a
spurious document.
Exhibit "8" shows that respondent's record of birth was made by his mother. In the same
Exhibit "8", the signature and name of Juan C . Locsin listed as respondent's father and the
entry that he and Amparo Escamilla were married in Oton, Iloilo on November 28, 1954 do not
appear.
Roces vs. Local Civil Registrart: Section 5 of Act No. 3753 and Article 280 of the C ivil Code of
the Philippines explicitly prohibit, not only the naming of the father of the child born out of
wedlock, when the birth certificate, or the recognition, is not filed or made by him, but also,
the statement of any information or circumstances by which he could be identified.
Accordingly, the Local Civil Registrar had no authority to make or record the paternity of an
illegitimate child upon the information of a third person and the certificate of birth of an
illegitimate child, when signed only by the mother of the latter, is incompetent evidence of
fathership of said child.
- A birth certificate is a formidable piece of evidence prescribed by both the Civil C ode and
Article 172 of the Family Code for purposes of recognition and filiation. However, birth
certificate offers only prima facie evidence of filiation and may be refuted by contrary evidence.
Its evidentiary worth cannot be sustained where there exists strong, complete and conclusive
proof of its falsity or nullity.
- At this point, it bears stressing the provision of Section 23, Rule 132 of the Revised Rules of
C ourt that "(d)ocuments consisting of entries in public records made in the performance of a
duty by a public officer are prima facie evidence of the facts therein stated." In this case, the
glaring discrepancies between the two C ertificates of Live Birth (Exhibits "D" and "8") have
overturned the genuineness of Exhibit "D" entered in the Local Civil Registry. What is authentic
is Exhibit "8" recorded in the C ivil Registry General.
Evidence Page 43
• Entries in official records may be proved and evidenced in the manner provided by Rule 132
Sections 24 and 25
While the documentary evidence presented by DBP, i.e., (1) the police blotter; (2) the
certification from the Bacolod Police Station; and (3) the Fire Investigation Report may
be considered exceptions to the hearsay rule, being entries in official records,
nevertheless, as noted by the C A, none of these documents categorically stated that the
perpetrators were members of the CPP/NPA. All these documents show that indeed, the
“suspected” executors of the fire were believed to be members of the CPP/NPA. But
suspicion alone is not sufficient, preponderance of evidence being the quantum of proof.
Evidence Page 44
WALLEM MARITIME V NLRC (1996)
FACTS
Macatuno was hired by Wallem as seaman on board the M/T Fortuna. While the vessel
was berthed at the port in Japan, Macatuno & Gurimbao had an altercation with an
apprentice of the same nationality as the captain of the vessel. The master entered the
incident in the tanker's logbook. As a consequence, Macatuno & Gurimbao were
repatriated to the Philippines. They won the cae for illegal dismissal filed with the POEA.
NLRC affirmed.
POEA & NLRC refused to give weight and credence to the CTC of the official logbook
“because the alleged entries therein were only handpicked and copied from the official
logbook” and there is no way of verifying the truth of these entries and whether they
actually appear in the log entries for the specific dates mentioned. The pages in the
official logbook where these entries appear should have been the ones reproduced to
give the same a taint of credence. Moreover, no documentary evidence was submitted
to support the alleged official logbook, like the Master's report and the police report or
any report by the Japanese authorities by reason of their arrest. Finally, the copy of the
alleged official logbook was not properly authenticated. The authentication is necessary
specially so since this document is the only piece of evidence submitted by respondents.
HELD
The official logbook is not admissible. The ship captain's logbook is a vital evidence as
Article 612 of the C ode of C ommerce requires him to keep a record of the decisions he
had adopted as the vessel's head. A copy of an official entry in the logbook is legally
binding and serves as an exception to the hearsay rule.
-BUT in this case, because no investigation was conducted by the ship captain before
repatriating Macatuno, the contents of the logbook have to be duly identified and authenticated
lest an injustice result from a blind adoption of such contents which merely serve as prima
facie evidence of the incident in question.
- Petitioners did not submit as evidence to the POEA the logbook itself, or even authenticated
copies of pertinent pages thereof, which could have been easily xeroxed or photocopied
considering the present technology on reproduction of documents. What was offered in
evidence was merely a typewritten collation of excerpts from what could be the logbook
because by their format, they could have been lifted from other records kept in the vessel in
accordance with Article 612 of the Code of Commerce.
-Also the entry in the logbook is so sketchy that, unsupported by other evidence, it leaves so
many questions unanswered. In the absence of a more detailed narration in the logbook entry
of the circumstances surrounding an alleged assault, the same cannot constitute a valid
justification to terminate a seaman’s employment.
Evidence Page 45
was also never denied under oath.
Commercial Lists
• Examples: Carlisle or Wigglesworth Tables and accepted actuarial and annuity tables
Learned Treatises
• Requisites:
1. The court takes judicial notice thereof
2. The same is testified to by a witness expert in the subject
• C A took judicial notice of the Ballantyne Scale of Values [1]
• Legal treatises also included
• Requisites:
1. Witness is dead or unable to testify
2. His testimony or deposition was given in a former case or proceeding, judicial or
Evidence Page 46
2. His testimony or deposition was given in a former case or proceeding, judicial or
administrative, between the same parties or those representing the same interests
3. The former case involved the same subject as that in the present case, although on
different causes of action
4. The issues testified to by the witness in the former trial is the same issue involved in the
present case
5. The adverse party had an opportunity to cross-examine the witness in the former case
• Subsequent failure or refusal to appear at the second trial, or hostility since testifying at the
first trial ≠ inability to testify
» Inability should proceed from a grave cause almost amounting to death
• Requisites:
6. Witness [or deponent] is dead or unable to testify
7. His testimony or deposition was given in a former case or proceeding, judicial or
administrative, btwn the same parties or those representing the same interests
8. The former case involved the same subject as that in the present case,
although on different causes of action
9. The issues testified to by the witness in the former trial is the same issue involved in the
present case
10. Adverse party had opportunity to cross-examine the witness in the former case
• INABILITY TO TESTIFY
» Subsequent failure or refusal to appear at the second trial not enough
» Hostility since testifying at the first trial not enough
» Inability should proceed from a grave cause, almost amounting to death
» e.g., witness is old and has lost the power of speech
TAN V CA (1967)
FACTS
C ase#1: Action for acknowledgment & support by Carmelita & Rodolfo (thru mother Celestina)
vs Francisco. After presentation of evidence in chief, upon motion of Celestina, on the ground
that the parties have come to amicable settlement, case was dismissed with prejudice.
C elestina submitted an affidavit categorically declaring that Francisco is not the father of her
children.
C ase #2, filed 1yr & 8mos after dismissal of Case#1: Carmelita & Rodolfo [thru Grandma) vs
Francisco Tan. Action for acknowledgment & support: same parties, COA, and subject matter.
RTC dismissed the case [res judicata], and said that, even on the merits, plaintiffs have not
made out their case with sufficient evidence. CA affirmed.
Evidence Page 47
made out their case with sufficient evidence. CA affirmed.
HELD
Exhibit. H and I, testimony of the minor’s witnesses in case#1 are NOT admissible.
These witnesses are not dead. They are not outside of the Philippines. They were
available. Only they refused to testify. No other person that prevented them from
testifying is cited. Certainly, they cannot be categorized as witnesses unable to testify.
-“Unable to testify” does not cover the case of witnesses who were subpoenaed but did not
appear. Subsequent failure or refusal to appear at the second trial or hostility since testifying
at the first does not amount to inability to testify, but such inability proceeding from a grave
cause, almost amounting to death, as when the witness is old and has lost the power of
speech.
-In the situation here presented, petitioners are not all bereft of remedy. They could have
urged the court to have said witnesses arrested, punished for contempt. After all these
remedies are in the statute books to help litigants in the persecution of their cases.
Obiter: The danger of tampering with witnesses is a problem that attends trials in many a time
and in number of imaginable situations. Witnesses at the former trial can be bought not to
testify at the second trial, in just the same way that they could have been bought to give their
original testimony. Solution of this problem lies elsewhere, not in the non-enforcement of the
Rules of C ourt.
Evidence Page 48
Evidence September 15
Tuesday, September 15, 2009
6:32 PM
On current events:
Super Ferry Case
4am
Captain: winds were strong
But passengers: no wind, waters were calm
They didn't want to jump because it was 4am but it's too dark.
If there were others that would testify that they heard many said that there was no wind, would it be
admissible? Granting there were already two passengers already who have said that paalis pa lang ng pier,
the ferry was listing (leaning?) already…
VAA: the ship would probably lean to a single direction because of negligent arrangement of cargo.
ADMISSIBLE?
Aida: YES. Under Section 42.
Vs. Pedigree
(single hearsay): declarant (who's making statement regarding the pedigree of a relative) would make an
act or declaration to the witness.
Evidence Page 49
-tradition: passed on from one generation to another…
e.g. Engraving in the ring, e.g. name of the original owner, then it was passed on from generation to
generation…the last tagapagmana wouldn't have personal knowledge of who the owner is but there's a
family tradition that there was such a family member in the
ON AGE: it's hearsay!
-you don’t have personal knowledge when you were born because when you were born, you were unable
to perceive what happened.
So in the Super Ferry Case, even if you don't personally know WON the ship is indeed sinking, when you
hear it from panicking people, you'll probably jump! (you'll never know if the person from whom you've
heard it knows it personally also!)
But if A says, "B sa'yo na!", the statement gives it legal significance, i.e. ownership
WHY Admissible:
E.g. If a train is about to collide with another train, there are persons who already exlaimed, "Babangga!",
ADMISSIBLE AS PART OF RES GESTAE?
SPONTANEOUS. Part of res gestae. Under the influence of the startling event.
But only concerned on the statement right after the crime was committed:
Evidence Page 50
But only concerned on the statement right after the crime was committed:
*NOT RES GESTAE: It was premeditated!
Why premeditated:
1. There was a gang war between the gangs of the victim and accused
2. They knew where the victim was
3. They brought a knife with them
4. When they saw the policeman, they said the statement and handed the knife (with blood!), and it is not
startling to see a prison guard inside a prisoner.
-and they were willing to surrender!
e.g. there's a rape. The law enforcers went inside the house in hot pursuit w/o search warrant. A kid,
hiding covered with a curtain, heard someone say, while pointing to a spot on the house with bejeweled
finger, "Dali, dun mo ilagay!"
Owner charged with possession. The owner counter-sued. Kid presented in court. ADMISSIBLE?
UF: WON there was illegality?
ADMISSIBLE under paragraph 2
Equivocal act: pointing
Statement: "Dali, dun mo ilagay!"
ISSUE: WON there was illegality
• Requisites:
1. The person who made the entry must be dead or unable to testify
2. The entries were made at or near the time of the transaction to which they refer
3. The entrant was in a position to know the facts stated in the entries
4. The entries were made in his professional capacity or in the performance of a duty, whether legal, contractual,
moral or religious
5. The entries were made in the ordinary or regular course of business or duty
Verbal or written?
Written: Entries eh! Business documents!
Documents [R130.2]: evidence offered as proof of their contents
One who made: ENTRANT
One presented in court: WITNESS
EVIDENCE: out of court entry
OUT OF COURT: yes. Dead or unable to testify nga eh!
*Dapat, at the time he wrote it, he knew personally what it contains = COMPETENT! Kahit anong exception
sa hearsay rule, dapat competent!
IS THE DECLARANT=ENTRANT? Yes. Just written.
SO hearsay does not apply only to testimony.
Canque vs. CA
F: Entries in the Book of Collectible Accounts were made by the bookkeeper but had no personal
knowledge because it was the engineer who made the receipts.
H: Not admissible under R130.43
Evidence Page 51
knowledge because it was the engineer who made the receipts.
H: Not admissible under R130.43
-entrant still alive
-entrant had no personal knowledge
*BUT other evidences presented sufficiently showed that CANQUE previously paid SOCCOR w/o contesting
billings made
e.g. Is employment relation required? What if Anton borrows a book from the library and entered into his
library card that he rented this book on this date and he died. Library wanted to claim damages for the lost
book, and presented the library card as evidence.
UF: Anton stole it!
IF: that Anton was the last person who borrowed it
*it is documentary evidence: it is presented as proof of its contents
---presented the original borrower's card of Anton
BUT IS IT HEARSAY?
No, the library card is not hearsay. The document per se would be shown to prove the fact in issue, i.e.
WON Anton borrowed the book, no more need for showing another person to testify on the library card as
the library card is already in the court and itself is a good evidence
Evidence Page 52
2.
made by persons under a legal duty to submit the same
3. Such entries were duly entered in a regular manner in the official records
*prima facie evidence of the facts stated therein: burden of proof is on the other party to disprove
it…(putol)
e.g. Birth Certificate:
-person born
-has a name
-date of birth
-name of parents…
*These are entries in an official record
*these entries are evidence that these entries are TRUE, unless rebutted
BUT ADMISSIBILITY DIFFERENT: Even if not prima facie evidence, may be admissible. Admissibility is based
on reliability and trust worthiness.
e.g. there was a 2 year-old child beated by the persons who took care of her. Everytime she was tortured,
she made sumbong to the neighbor. Neighbor presented neighbor to prove identity of assailant. [P v
Cariquez] ADMISSIBLE?
Hearsay. But under Res Gestae so admissible
-immediately after the startling occurrence
e.g. What if the grandfather who sexually molested a 2 1/2 year old child. The child made sumbong to her
mom. ADMISSIBLE.
Yes. Pv Velasquez
e.g. Street in San Juan not very wide. There's a Jeep who belongs to a policeman, then a Fierra owned by a
priest, they were neighbors. There was an altercation, policeman killed. Neighbors said, "Ay si father
pinatay nung police!" then the policemen arrived later, the witnesses-neighbors were interviewed and said
that the policeman shot the priest. Naturally, the neighbors won't want to testify (kilala sila ni policeman
eh), so the investigators would
Admissible under Res Gestae [P v. Dela cruz]
Evidence Page 53
Admissible under Res Gestae [P v. Dela cruz]
Evidence Page 54
Evidence September 17
Thursday, September 17, 2009
6:13 PM
Issue on hearsay: Did not present the sheriff, just presented the contents of the sheriff's return
H:
-The typewritten excerpt not a copy: a copy should be executed at or about the same time with identical
contents
Issues in this case (possible objections):
1. hearsay: did not present the captain himself but the excerpts of the logbook
2. BER? Are the contents of the logbook in issue?
WALLEM vs. NLRC
UF: WON dismissal is illegal - question of law or fact
-how to prove? Support evidence?
INTERIM FP: Altercation (question of fact)
-basis: evidence
FP: excerpts from the logbook
---basta ung excerpts sa logbook is based on the logbook which contains the personal knowledge of the
captain
Why the contents of the logbook in issue?
Because the logbook contains the account of the alleged altercation
---BER applies but it is under the exception of the BER: Lost, destroyed, or cannot be produced in court:
The logbook of the ship cannot be taken out of the ship!
-NOT A COPY: if a copy, should contain all the contents of the logbook
-RECITAL IN SOME AUTHENTIC DOCUMENT: not the same: it was made during the litigation - NOT
AUTHENTIC BECAUSE IT WAS NOT MADE ANTE LITE MOTAM
e.g. of a recital in some authentic document: records in a maritime disaster case, records of the
employee (presented for promotion case)
Evidence Page 55
employee (presented for promotion case)
Back on Hearsay:
What if present an affidavit containing the said altercation? Would it be an exception to hearsay?
Not under R130.43?
Elements:
a. The person who made the entry must be dead or unable to testify
b. The entries were made at or near the time of the transaction to which they refer
c. The entrant was in a position to know the facts stated in the entries
d. The entries were made in his professional capacity or in the performance of a duty, whether legal,
contractual, moral or religious
e. The entries were made in the ordinary or regular course of business or duty
Were the elements complied with?
-the affidavit is NOT AN ENTRY in the course of business!
WHY?
-the maritime proceeding is not an entry in the regular course of maritime business
e.g. of entries in the regular course of a maritime business
>logbook!
*the Logbook (entries of the captain): however, the captain (sabi ni ma'am) had no personal knowledge
of the events which happened - VAA: The statement in the facts of the case was taken from the
excerpts!
VAA: but does it really fall under 1st part of the Res Gestae rule
-VAA: as to the time part, this is a correct rule
-VAA: there is no res gestae here, they planned it! (obvious naman…)
Evidence Page 56
-VAA: there is no res gestae here, they planned it! (obvious naman…)
Borromeo vs. CA
F: Aznar allegedly lent Rallos money, who allegedly mortgaged the property, but document allegedly
show that it was a sale. Borromeo (administrator of Rallos' estate) wanted to reform the documents.
-Notes were made by Borromeo (4 daw na exhibits) allegedly containing the excerpts
TC: sale, no reformation
CA1: Sale, no reformation
CA2: Equitable mortgage
-testimony of Crispina + notes: notes she made were res gestae
SC: NO RES GESTAE
-not explained…
…why she was there
..why she took notes
…WON she was authorized to take down notes
NOTES not hearsay so can't be res gestae: it was a memorandum!
Canque vs. CA
Evidence Page 57
VAA: this is what makes it confusing: it is already enough that it be from one with personal
knowledge, but here, you must also have a duty to do so…Di sinabi why court gave this
parameters… too strict criterion
-but court considered Leandro Flores' statement before a police investigator later: Flores had personal
knowledge but no duty to do so! So pano un, point ni Odena, the court did not use its own strict
criterion!
VAA: only 1 law which provide for mandatory disclosure - so there's duty to inform - or else liable (data
for data's sake): Human Security Act of 2007: supposed to report or else considered a co-conspirator, a
terrorist!!!
-a person really has no duty to report, only under specific laws
*if the officer has personal knowledge, you don't need R130.44! Dapat nga it's not required. But Caltex
case clarifies it!
---public officials are presumed to have performed their official duties
Evidence Page 58
Evidence: September 22, 2009
Tuesday, September 22, 2009
6:16 PM
Review
Here: Is there an admission which will prejudice the rights of another party?
Sabi ni Ma'am Oo.
If it was not Citibank who declared that Aznar was declared overlimit, why is he suing Citibank?
Ingtan could have only known (and could have gotten the COMPUTER PRINTOUT) only from Citibank. (from inference). In essence,it was CITIBANK who said that
Aznar was already overlimit.
VAA: ONLINE transaction so kahit gaano kalayo ang Indonesia, instantaneous agad ung result.
The statement was from Ingtan but Aznar was saying that it was really Citibank's. RIAA!
DOES NOT FALL INTO ANY EXEMPTION UNDER RIAA! So inadmissibe under RIAA.
"it doesn't follow that the one who printed the printout was the one who made it."
E.g. OLD BUSINESS DOCUMENTS OF A COMPANY. You want to trace it, and there's an official of the company to testify that these documents were kept by the
custodian, and the custodian would be describe…and he performs it in the regular course of business. But the witness FORGOT THE CUSTODIAN'S NAME.
Would it be admissible under rule 130.43?
YES. IDENTITY not a requisite for R130.43 as long as it was established that the entrant was in the position, made the entries in the regular course of business or
duty
VAA: IT IS DANGEROUS FOR THE SC TO RULE THAT THE IDENTITY OF THE ENTRANT MUST BE ESTABLISHED. DO NOT TAKE IT LITERALLY. BASTAAS LONG AS IT IS
ESTABLISHED THAT THE ENTRANT MADE THE ENTRIES IN THE REGULAR COURSE OF BUSINESS AND THAT THE ENTRANT WAS IN THE POSITION TO KNOW THE
FACTS STATED THEREIN, PEDE R130.43.
So if nasa ibang lugar ka, how would you acquire an entry which may be admissible under 43 and 44?
Evidence Page 59
So if nasa ibang lugar ka, how would you acquire an entry which may be admissible under 43 and 44?
Dapat yung 4 requisites hindi hearsay…
*Deposition OR
*let the entrant go to court in RP to witness
*The Black List bulletin is not conclusive as to the fact of WON Aznar was blacklisted
Fernandez vs. CA
H: Canonical documents not prima facie, not official records…
On the Baptismal Certificates
The baptismal certificates of petitioner Claro naming private respondent as his father has scant evidentiary value. There is no showing that private respondent participated
in its preparation.
The rule is that although the baptismal record of a natural child describes her as a child of the decedent, yet, if it in the preparation of record the decedent had no
intervention, the baptismal record cannot be held to be a voluntary recognition of parentage.The reason for this rule that ca nonical records do not constitute the authentic
document prescribed by Arts. 115 and 117 to prove the legitimate filiation of a child is that such canonical record is simply proof of the only act to which the priest may
certify by reason of his personal knowledge, an act done by himself or in his presence, like the administration of the sacram ent upon a day stated; it is no proof of the
declarations in the record with respect to the parentage of the child baptized, or of prior and distinct facts which require separate and concrete evidence.
While baptismal certificates may be considered public documents, they can only serve as evidence of the administration of the sacraments on the dates so specified. They
are not necessarily competent evidence of the veracity of entries therein with respect to the child's paternity.
On the C ertificates of Live Birth
The certificates of live birth of the petitioners identifying private respondent as their father are not also competent evide nce on the issue of their paternity. Again, the
records do no show that private respondent had a hand in the preparation of said certificates. In rejecting these certificate s.
Section 5 of Act No. 3793 and Article 280 of the Civil C ode of the Philippines explicity prohibited, not only the naming of t he father or the child born outside wedlock, when
the birth certificates, or the recognition, is not filed or made by him, but, also, the statement of any information or circu mstances by which he could be identified.
Accordingly, the Local Civil Registrar had no authority to make or record the paternity of an illegitimate child upon the inf ormation of a third person and the certificate of
birth of an illegitimate child, when signed only by the mother of the latter, is incompetent evidence of fathership of said c hild. A birth certificate not signed by the alleged
father therein indicated is not competent evidence of paternity.
Rule 130.47
Section 47 - TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING
The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same
parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him.
• Requisites:
1. Witness is dead or unable to testify
2. His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests
3. The former case involved the same subject as that in the present case, although on different causes of action
4. The issues testified to by the witness in the former trial is the same issue involved in the present case
5. The adverse party had an opportunity to cross -examine the witness in the former case
A vs. B. Witness is C. C was cross-examed. Case was still pending. C went abroad, can no longer be located. Subsequent case between A and B but different COA.
Admissible? KELANGAN BA TAPOS NA YUNG UNANG CASE?
VAA (and ANTON :) ): NO. The rationale for this rule is that the witness is not available anymore and the previous parties over the same subject matter would
want to use the testimony.
Evidence Page 60
COMELEC CASE?
?
Commercial Lists
• Examples: Carlisle or Wigglesworth Tables and accepted actuarial and annuity tables
"Therein" - in the occupation
Who publishes these publication? Persons engaged in the occupation
ESTRADA v. NOBLE: Ballantyne Scale of Values
Sabungeros present a magazine of their kristos etch… ?
List of cargoes allowable etc…? Is it rellied upon by them? YES.
Mining Prospectus
Trade Circulars...
Learned Treatises
• Requisites:
1. The court takes judicial notice thereof
2. The same is testified to by a witness expert in the subject
Evidence Page 61
Evidence Lecture: September 24
Thursday, September 24, 2009
6:07 PM
Section 45 and 46: Review
*both published
*both Multiple hearsay
*should include industries, trades
• Requisites:
1. Witness is dead or unable to testify
2. His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the
same parties or those representing the same interests
3. The former case involved the same subject as that in the present case, although on different causes of
action
4. The issues testified to by the witness in the former trial is the same issue involved in the present case
5. The adverse party had an opportunity to cross-examine the witness in the former case
• Subsequent failure or refusal to appear at the second trial, or hostility since testifying at the first trial ≠ inability to
testify
» Inability should proceed from a grave cause almost amounting to death
Formerly presented: idea of separateness, no requirement that the previous proceeding already ended
On appeal: continuing
Opinion Rule
X:
1. Expert witness
2. Ordinary witness, under exceptional circumstances (4)
*identity of a person
*Handwriting
*Mental sanity of a person
(impression on EBCA)
If handwriting: what should the proponent make W show? That the W is familiar with the handwriting (show facts
why W is familiar with the handwriting)
e.g. W is familiar with the handwriting because he has seen the handwriting many times
What if the NBI agent = W?
*if expertise used: under 49
*if personal knowledge used: under 50
QUALIFICATION:
-the process of establishing the expertise of the witness to be able to present him as an expert
Is it true that medical conditions always require expert witness under Sec49?
Evidence Page 62
Is it true that medical conditions always require expert witness under Sec49?
No. Res Ipsa Loquitur.
BUT you can only give your opinion if you're competent to give it
e.g. A vs. B. Doctor examined A, found that he was cuckoo. Doctor left, cannot be found. C ould B testify on what
Doctor found?
---NO. hearsay. B doesnot have personal knowledge of the findings of the doctor + it's an out of court declaration
presented for the truth (irrelevant if it's an opinion or a fact)
Character evidence
Section 51. Character evidence not generally admissible; exceptions: —
(a) In Criminal Cases:
(1) The accused may prove his good moral character which is pertinent to the moral trait involved
in the offense charged.
(2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to
the moral trait involved in the offense charged.
(3) The good or bad moral character of the offended party may be proved if it tends to establish in
any reasonable degree the probability or improbability of the offense charged.
(b) In Civil Cases:
Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of
character involved in the case.
(c) In the case provided for in Rule 132, Section 14, (46a, 47a)
e.g. libel
If the defense shows that the offended party has a loose mouth. The accused was only provoked to say the libelous
statement
MORAL CHARACTER
-presumption: to do good or bad
-VAA: not philosophy, character being moral or not, depending on the situation
…there are some offenses which do not refer to moral traits (because when we understand it in the general sense,
all offenses are bad!)
-refer to R132.11 (it has to do with honesty, truth, integrity)
Back to slander: does it have something to do with moral character? If the slander or libel contains falsity, it would
reflect on your character
e.g. sa libel
A says, "malandi si B, sumasama sa kung sino-sinong lalaki!"
B, knowing that it was not true, would say, "Chismosa ka! (blahblahblah, which would be slanderous)"
A sued B
B would show that A was the one who started it! She said something which is not true.
VAA: B's testimony/evidence is admissible as it would prove the probability or probability that B really committed
slander/libel
Evidence Page 63
*rape: no
*physical injuries
*VAWC: depends
*rebellion: no
*plunder: yes
---wherein character evidence not admissible
PRESUMPTIONS
RULE 131
Burden of Proof and Presumptions
RULE 131
Burden of Proof and Presumptions
Section 1. Burden of proof. — Burden of proof is the duty of a party to present evidence on the facts in
issue necessary to establish his claim or defense by the amount of evidence required by law. (1a, 2a)
Burden of proof Burden of evidence
Does not shift, remains throughout the trial Shifts from party to party depending upon the
(on COA) exigencies of the case
Generally determined by the pleading filed by Determined
the party *by the developments at the trial
*by the provisions of the substantive law
or procedural rules: admissions, presumptions, judicial
notice
e.g.
CRIMINAL: guilt beyond reasonable doubt
CIVIL: preponderance of evidence
ADMIN: substantial evidence
WHY there's burden of proof: for the court to determine WON the person who has the burden
establishing the burden of proof has done so.
e.g. defense filed demurrer to evidence. Denied. Who has burden of evidence?
Defendant. He has now to present evidence to prove that he is not guilty.
Conclusive presumption:
-the law does not allow to be contradicted
-if the other party presents evidence to contradict it, the evidence would be inadmissible!!!
On (b)
e.g. A (landlord) files a collection suit against B (tenant). B presents as defense that A is not his landlord,
it's C, so he does not have to pay A.
His defense is not admissible...
Estopped!
Evidence Page 64
(b) That an unlawful act was done with an unlawful intent;
-baligtad ng (a): pag may ginawa kang masama, intended un
(c) That a person intends the ordinary consequences of his voluntary act;
(i) That prior rents or installments had been paid when a receipt for the later one is produced;
-VAA: presumption is that you're not dyslexic. Pay chronologically. It is normal that you don't want to be
confused, so pay chronologically! You don't want to pay for December then September…
(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker
and the doer of the whole act; otherwise, that things which a person possess, or exercises acts of
ownership over, are owned by him;
e.g. Robbery with homicide. Took wallet. Then A found to have the wallet. A is presumed to be the thief
and the killer.
(k) That a person in possession of an order on himself for the payment of the money, or the delivery of
anything, has paid the money or delivered the thing accordingly;
e.g. Negotiable Instrument, Bill of lading
Somebody drawn the instrument, you are the drawee. When the thing has already been presented to
the drawee, it is presumed that the drawee complied with it
(l) That a person acting in a public office was regularly appointed or elected to it;
(m) That official duty has been regularly performed;
(regular performance of duties)
(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction;
(presumption of proper jurisdiction)
(o) That all the matters within an issue raised in a case were laid before the court and passed upon by
it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration
were laid before the arbitrators and passed upon by them;
(p) That private transactions have been fair and regular;
Evidence Page 65
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a sufficient consideration;
(t) That an endorsement of negotiable instrument was made before the instrument was overdue and
at the place where the instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the regular course of the mail;
(w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he
is considered dead for all purposes, except for those of succession.
e.g. For insurance purposes.
For marriage: applicable - maximum!
The absentee shall not be considered dead for the purpose of opening his succession till after an
absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall
be sufficient in order that his succession may be opened.
The following shall be considered dead for all purposes including the division of the estate among the
heirs:
(1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not
been heard of for four years since the loss of the vessel or aircraft;
(2) A member of the armed forces who has taken part in armed hostilities, and has been missing
for four years;
(3) A person who has been in danger of death under other circumstances and whose existence has
not been known for four years;
(4) If a married person has been absent for four consecutive years, the spouse present may
contract a subsequent marriage if he or she has well-founded belief that the absent spouse is
already death. In case of disappearance, where there is a danger of death the circumstances
hereinabove provided, an absence of only two years shall be sufficient for the purpose of
contracting a subsequent marriage. However, in any case, before marrying again, the spouse
present must institute a summary proceedings as provided in the Family Code and in the rules for
declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.
E.g. there is a small tugboat which has to deliver some persons to Batangas during a storm. Only found
tugboat afterwards, without the passengers. 4 years already passed.
Not under (1) because the vessel is not lost. But may be presumed under (3): show that the waves
would be 20ft high and the tugboat found upturned
E.g. what about journalists and medical staff who are also in armed hostilities. Under (2)?
No. Under (3). There's a danger of death here!
In respect of marriage, the spouse present MUST HAVE A WELL-FOUNDED BELIEF, not a well-founded
desire.
*the rules were old. Examples: entries in the course of business and the definition of the original of the
document. During that time, there was no photocopier nor printer.
(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or
fact;
(y) That things have happened according to the ordinary course of nature and ordinary nature habits of
life;
VAA: but laws of nature are also subject to judicial notice. Pano ngayon yan?
e.g. laws of nature that the court could take JN:
*gravity
*when there's smoke, there's fire
Evidence Page 66
*when there's smoke, there's fire
*when you boil water, it would evaporate
e.g. presumption: that when a land widens
(z) That persons acting as copartners have entered into a contract of copartneship;
(aa) That a man and woman deporting themselves as husband and wife have entered into a lawful
contract of marriage;
(bb) That property acquired by a man and a woman who are capacitated to marry each other and who
live exclusively with each other as husband and wife without the benefit of marriage or under void
marriage, has been obtained by their joint efforts, work or industry.
(cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other
and who have acquire properly through their actual joint contribution of money, property or industry,
such contributions and their corresponding shares including joint deposits of money and evidences of
credit are equal.
(dd) That if the marriage is terminated and the mother contracted another marriage within three
hundred days after such termination of the former marriage, these rules shall govern in the absence of
proof to the contrary:
(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is
considered to have been conceived during such marriage, even though it be born within the three
hundred days after the termination of the former marriage.
(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is
considered to have been conceived during such marriage, even though it be born within the three
hundred days after the termination of the former marriage.
(ee) That a thing once proved to exist continues as long as is usual with things of the nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be printed or published by public authority, was so
printed or published;
(hh) That a printed or published book, purporting contain reports of cases adjudged in tribunals of the
country where the book is published, contains correct reports of such cases;
(ii) That a trustee or other person whose duty it was to convey real property to a particular person has
actually conveyed it to him when such presumption is necessary to perfect the title of such person or his
successor in interest;
(jj) That except for purposes of succession, when two persons perish in the same calamity, such as
wreck, battle, or conflagration, and it is not shown who died first, and there are no particular
circumstances from which it can be inferred, the survivorship is determined from the probabilities
resulting from the strength and the age of the sexes, according to the following rules:
1. If both were under the age of fifteen years, the older is deemed to have survived;
2. If both were above the age sixty, the younger is deemed to have survived;
3. If one is under fifteen and the other above sixty, the former is deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived,
if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have
survived.
(kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as
to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in
the absence of proof, they shall be considered to have died at the same time. (5a)
Section 4. No presumption of legitimacy or illegitimacy. — There is no presumption of legitimacy of a
child born after three hundred days following the dissolution of the marriage or the separation of the
spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. (6)
Evidence Page 67
Evidence Page 68
Borje vs. Sandiganbayan
Evidence Notes dated October 6, 2009
Monday, September 21, 2009 Capili vs. Cardana
4:35 PM
y. That things have happened according to the ordinary course of nature and the ordinary habits of life;
Example: ORDINARY HABITS OF LIFE
…that you sleep at night
…that you'll have ridges on your nose when you use glasses regularly
"aa. That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage;"
bb. That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each ot her as husband and wife without the benefit of marriage or
under a void marriage, has been obtained by their joint efforts, work, or industry;
FC
Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife *without the benefit of marriage or *under a void marriage, their wage s and salaries
shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtaine d by their joint efforts, work or industry, and shall be owned by them in equal shares. For
purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted
in the care and maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation an d owned in common, without the consent of the other, until after the termination of their
cohabitation.
When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co -ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all
of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the a bsence of descendants, such share shall belong to the innocent party. In all cases, the
forfeiture shall take place upon termination of the cohabitation. (144a)
Art. 148. In cases of cohabitation not falling under the preceding Article (meaning: they are not capacitated to marry each other), only the properties acquired by both of the parties through their actual joint
contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions . In the absence of proof to the contrary, their contributions and corresponding
shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit.
If one of the parties is validly married to another, his or her share in the co -ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who ac ted in bad faith is
not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding A rticle.
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.
***
Why presumed to have been obtained through joint EWI:
-even if wife did not contribute financially (as it is usually the wife who stays at home), wife presumed to have taken care o f the household chores - so may contribution (see FC provisions, it
explains a lot)
e.g. What if the man and a woman, capacitated to marry each other and lives exclusively with each other, it's just that they are not married or their marriage is void, jointly contribute financially
to the acquisition of a house and lot. The man declares that he owns 90% of the property. Is the presumption relevant?
CHA: YES. The woman could claim that it is presumed that they have obtained the house and lot through their joint efforts, as presumed by law, and it is on the man to prove otherwise (i.e. that
he owns 90% of the property as he contributed that proportion). (Ma'am didn't give any answer so I tried to do so)
cc. That in cases of cohabitation by a man and a woman who are * not capacitated to marry each other and who have acquired property through their actual joint contribution of money,
property, or industry, such contributions and their corresponding shares including joint deposits of money and evidences of c redit are equal;
CHA: similar to Family code provision
dd. That if the marriage is terminated and the mother contracted another marriage within 300 days after such termination of t he former marriage, these rules shall govern in the absence of
proof to the contrary:
1) A child born before 180 days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within 300 days
after the termination of the former marriage.
2) A child born after 180 days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within 300 days
after the termination of the former marriage.
Cutoff points
1. 180 days after the solemnization of the 2nd marriage: relevant: pertains to the date of conception, as it takes at least 6 mo nths for a baby to live outside mom's womb
2. 300 days after the termination of the former marriage
If born BEFORE 180 days (6 months) after 2nd marriage + born WITHIN 300 days (10 months) after end of 1st marriage = child co nceived during 1st marriage
Evidence Page 69
If born AFTER 180 days (6 months) after 2nd marriage + born WITHIN 300 days (10 months) after end of 1st marriage = child con ceived during 2nd marriage
VAA: if the child was born after 180 days after 2nd marriage but born after 300 days after the 1st marriage, is the child pre sumed a legitimate child of the second marriage?
NO. NO PRESUMPTION AS TO LEGITIMACY OR ILLEGITIMACY. (R131.4)
Sec.4 No presumption of legitimacy or illegitimacy. There is no presumption of legitimacy or illegitimacy of a child born aft er three hundred days following the dissolution of the marriage or
the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation.
(compare with CC and FC)
CC
Art. 261. There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissol ution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or the
illegitimacy of such child must prove his allegation.
FC
Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage s hall be proved by whoever alleges such legitimacy or illegitimacy.
"(ee) That a thing once proved to exist continues as long as is usual with the things of that nature;"
-refers to longetivity
"USUAL"
-there must be a basis, a track record
(jj) That except for purposes of succession, when 2 persons perish in the same calamity, such as wreck, battle, or conflagrat ion, and it is not shown who died first, and there are no particular
circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strengt h and age of the sexes, according to the following rules:
1) If both were under the age of 15, the older is deemed to have survived;
2) If both were above the age of 60, the younger is deemed to have survived;
3) If one is under 15 and the other is above 60, the former is deemed to have survived;
4) If both be over 15 and under 60, and the sex is different, the male is deemed to have survived; if the sex is the same, the older;
If one be under 15 or over 60, and the other between those ages, the latter is deemed to have survived
4 factors necessary
1. NO succession issues
2. No particular circumstances from which one can refer as to who died first: Absolutely no way to determine: if there's another way, don't use the presumption
e.g. One can swim, the other cannot, then possibly the one who can't swim died ahead
One is sick, the other is healthy, it can be inferred that the healthy person lived longer
3. WHERE:
a. Wreck
b. Battle
c. Conflagration
d. Any other calamity
4. Infer from strength/age/sex
(kk) That if there is doubt, as between 2 or more persons who are called to succeed each other, as to which of them died firs t, whoever alleges the death of one prior to the other, shall prove
the same; in the absence of proof, they shall be considered to have died at the same time.
-this is the provision applicable to succession
GR: died at the same time
X: unless death of one first proven by the person who alleges
WHY there's such a provision: this is for succession. To be fair, the two persons are presumed to have died at the same time so that no one succeeds from t he other. But if one wants to prove
that one succeeds from the other (through the earlier death of the latter), he has the burden of proving that it is the case, as after proving such, he could win the case (sorry medyo mahaba. Di
ko ma-explain nang mas maganda eh)
e.g. X, a wealthy business man, went on a trip abroad with one of his child, A. They boarded a plane which crashed. Only X's body was found. B was the only one left in the family. Would B apply
the presumption/s?
YES. It would be beneficial for X to apply (w) presumption, i.e. presumption of death of his sibling A. If he proves that A i s presumed to be dead, then he could inherit both from his dad X and
from his sibling A, provided A does not have compulsory heirs. If A still presumed to be alive, he would have someone who wou ld be sharing the estate of his dad X, aside from their mom if alive
and other heirs.
Evidence Page 70
CAN YOU STIPULATE ON THE BURDEN OF EVIDENCE?
VAA: yes you can! Burden of evidence only refers to the order of presentation of evidence, and in each stage, one of the part ies either the claimant or defendant has the burden of evidence
Burden of Proof Burden of Evidence
C ivil cases - on the party who would be defeated if no evidence were given on either side Both civil and criminal cases – lies with party who asserts an affirmative allegation
C riminal cases – always on the prosecution
Does not shift as it remains throughout the trial with the party upon whom it is imposed Shifts from party to party depending upon the exigencies of the case in the course of the trial
Generally determined by the pleading filed by the party Generally determined by the developments at the trial or by provisions of law
REVERSE TRIAL:
-case where the defendant presents his evidence first, when the usual practice is that the prosecution or the plaintiff presen ts evidence first
-here, only the BURDEN OF EVIDENCE CHANGES.
e.g. CIV: when the defendant presents an AFFIRMATIVE DEFENSE
…in a complaint for collection of money, the defendant could claim that he has already paid money so he can prove first that he DID pay so as to speed things up. So the defendant has the
burden of evidence first. But the plaintiff still has the burden of proving that the defendant did not pay, or else his claim would be defeated, same with the defendant who has the burden of
proving that he did pay, or he was not liable to pay
e.g. CRIM: when the defendant presents a JUSTIFYING CIRCUMSTANCE (usually when he alleges that he only acted in SELF -DEFENSE)
-only the burden of evidence affected, i.e. the defense would be presenting its evidence first. The burden of proof still rema ins with the prosecution to prove the guilt of the accused beyond
reasonable doubt
VAA discussion (CHA's interpretation): Mali daw doctrine ng Borje (and the doctrine is?)
For the presumption to attach, the following should concur
(1) there was a taking
(2) taking was done in the doing of a recent wrongful act
Here, the wrongful act is falsification. What could be taken during the falsification are the documents, as the presumption w ould presume that if Borje possesses the falsified documents, he
took it and was also the one who falsified it. The thing allegedly taken here is the check, which was not falsified and was n ot proven to be in the possession of Borje. Therefore, the presumption
does not apply
BARCELON V. ROXAS
-wrong doctrine rin! Inulit ang Africa v. Caltex!
F: BIR issued an assessment for deficiency of tax. Taxpayer alleged that he didn't receive any assessment, protested. Even wi th the protest, BIR levied on the properties of the taxpayer.
-during trial, the BIR was only able to present a record containing the fact that a notice was sent to the taxpayer on this da te through this sender.
H: "To qualify their statements as "official information" acquired by the officers who prepared the reports, the persons who made the statements not only must have personal knowledge of the
facts stated but must have the duty to give such statements for record." - kaya di naniwala sa BIR. Most probably (as di naman 'to assigned, binanggit lang ni ma'am so di ko alam facts) the one
who made the entry was deemed not to have personal knowledge that the assessments were indeed received by the taxpayer.
CAPILI V CARDAÑA
(eto yung case na hinahanap ko buong summer!!!!)
F: young 12 year old girl, while walking OUTSIDE the school premises, was killed when an old caimito tree, located inside the school grounds, but on the perimeter wall, fell on her. Action for
damages filed against school principal!
-School principal presented the following defense:
A. SHE DID NOT KNOW that the tree was dead!
(1) the tree does not look dead so she would not know that it is dead. If she did, she might have ordered it removed
(2) someone offered to buy the tree (*ehem* to make it as firewood). Why would anyone buy a tree if it's dead (e kasi nga gag awing panggatong!)
(3) when a meeting was held (to discuss WON they would sell the tree), no one told her that the tree is dead!
B. Granting that the tree is dead and she knew of it, SHE ALREADY ASSIGNED IT!
--here Res Ipsa Loquitur was used to make the principal liable
VAA: how do we use the doctrine if the principal uses the defense that SHE DIDN'T KNOW? Why would anyone be liable if she did not even know the fact?
The mere fact that she did not know of the dead tree means she is negligent. As the principal, it is her duty to oversee what happens inside the school and her admission that she did not know
only means she failed to observe of the due diligence required of her as the principal of the school
RULE 132
A. EXAMINATION OF WITNESSES
Evidence Page 71
shorthand
or stenotype
or by other means of recording found suitable by the court.
A transcript of the record of the proceedings
made by the official stenographer, stenotypist or recorder
and certified as correct by him
shall be deemed prima facie a correct statement of such proceedings.
GenRule: Mere presentation of affidavits of prosecution witnesses subject to cross -examination is not allowed by the Rules
BUT under BP 129, summary procedures may be authorized by SC in special cases
SC may also adopt simplified procedures which may provide that affidavits and counter -affidavits be admitted in lieu of oral testimony (Sec. 36)
RIGHTS OF A WITNESS
Section 3 - RIGHTS AND OBLIGATIONS OF A WITNESS
A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness:
1. To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor;
2. Not to be detained longer than the interests of justice require;
3. Not to be examined except only as to matters pertinent to the issue;
4. Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or
5. Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from whi ch the fact in issue would be presumed. But a witness must answer to
the fact of his previous final conviction for an offense. (3a, 19a)
Witness cannot refuse to answer questions material to the inquiry even if it may tend to establish a claim against him
But may refuse if:
1. Under the right against self-degradation unless:
a. Such question is directed to the very fact in issue
b. Refers to his previous final conviction or offense
2. Under the right against self-incrimination
▪ C riminal cases – Rule 115 Section 1(e): accused may refuse to take the stand altogether
Accused: may be with reference to the offense involved in the same case wherein he is charged or to an offense for which he m ay be charged and tried in another case
Witness: offense involved is one for which he may be tried in another case
Right should be seasonably invoked and may be waived
▪ Other cases/proceedings – a party may be compelled to take the stand but he may object to incriminating questions
Beltran v Samson (53 Phil 570): Where in a prosecution for falsification, the accused took the stand and testified denying his authorship of the alleged fals ified signature, on cross-examination he can be
compelled to give a sample of his handwriting and it was not a denial of his right against self -incrimination
Bermudez vs. Castillo (64 Phil 483): Where, in a disbarment case, the complainant on cross-examination denied authorship of certain handwritten letters, she could not be compelled to give samples of her
handwriting as it would amount to a denial of her right against self-incrimination in a possible charge for perjury
Why allowed to be asked questions even if it may tend to establish a claim against him, but not when the question would subje ct the witness to a penalty for an offense?
VAA: It would not help the cause of truth if the evidence used to convict the accused came from the accused himself. (remembe r "Goya's Ghost", where the accused was tortured so that she
would admit the offense charged against her.
Evidence Page 72
may be allowed by the court in its discretion.
Section 8 - RE-CROSS-EXAMINATION
Upon the conclusion of the re-direct examination,
the adverse party may re-cross-examine the witness
on matters stated in his re-direct examination, and
also on such other matters as may be allowed by the court in its discretion.
A witness may be cross examined by the adverse party not only as to matters stated in the direct examination but also as to m atters connected therewith, and this should be allowed to do with sufficient fullness
and freedom to test the witness’ accuracy, truthfulness and freedom from interest or bias, and also to elicit from him any im portant fact bearing upon the issue
» American rule: cross-exam must be confined to matters inquired about in direct
» English rule: witness may be cross-examined not only upon matters relevant to the issue
» This jurisdiction – more on English rule
Unwilling/hostile/adverse party witness – cross examination shall only be on the subject of his examination -in-chief
» Same as accused testifying on his own behalf
Question which assumes facts not on the record:
» If on cross examination – objectionable for bring misleading
» If on direct examination – objectionable for lack of basis
Bachrach Motor Co., Inc. vs. CIR (1978): When cross examination is not and cannot be done or completed due to causes attributable to the party who offered the witness , the uncompleted testimony is
thereby rendered incomplete and should be stricken from the record.
People vs. Seneris (1980): Where in a criminal case the prosecution witness was extensively cross examined on the essential elements of the crime and wh at remained for further cross-examination was the
matter of the prize or reward which was treated therein as merely an aggravating circumstance, his failure to appear for furt her cross-examination thereon will not warrant the striking out of his direct
examination, especially since further cross-examination could not be conducted due to the subsequent death of the said witness, a circumstance not attributable to the pr osecution
*note: basta if the witness was already extensively cross -examined on material points and failed to appear, don't strike his testimony!
*EXAMINATION: only refers to TESTIMONIAL EVIDENCE, not to other forms of evidence.
*After re-cross, no more re-re-cross…no more re-redirect
If new witness discovered after end of period for examination of witnesses: RE -OPEN TRIAL
If witness already presented wants to add something else - RECALL witness
LEADING QUESTION – one which suggests to the witness the answer desired
» May cause the witness, by reacting to an inference in his mind, to testify in accordance with the suggestion by the question
▪ Answer may be “rather an echo of the question than a genuine recollection
» Testimony on direct examination elicited through leading questions has little probative value
People vs. Dela Cruz (2002): Leading questions may be permitted in the examination of a witness who is immature; aged and infirm; an bad physical conditio n; uneducated; ignorant of, or unaccustomed to,
court proceedings; inexperienced; unsophisticated; feeble-minded; confused and agitated; terrified, timid or embarrassed while on stand; lacking in comprehension of questions or slow to understand; deaf and
dumb; or unable to speak or understand the English language or only imperfectly familiar therewith
MISLEADING QUESTION – one which assumes facts not in evidence or without sufficient basis or which assumes testimony or proof which has not been gi ven
*Leading questions are only prohibited when it is asked of the witness of the party conducting the direct (i.e. kakampi nung lawyer yung witness)
Illustrations: in a collection suit
Example of leading question: "Is this not the signature of the debtor-defendant?"
Example of misleading question (where a fact not yet established is assumed): "When did you say the defendant was supposed to pay?" - obligation to pay not yet established
Section 11 - IMPEACHMENT OF ADVERSE PARTY'S WITNESS
A witness may be impeached by the party against whom he was called,
by contradictory evidence, (CE)
by evidence that his general reputation for truth, honestly, or integrity is bad,or (THI)
by evidence that he has made at other times statements inconsistent with his present testimony, (PSI)
but not by evidence of particular wrongful acts, (not PWA)
EXCEPT that it may be shown by the examination of the witness, or
the record of the judgment,
that he has been convicted of an offense.
Evidence Page 73
unjustified reluctance to testify, or
his having misled the party into calling him to the witness stand.
Fernandez vs. Tantoco (49 Phil 380): A party who voluntarily offers the testimony of a witness in the case is, as a rule, bound by the testimony of the said witne ss.
EXC EPTIONS:
1. In case of a hostile witness
2. Where the witness is the adverse party or the representative of a judicial person which is the adverse party
3. When the witness is not voluntarily offered but is required by law to be presented by the proponent, as in the case of a subs cribing witness to a will
Party can impeach his own witness only by:
1. evidence contradictory to his testimony
2. Evidence of prior inconsistent statements
» In case of hostile/adverse party/involuntary witnesses – can also be impeached by other modes of impeachment
IMPEACHMENT
-you attack the witness of the adverse party so that the court would not give any weight or probative value to the testimony o f a witness
-you only impeach the witness ALREADY PRESENTED!
Refer to last paragraph: Why can't a party presenting a hostile witness/adverse party impeach the party by giving evidence of his bad character?
Prevent prejudice to the accused
IF THE WITNESS ALREADY HOSTILE BEFORE YOU CALL HIM TO THE WITNESS STAND, CAN YOU DECLARE HIM A HOSTILE WITNESS?
YES. Para sure, under unjustified reluctance to testify!
WHY LAY THE PREDICATE IN PIS, not in CE? So that the witness must be given an opportunity to explain
CARAPEN v. PPL (?):
If a person made A, then now B, it's possible that A was made through a mistake. If the reason for the inconsistency is reaso nable (thus W explains), the judge could still give weight to his
statement
Evidence Page 74
Evidence OCT8
Thursday, October 08, 2009
6:01 PM
CORRECTIONS: ZULUETA CASE SHOULD HAVE BEEN SALAMEYA??? (BASTA DI ZULUETA)
CARAPEN: dapat daw probative value of testimony of relatives; ma'am was referring to Buduhan
Presumptions: review
CONCLUSIVE: child born during wedlock is legitimate: even mother could not declare that the child is not legitimate, UNLESS i mpossibility of access between husband and wife
(but you don't have to resort to this presumption with DNA Evidence)
CLARIFICATION
Sec7, last sentence
Re-direct: supplement or explain
BUT you go beyond this with the court's discretion.
WHAT DOES THIS MEAN? It's the call of the court?
Ma'am tells something about impartiality of the court. Court asks questions to determine facts, not to help another party.
Example
Collection suit: A vs. B
A presented IOU, testified…
Prove:
-execution
-receipt of B
-nonpayment and other damages and costs
WHEN YOU RE-DIRECT: limit to those taken up during the cross. But if you do not, it is subject to the discretion of the court
*sample cross
"portable safe"
"The technique of cross is to trap. If you don't know what the witness would say, don't cross" - VAA
*leading questions does not depend on WON the question is answerable by yes or no. It depends on WON the fact already was est ablished.
*in Re-direct, can ask other matters you forgot to ask to ask the witness during her DIRECT EXAMINATION! But is should be explained to the court because you're wasting the court's
time! Possible reasons: inadvertent negligence, full unavailability of the witness
When you rehabilitate a witness impeached during cross exam, how do you rehabilitate the credibility of the witness? (on GR, THI)
Present other witnesses to contradict the evidence presented to impeach the adverse party's witness
Section 11: only refers to ADVERSE PARTY's WITNESS, not to the adverse party
1. CE
2. GR
BC: THI
3. PIS
X: PWA
-can you use the same method to impeach the ADVERSE PARTY HIMSELF?
YES, but limited by Section 51
-plus take note if it involves a natural or juridical person
*THE ONLY MODE TO IMPEACH THE ONE WHO impeached your witness is through CONTRADICTORY EVIDENCE (CE)!
-can one show the plaques, awards, etc….to establish good character?
Evidence Page 75
VAA: YES
?What if the deponent is not a party, how can you say that it is an admission that can be used against a party?
If it is an exception to RIAA > co-conspirator, shared interest…
DI ba sabi sa cross, kahit ano pede itanong sa ADVERSE PARTY on the witness stand?
It would be unfair to establish a claim from the adverse party. Limited ang "cross" kuno kasi naging adverse party na yung ka la mo witness mo. And during cross, you can ask leading
questions so unfair na. mas madali to build your case!!!
-if the lawyer of the adverse party still ask questions aside from those covered during the direct:
GR: Not objectionable under the general rule: SECTION 6
X: if became a hostile witness, under last paragraph under SECTION 12
If you are cross examining a person regarding a contract whose original you didn't bring to court, can you do that or is it o bjectionable?
( You can ask anything on cross except those violating the bill of rights of the witness and misleading)
-is the photocopy misleading????
YES: It assumes the fact that the original document exists when it has not yet proven to exist
…next day, you bring the original…BER applies? NO. You are not presenting it!
-MISLEADING pa rin, should first offer the evidence for it to be part of the records…?
OFFER:
*on Witness: offer even before start of testimony…
*after everything, saka palang offer evidence
*When you confront somebody on cross, your only goal is to impeach the witness of the other party! You're not presenting your witness yet, kinocross mo nga eh!!!
(try reading P v. MOLO where there are examples of cross…)
Evidence Page 76
Borje vs. Sandiganbayan
Monday, September 21, 2009
4:36 PM
GUERRERO, J.
That the constitutional presumption of innocence in favor of the accused has not been satisfactorily overcome by the prosecution
evidence in the case at bar where the conviction of petitioner for falsification of public documents was based principally on the mere
assumption that as possessor of the falsified documents, he is presumed to be the author of the falsification , is stoutly raised in this
appeal by certiorari. Since there is no direct proof showing that accused-appellant, being then the Provincial Plant Industry Officer with many
subordinate employees and personnel under him engaged in agricultural field work and assigned in the rural areas like the com plainant
Rodrigo Ducusin, had personally and actually falsified the public documents in question (Timebook and Payroll, Exhibit "A"; Daily Time
Record, Exhibit "B"; and Certification, Exhibit "C") which under normal office procedures pass through numerous hands at several
government offices for typing, attestations, funding, accounting, and payment of the check for P225.00, the legal issue thus raised merits Our
careful consideration and resolution, in the face of accused-appellant's vigorous denial.
The undersigned Special Prosecutor accuses NICASIO BORJE of the crime of FALSIFICATION OF PUBLIC DOCUMENT committed as follow s:
That on or about the period from January, February and March, 1977, and sometime thereafter, in the Municipality of San Ferna ndo, Province of La Union,
Philippines, and within the jurisdiction of this Honorable Court, the above -named accused, being then the Provincial Plant Industry Officer of Bureau of Plant
Industry, Provincial Office at San Fernando, La Union and in relation by his performance of the duties of his office, taking advantage of his position as such,
did then and there willfully, unlawfully and feloniously falsify the Timebook and Payroll of his office for the periods Janua ry to March, 1977, Daily Time
Record for the same period of Rodrigo Ducusin and Certification for P225.00 by causing it to appear in the said documents tha t Rodrigo Ducusin have
participated in the same and affixed his signatures thereon when in truth and in fact he did not so sign the said documents n or otherwise participated in their
execution to the damage and prejudice of the and Rodrigo Ducusin and the Republic.
CONTRARY to Article 171 of the Revised Penal Code, in relation to P.D. 1606.
Manila, August 31, 1979.
(SGD.) FRANCISCO M. TEJANO Special Prosecutor
APPROVED: têñ.£îhqwâ£
(SGD.) VICENTE ERICTA
TANODBAYAN
The accused-appellant pleaded not guilty to the crime charged and the trial commenced on August 7, 1980 after the. case was reinvestigate d
by the Tanodbayan on petition of said accused-appellant, herein petitioner.
On October 23, 1980, the respondent court rendered a decision promulgated on October 29, 1980, finding the petitioner guilty as per the
dispositive portion thereof, to wit: têñ.£îhqwâ£
WHEREFORE, accused is hereby found guilty beyond reasonable doubt as principal for the crane of Falsification of Public Docum ents as defined and
penalized under Article 171, paragraph 2, of the Revised Penal Code, and there being no modifying circumstance to consider, t he Court hereby sentences
him to an indeterminate imprisonment ranging from two (2) years, four (4) months and one (1) day of prision correccional as m inimum, to eight (8) years and
one (1) day of prision mayor as maximum, to pay a fine of P2,500.00 and to pay the costs.
SO ORDERED.1äwphï1.ñët
Manila, Philippines, October 23, 1980.
The decision appealed from recites the evidence for the government as follows:
The gist of the evidence of the prosecution, which consist of the testimonies of Ducusin, Edgardo Olivares, 43 years old, mar ried, agronomist and Provincial
Plant Officer, Manuel Varquez, 45 years old, married and Regional Director and Remedios Lorenzo, 47 years old, married and Ca shier, all of the Bureau of
Plant Industry in San Fernando, La Union, shows that Ducusin was employed as Plant Pest Officer with the Bureau of Plant Indu stry stationed in San
Fernando, La Union from February 2, 1975 up to his resignation on April 30, 1978. From February 2, 1975 up to December 1976, he was detailed as
production technician in the Program of the Bureau of Plant Industry and the Bureau of Agricultural Extension receiving incen tive pay from the National
Food and Agricultural Council (NFAC) during said period. In 1977, however, Ducusin was no longer entitled to the NFAC incenti ve pay as he was detailed to
the Surveillance Team of the Bureau of Plant Industry on January 1977 up to April 30, 1978.
Before one can receive his NFAC incentive pay, he must prepare his Daily Time Record (CS Form 48) for the month and a certifi cation that he is detailed
with the Program. In February 1978, Ducusin was informed by one Roberto Castro that he is supposed to receive NFAC incentive pay because his name is
included in the special order enumerating those included in the program. This prompted Ducusin to go to the Accounting Divisi on of the Bureau of Plant
Industry, Region I in San Fernando, La Union to verify the information relayed to him by Castro and there he discovered that in the payroll for January,
February and March 1977 (Exhibit A) his name and signature appeared. Attached to said payroll were a certification that he wa s detailed to the Program
(Exhibit C) and the corresponding Daily Time Records for said months (Exhibit D) which appeared to have been all signed by hi m. Actually, however, he
did not sign the said payroll, certification and time records nor did he authorize anybody to sign for him . Ducusin referred the aforesaid falsification
to the accused in the last week of February 1978 and accused, confessing to him that he got the money, repeatedly offered him Two Hundred Twenty
Five (P225.00) Pesos to cover his incentive pay but he remained silent and refused to receive the amount. He finally brought the matter to Regional Director
Manuel Varquez who assigned Olivares to investigate the case. But inasmuch as no further action was taken, he brought the cas e to the attention of the
President and the Director of the Bureau of Plant Industry. Ducusin likewise submitted his written resignation to the Regiona l Director (Exhibit E) on April 28,
1978 because he felt 'utterly' demoralized because of undesirable actuations which he recently discovered ... On May 18, 1978 , he received a reply from
Regional Director Varquez dated May 15, 1978 (Exhibit F) stating that his aforesaid letter of resignation had been endorsed t o the accused and attached
therewith was the reply of the latter (Exhibit F-1).
Similarly, the decision condensed the evidence of the defense in the following manner:
On the other hand, accused, in brief, claimed that Ducusin was one of those involved in the Program for the months of January , February and March 1977
Evidence Page 77
as shown in Special Order No. 172 of the Bureau of Plant Industry Director Domingo E. Panganiban (Exhibits 6 and 6 -A) and actually paid of his incentive
pay and that it is not true that he received the payroll (Exhibit A) and the corresponding checks from Remedios Lorenzo for d elivery to the persons whose
names appear in said payroll. Accused denied that he instigated the filing of two cases of falsification against Ducusin and to bolster said denial accused
presented Jacinto Costales, 54 years old, married and Second Assistant Provincial Fiscal of La Union.
In fairness to the accused, We are constrained to include hereunder the more detailed statement of facts submitted by him in his Brief, viz.
The Province of La Union undertook as one of its projects the program known as the Gulayan sa Kalusugan and Masagana '99 Prog ram, the
implementation of which became a joint program of its Bureau of Plant Industry and its Bureau of Agricultural Extension. Gove rnment employees detailed as
production technicians in the Gulayan Program received incentive allowances from the NFAC during the covered period. Their de tail as production
technicians of the said program was effected only by a special order emanating from the Bureau of Plant Industry Door; and be fore the employee received
his incentive pay, he was required to prepare his Daffy Time Record for the particular month and submit a Certification attes ting to the fact that he was
detailed to the program.
In the case-at-bar, complainant Rodrigo Ducusin, an employee of the Bureau of Plant Industry, was detailed to the program from February 2,19 75 up to
December 1977, his assignment of work being contained in the NFAC Order captioned 'Detail and Designation of Personnel to NFA C, in connection with the
Gulayan Program where his name appeared opposite item 60 thereof. (Exhibit 6)
Making it appear that he was surprised to learn that he was supposed to receive his NFAC incentive pay for the months of Janu ary, February and March
1977 because he was not entitled thereto as he was not anymore connected with the Gulayan Program; and falsely making it appe ar that some person
other than himself received his incentive pay by allegedly forging his signature on the Daily Time Records, the Payroll and t he Certification required and
submitted — complainant Rodrigo Ducusin caused to be filled a complaint against the petitioner, Nicasio Borje, supervising agronomist of the Bureau of
Plant Industry, Region I, before the Tanodbayan ...
Accused-appellant contends that complainant Ducusin was paid his incentive pay for the months of January to March, 1977 in the total sum of
P225.00 as Ducusin was included in the payroll since he has worked with the Program as shown by Special Order No. 72 issued b y the BPI
Director and concurrent Executive Director of NFAC, Domingo Panganiban, and that said Special Order, Exhibit 6 entitled "Deta il and
Designation of BPI Personnel to NFAC in Connection with the Masagana '99 Program effective January to December 1977" and date d May
17, 1977, included the name Rodrigo Ducusin, herein complainant, opposite item No. 60 in page 2 of the Exhibit and marked Exh ibit 6-A
(TSN, Aug. 27, 1980, pp. 43-46). He confirms substantially the official procedure in the preparation of the payroll and subsequent payment of
the incentive pay to the production technicians as described by witness Remedios Lorenzo, disbursing officer and cashier for the BPI office in
San Fernando, La Union. However, he vigorously denies having received the payroll and the corresponding checks from witness L orenzo as
his participation in the preparation of the said payroll ended with his signing thereof after which the payroll goes to the d isbursing officer for
the preparation and issuance of the checks to the payees.
The defense also presented in evidence certified true copies of two (2) criminal informations for falsification dated August 13, 1979 filed by
Assistant Provincial Fiscal Jacinto Costales against complainant Ducusin before the Court of First Instance of La Union, Bran ch III, Agoo,
docketed as Criminal Cases Nos. A-893 (Exhibit 1) and A-894 (Exhibit 2). The accused contends that the instant case against him was
initiated by Ducusin to get even with the petitioner as the complainant admitted in cross -examination that he believes that Borje instigated said
two criminal cases against him (TSN, Aug. 25,1980, pp. 21-27).
Further contending that complainant Ducusin was doing dual work from July, 1976 up to December, 1977, the defense presented E xhibits 5 to
5-C which is Memorandum Order No. 56, Series of 1976, dated June 11, 1976, issued by BPI Director Panganiban for the implementa tion of
the Plant Pest and Disease Surveillance and Early Warning Monitoring Project under the Philippine-German Crop Protection Program which
shows that complainant Ducusin was included in the list of personnel assigned to the Surveillance and Early Warning System SE WS team as
Plant Pest Control Officer. The accused-appellant declared that although Ducusin was named to this SEWS team, he continued working with
the Gulayan Program as production technician during said work.
The defense disclaims the authenticity of the prosecution's Exhibit H which is purportedly the original Borje reply letter to BPI Regional
Director Varquez' endorsement of Ducusin's resignation letter. Instead, Exhibit 8 was presented in evidence as the genuine ca rbon copy of
Borje's signed letter reply dated May 5,1978 in response to Varquez' memorandum of May 3, 1978 wherein petitioner recommended
disapproval of Ducusin's resignation in order that Ducusin could face the charges against him in connection with his work wit h the Gulayan
Program. (TSN, Aug. 27,1980, pp. 56- 58,90).
The Sandiganbayan in its decision formulated two issues determinative of the innocence or guilt of the accused, to wit: (1) W hether or not the
Time Book and Payroll (Exhibit A), the certification (Exhibit C) and the Daily Time Records (Exhibit D) in support of said pa yroll were falsified,
and (2) If they were, the liability of the accused, if any. As indicated earlier, the accused - appellant was found guilty by respondent court.
Hence, the instant appeal by way of certiorari.
Petitioner submits the following assignment of errors: têñ.£îhqwâ£
I. The respondent court erred in holding that the petitioner is guilty of the offense of falsification of public documents, t he same not having began established
by proof beyond reasonable doubt, considering that: têñ.£îhqwâ£
A. the originals of the alleged falsified documents were not presented in court and, hence, the corpus delicti has not been e stablished as held in the case of
U S. vs. Gregorio
B. There is no iota of evidence that the petitioner falsified the complainant's signature on the alleged falsified documents;
C. The testimony of complainant's witness, Remedios Lorenzo, was sufficiently impeached by her own conflicting testimony prev iously given before the
Tanodbayan;
D. The respondent court erred in finding as a fact that complainant was not entitled to the NFAC incentive pay, in total disr egard to the documentary
evidence proving that he was doing dual work, both with the Gulayan Program as wen as the SEWS and therefore, still entitled to the NFAC allowance.
II. The respondent court erred in not holding that complainant falsely ascribed the offense to the petitioner, there being pr oof that complainant was
possessed of ill motives against petitioner.
Before resolving the above assigned errors, We find it imperative and compelling to describe and detail the nature and conten ts of the vital
documentary exhibits of the prosecution alleged to have been falsified by the accused-appellant. These are official forms and they are (1)
Exhibit A, Timebook and Payroll of accused-appellant's office for the period January to March 1977; (2) Exhibit D, Daily Time Record for the
same period of Rodrigo Ducusin; and (3) Exhibit C, Certification that Ducusin was detailed to the Program.
As appearing on the face of these exhibits, the act or participation of the petitioner thereon is indicated below: têñ.£îhqwâ £
In Exhibit A (Timebook and Payroll), the printed certification below which the signature of petitioner is affixed, reads thus :
2. I certify that this roll is correct; every person whose name appears hereon rendered service for the nine and at the rates stated under my general
supervision, and I approve payment of this roll
CERTIFIED CORRECT:
(SGD.) NICACIO B. BORJE NFAC, Prov'l Chairman
In Exhibit D (Daily Time Record, Service Form No. 18), the signature of the accused -appellant appears below the following words:
Certified true copy of the original:
Verified as to the prescribed office hours. têñ.£îhqwâ£
(SGD.) NICACIO BORJE
In-Charge
Exhibit C (Certification) indicates no participation whatsoever of appellant Borje. It simply states, thus:
CE R T IF I C A TI O N
I hereby certify that the amount of two hundred twenty five pesos (P225.00) herein claimed is only in reimbursement of representation and transportation
expenses (excepting trips from home to office and vice-versa) actually incurred by me in the performance of my official duties as Production technician while
on detailed with the National Food and Agriculture Council, during the period from Jan. 1977 to March 1977 that I did not use any government vehicle or
transportation furnished paid by the government nor did I collect similar transportation and representation expenses from my mother organization Bureau of
Plant Industry during the period.
Certified true copy of the original: têñ.£îhqwâ£
(SGD.) Rodrigo Ducusin
(Signature)
RODRIGO DUCUSIN
Evidence Page 78
RODRIGO DUCUSIN
(Print Name)
On the face of the above documentary evidence, Exh. "A" and "D", the liability of petitioner as head of the office who had si gned the
certification and verification printed thereon must be limited to the contents of said verification and certification for whi ch he does not
necessarily incur criminal responsibility if the entries, data or statements certified and verified turn out not to be true i n which case the
employee or personnel making the entries, data or statements as to his services and attendance is solely and separately respo nsible therefor.
In the instant case, since there is the Special Order No. 172 of Executive Director Domingo Panganiban, concurrently BPI Dire ctor, marked
Exh. 6, "Detail and Designation of BPI personnel to NFAC in connection with the Masagana -99 Program effective January to December,
1977" listing complainant for the assignment and detail, the inclusion of Ducusin's name in the payroll was not irregular. Be sides, the payroll is
prepared by the Budget Office based on the Special Order and not by the petitioner's office.
According to complainant Ducusin, he was no longer connected with the Masagana Program during the period of January to March 1977
because his assignment thereto had been terminated. But he was asked this question by the Sandiganbayan, thus: têñ.£îhqwâ£
JUSTICE ESCAREAL: têñ.£îhqwâ£
Q — What evidence do you have that you were removed in 1977 and you were no longer performing your duties as technician?
A — It is only verbal. (TSN, p. 47, Aug. 25, 1980)
The alleged verbal order is doubtful for under normal and usual official procedure, a written special order issued by a gover nment office is
cancelled, amended or modified only by another written special order, not only for purposes of record on file but also to pre vent conflict and
confusion in government operations. Moreover, under the best evidence rule, Section 2, Rule 130 of the Rules of Court, the su pposed verbal
order cannot prevail over the written Special Order No. 172 stated above.
Respondent Sandiganbayan, however, justified the conviction of the accused on the basis of the testimony of witness Remedios Lorenzo,
Regional Disbursing Officer and Cashier, to the effect that she delivered the payroll and checks to petitioner accused - appellant, relying
further on the presumption that as possessor of the document, accused-appellant is presumed to have falsified it.
But reviewing the testimony of witness Lorenzo, the records disclose that her original testimony at the reinvestigation of th e case before the
Tanodbayan was favorable to the accused, saying that she delivered the payroll and the checks to the complainant Ducusin, eve n Identifying
the genuine signature of Ducusin on the payroll. We quote hereunder excerpts of her testimony: têñ.£îhqwâ£
Prosecutor Ferrer:
Q: What is your SOP in the preparation of timebook and payroll, do you have to sign as Regional Disbursing Officer?
A: I don't sir. It is only the Budget Officer who prepares the payroll. After the budget officer has prepared it will go to t he accounting for funding and after the accounting it will go to my office.
Q: All in all how many signatures are to be signed in the payroll for its validity under your standard operation procedure?
A: There are four, sir. The provincial officer, the accountant for funding, then the Director and after the signed it, it wil l go to my office.
xxx xxx xxx
xxx xxx xxxtêñ.£îhqwâ£
Q: Under your standard operating procedure who win sign first the payroll. The payee or the provincial plant officer?
A: Provincial plant officer.
Q: After the Provincial Plant Officer, the payroll will go to the regional accountant, is that correct?
A: Yes, sir.
Q: And after the Regional accountant it will go to the Director?
A: Yes, sir.
Q: And after the Regional Director, it will go to the Disbursing Officer?
A Yes, sir.
Q: And that will be the time that the payee will receive the amount, is that correct?
A: We prepare the check for them.
Q: When do the payee affix their signatures in the payroll if you know?
A: When I will issue them the check that is the time that they affix their signatures in the payroll.
Q: So after that the check will go back to the Provincial Plant Officer?
A: It will not go back to the Provincial Plant Officer.
Q: After the Provincial Plant Officer has fixed his signature he has no further participation in this payroll?
A: No more, sir.
Q: Now, Mrs. Lorenzo, you also brought with you . . . . . . . . By the way, who is supposed to sign first this timebook and p ayroll under your Standard Operation Procedure. Is it the Provincial Plant Officer?
A: Yes, sir. Then after that it will go to the office of the Regional Accountant, and after the regional accountant have sign ed, it will go to the regional director for approval, and from there it win go to my office.
Q: You are the same time cashier?
A: Yes, sir. My item is Cashier I.
Q: So, do you have any participation in this Exhibit "X" by way of issuing the check to corresponding payee in this timebook and payroll?
A: In the preparation of the check, sir.
Q: Who delivers the check to the payee?
A: After we have prepared the check, they will just go to my office to get the check and that is the nine they will affix the ir signature.
Q: And they sign their names after delivering to them their respective checks ?
A: Yes, sir.
Q: Are you familiar with any of these signatures appearing in this timebook and payroll, particularly that of Mr. Ducusin?
PROSECUTOR FERRER:
Q: By the way, before you answer that question do you know personally Mr. Rodrigo Ducusin?
A: Yes, sir.
Q: Why do you know him?
A: He is also our employee in the office. He is one of the technicians under M -99.
Q: Since when have you known Mr. Rodrigo Ducusin ?
A: I could not exactly remember, sir. Because I have come across their names when they got their checks from me.
Q: But before January 1977, you have already known him?
A: Yes, sir.
Q: How long before January 1977 have you been a cashier or Regional Disbursing Officer?
A: I was already a cashier since 1976, July 1975.
Q: As a cashier since that time, are you f with the signature of Mr. Ducusin?
A: I could not remember their signatures because there are plenty of personnel in the Bureau of Plant Industry.
Q: Were you the one who issued the check to the complainant?
A: Yes, sir.
Q: In issuing the checks did you issue them individually to the personnels in the BPI?
A: Yes, sir. As soon as we pay the check to anyone, they have to affix their signature first.
Q: Where do you deliver the checks to the payees?
A: In my office.
Q: At San Fernando, La Union?
A: Yes, sir.
(TSN December 21, 1979, pp. 5-14, Tanodbayan, Emphasis supplied.)
The contradictory and conflicting testimonies of this witness only proves her unreliability and unworthiness in respect to th e sanctity of the
witness' oath. Although she tried to explain her complete "turn-about" by saying during the Sandiganbayan hearing: "They told me that if I win
testify against them, I will be accessory and I don't want to be involved in the case because I am not the one really who del ivered the checks
to the production technician, sir." (TSN, p. 18, Aug. 27, 1980), the conclusion of the respondent court that she was intimida ted to testify in
favor of the accused during the reinvestigation is not warranted, considering that the witness herself is a high regional off icial, being the
Regional Disbursing Officer and Cashier and not subordinate to but perhaps co-equal in rank to the petitioner and, therefore, may not be so
easily intimidated by the accused who was in no position or power to include her as accessory in the case. Lorenzo's testimon y given at the
Sandiganbayan hearing is not worthy of belief and must be rejected.
We also reject respondent court's reliance on the presumption that as possessor of the document, the accused is presumed to b e the author
of the falsification. In the first place, the factual basis which is the Lorenzo testimony which We have reviewed as doubtful and variable,
cannot be credited. Petitioner has denied vigorously the testimony of Lorenzo that he received the payroll and the checks fro m her. He said
that his participation in the preparation of the payroll ended with his signing thereof after which the payroll goes to the D isbursing Officer for
the preparation and issuance of the checks to the payees at which time the payee affix their signatures on the payroll, which is substantially
corroborated by the original testimony of the witness Lorenzo during the reinvestigation of the case before the Tanodbayan.
In the second place, Exhibit "A" appears to be also signed by ten (10) other production technicians fisted in the payroll, be sides complainant
Ducusin. It is initialled by three (3) personnel in the Accounting Services Unit and further signed by the Regional Accountan t and for the
Regional Director. All of these persons were at one time or another in possession of the document, all of them had the same o pportunity
Evidence Page 79
impliedly imputed to the accused, The payroll must have been carried and passed by messengers and other employees from one of fice to
another, from one desk to another for purposes of typing, funding, initialling, verification, certification, accounting, reco rding, drawing of the
check and finally, issuing of the check. In Our view, the respondent court's reliance on the presumption which is only presum ptive, is
misplaced and unwarranted, there being no sufficient reason to apply the same.
The defense contends that the prosecution, having presented xerox copies only of the falsified documents, Exhs. "D" and "C", fatted to prove
the corpus delicti of the crime charged, citing the case of U.S. vs. Gregorio, 17 Phil. 522. In this case of Gregorio, the Supreme Court held:
têñ.£îhqwâ£
In a criminal case for the falsification of a document, it is indispensable that the judges and the courts have before them t he document alleged to have been
simulated, counterfeited or falsified, in order that they may find, pursuant to the evidence produced at the trial, whether o r not the crime of falsification was
actually committed; in the absence of the original document, it is improper to conclude, with only a copy of the said origina l in view, that there has been a
falsification of a document which was neither found nor exhibited, because, in such a case, even the existence of such origin al document may be doubted.
Reacting to the defense contention, the Sandiganbayan held that "(a)ccused's claim that in the absence of the original docume nts it is
improper to conclude that there is falsification of document in accordance with the case of U.S. vs. Gregorio, 17 Phil. 522, is sleazy for the
case referred to is not in point," and then attempted to differentiate said case with the case at bar by holding that "(h)ad the issue confronting
the Court been one of alteration or superimposition of signatures or word or figure, then the issue of bringing out the origi nal may have
relevance. " The Sandiganbayan further added: "At any rate, it is worthwhile to note that with the development of modem copyi ng devices
which virtually eliminate the possibility of error in reproduction of the original, the relevancy of the doctrine in U.S. vs. Gregorio is now open to
question.
We do not agree with the respondent court. Firstly the Gregorio ruling makes no distinction for the doctrine itself applies in criminal
proceedings for the falsification of a document, whether simulated, counterfeited, or falsified. Secondly, the Gregorio doctrine is still tenable
notwithstanding modern copying devices for a falsified document, passed off as an original can also be duplicated by xeroxing and thereafter,
certified as true copy of the original as in Exh. "D". And thirdly, considering that in the case at bar, the xeroxing was don e or caused to be
done by complainant Ducusin (TSN, pp. 189-191, Aug. 25, 1980) after taking out the original documents without the official authority and
permission of the Disbursing Officer and Cashier, Remedios Lorenzo, who was then out on rural service and thereafter the orig inals were lost,
misplaced and are now missing, the failure to present the originals is suspicious for complainant had ulterior and ill motive s in accusing the
petitioner as will be shown hereunder.
The ill motives of the complainant in falsely accusing the accused-appellant is easily discernible herein. There is presented Exhibit " 1 ",
certified true copy of the information filed against complainant Rodrigo Ducusin in Criminal Case No. A-893, CFI, Agoo, La Union, for
falsification committed on or about July 24, 1975 in relation to the grant of farmer's loan under the Gulayan Sa Kalusugan Fo od Production
Program when complainant was assigned to the Agoo Rural Bank, and a similar information for falsification against Ducusin in Criminal Case
No. A-894, Exh. "2". Referring to these two (2) cases, Ducusin declared that petitioner Borje motivated the filing of the cases; th at in the filing
of the case in the Fiscal's Office in San Fernando, La Union, there is an affidavit of Mr. Nicasio Borje and that because of that affidavit, it was
Mr. Borje who motivated the filing of the charge against him. (TSN, pp. 26-27, Aug. 25, 1980). There is also the refusal of the petitioner to
recommend acceptance of the resignation of Ducusin until he shall have cleared matters with the Rural Bank of Agoo, La Union considering
that the total amount of P52,047.73 is involved. (Exhibit "8").
The rule is established that the absence of evidence as to an improper motive actuating the offended party and the principal prosecution
witness tends to sustain the conclusion that no such improper motive existed and that their testimonies are worthy of full fa ith and credit.
(People vs. Amiscua 37 SCRA 813; People vs. Mercado, 38 SCRA 168; People vs. Valdemoro , 102 SCRA 170). Conversely, where there is
showing as to improper motives, as in the case at bar, the testimony of complainant Ducusin is unworthy of faith and credit a nd, therefore,
deserves scant consideration. And since the prosecution theory is built or based on such testimony, the cause of the prosecut ion collapses or
falls with it.
According to respondent court, its conclusion that the accused falsified or caused to be falsified the document in question i s further supported
by the following facts: (1) that the accused confessed to him that he was the one who got the money and offered immediately t o Ducusin the
sum of P225.00 to cover the incentive pay so that Ducusin will just keep silent but Ducusin did not accept the money; and (2) that in his reply
to the letter of Ducusin denouncing the forging of his signature that he received his incentive pay from January to March, 19 77, the accused
tried to justify the falsification of the time record as shown in the portion of said reply, Exhibit "H".
In the light of the ill-motives of the complainant as shown above, this particular assertion of Ducusin which is uncorroborated is sleazy, that is,
flimsy, shabby, cheap or unsubstantial. Moreover, petitioner's reply marked Exh. "H" is not an admission of the accused that he falsified or
caused to be falsified the documents in question. In fact, examining Exh. "H", it says that "his Ducusin daily time record (w as) prepared by
other employees in order to justify such payment. The authenticity of Exh. "H" is denied by the petitioner who presented Exh. "8" as the real
and correct copy duly received and initialed by the Regional Office, and therein, he wrote: "I therefore deny knowledge of th e alleged forgery
of the signature of Mr. Ducusin in the same payroll."
Finally, the defense puts forth the exemplary and distinguished record of the petitioner as a public servant, having been in the government
service for more than twenty (20) years and multi-awarded and commended for meritorious services, among them as scholar under the
Colombo Plan specializing in pest management in England; Diploma of Merit as Most Outstanding Employee in Ilocos Sur; Award a s one of
the Most Outstanding Green Revolutionist in the Philippines, 1976; and Award as one of the Most Outstanding Bureau of Plant Industry
Employees, 1978. And citing the case of Manero vs. Court of Appeals, 102 SCRA 817 wherein the Supreme Court said: têñ.£îhqwâ£
(T)he petitioner exhibited an exemplary record as a policeman; he was thrice cited by his superiors for refusing to accept a bribe, was commended for
minimizing armed robberies, was twice the recipient to Letters of Appreciation and has been recommended for promotion on the basis of known honesty
and integrity ...
in sustaining the innocence of the accused, petitioner also prays for his acquittal.
The record and services of the accused-appellant is, indeed praiseworthy and commendable. But an accused is not entitled to an acquittal
simply because of his previous good moral character and exemplary conduct if the court believes he is guilty beyond reasonabl e doubt of the
crime charged. The affirmance or reversal of his conviction must be resolved on the basic issue of whether the prosecution ha s discharged its
duty of proving his guilt beyond peradventure of doubt, of convincing the court as to the moral certainty of his guilt.
Considering that, on the whole, the evidence presented against the accused in the case at bar is not clear, competent and con vincing, and
considering further that there is jurisprudence which, by analogy, supports the defense in U.S. vs. Balais, 17 Phil. 503 wherein We held: têñ.
£îhqwâ£
The municipal treasurer who 'certifies that the official payroll he signs is correct, that the services have been rendered an d the payments made as stated,'
does not pervert the truth in the narration of the facts, if the persons certified as municipal secretary and clerk to the mu nicipal president were duly
appointed and qualified as such municipal secretary and clerk to the municipal president, discharging the duties of their res pective offices, the services
certified having been rendered at the time referred to in the payroll, and both persons having received their respective sala ries from the municipal treasurer
certifying the payroll. Nor can it be taken as proving the falsification of the document if it is subsequently discovered tha t the services were really not
rendered by the aforementioned persons themselves but by substitutes; for it is not the mission of the municipal treasurer to take upon himself to investigate
whether the persons accredited to him as secretary and clerk, by the municipal council and whom he, in turn, acknowledges and pays their monthly salary,
really or apparently perform the duties of such offices,
in resume Our review of the case at bar concludes that the prosecution failed in discharging its sworn duty to prove the guil t of the accused
beyond reasonable doubt. It has not overcome the constitutional presumption of innocence in favor of the accused. Consequentl y, accused-
Evidence Page 80
beyond reasonable doubt. It has not overcome the constitutional presumption of innocence in favor of the accused. Consequentl y, accused-
appellant must be acquitted.
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of the Sandiganbayan convicting the accused is hereby REVERSED and
SET ASIDE. We find the accused-appellant NOT GUILTY. No costs.
Judgment reversed.
SO ORDERED.1äwphï1.ñët
Fernando, CJ., Makasiar, Concepcion Jr., De Castro, Plana, Escolin, Relova and Gutierrez, Jr., JJ., concur.
Aquino, Melencio-Herrera, JJ. and Teehankee, J., took no part.
Abad Santos, J., I vote to affirm the judgment of conviction for the reasons stated by the Sandiganbayan.
The Lawphil Project - Arellano Law Foundation
Evidence Page 81
Capili vs. Cardana
Monday, September 21, 2009
4:36 PM
Evidence Page 82
II
WHETHER OR NOT THE COURT OF APPEALS ERRED IN DENYING PETITIONER’S MOTION FOR
RECONSIDERATION. [5]
On the other hand, respondents posit the following issue:
Whether or not the Decision of the Honorable Court of Appeals, Twelfth Division, in CA G.R. CV.
No. 54412 promulgated on October 18, 2002 … should be affirmed and respected, thus remain
undisturbed. [6]
Primarily, the issue is whether petitioner is negligent and liable for the death of Jasmin Cardaña.
Petitioner asserts that she was not negligent about the disposal of the tree since she had assigned her
next-in-rank, Palaña, to see to its disposal; that despite her physical inspection of the school grounds,
she did not observe any indication that the tree was already rotten nor did any of her 15 teachers
inform her that the tree was already rotten; [7] and that moral damages should not be granted against
her since there was no fraud nor bad faith on her part.
On the other hand, respondents insist that petitioner knew that the tree was dead and rotting, yet, she
did not exercise reasonable care and caution which an ordinary prudent person would have done in the
same situation.
To begin, we have to point out that whether petitioner was negligent or not is a question of fact which is
generally not proper in a petition for review, and when this determination is supported by substantial
evidence, it becomes conclusive and binding on this Court. [8] However, there is an exception, that is,
when the findings of the Court of Appeals are incongruent with the findings of the lower court. [9] In our
view, the exception finds application in the present case.
The trial court gave credence to the claim of petitioner that she had no knowledge that the tree was
already dead and rotting and that Lerios merely informed her that he was going to buy the tree for
firewood. It ruled that petitioner exercised the degree of care and vigilance which the circumstances
require and that there was an absence of evidence that would require her to use a higher standard of
care more than that required by the attendant circumstances. [10] The Court of Appeals, on the other
hand, ruled that petitioner should have known of the condition of the tree by its mere sighting and that
no matter how hectic her schedule was, she should have had the tree removed and not merely
delegated the task to Palaña. The appellate court ruled that the dead caimito tree was a nuisance that
should have been removed soon after petitioner had chanced upon it. [11]
A negligent act is an inadvertent act; it may be merely carelessly done from a lack of ordinary prudence
and may be one which creates a situation involving an unreasonable risk to another because of the
expectable action of the other, a third person, an animal, or a force of nature. A negligent act is one
from which an ordinary prudent person in the actor’s position, in the same or similar circumstances,
would foresee such an appreciable risk of harm to others as to cause him not to do the act or to do it in
a more careful manner. [12]
The probability that the branches of a dead and rotting tree could fall and harm someone is clearly a
danger that is foreseeable. As the school principal, petitioner was tasked to see to the maintenance of
the school grounds and safety of the children within the school and its premises. That she was unaware
of the rotten state of a tree whose falling branch had caused the death of a child speaks ill of her
discharge of the responsibility of her position.
In every tort case filed under Article 2176 of the Civil Code, plaintiff has to prove by a preponderance of
evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some
other person for whose act he must respond; and (3) the connection of cause and effect between the
fault or negligence and the damages incurred. [13]
The fact, however, that respondents’ daughter, Jasmin, died as a result of the dead and rotting tree
within the school’s premises shows that the tree was indeed an obvious danger to anyone passing by
and calls for application of the principle of res ipsa loquitur.
The doctrine of res ipsa loquitur applies where (1) the accident was of such character as to warrant an
inference that it would not have happened except for the defendant’s negligence; (2) the accident
must have been caused by an agency or instrumentality within the exclusive management or control of
the person charged with the negligence complained of; and (3) the accident must not have been due to
any voluntary action or contribution on the part of the person injured. [14]
The effect of the doctrine of res ipsa loquitur is to warrant a presumption or inference that the mere
falling of the branch of the dead and rotting tree which caused the death of respondents’ daughter
Evidence Page 83
falling of the branch of the dead and rotting tree which caused the death of respondents’ daughter
was a result of petitioner’s negligence, being in charge of the school.
In the case of D.M. Consunji, Inc. v. Court of Appeals, [15] this Court held:
…As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence
which recognizes that prima facie negligence may be established without direct proof and
furnishes a substitute for specific proof of negligence.
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening of an
accident or injury will not generally give rise to an inference or presumption that it was due to
negligence on defendant’s part, under the doctrine of res ipsa loquitur, which means, literally,
the thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality
speaks for itself, the facts or circumstances accompanying an injury may be such as to raise a
presumption, or at least permit an inference of negligence on the part of the defendant, or some
other person who is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the injury complained of
was under the control or management of the defendant, and that the occurrence resulting in the
injury was such as in the ordinary course of things would not happen if those who had its control
or management used proper care, there is sufficient evidence, or, as sometimes stated,
reasonable evidence, in the absence of explanation by the defendant, that the injury arose from
or was caused by the defendant’s want of care.
The procedural effect of the doctrine of res ipsa loquitur is that petitioner’s negligence is presumed
once respondents established the requisites for the doctrine to apply. Once respondents made out a
prima facie case of all requisites, the burden shifts to petitioner to explain. The presumption or
inference may be rebutted or overcome by other evidence and, under appropriate circumstances a
disputable presumption, such as that of due care or innocence, may outweigh the inference. [16]
Was petitioner’s explanation as to why she failed to have the tree removed immediately sufficient to
exculpate her?
As the school principal, petitioner was tasked to see to the maintenance of the school grounds and
safety of the children within the school and its premises. That she was unaware of the rotten state of
the tree calls for an explanation on her part as to why she failed to be vigilant.
Petitioner contends she was unaware of the state of the dead and rotting tree because Lerios merely
offered to buy the tree and did not inform her of its condition. Neither did any of her teachers inform
her that the tree was an imminent danger to anyone. She argues that she could not see the immediate
danger posed by the tree by its mere sighting even as she and the other teachers conducted ground
inspections. She further argues that, even if she should have been aware of the danger, she exercised
her duty by assigning the disposition of the tree to another teacher.
We find petitioner’s explanation wanting. As school principal, petitioner is expected to oversee the
safety of the school’s premises. The fact that she failed to see the immediate danger posed by the
dead and rotting tree shows she failed to exercise the responsibility demanded by her position.
Moreover, even if petitioner had assigned disposal of the tree to another teacher, she exercises
supervision over her assignee. [17] The record shows that more than a month had lapsed from the time
petitioner gave instruction to her assistant Palaña on December 15, 1992, to the time the incident
occurred on February 1, 1993. Clearly, she failed to check seasonably if the danger posed by the rotting
tree had been removed. Thus, we cannot accept her defense of lack of negligence.
Lastly, petitioner questions the award of moral damages. Moral damages are awarded if the following
elements exist in the case: (1) an injury clearly sustained by the claimant; (2) a culpable act or omission
factually established; (3) a wrongful act or omission by the defendant as the proximate cause of the
injury sustained by the claimant; and (4) the award of damages predicated on any of the cases stated in
Article 2219 of the Civil Code. [18] However, the person claiming moral damages must prove the existence
of bad faith by clear and convincing evidence for the law always presumes good faith. It is not enough
that one merely suffered sleepless nights, mental anguish, and serious anxiety as the result of the
actuations of the other party. Invariably, such action must be shown to have been willfully done in bad
faith or with ill motive. [19] Under the circumstances, we have to concede that petitioner was not
motivated by bad faith or ill motive vis-à -vis respondents’ daughter’s death. The award of moral
damages is therefore not proper.
Evidence Page 84
damages is therefore not proper.
In line with applicable jurisprudence, we sustain the award by the Court of Appeals of P50,000 as
indemnity for the death of Jasmin, [20] and P15,010 as reimbursement of her burial expenses. [21]
WHEREFORE, the petition is DENIED. The Decision dated October 18, 2002 and the Resolution dated
March 20, 2003, of the Court of Appeals in CA-G.R. CV. No. 54412 are AFFIRMED with MODIFICATION
such that the award of moral damages is hereby deleted.
Costs against petitioner.
SO ORDERED.
Carpio, Carpio-Morales, and Velasco, JJ. concur.
Tinga, J., on leave. ↩
Endnotes ↩
1. Rollo, pp. 34-40. [ ]↩
2. Id. at 53. [ ]↩
3. CA rollo, pp.↩67-73. [ ]
4. Rollo, p. 39.↩[ ]
5. Id. at 152. [ ↩ ]
6. Id. at 169. [ ]
7. Id. at 156.
↩ [ ]
8. Heirs of Simeon Borlado v. Court of Appeals, G.R. No. 114118, August 28, 2001, 363 SCRA
↩ 753,
756. [ ] ↩
9. See Vera Cruz↩ v. Calderon, G.R. No. 160748, July 14, 2004, 434 SCRA 534, 538-539. [ ]
10. Rollo, pp. 192-193. [ ] ↩
11. Id. at 11-12. [ ]
12. 65 ↩C.J.S. § 1(14), p. 462. * ]
13. Child Learning↩ Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476 SCRA 236, 242.
[ ]
14. Id.↩at 244. [ ]
15. G.R. No. 137873,
↩ April 20, 2001, 357 SCRA 249, 257-258 citing 57B Am Jur 2d, Negligence §1819.
[ ] ↩
16. Id. at 260. [ ] ↩
17. See Panuncio v. Icaro-Velasco, A.M. No. P-98-1279, October 7, 1998, 297 SCRA 159, 161. [ ]
18. Quezon City ↩ Government v. Dacara, G.R. No. 150304, June 15, 2005, 460 SCRA 243, 254. [ ]
19. Ace Haulers Corporation v. Court of Appeals, G.R. No. 127934, August 23, 2000, 338 SCRA 572,
580-581. [↩ ]
20. See San Miguel Corporation v. Heirs of Sabiniano Inguito, G.R. No. 141716, July↩4, 2002, 384 SCRA
87, 104. [ ]
21. See People v. Alcantara, G.R. No. 157669, April 14, 2004, 427 SCRA 673, 684. [ ]
Evidence Page 85
Laying the Predicate
Monday, September 21, 2009
4:38 PM
The records show, however, that the alleged statement given to the police was neither offered
as evidence nor shown to witness in order to enable her to explain the discrepancies if any in
accordance to Section 16, Rule 132 of the Rules of Court. The proper basis was, therefore, not
laid to impeach Simeona's testimony on the basis of alleged inconsistent statements which she
allegedly made before the police. 28
*just alleged the statement before the police - it was not shown in the court!
Evidence Page 86
People vs. Molo
Monday, September 21, 2009
4:39 PM
PER CURIAM:
Automatic review of the death sentence with accessory penalties imposed on September 3, 1976 upon accused -appellant Dominador Molo by Hon. Job B. Mandayag of
the Court of First Instance of Romblon, 11th Judicial District, in Criminal Case No. 571 for the murder of Venancio Gapisa on 9 April 1976 at Sitio Dacotan, Barrio
Tambac, Romblon, Romblon.
The above-named accused was charged with murder in an Information filed by Asst. Provincial Fiscal Cesar M. Solis, on May 31,1976, as f ollows:
The undersigned Assistant Provincial Fiscal of Romblon accuses DOMINADOR MOLO of the crime of MURDER committed as follows:
That on or about the 9th day of April 1976, at around 8:00 o'clock in the evening, at sitio Dacotan, barrio of Tambac municip ality of Romblon, province of Romblon, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused with treachery and taking advantage of superior strength, did then and there wilfully, unlawfully and felonious ly attack
and assault one Venancio Gapisa, with the use of a bolo as a consequence of which he sustained mortal injuries that resulted in his death thereafter.
That the killing was attended with the following aggravating circumstances:
(A) Dwelling, for the crime was committed in the house of the offended party who has not given any provocation at all.
(B) Recidivism in view of the fact that the accused has been charged for (1) Frustrated Murder before the Court of First inst ance of Mindoro in Criminal Case V-542 entitled People va.
Dominador Molo and convicted thereof on September 2, 1950; and (2) Murder, before the Court of First Instance of Romblon in C riminal Case No. 862 entitled People vs. Dominador
Molo and convicted thereof on July 27, 1961.
(C) Reiteration, since he has been charged and convicted before different courts in the following criminal cases:
(1) Grave Slander, before the Court of First Instance of Romblon in Criminal Case No. V -669 and convicted on June 5, 1957.
(2) Less Serious Physical Injuries, before the Municipal Court of Romblon, Romblon in Criminal Case No. 839 and convicted on October 9, 1959.
(3) Qualified Trespass to Dwelling, before the Municipal Court of Romblon, Romblon in Criminal Case No. 845 and convicted on February 25, 1960.
(4) Robbery, before the Court of First Instance of Davao in Criminal Case No. 9982 and convicted on March 1, 1967.
That as a consequence of the aforementioned act committed by the accused. the heirs of the deceased are entitled to recover c ivil damages pursuant to the provisions of law.
CONTRARY TO LAW.
Romblon, Romblon, May 31,1976.
(SGD.) CESAR M. SOLIS
Assistant Provincial Fiscal
At the trial, the prosecution presented the testimonies of — (1) the victim's wife, Simeona Gapisa, an eye-witness to the alleged murder; (2) Alejandro Gapisa, a son of
the victim who went to the rescue of his father after he was stabbed by accuse -appellant and was able to talk with him before he succumbed to several bolo wounds; (3)
Roman man a neighbor of Alejandro; and (4) Dr. Victorio Benedicto, who performed the autopsy and accomplished the Autopsy Rep ort, Exhibits "A" and "A.1 The
accused, who offered alibi as a defense, presented his testimony and that of his wife. Barbara Mingo, and Police Patrolman Rodolfo Manunggay and Exhibit s 1, a bolo
and 1-a, scabbard.
The operative facts of the case and the circumstances surrounding the apprehension and investigation of the accused now appel lant established by the evidence on
record are as follow.
In the evening of April 9, 1976 at about 8:00 p.m. at Sitio Dacotan, Barrio Tambac, Municipality of Romblon, Venancio Gapisa and Simeona Rapa-Gapisa, husband and
wife, retired to sleep. The couple lived in a typical hut made of bamboo flooring and dilapidated burl walling surrounded by fruit. bearing banana plants. Venancio Gapisa
immediately fell asleep because he was tired from clearing the fields, and besides, had drunk tuba on that day. He slept near the door lying on his right side. 1
Not long after the couple had retired, Simeona, who had not yet fallen asleep, heard an indistinct sound of murmur and gnashi ng of teeth. Although she was seized by
fear, she managed to peep through the dilapidated buri wall and saw accused Dominador Molo attired only in short pants. He wa s alone. Trembling, she immediately
lighted a kerosene lamp and placed it on top of the trunk nearby. She tried to awaken her husband, but the latter did not res pond. 2
Meanwhile, the accused had already climbed up the house which was only a flight of two steps. The accused forcibly pushed the sliding door and barged into the house.
He inquired from Simeona where Venancio was and she replied that he was asleep. Finding Venancio sleeping near the door, he i mmediately grabbed his left wrist and
started hacking at the sleeping old man. Rudely awakened, Venancio quickly stood up and with his right hand reached for his b olo which was atop the table nearby; but
he was not able to retaliate in as much as Dominador Molo was quick to hack at him again. Fearing for her own life, Simeona r ushed out of the house through the door
of the unfinished kitchen to summon help from her son, Alejandro Gapisa, who was at Roman Mangaring's house some 100 meters a way. Trembling, she told him that
his father was boloed by Boslo, the name by which accused-appellant was known in their locality. 3
Upon being informed, Alejandro and Roman ran towards the house of Venancio, followed by Simeona. Upon arrival, they saw Venan cio bleeding profusely and in
weakened condition. He was sitting on the floor of the kitchen, defecating in his pants. When Alejandro took him in his arms, Venancio told him that he was boloed by
Boslo. Roman Mangaring who was present also inquired from Venancio who his assailant was and elicited the answer, "Boslo". 4 Venancio was then rushed to the
hospital and arrived there at about 1:50 a.m. He expired a few minutes after. 5
An autopsy of the victim disclosed that he died of hemorrhage from multiple incised wounds. The wounds sustained were:
1. Incised wound, 10 cms. in length, gaping about 4 cms., slanting in position with the lower portion located anteriorly, pen etrating the bone, at the anterolateral aspect of the distal 3rd of
the left arm.
2. Incised wound, about 10 cms. in length, gaping, slanting in position, with the lower and located anteriorly, penetrating t he bone, located 3 cms. below the wound mentioned above.
3. Incised wound, about 10 cms. in length, gaping slightly at the anterolateral aspect of the neck, left side, slanting, with the lower and located anteriorly penetrating the muscle layer.
4. Incised wound, about 10 cms. gaping, slightly slanting with the lower end located anteriorly, located 3 cms. below the 3rd wound, fracturing the clavicle, the costo-chondral portion of
the 2nd rib and the lateral portion of the sternum, left side.
5. Incised wound, 8 cms. in length, gaping about 4 cms., slanting with the lower end located anteriorly, penetrating the bone , located at the lower end of the distal 3rd of the right arm,
anterolateral portion.
6. Incised wound, 5 cms. in length, gaping slightly, slanting with the lower end located anteriorly, penetrating the bone, at the; upper 3rd of the right forearm, anterolateral aspect.
7. Incised wound, 4 cms., superficial, at the anterior portion of the neck,
8. Incised wound 4 cms., superficial, right medial aspect, upper 3rd, right forearm.
Internal Findings:
Wound No. 4 penetrated the apex of the left lung inflicting a small wound, about 2 -3 cms. causing minimal bleeding.
The Cause of Death: Hemorrhage from multiple incised wounds. 6
The following morning an investigation of the fatal incident was conducted. Pat. Manuel Marino in the presence of Patrolmen M ontojo and Antonio Madali took the
statement of Simeona Gapisa, who Identified Dominador Molo as the assailant of her deceased husband. 7 Thereafter, PC soldiers and policemen were dispatched to
the house of Dominador Molo some one and a half (1-1/2) kilometers away from the scene of the killing. Dominador Molo was placed under arrest and brought by the
arresting officers to the poblacion. Investigated at the PC barracks, Molo denied having committed any wrong and having gone to the place of Venancio Gapisa. 8
On April 23, 1976, after additional statements of Alejandro Gapisa, Roman Mangaring and Florencio Guarte were secured, a crim inal complaint was filed in the
Municipal Court of Romblon. 9 The preliminary examination was conducted by Mayor Peter M. Montojo, for and in the absence of the municipal judge. Thereafte r, he
issued an order confirming the detention of accused who was then detained in the Municipal jail of Romblon, there being "... reasonable ground to believe that the
Evidence Page 87
offense was committed and that the accused is probably guilty thereof. 10 The accused waived the second stage of the preliminary investigation. 11 On May 31, 1976, an
information, as adverted to above, was filed against Molo accusing him of the crime of murder. 12
After trial, the court a quo — relying on the testimony of Simeona Gapisa who was an eye- and ear-witness to the incident and the corroborating testimonies of
Alejandro Gapisa and Roman Mangaring, who testified on the antemortem statements of the victim Identifying accused as the ass ailant; discounting the defense of alibi
put forth by the accused and his wife; appreciating the qualifying circumstance of treachery and the aggravating circumstance s of dwelling, recidivism and reiteration
alleged in the Information, and a mitigating circumstance, voluntary surrender, sentenced the accused on September 3, 1976, a s follows:
WHEREFORE, this Court renders judgment finding accused Dominador Molo guilty beyond reasonable doubt of the crime of murder, charged in the information and, since after off-
setting the lone mitigating circumstance of voluntary surrender with the aggravating circumstance of either dwelling, recidiv ism or reiteration there remains two aggravating
circumstances, sentencing him to suffer the supreme Penalty of death. He is further adjudged to pay the heirs of the deceased Venancio Gapisa, the sum of Twelve Thousand Pesos (P
12,000), and to pay the cost.
SO ORDERED. 13
Accused-appellant thru Atty. Pedro Q. Quadra, counsel de oficio now seeks acquittal on the basis of two assigned erors, to wit -
1. Appellant was convicted upon proof not beyond reasonable doubt;
2. Identification of the appellant was not proven beyond reasonable doubt. 14
1. In support of the first, he argues that while proof of motive is unnecessary if the evidence of Identification is convinci ng — citing People vs. Cunanan, 19 SCRA 769;
People vs. Portugueza, 20 SCRA 901; People vs. Jamero, 24 SCRA 206; and People vs. Guardo, 24 SCRA 851 — there is, he claims, a total want of motive on
appellant's part, as admitted by the victim's wife, Simeona Gapisa, and son, Alejandro Gapisa. 15
2. In support of the second assigned error, appellant contents that his Identity as the assailant was not established beyond reasonable doubt, because of — (a) alleged
inconsistencies and incredible assertions in Simeona's testimony; (b) physical conditions which rendered it impossible for he r to recognized accused-appellant; (c) her
alleged admission that she pointed to accuse-appellant as the assailant because he was a hated criminal in their locality; and (d) that the so -called dying declarations
should not have been accorded credence, because the victim could not have Identified his assailant. 16
Solicitor General Estelito P. Mendoza - who was assisted by Assistant Solicitor General Reynato Puno and Solicitors Romeo S. dela Cruz - after refuting the foregoing
assignment of errors submits the following conclusions as to the nature of the offense committed, the qualifying and aggravat ing circumstances that attended the
commission thereof, and, that the accused is not entitled to the mitigating circumstance of voluntary surrender, thus —
xxx xxx xxx
Since the attack was commenced while Venancio Gapisa was asleep and therefore he could not make a defense, the killing was at tended with treachery. Treachery qualifies the killing
into murder. (Article 248, Revised Penal Code).
Dwelling is an aggravating circumstance because the killing was done in the house of Venancio Gapisa who had not given provoc ation. (Art. 14 (3), Revised Penal Code).
Other aggravating circumstances are recidivism and reiteration. (Article 14, paragraphs 9 and 19, Revised Penal Code). Accuse d-appellant had been previously convicted of murder,
frustrated murder, grave slander, less serious physical injuries, qualified trespass to dwelling and robbery. (pp. 10 -12, tsn., July 12, 1976).
Accused-appellant is not entitled to the mitigating circumstance of voluntary surrender. He did not surrender to the authorities. As admitted by him, he was arrested by a combined force
of policemen and Philippine Constabulary agents at his residence the day after the killing. (p, 6, tsn., July 29,1976).
Since there are three aggravating circumstances and no mitigating circumstance, the penalty properly imposable upon accused -appellant is death. 17
and recommends that the finding of guilt for the offense of murder and the death sentence imposed upon appellant be affirmed in toto. 18
2. Re the contention that his Identity as assailant was not established beyond reasonable doubt.
(a) That there are inconsistencies and incredible assertions in Simeona's testimony .Simeona Gapisa — who was present when accused-appellant attacked her
husband Venancio with a bolo — testified on direct and re-direct examinations by Assistant Provincial Fiscal Cesar M. Solis and on cross and recross examinations by
Atty. Alexander Mortel, counsel de oficio of accused, thus —
xxx xxx xxx
Fiscal Solis:
Q — By the way, when you first heard the unusual sound since you were still awake, what did you do?
A — I lighted a lamp, I first looked at him by peeping thru the wall of our house and once I had recognized his face as that of D ominador Molo I lighted a lamp.
Q — Was it only the face of Dominador Molo that you recognized outside?
A — Yes, and he was alone.
Q — What about his body, did you recognize that body belong to Dominador Molo?
A — I could see and that was the very body of his including his face because it was bright.
Q — What provides the brightness that allowed you to recognize him outside the house?
A — The moon was bright.
Q — Now, aside from the unusual murmuring sound, did you hear the sound of grinding teeth?
A — In fact that was what he had done he was murmuring and at the same time sounding like grinding teeth.
Q — Now, after you lighted a lamp what else did you do inside?
A — I stood up and stepped back because he had come up into the house.
Q — Did you not wake up your husband?
A — I had but he did not notice.
Q — Now, what did you do with the lamp after you lighted it?
A — I placed it on top of our trunk which was towards our head.
Q — Now, how did you know that Dominador had gone up the house?
A — Because I saw him going up into our house.
Q — When he went up the house, what did he do?
A — Once up the house he held my husband by the arm and suddenly pulled out his bolo from his back and hacked him. 20
xxx xxx xxx
Q — How long have you known him?
A — Since he was a boy and until he grew up.
Q — By the way, by what affiliation (sic, should be appelation or name) is he known in your locality?
A — Boslo.
Q — If that Dominador Molo the accused in this case known as Boslo is present in the court room, will you be able to point him ou t in the court?
A — He is here he is the one sitting.
Q — Could you not be mistaken?
A — That is true, it was his very appearance who is looking up in the ceiling. 21
xxx xxx xxx
Atty. Mortel:
Q — Nevertheless, because the moon was a quarter moon only that night April 9 the illumination any object that could be seen is q uite pale not so bright as if there was an alladin lamp, correct?
A — Yes.
Q — And as a matter of fact when this person whom you said was making murmuring sounds when you peeped through your window he was being illuminated by the beam of the light of the moon and his face seems to be a yellowish and as clear
as if there is an alladin lamp, correct?
A — But I know that he was the very one I recognized his face and he is far from the banana plantation and the Moon lights very w ell on him.
Q — When the moon lighted very well on him his color was yellowish was it not?
A — It was indeed his appearance that I saw and that is exactly how he looked.
Q — And When you looked at him the first time that night he looked lie Dominador Molo?
A — It was his very own appearance, his appearance never changed.
Q — And when you saw him you lighted a lamp, is that right?
A — I lighted a lamp because he was already there and I was afraid of what he had done to us.
Q — You mean from the very first time that you saw him he was making murmuring sounds you were already afraid that he would do so mething bad against you and your husband?
A — Yes, I was already afraid and my skin seemed to shiver. 22
xxx xxx xxx
Q — And so when your husband was or rather when your house that night of April 19 was entered into by a person making murmuring s ounds outside and boloed to death your husband there was no other conclusion that you made but that it must
be Boslo the killer?
A — Yes, in fact he was the very one it was his very looks . 23
Fiscal Solis:
Q — And who pushed open that door of yours, was it Dominador Molo or a witch?
A — He was Dominador Molo, it was his very looks of the same person who pushed the shutter of the door.
Q — What made you sure that the looks of that person was the one who pushed open the door and went inside and hacked your husband ?
Evidence Page 88
A — He was the one it was his very looks and I saw that it is his looks.
xxx xxx xxx
Q — Now, what is this basis for positively telling us that is Dominador Molo who killed your husband was it because of rumor circ ulating in the locality of Cogon and that the assailant as to be Dominador Molo because he has killed or because you
saw then Dominador Molo committing the act against your husband?
A — Not only what was given to me by way of information from other people but because of what I actually saw with my eyes. 24
xxx xxx xxx
Atty. Mortel:
Q — Now, according to you when the door was pushed open the person entered and he has the looks of that fellow whom you are point ing to as Dominador Molo, is that correct?
A — He is the very one.
Q — And not only that person who entered the looks of that Dominador Molo the accused in this case but he also has the height tha t looks like the height of Dominador Molo, is that correct?
A — Yes and he had his shirt off and shorts on.
Q — And he has that looks and built of Dominador Molo, is that correct?
A — Yes, that is his very appearance and could not be altered anymore . 25
xxx xxx xxx
Appellant contents that inconsistencies exist between Simeona's statement given to the police and her foregoing testimony in court, relative to — 1) the precise moment
when Simeona recognized the accused, 26 and 2) whether there was a conversation between Simeona and the accused. 27
The records show, however, that the alleged statement given to the police was neither offered as evidence nor shown to witnes s in order to enable her to explain the
discrepancies if any in accordance to Section 16, Rule 132 of the Rules of Court. The proper bast was, therefore, not laid to impeach Simeona's testimony on the basis
of alleged inconsistent statements which she allegedly made before the police. 28
At any rate, We find the alleged inconsistencies inconsequential. Inconsistencies on minor details or on matters that are not of material consequence as to affect the
guilt or the innocence of the accused do not detract from the credibility of the witnesses. 29 The discordance in their testimonies on collateral matters heightens their
credibility and shows that their testimonies were not coached or rehearsed. 30 Far from being evidence of falsehood, they could justifiably be regarded as a
demonstration of good faith. 31
It is also contended that the testimony of Simeona contains inconsistent averments. According to accused -appellant Simeona claimed that she was able to Identify him
because of the lamp which was then lighted but that she also declared that the light was put out when the door was opened bec ause of the sudden gust of wind. 32 To
support this contention, he quoted Simeona's testimony:
Q — And when the door was pushed open there was a sudden gust of wind that entered the house, correct?
A — There was a consequence of the sudden entry.
Q — And with that sudden entry and gust of wind carried by this fellow the light was snuffed out, correct?
A — Yes. (P. 51, tsn., July 12,1976).
A review of the transcript of the testimony shows that the foregoing is an inaccurate representation of Simeona's testimony. For she clarified that her husband was
already boloed before the light was snuffed out. Thus, she testified on cross -examination:
Atty. Mortel:
Q — And with that sudden entry and gust of wind carried by that fellow the light was snuffed out, correct?
A — Yes.
Q — And in the darkness inside this fellow who entered the house began stabbing and boloing your husband, correct?
A — My husband was already boloed when the light was put out because upon entrance he instantly took hold of my husband's arm and started hacking him all over. 33
xxx xxx xxx
On re-direct examination, she declared —
Fiscal Solis:
Q — Now, you admitted on cross examination that the lamp was put out now how were you able to know that your husband had attempte d to hold his bolo with his right hand and while in that position he was hacked twice by a bolo by the accused
Dominador Molo?
A — That stage occurred when the light was still on so it was still bright. 34
Appellant also alleges that her testimony contains incredible assertions, i.e. that it was very unusual that she remained sil ent while witnessing the attack on her
husband. 35
But the transcripts show that appellant's own counsel below, Atty. Alexander Mortel, during the cross -examination, provided the answer to this misgiving :
xxx xxx xxx
Q — When the door was pushed open did you not shout?
A — No, because I was afraid.
Q — Afraid of what?
A — I was afraid because I did not shout for fear that he might bolo me.
Q — You were tongue-tied?
A — Yes.
Q — Because of fear?
A — Yes.
Q — Terrible fear?
A — Yes, it was terrible fear because my body trembled .
Q — To such extent that you were shocked?
A — Yes. 36
Appellant also argues that Simeona's account is contrary to physical facts. He claims that if, as she testified, the victim w as lying down when attacked, he would sustain
stab, not incised wounds. He explains that the natural tendency of a person attacking another who is lying down with a bolo w ould be to thrust the bolo towards the body
and not hack him. 37 This claim is without merit. The Solicitor General's explanation on this point is well -taken. To simply thrust a bolo at a lying person is not as forceful
as to hack him with it. The first is an awkward if not difficult movement, but the second is natural and can be done with fac ility. 38
(b) That conditions rendered it impossible for Simeona to recognize accused -appellant. It is contended that Simeona could not have recognized accused -appellant while
he was at the foot of the stairs because the banana plants obstructed the light cast by the moon. 39
This, again, is without merit. Simeona testified that the banana plants did not obstruct the light cast by the moon and the d efense did not disprove this fact:
xxx xxx xxx
Atty. Mortel:
Q — And because of the banana plantation that is covering your yard this quarter moon, the illumination thereof is obstructing a little by this banana plantation?
A — But the bananas are not directly obstructing the door of our house because they are standing towards the footpath the part of our house was not obstructed of the light cast by the moon .
Q — Except by the footpath and the surrounding premises of the east side of the house is shaded because the banana plantation are there to obstruct the illumination of the moon, correct?
A — No, the light coming from the moon could not be obstructed anymore by that plantation because the main door of our house is f ronting a yard.
Q — Nevertheless, because the moon was a quarter moon only that night April 9 the illumination to any object that could be seen i s quite pale not so bright as if there was an alladin lamp, correct ?
A — Yes.
Q — And as a matter of fact when this person whom you said was making murmuring sounds when you peeped through your window he was being illuminated by the beam of the light of the moon and his face seems to be a yellowish and as clear
as if there is an alladin lamp, correct?
A — But I know that he was the very one I recognized his face and he is far from the banana plantation and the moon lights very w ell on him.
Q — When the moon lighted very well on him his color was yellowish was it not?
A — It was indeed his appearance that I saw and that is exactly how he looked.
Q — And when you looked at him the first time that night he looked like Dominador Molo?
A — It was his very own appearance his appearance never changed. 40
Indeed, Simeona had no difficulty in recognizing the accused, considering that their house was only elevated by two steps and at the time she saw him through the
dilapidated burl wall he was already at the foot of the stairs. 41
(c) That Simeona pointed to the accused as the killer because he was a hated criminal in the locality . 42 Appellant contends that Simeona pointed to him as the assailant
because he was a hated criminal in the locality - not because he was properly Identified as the one who attacked the victim. This claim has no basis in the records. For
the testimony of Simeona shows that she was certain of accused -appellant's Identity as assailant and that at one point accused-appellant even inquired from her where
her husband was, thus —
xxx xxx xxx
Fiscal Solis:
Q — And who pushed open that door of yours, was it Dominador Molo or a witch?
A — He was Dominador Molo, it was his very looks of the same person who pushed the shutter of the door.
Q — What made you sure that the looks of that person was the one who pushed open the door and went inside and hacked your husband ?
A — He was the one it was his very looks and I saw that it is his looks.
xxx xxx xxx
Q — Now, what is this basis for positively telling us that it is Dominador Molo who killed your husband was it because of rumor c irculating in the locality of Cogon and that the assailant as to be Dominador Molo because he has killed or because
you saw then Dominador Molo committing the act against your husband?
A — Not only what was given to me by way of information from other people but because of what I actually saw with my eyes .
xxx xxx xxx
Atty. Mortel:
Q — Now, according to you when the door was pushed open the person entered and he has the looks of that fellow whom you are point ing to as Dominador Molo, is that correct.
A — He is the very one.
Q — And not only that person who entered has the looks of Dominador Molo the accused in this case but he also has the height that looks like the height of Dominador Molo, is that correct?
A — Yes and he had his shirt off and shorts on.
Q — And he has that looks and built of Dominador Molo, is that correct?
A — Yes, that is his very appearance and could not be altered anymore.
xxx xxx xxx
Court: In your entire testimony you did not mention of any conversation of Dominador Molo as soon as he went up the house, di d you not talk to him, did you not converse with him?
Evidence Page 89
A — No, because he suddenly rushed our house.
Q — And did he not ask you where is your husband and answered there he is ?
A — That was it he was also asking as he entered.
Q — So it is clear that you had a conversation with him?
A — Yes.
Q — And that is what you stated in the police?
A — Yes, sir. 43
(d) Re the dying declarations. Appellant claims that the same should not be accorded credence because the victim could not have recognized his assailant, since as
testified by Simeona he was asleep when attacked. 44 Again this is inaccurate. It was only at the initial stage of the attack when the victim was asleep, because he was
awakened by the first blows and stood up to defend himself Simeona declared:
xxx xxx xxx
Fiscal Solis:
Q — How many times did you see Dominador bolo your husband on the left arm?
A — I saw him boloed my husband twice on the left arm and when my husband noticed that he was being hacked he reached for his bolo with his right arm to which instance Dominador M olo noticing that he was going to use a bolo Dominador
hacked him again on the right arm.
Q — Was your husband able to take hold of his bolo?
A — He was able to take hold of the handle only because at this instance he was hacked by Dominador and so the bolo fell from his hands.
Q — What hand did your husband use in taking hold of his bolo?
A — Right arm (sic: should be hand).
xxx xxx xxx
Q — But was your husband able to rise from where he was lying to get that bolo?
A — He was able to rise but he was already weak because his left arm was already wounded. 45
The statements of Venancio Identifying Dominador Molo as his assailant to Alejandro, his son, and Roman, his neighbor are dyi ng declarations. Alejandro Gapisa
testified:
xxx xxx xxx
Q — What was the position when you found him there?
A — He was sitting.
Q — What else if any did you observe of your father?
A — When I came up he said, "Ando I have wounds because I was boloed by Boslo. "
Q — What was his actual physical situation when he uttered these words?
A — He was already weak, his body was weak.
Q — How did you observe that he was already very weak, that he was already weak physically?
A — Because his wounds are big and many.
Q — Was it bleeding?
A — It was bleeding but the flow of the blood had declined since they had been drained of blood.
Q — In your observation was he dying or not?
A — He was about to die.
Q — Now, since he had wounds what did you do with these injuries?
A — Upon arrival I tied his wounds.
Q — Which injuries did you bind, what did you tie?
A — The wounds in the arm because it was dangling.
Q — Which arm the left or the right?
A — The left.
Q — What about the right arm?
A — It had also many wounds.
Q — What was your father doing there, in that kitchen?
A — He was sitting.
Q — Was he doing anything else from sitting ?
A — I think he was defecating as a result of the pain.
Q — Did he have his pants on?
A — Yes. 46
Ad Roman Mangaring declared:
xxx xxx xxx
A — I was talking to him as to who boloed him.
Q — And his answer to you was Boslo?
A — Yes.
Q — He called his assailant as Boslo?
A — Yes. 47
Considering the nature and extent of the wounds, eight in all, Venancio must have realized the seriousness of his condition a nd it can therefore be inferred that he made
the incrimination under the conciousness of impending death, 48 which, in fact, supervened barely 4-1/2 hours after he was boloed.
In resume then the credible and unimpeached testimonies of the victim's widow, Simeona Gapisa, who was an eye -witness to the fatal incident, and that of Alejandro
Gapisa, the victim's son, and Roman Mangaring, a neighbor, who both testified on the ante-mortem statements of the victim, establish the guilt of accused-appellant
beyond reasonable doubt of the crime of murder qualified by treachery, and aggravated by circumstances of dwelling, recidivis m and reiteration, it appearing that
accused has been convicted by final judgment of murder, frustrated murder, grave slander, less serious physical injuries, qua lified trespass to dwelling and robbery,
and, had served sentences for said crimes.
We agree with the Solicitor General that appellant is not entitled the mitigating circumstance of voluntary surrender. For in order that the same may be properly
appreciated in favor of the accused, it must appear that — a) he had not been actually arrested; b) he surrendered himself to a person in authority or his agent; and c)
his surrender is voluntary, which circumstances are not present in this case. 49 For appellant admitted that on the day after the killing, police authorities surrounded his
house and arrested him. The fact that he did not try to escape or did not resist arrest after he was taken into custody by th e authorities, does not amount to voluntary
surrender. 50
A word about the penalty. It appears that accused-appellant is an incorrigible criminal with clearly anti-social proclivities against which the community has the need if not
the right, to defend itself. Where, as in this case, the reformative end of punishment seems to have failed in amending his criminal t endencies — he was convicted for
frustrated murder in Criminal Case V-542, Mindoro on September 2, 1950; murder in Criminal Case No. 862, Romblon on July 27, 1961; grave slander in Criminal Case
No. V-669, Romblon, on June 5, 1957; less serious physical injuries, before the Municipal Court of Romblon, Romblon in Criminal Cas e No. 839 on October 9, 1959;
qualified by trespass to dwelling, before the Municipal Court of Romblon, Romblon in - Criminal Case No. 845 on February 25, 1960 and robbery, before the Court of
First Instance of Davao in Criminal Case No. 9982 on March 1, 1967 — the imposition of the supreme penalty, is not only justified by the facts of this case, but is
required as a measure of social defense. Society had given accused -appellant several chances. It would seem that compassion had not reformed him but had instead
made him a hardened criminal and a menace to his fellow men. To spare his life is to endanger the lives and properties of oth ers.
WHEREFORE, judgment is hereby affirmed IN TOTO, without pronouncement as to costs.
SO ORDERED.
Barredo, Makasiar, Antonio, Aquino, Concepcion Jr., Santos, Fernandez and Guerrero, JJ., concur.
Castro, C.J., Fernando and Teehankee, JJ., in the result.
# Footnotes
1 T.S.N., July l2,1976, pp. 5, 38, 45 and 50.
2 Id., pp. 38-40, 47 and 57.
3 Id., pp. 3, 10, 13, 21, 26, 40 -43,50,52,56-57.
4 Id., pp. 3-6,15-17,23-24,31-32.
5 Id., July 26,1976, p. 61.
6 Exhibit "A "Record, pp. 13-14.
7 Records, pp. 9-13.
8 T.S.N., July 12, 1976, p. 19; July 29, 1976, pp. 69 -70; July 30, 1976, pp. 82-83; and 90.
9 Records, P. 5-6; 15-17.
10 Id., p. 18.
11 Id., p. 21.
12 Id., p. 38.
13 Rollo, pp. 18-19.
14 Brief, defendant-appellant, p. 4.
15 Id., Id., pp. 4-5.
16 Id., Id., pp, 3, 6-16.
17 Brief, People, pp. 17-18.
18 Id., Id., p. 18,
19 Brief, People, pp. 4-6.
20 TSN., July 12,1976, pp, 39 -41, direct.
21 Id., pp. 43-44, Id.
22 Id., pp. 46-48, Cross.
23 Id., p. 54, Id.
24 Id., pp. 56-57; re direct.
25 Id., p. 57; re-cross.
26 Brief, defendant-appellant, pp. 8-9.
27 Id., Id., pp. 13-14.
28 People v. Escosura L-1291, Nov. 2, 1948, 82 Phil. 41; Juan Ysmael & Co. v. Hashim & Jorayeb, No. 26247, March 18, 1927; United States v. Baluyot, No. 14476, Nov. 6, 1919, 40 Phil. 385.
29 People v. Palencia, L-38957, April 30, 1976, 71 SCRA 679; People v. Reyes, L -33154, Feb. 27, 1976, 69 SCRA 474; People v. Pajenado, L -26458, Jan. 30,1976, 69 SCRA 172.
30 People v. Estocada, L-31024, Feb. 28, 1977, 75 SCRA 295; People v. Doria, L -26188-90, Jan. 31, 1974, 55 SCRA 435.
31 People v. Estocada, supra; People v. Alcantara, L -26867, 33 SCRA 813; People v. Cabiltes, L -18010, Sept. 25, 1968, 25 SCRA 112.
32 Brief, defendant-appellant, pp. 11-12.
33 TSN., July 12, 1976, p. 32.
34 Id., p. 56.
35 Brief, defendant-appellant, p. 14.
36 TSN., p. 51.
37 Brief, defendant-appellant, p. 15.
38 Id., People, p. 13.
39 Id., defendant-appellant, pp. 10-11.
40 TSN., July 12, 1976, pp, 46 -47.
41 id., pp. 41-45.
42 Brief, defendant-appellant, pp. 3, 5-6.
43 TSN., July 12, 1976, pp. 56 -58.
Evidence Page 90
43 TSN., July 12, 1976, pp. 56 -58.
44 Brief, defendant-appellant, pp. 15-16.
45 TSN., July 12,1976, p. 42.
46 Id., pp. 23-24.
47 Id., p. 16.
48 See: People v. Brioso, et al., G.R. No. L -28482, Jan. 30, 1971, 37 SCRA 336; People v. Beraces, et al., G.R. No. 25016, March 27, 1971, 38 SCRA 127.
49 People v. Hanasan, L-25989, 29 SCRA 534.
50 People v. Reyes, 1,33154, Feb. 27, 1976, 69 SCRA 474, citing People v. Dimdiman, L -12622, Oct. 28, 1959, 106 Phil. 391.
The Lawphil Project - Arellano Law Foundation
Evidence Page 91
Ysmael vs. Hashim
Monday, September 21, 2009
4:39 PM
Upon trial the Court of First Instance rendered judgment in favor of the plaintiff for the full amount CFI: for plaintiff Ysmael
demanded under the first cause of action, but dusmissed the second cause of action on the ground that BUT DISMISSED 2nd COA: Ysmael failed to show that the
the plaintiff had failed to show that the credit upon which said cause of action is based had been credit was really legally assigned to his company
legally assigned to it. Both the plaintiff and the defendant Gorayeb appealed from this judgment.
The plaintiff-appellant assigns as error the finding of the trialcourt that the indebtedness of the
defendant Nageeb T. Hashim to the Hashim Commercial & Trading Co., Ltd., in the amount of
P14,646.47, was assigned by the latter to the Asia Banking Corporation and not to the plaintiff Juan
Ysmael & Co., Inc., and that the court likewise erred in dismissing the second cause of action alleged in
the complaint. This contention is principally based on a resolution of the stockholders of the Hashim
Commercial & Trading Co., Ltd., adopted on October 3, 1921, the last three paragraphs of which reads
as follows:
Whereas, Messrs. Juan Ysmael & Co., Inc., owners of 1678 shares of the stock of this company, have
arranged for the suspension of the foreclosure proceedings began as mentioned above, and agree to
assume the obligation of this company with the Asia Banking Corporation as stated in the deed dated
March 8th, 1921, on condition that this company transfer to Juan Ysmael & Co., Inc. its entire stock of
goods, cash on hand and in banks, bills receivable, fixtures, and to have access to the books whenever
required by them;
Now, therefore, be it resolved that Mr. A. T. Hashim, President and General Manager of this company, be
and hereby is, authorized in an irrevocable manner to transfer in favor of Messrs. Juan Ysmael & Co., Inc.,
its entire stock of goods, cash on hand and in banks, bills receivable, fixtures and to have access to the
books whenever required by them; and be it further.
Resolved that the said Mr. A. T. Hashim be and hereby is authorized in an irrevocable manner to execute,
acknowledge, and deliver all such documents and intruments in writing as may be necessary to
effectuate the foregoing purpose.
It does not appear that the assignment authorized by this resolution was ever made and on November
2, 1921, the same stockholders, together with Juan Ysmael & Co., Inc., also a stockholders, adopted
Evidence Page 92
another resolution which practically revoked the resolution of October 3, 1921 and which reads as
follows:
Whereas, on October 3rd, 1921, A. T. Hashim was authorized by the stockholders of Hashim Commercial
& Trading Co., Ltd., to transfer the entire stock of the Company, cash on hand, bills receivable, and
fixtures, to Juan Ysmael & Co., Inc., and
Whereas, subsequently, it appeared advisable to A. T. Hashim that the transfer of said stocks of goods,
etc., should be made to the Asia Banking Corporation, who would then make Juan Ysmael & Co., Inc., its
agent, for the purpose of disposing the same, and
Whereas, a transfer was made to the Asia Banking Corporation, in the form of an agreement entered
into between the Asia Banking Corporation, Juan Ysmael & Co., Inc., and Hashim Commercial & Trading
Co., Ltd., thru their proper representatives, on the 31st day of October, 1921.
Now, therefore, be it resolved that the transfer made by A. T. Hashim, as aforesaid, to the Asia Banking
Corporation, of all goods, wares and merchandise, as per said agreement, be and the same approved,
and transfer ratified.
As will be seen the only assignment actually effected was that to the Asia Banking Corporation. The HELD
court below was, therefore, justified in dismissing the second cause of action and if so, the plaintiff's -As to Ysmael's appeal: CA correct in ruling that
second assignment of error to the effect that the bond in the sum P20,000 fixed by the court below for Ysmael failed to prove that the credit of Hashim's Co.
the discharge of the writ of attachment was inadequate, is also without merit. We may say in passing was legally assinged to him. The resolution showed
that the authorities cited in support of the first assignment of error have reference to equitable before the court shows that the assignment was
assignments and are not in point. Upon the facts shown by the record, Juan Ysmael & Co., Inc. might, actually effected to Asia Banking Corporation and not
perhaps, have compelled the Hashim Commercial & Trading Co. to execute an assignments of the credit to his company
in controversy, byt it does not follow that the same facts would constitute a valid assignment as against -Even if it is true that Ysmael compelled Hashim & Co.
third parties and that the prospective assignee may maintain an action against the debtor for the to execute an assignment of credit in his favor, if it did
collection of the credit without a formal assignment of such dredit. The debtor has the right to demand not follow the formalities required by law (i.e. it must
that the person who sues him for the debt shall be the real party in interest and shall show a valid title be in writing), then the assignment cannot be
to the chose in action; a mere equitable right to the assignment thereof is not sufficient. Both under suffuciently proved
article 51 of the Code of Commerce and under paragraph 6 of article 1280 of the Civil Code, a formal
assignment of a credit of over three hundred pesos must be in writing. The formalities for sales of
choses in action are governed by paragraph 4 of section 335 of the Code of Civil Procedure.
The defendant-appellant makes the following assignments of error: -As to GORAYEB's appeal: All four grounds sustained
I. The trial court erred in rendering judgment upon the first cause of action in favor of the plaintiff and except for one:
against the defendant and appellant, jointly and severally, with her husband A. T. Hashim for the sum of 3 grounds:
P19,134.32, with interest on P11,060.87 thereof at 8 per cent per annum from the 10th day of TC did err in
January,1925. (1) prohibiting GORAYEB from inquiring into the
II. The trial court erred in prohibiting appellant from inquiring into the details of the account set forth in details of the account related to the alleged
Exhibit 3. indebtedness
III. The trial court erred in refusing to receive the testimony of the defendant N. T. Hashim, that of A. T. (2) preventing GORAYEB from presenting proofs to
Hashim, and that of K. N.Hemady in the former action No. 19569 (G. R. No. 21345). support her claim that there was conspiracy against
IV. The trial court erred in preventing defendant and appellant from representing proofs in support of her
the allegations of her answer and special defenses. (3) in rendering judgment in favor of Ysmael…
There is some merit in all of these assignments, except the third. The court below undoubtedly erred in BUT NOT in refusing to receive the testimony of
denying the defendant-appellant the opportunity to inquire into the sources of the entries found in the Hashim, Hemady etc. which was made in GR 19569
plaintiff's books of account in relation to the indebtedness of the defendants; the fact that such sources (which dealt with the validity of the chattel mortgage
might have been examined in civil case No. 19569 of the Court of First Instance of Manila cannot be executed by Hashim in favor of Ysmael)
regarded as a bar to a reasonable inquiry into the character of the debt in the present case. The issues in In offering in evidence the testimony given by Mr.
the two cases are entirely different; the former case dealt with the validity of a chattel mortgage, while Hemady and the Hashims in the earlier case, the
in the present case, wer are dealing with the amount of the defendant's indebtedness to the plaintiff. defendant-appellant did not claim that said testimony
For much the same reasons, the defendant-appellant should have been permitted to present evidence contained admissions against interest by the parties to
in support of her special defense of conspiracy. the action or their agents; if such had been the case,
the testimony would have been admissible without
The third assignment of error cannot be sustained. In offering in evidence the testimony given by Mr. the laying of a foundation and without the witnesses
Hemady and the Hashims in the earlier case, the defendant-appellant did not claim that said testimony having testified in the case at bar. But the purpose of
contained admissions against interest by the parties to the action or their agents; if such had been the the offer of the testimony was evidently to impeach
case, the testimony would have been admissible without the laying of a foundation and without the the testimony of the same witnesses in the present
witnesses having testified in the case at bar. But the purpose of the offer of the testimony was evidently case and if so, a foundation should have been laid by
to impeach the testimony of the same witnesses in the present case and if so, a foundation should have calling the attention of the witnesses to the former
been laid by calling the attention of the witnesses to the former statements so as to give them statements so as to give them opportunity to explain
opportunity to explain before the statements were offered in evidence. before the statements were offered in evidence.
In discussing their first assignment of error, counsel for the defendant-appellant insist that, taking into
consideration the facts of the case and the circumstances preceeding the same, it is obvious that the
case is "fraudulent and that even if the indebtedness claimed were over a true indebtedness, either the
same had been paid or payment thereof waived." This contention is not entirely without foundation and
though we cannot fully agree with counsel, we do think that, in view of the very apparent unreliability of
some of the oral evidence presented, the plaintiff's recovery on its first cause of action should be limited
to the amount shown by its books of account.
On December 31, 1924, the plaintiff's ledger showed a balance of P12,238.02 against the defendant
Hashim, and it does not appear that he has incurred any further indebtedness to the plaintiff since that
date. The plaintiff explains that the amount claimed in excess of the sum shown by the ledger
represents interest at the rate of 8 per centper annum, but under the circumstances of the case, we
cannot give much weight to this explanation. It clearly appears that the chattel mortgage debt, upon
which the plaintiff's first cause of action is based, is included in the ledger account and it may properly
beconsidered as merged therein. It also appears that the account was balanced at the end of the years
1920, 1922 and 1924, and considering the fact that the plaintiff corporation is a well conducted business
organization, it seems rather improbable that, in striking its book balances, it would have overlooked the
important item of interest if any interest on the book account in question had been agreed upon.
The judgment appealed from is, therefore, modified by reducing the plaintiff's recovery to the sum of
Evidence Page 93
P12,238.02, with interest at the rate of 6 per cent per annum from January 13, 1925, the date of the
filing of the complaint. In all other respects said judgment is affirmed without costs in this instance. So
ordered.
Evidence Page 94
Prior Inconsistent Statement
Monday, September 21, 2009
4:43 PM
F: According to the prosecution, at around 11pm of July 24, while the eyewitness CHERRY ROSE Salazar was entertaining LARRY ERESE and his companions, the
other group who were already inside the videoke bar consisting of RUDY BUDUHAN (in red tshirt), ROBERT BUDUHAN (in white Giordano Tshirt), a man wearing
BLUE TSHIRT and another in BLUE TSHIRT and black jacket, declared a holdup.
ROBERT BUDUHAN (the one wearing WHITE GIORDANO TSHIRT) approached LARRY ERESE, poked a gun at him and asked for LARRY's wristwatch. At the same
time, the person in BLUE TSHIRT poked a gun at ROMUALDE ALMERON, the manager of the beerhouse. After the holdup was conducted, ROBERT and the GUY
in BLUE shot both LARRY and ROMUALDE. ORLANDO PASCUA was also shot. As a result, the three died. ROMUALDE's wallet, allegedly containing P50k, was also
not recovered.
When the shooting was reported to the police, the police went to the beerhouse and found the four accused running from the beerhouse. When asked where
they were from and after the accused gave different answers, they were detained. They went back to the beerhouse to conduct an investigation and brought
witnesses to the police station. These witnesses were able to identify the four accused as those who committed the holdup.
Boyet GINYANG: RUDY and him went to a beerhouse. When he heard gunshots and saw the man beside him fall, he run towards theirboarding house and
roused ROBERT and GUIHICNA. They were halted on their way back by a man who asked them where they were headed. RUDY kwento. Bought to Maddela
Police Station to be detained. The next day (on july 25) a group of ladies were brought in to identify them but were not recognized.
RUDY BUDUHAN: Was with GINYANG in the beerhouse when they heard gunshots and the person near them fell. They ran towards the road. While running, an
armed man wearing white tshirt held him, while GINYANG was able to get away. He was brought to the Maddela police station, was detained…
SC: AFFIRM
The appeal mainly rests on the allegation that there were contradictions in the statements given by the main witness of the prosecution, RUBY ROSE.
On the alleged conflicting answers of CHERRY ROSE: sworn statement before the police, statement in the PI and her testimony in open court
DURING PI:
Cherry Rose stated that a man wearing a white Giordano T-Shirt shot Larry, and pointed to Boy Guinhicna as that person
Robert Buduhan was the one who allegedly shot Orlando Pascua
Vs.
IN OPEN COURT:
Robert shot Larry Erese, and he's the one wearing Giordano T-Shirt
COURT:
As between statements made during the preliminary investigation of the case and the testimony of a witness in open court, the latter deserves more
credence. Preliminary investigations are commonly fairly summary or truncated in nature, being designed simply for the determination, not of guilt beyond
reasonable doubt, but of probable cause prior to the filing of an information in court. It is the statements of a witness in open court which deserve careful
consideration.[88]
In any event, Section 13, Rule 132 of the Revised Rules on Evidence, on the matter of inconsistent statements by a witness, is revealing:
Section 13. How witness impeached by evidence of inconsistent statements. — Before a witness can be impeached by evidence that he has made at
other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and
places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in
writing they must be shown to the witness before any question is put to him concerning them.
The rule that requires a sufficient foundation to be first laid before introducing evidence of inconsistent statements of a witness is founded upon common sense
and is essential to protect the character of a witness. His memory is refreshed by the necessary inquiries, which enable him to explain the statements referred
to and to show that they were made by mistake, or that there was no discrepancy between them and his testimony.[89]
In the present case, the statements made by Cherry Rose during the preliminary investigation with respect to the identities of the accused were not related to
her during the trial. Indeed, it is only during the appeal of this case that appellants pointed out the supposed inconsistencies in Cherry Rose’s identification
of the appellants in order to destroy her credibility as a witness. No opportunity was ever afforded her to provide an explanation. Without such explanation,
whether plausible or not, we are left with no basis to evaluate and assess her credibility, on the rationale that it is only when no reasonable explanation is given
Evidence Page 95
by a witness in reconciling her conflicting declarations that she should be deemed impeached.[90]
In this regard, what the defense brought to Cherry Rose’s attention during the trial were her contradictory statements about her romantic relationship with
Larry Erese. As a result of this confrontation, Cherry Rose changed her answer. We rule, however, that this inconsistency relates only to an insignificant
aspect of the case and does not involve a material fact in dispute.
Inasmuch as the above-stated mandatory procedural requirements were not complied with, the credibility of Cherry Rose as a witness stands unimpeached. As
found by the trial court, the testimony of Cherry Rose was straightforward throughout. The appellants were not able to adduce any reason or motive for her to
bear false witness against them. As a matter of fact, Cherry Rose testified during cross-examination that she did not personally know appellant Robert, and that
she had first seen him only during the night when the shooting incident took place.[91]
THIRD DIVISION
YNARES-SANTIAGO,
J.,
- versus - Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
RUDY BUDUHAN y BULLAN and ROBERT BUDUHAN y REYES, JJ.
BULLAN,
Defendants-Appellants.
Promulgated:
August 6, 2008
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECIS ION
CHICO-NAZARIO, J.:
That on or about 10:40 o’clock in the evening of July 24, 1998 in Poblacion
Evidence Page 96
That on or about 10:40 o’clock in the evening of July 24, 1998 in Poblacion
Norte, Municipality of Maddela, Province of Quirino, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, four of
them are armed and after first conspiring, confederating and mutually helping
one another and with force and violence did then and there willfully,
unlawfully and feloniously rob ROMUALDE ALMERON of his wallet and wrist
watch and LARRY ERESE of his wrist watch to the damage and prejudice of the
said ROMUALDE ALMERON and LARRY ERESE;
That on the occasion of the Robbery, the said accused, armed with firearms of
different caliber and after first conspiring, confederating and mutually helping
one another did then and there willfully, unlawfully and feloniously, shoot and
fire upon ROMUALDE ALMERON, LARRY ERESE and ORLANDO PASCUA
resulting to their instanteneous (sic) death and the injuries to the persons of
FERNANDO PERA and GILBERT CORTEZ.
In an Order dated 25 August 1999, the RTC denied the above motion on the
ground that the assertion of lack of personal knowledge on the part of the
arresting officers regarding the commission of the crime is a matter of
defense, which should be properly taken up during the trial.[6]
When arraigned on 12 January 2000, the accused Rudy Buduhan, Robert MOTION TO QUASH INFORMATION
Buduhan and Boyet Ginyang, with the assistance of their counsel de oficio, Warrantless arrest: NOT
entered their pleas of “Not Guilty” to the crime charged.[7] With respect to -caught in flagrante delicto
-no personal knowledge of the commission of the
accused Boy Guinhicna, counsel for the accused informed the trial court of offense
his death and thus moved for the dismissal of the charges against him.[8] --denied: it's a defense that should be properly taken
up during the trial
On the same date, the pre-trial conference was terminated and both parties
agreed on the following stipulation of facts, namely:
That the incident transpired at about 10:40 in the evening of July 24, 1998;
ARRAIGNMENT: NOT GUILTY
That the incident happened at Poblacion Norte, Maddela, Quirino;
Upon the submission of accused Boy Guinhicna’s Certificate of Death, [10] the RTC dismissed the
case against him on 14 February 2000. [11] Thereafter, trial of the case ensued.
The prosecution presented the following witnesses: (1) Cherry Rose Salazar,
an employee of the establishment where the crime was committed[12]; (2)
Senior Police Officer 1 (SPO1) Leo Saquing, a police officer at the Maddela
Police Station who investigated the crime committed[13]; (3) Dr. Fernando T.
Melegrito, the medical examiner who conducted the autopsies on the bodies
of the victims[14]; (4) Myrna Almeron, the widow of the victim Romualde
Almeron[15]; and (5) Laurentino Erese, Sr., the father of the victim Larry
Erese.[16]
On 24 July 1998, Cherry Rose was working as a guest relations officer at the
RML Canteen, a beerhouse and a videoke bar in Maddela, Quirino.[22] At
Evidence Page 97
RML Canteen, a beerhouse and a videoke bar in Maddela, Quirino.[22] At
about 9:00 to 10:00 p.m., there were only two groups of men inside the
beerhouse.[23] The group that went there first was that of the
appellants,[24] which was composed of Robert Buduhan, who was wearing a
white T-shirt marked Giordano,[25] Rudy Buduhan, who was wearing a red T-
shirt,[26] a man wearing a blue T-shirt,[27] and another man wearing a blue
T-shirt with a black jacket.[28] The second group was composed of Larry
Erese and his companions Gilbert Cortez (alias Abe) and Fernando Pera (alias
Nanding).
At 10:40 p.m., while Cherry Rose was entertaining the group of Larry Erese,
Robert approached them and poked a gun at Larry.[29] Immediately, the
man wearing a blue T-shirt likewise approached Cherry Rose’s Manager
Romualde Almeron (alias Eddie), who was seated at the counter.[30] The
man in blue poked a gun at Romualde and announced a hold-up.[31] Larry
then handed over his wristwatch to Robert. Instantaneously, all four men
from Robert’s group fired their guns at Larry and Romualde, which caused
them to fall down.[32] Abe and Nanding ran out of the RML Canteen when
the shooting occurred, and Cherry Rose hid below the table.[33]
SPO1 Leo T. Saquing[34] testified that on 24 July 1998, at 11:00 p.m., he and
SPO4 Alex M. Gumayagay were detailed as duty investigators at the Maddela
Police Station when Eddie Ancheta, a fireman, reported to them a shooting
incident at the RML Canteen in Barangay Poblacion Norte, Maddela,
Quirino. SPO1 Saquing and SPO4 Gumayagay then proceeded to the said
place. About 50 meters from the scene of the crime, they encountered four
male individuals who were running away therefrom.[35] The policemen
immediately halted the men and asked them where they came from. When
they could not respond properly and gave different answers, the policemen
apprehended them and brought them to the Maddela Police Station for
questioning and identification.[36] Afterwards, the policemen went back to
the RML Canteen to conduct an investigation therein.[37] Later that night,
the witnesses[38] of the shooting incident went to the police station and
they positively pointed to the four persons, later identified as Robert
Buduhan, Rudy Buduhan, Boy Guinhicna and Boyet Ginyang, as the assailants
in the said incident.[39]
As regards Larry Erese, Dr. Melegrito testified that said victim sustained a
gunshot wound 1/2 x 1/2 centimeter in diameter in the sternal region of the
chest, between the third left and right rib, perforating the arch of the aorta
of the heart and penetrating the subcutaneous tissue of the left lower back
at the level of the seventh rib, where a slug (bullet)[44] was
extracted.[45] These findings were likewise contained in Larry Erese’s
Autopsy Report.[46]
Concerning the victim Orlando Pascua, Dr. Melegrito testified that the
gunshot wound that the former sustained resulted into a massive disruption
of the lung.[47] As presented in Pascua’s Autopsy Report,[48] the gunshot
wound was 1 x 1 inch in diameter, perforating the midportion of the fourth
rib of the left chest, macerating the three-fourth (3/4) portion of the left
lung, and penetrating the subcutaneous tissues of the left back at the level of
the third and fourth ribs, then the fourth and fifth ribs where pellets were
Evidence Page 98
the third and fourth ribs, then the fourth and fifth ribs where pellets were
extracted therein.
Laurentino Erese testified that during the wake of his deceased son, whose
death was evidenced by a Death Certificate,[52] he incurred funeral
expenses for Larry in the amount of P18,000.00.[53] From the wake to the
first death anniversary, the total expenses were claimed to be more or less
P100,000.00.[54] However, only the receipt for the above funeral
services[55] was offered.
The prosecution did not present the other surviving victims in the shooting
incident, namely Gilbert Cortez and Fernando Pera. The latter were fearful of
reprisals from unknown individuals. No evidence was likewise adduced on
their behalf. Also, the other employees who worked as guest relations
officers in the RML Canteen and who likewise witnessed the incident were
said to have absconded already.[56]
Boyet Ginyang[58] testified that on 24 July 1998, at 10:00 p.m., he and Rudy
went to a beerhouse in Maddela, Quirino. After ordering some drinks and
chatting, they suddenly heard gunshots from the outside. Looking towards
the direction of the sound, he saw somebody fall to the ground and at that
point, he and Rudy ran to get away from the place. While running towards
their boarding house, Rudy was stopped by an unknown armed person in a
white T-shirt. When Ginyang reached the boarding house, he roused
appellant Robert and Guinhicna from their sleep and asked them to go with
him and search for Rudy. Upon reaching the junction at the National
Highway, they were halted by a man who asked where they were
heading. After hearing their story, the man said they should wait for a
vehicle that would help them look for Rudy. When the vehicle arrived, he
and the others were brought to the municipal jail. Thereafter, Rudy was
likewise picked up by the police and detained with the group. On the
morning of 25 July 1998, three ladies were brought to the municipal jail to
Evidence Page 99
morning of 25 July 1998, three ladies were brought to the municipal jail to
identify his group, but the former did not recognize them. On the morning of
26 July 1998, Ginyang and his three companions were brought to Santiago
City where they were made to undergo paraffin testing. Afterwards, the
group was brought back to the municipal jail in Maddela, Quirino. Ginyang
also testified that the policemen took the shirts they wore on the night of 24
July 1998, but he could not remember when they did.
Police Inspector Maria Leonora Chua-Camarao[59] testified that she was the
one who conducted the examination proper of the paraffin casts taken from
Robert Buduhan, Rudy Buduhan, Boyet Ginyang and Boy Guinhicna. She
likewise brought before the trial court the original Letter Request[60] of the
Maddela Police Station for the conduct of paraffin casting; the Letter of
Request[61] addressed to the Officer-in-Charge the PNP Crime Laboratory in
Region 2 for the conduct of paraffin examination; and the paraffin casts of
subjects Rudy, Ginyang, Guinhicna and Robert.[62] Police Inspector Chua-
Camarao explained that the purpose of conducting a paraffin test was to
determine the presence of gunpowder residue in the hands of a person
through extraction using paraffin wax. The process involves two stages: first,
the paraffin casting, in which the hands of the subject are covered with
paraffin wax to extract gunpowder residue; and second, the paraffin
examination per se, which refers to the actual chemical examination to
determine whether or not gunpowder residue has indeed been
extracted. For the second stage, the method used is the diphenyl amine test,
wherein the diphenyl amine agent is poured on the paraffin casts of the
subject’s hands. In this test, a positive result occurs when blue specks are
produced in the paraffin casts, which then indicates the presence of
gunpowder residue. When no such reaction takes place, the result is
negative.
The findings and conclusion on the paraffin test that Police Inspector Chua-
Camarao conducted were contained in Physical Science Report No.
C-25-98[63] which yielded a negative result for all the four
accused. Nonetheless, the forensic chemist pointed out that the paraffin test
is merely a corroborative evidence, neither proving nor disproving that a
person did indeed fire a gun. The positive or negative results of the test can
be influenced by certain factors, such as the wearing of gloves by the subject,
perspiration of the hands, wind direction, wind velocity, humidity, climate
conditions, the length of the barrel of the firearm or the open or closed
trigger guard of the firearm.[64]
Appellant Rudy Buduhan testified that at past 10:00 p.m. of 24 July 1998, he
and Ginyang went to a beerhouse. Shortly after ordering their drinks, they
heard gunshots, and a person seated near the door fell. They then ran
towards the road.[65] While running, an armed man wearing a white T-shirt
held him, while Ginyang was able to get away.[66] After a while, the police
arrived and they took him to the Maddela police station where he was jailed
along with Robert, Ginyang and Guinhicna.[67] The rest of his testimony
merely corroborated the testimonies of Robert and Ginyang.
1) Finding accused Robert and Rudy, both surnamed Buduhan, GUILTY beyond
reasonable doubt of the special complex crime of Robbery with Homicide (Par.
1 Article 294 of the Revised Penal Code) with respect to the deceased Larry
Erese and sentences each of them to suffer the penalty of reclusion perpetua;
2) As to the victim Romualde Almeron, the court also finds them GUILTY
beyond reasonable doubt of Homicide (Article 249 of the Revised Penal Code)
and sentences each of them to the indeterminate penalty of 12 years of Prision
Mayor as minimum to 20 years of Reclusion Temporal as maximum;
3) To pay jointly the heirs of Larry Erese the amount of P50,000.00 as civil
indemnity, P25,000 as exemplary damages, P18,000 as actual expenses and
P5,000 as temperate damages; and the heirs of Mr. Almeron: P50,000 as civil
indemnity, P25,000 as exemplary damages, P38,000.00 as actual expenses and
P5,000.00 as temperate damages.
However, with respect to accused Boyet Ginyang, the court ACQUITS him of
the offense charged since the prosecution had failed to overcome, with the
required quantum of evidence, the constitutional presumption of
innocence. Consequently, the Chief of the BJMP, Cabarroguis, Quirino, is
hereby ordered to immediately release him from confinement unless being
held for some other lawful cause; and to make a report hereon within three (3)
days from receipt hereof.[69]
On 7 June 2004, the Court initially resolved to accept the appeal, docketed as
G.R. No. 159843,[71] and required the appellants to file their Brief.[72]
WHEREFORE, premises considered, the July 24, 2003 Decision of the Regional
Trial Court of Maddela, Quirino, Branch 38, in Civil Case No. 39-18, is hereby
MODIFIED only in that, in addition to the award already given by the trial
court, in consonance with current jurisprudence, the heirs of ERESE are also
entitled to moral damages of P50,000 and in addition to the award already
given by the trial court, the heirs of ALMERON are also entitled to moral
damages of P50,000.00.
Pursuant to Section 13(c), Rule 124 of the 2000 Rules of Criminal Procedure as
amended by A.M. No. 00-5-03-SC dated September 28, 2004, which became
effective on October 15, 2004, this judgment of the Court of Appeals may be
appealed to the Supreme Court by notice of appeal filed with the Clerk of
Court of the Court of Appeals.[74]
From the Court of Appeals, the case was then elevated to this Court for
automatic review. In a Resolution[75] dated 5 September 2007, we required
the parties to file their respective supplemental briefs, if they so desired,
within 30 days from notice.
Appellants, on the other hand, filed their supplemental brief on 28 November 2007.
As a final plea for their innocence, appellants ask this Court to consider the following assignment of
errors:
I.
II.
III.
IN FAILING TO MAKE A DIRECT RULING ON THE MOTION OF THE ACCUSED TO QUASH THE
INFORMATION ON THE GROUND THAT THE ARREST OF THE ACCUSED WITHOUT A
WARRANT OF ARREST IS ILLEGAL AS THERE WAS NO PERSONAL KNOWLEDGE OF THE
ARRESTING OFFICERS REGARDING THE COMMISSION OF THE CRIME.
To state differently, appellants argue that their guilt was not proven beyond reasonable doubt in view of
the trial court’s error in the appreciation of the evidence for and against them. They fault the trial
court’s over-reliance on the testimony of the prosecution’s main witness and its failure to consider the
glaring inconsistencies in Cherry Rose’s previous accounts of the shooting incident.
Appellants insist that Cherry Rose is not a credible witness in view of the
conflicting answers she gave in her sworn statement before the police,[78] in
the preliminary investigation of the case and in her testimony in open
court. They contend that the trial court failed to scrutinize the entirety of
the statements made by Cherry Rose vis-à-vis the shooting incident.
Also, in Cherry Rose’s sworn statement before the police, she narrated that
the group of the appellants, consisting of five persons, was already inside the
RML Canteen before the shooting incident occured.[83] However, in her PIS: On the alleged conflicting answers of CHERRY
direct examination, Cherry Rose stated that appellant Robert had only three ROSE: sworn statement before the police,
statement in the PI and her testimony in open
other companions.[84]
court
Finally, in the preliminary investigation, appellants pointed out that Cherry DURING PI:
Rose unhesitatingly admitted that Larry Erese was her intimate boyfriend and Cherry Rose stated that a man wearing a white
Giordano T-Shirt shot Larry, and pointed to Boy
that was why she embraced him after the latter was shot.[85] Guinhicna as that person
Robert Buduhan was the one who allegedly shot
In her cross-examination, however, Cherry Rose stated that Larry was only a Orlando Pascua
customer and not her boyfriend.[86] When questioned about her prior Vs.
IN OPEN COURT:
statement about this fact given during the preliminary investigation, Cherry Robert shot Larry Erese, and he's the one wearing
Rose changed her answer and said that Larry was indeed her boyfriend.[87] Giordano T-Shirt
In any event, Section 13, Rule 132 of the Revised Rules on Evidence, on the
matter of inconsistent statements by a witness, is revealing:
The rule that requires a sufficient foundation to be first laid before introducing evidence of inconsistent
statements of a witness is founded upon common senseand is essential to protect the character of a
witness. His memory is refreshed by the necessary inquiries, which enable him to explain the
statements referred to and to show that they were made by mistake, or that there was no discrepancy
between them and his testimony.[89]
In the present case, the statements made by Cherry Rose during the preliminary investigation with
respect to the identities of the accused were not related to her during the trial. Indeed, it is only
during the appeal of this case that appellants pointed out the supposed inconsistencies in Cherry
Rose’s identification of the appellants in order to destroy her credibility as a witness. No opportunity
was ever afforded her to provide an explanation. Without such explanation, whether plausible or not,
we are left with no basis to evaluate and assess her credibility, on the rationale that it is only when no
reasonable explanation is given by a witness in reconciling her conflicting declarations that she should
be deemed impeached.[90]
In this regard, what the defense brought to Cherry Rose’s attention during the trial were her
contradictory statements about her romantic relationship with Larry Erese. As a result of this
confrontation, Cherry Rose changed her answer. We rule, however, that this inconsistency relates only
to an insignificant aspect of the case and does not involve a material fact in dispute.
Inasmuch as the above-stated mandatory procedural requirements were not complied with, the
credibility of Cherry Rose as a witness stands unimpeached. As found by the trial court, the testimony of
Cherry Rose was straightforward throughout. The appellants were not able to adduce any reason or
motive for her to bear false witness against them. As a matter of fact, Cherry Rose testified during
cross-examination that she did not personally know appellant Robert, and that she had first seen him
only during the night when the shooting incident took place.[91]
As the trial judge who penned the assailed decision did not hear the testimonies of the witnesses for the
prosecution,[92] the rule granting finality to the factual findings of trial courts does not find
applicability to the instant case.[93]
After a careful review of the entire records of this case, the Court finds no reason to disagree with the
factual findings of the trial court that all the elements of the crime of Robbery with Homicide were
present and proved in this case.
Robbery with Homicide is penalized under Article 294, paragraph 1 of the Revised Penal Code,[94]
which provides:
In Robbery with Homicide, so long as the intention of the felon is to rob, the killing may occur before,
during or after the robbery. It is immaterial that death would supervene by mere accident, or that the
victim of homicide is other than the victim of robbery, or that two or more persons are killed. Once a
homicide is committed by reason or on the occasion of the robbery, the felony committed is the special
complex crime of Robbery with Homicide.[96]
The original design must have been robbery; and the homicide, even if it precedes or is subsequent to
the robbery, must have a direct relation to, or must be perpetrated with a view to consummate, the
robbery. The taking of the property should not be merely an afterthought, which arose subsequently to
the killing.[97]
With respect to the elements of the crime, the following excerpts from the direct testimony of Cherry
Rose clearly illustrates the same, viz:
Q: At that night of July 24, 1998 at around 10:40 in the evening, what were you doing
at RML Canteen?
xx xx
Q: Do you recall if this Larry Erese have a companions (sic) that time?
A: Yes, sir.
Q: Name them?
Q: That night while you were entertaining them, this three (3) what transpired next?
Q: And what did Larry Erese do when a gun was poke at him?
xx xx
Q: Will you please go around and see if he is inside the courtroom and point at him?
A: The witness is pointing to a man [seated] at the back bench of the court and when
asked about his name he answered Robert Buduhan.
xx xx
Q: Can you name or can you recall any particular description of that T-shirt worn by
Robert Buduhan at that time?
xx xx
xx xx
xx xx
Q: Where are these companions of Robert Buduhan at the time Robert Buduhan poke
a gun at Larry Erese?
A: The other one was there to my Manager [Romualde] Eddie Almeron sir.
Q: What was the attire of this person who approached Eddie Almeron, your Manager?
xx xx
A: Yes, sir.
xx xx
Q: What about the other two (2) companions of Robert Buduhan where are they?
xx xx
Q: The person in red T-shirt whom you claim the companion of Robert Buduhan, can
you identify him?
A: Yes, sir.
xx xx
A: Witness pointed one of the accused sitting infront and when asked about his name
he answered Rudy Buduhan.
xx xx
Q: You mention about a person wearing blue T-shirt who approached your Manager
Eddie Almeron. What did he do first before he approached your Manager if [any]?
Q: What did he tell to you (sic) Manager if any while poking a gun?
A: Holdup sir.
Q: Are they simultaneous in approaching Larry Erese and Eddie Almeron, this person
in blue T-shirt and the accused Robert Buduhan?
Q: And then the person in blue T-shirt likewise approached Eddie Almeron?
A: Yes, sir.
Q: What transpired first before Larry Erese gave his wrist watch. The announcement
of holdup or the giving of his wrist watch?
Q: When Larry Erese gave his watch to Robert Buduhan with Robert Buduhan poking a
gun at Larry Erese, what transpired next?
Q: Who fired?
xx xx
Q: You mentioned a while ago that Robert Buduhan poke a gun at Larry Erese?
A: Yes, sir.
Q: You likewise mention that the person in blue T-shirt poke a gun at Eddie Almeron?
A: Yes, sir.
A: Armalite sir.
Q: When Rudy Buduhan fired his gun was there any person who was hit?
Q: When the person in blue T-shirt who was poking a gun at Eddie Almeron fired his
gun was there any person who was hit?
xx xx
Q: How far is Robert Buduhan from Larry Erese when Robert Buduhan fired his gun?
Q: You mention also about a person in blue T-shirt fired a gun at Eddie Almeron. How
far was he from Eddie Almeron when he fired his gun?
xx xx
COURT –
About 2 to 3 meters?
Yes, 2 to 3 meters.
A: Yes, sir.
Q: Where is he now?
Quite obvious from the foregoing testimony is that the act of appellant Robert and his companion
in blue T-shirt of poking their guns towards Larry and Romualde, respectively, and the announcement of
a hold-up were what caused Larry to give his watch to Robert. At this point, there already occurred the
taking of personal property that belonged to another person, which was committed with violence or
intimidation against persons.
Likewise, the intent to gain may already be presumed in this case. Animus lucrandior intent to gain is an
internal act, which can be established through the overt acts of the offender.[99] The unlawful act of
the taking of Larry’s watch at gunpoint after the declaration of a hold-up already speaks well enough for
itself. No other intent may be gleaned from the acts of the appellant’s group at that moment other than
to divest Larry of his personal property.
The appellants acted in conspiracy in perpetrating the crimes charged. As found by the trial court,
conspiracy was proved by the concurrence of the following facts: that the four men were together when
they entered the RML canteen; that they occupied the same table; that they were all armed during that
time; that while the robbery was in progress, neither Rudy nor the one in blue T-shirt with black jacket
prevented the robbery or the killing of the victims; that all four fired their firearms when the robbery
was going on and that they fled all together and were seen running by the police before they were
intercepted just a few meters from the scene of the crime.
There is conspiracy when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. The same degree of proof necessary to prove the crime is required to
support a finding of criminal conspiracy. Direct proof, however, is not essential to show
conspiracy.[100] Proof of concerted action before, during and after the crime, which demonstrates
their unity of design and objective is sufficient.[101]
As the fatal shooting of both Larry Erese and Romualde Almeron happened on the occasion of the
robbery and was subsequent thereto, both of the appellants must be held liable for the crime of
Robbery with Homicide on two counts.
The defense of appellants of alibi is at best weak when faced with the positive identification of the
appellants by the prosecution’s principal witness. It is elemental that for alibi to prosper, the
requirements of time and place must be strictly met. This means that the accused must not only prove
his presence at another place at the time of the commission of the offense but he must also
demonstrate that it would be physically impossible for him to be at the scene of the crime at that
time.[102] In the present case, there was absolutely no claim of any fact that would show that it was
well nigh impossible for appellants to be present at the locus criminis. In fact, they all testified that they
were going towards the vicinity of the area of the shooting incident when the police apprehended them.
The testimonies of Robert Buduhan and Boyet Ginyang were also markedly inconsistent on the material
date as to when the witnesses in the shooting incident identified them. Robert Buduhan testified that
the three lady witnesses came to identify them at the municipal jail on the evening of 26 July
1998.[103] However, in the direct examination of Boyet Ginyang, he testified that said witnesses
arrived on the morning of 25 July 1998.[104] This fact only tends to lend suspicion to their already
weak alibi.
Appellants likewise cannot rely on the negative findings of Police Inspector Chua-Camarao on the
paraffin tests conducted in order to exculpate themselves. The said witness herself promptly stated that
paraffin test results are merely corroborative of the major evidence offered by any party, and they are
not conclusive with respect to the issue of whether or not the subjects did indeed fire a gun. As
previously mentioned, the positive and negative results of the paraffin test can also be influenced by
certain factors affecting the conditions surrounding the use of the firearm, namely: the wearing of
gloves by the subject, perspiration of the hands, wind direction, wind velocity, humidity, climate
conditions, the length of the barrel of the firearm or the open or closed trigger guard of the firearm.
Lastly, the persistent claim of appellants of the illegality of their warrantless arrest, due to the lack of
personal knowledge on the part of the arresting officers, deserves scant consideration. As aptly stated
in People v. Salazar,[105] granting arguendo that appellants were illegally arrested, such arrest did not
invest these eyewitness accounts with constitutional infirmity as "fruits of the poisonous tree."
Considering that their conviction could be secured on the strength of the testimonial evidence given in
open court, which are not inadmissible in evidence, the court finds no reason to further belabor the
matter.
The prescribed penalty for Robbery with Homicide under Article 294 of the Revised Penal Code, as
amended, is reclusion perpetua to death. In accordance with Article 63 of the Revised Penal Code, when
the law prescribes a penalty composed of two indivisible penalties, and there are neither mitigating nor
aggravating circumstances, the lesser penalty shall be applied.
The RTC and the Court of Appeals thus correctly imposed the penalty of reclusion perpetua.
As regards the charge for the death of Orlando Pascua and the injuries sustained by Fernando Pera and
Gilbert Cortez, the trial court aptly held that the prosecution failed to substantiate the same. No
witnesses were presented to testify as to the circumstances leading to the said incidents, and neither
were they proved to be caused by the criminal actions of the appellants.
The two courts below committed a mistake, however, in convicting the appellants separately of the
crime of Homicide for the death of Romualde Almeron. It bears stressing that in the special complex
crime of Robbery with Homicide, so long as the intention of the felon is to rob, the killing may occur
before, during or after the robbery. It is immaterial that death would supervene by mere accident, or
that the victim of homicide is other than the victim of robbery, or that two or more persons are
killed. Once a homicide is committed by reason or on the occasion of the robbery, the felony committed
is the special complex crime of Robbery with Homicide.[106]
As to the award of damages, we hold that the heirs of Larry Erese and Romualde Almeron are each
entitled to the amount of P50,000.00 as civil indemnity ex delicto. This award for civil indemnity is
mandatory and is granted to the heirs of the victim without need of proof other than the commission of
the crime.[107]
We agree with the Court of Appeals’ grant of moral damages in this case even in the absence of proof
for the entitlement to the same. As borne out by human nature and experience, a violent death
invariably and necessarily brings about emotional pain and anguish on the part of the victim’s family. It
is inherently human to suffer sorrow, torment, pain and anger when a loved one becomes the victim of
a violent or brutal killing.[108] The heirs of Erese and Almeron are thus entitled to moral damages in
the amount of P50,000.00 each.
On the award of actual damages, we hold that the heirs of Larry Erese are entitled to the award of
temperate damages for P25,000.00, in lieu of the lower amount of P18,000 that was substantiated by a
receipt. In People v. Villanueva,[109] we have laid down the rule that when actual damages proven by
receipts during the trial amount to less than P25,000.00, the award of temperate damages for
P25,000.00 is justified in lieu of actual damages of a lesser amount. Conversely, if the amount of actual
damages proven exceeds P25,000.00, then temperate damages may no longer be awarded. Actual
damages based on the receipts presented during trial should instead be granted.
However, with respect to the award of the amount of P38,000.00 to the heirs of Romualde Almeron, the
same is incorrect since the receipt presented therefor covers only the amount of P26,000.00. The award
of actual damages should be reduced accordingly. The grant of temperate damages to the heirs of
Almeron is thus deleted.
The award of exemplary damages is likewise deleted, as the presence of any aggravating circumstance
was neither alleged nor proved in this case.[110]
WHEREFORE, premises considered, the decision dated 29 December 2006 of the Court of Appeals in CA-
G.R. CR-HC No. 01940 is hereby MODIFIED as follows:
For the death of Larry Erese, appellants Robert Buduhan y Bullan and Rudy Buduhan y Bullan are
found GUILTY beyond reasonable doubt of Robbery with Homicide and sentenced each to suffer
the penalty of reclusion perpetua.
For the death of Romualde Almeron, appellants Robert Buduhan y Bullan and Rudy Buduhan y
Bullan are found GUILTY beyond reasonable doubt of Robbery with Homicide and sentenced each
to suffer the penalty of reclusion perpetua.
Appellants shall be entitled to a deduction of their preventive imprisonment from the term of
their sentences in accordance with Article 29 of the Revised Penal Code, as amended by Republic
Act No. 6127.
Appellants are ordered to indemnify jointly and severally the heirs of Larry Erese as follows: (a)
P50,000.00 as civil indemnity; (b) P50,000.00 as moral damages; and (c) P25,000.00 as temperate
damages.
Appellants are ordered to indemnify jointly and severally the heirs of Romualde Almeron as
follows: (a) P50,000.00 as civil indemnity; (b) P50,000.00 as moral damages; and (c) P26,000.00 as
actual damages.
For reasons herein stated, appellants are ACQUITTED of the separate crime of Homicide for the
death of Romualde Almeron.
No costs.
SO ORDERED.
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
RUBEN T. REYES
Associate Justice
ATTESTATION
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairperson’s Attestation, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer
of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
[1] Penned by Associate Justice Vicente Q. Roxas with Associate Justices Josefina Guevara-
Salonga and Apolinario D. Bruselas, Jr. concurring; rollo, pp. 3-13.
[2] Penned by Judge Menrado V. Corpuz; CA rollo, pp. 27-41.
[3] CA rollo, pp. 13-14.
[4] Records, Vol. 1, pp. 73-74.
[5] RULES OF COURT, Rule 113, Section 5 provides the instances when a warrantless arrest may
be lawfully made, to wit:
SEC. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it;
and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or is temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to another.
GREGORIO FIGUERAS vs. SIMEON SERRANO ON THE OTHER HAND, the records in BRISTOL ALMANACS recorded by the former clerk of
the Serranos and testified by him in open court, was admitted by the court, it appearing that
these were made at the time of each visit, plus details on each visit such as the time and
date…and the clerk was enjoined to record these visits...
Besides filing a general denial and a special defense, the defendant sets up two counterclaims: One for
P10,000 damages on account of the plaintiff's having prevented the partition of the estate of the
deceased Leandro Serrano among his heirs, by means of a groundless, unreasonable claim of fees; and
another for P200,000 damages also, on the ground that Primitiva Serrano lost her eyesight completely,
due to lack of diligence and precaution on the plaintiff's part in not having given her proper treatment, in
consequence of which the patient suffered hardships and moral depression.
The judgment of the Court of First Instance of Ilocos Sur which tried the case, reads as follows:
The plaintiff acquiesced in this decision, but not so the defendant, who appeals assigning the following
errors as committed by the trial court:
1. In not dismissing the complaint for lack of jurisdiction, there being no evidence that the appellee's
appeal from the decision of the committee of claims of the testate proceeding for the settlement of the
estate of the deceased Leandro Serrano, was taken within the legal period.
2. In admitting as evidence for the appellee, Exhibits C, H, I, J, K and N, and in not finding that these
exhibits are false and apocryphal.
3. In holding that the appellee and the deceased Leandro Serrano agreed that said appellee would be
entitled to charge P4 for each of the 27 kilometers between Vigan and Cabugao, for the services he
would render Primitiva Serrano.
4. In admitting as evidence Exhibits Q and R, A, B, E, F, G, L, M, O, P, S, T, U, W, W-1, W-2, X, Y, Z, Z-1, Z-2,
CC, DD, and EE, presented by the appellee.
5. In finding that the appellee made 134 medical visits to Primitiva Serrano in Cabugao, and 195 in
Vigan, and that during these 195 visits the appellee gave Primitiva Serrano 161 electrical treatments,
120 intramuscular injections, 132 treatments and 192 treatments of both eyes.
6. In not finding that the appellee made no more than 26 medical visits in Cabugao and 90 visits in
Vigan, and that on commencing the treatment of Primitiva Serrano, said appellee agreed to charge P20
for each visit in Cabugao and P2 for each visit in Vigan when the patient was brought to the latter
municipality.
7. In holding that, besides the medical service rendered to Primitiva Serrano by the appellee, he treated
Leandro Serrano also, having made 126 visits in Cabugao.
8. In holding that the reasonable price of the electrical treatments, injections and eye treatments is P15
for each treatment, P5 for each injection, and P2 for each eye treatment.
9. In ordering appellant to pay appellee P19,144 with interest and the costs of the action when it should
have held the appellee's fee are already fully paid.
10. In not holding upholding appellant's counterclaim and in not ordering the appellee to pay the sum
claimed therein.
According to the complaint, the services for which compensation is here claimed consist in medical
attendance during the years 1919, 1920, and 1921, on Primitiva Serrano as well as on her father Leandro
Serrano, for which purpose the plaintiff, who at that time lived in Vigan, had to make many trips to the
town of Cabugao, 27 kilometers distant from where said patients lived. Leandro Serrano is now dead, F: As alleged by Figueras, he allegedly treated
and the complaint here is directed against his estate, represented by the defendant administrator. It is PRIMITIVA SERRANO, as well as her father
also alleged therein that Leandro Serrano promised to pay for plaintiff's trip to the town of Cabugao at LEANDRO (who was already dead at the time of
the rate of P4 per kilometer. the suit), and gave treatments and injections for
the former's eyes. As he lived in Vigan and the
The principal evidence adduced to prove this promise is the letter Exhibit C which is alleged to be Serranos lived in Cabugao, 27km away, he
addressed to the plaintiff and signed by Leandro Serrano. The defendant assails the authenticity of this allegedly was to be paid for the trip he had to
letter and the signature at the bottom thereof. Indeed, we notice as to the context that the typewritten make from Vigan to Cabugao.
characters therein are very similar to those of Exhibit 2. (p. 184 of the record) which is a letter written by -As proof, Figueras presented EXHIBIT C (A
the plaintiff's brother. The difference we observe in the typewriting of these documents consists in that LETTER) alleged to be addressed to Figueras and
in Exhibit C the type is more worn, thus suggesting the fact that it was written later. The prior date signed by LEANDRO SERRANO. -SERRANOS ASSAIL
appearing in it does not preclude this conclusion, for any date, past or future, may at a given time be THE AUTHENTICITY OF THE LETTER AND THE
written on any document. SIGNATURE AT THE BOTTOM OF THE LETTER!
-the context that the typewritten characters
therein are very similar to those of Exhibit 2
And the changes and erasures which have not been satisfactory explained, likewise argue against the
admissibility of this exhibit.
The remarkable resemblance almost identical, in point of size and contour, between the signature in
Exhibit C and the one in Exhibit J, as may be clearly seen by placing one upon the other, casts serious EXHIBIT C: Court think it's not genuine!!!
doubts on its genuineness. It seems hardly probable that Leandro Serrano should have been able to
write two signatures so exactly alike, not only in the curvature at the base of the letters, and in the form
of the small as well as the capital letters, but also in the distance between them, the space they occupy,
and the slant of the strokes of the whole signature as well as of each letter thereof, and even in the
length, contour, and other details of the paraph.
Figueras had burden of proving that EXHIBIT
C is admissible, when the signature on the
As these details strongly indicate that Exhibit C is not genuine, we cannot consider it as reliable proof in
instrument appears to have been forged
this case. The burden of proof was on plaintiff to show, at least by a preponderance of evidence, that
this document was admissible evidence of record, and, in this case the preponderance militates against
the document.
It cannot be held proven, therefore, that Leandro Serrano promised to pay the plaintiff P4 for every
kilometer of his trips to Cabugao on his medical visits.
The preponderance of admissible evidence of record is to the effect that the cost of each of such visits
to Cabugao is about P25. Considering plaintiff's social standing, he was entitled to use an automobile as
the most adequate mode of transportation.
Exhibits Q and R are objected to by the defendant as not duly identified and as incompetent evidence. EXHIBITS Q AND R: NOT DULY IDENTIFIED AND AS
It is true that the witnesses Parto and Florendo testified that they recognized the writing in said INCOMPETENT EVIDENCE: THE WRITINGS ON THOSE
notebooks as plaintiff's, but there is no proof that the notes in these exhibits were written with the ALLEGED NOTES BY FIGUERAS, THOUGH ALLEGED TO
knowledge and consent, or even in the presence, of Leandro Serrano. Neither does it appear that such HAVE BEEN MADE ON DIFFERENT OCCASIONS AND AT
notes were made at the time of the visits and professional services referred to therein, or that they DIFFERENT PERIODS OF TIME, HAVE UNIFORM
were written about that time. And the appearance of the writing in these books (Exhibit Q and R ) does HANDWRITING AND COLOR OF INK!
not show that such notes were made therein on different occasions and at different periods of time, -to be admissible, such entries must be proven to
considering the noticeable uniformity of the handwriting and of the color of the ink used (in Exhibit Q), have been made at or about the time of transactions
in almost all the entries, notwithstanding the fact that these entries cover a period of over one year. to which they relate
-NOTE: other W testified to it, not Figueras!
It is absolutely necessary for the admission of such entries to prove that they were made at or about the -these notes WERE PRESENTED ALLEGEDLY TO PROVE
time of the transaction to which they relate. Once this is proven they may be admitted to corroborate THE NUMBER OF VISITS MADE BY FIGUERAS
the testimony of the person who made them.
Written memoranda made at or about the time of the transaction to which they relate are sometimes
admitted in evidence to corroborate the testimony of the person by whom they were made. (22 C.J.,
869.)
But the fact is that Exhibits Q and R not only do not meet the requirement as to being
contemporaneous, but it appears that the plaintiff who made the memoranda noted therein did not
even testify concerning them.
These exhibits cannot, therefore, be taken into consideration to determine the number of visits made by
the plaintiff nor that of the times he rendered professional services. The W presented were drivers who took Figueras
to Cabugao. They testified to corroborate the
The appellee alleges that said entries are corroborated by the witness Florendo, Formoso, Figueras and Figueras notebook. The fact that Figueras made
Arcebal, the first three of whom, chauffeurs who successively took the plaintiff to Cabugao, among trips to Cabugao was also admitted by the
themselves fixed the total number of trips to Cabugao at about one hundred, and Arcebal testified that defendant. THE ISSUE IS HOW MANY TRIPS
at the time in question, he saw the plaintiff stop in front of the municipal building of Cabugao two or FIGUERAS MADE
three times a week, going in the direction of Leandro Serrano's house. The number of times testified to
by these witnesses, is, as it could not otherwise be as inferred from their own testimony, mere
conjecture, without sufficient assurance of approximation, much less exactness. What these witnesses
definitely established and wherein they corroborate the notebooks Exhibits Q and R, is that the plaintiff
made trips to Cabugao, a fact admitted by the defendant. But as to the number of said trips, which is the
point in question, the testimony of these witnesses, with all its uncertainty on this point, cannot be
considered as either direct or corroborative evidence.
We therefore find that the plaintiff's evidence does not supply data legally competent to ascertain the
number of times he was in Cabugao to render professional services to Primitiva Serrano.
According to the defendant's evidence consisting of Exhibits 6, 7, 9 and 10, identified by Pedro Suero Defendants Serranos presented entries entered
and Simeon Serrano, the plaintiff made twenty-six medical visits to Primitiva Serrano in Cabugao, and by the former clerk which was enjoined to note
ninety in Vigan. Not only are these Exhibits 6, 7, 9 and 10, identified, but it appears from the testimony down in during the years 1919 and 1920:
of Pedro Suero, that he, as former clerk to Leandro Serrano, was enjoined to note down in Exhibits 6 *the name of Gregorio Figueras
and 7, which are Bristol Almanacs for the years 1919 and 1920, the name of Gregorio Figueras, *whenever said Physician paid a professional visit
whenever said physician paid a professional visit to Primitiva Serrano in Cabugao that he used to to Primitiva Serrano in Cabugao
record plaintiff's medical visits to witness' sister, Primitiva Serrano, in Vigan, in the almanacs Exhibits *time when the visits were made
9 and 10 with the initial G and the letters "a.m." or "p.m." according as they were made in the >>>COMPETENT:
morning or afternoon. 1. Sufficiently identified by the persons who made
them at the time of the visits
Unlike the entries in Exhibits Q and R, those of Exhibits 6, 7, 9 and 10, are competent evidence, because, 2. Appearance, details and the fact that they were
in addition to being sufficiently identified by the persons who made them at the time of the visits, made at the time o the visits so recorded
their appearance, details, and the fact that they were made at the time of the visits so recorded,
render them competent corroborative evidence under the rule above quoted from Corpus Juris (22 C.J.,
896) and in accordance with the provision of section 279 of our present Code of Civil Procedure.
Consequently we conclude that the number of visits proven in these proceedings is 26 in Cabugao and
It does not appear sufficiently established that the plaintiff rendered medical service to Leandro
Serrano.
With regard to the appellant's allegation of lack of jurisdiction, the lower court could take judicial notice
of the administration proceedings in which the estate was represented by the defendant and when that
court proceeded to hear this case on appeal from the committee on claims, it must be presumed that in
doing so, taking judicial notice of the legality of the appeal, it acted in the performance of its duty, and
within the scope of its jurisdiction. (Sec. 334, Nos. 14 and 15, Code of Civil Procedure.) And this
presumption not having been rebutted by evidence to the contrary, it sufficiently proves the allegation
in the first paragraph of the complaint relative to the perfection of the present appeal from the
committee on claims.
We agree with the court a quo that the defendant's counterclaims have been sufficiently proven.
Having rendered our decision on the determining points of the case, we deem it unnecessary for the
purposes of this decision to take up the other assignments of error in detail.
It appearing that the plaintiff admitted, and that the trial judge so held without any objection from said
plaintiff, that the latter has already been paid the sum of P1,025 on account of the fees here in question,
and as the sum of P830 as above stated to which he is thus entitled is less than that, said fees have
already been amply satisfied.
Therefore, the judgment appealed from is modified, and defendant is absolved from the complaint, with
costs against the plaintiff. So ordered.
Avanceña, C. J., Johnson, Street, Ostrand, and Villa-Real, JJ., concur.
Separate Opinions
MALCOLM, J., dissenting:
The issue in this case is the reasonable value of the professional services performed by Dr. Gregorio
Figueras for Leandro Serrano. The issue is not as to whether Dr. Gregorio Figueras is criminally guilty of
fabricating the much discussed Exhibit C. With or without Exhibit C, there is sufficient evidence,
including the physician's book of account, which establishes satisfactory the approximate number of
visits made by Doctor Figueras to Mr. Serrano and the proper amount for each visit. (30 Cyc., 1603.) The
total demanded by Doctor Figueras of the estate of Mr. Serrano coming to over P60,000 is grossly
exaggerated. Even the sum of P19,144 granted by trial judge is too high. Yet there is no need to be so
carried away by an enthusiastic desire to condemn unethical and unprofessional practices in making
evidence to establish claims when no such evidence is necessary, as to throw out the action entirely and
concede nothing to Doctor Figueras. Figuring on a basis of approximately two hundred visits to Cabugao,
the home of the deceased, at P20 a visit and nearly the same number of consultation at the office of the
physician at P2 a consultation, and adding a reasonable sum for special service and treatments, and
taking into consideration the professional standing of Doctor Figueras, it is my opinion that the physician
should be allowed P5,000 for his services. That is my vote and to that extent I dissent.
The Lawphil Project - Arellano Law Foundation
AQUINO, J.:
Florencio Odencio and Guiamelon Mama appealed from the decision of the Court of First
Instance of North Cotabato, finding them guilty of two separate crimes of murder, sentencing
each of them to two reclusion perpetuas, and ordering them to pay P12,000 to the heirs of
Prowa Talib and P12,000 to the heirs of Kadir Oranen (Criminal Case No. 5276).
According to the prosecution, at about seven o'clock in the evening of June 29, 1968, while
Prowa Talib (Palua Talib), a forty-year old farmer, was in the yard of his house located at Barrio
Simsiman, Pigcawayan, North Cotabato, handing a pot of rice to his wife, Setie Mamalintao,
who was near the stairs, he was felled down by a volley of shots.
Setie rushed to the aid of her husband. When she looked in the direction where the gunshots
emanated, she saw Guiamelon Mama holding a gun near a coconut tree around six brazas
away. Then, she heard another volley of shots. She saw Florencio Odencio (Poren), also
holding a gun near another coconut tree around ten meters away in the yard of the house of her
neighbor, Daongan Karaing. She noticed that Kadir Oranen, who was nearby, had fallen to the
ground around three arms' length from Daongan's house. Kadir died instantly.
Setie had known for a long time Florencio and Guiamelon who were friends and
neighbors also residing in Barrio Simsiman. Setie and Guiamelon had cultivated adjacent
farmlands.
While Setie was comforting her husband, he allegedly told her that he was going to die. He
directed her to remember what had happened to him and that they had seen Guiamelon Mama Possible motive: stealing of lumber
and Poren armed with guns. Prior to that shooting incident, Prowa Talib had reported to the
barrio captain that Florencio Odencio had stolen his lumber.
The two assailants fled westward. At the time the incident occurred, Japal Rongot was on his
way to Talib's house. He encountered Guiamelon and Joseph Odencio with both of whom he
was well acquainted. He asked Guiamelon why there were gunshots but the latter did not make
any reply. Upon reaching Talib's house, Rongot saw Setie crying and holding Talib on her lap.
Setie told him that Talib was shot by Guiamelon and she pointed to him Oranen's corpse which
was about two arms' length from Talib.
Ngelam Towa (Nilan Tuwa), another neighbor and the uncle of Setie heard, the gunshots on the
occasion in question. He hastened to Talib's house. Setie told him that Guiamelon Mama had
shot Talib. She advised her uncle not to use his flashlight because Guiamelon was still in the
vicinity. Setie also told Towa that Florencio Odencio had shot Oranen. Towa left Talib's house in
order to get assistance from his father-in-law. While crossing the trail his flashlight focussed on
Florencio Odencio with two companions leaving the scene of the crime.
Policemen arrived at Talib's house. Setie informed them that Guiamelon was the gunwielder.
They brought Talib to a medical clinic where he was interrogated by Patrolman Joaquin Sañada PATROLMAN JOAQUIN SANADA!!! TOOK THE DYING
Talib told Sañada that his assailants were Guiamelon, Florencio Odencio and Florencio's DECLARATION OF TALIB
father, Joseph Odencio. Due to the critical condition of Talib (nagaagonto), he was not able to ALSO MADE AN AFFIDAVIT RECITING THE
sign his dying declaration (Exh. B) as taken down by Patrolman Sañada Talib was brought to CIRCUMSTANCES SURROUNDING THE TAKING OF
the hospital. He died on the following day. TALIB'S UNSIGNED ANTEMORTEM STATEMENT
In that unsigned antemortem declaration, Talib revealed that Florencio Odencio suspected
that he and Oranen had masterminded the theft of Joseph Odencio's two carabaos, and
that, on the other hand, Guiamelon suspected Talib of having stolen the carabao of
Damiog, the father-in-law of Guiamelon. It was stated further in the same dying declaration
that Talib had told Patrolman Sañada that he wanted to sign it but that he could not do so
because of the wound in his arm. Talib also articulated his belief that he was going to die
because he could hardly breathe and his wound was painful.
On July 1, 1968 or within forty-eight hours after taking Talib's unsigned antemortem statement,
Sañada executed an affidavit reciting the circumstances surrounding the taking thereof.
Sañada testified in court on Talib's dying declaration.
The autopsy disclosed that Talib sustained eight gunshot wounds in the back or posterior chest
wall. No autopsy was performed on the body of Oranen who, as noted above, died at the scene
of the crime.
On July 1, 1968, a complaint for double murder was filed in the municipal court against
Guiamelon, Florencio Odencio, Joseph Odencio and Angelico Aposaga, Poren's father-in-law.
They waived the second stage of the preliminary investigation. On September 19, 1968, an
information was filed in the Court of First Instance against Guiamelon Florencio Odencio and
Joseph Odencio, The trial court acquitted Joseph and convicted only Florencio and Guiamelon.
In his defense, Florencio, a thirty-two year-old farmer, denied that he shot Talib and that he
had a misunderstanding with Oranen and Talib with both of whom he was acquainted.
Florencio testified that he was in his house when the shooting occurred. He was arrested on the
following day, June 30, 1968. He surmised that he was implicated in the case because he
The other accused, Guiamelon Mama, a thirty-year-old farmer, adopted the same line of
defense. He declared that he was also in his house when Talib was shot; that he had no THE VICTIM WAS A DISTANT RELATIVE OF THE
misunderstanding with Talib, who is his father's brother-in-law, being the brother of his SUSPECT
stepmother, his father's second wife; that he was arrested while he was attending Talib's
funeral, and that he came to know his co-accused Florencio Odencio only in jail.
The accused presented Samuel Jubilan, a Constabularly Sergeant, who testified that he was
TALIB ALLEGEDLY DECLARED THAT HE WAS NOT
present when Patrolman Sañada interrogated Talib and that the latter declared that he was
not able to recognize his assailant because it was dark. Sañada said he did not know of that ABLE TO RECOGNIZE THE ASSAILANT BECAUSE IT
interrogation made by Jubilan. WAS DARK
In disbelieving the alibis of Florencio and Guiamelon, the trial court observed that the accused
were indubitably Identified as the assailants in Talib's dying declarations to his wife and Tc: AGAINST ACCUSED
Patrolman Sañada. Setie Mamalintao in her statement to the police declared that she was able SETIE (TALIB'S WIFE) ALLEGEDLY WAS ABLE TO
to recognize Florencio and Guiamelon because there was a "big torch" in front of her house and
RECOGNIZE THE ACCUSED BECAUSE OF THE BIG
Karaing's house (No. 19, Exh. 1, p. 11, Record).
TORCH IN FRONT OF THEIR HOUSE
The trial court noted that there "was a good amount of lighting in the yard of Prowa Talib
because he was preparing" supper when he was shot and that Setie was able to
recognize the accused because she had been acquainted with them for a long time. As
stated above, two witnesses saw the accused in the vicinity of Talib's house shortly after the
shooting. Therefore, the contention of appellants' counsel de oficio that they had not been
sufficiently Identified as the killers cannot be sustained.
Another contention of counsel de oficio is that the trial court erred in finding that Guiamelon and
Odencio conspired to kill Talib and Oranen. That contention is belied by the evidence.
Guiamelon and Odencio were seen pacing back and forth near Talib's house on the day of the
incident (No. 27, Exh. 1). They shot the two victims in the same place and almost
simultaneously, thus showing a coordination of efforts and community of design.
On leaving the scene of the crime, they proceeded in the same direction (westward). They were
animated by the same motive, which was to liquidate the victims because the latter allegedly
stole the carabaos of the relatives of the accused. The record does not disclose any reason
why Setie Mamalintao and Patrolman Sañada would frame up the appellants.
The manner in which they shot the victims shows treachery. The shooting was not the product
of momentary impulse. There was alevosia because the two malefactors, taking advantage of
the cover of night, stationed themselves in a place where they could shoot the victims with
impunity without any risk to themselves or without exposing themselves to any retaliation since
the victims did not expect to be assaulted at that time and place.
Appellants' counsel further contends that they were convicted on the basis of the wife's
uncorroborated testimony "which is open to suspicion due to inherent improbabilities''
and "motives to falsify the truth". That contention is not correct. Talib's antemortem
statement fortifies the testimony of his widow, an eyewitness. We have stressed that two other
witnesses saw the appellants leaving the scene of the crime.
An unsigned dying declaration may be used as a
Moreover, Talib's dying declaration was sufficiently proven. The rule is that a dying declaration memorandum by the witness who took it down
may be oral or written If oral, the witness, who heard it, may testify thereto without the necessity,
of course, of reproducing exactly the words of the decedent, if he is able to give the substance
thereof. An unsigned dying declaration may be used as a memorandum by the witness who
took it down. (See 5 Moran's Comments on the Rules of Court, 1970 Ed., pp. 315-316.)
We are satisfied that the guilt of the appellants was proven beyond reasonable doubt. As they
were co-conspirators, they are each liable for the two murders. There being no modifying
circumstances concomitant with the commission of the two assassinations, the trial court
properly penalized each murder with reclusion perpetua (Arts. 64[1] and 248, Revised Penal
Code).
The trial court's judgment is affirmed with the sole modification that the two appellants should be
held solidarity liable for the two indemnities of P12,000 each. In the service of the two reclusion
perpetuas, the forty-year limit fixed in article 70 of the Revised Penal Code should be observed.
Costs against the appellants.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio, Concepcion, Jr. and Santos, JJ., concur.
The Lawphil Project - Arellano Law Foundation
This is a petition for review on certiorari of the decision * of respondent Court of Appeals in CA-
G.R. CV Nos. 08397-08398 dated 16 July 1987 affirming with modification the decision of the
Regional Trial Court of Guagua, Pampanga, in favor of private respondents, and its resolution
dated 14 August 1987 denying the motion for reconsideration.
This petition which originated with the Regional Trial Court of Guagua, Pampanga involves two
(2) cases, namely: Civil Case No. G-1190 and Civil Case No. G-1332. 1
Civil Case No. G-1190 is an action for recovery of possession with damages and preliminary
injunction filed by herein petitioners, the heirs of Demetria Lacsa, against Aurelio Songco and
John Doe based on the principal allegations that petitioners are heirs of deceased Demetria
Lacsa who, during her lifetime, was the owner of a certain parcel of land consisting partly of a
fishpond and partly of uncultivated open space, located in Bancal, Guagua, Pampanga,
evidenced by Original Certificate of Title No. RO-1038 (11725); that the principal respondent 2 civil cases
and his predecessor-in-interest who are neither co-owners of the land nor tenants thereof, thru
1. Action for recovery of possession with damages and preliminary
stealth, fraud and other forms of machination, succeeded in occupying or possessing the
fishpond of said parcel of land and caused the open space therein to be cleared for expanded injunction filed by LACSA vs. SONGCO
occupancy thereof, and refused to vacate the same despite petitioner's demands on them to -Lacsas were the owners of a property of land with a pond and
vacate. 2 open space where the Songcos, by stealth, fraud and other forms
of machinations, succeeded in occupying or possessing the
Civil Case No. G-1332 is an action also by herein petitioners against private respondents before fishpond
the same lower court for cancellation of title, ownership with damages and preliminary
injunction, based on the allegations that they are the heirs of Demetria Lacsa who was the 2. Action by the Lacsa's vs. Songcos or cancellation of title,
owner of the land also involved in Civil Case No. G-1190; that the herein private respondents ownership with damages and preliminary injunction because
and their predecessors-in-interest, thru stealth, fraud and other forms of machination, allegedly, INNOCENCIA SONGCO, the predecessors of the
succeeded in occupying or possessing the fishpond of the said parcel of land, and later
respondents, by using forged and simulated documents namely:
abandoned the same but only after the case was filed and after all the fish were transferred to
the adjoining fishpond owned by the private respondents; that on 31 October 1923 and 15 "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE
March 1924, by presenting to the Register of Deeds of Pampanga certain forged and absolutely PARTICION EXTRAJUDICIAL" and
simulated documents, namely: "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE "ESCRITURA DE VENTA ABSOLUTA"
PARTICION EXTRAJUDICIAL" and "ESCRITURA DE VENTA ABSOLUTA", respectively, and Transfer the title to the said property in their name.
by means of false pretenses and misrepresentation, Inocencio Songco, the private respondents'
predecessor-in-interest, succeeded in transferring the title to said property in his name, to the
damage and prejudice of the petitioners; and that a preliminary injunction was necessary to
prevent the private respondents from disposing of said property. 3
DEFENSES
Private respondents denied the material allegations of both complaints and alleged as special 1. Lack of COA
and affirmative defenses, petitioners' lack of cause of action, for the reason that Original 2. "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE
Certificate of Title No. RO-1038 (11725) was merely a reconstituted copy issued in April 1983 PARTICION EXTRA-JUDICIAL" was entered by the heirs of
upon petitioners' expedient claim that the owner's duplicate copy thereof had been missing Lacsa with Guevarra and Limpin to cancel the title of Lacsa
when the truth of the matter was that OCT No. RO-1038 (11725) in the name of Demetria which the respondents alleged was missing
Lacsa, had long been cancelled and superseded by TCT No. 794 in the name of Alberta
Guevarra and Juan Limpin by virtue of the document entitled "TRADUCCION AL CASTELLANO
DE LA ESCRITURA DE PARTICION EXTRA-JUDICIAL" entered into by the heirs of Demetria
Lacsa; that the latter TCT was in turn superseded by TCT No. 929 issued in the name of
Inocencio Songco (father of private respondents) by virtue of a document entitled "ESCRITURA
DE VENTA ABSOLUTA" executed by spouses Juan Limpin and Alberta Guevarra in favor of
said Inocencio Songo. 4
On the basis of this joint stipulation of facts, the lower court held that:
. . . the fishpond in question was originally owned by Demetria Lacsa under Original Certificate of Title
No. 11725. After Demetria Lacsa died her two daughters Alberta Guevarra and Ambrocia Guevarra with
their respective husbands Juan Limpin and Damaso Cabais entered into an extrajudicial partition of the
properties left by Demetria Lacsa under the document "Traduccion Al Castellano de la Escritura de
Partition Extra-judicial" dated April 7, 1923 (Exhibits "3","3-A" and "3-B") wherein the fishpond in
question was adjudicated to Alberta Guevarra and which deed was duly registered in the Office of the
Registry of Deeds of Pampanga as evidenced by the certification of the Deputy Register of Deeds
marked as Exhibit "3-C". Aside from the "Traduccion Al Castellano de la Escritura de Particion
Extrajudicial" written in the Spanish language, the spouses Alberta Guevarra and Juan Limpin and the
spouses Ambrosia Guevarra and Damaso Cabais executed on April 7, 1923, another deed of partition
in the Pampango dialect marked as Exhibit "3-D" "wherein the fishpond in question was adjudicated to
Alberta Guevarra. As a consequence, Original Certificate of Title No. 794 (Exhibit "4") was issued to
spouses Alberta Guevarra and Juan Limpin. On January 20, 1924, the spouses Juan Limpin and Alberta DEED OF ABSOLUTE SALE!!!!
Guevarra sold the fishpond in question to Inocencio Songco under the deed entitled "Escritura de Venta
Absoluta" (Exhibits "7" and "7-A") which was duly registered in the Office of the Registry of Deeds of
Pampanga as evidenced by the certification of the Deputy Register of Deeds marked Exhibit "7-B". As a
result of the sale, Transfer Certificate of Title No. 794 (Exhibit "4") in the name of the spouses Alberta
Guevarra and Juan Limpin was cancelled by the Office of the Registry of Deeds of Pampanga and
Transfer Certificate of Title No. 929 was issued to Inocencio
Songco." 7
The lower court thus held that the fishpond in question belongs to the private respondents,
having been inherited by them from their deceased father Inocencio Songco. 8
The dispositive portion of the judgment in favor of private respondents reads:
WHEREFORE, JUDGMENT is hereby rendered
In Civil Case No. G - 1190
(A) Ordering the dismissal of the complaint in Civil Case No. G-1190;
In Civil Case No. G-1332
(B) Ordering the dismissal of the complaint in Civil Case No. G-1332;
In Both Civil Case No. G-1190 and Civil Case No. G-1332
(C) Ordering the cancellation of Original Certificate of Title No. RO-1038 (11725) in the name of Demetria
Lacsa;
(D) Ordering the plaintiffs to restore possession of the fishpond in question located in Bancal, Guagua,
Pampanga, to the defendants (sic);
(E) Ordering the plaintiffs to pay jointly and severally, the defendants the sum of Twenty Five Thousand
(P25,000.00) Pesos, Philippine Currency, as and for moral damages;
(F) Ordering the plaintiffs to pay jointly and severally, the defendants the sum of Twenty Five Thousand
(P25,000.00) Pesos, Philippine Currency, as and for exemplary damages;
(G) Ordering the plaintiffs to pay jointly and severally, the defendants the sum of Ten Thousand
(P10,000.00) Pesos, Philippine Currency, as attorney's fees;
(H) Costs against the plaintiffs.
SO ORDERED. 9
The Court of Appeals rendered a decision in the appealed case, the dispositive portion of which
reads:
WHEREFORE, the decision appealed from is hereby AFFIRMED with the modification that appellants are
not liable for moral and exemplary damages as well as attorney's fees.
SO ORDERED. 11
Petitioners flied a motion for reconsideration with the Court of Appeals but the same was denied
in its resolution dated 14 August 1987. 12 Hence, this petition.
Petitioners contend that the Court of Appeals wrongfully applied the "ancient document rule"
provided in Sec. 22, Rule 132 of the Rules of Court. 14 The rule states that:
Sec. 22. Evidence of execution not necessary.— Were a private writing is more than thirty years
It is submitted by petitioners that under this rule, for a document to be classified as an "ancient
document",
*it must not only be at least thirty (30) years old
*but it must also be found in the proper custody and
*is unblemished by alterations and is otherwise free from suspicion. 15 Thus, according to
petitioners, exhibits "3" and "7", entitled "Traduccion Al Castellano de la Escritura de Particion
Extrajudicial" and "Escritura de Venta Absoluta", respectively, can not qualify under the
foregoing rule, for the reason that since the "first pages" of said documents do not bear the
signatures of the alleged parties thereto, this constitutes an indelible blemish that can beget
unlimited alterations. 16
We are not persuaded by the contention. Under the "ancient document rule," for a private
ancient document to be exempt from proof of due execution and authenticity, it is not enough
that it be more than thirty (30) years old; it is also necessary that the following requirements are
fulfilled; (1) that it is produced from a custody in which it would naturally be found if genuine; and
(2) that it is unblemished by any alteration or circumstances of suspicion. 17
The first document, Exhibit "3", entitled 'Traduccion Al Castellano de la Escritura de Particion
Extrajudicial" was executed on 7 April 1923 whereas the second document, exhibit "7", entitled
"Escritura de Venta Absoluta" was executed on 20 January 1924. These documents are,
therefore, more than thirty (30) years old. Both copies of the aforementioned documents were
certified as exact copies of the original on file with the Office of the Register of Deeds of
Pampanga, by the Deputy Register of Deeds. There is a further certification with regard to the
Pampango translation of the document of extrajudicial partition which was issued by the
Archives division, Bureau of Records Management of the Department of General Services. 18
Documents which affect real property, in order that they may bind third parties, must be
recorded with the appropriate Register of Deeds. The documents in question, being certified as
copies of originals on file with the Register of Deeds of Pampanga, can be said to be found in
the proper custody. Clearly, therefore, the first two (2) requirements of the "ancient document
rule" were met.
As to the last requirement that the document must on its face appear to be genuine, petitioners
did not present any conclusive evidence to support their allegation of falsification of the said
documents. They merely alluded to the fact that the lack of signatures on the first two (2)
pages could have easily led to their substitution. We cannot uphold this surmise absent any
proof whatsoever. As held in one case, a contract apparently honest and lawful on its face must
be treated as such and one who assails the genuineness of such contract must present
conclusive evidence of falsification. 19
Moreover, the last requirement of the "ancient document rule" that a document must be
unblemished by any alteration or circumstances of suspicion refers to the extrinsic quality of the
document itself. The lack of signatures on the first pages, therefore, absent any alterations
or circumstances of suspicion cannot be held to detract from the fact that the documents
in question, which were certified as copied of the originals on file with the Register of
Deeds of Pampanga, are genuine and free from any blemish or circumstances of
suspicion.
The documents in question are "ancient documents" as envisioned in Sec. 22 of Rule 132 of the
Rules of Court. Further proof of their due execution and authenticity is no longer required.
Having held that the documents in question are private writings which are more than thirty (30)
years old, come from the proper repository thereof, and are unblemished by any alteration or
circumstances of suspicion, there is no further need for these documents to fulfill the
requirements of the 1903 Notarial Law. Hence, the other contentions of the petitioners that the
documents do not fulfill the mandatory requirements of the Notarial Law 20 and that the proper
person or public official was not presented to testify on his certification of the documents in
question, 21 need not be resolved as they would no longer serve any purpose.
WHEREFORE, the Petition is DENIED. The appealed decision of the Court of Appeals is
AFFIRMED. Costs against the petitioners.
SO ORDERED.
Herrera, Sarmiento and Regalado, JJ., concur.
Paras, J., took no part.
Footnotes
* Penned by Justice Gloria C. Paras, with the concurrence of Justices Jose C. Campos, Jr. and Conrado
T. Limcaoco.
1 Rollo, p. 57.
2 Rollo, p. 57.
3 Rollo, p. 58.
4 Rollo, pp. 57-58.
5 Rollo, p. 59.
6 Rollo, p. 59.
7 Rollo, p. 60.
8 Ibid.
9 Rollo, pp. 60-61.
10 Rollo, pp. 61-62.
11 Rollo, p. 65.
12 Rollo, p. 8.
13 Rollo, p. 8.
14 Rollo, p. 8.
15 Rollo, pp. 8-9.
16 Rollo, p. 9.
17 Francisco, Vicente J., The Revised Rules of Court in the Philippines. Volume III, Part II, 1973 Edition,
p. 432.
18 Exhibit "3-D", Original Folder of Exhibits for the Plaintiffs and Defendants.
19 Dy vs. Sacay, G.R. Nos. 78535-36, September 19, 1988, 165 SCRA 473.
20 Rollo, p. 9.
21 Rollo, p. 10.
The Lawphil Project - Arellano Law Foundation
THIRD DIVISION
DE C I S I O N
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the
September 12, 2003 Decision[1] of the Court of Appeals (CA) and its Resolution[2] dated March 24, 2004 in CA-G.R.
SP No. 72032.
On December 19, 1995, Ma. Lourdes A. Teodoro (respondent) initially filed with the Regional Trial Court
(RTC) of Virac, Catanduanes an application for land registration of two parcels of land located at Barangay San
Pedro, Virac, Catanduanes. The lots, with an aggregate area of 284 square meters, are denominated as Lot Nos.
525-A and 525-B, Csd.-05-010483-D of the Virac Cadastre. Respondent alleged that, with the exception of the
commercial building constructed thereon, she purchased the subject lots from her father, Pacifico Arcilla (Pacifico),
as shown by a Deed of Sale[3] dated December 9, 1966, and that, prior thereto, Pacifico acquired the said lots by
virtue of the partition of the estate of his father, Jose Arcilla evidenced by a document entitled Extrajudicial
Settlement of Estate.[4] Respondent also presented as evidence an Affidavit of Quit-Claim[5] in favor of Pacifico,
executed by herein petitioners as Heirs of Vicente Arcilla (Vicente), brother of Pacifico.
On February 7, 1996, the case was transferred to the Municipal Trial Court (MTC) of Virac, Catanduanes in
view of the expanded jurisdiction of said court as provided under Republic Act No. 7691.[6]
In their Opposition dated August 19, 1996, petitioners contended that they are the owners pro-indiviso of
On March 20, 1998, herein respondent filed a Motion for Admission[7] contending that through oversight
and inadvertence she failed to include in her application, the verification and certificate against forum shopping
required by Supreme Court (SC) Revised Circular No. 28-91 in relation to SC Administrative Circular No. 04-94.
Petitioners filed a Motion to Dismiss Application[8] on the ground that respondent should have filed the
certificate against forum shopping simultaneously with the petition for land registration which is a mandatory
requirement of SC Administrative Circular No. 04-94 and that any violation of the said Circular shall be a cause for
the dismissal of the application upon motion and after hearing.
Opposing the motion to dismiss, respondents asserted that the petitioners' Motion to Dismiss Application
was filed out of time; respondent's failure to comply with SC Administrative Circular No. 04-94 was not willful,
deliberate or intentional; and the Motion to Dismiss was deemed waived for failure of petitioners to file the same
during the earlier stages of the proceedings.
On July 19, 1999, the MTC issued an Order[9] denying petitioners' Motion to Dismiss Application.
On June 25, 2001, the MTC rendered a Decision[10] the dispositive portion of which reads as follows:
NOW THEREFORE, and considering all the above premises, the Court finds and so holds that Applicant
MA. LOURDES A. TEODORO, having sufficient title over this land applied for hereby renders judgment,
which should be, as it is hereby CONFIRMED and REGISTERED in her name.
IT IS SO ORDERED.[11]
Herein petitioners then filed an appeal with the Regional Trial Court of Virac, Catanduanes. In its
Decision[12] dated February 22, 2002, the RTC, Branch 43, of Virac, Catanduanes dismissed the appeal for lack of
merit and affirmed in toto the Decision of the MTC. Petitioners filed a Motion for Reconsideration but it was
denied by the RTC in its Order[13] of July 22, 2002.
Aggrieved by the RTC Decision, petitioners filed a Petition for Review[14] with the CA. On September 12,
2003, the CA promulgated its presently assailed Decision dismissing the Petition. Petitioners filed a Motion for
Reconsideration but the same was denied by the CA in its Resolution[15] dated March 24, 2004.
A. The Honorable Court of Appeals did not rule in accordance with the prevailing rules and
jurisprudence when it held that the belated filing, after more than two (2) years and three (3) months from
the initial application for land registration, of a sworn certification against forum shopping in Respondent's
application for land registration, constituted substantial compliance with SC Admin. Circular No. 04 -94.
B. The Honorable Court of Appeals did not rule in accordance with prevailing laws and jurisprudence
when it held that the certification of non-forum shopping subsequently submitted by respondent does not
require a certification from an officer of the foreign service of the Philippines as provided under Section 24,
Rule 132 of the Rules of Court.
C. The Honorable Court of Appeals did not rule in accordance with prevailing laws and jurisprudence
when it upheld the decisions of the Regional Trial Court (RTC) and Municipal Trial Court (MTC) that the lots
in question were not really owned by Petitioners' father Vicente S. Arcilla, contrary to the evidence
presented by both parties.
D. The Honorable Court of Appeals did not rule in accordance with prevailing laws and jurisprudence
when it sustained the decision of the RTC which affirmed in toto the decision of the MTC and in not
reversing the same and rendering judgment in favor of Petitioners.[16]
In their Memorandum, petitioners further raise the following issue:
Whether or not the Supreme Court may inquire into conclusions of facts made by the Honorable Court of
Appeals in the instant Petition.[17]
The CA ruled correctly when it held that the belated filing of a sworn certification of non-forum shopping was
substantial compliance with SC Administrative Circular No. 04-94.
Under the attendant circumstances in the present case, the Court cannot uphold petitioners’ contention
that respondent's delay of more than two years and three months in filing the required certificate of non-forum
shopping may not be considered substantial compliance with the requirements of SC Administrative Circular No.
04-94 and Section 5, Rule 7 of the Rules of Court; that respondent's reasons of oversight and inadvertence do not
constitute a justifiable circumstance that could excuse her non-compliance with the mandatory requirements of
the above-mentioned Circular and Rule; that subsequent compliance with the requirement does not serve as an
excuse for a party's failure to comply in the first instance.
Sec. 5. Certification against forum shopping. – The plaintiff or principal party shall certify under
oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification
annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action
or filed any claim involving the same issues in any court, tribunal or quasi -judicial agency and, to the best of
his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or
claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the
same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days
therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false
certification or non-compliance with any of the undertakings therein shall constitute indirect
contempt of court, without prejudice to the corresponding administrative and criminal actions. If the
acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same
shall be ground for summary dismissal with prejudice and shall constitute direct contempt as well as a
cause for administrative sanctions.
This Rule was preceded by Circular No. 28-91, which originally required the certification of non-forum shopping for
petitions filed with this Court and the CA; and SC Administrative Circular No. 04-94, which extended the
certification requirement for civil complaints and other initiatory pleadings filed in all courts and other agencies.
In Gabionza v. Court of Appeals,[18] this Court has held that Circular No. 28-91 was designed to serve as an
instrument to promote and facilitate the orderly administration of justice and should not be interpreted with such
absolute literalness as to subvert its own ultimate and legitimate objective or the goal of all rules of procedure –
which is to achieve substantial justice as expeditiously as possible.[19] The same guideline still applies in
interpreting what is now Section 5, Rule 7 of the 1997 Rules of Civil Procedure.[20]
The Court is fully aware that procedural rules are not to be belittled or simply disregarded, for these
prescribed procedures insure an orderly and speedy administration of justice.[21] However, it is equally settled
that litigation is not merely a game of technicalities.[22] Rules of procedure should be viewed as mere tools
designed to facilitate the attainment of justice.[23] Their strict and rigid application, which would result in
technicalities that tend to frustrate rather than promote substantial justice, must always be eschewed.[24] Even
the Rules of Court reflect this principle.[25]
Moreover, the emerging trend in our jurisprudence is to afford every party-litigant the amplest
opportunity for the proper and just determination of his cause free from the constraints of technicalities.[26]
It must be kept in mind that while the requirement of the certificate of non-forum shopping is
mandatory, nonetheless the requirement must not be interpreted too literally and thus defeat the objective of
preventing the undesirable practice of forum shopping.[27] In Uy v. Land Bank of the Philippines,[28] the Court
ruled, thus:
The admission of the petition after the belated filing of the certification, therefore, is not
unprecedented. In those cases where the Court excused non-compliance with the requirements, there were
special circumstances or compelling reasons making the strict application of the rule clearly unjustified. In
the case at bar, the apparent merits of the substantive aspects of the case should be deemed as a “special
circumstance” or “compelling reason” for the reinstatement of the petition. x x x [29]
Citing De Guia v. De Guia[30] the Court, in Estribillo v. Department of Agrarian Reform,[31] held that even if
there was complete non-compliance with the rule on certification against forum-shopping, the Court may still
proceed to decide the case on the merits pursuant to its inherent power to suspend its own rules on grounds of
substantial justice and apparent merit of the case.
In the instant case, the Court finds that the lower courts did not commit any error in proceeding to decide
the case on the merits, as herein respondent was able to submit a certification of non-forum shopping. More
importantly, the apparent merit of the substantive aspect of the petition for land registration filed by respondent
with the MTC coupled with the showing that she had no intention to violate the Rules with impunity, as she was
the one who invited the attention of the court to the inadvertence committed by her counsel, should be deemed
as special circumstances or compelling reasons to decide the case on the merits.
In addition, considering that a dismissal contemplated under Rule 7, Section 5 of the Rules of Court is, as a
rule, a dismissal without prejudice, and since there is no showing that respondent is guilty of forum shopping, to
dismiss respondent's petition for registration would entail a tedious process of re-filing the petition, requiring the
parties to re-submit the pleadings which they have already filed with the trial court, and conducting anew hearings
which have already been done, not to mention the expenses that will be incurred by the parties in re-filing of
pleadings and in the re-conduct of hearings. These would not be in keeping with the judicial policy of just, speedy
and inexpensive disposition of every action and proceeding.[32]
The certification of non-forum shopping executed in a foreign country is not covered by Section 24, Rule 132 of
the Rules of Court.
There is no merit to petitioners’ contentions that the verification and certification subsequently submitted
by respondent did not state the country or city where the notary public exercised her notarial functions; and that
the MTC simply concluded, without any basis, that said notary public was from Maryland, USA; that even granting
that the verification and certification of non-forum shopping were notarized in the USA, the same may not be
deemed admissible for any purpose in the Philippines for failure to comply with the requirement of Section 24,
Rule 132 of the Rules of Court that the notarized document must be accompanied by a certificate issued by an
officer in the foreign service of the Philippines who is stationed in the country in which a record of the subject
document is kept, proving or authenticating that the person who notarized the document is indeed authorized to
do so and has custody of the same.
The Court agrees with the disquisition of the CA, to wit:
From the foregoing provision [referring to Section 24, Rule 132, Rules of Court], it can be gathered
that it does not include documents acknowledged before [a] notary public abroad. For foreign public
documents to be admissible for any purpose here in our courts, the same must be certified by any officer of
the Philippine legation stationed in the country where the documents could be found or had been executed.
However, after judicious studies of the rule, Sec. 24, Rule 132 of the 1997 Rules of Court basically pertains to
written official acts, or records of the official of the sovereign authority, official bodies and tribunals, and
public officers, whether of the Philippines, or of a foreign country. This is so, as Sec. 24, Rule 132 explicitly
refers only to paragraph (a) of Sec. 19. If the rule comprehends to cover notarial documents, the rule could
have included the same. Thus, petitioners -oppositors' contention that the certificate of forum shopping that
was submitted was defective, as it did not bear the certification provided under Sec. 24, Rule 132 of the
The ruling of the Court in Lopez v. Court of Appeals,[34] cited by petitioners, is inapplicable to the present
case because the Rules of Evidence which were in effect at that time were the old Rules prior to their
amendment in 1989. The rule applied in Lopez, which was decided prior to the effectivity of the amended
Rules of Evidence,[35] was Section 25, Rule 132, to wit:
Sec. 25. Proof of public or official record – An official record or an entry therein, when admissible
for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in
a foreign country, the certificate may be made by a secretary of embassy or legation, consul general,
consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in
the foreign country in which the record is kept, and authenticated by the seal of his office . (Emphasis
supplied)
When the Rules of Evidence were amended in 1989, Section 25, Rule 132 became Section 24, Rule 132; and the
amendment consisted in the deletion of the introductory phrase “An official record or an entry therein,” which was
substituted by the phrase “The record of public documents referred to in paragraph (a) of Section 19.”
Thus, Section 24, Rule 132 of the Rules of Court now reads as follows:
Sec. 24. Proof of official record. - The record of public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a
copy attested by the officer having legal custody of the record, or by his deputy, and accompanied, if the
record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which
the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or
legation, consul general, consul, vice consul or consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his
office. (Emphasis supplied)
Sec. 19. Classes of documents. - For the purpose of their presentation in evidence, documents are
either public or private.
(a) The written official acts or records of the official acts of the sovereign authority, official
bodies and tribunals, and public officers, whether of the Philippines or of a foreign country;
(b) Documents acknowledged before a notary public except last wills and testaments; and
(c) Public records, kept in the Philippines, of private documents required by law to be entered
therein.
It cannot be overemphasized that the required certification of an officer in the foreign service under Section
24 refers only to the documents enumerated in Section 19(a), to wit: written official acts or records of the official
acts of the sovereign authority, official bodies and tribunals, and public officers of the Philippines or of a foreign
country. The Court agrees with the CA that had the Court intended to include notarial documents as one of the
public documents contemplated by the provisions of Section 24, it should not have specified only the documents
referred to under paragraph (a) of Section 19.
In Lopez, the requirements of then Section 25, Rule 132 were made applicable to all public or official records
without any distinction because the old rule did not distinguish. However, in the present rule, it is clear
under Section 24, Rule 132 that its provisions shall be made applicable only to the documents referred to
The CA did not err in sustaining the findings of fact and conclusion of law of the MTC and the RTC.
Settled is the rule that the trial court’s findings of fact, especially when affirmed by the CA, are generally
binding and conclusive upon this Court.[36] There are recognized exceptions to this rule, among which are: (1) the
conclusion is grounded on speculations, surmises or conjectures; (2) the inference is manifestly mistaken, absurd
or impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5)
the findings of fact are conflicting; (6) there is no citation of specific evidence on which the factual findings are
based; (7) the finding of absence of facts is contradicted by the presence of evidence on record; (8) the findings of
the CA are contrary to the findings of the trial court; (9) the CA manifestly overlooked certain relevant and
undisputed facts that, if properly considered, would justify a different conclusion; (10) the findings of the CA are
beyond the issues of the case; and (11) such findings are contrary to the admissions of both parties.[37] However,
petitioners failed to show that any of the exceptions is present in the instant case to warrant a review of the
findings of fact of the lower courts.
Petitioners insist that the documents which were presented in evidence by respondent to prove her
ownership of the subject lot are rife with defects and inconsistencies. Petitioners contend that the subject lot
should not have been included in the Extrajudicial Settlement of the Estate of Jose Arcilla, because he was no
longer the owner of the said property at the time of said settlement; the Deed of Sale should be declared null and
void because the seller, Pacifico Arcilla, was not the owner of the subject lands at the time the said Deed was
executed; the Affidavit of Quitclaim is not valid and has no force and effect considering that the document
indicates that the signatures of petitioners were affixed in different places, none of which is in Virac, Catanduanes
where they supposedly acknowledged said document.
The only evidence of petitioners to prove their claim that the disputed property was sold by Jose Arcilla to
Manuel Sarmiento in 1908 is a single Tax Declaration in the name of the latter, with a notation that the property
was acquired by purchase.
The Court agrees with the CA in its finding that petitioners failed to present any substantial evidence, such
as a deed of sale, to prove their claim that their predecessor, Vicente Arcilla, bought the disputed property from
Sarmiento. Petitioners were only able to present tax declarations in Vicente's name to prove their allegation that
Vicente became the owner of the subject property. The tax declarations presented in evidence by petitioners are
not supported by any other substantial proofs.
The Court has ruled time and again that tax declarations do not prove ownership but are at best an indicium
of claims of ownership.[38] Payment of taxes is not proof of ownership, any more than indicating possession in
the concept of an owner.[39] Neither a tax receipt nor a declaration of ownership for taxation purposes is
evidence of ownership or of the right to possess realty when not supported by other effective proofs.[40]
In addition, the Court agrees with the CA when it held that if Vicente, in fact, owned the disputed
properties, his widow, Josefa, would not have agreed to include said lots among those partitioned in the
Extrajudicial Settlement of the Estate of Jose.
On the other hand, respondent's claim of ownership is not only backed up by tax declarations but also by
other pieces of evidence such as the subject Extrajudicial Settlement, Affidavit of Quitclaim, and Deed of Sale.
Petitioners question the validity of the above-mentioned documents. However, as the CA, RTC and MTC
found, these documents are all notarized. It is settled that a notarized document is executed to lend truth to the
statements contained therein and to the authenticity of the signatures.[41] Notarized documents enjoy the
presumption of regularity which can be overturned only by clear and convincing evidence.[42]
Petitioners' bare denials of the contents of the subject documents will not suffice to overcome the
presumption of their regularity considering that they are all notarized. To overthrow such presumption of
regularity, the countervailing evidence must be clear, convincing and more than merely preponderant, which
petitioners failed to present.[43]
An examination of the subject Extrajudicial Settlement of Estate clearly shows that the disputed lot forms
part of the properties adjudicated in favor of Pacifico Arcilla, respondent’s predecessor-in-interest.
Petitioners posit that they are not bound by the subject Extrajudicial Settlement because they did not
participate in nor did they sign the document evidencing such settlement and that their mother who signed on
their behalf was not, in fact, authorized to do so. However, the Court agrees with the ruling of the RTC that the
Extrajudicial Settlement is a public document, the same having been notarized; that such document is entitled to
full faith and credit in the absence of competent evidence showing that its execution was tainted with defects and
irregularities which would warrant a declaration of nullity; that in the absence of evidence showing that the person
who signed in behalf of herein petitioners was, in fact, not authorized to do so, the presumption that she had the
authority, as stated in the Extrajudicial Settlement, remains undisturbed.
Moreover, petitioners' execution of the subject Affidavit of Quitclaim is proof that they have ratified the
contents of the disputed Extrajudicial Settlement.
Petitioners' claim that the Affidavit of Quitclaim is null and void on the ground that the signatories thereto
are not residents of Virac, Catanduanes and that they affixed their signature in places other than Virac,
Catanduanes where they supposedly acknowledged the said document, is not persuasive. The Court finds no error
in the finding of the MTC, as affirmed by the CA, that the execution of the subject Affidavit of Quitclaim or the
signatures of the affiants appearing therein were never contested nor raised as an issue and that petitioner Sarah
Arcilla herself acknowledged her own signature in the said Affidavit.
In any event, the law does not require that parties to a document notarized by a notary public should be
residents of the place where the said document is acknowledged or that they affix their signature in the presence
of the notary public. What is necessary is that the persons who signed a notarized document are the very same
persons who executed and personally appeared before the notary public in order to attest to the contents and
truth of what are stated therein.[44]
In the instant case, it is established that, with the exception of petitioner Rene Arcilla, all of herein
petitioners, including their now deceased mother Josefa and sister Nora, executed and personally acknowledged
before the notary public the subject Affidavit of Quitclaim. Hence, aside from Rene, the said Affidavit of Quitclaim
is valid and binding on all the petitioners.
With respect to Rene, petitioner Oscar Arcilla, acting as his attorney-in-fact, signed the document on the
former’s behalf. However, settled is the rule that:
A member of the bar who performs an act as a notary public should not notarize a document
unless the persons who signed the same are the very same persons who executed and personally appeared
before him. The acts of the affiants cannot be delegated to anyone for what are stated therein are facts of
which they have personal knowledge. They should swear to the document personally and not through any
representative. Otherwise, their representative’s name should appear in the said documents as the one who
executed the same. That is the only time the representative can affix his signature and personally appear
before the notary public for notarization of the said document. Simply put, the party or parties who
executed the instrument must be the ones to personally appear before the notary public to acknowledge
the document.[45]
Thus, the herein subject Affidavit of Quitclaim may not be binding on Rene. Nonetheless, with or without Rene’s
participation in the quitclaim, respondent’s ownership of the subject lots has been established by preponderance
of evidence, as unanimously found by the MTC, the RTC and the CA.
Finally, petitioners' physical occupation of the commercial building which they erected on the disputed
property does not necessarily prove their ownership of the subject lots.
ownership and possession are two entirely different legal concepts. Just as possession is not a definite proof
of ownership, neither is non-possession inconsistent with ownership. The first paragraph of Article 1498 of
the Civil Code states that when the sale is made through a public instrument, the execution thereof shall be
equivalent to the delivery of the thing which is the object of the contract, if from the deed the contrary does
not appear or cannot clearly be inferred. Possession, along with ownership, is transferred to the vendee by
virtue of the notarized deed of conveyance. Thus, in light of the circumstances of the present case, it is of
no legal consequence that petitioner did not take actual possession or occupation of the disputed lot after
the execution of the deed of sale in her favor because she was already able to perfect and complete her
ownership of and title over the subject property.[46] (Emphasis supplied)
The Extrajudicial Settlement of Estate in favor of Pacifico, respondent’s predecessor-in-interest, the Affidavit of
Quitclaim and the Deed of Sale in favor of respondent establish respondent’s ownership over the disputed
property.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated September 12, 2003 and
its Resolution of March 24, 2004 in CA-G.R. SP No. 72032 are AFFIRMED.
SO ORDERED.
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
RUBEN T. REYES
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.
CONSUELO YNARES-SANTIAGO
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it is hereby
certified that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
[1] Penned by Justice Buenaventura J. Guerrero with the concurrence of Justices Andres B. Reyes, Jr.
and Regalado E. Maambong; rollo, p. 8.
[2] Id. at 95.
[3] Annex “I” to Petition, CA rollo, p. 114
[4] Annex “H” to Petition, id. at 109.
[5] Annex “J” to Petition, id. at 115.
[6] Entitled: An Act Expanding the Jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts
and Municipal Circuit Trial Courts , Amending for the Purpose Batas Pambansa Blg. 129, Otherwise Known as the
“Judiciary Reorganization Act of 1980.”
[7] Annex “D” to Petition, CA rollo, p. 99.
[8] Annex “E” to Petition, id. at 102.
[9] Annex “G” to Petition, id. at 107.
[10] Annex “A” to Petition, id. at 73-87.
[11] Id. at 87.
[12] Annex “B” to Petition, id. at 88-97.
[13] Annex “C” to Petition, id. at 98.
[14] Id. at 11.
[15] Id. at 296.
[16] Rollo, pp. 35-36.
[17] Id. at 237-238.
[18] Gabionza v. Court of Appeals, G.R. No. 112547, July 18, 1994, 234 SCRA 192, 198.
[19] Manuel v. Galvez, G.R. No. 147394, August 11, 2004, 436 SCRA 96, 110.
[20] Estribillo v. Department of Agrarian Reform, G.R. No. 159674, June 30, 2006, 494 SCRA 218,
233-234.
[21] Barnes v. Padilla, G.R. No. 160753, June 28, 2005, 461 SCRA 533,538 citing Ginete v. Court of
Appeals, G.R. No. 127596, September 24, 1988, 292 SCRA 38 and Sanchez v. Court of Appeals, G.R. No. 152766,
June 20, 2003, 404 SCRA 540.
[22] Barnes v. Padilla, supra.
[23] Barnes v. Padilla, supra at 541
[24] Id.
[25] Id.
[26] Anadon v. Herrera, G.R. No. 159153, July 9, 2007, 527 SCRA 90, 96-97; Villena v. Rupisan, G.R. No.
167620, April 4, 2007, 520 SCRA 346, 361.
[27] Varorient Shipping Co., Inc. v. National Labor Relations Commission, G.R. No. 164940, November 28,
2007, 539 SCRA 131, 140.
[28] G.R. No. 136100, July 24, 2000, 336 SCRA 419.
[29] Id. at 429.
[30] G.R. No. 135384, April 4, 2001, 356 SCRA 287, 294-295.
[31] Supra note 18.
[32] See Rule 1, Section 6 of the Rules of Court.
Parel v. Prudencio
F: Parel was kidnapped, allegedly on the orders of the husband of his lover…
of this Court), with Associate Justices Pedro A. Ramirez and Bernardo LL. Salas concurring. Rollo, pp.
93-111.
7 Rollo, p. 169.
8 The date of this Order is not available in the records of the case at bar.
9 Penned by Associate Justice Edgardo P. Cruz, with Associate Justices Ramon Mabutas, Jr. and Roberto
A. Barrios, concurring.
10 Penned by Associate Justice Antonio T. Carpio, with Chief Justice Hilario Davide and Associate Justices
animals.
Industrial fruits are those produced by lands of any kind through cultivation or labor.
Civil fruits are the rents of buildings, the price of leases of lands and other property and the amount of
perpetual or life annuities or other similar income.
14
Art. 1657. The lessee is obliged:
(1) To pay the price of the lease according to the terms stipulated;
(2) To use the thing leased as a diligent father of a family, devoting it to the use stipulated; and in the
absence of stipulation, to that which may be inferred from the nature of the thing leased, according to
the custom of the place;
(3) To pay the expenses for the deed of lease.
15
Art. 1240. Payment shall be made to the person in whose favor the obligation has been constituted, or
his successor in interest, or any person authorized to receive it.
16
Art. 1673. The lessor may judicially eject the lessee for any of the following causes:
(1) When the period agreed upon, or that which is fixed for the duration of lease under Articles 1682
and 1687, has expired;
(2) Lack of payment of the price stipulated;
(3) Violation of any of the conditions agreed upon in the contract;
(4) When the lessee devotes the thing leased to any use or service not stipulated which causes the
deterioration thereof; or if he does not observe the requirement in No. 2 of Article 1657, as regards the
use thereof.
The ejectment of tenants of agricultural lands is governed by special laws.
17 Rollo, p. 92.
18 Id. at 52.
19 Philippine National Bank v. Court of Appeals, 338 Phil. 795, 822 (1997).
20 Rollo, p. 53.
21
Id. at 175.
22 Petitioner's Memorandum, rollo, p. 177.
23 Relevant provisions of Rule 70 reads:
Section 16. Resolving defense of ownership. - When the defendant raises the defense of ownership in
his pleadings and the question of possession cannot be resolved without deciding the issue of
ownership, the issue of ownership shall be resolved only to determine the issue of possession.
SEC. 18. Judgment conclusive only on possession; not conclusive in actions involving title or ownership.-
Thejudgment rendered in an action for forcible entry or detainer shall be conclusive with respect to the
possession only and shall in no wise bind the title or affect the ownership of the land or building. Such
judgment shall not bar an action between the same parties respecting title to the land or building.
The judgment or final order shall be appealable to the appropriate Regional Trial Court which shall
decide the same on the basis of the entire record of the proceedings had in the court of origin and such
memoranda and/or briefs as may be submitted by the parties or required by the Regional Trial Court.
24 The other kind of ejectment proceeding is that of forcible entry, and is governed by the same Rule 70
109078, 26 December 1995, 251 SCRA 509, 513; Tuazon v. Reyes, 48 Phil. 844, 847 (1926); Demontaño v.
Court of Appeals, G.R. No. L-30764, 31 January 1978, 81 SCRA 287; Director of Lands v. Martin, 84 Phil.
140, 143 (1949).
33
Jison v. Court of Appeals, 350 Phil. 138, 173 (1998).
Agcaoili and Sergio L. Pestaño of the former 15th Division, Rollo, pp. 75-90.
6 The original action was a petition for letters of administration of the intestate estates of Guillermo
an illegitimate child, not a natural child, since she was born of parents who at the time of conception
were disqualified to marry each other.
20
Rollo, p. 920.
21 Law in effect at the time of the death of Guillermo Rustia.
22 Filed before the then Juvenile and Domestic Relations Court of Manila.
23 Rollo, p. 1149.
24 Most of the respondents herein.
25 Filed on behalf of the surviving brothers, sisters, nephews, nieces, grandnephews and grandnieces of
Josefa Delgado.
26 Now represented by their heirs as respondents.
CUEVAS, J.:
In this special civil action of certiorari and Prohibition with Preliminary Injunction, petitioners
assail respondent Judge Malcolm G. Sarmiento's denial of their Motion to Dismiss filed in the
nature of demurrer to evidence in Criminal Case No. 808 for Estafa entitled "PEOPLE OF THE
PHILIPPINES vs. FE BAUTISTA, MILAGROS CORPUS and TERESITA VERGERE ", pending
before the defunct Court of First Instance of Pampanga Branch I.
An information charging Fe Bautista, Milagros Corpus and Teresita Vergere with estafa was
filed before the sala of Judge Malcolm G. Sarmiento. The third accused, Teresita Vergere, was
granted a separate trial. To prove its case, the prosecution presented during the trial the private
complainant, Dr. Leticia C. Yap, as its only witness. Thereafter, petitioners, believing the
prosecution failed to prove their guilty beyond reasonable doubt, moved to dismissal the case
by way of demurrer to the evidence.
In an Order dated June 3, 1976 respondent judge denied said motion. 1 The Order states:
Fe Bautista and Milagros Corpus, accused, through counsel, filed a "Moton to Dismiss" (Demurrer to
Evidence) to the information charging the two accused for Estafa, The other third accused Teresita
Vergere, granted as separate trial.
The grounds alleged in the Motion to Dismiss are as follows: First, the inf•rmation alleges that
the two accused received jewelries from Dr. Leticia C. Yap on April 19, 1975 on consignment.
The defense' contention is that the jewelries were received by the said accused by virtue of
purchase and sale. The defense overlooks the other allegation in the Information specifically
alleging:—
That these pieces of jewelries should be sold by the accused on commission basis and to pay or to
deliver the proceeds thereof to Dr. Leticia C. Yap if sold, and if not sold to return said jewelries. ...
In spite of represented demands made on the said accused, said accused failed and refused and still fails
and refuses to return the jewelries or deliver the proceeds thereof to the damage and prejudice of said Dr.
Leticia C. Yap in the total amount of P77,300.00.
The meaning of consignment is not a sale.
It means that the goods sent by one person to another, to be sold or disposed of by the latter for and on
account of the former. The transmission of the goods.
Agency is within the foregoing meaning by Bouvier's Law Dictionary (Vol. 1, pp. 619-620)
The offended party testified that the accused acted as her agents for the sale of the jewelries. Second
ground, that the prosecution failed to establish the prior demand to prove misappropriation on the part of
the accused. Exhibits B and B-1 are documentary evidence to establish demand through Atty. Gorospe
made by the offended party prior to the filing of the case. This letter of demand was subsequently made
after several previous oral demands were made by the complainant on said accused.
The Court believes that the prosecution established a prima facie case of Estafa alleged in the
Information against said accused on the evidence presented so far on record.
PREMISES CONSIDERED, the Court hereby denies the defense' Motion to Dismiss and orders the trial
of this case for the reception of evidence of the accused on July 9, 1976 at 8:00 o'clock in the morning.
SO ORDERED.
Footnotes
1 Annex "B".
2 Annex "C".
3 Annex "D".
4 Gamboa vs. Victoriano, 90 SCRA 40.
5 Co Chuan Seng vs. CA, 128 SCRA 308
6 Words & Phrases Permanent Edition 33, p. 545.
7 Moran Rules of Court, Vol. III, pp. 542-543; People vs. Upao Moro 101 Phil. 1226.
8 Florenz D. Regalado, Remedial Law Compendium, 1970 Ed., p. 795
9 20 Am. Jur. 1102-03.
10 84 Phil. 525.
The Lawphil Project - Arellano Law Foundation
THIRD DIVISION
Promulgated:
THE PEOPLE OF THE PHILIPPINES,
Respondent. January 20, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review [1] assailing the 23 June 2000 Decision[2] and the 7
November 2001 Resolution[3] of the Court of Appeals in CA-G.R. CR No. 21450. The Court of Appeals
affirmed the 30 September 1997 Decision[4] of the Regional Trial Court of Manila, Branch 50 (“trial
court”) in Criminal Cases Nos. 94-135055-56. The trial court found Coverdale Abarquez y Evangelista
(“Abarquez”) guilty beyond reasonable doubt as an accomplice in the crime of homicide in Criminal Case
No. 94-135055.
The Charge
The prosecution charged Abarquez with the crimes of homicide and attempted homicide in two
Informations,[5] as follows:
That on or about November 21, 1993, in the City of Manila, Philippines, the said
accused conspiring and confederating with one ALBERTO ALMOJUELA Y
VILLANUEVA, who has already been charged for the same offense before the
Regional Trial Court of Manila, under Crim. Case No. 93-129891 and mutually
helping each other, did then and there willfully, unlawfully and feloniously with
intent to kill, attack, assault and use personal violence upon one RICARDO QUEJONG
Y BELLO, by then and there stabbing him twice with a bladed weapon and hitting
him with a gun at the back, thereby inflicting upon the latter mortal wounds which
were the direct and immediate cause of his death thereafter.
CONTRARY TO LAW.[6]
That on or about November 21, 1993, in the City of Manila, Philippines, the said
accused conspiring and confederating with one ALBERTO ALMOJUELA Y VILLANUEVA, who
has already been charged for the same offense before the Regional Trial Court of Manila
under Crim. Case No. 93-129892 and mutually helping each other, with intent to kill, did
then and there wilfully, unlawfully and feloniously commence the commission of the
crime of homicide directly by overt acts, to wit: by then and there holding one JOSE
BUENJIJO PAZ Y UMALI and stabbing him with a bladed weapon, hitting him on the left
arm, but the said accused did not perform all the acts of execution which should have
produced the crime of homicide as a consequence, by reason of causes other than his
own spontaneous desistance, that is, the injury inflicted upon said JOSE BUENJIJO PAZ Y
UMALI is only slight and not fatal.
CONTRARY TO LAW.[7]
Abarquez entered a plea of not guilty to both charges. The cases were tried jointly.
On 21 November 1993 at 2:00 p.m., Jose Buenjijo Paz[8] (“Paz”), Ricardo Quejong (“Quejong”)
and their friends were in the house of one Boyet at 3342 San Jose St., Sta. Mesa, Manila. They were
drinking liquor in celebration of the birthday of Boyet’s son. About 7:45 p.m., Paz and Quejong decided
to go home. Boyet Tong, Abarquez’s son Bardie and Sonito Masula (“Masula”) joined Paz and
Quejong. They proceeded towards the exit of San Jose St.
Meanwhile, about six or seven meters away from Boyet’s house, Alberto Almojuela also known as
Bitoy (“Almojuela”), a certain Ising and Abarquez also known as Dale, were likewise drinking liquor
in front of Almojuela’s house. As the group of Paz was passing towards the main road, Almojuela
and his companions blocked their path.
Almojuela asked Paz, “Are you brave?” Paz replied, “Why?” Almojuela got angry and attacked Paz
with a knife. Paz parried the attack with his left arm but sustained an injury. Abarquez held Paz
on both shoulders while Bardie pacified Almojuela. Paz asked Abarquez, “What is our atraso, we
were going home, why did you block our way?” Abarquez answered, “Masyado kang
matapang. Tumigil ka na, tumigil ka na.”
Almojuela then confronted Quejong and they had an altercation, followed by a scuffle. Paz tried to
get away from Abarquez who continued restraining him. Upon seeing Almojuela and Quejong fall on
the ground, Paz struggled to free himself from Abarquez. Paz approached Quejong and found him
already bloodied. It turned out the Almojuela stabbed Quejong with a knife. Paz tried to pull up
Quejong but failed. Paz left Quejong and ran instead towards the exit of San Jose St. to ask for
help. While Paz was running away, he heard Abarquez shout, “You left your companion already
wounded!”
When Paz and his companions returned, they found Quejong still on the ground. Almojuela and
Abarquez were still in the area. Paz and his companions brought Quejong to the UST
Hospital. They next proceeded to Police Precinct No. 4 to report the incident. However, there
was nobody in the precinct. With Kagawad Villanio Usorio, Paz went to the WPD General
Headquarters to report the incident. At the WPD General Headquarters, they learned that
Quejong died at the UST Hospital. Paz then had his injury treated by Dr. Vic Managuelod at Jose
Reyes Memorial Hospital. The medico-legal certificate showed that Paz sustained a 3-cm.
lacerated wound on his left forearm.
About 9:15 p.m., while SPO1 Danilo Vidad (“SPO1 Vidad”) was at the WPD Homicide Division, his
station received a call from the UST Hospital informing them of the death of Quejong. SPO1 Vidad and
PO3 Ed Co went to the UST Hospital morgue and investigated the incident. They learned that Almojuela,
assisted by Abarquez, stabbed Quejong. Upon the execution of sworn statements by Paz and Masula,
SPO1 Vidad booked Almojuela and Abarquez for homicide and frustrated homicide and prepared the
referral letter to the inquest prosecutor.
Abarquez voluntarily appeared at the police station. Almojuela voluntarily surrendered to one
SPO4 Soriano at Police Station No. 10 and was turned over to the WPD Homicide Division.
Dr. Antonio Rebosa[9] (“Dr. Rebosa”), a medico-legal consultant at UST Hospital, conducted the
post-mortem examination and autopsy on Quejong. Dr. Rebosa reported that Quejong sustained two
stab wounds and suffered from massive hemorrhage due to penetrating stab wounds to the heart and
left lung. According to Dr. Rebosa, a sharp instrument probably caused the wound. Dr. Rebosa also
reported that Quejong sustained abrasions and contusions on the right upper body, the wrist and on the
lower extremities.
Abarquez countered that on 21 November 1993, he was in his residence at 3363 San Jose St., Sta.
Mesa, Manila. About 7:30 p.m., Almojuela’s wife informed him that the group of Paz was challenging
Almojuela to a fistfight. Abarquez, being a barangay kagawad, proceeded to Almojuela’s
house. Almojuela’s house was about twenty meters away from Abarquez’s house. When he arrived at
Almojuela’s house, Abarquez saw Almojuela on the ground being strangled by Quejong. Paz was holding
Almojuela’s waist and boxing him at the stomach. Masula was near Almojuela’s head holding a piece of
stone as if waiting for a chance to hit him. Abarquez shouted at the group to stop. The group did not
heed Abarquez, forcing him to fire a warning shot into the air. Still, the group did not heed Abarquez
who then fired a second warning shot. Paz, Quejong, and Masula scampered away.
Almojuela told Abarquez that he was merely trying to stop the group of Paz from smoking
Almojuela testified that he was inside his house when his daughter informed him that there was
marijuana smoke coming to their window. He went outside to look for the source of the smoke and saw
Quejong, Paz, and Masula smoking marijuana. Almojuela asked the group to move away as there were
children inside the house. He was on his way back to the house when Quejong tried to strangle
him. Later, Almojuela heard a gunshot. He also heard Abarquez shouting, “Tumigil na kayo.” Quejong,
Masula, and Paz ran away.
Winfred Evangelista[10] (“Evangelista”) testified that he was resting in front of his house when he
heard a commotion. He noticed that Paz and Quejong were quarreling. Evangelista saw Paz kicking
Almojuela. Abarquez arrived to break up the fight but he was told not to interfere. Abarquez was
forced to fire a warning shot and the persons involved in the commotion ran away.
In its Decision[11] dated 30 September 1997, the trial court found Abarquez guilty as an
accomplice in the crime of homicide. The trial court held that the prosecution failed to prove that
Abarquez was a co-conspirator of Almojuela in the killing of Quejong. Hence, Abarquez could not be
convicted as a principal in the crime of homicide. However, the trial court ruled that Abarquez, in
holding and restraining Paz, prevented the latter from helping Quejong and allowed Almojuela to pursue
his criminal act without resistance.
WHEREFORE, in Criminal Case No. 94-135055, this Court finds the accused,
Coverdale Abarquez, guilty beyond reasonable doubt of the crime of homicide only
as accomplice and hereby sentences him to suffer an indeterminate penalty ranging
from six (6) years of prision correccional to ten (10) years of prision mayor. In
Criminal Case No. 94-135056, the accused is hereby acquitted.
SO ORDERED.[12]
Abarquez appealed the trial court’s Decision before the Court of Appeals.
In its Decision[13] of 23 June 2000, the Court of Appeals affirmed the trial court’s Decision. The
Court of Appeals sustained the trial court in giving more credence to the testimony of Paz. The Court of
Appeals held that the prosecution was able to establish that Abarquez aided Almojuela in fatally
stabbing Quejong. The Court of Appeals rejected Abarquez’s allegation that he was merely at the crime
scene to pacify the quarreling parties.
In its 7 November 2001 Resolution,[14] the Court of Appeals denied Abarquez’s motion for
Evidence Page 158
In its 7 November 2001 Resolution,[14] the Court of Appeals denied Abarquez’s motion for
reconsideration.
The Issues
The issues[15] Abarquez raises before the Court may be summarized as follows:
1. Whether the prosecution was able to establish the guilt of the accused beyond reasonable
doubt;
2. Whether the trial court and the Court of Appeals erred in giving more credence to the
testimony of the prosecution witnesses.
Abarquez alleges that the prosecution’s evidence does not satisfy the test of moral certainty and is
not sufficient to support his conviction as an accomplice. He further alleges that there was a
misapprehension of facts and that the trial court and the Court of Appeals reached their conclusion
based entirely on speculation, surmises and conjectures. Abarquez also assails the credibility of the
witnesses against him.
The rule is that the trial court is in the best position to determine the value and weight of the
testimony of a witness. The exception is if the trial court failed to consider certain facts of substance
and value, which if considered, might affect the result of the case.[16] This case is an exception to the
rule.
Article 18 of the Revised Penal Code defines accomplices as “those persons who, not being
included in Article 17, cooperate in the execution of the offense by previous or simultaneous acts.”[17]
Two elements must concur before a person becomes liable as an accomplice: (1) community of
design, which means that the accomplice knows of, and concurs with, the criminal design of the
principal by direct participation; and (2) the performance by the accomplice of previous or simultaneous
acts that are not indispensable to the commission of the crime.[18] Mere commission of an act, which
aids the perpetrator, is not enough.[19] Thus:
The cooperation that the law punishes is the assistance knowingly rendered, which
cannot exist without the previous cognizance of the criminal act intended to be
executed. It is therefore required in order to be liable as an accomplice, that the accused
must unite with the criminal design of the principal by direct participation. [20]
Indeed, in one case, the Court ruled that the mere presence of the accused at the crime scene cannot be
Here, in convicting Abarquez, the trial court and the Court of Appeals relied mainly on the
testimony of Paz. Paz testified that he was held by Abarquez on the shoulders, thus preventing him
from helping Quejong who was grappling with Almojuela. Paz testified:
q. And what happened in the exchange of words or altercations between Bitoy and
Ricardo Quejong?
a. They grappled with each other, sir.
q. When Bitoy and Ricardo grappled with each other, what did you do, if any?
a. I was intending to help Ricky but I was held back by Dale, sir.
PROSECUTOR F. G. SUPNET:
I would like to make it of record demonstrated being held by the accused holding
both shoulders, your Honor.
q. Now, when this Dale Abarquez held both on your shoulders, what happened next,
if any?
a. He got angry scolding us. While scolding me the two
who were grappling each other walking away, sir. (sic)
q. Now, you said Bitoy and Ricky were moving, what happened in the course of
grappling, if any?
You testified that Ricky and Bitoy were grappling each other, what happened in the
course of grappling? (sic)
a. They fell to the ground, sir.
q. You said you saw Ricky blooded, why was he blooded? (sic)
a. He was stabbed by Bitoy, sir.
q. And did you see what instrument did Bitoy used in stabbing Ricky or Ricardo? (sic)
a. It was a knife, sir. (Witness indicating a length about 6 inches including the
handle).
q. Now, you said also that while the two were grappling while you were trying to
free yourself from the hold Dale Abarquez, “Pinagalitan kayo”, in what way or manner did
Dale Abarquez reprimanded you? (sic)
a. You Jose is too brave, sir. (sic)[22]
q. After Bitoy pacified Bardy Abarquez, he went after Ricky Quejong, is it not?[23]
a. They were just arguing, sir.
[q.] And it was during that time when you were held in both shoulders by the
accused [C]overdale Abarquez?
a. Yes, sir.
q. and that Coverdale Abarquez was infront of you, is it not?
a. Yes, sir on my side.
q. And he was holding your shoulder to pacify you and Bitoy from further quarrelling
you, is it not?
a. That is not the way of pacifying, sir.
q. How can you demonstrate how you were held on the shoulder by Abarquez?
ATTY. GASCON:
Make I make it of record your Honor that the interpreter act as the witness while the
witness act as the accused demonstrating holding both hands of interpreter
preventing the witness and saying Joey tumigil ka na, joey tumigil ka na.
COURT:
q. How many times?
a. Twice, Your Honor.
ATTY. GASCON:
The accused told you Joey tumigil ka na, Joey tumigil ka na because you were trying
to attack Bitoy, is it not?
a. How can I be charged, he was the one holding the knife, sir. (sic)
q. So what was the reason why the accused restrained you and told you Joey tumigal
ka na, Joey tumigil ka na. What would be the reason?
a. While I was just talking to Bitoy, when he told me to stop.
COURT:
Does the Court get from you that you are trying to explain to Bitoy when the
accused tried to hold you and prevent you?
a. Yes, sir.
q. That is why the reason you concluded that the accused is not pacifying you but to
stop you from helping the victim?
a. Yes, sir.
xxx xxx xxx
q. The only word that the accused [C]overdale Abarquez uttered was Joey, tumigil
ka na, Joey tumigil ka na, is it not?
a. He uttered that you are MATAPANG, Joey tumigil ka na, Joey tumigil ka na.[24]
Paz’s testimony does not show that Abarquez concurred with Almojuela’s criminal
design. “Tumigil” literally means “stop.” Clearly, Abarquez was trying to stop Paz from joining the
fray, not from helping Quejong. Paz claims that he was only trying to talk to Almojuela. However,
xxx. The mere fact that the (accused) had prior knowledge of the (principal’s)
criminal design did not automatically make him an accomplice. This circumstance,
by itself, did not show his concurrence in the principal’s criminal intent.
Paz stated that Abarquez did not do anything to stop Almojuela. However, Paz testified that
Abarquez’s son Bardie, who was one of Paz’s companions, was the one trying to pacify
Almojuela. The trial court in its factual findings confirmed this when it stated that while Abarquez
was holding Paz, his son Bardie was pacifying Almojuela.[26]
The prosecution argues that Abarquez was remiss in his duties as a barangay kagawad in not
extending assistance to the then wounded Quejong. This, however, does not necessarily show
concurrence in Almojuela’s criminal act. When Paz ran away, Abarquez shouted at him that he
left his wounded companion. Apparently, Abarquez was not aware of the extent of Quejong’s
injury and he expected Paz to look after his own companion.
When there is doubt on the guilt of an accused, the doubt should be resolved in his favor. Thus:
Every person accused has the right to be presumed innocent until the contrary is
proven beyond reasonable doubt. The presumption of innocence stands as a
fundamental principle of both constitutional and criminal law. Thus, the prosecution
has the burden of proving every single fact establishing guilt. Every vestige of doubt
having a rational basis must be removed. The defense of the accused, even if weak,
is no reason to convict. Within this framework, the prosecution must prove its case
beyond any hint of uncertainty. The defense need not even speak at all. The
presumption of innocence is more than sufficient.[27]
We apply in this case the equipoise rule. Where the evidence on an issue of fact is in issue or
there is doubt on which side the evidence preponderates, the party having the burden of proof
loses.[28] Hence:
xxx The equipoise rule finds application if, as in this case, the inculpatory facts and
circumstances are capable of two or more explanations, one of which is consistent with
the innocence of the accused and the other consistent with his guilt, for then the evidence
does not fulfill the test of moral certainty, and does not suffice to produce a
conviction. Briefly stated, the needed quantum of proof to convict the accused of the
WHEREFORE, we GRANT the petition. We SET ASIDE the 23 June 2000 Decision and 7 November
2001 Resolution of the Court of Appeals in CA-G.R. CR No. 21450, which affirmed the 30
September 1997 Decision of the Regional Trial Court of Manila, Branch 50 in Criminal Cases Nos.
94-135055-56. We ACQUIT Coverdale Abarquez y Evangelista as an accomplice in the crime of
homicide in Criminal Case No. 94-135055. No pronouncement as to costs.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairman
ATTESTATION
I attest that the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairman, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I
certify that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.
ARTEMIO V. PANGANIBAN
Chief Justice
[7] Ibid., p. 8.
[8] Referred to as Jose Buenhijo Paz in the trial court’s Decision.
EN BANC
PUNO, C.J.
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
- versus - AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.
x- - - - - - - - - - -- - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - -- - - - x
DEC I S IO N
PUNO, C.J.:
For review before this Court is the Decision[1] of the Court of Appeals (CA)
dated March 31, 2005 in CA-G.R. CR-HC No. 00060 finding the
Records show that accused-appellant Bernardino Gaffud, Jr., along with two John Does
were indicted for Double Murder for the killing of Manuel Salvador and Analyn Salvador, under
the following Information:
“The undersigned 2nd Assistant Provincial Prosecutor accuses Bernardino Gaffud, Jr. and two
(2) JOHN DOES of the crime of DOUBLE MURDER defined and penalized under Article 248 of the
Revised Penal Code, committed as follows:
‘That on or about 8:00 o’clock in the evening of May 10, 1994 at Sitio Biton, Barangay
Wasid, Municipality of Nagtipunan, Province of Quirino, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused with intent to kill and motivated by long standing
grudge, after conspiring, confederating and mutually helping one another, by means of fire, did
then and there, willfully, unlawfully, and feloniously, shot and burn Manuel Salvador and Analyn
Salvador which caused their instantaneous death.’
It appears that Manuel Salvador and his daughter Analyn Salvador were killed when the
house they were staying in located at Sitio Biton, Barangay Wasid, Nagtipunan, Quirino was
burned down while they were inside. An eyewitness pointed to accused-appellant Bernardino
Gaffud, Jr. as one of the arsonists.
Upon preliminary investigation, where appellant Gaffud, Jr. failed to appear despite being
subpoenaed to submit his counter-affidavit, Assistant Provincial Prosecutor Ferdinand Orias
resolved that charges for double murder by means of fire be filed against herein appellant and
two John Does, (p.14, Records).
When arraigned on June 6, 1995, accused-appellant Gaffud, Jr. entered a plea of Not Guilty,
(p. 48, Records), paving the way for his trial.
The prosecution presented six (6) witnesses against appellant Gaffud, Jr., namely Dominga
Salvador, common-law wife of Manuel Salvador and mother of Analyn Salvador, Orly Salvador,
nephew of Manuel Salvador, Potado Ballang, Barangay Captain of Wasid, Nagtipunan, Quirino,
Dan Dangpal, a neighbor of the deceased, SPO2 Dominador Tabal, the investigating police, and Dr.
Teodomiro Hufana who conducted the autopsy on the deceased Manuel Salvador.
Evidence for the prosecution tended to prove that on the night of May 10, 1994, Orly
Salvador was on his way to the house of his uncle Manuel Salvador to fetch the latter as they were
going to attend a wedding at the nearby barangay hall. He suddenly heard two
gunshots. Thereafter, he saw the house of his uncle burning. Because of the glow emanating
therefrom, he saw three persons within the vicinity of the burning house. He saw them hurriedly
leaving the place towards the direction of the Cagayan river. One of the three was holding a
flashlight, whom he identified as appellant Gaffud, Jr. He could not identify the two other
persons. After the house was burned, Orly went towards the barangay hall to see if his uncle
Manuel Salvador was there, but he met Brangay Captain Potado Ballang who informed him that
Barangay Captain Potado Ballang testified that he saw appellant Gaffud, Jr. on the fateful
day at around 6:30 PM, along the riverbank, a few meters away from the house of Manuel
Salvador. When Potado asked what he was doing there, Gaffud, Jr. said he was looking for his
boat. However, Potado knew that the appellant did not own a boat. After a few minutes, Potado
left to attend the wedding party being held at the barangay hall. (TSN, November 4, 1996, pp. 2-5)
Dan Dangpal’s testimony was dispensed with, but the defense agreed to the nature of the
testimony he would have given, which tended to show that sometime at about 8:00 PM on the
fateful evening, while inside his house, he heard successive gunshots, and when he went out of his
house, he saw the deceased’s house burning about 200 meters away. He heard persons laughing
and saw the light of a flashlight and persons moving away from the burning house. He could not
recognize any of them. (TSN, February 24, 1997; Exhibit “D”, p. 8, Records)
Dominga Salvador’s testimony tended to show that the appellant Gaffud, Jr. was their
neighbor. In the morning of May 10, 1994, she went to the house of the appellant to see him
about her husband’s share in the construction of the barangay hall, which was contracted to the
appellant. Gaffud, Jr. told her that he would go to her house that afternoon to introduce his in-
law Balbino Bravo to her husband. Thereafter, she went home, and left again at around 11:00
AM, leaving behind her husband Manuel Salvador and their daughter Analyn. Later that night, she
was at Natipunan, Quirino attending a seminar for “hilot”, (TSN, July 4, 1995, pp. 3-15). In her
sinumpaang salaysay, offered in evidence as Exhibit “A”, Dominga also related that she had earlier
filed a complaint in the barangay against the appellant and his brother for slaughtering her pig.
SPO2 Dominador Tabal was a police investigator who investigated the killing of Manuel and
Analyn Salvador. Thereat, he saw two dead bodies hanging from a Melina tree. They were put
there so that they would not be reached by the dogs. He saw that one of the victims had a
fractured head, while the other had a wound on the side. Pictures of the victims including the
scene of the incident were taken by them. Among those interviewed the appellant Gaffud, Jr. and
his brother, (TSN, June 5, 1997, pp. 2-7).
Dr. Teodomiro Hufana’s testimony was also dispensed with, (p. 127, Records) in view of the
defense counsel’s admission of the contents of his Autopsy Report on Manuel Salvador, (Exhibit
“C”), which reads in pertinent part:
FINDINGS
-Cremated charcoaled, about 3 ft. long, stomach and intestine (Large) protruding from the
abdomen.
-Presence of semi-burned rattan about 1 inch long about 1 cm. in diameter on the burned
hand.
-Presence of a peculiar hole from the thoracic cavity directed downward to the body,
probably gunshot wound.
CAUSE OF DEATH:
-CREMATION (Burned)
Appellant denied the accusation leveled against him, and testified that the approximate
time of the burning of the victims’ house, he was at home, entertaining his in-laws, Balbino
Bravo and Rufina Bravo, who was there for a visit. After eating dinner, he and Balbino Bravo
talked. At around 7:00 to 8:00 PM, he and Balbino Bravo saw a blaze coming from the other
side of the Cagayan River, about 50 to 80 meters away from the house of the Bravos. They
did not mind the blaze, and instead went to sleep. The next morning, they heard news
about somebody being burned, and because of this, he and Balbino Bravo hiked to the place
of the incident. That’s where he found that his “pare” Manuel Salvador and his daughter
were burned in their house. After seeing the dead bodies, appellant went home. He went
back later, and was even designated by the Barangay Captain to guard the bodies of the
deceased. Thereafter, he was forced to evacuate his family from Nagtipunan, because the
Ilongot tribe was forcing him to testify against someone but he didn’t want to. He was told
that something might happen to his family if he didn’t leave, (TSN, June 3, 2002).
The appellant’s defense was corroborated on its material points by the testimony of his
wife, Juanita Gaffud, and his in-law, Balbino Bravo, both of whom testified that on May 10,
1994, the accused was at his residence entertaining visiting Bravo spouses and stayed there
the whole night, (TSN January 31, 2002 and March 18, 2002).
Juanita Gaffud also testified that during the pendency of the trial, she talked to Dominga
Salvador about the settlement of the case and even offered a certain amount for the said
purpose, (TSN, March 10, 2002, p. 12).[3]
After trial, the RTC rendered its Decision finding accused-appellant guilty of
two (2) counts of murder, the dispositive portion of which reads:
WHEREFORE, in view of all the foregoing, the Court finds Bernardino Gaffud, Jr. GUILTY for
two (2) counts of murder and hereby sentences him as follows, to wit:
c-1) SEVENTY FIVE THOUSAND PESOS (P75,000.00) for each count or a total of ONE
HUNDRED FIFTY THOUSAND PESOS (P150,000.00) as death indemnities;
c-2) FIFTY THOUSAND PESOS (P50,000.00) for each count or a total of ONE HUNDRED
THOUSAND PESOS (P100,000.00) as moral damages;
c-3) TWENTY FIVE THOUSAND PESOS (P25,000) for each count or a total of FIFTY
THOUSAND PESOS (P50,000.00) as exemplary damages;
and
c-5) Costs.
xxx x
SO ORDERED.[4]
As the death penalty was imposed, the case was elevated to this Court for
automatic review. In his Appellant’s Brief,[5] accused-appellant argued that the
RTC erred in: (i) failing to rule and resolve whether or not conspiracy existed, as
the information charged him with conspiracy with two others in the commission
of the crime; and (ii) convicting him despite the fact that conspiracy was not
proven, and also despite the fact that there was no proof whatsoever as to what
overt act he committed which would constitute the crime of murder.
The case was transferred to the CA for appropriate action and disposition
per Resolution[6] of this Court dated August 24, 2004, in accordance with the
ruling in People v. Mateo.[7] In disposing of the assigned errors, the CA held that
the lack of discussion of conspiracy among accused-appellant and his anonymous
co-accused in the decision of the RTC was not antithetic to his conviction for the
crime of murder, since the charge that he was a principal performer in the killing
of the victims was spelled out in the Information[8] filed against him.[9]
Moreover, in the absence of conspiracy, each of the malefactors is liable only for
the act committed by him.[10] As to the sufficiency of the evidence presented by
the prosecution, the CA held that the circumstantial evidence in this case
established accused-appellant’s guilt beyond reasonable doubt.[11] Accordingly,
the CA affirmed the Decision of the RTC, finding accused-appellant guilty of the
complex crime of double murder, with the following modifications:
WHEREFORE, premises considered, the appeal is hereby DISMISSED, although the decision
of the lower court is hereby MODIFIED, in that: The accused Bernardino Gaffud, Jr. is hereby
found GUILTY of the complex crime of double murder, and is hereby sentenced to the supreme
penalty of Death. He is also ordered to pay the legal heirs of the victims: (1) P100,000.00 or
P50,000.00 for each victim, as civil indemnity for the death of the victims; (2) P100,000.00 or
P50,000.00 for each victim, as moral damages; and (3) P10,000.00 as nominal damages plus costs.
SO ORDERED.[12]
Pursuant to Section 13, Rule 124 of the Rules of Court, as amended by A.M.
No. 00-5-03-SC dated September 28, 2004, the case was elevated to this Court for
review.
On the first assigned error, we concur with the CA that the failure to prove
conspiracy in this case is not fatal.
The rule is that in the absence of evidence showing the direct participation
of the accused in the commission of the crime, conspiracy must be established by
On the second assigned error, we uphold the finding of both courts a quo
that the evidence proffered by the prosecution, although circumstantial in
nature, leads to the conclusion that accused-appellant is the perpetrator of
the act resulting in the death of the victims.
Accused-appellant was near the place of the incident just a few minutes before
the crime was committed. Captain Potado Bollang testified that he saw the
accused-appellant at the riverbank, about 100 meters from the house of the
victims, coming to and fro, allegedly looking for his boat, when in fact, Captain
Bollang knew that accused-appellant did not own one.[15]
Accused-appellant, together with two unidentified persons, was near the house
of the victims at the time it was on fire. Accused-appellant was identified by Orly
Salvador as one of the three men he saw about 5 meters from the house of his
uncle, Manuel Salvador, while it was burning. Previously, he heard two gunshots
as he was on his way towards the said house. He also saw appellant fleeing with
the other malefactors, while holding a flashlight.[16] His testimony was
corroborated by the admitted testimony of Dan Dangpal who said that he heard
two gunshots while he was at his home, which was near that of the
victims. When he went out, he also heard men laughing, and saw them fleeing
from the burning house, illumined by a flashlight.[17]
The Court finds incredible appellant’s story that after seeing the blaze across his house, he
merely slept with his in-laws without investigating. The Court finds it against human nature
for one to sleep soundly during a fire occurring just 50-80 metes from one’s house, even
though the blaze is occurring across a river. Also, appellant muse know, after seeing the
location of the blaze, that the house of his “pare”, or close friend, was in danger, and his
natural reaction at least was to verify the object of the conflagration. Appellant’s story that
he only slept soundly after seeing the blaze is therefore unbelievable, and taints the
credibility of his alibi.
Another telling factor on the appellant’s defense is his flight. Appellant admitted that in his
testimony that he fled Wasid, Nagtipunan, Quirino after he was investigated at the Municipal Hall,
(TSN, June 3, 2002, p. 19). Appellant said he fled because of threats from the Ilongots. However,
appellant said it never entered his mind to report the threats on him. Appellant’s explanation fails
to convince. It bears stressing that appellant fled right after being investigated and questioned by
police authorities, and during the time that the preliminary investigation of the case was
ongoing. This is highly suspicious, as such time is the best time for him to defend his innocence, if
he is indeed innocent. As it is, appellant was arrested in San Vicente, Jones, Isabela, a remote
barangay by the elements of the NBI, (Id., at 23; reverse of p. 19, Records). Flight is consistently
held as and indication of guilt, (People v. Magaro, 291 SCRA 601 [1998]). There is no showing why
such conclusion should not be made in this case. [20]
ARTICLE 48. Penalty for complex crimes. — When a single act constitutes two or more grave or
less grave felonies, or when an offense is a necessary means for committing the other, the penalty
There are two kinds of complex crime. The first is known as compound
crime, or when a single act constitutes two or more grave or less grave
felonies. The second is known as complex crime proper, or when an offense
is a necessary means for committing the other.[22]
The classic example of the first of kind is when a single bullet results in the
death of two or more persons. A different rule governs where separate and
distinct acts result in a number killed. Deeply rooted is the doctrine that
when various victims expire from separate shots, such acts constitute
separate and distinct crimes.[23]
In the landmark case People v. Guillen,[24] the Court held that the single act
of throwing a grenade at President Roxas resulting in the death of another
person and injuring four others produced the complex crime of murder and
multiple attempted murders. Under Article 248 of the RPC, murder is
committed when a person is killed by means of explosion. Applying Article
48 of the RPC, the penalty for the crime committed is death, the maximum
penalty for murder, which is the graver offense.
More recently, in People v. Carpo et al.,[25] we held that the single act of
hurling a grenade into the bedroom of the victims causing the death of three
persons and injuries to one person constituted the complex crime of multiple
murder and attempted murder. Also, in People v. Comadre,[26] we held:
The underlying philosophy of complex crimes in the Revised Penal Code, which follows the
pro reo principle, is intended to favor the accused by imposing a single penalty irrespective
of the crimes committed. The rationale being, that the accused who commits two crimes
with single criminal impulse demonstrates lesser perversity than when the crimes are
committed by different acts and several criminal resolutions.
The single act by appellant of detonating a hand grenade may quantitatively constitute a
cluster of several separate and distinct offenses, yet these component criminal offenses
should be considered only as a single crime in law on which a single penalty is imposed
because the offender was impelled by a “single criminal impulse” which shows his lesser
degree of perversity.
Anent the award of damages, we increase the award of civil indemnity by the
CA for the death of the victims from P100,000 or P50,000 for each victim, to
P150,000 or P75,000 for each victim in accordance with prevailing
jurisprudence.[28]
IN VIEW WHEREOF, we hereby AFFIRM the March 31, 2005 decision of the
CA in CA-G.R. CR-HC No. 00060 with the following MODIFICATIONS:
the civil indemnity for the death of the victims is increased to P150,000, or
P75,000 for each victim; and
accused-appellant is ordered to pay exemplary damages in the amount of
P50,000, or P25,000 for each victim.
SO ORDERED.
REYNATO S. PUNO
Chief Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
ARTURO D. BRION
Associate Justice
CER T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Evidence Page 176
REYNATO S. PUNO
Chief Justice
[1] Rollo, pp. 3-14, penned by Justice Rodrigo V. Cosico, concurred in by Justices Danilo B. Pine
and Arcangelita Romilla-Lontok.
[2] Records, pp. 358-372; penned by Executive Judge Menrado V. Corpuz, Regional Trial Court,
Second Judicial Region, Branch 38, Maddela, Quirino.
[3] Supra note 1 at 4-7.
[4] Supra note 2 at 371-372.
[5] CA rollo, pp. 38-51.
[6] Id. at 107.
[7] G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.
[8] Records, p. 15.
[9] Supra note 1 at 9.
[10] Id.
[11] Id. at 10.
[12] Id. at 13-14.
[13] People v. Agda et al., 197 Phil. 306 (1982); People v. Taaca et al., G.R. No. 35652,
September 29, 1989, 178 SCRA 56.
[14] Rules of Court, Rule 133, Sec. 5.
[15] TSN, November 4, 1996, pp. 2-5.
[16] TSN, October 10, 1995, pp. 3-8.
[17] TSN, February 24, 1997; Exhibit “D,” records, p. 8.
[18] Supra note 16 at 4-5.
[19] TSN, July 4, 1995, pp. 3-15.
[20] Supra note 1 at 11-12.
[21] Luis B. Reyes, The Revised Penal Code, Revised Fifteenth Edition, Book One, 650 (2001)
citing People v. Hernandez, 99 Phil. 515.
[22] Id.
[23] People v. Hon. Pineda et al., 127 Phil. 150 (1967).
[24] 85 Phil. 307, 318 (1950).
[25] G.R. No. 132676, April 4, 2001, 356 SCRA 248.
[26] G.R. No. 153559, June 8, 2004, 431 SCRA 366, 384.
[27] Republic Act No. 9346 (2006), Sec. 2.
[28] People v. Brodett, G.R. No. 170136, January 18, 2008, 542 SCRA 88.
[29] People v. Silva et al., 435 Phil. 779 (2002).
THIRD DIVISION
DECIS ION
CHICO-NAZARIO, J.:
For review is the Decision of the Court of Appeals in CA-G.R. CR HC No. 02103, dated 24 August 2007,[1]
affirming with modifications the Decision of the Masbate Regional Trial Court (RTC), Branch 49, in
Criminal Case No. 1511,[2] finding accused-appellant Ricardo Notarion y Zanoria guilty of the special
complex crime of rape with homicide and sentencing him to suffer the penalty of death.
On 28 November 2001, an Information[3] was filed with the RTC charging appellant with the special
complex crime of rape with homicide. The accusatory portion of the information reads:
That on or about the 25th day of July, 2001, in the afternoon thereof, at XXX, Barangay XXX,
Municipality of XXX, Province of XXX, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused by means of violence and intimidation, did then and there
willfully, unlawfully and feloniously have sexual intercourse with one AAA [4] against the latter's will
and with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and
stab said AAA with the use of a hunting knife, hitting the latter on the different parts of her body
which caused her death.[5]
When arraigned on 7 March 2002, appellant, assisted by his counsel de oficio, pleaded "Not guilty" to
the charge.[6] Trial on the merits thereafter followed.
The prosecution presented as witnesses Dionilo Cabague (Cabague), BBB (AAA's husband), and Dr.
George Galindez (Dr. Galindez). Their testimonies are summarized as follows:
Cabague, neighbor of appellant, testified that on 25 July 2001, at about 4:30 p.m., he and his wife
arrived at their house in Barangay XXX, Municipality of XXX, Province of XXX. He noticed that the buri
leaves which served as the door's lock was untied. Thereupon, he heard a noise coming from inside the
house. He pushed the door and saw appellant and AAA. Appellant was then putting on his shorts, while
AAA was sprawled and motionless on the floor near appellant. Appellant approached and pointed a
knife at him. Appellant warned him not to tell anyone of what he saw or he would kill him, his wife and
his relatives. Frightened, Cabague and his wife immediately left their house and proceeded to his
brother's house where they spent the whole night.[7]
In the morning of the following day, he and his wife returned to their house and learned that AAA was
already dead, and that the latter's cadaver was found 10 meters away therefrom.[8]
BBB, husband of AAA, recounted that in the early morning of 25 July 2001, he went out fishing. Upon
arriving home at about 4:00 p.m., he noticed that AAA was not around. He went out of the house to look
for AAA. At around 8:00 p.m. of the same day, he met appellant who asked him where he came from. He
replied that he was looking for AAA. Appellant became nervous, dropped his torch and hurriedly left.
Dr. Galindez, Municipal Health Officer of Placer, Masbate, declared that he conducted a post-mortem
examination on AAA's corpse. His findings are as follows[10]
- (+) cystocele.
(+) spermatozoa
CONCLUSION:
Asphyxia 2o strangulation
1.
Rape [11]
2.
Dr. Galindez stated that the confluent hematoma (wound no. 11) around AAA's neck and shoulder
indicated suffocation. He said that AAA died of asphyxia secondary to strangulation.[12]
He also concluded that AAA was raped as shown by the following observations: (1) enlargement of
AAA's cervical area; (2) second-degree burns in AAA's labia majora (wound no. 15); (3) second-degree
burns in AAA's left and right thighs (wound nos. 16 and 17); (4) multiple nail marks in AAA's buttocks
(wound no. 18); and (5) the presence of human spermatozoa in AAA's vagina.[13]
The prosecution also proffered documentary evidence to bolster the testimonies of its witnesses, to wit:
(a) affidavit of Cabague (Exhibit A);[14] (2) affidavit of BBB (Exhibit B);[15] and (3) post-mortem
examination report signed and issued by Dr. Galindez (Exhibit C).[16]
For its part, the defense presented the testimonies of appellant and Maricar Notarion (Maricar).
Appellant denied the foregoing accusation and pointed to a certain Solomon Monsanto (Monsanto) as
the real perpetrator.
Appellant testified that on 25 July 2001, at about 4:30 p.m., he was at his farm tending his carabao.
Later, he saw Monsanto standing beside the lifeless body of AAA which was lying on the ground.
Monsanto approached him, poked a gun at him, and threatened to kill him and his family if he would
report what he saw. Subsequently, appellant was arrested and charged with raping and killing AAA.[17]
Maricar, daughter of appellant, narrated that on 25 July 2001, at about 4:30 in the afternoon, she and
appellant went to their farm to fetch their carabao. Thereafter, she and appellant saw Monsanto hack
and shoot AAA. Monsanto approached appellant and poked a gun at the latter. Monsanto warned
appellant not to tell anyone of the incident or he and his family would be killed. She and appellant then
hurriedly went home.[18]
After trial, the RTC rendered a Decision on 23 January 2006 convicting appellant of the special complex
crime of rape with homicide. Appellant was sentenced to death. He was also ordered to pay the heirs of
AAA the amounts of P100,000.00 as civil indemnity, P50,000.00 as moral damages, and P5,000.00 as
exemplary damages. The dispositive portion of the Decision reads:
WHEREFORE, beyond reasonable doubt, the Court finds the accused, RICARDO NOTARION, guilty
Accused is ordered to pay the amount of ONE HUNDRED THOUSAND (P100,000.00) PESOS as civil
indemnity; FIFTY THOUSAND (P50,000.00) pesos as moral damages and exemplary damages of
FIVE THOUSAND (P5,000.00) PESOS to the heirs of the victim. [19]
Appellant appealed to the Court of Appeals. On 24 August 2007, the appellate court promulgated its
Decision affirming with modifications the RTC Decision. It held that the death penalty imposed by the
RTC on appellant should be reduced to reclusion perpetua pursuant to Section 2(a) of Republic Act No.
9346 with appellant not eligible for parole under the said law. It also ruled that although the heirs of
AAA were not entitled to actual damages because they did not present proof thereof, such as receipts
for funeral and burial expenses, they were, nonetheless, entitled to temperate damages in the amount
of P25,000.00, since it was reasonable to expect that the heirs of AAA incurred funeral and burial
expenses. Further, it increased the amount of moral damages to P75,000.00 and exemplary damages to
P25,000.00.[20] Thus:
WHEREFORE, in view of the foregoing, the assailed Decision dated January 23, 2006 of the
Regional Trial Court of Cataingan, Masbate, Branch 49 finding the accused-appellant guilty beyond
reasonable doubt of the crime of Rape with Homicide is hereby AFFIRMED with MODIFICATION in
that (a) the death penalty imposed by the trial court is reduced to reclusion perpetua and (b) the
judgment on the civil liability is modified by ordering the accused-appellant to pay the amounts of
P100,000.00 as civil indemnity, P75,000.00 as moral damages, P25,000.00 as exemplary damages
and P25,000.00 as temperate damages to the heirs of the victim. [21]
I.
THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO THE EVIDENCE
ADDUCED BY THE ACCUSED-APPELLANT.
II.
THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE SPECIAL
COMPLEX CRIME OF RAPE WITH HOMICIDE DESPITE THE FAILURE OF THE PROSECUTION TO
PROVE HIS GUILT BEYOND REASONABLE DOUBT. [23]
Apropos the first issue, appellant maintains that his testimony pointing to Monsanto as the one who
raped and killed AAA is more credible than the testimony of Cabague.[24]
In resolving issues pertaining to the credibility of the witnesses, this Court is guided by the following
well-settled principles: (1) the reviewing court will not disturb the findings of the lower court, unless
there is a showing that it overlooked, misunderstood or misapplied some fact or circumstance of weight
and substance that may affect the result of the case; (2) the findings of the trial court on the credibility
of witnesses are entitled to great respect and even finality, as it had the opportunity to examine their
demeanor when they testified on the witness stand; and (3) a witness who testifies in a clear, positive
and convincing manner is a credible witness.[25]
We have gone over the testimony of Cabague and found no cogent reason to overturn the RTC's ruling
finding Cabague's testimony credible. Cabague testified in a clear and truthful manner that he saw
appellant and AAA inside his house on the day and time of the incident. Appellant then was putting on
his shorts while AAA was slumped motionless on the floor near appellant. Appellant approached him
and pointed a knife at him. Appellant warned him not to tell anyone of what he saw or he would kill him,
his wife and his relatives. Terrified, Cabague and his wife immediately left their house and proceeded to
his brother's house where they spent the whole night.[26]
BBB and Dr. Galindez corroborated the testimony of Cabague on its relevant points.
Further, the above-mentioned testimonies are consistent with the documentary evidence submitted by
the prosecution. The RTC and the Court of Appeals found the testimonies of Cabague, BBB and Dr.
Galindez to be consistent and honest. Both courts did not find any ill motive on the part of the
prosecution witnesses.
In stark contrast, the testimony of appellant and Maricar composed of denial and alibi were confusing,
contradictory and unreliable. Appellant did not mention in his testimony that he was with Maricar when
he allegedly saw Monsanto kill AAA.[27] Maricar, nevertheless, testified that she was with appellant when
the alleged incident transpired.[28] Further, appellant and Maricar testified that they saw Monsanto kill
AAA.[29] Subsequently, however, appellant and Maricar declared that they did not see Monsanto kill
AAA.[30]
It is settled that as between bare denials and positive testimony on affirmative matters, the latter is
accorded greater evidentiary weight.[31]
Appellant, nonetheless, argues that the evidence presented by the prosecution were merely
circumstantial and, thus, insufficient to prove his guilt of the special complex crime of rape with
homicide.[32] Also, the fact that Monsanto was relieved by the prosecution from this case as an accused
casts doubt on the identity of the real perpetrator.[33]
Direct evidence of the commission of a crime is not the only matrix from which a trial court may draw its
conclusion and finding of guilt. The rules of evidence allow a trial court to rely on circumstantial
evidence to support its conclusion of guilt. Circumstantial evidence is that evidence which proves a fact
or series of facts from which the facts in issue may be established by inference.[34]
In rape with homicide, the evidence against the accused is usually circumstantial. The nature of the
crime, in which only the victim and the rapist-killer would have been around during its commission,
makes the prosecution of the offense particularly difficult because the victim could no longer testify
against the perpetrator. Thus, resorting to circumstantial evidence is almost always inevitable, and to
demand direct evidence to prove in such instance the modality of the offense and the identity of the
perpetrator would be unreasonable.[35]
Section 4, Rule 133 of the Rules of Court provides that circumstantial evidence is sufficient for conviction
if: (1) there is more than one circumstance; (2) the inference is based on proven facts; and (3) the
combination of all circumstances produces a conviction beyond reasonable doubt of the guilt of the
accused.
After carefully reviewing the evidence on record and applying the foregoing parameters to this case, we
hold that the evidence adduced by the prosecution adequately proved the guilt beyond reasonable
doubt of the appellant. As correctly found by the RTC, the following circumstances, when pieced
together, lead to the ineluctable conclusion that appellant was the perpetrator of the crime charged:
1. The victim and the accused were inside a single room house;
2. The uncontroverted fact that the victim was lying motionless on the floor while the accused
was sitting and putting on his short pants;
3. There was no other person in the house;
4. The accused threatened to kill the witness (Cabague) and the latter's relatives if he (the
witness) says anything on what he saw;
5. The witness did not see any wound or blood on the motionless body of the victim;
6. Death of the victim by strangulation;
7. The victim's dead body was found about ten (10) meters away from the house (of
Cabague).[36]
Further, Dr. Galindez testified that AAA was raped because human spermatozoa and several wounds
were found in and near AAA's vagina.[38]
All of the foregoing circumstances, which were duly proven, undoubtedly constitute an unbroken chain
of events leading to a fair and reasonable conclusion that appellant raped and killed AAA.
It is doctrinal that the requirement of proof beyond reasonable doubt in criminal law does not mean
such a degree of proof as to exclude the possibility of error and produce absolute certainty. Only moral
certainty is required or that degree of proof which produces a conviction in an unprejudiced mind.[39]
This was sufficiently established in the case at bar.
The fact that Monsanto was relieved by the prosecution from this case as an accused is immaterial
because appellant's guilt was duly proven by the evidence of the prosecution.
We shall now determine the propriety of the penalties imposed by the Court of Appeals.
The penalty for the special complex crime of rape with homicide is death under Article 266-B of the
Revised Penal Code. However, in view of the effectivity of Republic Act No. 9346[40] prohibiting the
imposition of the death penalty, the penalty to be meted out to appellant shall be reclusion perpetua in
accordance with Section 2 thereof, which reads:
SECTION 2. In lieu of the death penalty, the following shall be imposed:
a) the penalty of reclusion perpetua, when the law violated makes use of the
nomenclature of the penalties of the Revised Penal Code; or
the penalty of life imprisonment, when the law violated does not make use of the
b) nomenclature of the penalties of the Revised Penal Code.
Notwithstanding the reduction of the penalty imposed on appellant, he is not eligible for parole
following Section 3 of said law, which provides:
SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences
will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under
Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.
Thus, the Court of Appeals was correct in imposing on appellant the penalty of reclusion perpetua
without the possibility of parole.
With regard to damages, the heirs of AAA are entitled to civil indemnity amounting to P100,000.00 in
keeping with current jurisprudence authorizing the mandatory award of P50,000.00 in case of death,
and P50,000.00 upon the finding of the fact of rape.[41] The award of moral damages amounting to
P75,000.00 is also just and reasonable in cases of rape with homicide.[42] The Court of Appeals,
therefore, acted accordingly in awarding civil indemnity amounting to P100,000.00 and moral damages
amounting to P75,000.00 in favor of AAA's heirs.
As to actual damages, we have held that if the amount of the actual damages cannot be determined
because no receipts were presented to prove the same, but it was shown that the heirs are entitled
thereto, temperate damages amounting to P25,000.00 may be awarded.[43] In the instant case, no
receipt or competent proof was presented to show the amount of actual damages incurred by AAA's
heirs. Nonetheless, it is reasonable to expect that AAA's heirs incurred expenses for her coffin, burial,
and food during the wake. Hence, the Court of Appeals properly awarded temperate damages
amounting to P25,000.00 in lieu of actual damages.
With respect to exemplary damages, Article 2230 of the New Civil Code[44] allows the award thereof as
part of the civil liability when the crime was committed with one or more aggravating circumstances.
The aggravating circumstance must be expressly and specifically alleged in the information;[45]
otherwise, it cannot be considered by the trial court in its judgment, even if such circumstance was
subsequently proved during the trial.[46] In the case at bar, no aggravating circumstance was alleged in
the information. Thus, the RTC and the Court of Appeals erred in awarding exemplary damages.
WHEREFORE, after due deliberation, the Decision of the Court of Appeals in CA-G.R. CR HC No. 02103,
dated 24 August 2007, is hereby AFFIRMEDwith the MODIFICATION that the award of exemplary
damages is deleted.
SO ORDERED.
[1] Penned by Associate Justice Rodrigo V. Cosico with Associate Justices Hakim S. Abdulwahid and Arturo
[2]
Penned by Judge Manuel L. Sese; CA rollo, pp. 12-25.
[3]
Records, p. 1.
[4] Pursuant toRepublic Act No. 9262, otherwise known as the "Anti-Violence Against Women and Their
Children Act of 2004" and its implementing rules, the real name of the victim, together with the real
names of her immediate family members, is withheld and fictitious initials instead are used to represent
her, both to protect her privacy. See People v. Cabalquinto, G.R. No. 167693, 19 September 2006, 502
SCRA 419, 421-426.
[5] Records, p. 1.
[7] TSN,
13 November 2003, pp. 3-10.
[10]
TSN, 11 September 2003, pp. 2-5.
[12] TSN, 11
September 2003, p. 5.
[13] Id.
at 6-7.
[18]
TSN, 13 January 2005, pp. 2-5.
[19]
CA rollo, p. 24.
[20] Rollo, p. 9.
[21] Id.
[22]
CA rollo, pp. 105-106.
[23]
Id. at 38.
[25] People v. Galido, G.R. Nos. 148689-92, 30 March 2004, 426 SCRA 502, 513.
[27]
TSN, 13 January 2005, pp. 6-7.
[28]
Id. at 3.
[29]
TSN, 12 August 2004, p. 4; TSN, 13 January 2005, p. 4.
[30]
Id. at 5.
[31] Ceniza-Manantan v. People, G.R. No. 156248, 28 August 2007, 531 SCRA 364, 375; People v. Major
Comiling, 468 Phil. 869, 890 (2004).
[34] People v.
Padua, G.R. No. 169075, 23 February 2007, 516 SCRA 590, 600-601; People v. Lopez, 371
Phil. 852, 859 (1999); People v. Ayola, 416 Phil. 861, 872 (2001).
[35] People v.
Guihama, 452 Phil. 824, 841 (2003); People v. Rayos, 404 Phil. 151, 167-168 (2001).
[40] Approved on 24
June 2006.
[41] People v. Padua, supra note 34 at 607, citing People v. Tablon, 429 Phil. 1, 17-18 (2002).
[42] Id., citing People v. Magallanes, 457 Phil. 234, 259 (2003).
[44]
Article 2230, New Civil Code: In criminal offenses, exemplary damages as a part of the civil liability
may be imposed when the crime was committed with one or more aggravating circumstances. Such
damages are separate and distinct from fines and shall be paid to the offended party.
[46] Catiis v. Court of Appeals, G.R. No. 153979, 9 February 2006, 482 SCRA 71, 84
In quasi-judicial Bodies
Lepanto v. Dumapis
Electronic Evidence
Nuez v. Cruz-Apao
NPC v. Codilla, Jr.
MCC Industrial Sales Corp. vs. Ssangyong Corp
Rule on DNA
Ong v. Diaz
THIRD DIVISION
DEC IS IO N
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court assailing the November 7, 2003 Decision[1] and April 15, 2004
Resolution[2] of the Court of Appeals (CA) in CA-G.R. SP No. 75860.
After investigating, Security Investigators Paul Pespes, Jr. and Felimon Ringor
(Security Investigators) executed a Joint Affidavit, which reads as follows:
xxx x
At about 3:40 PM of September 15, 2000, while we were at the Lepanto Security
Investigation office, we received a report that the LMD Asst. Resident Manager, Mr. Dwayne
Chambers saw and surprised several unidentified miners at 8K Stope, 850 level committing
Highgrading activities therein;
Consequently, all miners assigned to work therein including their supervisor and SG
Ceasarion Damoslog, an element of the Mine Security Patrol posted therein as stationary guard
were called to this office for interrogation regarding this effect;
In the course of the investigation, we eventually learned that the highgrading event really
transpired somewhere at the roadway of 8K Stope, 850 level at about 2:00 o’clock PM of
September 15, 2000. That the involved participants were all miners assigned to work at 7K Stope,
8K Stope, 240 E, Cross Cut South level drive, all located at 850 mine level. Likewise, the detailed
stationary guard assigned thereat and some mine supervisors were also directly involved in this
activity;
Security Guard Ceasarion Damoslog honestly confessed his direct participation then
claimed that he was allegedly convinced by Mr. Joel Gumatin, one of the miners assigned at Panel
No.1-est-North, 8K Stope, 850 level to cooperate with them to commit Highgrading. He revealed
his companions to be all the miners assigned at 8K stope, namely, Joel Gumatin, Brent Suyam,
Maximo Madao, Elmo Tundagui and Daniel Fegsar. He also included those who were assigned to
work at 240 E, XCS, namely: Thomas Garcia (immediate supervisor), John Kitoyan, Moreno
Dumapis, and Marolito Cativo. He enumerated also messrs. Benedict Arocod, Samson Damian,
and Dionisio Bandoc, 7K Stope, 850 level assigned miners and shiftboss, respectively;
Mr. Pablo Daguio, the shiftboss of 240 E, XCS, 850 level also positively confirmed the
Highgrading activity. He added that actually he came upon the group and even dispersed them
when he went therein prior to the arrival of Mr. Chambers;
Furthermore, we also learned from the confession of Mr. Maximo Madao that its was
messrs. Joel Gumatin and Brent Suyam who took their issued rock drilling machine then drilled
holes and blasted the same at the 8K Stope roadway with the assistance of Thomas Garcia, John
Kitoyan, Benedict Arocod, Samsom Damian, Daniel Fegsar and Francisco Liagao. That SG Ceasarion
Damoslog was present on the area standing and watching the group during the incident;
That we are executing this joint affidavit to establish the foregoing facts and to support
any complaint that may be filed against respondents;
IN WITNESS WHEREOF, we have hereunto set our hands and affix our signature this 28 th
day of September 2000, at Lepanto, Mankayan, Benguet. [8]
(Emphasis supplied)
On November 14, 2000, respondents together with the nine other miners,
filed a Complaint for illegal dismissal with the Labor Arbiter (LA), docketed as
NLRC Case No. 11-0607-00 against petitioner.[10] On August 21, 2001, the LA
dismissed the complaint for lack of merit.
On September 22, 2001, the miners appealed the decision of the LA to the
National Labor Relations Commission (NLRC). On August 30, 2002, the NLRC
rendered a Decision, declaring the dismissal of herein respondents as illegal, but
affirming the dismissal of the nine other complainant miners. The dispositive
portion of the NLRC Decision insofar as respondents are concerned, reads:
WHEREFORE, premises considered, the DECISION dated August 21, 2001 is hereby
MODIFIED declaring the dismissal of complainants [herein respondents] Moreno Dumapis,
Elmo Tundagui and Francis Liagao illegal and ordering respondent to pay them backwages in
the total amount of four hundred eighty thousand one hundred eighty two pesos and
63/100 (P480, 182.63) and separation pay in the total amount of four hundred seventeen
thousand two hundred thirty pesos and 32/100 (P417,230.32) as computed in the body of
the decision.
x xx x
SO ORDERED.[11]
Petitioner filed a motion for reconsideration which was denied for lack of
merit by the NLRC in its Resolution dated on November 22, 2002.[12]
Petitioner then filed a petition for certiorari under Rule 65 of the Rules of
Court with the CA assailing the aforementioned decision and resolution of
the NLRC. The CA affirmed the decision of the NLRC[13] and denied
petitioner’s Motion for Reconsideration.
The Court of Appeal’s strict application of the hearsay rule under Section 36, Rule 130 of the
Rules of Court to the present case is uncalled for.
In cases of dismissal for breach of trust and confidence, proof beyond doubt is not required, it
being sufficient that the employer has reasonable ground to believe that the employees are
responsible for the misconduct which renders them unworthy of the trust and confidence
demanded by their position.[15]
We subscribed to the conclusion of the NLRC that the Joint Affidavit of Security Investigators
Paul D. Pespes, Jr. and Felimon Ringor is hearsay and thus, inadmissible. Their narration of
factual events was not based on their personal knowledge but on disclosures made by
Chambers and Daguio. Section 36, Rule 130 of the Rules of Court defined the nature of
hearsay:
Witness can testify only to those facts which he knows of his personal knowledge, that is,
which are derived from his own perception, except as otherwise provided in these
rules.[16]
Arguing for the admissibility of the Joint Affidavit, petitioner cites Article 221
of the Labor Code, as amended, which provides:
Article 221. Technical rules not binding and prior resort to amicable settlement. In any
proceeding before the Commission or any Labor Arbiters, the rules of evidence prevailing
in courts of law or equity shall not be controllingand it is the spirit and intention of the
Code that the Commission and its members and the Labor Arbiters shall use every and all
reasonable means to ascertain the facts in each case speedily and objectively and without
regard to the technicalities of law or procedure, all in the interest of due process. x x
x (Emphasis supplied)
Administrative bodies like the NLRC are not bound by the technical niceties
of law and procedure and the rules obtaining in courts of law. Indeed, the
Revised Rules of Court and prevailing jurisprudence may be given only
stringent application, i.e., by analogy or in a suppletory character and
effect.[17]
In a number of cases,[18] this Court has construed Article 221 of the Labor
Code as permitting the NLRC or the LA to decide a case on the basis of
position papers and other documents submitted without necessarily
resorting to technical rules of evidence as observed in the regular courts of
justice. Rules of evidence are not strictly observed in proceedings before
administrative bodies like the NLRC.[19]
Thus, the CA and the NLRC erred in ruling that the Joint Affidavit is
inadmissible for being hearsay. The Joint Affidavit of the Security
Investigators is admissible for what it is, an investigation report.
According to petitioner, the foregoing Report established that respondent was dismissed
x x xx
Verily, the report of Chief Engineer Retardo is utterly bereft of probative value. It is not
verified by an oath and, therefore, lacks any guarantee of trusthworthiness. It is furthermore,
and this is crucial, not sourced from the personal knowledge of Chief Engineer Retardo. It is
rather based on the perception of “ATTENDING SUPT. ENGINEERS CONSTANTLY OBSERVING ALL
PERSONNELS ABILITY AND ATTITUDE WITH REGARDS TO OUR TECHNICAL CAPABILITY AND
BEHAVIOURS WITH EMPHASY *sic+ ON DISCIPLINE” who “ NOTICED 3/E ROSAROSO AS BEING
SLACK AND NOT CARING OF HIS JOB AND DUTIES x x x.” Accordingly, the report is plain
hearsay. It is not backed up by the affidavit of any of the “Supt.” Engineers who purportedly
had first-hand knowledge of private respondents supposed “lack of discipline,” “irresponsibility”
and “lack of diligence” which caused him to lose his job. x x x
The Courts finds no reason to reverse the foregoing findings. [25] (Emphasis supplied)
While it is true that administrative or quasi-judicial bodies like the NLRC are
not bound by the technical rules of procedure in the adjudication of cases,
this procedural rule should not be construed as a license to disregard certain
fundamental evidentiary rules. The evidence presented must at least have a
modicum of admissibility for it to have probative value.[26] Not only must
there be some evidence to support a finding or conclusion, but the evidence
must be substantial. Substantial evidence is more than a mere
scintilla.[27] It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.[28] Thus, even though technical
rules of evidence are not strictly complied with before the LA and the NLRC,
their decision must be based on evidence that must, at the very least, be
substantial.[29]
An examination of the Joint Affidavit reveals that the facts alleged therein by
the Security Investigators are not of their own personal knowledge. They
simply referred to the facts allegedly relayed to them by Chambers,
Damoslog, Daguio, and Madao. Thus, there is a need to individually
scrutinize the statements and testimonies of the four sources of the Joint
Affidavit in order to determine the latter’s probative weight.
The Joint Affidavit states that, “Mr. Dwayne Chambers saw and surprised
several unidentified miners x x x.”[30] Chambers simply narrated to the
Security Investigators what he saw but did not indicate herein respondents.
Evidence Page 193
Security Investigators what he saw but did not indicate herein respondents.
Records show that Damoslog submitted two sworn statements. In his first
statement,[32] Damoslog claimed that he was unaware of the act of
highrading, and denied any involvement therein. However, in his second
statement,[33] Damoslog claimed to have personally witnessed the act of
highgrading and named the miners involved to wit:
08. Ques - Who was the companion of Mr. Gumatin when he approached you?
Ans - He was alone.
09. Ques - Did Gumatin specifically informed [sic] you his problem?
Ans - I did not asked him honestly but he only insisted that he needed an amount of
money badly as I earlier said.
10. Ques - So just after telling his purpose did he started [sic] the highgrading activity?
Ans - No, the highgrading scheme started at past 1300 Hrs.
The Joint Affidavit also states that Daguio positively confirmed the act of
highgrading. However, in his sworn statement,[35] Daguio claims that he did
not recognize nor did he identify any of the miners, to wit:
11. Ques - In your own honest observation, what could be the estimate [sic] number of this
group of miners doing highgrading activities?
Ans - I don’t know but obviously they were several as manifested by their number of
cap lamplights. I also speculated that some of them were hidden at the curved inner access of the
roadway enroute to the inner area.
12. Ques - Did you recognize nor [sic] identify any of them?
Ans - Honestly, no.[36] (Emphasis supplied)
Lastly, the Joint Affidavit also points to the confession of Madao wherein he
particularly named respondent Liagao as one of the miners involved in the
act of highgrading.
When I, MAXIMO MADAO reported for work on September 16, 2000, I am being required to
Based on the foregoing, the Court is convinced that the Joint Affidavit, being
sourced from Chambers, Damoslog, Daguio and Madao, has no probative
value to support evidence to warrant the dismissal of the
respondents. Chambers and Daguio did not identify the miners involved in
the act of highgrading. In addition, Damoslog’s first and second sworn
statements did not implicate respondents, and Madao recanted his
statement implicating respondent Liagao. As earlier discussed, the sworn
statements and joint affidavits of the sources do not corroborate but actually
cast doubt as to the veracity of the statements in the Joint Affidavit.
While the Court agrees that the job of the respondents, as miners, although
generally described as menial, is nevertheless of such nature as to require a
substantial amount of trust and confidence on the part of petitioner,[43] the
rule that proof beyond reasonable doubt is not required to terminate an
employee on the charge of loss of confidence, and that it is sufficient that
there be some basis for such loss of confidence, is not absolute.[44]
In the present case, the Court reiterates that the evidence is not substantial
to hold respondents guilty of highgrading so as to warrant the dismissal of
respondents.
SO ORDERED.
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
RUBEN T. REYES
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairperson’s Attestation, it is hereby certified that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
[1] Penned by Justice Buenaventura J. Guerrero with the concurrence of Justices Andres B. Reyes, Jr. and
Regalado E. Maambong; rollo, pp. 9-19.
[2] Id. at 20-21.
[3] Id. at 10.
[4] Rollo, p. 27.
[5] Presidential Decree No. 581, Section 1: Any person who shall take gold-bearing ores or rocks from a
mining claim or mining camp or shall remove, collect or gather gold-bearing ores or rocks in place or shall extract
or remove the gold from such ores or rocks, or shall prepare and treat such ores or rocks to recover or extract the
gold contents thereof, without the consent of the operator of the mining claim, shall be guilty of "highgrading" or
theft of gold x x x.
[6] Rollo, p.10.
[7] Id. at 27.
[8] Rollo, p. 177.
[9] Id. at 183-185.
[10] Id. at 210-221.
[11] Rollo, p. 67.
[12] Id. at 70.
[13] Id. at 9-19.
[14] Id. at 31.
[15] Rollo, p. 31.
[16] Id. at 52.
[17] Bantolino v. Coca-Cola Bottlers, Phils., G.R. No. 153660, June 10, 2003, 403 SCRA 699, 704.
[18] Robusta Agro Marine Products, Inc. v. Gorobalem, G.R. No. 80500, July 5, 1989, 175 SCRA 93; Sevillana
v. I.T. Corp., 408 Phil. 570 (2001).
[19] Bantolino v. Coca-Cola Bottlers, Phils., supra note 17, at 703.
[20] Bantolino v. Coca-Cola Bottlers, Phils., id.
EN BANC
[A.M. No. CA-05-18-P. April 12, 2005]
ZALDY NUEZ, complainant, vs. ELVIRA CRUZ-APAO, respondent.
DE C I S I O N
PER CURIAM:
What brings our judicial system into disrepute are often the actuations of a few erring court personnel
peddling influence to party-litigants, creating the impression that decisions can be bought and sold,
ultimately resulting in the disillusionment of the public. This Court has never wavered in its vigilance in
eradicating the so-called “bad eggs” in the judiciary. And whenever warranted by the gravity of the
offense, the supreme penalty of dismissal in an administrative case is meted to erring personnel.[1]
The above pronouncement of this Court in the case of Mendoza vs. Tiongson[2] is applicable to the case
at bar.
This is an administrative case for Dishonesty and Grave Misconduct[3] against Elvira Cruz-Apao
(Respondent), Executive Assistant II of the Acting Division Clerk of Court of the Fifteenth (15th) Division,
Court of Appeals (CA). The complaint arose out of respondent’s solicitation of One Million Pesos
(P1,000,000.00) from Zaldy Nuez (Complainant) in exchange for a speedy and favorable decision of the
latter’s pending case in the CA,[4] more particularly, CA-G.R. SP No. 73460 entitled “PAGCOR vs. Zaldy
Nuez.”[5] Complainant initially lodged a complaint with the Action Center of the Television program
Imbestigador of GMA Network,[6] the crew of which had accompanied him to the Presidential Anti-
Organized Crime Commission–Special Projects Group (PAOCC-SPG) in Malacañang where he filed a
complaint for extortion[7] against respondent. This led to the conduct of an entrapment operation by
elements of the Presidential Anti-Organized Crime Task Force (PAOCTF) on 28 September 2004 at the
Jollibee Restaurant, 2nd Floor, Times Plaza Bldg., corner Taft and United Nations Avenue, Manila,[8] the
place where the supposed hand-over of the money was going to take place.
Respondent’s apprehension by agents of the PAOCTF in the course of the entrapment operation
prompted then CA Presiding Justice (PJ) Cancio C. Garcia (now Supreme Court Justice) to issue Office
Order No. 297-04-CG[9] (Order) which created an ad-hoc investigating committee (Committee).[10] The
Committee was specifically tasked among others to conduct a thorough and exhaustive investigation of
respondent’s case and to recommend the proper administrative sanctions against her as the evidence
may warrant.[11]
In accordance with the mandate of the Order, the Committee conducted an investigation of the case
and issued a Resolution[12] dated 18 October 2004 where it concluded that a prima facie case of
Dishonesty and Serious Misconduct against respondent existed. The Committee thus recommended
respondent’s preventive suspension for ninety (90) days pending formal investigation of the charges
against her.[13] On 28 January 2005, the Committee submitted a Report[14] to the new CA Presiding
Justice Romeo A. Brawner with its recommendation that respondent be dismissed from service.
Based on the hearings conducted and the evidence received by the Committee, the antecedent facts are
as follows:
Complainant’s case referred to above had been pending with the CA for more than two years.[15]
Complainant filed an illegal dismissal case against PAGCOR before the Civil Service Commission
(CSC). The CSC ordered complainant’s reinstatement but a writ of preliminary injunction and a
temporary restraining order was issued by the CA in favor of PAGCOR, thus complainant was not
reinstated to his former job pending adjudication of the case.[16] Desiring an expeditious decision of his
case, complainant sought the assistance of respondent sometime in July 2004 after learning of the
latter’s employment with the CA from her sister, Magdalena David. During their first telephone
conversation[17] and thereafter through a series of messages they exchanged via SMS,[18] complainant
informed respondent of the particulars of his pending case. Allegedly, complainant thought that
respondent would be able to advise him on how to achieve an early resolution of his case.
However, a week after their first telephone conversation, respondent allegedly told complainant that a
favorable and speedy decision of his case was attainable but the person who was to draft the decision
was in return asking for One Million Pesos (P1,000,000.00).[19]
Evidence Page 206
was in return asking for One Million Pesos (P1,000,000.00).[19]
Complainant expostulated that he did not have that kind of money since he had been jobless for a long
time, to which respondent replied, “Eh, ganoon talaga ang lakaran dito, eh. Kung wala kang pera,
pasensiya na.”[20] Complainant then tried to ask for a reduction of the amount but respondent held firm
asserting that the price had been set, not by her but by the person who was going to make the
decision.[21] Respondent even admonished complainant with the words “Wala tayo sa palengke iho!”[22]
when the latter bargained for a lower amount.[23]
Complainant then asked for time to determine whether or not to pay the money in exchange for the
decision. Instead, in August of 2004, he sought the assistance of Imbestigador.[24] The crew of the TV
program accompanied him to PAOCCF-SPG where he lodged a complaint against respondent for
extortion.[25] Thereafter, he communicated with respondent again to verify if the latter was still asking
for the money[26] and to set up a meeting with her.[27] Upon learning that respondent’s offer of a
favorable decision in exchange for One Million Pesos (P1,000,000.00) was still standing, the plan for the
entrapment operation was formulated by Imbestigador in cooperation with the PAOCC.
On 24 September 2004, complainant and respondent met for the first time in person at the 2nd Floor of
Jollibee, Times Plaza Bldg.,[28] the place where the entrapment operation was later conducted. Patricia
Siringan (Siringan), a researcher of Imbestigador, accompanied complainant and posed as his sister-in-
law.[29] During the meeting, complainant clarified from respondent that if he gave the amount of One
Million Pesos (P1,000,000.00), he would get a favorable decision. This was confirmed by the latter
together with the assurance that it would take about a month for the decision to come out.[30]
Respondent also explained that the amount of One Million Pesos (P1,000,000.00) guaranteed a
favorable decision only in the CA but did not extend to the Supreme Court should the case be appealed
later.[31]
When respondent was asked where the money will go, she claimed that it will go to a male researcher
whose name she refused to divulge. The researcher was allegedly a lawyer in the CA Fifth (5th) Division
where complainant case was pending.[32] She also claimed that she will not get any part of the money
unless the researcher decides to give her some.[33]
Complainant tried once again to bargain for a lower amount during the meeting but respondent
asserted that the amount was fixed. She even explained that this was their second transaction and the
reason why the amount was closed at One Million Pesos (P1,000,000.00) was because on a previous
occasion, only Eight Hundred Thousand Pesos (P800,000.00) was paid by the client despite the fact that
the amount had been pegged at One Million Three Hundred Thousand Pesos (P1,300,000.00).[34]
Complainant then proposed that he pay a down payment of Seven Hundred Thousand Pesos
(P700,000.00) while the balance of Three Hundred Thousand Pesos (P300,000.00) will be paid once the
decision had been released.[35] However, respondent refused to entertain the offer, she and the
researcher having learned their lesson from their previous experience for as then, the client no longer
paid the balance of Five Hundred Thousand Pesos (P500,000.00) after the decision had come out.[36]
Complainant brought along copies of the documents pertinent to his case during the first meeting. After
reading through them, respondent allegedly uttered, “Ah, panalo ka.”[37] The parties set the next
meeting date at lunchtime on 28 September 2004 and it was understood that the money would be
handed over by complainant to respondent then.[38]
On the pre-arranged meeting date, five (5) PAOCTF agents, namely: Capt. Reynaldo Maclang (Maclang)
as team leader, SPO1 Renato Banay (Banay), PO1 Bernard Villena (Villena), PO1 Danny Feliciano, and
PO2 Edgar delos Reyes[39] arrived at around 11:30 in the morning at Jollibee.[40] Nuez and Siringan
arrived at past noon and seated themselves at the table beside the one occupied by the two (2) agents,
Banay and Villena. Complainant had with him an unsealed long brown envelope containing ten (10)
bundles of marked money and paper money which was to be given to respondent.[41] The envelope did
not actually contain the One Million Pesos (P1,000,000.00) demanded by respondent, but instead
contained paper money in denominations of One Hundred Pesos (P100.00), Five Hundred Pesos
(P500.00) and One Thousand Pesos (P1,000.00), as well as newspaper cut-outs.[42] There were also ten
(10) authentic One Hundred Peso (P100.00) bills which had been previously dusted with ultra-violet
powder by the PAOCTF.[43] The three other PAOCTF agents were seated a few tables away[44] and there
were also three (3) crew members from Imbestigador at another table operating a mini DV camera that
was secretly recording the whole transaction.[45]
Respondent arrived at around 1:00 p.m.[46] She appeared very nervous and suspicious during the
On the other hand, an "electronic document" refers to information or the representation of information,
data, figures, symbols or other models of written expression, described or however represented, by
which a right is established or an obligation extinguished, or by which a fact may be proved and
affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced
electronically.5 It includes digitally signed documents and any printout, readable by sight or other means
which accurately reflects the electronic data message or electronic document.6
The rules use the word "information" to define an electronic document received, recorded, transmitted,
stored, processed, retrieved or produced electronically. This would suggest that an electronic document
is relevant only in terms of the information contained therein, similar to any other document which is
presented in evidence as proof of its contents.7 However, what differentiates an electronic document
from a paper-based document is the manner by which the information is processed; clearly, the
information contained in an electronic document is received, recorded, transmitted, stored, processed,
retrieved or produced electronically.
A perusal of the information contained in the photocopies submitted by petitioner will reveal that not all
of the contents therein, such as the signatures of the persons who purportedly signed the documents,
may be recorded or produced electronically. By no stretch of the imagination can a person’s signature
affixed manually be considered as information electronically received, recorded, transmitted, stored,
processed, retrieved or produced. Hence, the argument of petitioner that since these paper printouts
were produced through an electronic process, then these photocopies are electronic documents as
defined in the Rules on Electronic Evidence is obviously an erroneous, if not preposterous,
interpretation of the law. Having thus declared that the offered photocopies are not tantamount to
electronic documents, it is consequential that the same may not be considered as the functional
On April 13, 2000, Ssangyong Manila Office sent, by fax, a letter9 addressed to Gregory Chan, MCC
Manager [also the President10 of Sanyo Seiki Stainless Steel Corporation], to confirm MCC's and Sanyo
Seiki's order of 220 metric tons (MT) of hot rolled stainless steel under a preferential rate of US
$1,860.00 per MT. Chan, on behalf of the corporations, assented and affixed his signature on the
conforme portion of the letter.11
On April 17, 2000, Ssangyong forwarded to MCC Pro Forma Invoice No. ST2-POSTSO40112 containing the
terms and conditions of the transaction. MCC sent back by fax to Ssangyong the invoice bearing the
conformity signature 13 of Chan. As stated in the pro forma invoice, payment for the ordered steel
products would be made through an irrevocable letter of credit (L/C) at sight in favor of Ssangyong.14
Following their usual practice, delivery of the goods was to be made after the L/C had been opened.
In the meantime, because of its confirmed transaction with MCC, Ssangyong placed the order with its
steel manufacturer, Pohang Iron and Steel Corporation (POSCO), in South Korea15 and paid the same in
full.
Because MCC could open only a partial letter of credit, the order for 220MT of steel was split into two,16
one for 110MT covered by Pro Forma Invoice No. ST2-POSTS0401-117 and another for 110MT covered
by ST2-POSTS0401-2,18 both dated April 17, 2000.
On June 20, 2000, Ssangyong, through its Manila Office, informed Sanyo Seiki and Chan, by way of a fax
Two days later, on June 22, 2000, Ssangyong Manila Office informed Sanyo Seiki, thru Chan, that it was
able to secure a US$30/MT price adjustment on the contracted price of US$1,860.00/MT for the 200MT
stainless steel, and that the goods were to be shipped in two tranches, the first 100MT on that day and
the second 100MT not later than June 27, 2000. Ssangyong reiterated its request for the facilitation of
the L/C's opening.21
Ssangyong later, through its Manila Office, sent a letter, on June 26, 2000, to the Treasury Group of
Sanyo Seiki that it was looking forward to receiving the L/C details and a cable copy thereof that day.22
Ssangyong sent a separate letter of the same date to Sanyo Seiki requesting for the opening of the L/C
covering payment of the first 100MT not later than June 28, 2000.23 Similar letters were transmitted by
Ssangyong Manila Office on June 27, 2000.24 On June 28, 2000, Ssangyong sent another facsimile letter
to MCC stating that its principal in Korea was already in a difficult situation25 because of the failure of
Sanyo Seiki and MCC to open the L/C's.
The following day, June 29, 2000, Ssangyong received, by fax, a letter signed by Chan, requesting an
extension of time to open the L/C because MCC's credit line with the bank had been fully availed of in
connection with another transaction, and MCC was waiting for an additional credit line.26 On the same
date, Ssangyong replied, requesting that it be informed of the date when the L/C would be opened,
preferably at the earliest possible time, since its Steel Team 2 in Korea was having problems and
Ssangyong was incurring warehousing costs.27 To maintain their good business relationship and to
support MCC in its financial predicament, Ssangyong offered to negotiate with its steel manufacturer,
POSCO, another US$20/MT discount on the price of the stainless steel ordered. This was intimated in
Ssangyong's June 30, 2000 letter to MCC.28 On July 6, 2000, another follow-up letter29 for the opening of
the L/C was sent by Ssangyong to MCC.
However, despite Ssangyong's letters, MCC failed to open a letter of credit.30 Consequently, on August
15, 2000, Ssangyong, through counsel, wrote Sanyo Seiki that if the L/C's were not opened, Ssangyong
would be compelled to cancel the contract and hold MCC liable for damages for breach thereof
amounting to US$96,132.18, inclusive of warehouse expenses, related interests and charges.31
Later, Pro Forma Invoice Nos. ST2-POSTS080-132 and ST2-POSTS080-233 dated August 16, 2000 were
issued by Ssangyong and sent via fax to MCC. The invoices slightly varied the terms of the earlier pro
forma invoices (ST2-POSTSO401, ST2-POSTS0401-1 and ST2-POSTS0401-2), in that the quantity was
now officially 100MT per invoice and the price was reduced to US$1,700.00 per MT. As can be gleaned
from the photocopies of the said August 16, 2000 invoices submitted to the court, they both bear the
conformity signature of MCC Manager Chan.
On August 17, 2000, MCC finally opened an L/C with PCIBank for US$170,000.00 covering payment for
100MT of stainless steel coil under Pro Forma Invoice No. ST2-POSTS080-2.34 The goods covered by the
said invoice were then shipped to and received by MCC.35
MCC then faxed to Ssangyong a letter dated August 22, 2000 signed by Chan, requesting for a price
adjustment of the order stated in Pro Forma Invoice No. ST2-POSTS080-1, considering that the prevailing
price of steel at that time was US$1,500.00/MT, and that MCC lost a lot of money due to a recent
strike.36
Ssangyong rejected the request, and, on August 23, 2000, sent a demand letter37 to Chan for the
opening of the second and last L/C of US$170,000.00 with a warning that, if the said L/C was not opened
by MCC on August 26, 2000, Ssangyong would be constrained to cancel the contract and hold MCC liable
for US$64,066.99 (representing cost difference, warehousing expenses, interests and charges as of
August 15, 2000) and other damages for breach. Chan failed to reply.
Exasperated, Ssangyong through counsel wrote a letter to MCC, on September 11, 2000, canceling the
sales contract under ST2-POSTS0401-1 /ST2-POSTS0401-2, and demanding payment of US$97,317.37
Senator Magsaysay. Mr. President, if my memory does not fail me, earlier, the lady Senator accepted
that we use the term "Data Message" rather than "ELECTRONIC RECORD" in being consistent with the
UNCITRAL term of "Data Message." So with the new amendment of defining "ELECTRONIC RECORD," will
this affect her accepting of the use of "Data Message" instead of "ELECTRONIC RECORD"?
Senator Santiago. No, it will not. Thank you for reminding me. The term I would like to insert is
ELECTRONIC DATA MESSAGE in lieu of "ELECTRONIC RECORD."
Senator Magsaysay. Then we are, in effect, amending the term of the definition of "Data Message" on
page 2A, line 31, to which we have no objection.
Senator Santiago. Thank you, Mr. President.
xxx x
Senator Santiago. Mr. President, I have proposed all the amendments that I desire to, including the
amendment on the effect of error or change. I will provide the language of the amendment together
with the explanation supporting that amendment to the distinguished sponsor and then he can feel free
to take it up in any session without any further intervention.
A facsimile machine, which was first patented in 1843 by Alexander Bain,83 is a device that can send or
receive pictures and text over a telephone line. It works by digitizing an image—dividing it into a grid of
dots. Each dot is either on or off, depending on whether it is black or white. Electronically, each dot is
represented by a bit that has a value of either 0 (off) or 1 (on). In this way, the fax machine translates a
picture into a series of zeros and ones (called a bit map) that can be transmitted like normal computer
data. On the receiving side, a fax machine reads the incoming data, translates the zeros and ones back
into dots, and reprints the picture.84 A fax machine is essentially an image scanner, a modem and a
computer printer combined into a highly specialized package. The scanner converts the content of a
physical document into a digital image, the modem sends the image data over a phone line, and the
A facsimile or fax transmission is a process involving the transmission and reproduction of printed and
graphic matter by scanning an original copy, one elemental area at a time, and representing the shade
or tone of each area by a specified amount of electric current. The current is transmitted as a signal over
regular telephone lines or via microwave relay and is used by the receiver to reproduce an image of the
elemental area in the proper position and the correct shade. The receiver is equipped with a stylus or
other device that produces a printed record on paper referred to as a facsimile.
x x x A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the
marks of an original. Without the original, there is no way of determining on its face whether the
facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It
may, in fact, be a sham pleading.87
X Pro forma Invoice dated 16 To prove that defendant MCC agreed to adjust and split the
August 2000, photocopy confirmed purchase order into 2 shipments at 100 metric
tons each at the discounted price of US$1,700/ton.
X-1 Notation "1/2", photocopy To prove that the present Pro forma Invoice was the first of 2
pro forma invoices.
X-2 Ref. No. ST2-POSTS080-1, To prove that the present Pro forma Invoice was the first of 2
photocopy pro forma invoices.
X-3 Conforme signature of To prove that defendant MCC, acting through Gregory Chan,
defendant Gregory Chan, agreed to the sale and purchase of the balance of 100 metric
photocopy tons at the discounted price of US$1,700/ton, apart from the
other order and shipment of 100 metric tons which was
delivered by plaintiff SSANGYONG and paid for by defendant
MCC.
DD Letter from defendant MCC to To prove that there was a perfected sale and purchase
plaintiff SSANGYONG dated 22 agreement between plaintiff SSANGYONG and defendant
August 2000, contained in MCC for the balance of 100 metric tons, apart from the other
facsimile/thermal paper with order and shipment of 100 metric tons which was delivered
back-up photocopy by plaintiff SSANGYONG and paid for by defendant MCC.
DD-1 Ref. No. ST2-POSTS080-1, To prove that there was a perfected sale and purchase
paper received by Ssangyong, however, the same is accompanied by a photocopy thereof containing a
clearer print of its contents.
10 Records, p. 49.
11 Id. at 336-337; Exhibit "W-1."
12 Id. at 216-217; Exhibits "E-1." The document is an original copy of the fax transmittal in thermal paper
received by Ssangyong, however, the same is accompanied by a photocopy thereof containing a clearer
print of its contents.
13 Id.; Exhibit "E-2."
14 Id.; Exhibit "E-1."
15 TSN, August 21, 2002, pp. 41-42, 67-68.
16 TSN, October 15, 2003, pp. 89-92.
17 Records, p. 215; Exhibit "E." This is a mere photocopy of the fax transmittal.
18 Id. at 218; Exhibit "F." This is a mere photocopy of the fax transmittal.
19 Id. at 219-220; Exhibit "G." The document is an original copy of the fax transmittal in thermal paper
received by Ssangyong, however, the same is accompanied by a photocopy thereof containing a clearer
print of its contents.
20 Id.; Exhibit "G-1."
21 Id. at 221; Exhibit "H."
22 Id. at 223; Exhibit "I."
23 Id. at 224; Exhibit "J."
24 Id. at 225; Exhibit "K."
25 Id. at 226; Exhibit "L." The document is a mere photocopy of the original fax message.
26 Id. at 227-228; Exhibit "M." The document is an original copy of the fax transmittal in thermal paper
originals by PCIBank.
35
Id. at 300-317; Exhibits "1-B" to "1-R."
36 Id. at 378-379; Exhibit "DD." The document is an original copy of the fax transmittal in thermal paper
received by Ssangyong, however, the same is accompanied by a photocopy thereof containing a clearer
print of its contents.
37 Id. at 234; Exhibit "R."
38 Id. at 235; Exhibit "S."
39
Id. at 1-10.
40 Id. at 262-267.
41 Id. at 254.
42 Id. at 275.
43
Id. at 408-412.
44 Id. at 411-412.
45
Id. at 444.
46
CA rollo, pp. 29-49.
47
Id. at 36.
48 Supra note 1.
49
CA rollo, pp. 127-128.
50 Id. at 131.
51 Id. at 160.
52 The firm's name was later changed to Zamora Poblador Vasquez & Bretaña.
53 CA rollo, p. 161.
54 Id. at 140-150.
55 Supra note 2.
56 Rollo, pp. 9-26.
57 Id. at 15.
58 415 Phil. 761 (2001).
59 G.R. No. 146478, July 30, 2004, 435 SCRA 512.
60 Philippine Ports Authority v. Sargasso Construction & Development Corporation, supra, at 527-528.
61 Yuchengco v. Court of Appeals, G.R. No. 165793, October 27, 2006, 505 SCRA 716, 723.
62 396 Phil. 1081 (2000).
63 Maharlika Publishing Corporation v. Tagle, 226 Phil. 456, 463-464 (1986).
64
Entitled "An Act Providing for the Recognition and Use of Electronic Commercial and Non-Commercial
Transactions and Documents, Penalties for Unlawful Use Thereof and For Other Purposes." Approved on
June 14, 2000.
65 Sections 6, 7 and 10 of R.A. No. 8792 read:
Sec. 6. Legal Recognition of Data Messages. Information shall not be denied legal effect, validity or
enforceability solely on the grounds that it is in the data message purporting to give rise to such legal
effect, or that it is merely referred to in that electronic data message.
Sec. 7. Legal Recognition of Electronic Documents. – Electronic documents shall have the legal effect,
validity or enforceability as any other document or legal writing, and –
(a) Where the law requires a document to be in writing, that requirement is met by an electronic
document if the said electronic document maintains its integrity and reliability and can be authenticated
so as to be usable for subsequent reference, in that –
RULE 3
ELECTRONIC DOCUMENTS
SECTION 1. Electronic Documents as functional equivalent of paper-based documents. – Whenever a
rule of evidence refers to the term writing, document, record, instrument, memorandum or any other
form of writing, such term shall be deemed to include an electronic document as defined in these Rules.
SEC. 2. Admissibility. – An electronic document is admissible in evidence if it complies with the rules on
admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner
prescribed by these Rules.
68 Rule 4 of the Rules on Electronic Evidence reads:
RULE 4
BEST EVIDENCE RULE
SECTION 1. Original of an Electronic Document. – An electronic document shall be regarded as the
equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by
sight or other means, shown to reflect the data accurately.
SEC. 2. Copies as equivalent of the originals. - When a document is in two or more copies executed at or
about the same time with identical contents, or is a counterpart produced by the same impression as
the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical
reproduction, or by other equivalent techniques which accurately reproduces the original, such copies
or duplicates shall be regarded as the equivalent of the original.
Carswell, a Division of Thomson Canada Ltd. or its Licensors; <www.westlaw.com> (visited August 27,
2007).
82 In its Guide to Enactment, the UNCITRAL explains the functional-equivalent approach of the Model
withdrawal of certificate of candidacy thru fax, but the original copy thereof was filed on the following
day; see also Justice Cuevas v. Muñoz, 401 Phil. 752 (2000), in which the facsimile transmission of the
request for provisional arrest and other supporting documents was allowed in extradition proceedings;
Heirs of Lourdes Sabanpan v. Comorposa, 456 Phil. 161 (2003), concerning a facsimile signature; and
Cathay Pacific Airways v. Fuentebella, G.R. No. 142541, December 15, 2005, 478 SCRA 97, which involves
a facsimile transmission of a notice of hearing.
88 III RECORD, SENATE 11th CONGRESS 2nd SESSION 781-783 (March 22, 2000).
89 House of Representatives' Transcript of Proceedings, June 5, 2000.
90 III RECORD, SENATE 11th CONGRESS 2nd SESSION 437 (February 21, 2000); III RECORD, SENATE 11th
71.
92 Nasipit Lumber Co. v. National Wages and Productivity Commission, 352 Phil. 503, 518 (1998).
93 The Philippine Statistical System (PSS), through the NSCB, created the Task Force to address the
statistical information requirements of the Electronic Commerce Act of 2000. The composition of the
provisions of this Rule, the original judgment or final order shall be vacated, and the action shall stand
for trial de novo; but the recorded evidence taken upon the former trial, in so far as the same is material
and competent to establish the issues, shall be used at the new trial without retaking the same.
Sec. 14. Evidence of good character of witness - Evidence of the good character of a WITNESS
Is NOT ADMISSIBLE until such character has been impeached
Cf. R130.51
Character evidence
Section 51. Character evidence not generally admissible; exceptions: —
(a) In Criminal Cases:
(1) The accused may prove his good moral character which is pertinent to the moral trait
involved in the offense charged.
(2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent
to the moral trait involved in the offense charged.
(3) The good or bad moral character of the offended party may be proved if it tends to establish
in any reasonable degree the probability or improbability of the offense charged.
(b) In Civil Cases:
Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of
character involved in the case.
(c) In the case provided for in Rule 132, Section 14, (46a, 47a)
Summary of rules
a. in criminal cases, the prosecution may not at the outset prove the bad moral character of the accused which is
pertinent to the moral trait involved in the offense charged. If the accused, however, in his defense attempts to
prove his good moral character, then the prosecution can introduce evidence of such bad moral character at the
rebuttal stage.
b. Also in criminal cases, the good or bad moral character of the offended party may always be proved by either
party as long as such evidence tends to establish the probability or improbability of the offense charged.
c. In civil cases, the moral character of either party thereto cannot be proved unless it s pertinent to the issue of
character involved in a case.
d. In both civil and criminal cases, the bad moral character of a witness may always be proved by either party,
but not evidence of h good moral character, unless it has been impeached.
- The prohibition against the prosecution initially attacking the character of the accused is intended to avoid unfair
prejudice to the accused who might otherwise be convicted not because he is guilty but because he is a person of
bad character.
- With respect to the accused, evidence must be “pertinent to the moral trait in the offense charged” e.g. in
prosecution for estafa, perjury or false testimony wherein the person’s moral trait for honesty or probity is
involved.
- With respect to the offended person, it is sufficient that such character evidence “may establish the probability
or improbability of the offense charged,” as in prosecutions for rape or consented abduction wherein the victim’s
chastity may be questioned, and in prosecutions for homicide wherein the pugnacious, quarrelsome or trouble-
seeking character of the victim is proper subject for inquiry.
- With respect to witnesses, such character evidence must refer to his “general reputation for truth, honesty or
integrity,” that is, affecting his credibility
- Proof of the bad character of the victim in a murder case is not admissible if the crime was committed through
treachery or premeditation.
- Bad moral character of a victim in a rape case is not admissible if the crime was committed by violence or
intimidation.
- In civil cases, for character evidence of a party to be admissible, the issue involved must be character, i.e. civil
action for damages arising from libel, slander or seduction.
Power of exclusions apply only to witnesses and not to parties in the civil case
If witness violates the order of exclusion, court may bar him from testifying or give little weight to his testimony
» Aside from his liability for contempt
People v Lua Chu (56 Phil 44): It is within the power of the trial judge to refuse to order the exclusion of the
principal witness of the government during the hearing of a criminal case and it may not, on that count alone,
be considered as an abuse of his discretion
.
Sec. 6. Competency.— Every child is presumed qualified to be a witness. However,
the court shall conduct a competency examination of a child, motu proprio or on
motion of a party, when it finds that substantial doubt exists regarding the ability of
the child to perceive, remember, communicate, distinguish truth from falsehood, or
appreciate the duty to tell the truth in court.
.
(a) Proof of necessity.— A party seeking a competency examination must present
proof of necessity of competency examination. The age of the child by itself is not a
sufficient basis for a competency examination.
Section 1: scope:
-electronic document (ED)
-electronic data message (EDM)
Section 3:
-Supplemented: by rules of court
Rule of non-discriminate: we don't discriminate: deemed to include an electronic document if refers to writing, document….
-still preserve privileged nature even if became electronic
ED vs. EDM
EDM: 4 verb, 3 adverb
ED: 7 verb, 1 adverb (electronically)
Rule 4: BER
R4.1: when regarded as functional equivalent:
*printout
*output readable by sight or other means + it could reflect the data accurately
When you say writing, does it have to be in a piece of paper (printout and output)?
VAA: readable by sight or by other means
e.g. laptop screen, brail
…readable by your eyes
H: FAX COPIES ARE NOT ELECTRONIC DATA MESSAGE NOR ELECTRONIC DOCuMENTS
Congress: wants the REE to cover paperless transactions
1. RA 8792: covers electronic commercial transaction
-this was discussed because the allegation was that this involved a electronic transaction
-discussion of history of the law: law is based on UNCITRAL MODEL LAW
-it was deleted, but was re-included in the IRR: (definition of a fax)
-but this was deleted in the REE!
Facsimile: tele-copy - you send a copy through a telephone line
*the thing received in the other side was not ED , even if it became digitized…?
If you use a digital camera, it takes an image and stores it…
If you go through the ultrasound, whether you print the picture of the baby or not…
If you go through the scanner in the airport, nothing is inputted but there's a machine in a software
…all of these are EDs, but why are electronic and fax where not?
These all were created electronically. A fax came from the piece of paper, its contents were converted to digital information.
-it appears that if something from the outside world is recorded and digitized DIRECTLY to something, converted to bits etc, i t is ED. But if
it uses something like a paper to record the information or contents from the outside world, and then convert the information from the
medium, i.e. the paper, it is not ED…
Strict interpretation of MCC: MCC only applies to pieces of paper because the aim of the law is to exclude paperless transactions from the
scope of the law...
Can the pro-forma invoice "copy" (the one received by Sanyong - court said that it was a copy because the original was in the Philippines)
be admissible under any other rule aside from REE?
VAA: still the original because it is what Ssanyong received! The issue is WHAT SSANYONG RECEIVED! The contents of what was r eceived!!!
Rule 5: Authentication of ED: "private electronic document" (not defined, so does this mean that if PUBLIC electronic document, no need
to authenticate? Why?)
1. Digitally signed: refers to system: ASSYMETRIC or PUBLIC CRYPTOSYSTEM
Is a Digital signature an electronic signature?
YES. Includes an electronic signature
-but sabi to authenticate, DIGITAL SIGNATURE LANG gagamitin!
Assymetric or public cryptosystem: two keys
-the system of DS implies sending: but do you have to send it for digital signature to appear?
Digital signature > applied to an electronic document through a PRIVATE KEY (applied from a certificate of authority)> then it is encrypted,
cannot be read WHY ENCRIPT? So that it would be secured when sent!!! How to decrypt it: by applying the PUBLIC KEY (which cor responds
to the private key; it is published in the website of the Certificate of Authority together with your name)
Shell: the most basic computer in the computer network; from which the programs in the network…
2. Evidence that other appropriate security procedures or devices as may be AUTHORIZED BY THE SC
3. Evidence showing integrity and
Section 1. Inapplicability of the hearsay rule. – A memorandum, report, record or data compilation of acts, events, conditions, opinions, or
diagnoses,
made by electronic, optical or other similar means
at or near the time of …
or from transmission or supply of information … (to whom? Interpretation 1: the encoder would provide the information…)
by a person with knowledge thereof, and
e.g. ENCODE
Secretary encoded the transaction between her boss and another businessman after the transaction
-she has personal knowledge of the transaction
-interpretation 1: the information was CREATED when the secretary encoded the document which became the business record. It
becomes hearsay because when the business record would be presented before the court, it is hearsay because the secretary is not
presented before the court
EMAIL
The sender of the email supplies the information. But the information is just temporarily supplied (when you're online).
So the email (the one online) is the evidence itself, you can present it before the court and it would be an exception to hea rsay
e.g. what about the receipt in a department store… pasok sha sa "at…the time of transaction"
- Could it be "near the time of the transaction" but if it is so, the encoder must be the one who was involved or who has knowl edge of the
transaction…
-the business record should be testified on by the CUSTODIAN or other QUALIFIED WITNESS
WHEN PRESUMPTION OVERCOME (sabi ni ma'am, should not be "presumption" but ADMISSIBILITY):
*source (the encoder/information-provider) is untrustworthy
*method or circumstances of preparation, transmission …
EXAMINATION OF WITNESS:
-possibility of a witness testifying electronically…
REQUIREMENTS OF AN ELECTRONIC TESTIMONY
EPHEMERAL EVIDENCE
"Ephemeral electronic communication" refers to telephone conversations, text messages, chatroom sessions, streaming audio, st reaming
video, and other electronic forms of communication the evidence of which is not recorded or retained.
Sa AUDIO, VIDEO and SIMILAR EVIDENCE:
-are these ELECTRONIC audio, video…
YES. Under REE eh…
• Why was it separately treated eh di naman pala ephemeral ang video and audio (kasi nga pede naman i -record eh)
VAA: Rule 11 gives you a rule with respect only to ephemeral evidence!!!
As long as video or audio are electronic, the rules of electronic document apply!
*technology develops so fast that REE becomes obsolete even before it was enforced!!!
DNA EVIDENCE
-establishes:
-IDENTITY
-Kinship
3 rules of Kinship
*If exclude the putative parent from paternity: CONCLUSIVE proof of non -paternity
*If DNA test results' value is less than 99.9%: CORROBORATIVE EVIDENCE of paternity
*If DNA test results' value is 99.9% or greater: DISPUTABLE presumption of paternity
DNA
-it is unique to a person
-biological sample: from an organic source (living part of your body)
DNA TESTING
GR: with court order
X: by government agencies
-post conviction DNA testing: only if it would result in the reversal or modification of the judgment of conviction
EXERCISES: The midterms!!!P was an abusive policeman who was also a wife -batterer. One day while his wife W was talking to Mrs. G on
the cellphone he barked his usual orders for an immediate meal. When he heard W murmur; ''O, mare sige na ang aga aga pero m ay
sumpong yata si compare me.' P slid into a fitful rage and pinted his gun at W, who then began to scream in terror. Begging P repeatedly
not to hurt her, not t shoot her, saying 'P maawa ka, wagg mo ko saktan, wag mo ko barilin' to which P heatedly responded wi th
recriminatins about her disloyal whistleblowing to G. Unbenknown to P, G was talking to W on her (G's) speakerphone, such th at her G's
law stydet daughter LS was hearing everything. LS immediately switched on her audio casstte recorder and caught the continui ng harange
on tape. Unfortunately in her panic W, tried to shield herself with her arms which P misinterpreted as intending to grapple with the gun
so he swung at the arms of W. The gun accidentlly went off, killing W instantly. LS shut off the tape at once and she rushe d to the
residence of P and W.
At the trial against P for murder, the prosecution was trying to present the testimony o G that W repeatedly begged in terror 'wag mo ko
saktan' to show P's intent to kill. However
1) The defense objects on the ground of hearsay in that W's words constitute an out of court statement, being offered by the person
2. In the middle of 2008, C semt 18 year old S a demand letter, askin ghte latter to vacate the apartelle unit that he S and his father F had
been occupuing for three years before F died in early 2007 for the reasn that F had already sold the same to him C since earl y 2006. In his
reply leteer, S stated that the alleged 2006 deed of sale is a forgery and tha the unit subject thereof was duly inherited by him.
C filed an action to recover possession based on the alleged sale, attaching an alleged copy thereof to the complaint, and pr esenting the
original of said alleged deed of sale during the pre -trial. In his answer, S specifically denied the athenticity and due execution of the said
deed under oath, alleging that the same was falsifified and that C is a liar. C died before the could testify.
a. W the wife if C comes home from abroad and testifies on the signature of C on the deed of sale as well as the payments she ma de thereon
to F
-no objections
-not under Marital privilege (130.22) nor 130.24
b. A notary public testifies, indentifying the signatures of C and F on the deed of sale
-notary public not covered by privileged communication prohibition under R130.24(b)
3. When A died, he left behind three minor legitimate children, W, X, and Y and on e adult illegitimate child Z. Z instituted sp ecial proceedgins
for the partition of A;s estate and, pendente lite, his appointment as administrator. W X Y opposed in their capacity as legi tiamte children.
i. Any and all testimony from Z regarding any alleged extra0judicial act or declaration offered to show that Z was a'S illegitimate child by
reason of DMS
-DMS does not apply. Partition is not a "claim or demand" upon the estate of the deceased
ii. Testimony by D, lng time driver of A to the effect that one day in the recent past, during breakfast, A just bowed his head a nd remained
silent when his youngest child Y (whom Z admits in his pleadings is a legitimate child) confronted and asked him (a) whether or not it is
true that he A has an illegitimate child by the name of Z, on the ground that Rule 130.39 refers to acts declarations, not om issions, and
likewise invoking the requirements of evidence aliunde under the same rule.
-obiter: This rule is actually governed by admissions by silence "who does or says nothing"
-R130.39: does not apply because you must show evidence aliunde to show relationship before showing it…
On new year's eve, congressman V was a visitor in the household C. After downing several drinks, V became so unruly that he e nded up
smashing the crystal collection of C. It turned out that V had taken shabu earlier such that he was gloriously hihg.
Unfrotunaltely in his glorious rampage, V had cut himself with a 5000$ broken bottle in the neck, such that he was rshed to t he hospital.
Before the octor would sew his gaping wound, V had to tell the anaestjesiologist A that he had just imbibed drugs & alcohol. (samplex)
-already in the samplex. Would blacken the reputation…
Capt. Marlon Mendoza question… COMELEC Commissioner Virgilio Garcilliano during the 2004 pre -election period…
"Aprub na 'yong budget na P300 M na binigay ni Bong Pineda para siguraduhin ang panalo ni GMA"
If MM were to be presented by the prosecution in crresponding criminal cases agaisnt VG…would you object to its admissibility ?
SAGOT!!! It is an admission (the statement itself shows that he received something + act of toasting….)
-it the other officials were also impleaded, RIAA would apply but this would fall under exceptions: acts during the conspiracy !
Zuce example:
a. Hearsay but falls under exemption: R130.38 (declaration against interest - he would be liable for bribery) - In the case of Bernal, the victim
was the person whose interest was declared against!
-the testimony (declaration) is simply the mode by which you declare something against interest
VAA: hearsay under R130.38 also includes actions and documents, not only declarations
Accused A, B and C were detained at the city jail during their PI for illegal recruitment. While there, police got B and C to point to A as the
illegal recruier-employer, on which occasion, A just bowed his head and kept silent. At the trial, the prosecution will present B and C to
relate to the foregoing. Admissible?
Since PI, pede shang di magsalita because the accused has rights to remain silent during PI.
1.a. Right before one hearing during the trial itself, outside the courtroom, B and C again expressly pointed to A in front o f media
personnel, A simply turned away and avoided the cameras. Admissible?
Is this admission by silence? No. He is not bound to give a statement!
Accused A B and C were accused of murder. During trial, A sought and successfully got to be discharged as state witness, after executing
an affidavit… basta B and C who were impleaded in an affidavit
Affidavit was already done DURING TRIAL. You only need counsel during custodial investigation.
-hearsay ung affidavit, made out of court.
-RIAA: but conspiracy if proven should be an exception
On ZONA:
-if search NOT in plain view: incompetent
If in plain view: fruit of the poisonous tree
If you were asked to sign the sachet, you are pinpointed so custodial investigation na.