1
THIRD DIVISION otherwise if the purpose of placing the statement in the record is merely to establish
[G.R. No. 74065. February 27, 1989.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NERIO GADDI Y
CATUBAY, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Citizen Legal Assistance Office for defendant-appellant.
SYLLABUS
1.REMEDIAL LAW; CIRCUMSTANTIAL EVIDENCE; QUANTUM OF PROOF NECESSARY TO
SATISFY CONVICTION. Where the conviction of an accused is based merely on
circumstantial evidence, as in this case, it is essential for the validity of such conviction
that: 1) there be more than one circumstance; 2) the facts from which the inferences are
derived are proven; and 3) the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt [Section 5, Rule 133 of the Revised Rules
of Court People v. Modesto, G.R. No. L-25484, September 21, 1968, 25 SCRA
36; People v. Pajanustan, G.R. No. L-38162, May 17, 1980, 97 SCRA 699.] Although no
general rule has been formulated as to the quantity of circumstantial evidence which will
suffice for any case, yet all that is required is that the circumstances proved must be
consistent with each other, consistent with the hypothesis that the accused is guilty and
at the same time inconsistent with any other hypothesis except that of guilt.
2.ID.; EVIDENCE; CREDIBILITY OF WITNESS; ASSESSMENT OF TRIAL COURT GENERALLY
GIVEN GREAT WEIGHT AND RESPECT. As a rule, the trial court's assessment of the
credibility of the prosecution witnesses is entitled to great weight and respect since it
has the advantage of observing the demeanor of a witness while on the witness stand
and therefore can discern if such witness is telling the truth or not.
3.ID.; ID.; ID.; CONFESSION OF A PERSON TO THE COMMISSION OF A CRIME, NOT
VIOLATIVE OF THE HEARSAY RULE; EXCEPTION. This Tribunal had previously declared
that a confession constitutes evidence of high order since it is supported by the strong
presumption that no person of normal mind would deliberately and knowingly confess to
a crime unless prompted by truth and his conscience [People v. Salvador, G.R. No. L-
77964, July 26, 1988 citing People v. Castaneda; G.R. No. L-32625, August 31, 1979, 93
SCRA 59.] Proof that a person confessed to the commission of a crime can be presented
in evidence without violating the hearsay rule [Section 30, Rule 130 of the Revised Rules
of Court] which only prohibits a witness from testifying as to those facts which he merely
learned from other persons but not as to those facts which he "knows of his own
knowledge; that is, which are derived from his own perception." Hence, while the
testimony of a witness regarding the statement made by another person, if intended to
establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is
the fact that the statement was made or the tenor of such statement.
4.ID.; ID.; ID.; ALIBI, INHERENTLY A WEAK DEFENSE, REQUIRED TEST TO OVERCOME
EVIDENCE OF THE PROSECUTION. It has been ruled time and again that courts look
upon the evidence of alibi with suspicion and always receive it with caution not only
because it is inherently weak and unreliable but also because of its easy fabrication. To
overcome the evidence of the prosecution, an alibi must satisfy the test of "full, clear
and satisfactory evidence" This test requires not only proof that the accused was
somewhere else other than the scene of the crime but clear and convincing proof of
physical impossibility for the accused to have been at the place of the commission of the
crime.
5.ID.; ID.; CONVICTION OF ACCUSED MAY BE SUSTAINED INDEPENDENTLY OF THE EXTRA-
JUDICIAL CONFESSION. As the culpability of the accused has been established beyond
reasonable doubt by the evidence of the prosecution, there is no need to dwell on the
admissibility of appellant's extrajudicial confession. His conviction can be sustained
independently of said confession.
6.CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; TREACHERY AND EVIDENT
PREMEDITATION, NOT APPRECIATED. In the absence of proof as to how the victim was
killed, the aggravating circumstances of treachery and evident premeditation cannot be
properly appreciated. The killing must be considered as homicide only and not murder
since the circumstance qualifying the killing must be proven as indubitably as the killing
itself.
7.ID.; CRIME COMMITTED IS HOMICIDE NOT MURDER ABSENT ANY AGGRAVATING
CIRCUMSTANCE; PENALTY IMPOSABLE. As the evidence on record does not disclose the
existence of treachery and evident premeditation in the stabbing of the victim, the crime
committed is only HOMICIDE and not murder. Since there are neither mitigating nor
aggravating circumstances, the penalty for homicide which is reclusion temporal should
be imposed in its medium period. Applying the Indeterminate Sentence Law, the range
of the imposable penalty is from eight (8) years and one (1) day of prision mayor, as
minimum, to seventeen (17) years and four (4) months of reclusion temporal, as
maximum.
8.CIVIL LAW; DAMAGES; AWARD THEREOF REDUCED ACCORDINGLY. Absent any proof
of actual damages, the heirs of Augusto Esguerra are entitled only to the indemnity of
P30,000.00. Hence, the amount of P50,000.00 awarded by the trial court should be
reduced accordingly.
DECISION

CORTES, J p:
Nerio Gaddi y Catubay was charged with murder for the death of one Augusto Esguerra y
Navarro in an information which reads as follows:
xxx xxx xxx
That on or about the 11th day of December, 1981, in Quezon City, Metro
Manila, Philippines, the above-named accused, with intent to kill, without
any justifiable cause, qualified with treachery and with evident
premeditation (sic), did then and there, wilfully, unlawfully and
feloniously attack, assault and employ personal violence upon the
person of one AUGUSTO ESGUERRA y NAVARRO, by then and there
stabbing him several times with a knife, hitting him on the different parts
of his body, thereby inflicting upon him serious and mortal wounds which
were the direct and immediate cause of his death, to the damage and
prejudice of the heirs of the offended party in such amount as maybe
awarded under the provision of the Civil Code.
CONTRARY TO LAW. [Rollo, p. 15.]
After arraignment, wherein Gaddi pleaded not guilty, and trial Judge Maximiano C.
Asuncion of Branch 104 of the Regional Trial Court of Quezon City handed down a verdict
of guilt for the crime charged, the decretal portion of which reads:
xxx xxx xxx
WHEREFORE, the Court finds the accused NERIO GADDI y CATUBAY
guilty beyond reasonable doubt of the crime of murder, as charged in
the information, and hereby sentences him to suffer the penalty of
RECLUSION PERPETUA or LIFE IMPRISONMENT and to pay his heirs of
Augusto Esguerra the sum of P50,000.00 without subsidiary
imprisonment in case of insolvency, with all the accessory penalties
provided for by law, and to pay the costs.
SO ORDERED. [Rollo, p. 31.]
On appeal to this Court, Gaddi assigns as errors of the trial court the following:
I backyard of Ernesto Guzman. The policeman, with the help of the
2
THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE
TESTIMONY OF ERNESTO GUZMAN AND IN TOTALLY DISREGARDING THE
EVIDENCE ADDUCED BY THE DEFENSE.
II
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT
BASED ON HIS WRITTEN STATEMENT (EXH. "F") WHICH IS INADMISSIBLE
IN EVIDENCE.
III
THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING
CIRCUMSTANCES OF TREACHERY AND EVIDENT PREMEDITATION [Rollo, p.
38.]
The prosecution presented five (5) witnesses before the court a quo, namely: Ernesto
Guzman, Pat. Arturo Angeles, Cpl. Rogelio Castillo, Pat. Jesus Patriarca and Dr. Gregorio
C. Blanco. On the other hand, the accused Gaddi was the sole witness presented for the
defense. The prosecution's version of the facts are as follows:
xxx xxx xxx
At about 5:00 o'clock in the afternoon of December 11, 1981, at San
Bartolome, Novaliches, Quezon City, Ernesto Guzman saw appellant
Nerio Gaddi and the victim Augusto Esguerra drinking gin. In the
morning of the following day, December 12, 1981, appellant to]d Ernesto
Guzman that he killed his drinking partner Augusto Esguerra and
dumped his body in a toilet pit. Guzman advised appellant to surrender
to the police. After work, Guzman went to the police and reported what
appellant told him (pp. 2-3. tsn, September 2, 1982; pp. 2-8. tsn, August
9, 1983).
At around 2:00 o'clock in the afternoon of the same day, December 12,
1981, Corporal Rogelio Castillo and Detective Rodrigo Salamat arrested
appellant at Manrey Subdivision, Novaliches, Quezon City. Appellant told
Corporal Castillo that he killed the victim and where he buried the body.
Later, Pat. Jesus Patriarca arrived. Appellant himself led the policeman
and Barangay residents to where the body was in a toilet pit in the
Barangay residents, dug out the body. The body of the victim was
identified by Ernesto Guzman, his wife, and Jose Esguerra, victim's
brother. Pat. Patriarca took pictures of the body (Exhibits C to C-5), noted

the statements of Ernesto Guzman and Jose Esguerra, (Exhibit D), and
took down the confession of appellant (Exhibit F). Later, the cadaver was
subjected to autopsy (pp. 3-13, tsn, August 24, 1983; pp. 3-22, tsn,
January 3, 1984).
A man's T-shirt with collar, colored yellow, red and blue, and red shorts,
were recovered from the pit where the body of the victim was dug out.
The T-shirt and shorts were identified by Ernesto Guzman as those worn
by appellant while he was drinking with the victim on December 11,
1981 (pp. 2-3, tsn, September 2, 1982). A small table, rubber slipper,
bottle of wine and glass were likewise recovered from the same pit. (p. 6,
tsn, July 14, 1983). Brief for the Appellee, pp. 35; Rollo, p. 52.] LLphil
On the other hand, the defense's version of the facts are as follows:
Accused Nerio Gaddi a resident of Novaliches, Quezon City, testified that
on December 11, 1981, at around 2:00 to 5:00 p.m., he was drinking
with Augusto Esguerra (Bong Kuleleng) near the house of Ernesto
Guzman. At about 5:00 p.m., he was requested by Ernesto Guzman to
buy gin. He left Ernesto Guzman and Augusto Esguerra (who were
allegedly drinking) in order to buy a bottle of gin in a nearby store, about
200 meters away. At the store, he met an acquaintance and they talked
for a while before returning. Upon his arrival at the place (where they
had a drinking spree) he noticed stain of blood in the place where they
had been drinking and Augusto Esguerra, alias Bong Kuleleng was not
there anymore. He inquired from Ernesto Guzman the whereabouts of
Augusto Esguerra and was told that the latter "went home already." He
then asked Guzman about the blood and was told that it was the blood
stain of a "butchered chicken." At about 12:00 o'clock midnight, Ernesto
Guzman informed him about the killing of Augusto Esguerra Guzman
narrated to him that Bong Kuleleng (Augusto Esguerra) held his rooster
by the neck and that his tattoo mark BCJ (Batang City Jail) will be erased
by him. He did not report the killing to the authorities. Guzman likewise
requested him to admit the killing but he refused. While in the house,
Guzman filed the case ahead. He was later arrested and investigated
while looking for the corpse. When brought to the police station, he was
forced to admit the killing of Augusto Esguerra (TSN, pp. 3-14 August 20,
1984). [Appellant's Brief, p. 4-5; Rollo, p. 38.]
The Court finds the instant appeal unmeritorious.
3
Where the conviction of an accused is based merely on circumstantial evidence, as in
this case, it is essential for the validity of such conviction that: 1) there be more than one
circumstance; 2) the facts from which the inferences are derived are proven; and 3) the
combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt [Section 5, Rule 133 of the Revised Rules of Court People v. Modesto,
G.R. No. L-25484, September 21, 1968, 25 SCRA 36; People v. Pajanustan, G.R. No. L-
38162, May 17, 1980, 97 SCRA 699.] Although no general rule has been formulated as to
the quantity of circumstantial evidence which will suffice for any case, yet all that is
required is that the circumstances proved must be consistent with each other, consistent
with the hypothesis that the accused is guilty and at the same time inconsistent with any
other hypothesis except that of guilty [People v. Constante, G.R No. L-14639, December
28, 1964, 12 SCRA 653; People v. Caneda, G.R. No. L-19132 September 26, 1964, 12
SCRA 9.]
In the case at bar, the circumstantial evidence adduced by the prosecution sufficiently
satisfies the quantum of proof necessary to uphold a judgment of conviction. The
following circumstances proven by the prosecution indubitably point to the accused as
the perpetrator of the crime committed against Augusto Esguerra.
1.The fact that said victim was last seen on the day he was killed in the company of the
accused, drinking gin at the back of the house of Ernesto Guzman [TSN, August 9, 1983,
p. 1.]
2.The fact that on the day after the drinking spree, December 12, 1981, the accused
himself admitted to Ernesto Guzman that he stabbed his drinking companion and that
the latter was "nadisgrasya niya" so he dumped the body of the victim in a hole being
dug out for a toilet, located at the yard of Ernesto Guzman [TSN. August 9, 1983, p. 7.]
3.The fact that when he was turned over to Pat. Arturo Angeles and Pat. Rogelio Castillo
of the Northern Police District by the barangay people who apprehended him, he
admitted the truth of the charge of the barangay residents that he killed someone and
that he dumped the body of the victim in a place being dug out as an improvised toilet
[TSN, July 14, 1983, p. 5; TSN, August 24, 1983, p. 8.] At the time the
barangay people started digging for the body of the victim, the appellant was even
instructing them as to the exact location where the body was buried [TSN, August 24,
1983, p. 6.]
4.The fact that the place where he led the police officers and the barangay residents, i.e.
the toilet pit in the backyard of Ernesto Guzman, was indeed the site where he buried
the victim as the body of the victim was found there after the digging [TSN, January 3,
1984, p. 5.]

5.The fact that the T-shirt and shorts which the accused was wearing during the drinking
spree were later recovered from the place where the victim was buried [TSN, September
2, 1982, p.3.]
Appellant however disputes the trial court's reliance on the testimonies of the
prosecution witnesses as a basis for his conviction. As a rule, the trial court's assessment
of the credibility of the prosecution witnesses is entitled to great weight and respect
[People v. Valentino, G.R. Nos. L-49859-60, February 20, 1986, 141 SCRA 397; Peoplev.
Dagangon, G.R. Nos. L-62654-58, November 13, 1986, 145 SCRA 464] since it has the
advantage of observing the demeanor of a witness while on the witness stand and
therefore can discern if such witness is telling the truth or not [People v. Ornoza, G.R. No.
56283, June 30, 1987, 151 SCRA 495.]
Moreover, appellant's claim that Ernesto Guzman's testimony on Gaddi's confession of
the crime to him cannot be given credence for being hearsay is unavailing. This Tribunal
had previously declared that a confession constitutes evidence of high order since it is
supported by the strong presumption that no person of normal mind would deliberately
and knowingly confess to a crime unless prompted by truth and his conscience [People v.
Salvador, G.R. No. L-77964, July 26, 1988 citing People v. Castaneda; G.R. No. L-32625,
August 31, 1979, 93 SCRA 59.] Proof that a person confessed to the commission of a
crime can be presented in evidence without violating the hearsay rule [Section 30, Rule
130 of the Revised Rules of Court] which only prohibits a witness from testifying as to
those facts which he merely learned from other persons but not as to those facts which
he "knows of his own knowledge; that is, which are derived from his own perception."
Hence, while the testimony of a witness regarding the statement made by another
person, if intended to establish the truth of the fact asserted in the statement, is clearly
hearsay evidence, it is otherwise if the purpose of placing the statement in the record is
merely to establish the fact that the statement was made or the tenor of such statement
[People v. Cusi, Jr., G.R. No. L-20986, August 14, 1965, 14 SCRA 944.] Here, when
Guzman testified that the appellant, who probably was bothered by his conscience,
admitted the killing to him, there was no violation of the hearsay rule as Guzman was
testifying to a fact which he knows of his own personal knowledge; that is, he was
testifying to the fact that the appellant told him that he stabbed Augusto Esguerra and
not to the truth of the appellant's statement.
That the testimony of Guzman on appellant's oral confession is competent evidence
finds support in People v. Tawat [G.R. No. L-62871, May 25, 1984, 129 SCRA 431] which
upheld the trial court's reliance on an extrajudicial confession given, not to a police
officer during custodial interrogation, but to an ordinary farmer as the basis for
conviction. The Court's pronouncements in the aforesaid case find relevance in the
instant case: LibLex
"The declaration of an accused expressly acknowledging his guilt of the
offense charged, may be given in evidence against him" (Sec. 29 Rule
4
130, Rules of Court). What Felicito told Ogalesco may in a sense be also
regarded as part of the res gestae.
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 a case it must be given in its
substance." (23 C.J.S. 196.)
"Proof of the contents of an oral extrajudicial confession may be made
by the testimony of a person who testifies that he was present, heard,
understood, and remembers the substance of the conversation or
statement made by the accused" [citing Underhill's Criminal Evidence,
4th Ed., Niblack, Sec. 278, p. 551] [at pp. 436-437; Emphasis supplied.]
The trial court found no reason to doubt Guzman's credibility as a witness considering his
stature in the community as a member of a religious movement participating in such
activities as "maanita" and procession of the Fatima and Black Rosary [Rollo, p. 30.] In
fact, on the day the killing took place, he left his house where appellant and his
companion, Esguerra, were still drinking and went to the house of Junior Isla to attend a
"maanita" and participate in the weekly activity of bringing down the crucifix and the
image of the Fatima [TSN, September 2, 1982. p. 2] Besides, there was no showing at all
that he was actuated by improper motives in testifying against appellant so as to
warrant disregard of his testimony [People v. Magdueno, G.R. No. L-68699, September
22, 1986, 144 SCRA 210.] On the contrary, the evidence shows that even though the
appellant is not related at all to Guzman, the latter, as an act of generosity, allowed the
former to sleep in the porch of his house as the former had no immediate relatives in
Quezon City [TSN, August 9, 1983, p. 14.]
As to the testimony of Pat. Angeles and Pat. Castillo, the police officers who apprehended
the appellant, credence should be given to their narration of how the appellant was
apprehender and how he led the police and the barangay residents to the place where
he dumped the body of his victim since those police officers are presumed to have
performed their duties in a regular manner in the absence of evidence to the contrary
[People v. Boholst, G.R. No. L-73008, July 23, 1987, 152 SCRA 263 citing People v.
Gamayon, G.R. No. L-25486, April 28, 1983, 121 SCRA 642; People v. Campana, G.R. No.
L-37325, August 30, 1983, 124 SCRA 271; People v. Rosas, G.R. No. L-72782, April 30,
1987, 149 SCRA 464.].
Appellant's defense to the prosecution's charge rests on an uncorroborated and purely
oral evidence of alibi. It has been ruled time and again that courts look upon the

evidence of alibi with suspicion [People v. Bondoc, 85 Phil. 545 (1950)] and always
receive it with caution [People v. Cinco, 67 Phil. 196 (1939); People v. de Guzman, 70
Phil. 23 (1940)] not only because it is inherently weak and unreliable but also because of
its easy fabrication [People v. Rafallo, 86 Phil 22 (1950).] To overcome the evidence of
the prosecution, an alibi must satisfy the test of "full, clear and satisfactory evidence"
[U.S. v. Pascua, 1 Phil. 631 (1903); U.S. v. Oxiles, 29 Phil, 587 (1915); U.S.v. Olais, 36
Phil. 828 (1917).] This test requires not only proof that the accused was somewhere else
other than the scene of the crime but clear and convincing proof of physical impossibility
for the accused to have been at the place of the commission of the crime [People v.
Pacis, G.R. Nos. L-32957-58, July 25, 1984. 130 SCRA 540;People v. Coronado, G.R. No.
68932, October 28, 1986, 145 SCRA 250; People v. Ferrera, G.R. No. 66965, June 18,
1987, 151 SCRA 113.]
The testimony of the accused himself believes any claim of physical impossibility for him
to be at the scene of the crime since according to him, the store where he allegedly
bought another bottle of gin was only 200 meters away. He was able to return to
Guzman's house only after half an hour since he still had a chat with an acquaintance at
the store. Even granting the truth of appellant's story that he was ordered by Guzman to
buy a bottle of gin at about 5:00 o'clock in the afternoon and that he was back after
thirty minutes, it was not impossible for him to have committed the crime since Guzman
and his wife left appellant alone with the victim at around 6:00 o'clock in the evening to
attend the maanita at the house of Junior Isla. Thus, his statements on the witness
stand, far from demonstrating physical impossibility of being at the scene of the crime,
cast serious doubt on the veracity of his alibi.
As the culpability of the accused has been established beyond reasonable doubt by the
evidence of the prosecution, there is no need to dwell on the admissibility of appellant's
extrajudicial confession [Exh. F to F-9; Rollo, p. 20, et seq.] His conviction can be
sustained independently of said confession. cdrep
However, in the absence of proof as to how the victim was killed, the aggravating
circumstances of treachery and evident premeditation cannot be properly appreciated.
The killing must be considered as homicide only and not murder since the circumstance
qualifying the killing must be proven as indubitably as the killing itself [People v. Vicente,
G.R. No. L-31725, February 18, 1986, 141 SCRA 347.] This Tribunal clearly pointed out in
a previous case that
As heretofore stated, not a single eyewitness to the stabbing incident
had been presented by the prosecution. Thus, the record is totally bereft
of any evidence as to the means or method resorted to by appellant in
attacking the victim. It is needless to add that treachery cannot be
deduced from mere presumption, much less from sheer speculation. The
same degree of proof to dispel reasonable doubt is required before any
conclusion may be reached respecting the attendance of
5
alevosia[People v. Duero, G.R No. 65555, May 22, 1985, 136 SCRA 515,
519-520; Emphasis supplied.]
Neither can the aggravating circumstance of evident premeditation be considered,
absent a clear showing of
1.the time when the offender determined to commit the crime;
2.an act manifestly indicating that the culprit clung to his determination;
and
3.a sufficient laspe of time between the determination an d the
execution to allow him to reflect upon the consequences of his act
[People v. Diva, GR. No. L-22946, October 11, 1968, 25 SCRA
468; People v. Pacada, Jr., G.R. Nos. L-44444-45, July 7, 1986, 142 SCRA
427.].
As the evidence on record does not disclose the existence of treachery and evident
premeditation in the stabbing of the victim, the crime committed is only HOMICIDE and
not murder. Since there are neither mitigating nor aggravating circumstances, the
penalty for homicide which is reclusion temporal should be imposed in its medium
period. Applying the Indeterminate Sentence Law, the range of the imposable penalty is
from eight (8) years and one (1) day of prision mayor, as minimum, to seventeen (17)
years and four (4) months of reclusion temporal, as maximum.
Absent any proof of actual damages, the heirs of Augusto Esguerra are entitled only to
the indemnity of P30,000.00. Hence, the amount of P50,000.00 awarded by the trial
court should be reduced accordingly.
WHEREFORE, the appealed decision is MODIFIED and the accused-appellant is hereby
found guilty beyond reasonable doubt of the crime of HOMICIDE, sentenced to suffer the
indeterminate penalty of eight (8) years and one (1) day of prision mayor as minimum,
to seventeen (17) years and four (4) months of reclusion temporal as maximum, and to
indemnify the heirs of Augusto Esguerra in the amount of P30,000.00.
SO ORDERED.
SECOND DIVISION
[G.R. No. 150464. June 27, 2006.]
SECURITY BANK AND TRUST COMPANY, petitioner, vs.
ERIC GAN, respondent.
DECISION

CORONA, J p:
This petition for review on certiorari 1 seeks the reversal of the decision 2 of the Court of
Appeals (CA) dated October 18, 2001 in CA-G.R. CV No. 45701, the dispositive portion of
which read:
WHEREFORE, finding no reversible error therefrom, the Decision now on
appeal is hereby AFFIRMED in toto.
SO ORDERED. 3
The factual antecedents follow.
Petitioner Security Bank and Trust Company is a banking institution duly organized and
existing under the laws of the Philippines. In 1981, respondent Eric Gan opened a current
account with petitioner at its Soler Branch in Santa Cruz, Manila. Petitioner alleged that it
had an agreement with respondent wherein the latter would deposit an initial amount in
his current account and he could draw checks on said account provided there were
sufficient funds to cover them. Furthermore, under a special arrangement with
petitioner's branch manager then, Mr. Qui, 4 respondent was allowed to transfer funds
from his account to another person's account also within the same branch. 5 Respondent
availed of such arrangement several times by depositing checks in his account and even
before they cleared, he withdrew the proceeds thereof and transferred them to the other
account. These transactions were covered by what were known as "debit memos" since
respondent had no sufficient funds to cover the amounts he transferred. 6
Later on, respondent purportedly incurred an overdraft or negative balance in his
account. As of December 14, 1982, the overdraft balance came up to P153,757.78.
According to petitioner, respondent refused to heed petitioner's repeated demands for
payment. For the period December 14, 1982 to September 15, 1990, the total obligation
of respondent reached P297,060.01, inclusive of interest. 7
Thus, in 1991, petitioner filed a complaint for sum of money against respondent to
recover the P297,060.01 with 12% interest per annum from September 16, 1990 until
fully paid, attorney's fees, litigation expenses and costs of suit. The case was docketed
as Civil Case No. 91-55605 with the Regional Trial Court of Manila, Branch 13. 8
Respondent denied liability to petitioner for the said amount. He contended that the
alleged overdraft resulted from transactions done without his knowledge and
consent. HADTEC
In a decision dated March 31, 1993, the trial court dismissed the complaint. It held that
petitioner was not able to prove that respondent owed it the amount claimed considering
6
that the ledger cards it presented were merely hearsay evidence. On petitioner's
appeal, the CA affirmed the trial court's decision.
Hence, this petition anchored on the following grounds:
I. The honorable Court of Appeals erred in not ruling that petitioner has
sufficiently proved its cause of action against respondent; and that the
ledger cards and the testimony of Mr. Patricio Mercado constituted the
best evidence of the transactions made by the respondent relative to his
account.
II. The honorable Court of Appeals erred in not applying the principle of
estoppel against respondent who has benefited from the special
arrangement accorded to him by petitioner which resulted in an
overdraft/negative balance.
III. The honorable Court of Appeals erred in affirming the decision of the
trial court. 9
We deny the petition for lack of merit.
It is well established that under Rule 45 of the Rules of Court, only questions of law, not
of fact, may be raised before the Supreme Court. It must be stressed that this Court is
not a trier of facts and it is not its function to re-examine and weigh anew the respective
evidence of the parties. Factual findings of the trial court, especially those affirmed by
the CA, are conclusive on this Court when supported by the evidence on record. 10
Here, both the trial court and the CA found that petitioner failed to substantiate its claim
that respondent knowingly incurred an overdraft against his account. We see no reason
to disturb this finding.
To prove its claim, petitioner presented Patricio Mercado who was the bookkeeper who
handled the account of respondent and recorded his transactions in a ledger. Based on
this ledger, respondent allegedly had a negative balance of P153,757.78. This resulted
from transfers of funds from respondent's current account to another person's account.
These transfers were made under the authority of Qui. 11 Respondent categorically
denied that he ever authorized these "funds transfers." 12
The entries in the ledger, as testified to by Mercado, were not competent evidence to
prove that respondent consented to the transfers of funds. These entries merely showed
that the transfers were indeed made and that Qui approved them. Petitioner's claim that
respondent availed of a special arrangement to transfer funds from his account to
another person's account was a bare allegation that was never substantiated.

Admittedly, Mercado had no personal knowledge of this arrangement. 13 In fact, when
asked about the details of the alleged consent given by respondent to the transfers, he
stated that he could not remember because respondent talked to Qui and not to
him. 14 Petitioner could have presented Qui whom they alleged allowed the special
arrangement with respondent. But it did not.
Neither can we accept petitioner's argument that the entries made by Mercado in the
ledger were competent evidence to prove how and when the negative balance was
incurred. Petitioner invokes Section 43 of Rule 130:
Entries in the course of business. Entries made at, or near the time of
the 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. EaHIDC
Under this exception to the hearsay rule, the admission in evidence of entries in
corporate books required the satisfaction of the following conditions:
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 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. 15
The ledger entries did not meet the first and third requisites.
Mercado, petitioner's bookkeeper who prepared the entries, was presented to testify on
the transactions pertaining to the account of respondent. It was in the course of his
testimony that the ledger entries were presented. 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. 16
7
Moreover, Mercado had no personal knowledge of the facts constituting the entries,
particularly those entries which resulted in the negative balance. He had no knowledge
of the truth or falsity of these entries. We agree entirely with the following discussion of
the trial court which was affirmed by the CA:
The plaintiff submits that the ledger cards constituted the best evidence
of the transactions made by the defendant with the bank relative to his
account, pursuant to Section 43 of Rule 130 of the Revised Rules on
Evidence. There is no question that the entries in the ledgers were made
by one whose duty it was to record transactions in the ordinary or
regular course of the business. But for the entries to be prima
facie evidence of the facts recorded, the Rule interpose[s] a very
important condition, one which we think is truly indispensable to the
probative worth of the entries as an exception to the hearsay rule, and
that is that the entrant must be "in a position to know the facts therein
stated." Undeniably, Mr. Mercado was in a position to know the facts of
the check deposits and withdrawals. But the transfers of funds through
the debit memos in question?
Let us be clear, at the outset, what the transactions covered by the debit
memos are. They are, at bottom, credit accommodations said to have
been granted by thebank's branch manager Mr. [Q]ui to the defendant,
and they are, therefore loans, to prove which competent testimonial or
documentary evidence must be presented. In the fac[e] 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. [Q]ui, 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. 17 (citations omitted)
Thus, petitioner did not prove that respondent had incurred a negative balance in his
account. Consequently, there was nothing to show that respondent was indebted to it in
the amount claimed. TaCSAD
Petitioner's next argument is that respondent was estopped from denying the claim of
petitioner since he benefited from the special arrangement accorded to him resulting in
the negative balance. This must likewise fail. The so-called special arrangement was
never established. In addition, there was no evidence that respondent benefited from it.
As held by the CA:
The trial court satisfactorily explained the reason for not applying the
principle of estoppel against defendant-appellee. As held by the trial
court:
"There is no scope here for the application of estoppel against the
defendant-appellee, since it was not established that he had ever
received copies of the ledgers, and therefore given the
opportunity to review the correctness of the entries. As we see it,
the case of the [plaintiff suffers from its failure to document its]
transactions with its clients, and it is hardly right to close our
eyes to that infirmity at the expense of the defendant-appellee."
The temporary overdraft allegedly accorded by plaintiff-appellant to
defendant-appellee has not benefited the defendant-appellee in any
manner. The 3 debit memos amounting to P150,000.00 appearing on
defendant-appellee's ledger consisted of fund transfers from and not to
defendant-appellee's account. The transfers resulted [in] the benefit of
other accounts, not that of defendant-appellee. 18
In view of the foregoing, the CA did not err in affirming the decision of the trial court.
8
WHEREFORE, the petition is hereby DENIED. The assailed decision of the Court of
Appeals dated October 18, 2001 in CA-G.R. CV No. 45701 is AFFIRMED in toto.
Costs against petitioner.
SO ORDERED.
||| (Security Bank & Trust Co. v. Gan, G.R. No. 150464, [June 27, 2006], 526 PHIL 214-
222)
FIRST DIVISION
[G.R. No. 164457. April 11, 2012.]
ANNA LERIMA PATULA, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
BERSAMIN, J p:
In the trial of every criminal case, a judge must rigidly test the State's evidence of guilt
in order to ensure that such evidence adheres to the basic rules of admissibility before
pronouncing an accused guilty of the crime charged upon such evidence. Nothing less is
demanded of the judge; otherwise, the guarantee of due process of law is nullified. The
accused need not adduce anything to rebut evidence that is discredited for failing the
test. Acquittal should then follow.
Antecedents
Petitioner was charged with estafa under an information filed in the Regional Trial Court
(RTC) in Dumaguete City that averred:
That on or about and during the period from March 16 to 20, 1997 and
for sometime prior thereto, in the City of Dumaguete, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, being
then a saleswoman of Footlucker's Chain of Stores, Inc., Dumaguete City,
having collected and received the total sum of P131,286.97 from several
customers of said company under the express obligation to account for
the proceeds of the sales and deliver the collection to the said company,
but far from complying with her obligation and after a reasonable period
of time despite repeated demands therefore, and with intent to defraud
the said company, did, then and there willfully, unlawfully and
feloniously fail to deliver the said collection to the said company but
instead, did, then and there willfully, unlawfully and feloniously
misappropriate, misapply and convert the proceeds of the sale to her

own use and benefit, to the damage and prejudice of the said company
in the aforesaid amount of P131,286.97.
Contrary to Art. 315, par 1 (b) of the Revised Penal Code.1
Petitioner pled not guilty to the offense charged in the information. At pre-trial, no
stipulation of facts was had, and petitioner did not avail herself of plea bargaining.
Thereafter, trial on the merits ensued. aITECA
The Prosecution's first witness was Lamberto Go, who testified that he was the branch
manager of Footlucker's Chain of Stores, Inc. (Footlucker's) in Dumaguete City since
October 8, 1994; that petitioner was an employee of Footlucker's, starting as a saleslady
in 1996 until she became a sales representative; that as a sales representative she was
authorized to take orders from wholesale customers coming from different towns (like
Bacong, Zamboanguita, Valencia, Lumbangan and Mabinay in Negros Oriental, and
Siquijor), and to collect payments from them; that she could issue and sign official
receipts of Footlucker's for the payments, which she would then remit; that she would
then submit the receipts for the payments for tallying and reconciliation; that at first her
volume of sales was quite high, but later on dropped, leading him to confront her; that
she responded that business was slow; that he summoned the accounting clerk to verify;
that the accounting clerk discovered erasures on some collection receipts; that he
decided to subject her to an audit by company auditor Karen Guivencan; that he learned
from a customer of petitioner's that the customer's outstanding balance had already
been fully paid although that balance appeared unpaid in Footlucker's records; and that
one night later on, petitioner and her parents went to his house to deny having
misappropriated any money of Footlucker's and to plead for him not to push through
with a case against her, promising to settle her account on a monthly basis; and that she
did not settle after that, but stopped reporting to work. 2
On March 7, 2002, Go's cross examination, re-direct examination and re-cross
examination were completed.
The only other witness for the Prosecution was Karen Guivencan, whom Footlucker's
employed as its store auditor since November 16, 1995 until her resignation on March
31, 2001. She declared that Go had requested her to audit petitioner after some
customers had told him that they had already paid their accounts but the office ledger
had still reflected outstanding balances for them; that she first conducted her audit by
going to the customers in places from Mabinay to Zamboanguita in Negros Oriental, and
then in Siquijor; that she discovered in the course of her audit that the amounts
appearing on the original copies of receipts in the possession of around 50 customers
varied from the amounts written on the duplicate copies of the receipts petitioner
submitted to the office; that upon completing her audit, she submitted to Go a written
report denominated as "List of Customers Covered by Saleswoman LERIMA PATULA w/
9
Differences in Records as per Audit Duly Verified March 16-20, 1997" marked as Exhibit
A; and that based on the report, petitioner had misappropriated the total amount of
P13l,286.92. 3
During Guivencan's stint as a witness, the Prosecution marked the ledgers of petitioner's
various customers allegedly with discrepancies as Exhibits B to YY and their derivatives,
inclusive. Each of the ledgers had a first column that contained the dates of the entries,
a second that identified the invoices by the number, a third that stated the debit, a
fourth that noted the credit (or the amounts paid), and a fifth that summed the balances
(debit minus credit). Only 49 of the ledgers were formally offered and admitted by the
RTC because the 50th ledger could no longer be found. EHTIDA
In the course of Guivencan's direct-examination, petitioner's counsel interposed a
continuing objection on the ground that the figures entered in Exhibits B to YY and their
derivatives, inclusive, were hearsay because the persons who had made the entries were
not themselves presented in court. 4 With that, petitioner's counsel did not anymore
cross-examine Guivencan, apparently regarding her testimony to be irrelevant because
she thereby tended to prove falsification, an offense not alleged in the information.
The Prosecution then formally offered its documentary exhibits, including Exhibits B to
YY and their derivatives (like the originals and duplicates of the receipts supposedly
executed and issued by petitioner), inclusive, the confirmation sheets used by Guivencan
in auditing the accounts served by petitioner, and Guivencan's so-called Summary (Final
Report) of Discrepancies. 5
After the Prosecution rested its case, the Defense decided not to file a demurrer to
evidence although it had manifested the intention to do so, and instead rested its case.
The Prosecution and Defense submitted their respective memoranda, and submitted the
case for decision. 6
On January 28, 2004, the RTC, stating that inasmuch as petitioner had opted "not to
present evidence for her defense" the Prosecution's evidence remained "unrefuted and
uncontroverted," 7 rendered its decision finding petitioner guilty of estafa, to wit:
Wherefore, in the light of the foregoing facts and circumstances, the
Court finds ANNA LERIMA PATULA guilty beyond reasonable doubt of the
crime of Estafa under Art. 315 par (1b) of the Revised Penal Code and
accordingly, she is hereby sentenced to suffer an INDETERMINATE
PENALTY of imprisonment of 8 years and 1 day ofprision mayor as
minimum to 18 years and 4 months of reclusion temporal as maximum
with all the accessory penalties provided by law and to indemnify private
complainant the amount of P131,286.92 with interest at 12% per annum
until fully paid and to pay the costs.

Pursuant to Sec. 2, Rule 114 of the Revised Rules of Criminal Procedure,
the cash bail put up by the accused shall be effective only until the
promulgation of this judgment. HcTIDC
SO ORDERED. 8
Petitioner filed a motion for reconsideration, but the RTC denied the motion on May 7,
2004. 9
Issues
Insisting that the RTC's judgment "grossly violated [her] Constitutional and statutory
right to be informed of the nature and cause of the accusation against her because,
while the charge against her is estafa under Art. 315, par. 1 (b) of the Revised Penal
Code, the evidence presented against her and upon which her conviction was based, was
falsification, an offense not alleged or included in the Information under which she was
arraigned and pleaded not guilty," and that said judgment likewise "blatantly ignored
and manifestly disregarded the rules on admission of evidence in that the documentary
evidence admitted by the trial court were all private documents, the due execution and
authenticity of which were not proved in accordance with Sec. 20 of Rule 132 of the
Revised Rules on Evidence," petitioner has directly appealed to the Court via petition for
review on certiorari, positing the following issues, to wit:
1. WHETHER THE ACCUSED OR ANY ACCUSED FOR THAT MATTER,
CHARGED OF ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE REVISED
PENAL CODE CAN BE CONVICTED UPON OR BY EVIDENCE OF
FALSIFICATION WHICH IS EVEN (SIC) NOT ALLEGED IN THE INFORMATION.
The foregoing issues are now restated as follows:
2. WHETHER THE ACCUSED'S CONSTITUTIONAL AND STATUTORY RIGHT
TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION
AGAINST HER WAS VIOLATED WHEN SHE WAS CONVICTED UPON OR BY
EVIDENCE OF FALSIFICATION CONSIDERING THAT THE CHARGE AGAINST
HER IS ESTAFATHROUGH MISAPPROPRIATION UNDER ART. 315, PAR. 1 (B)
OF THE REVISED PENAL CODE.
3. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING IN
EVIDENCE, EXHIBITS "B" TO "YY"-"YY-2", ALL PRIVATE DOCUMENTS, THE
DUE EXECUTION AND AUTHENTICITY OF WHICH WERE NOT PROVED IN
ACCORDANCE WITH SEC. 20, RULE 132 OF THE SAID REVISED RULES ON
EVIDENCE ASIDE FROM THE FACT THAT SAID EXHIBITS TEND TO PROVE
FALSIFICATION BY THE ACCUSED, A CRIME NEITHER CHARGED NOR
ALLEGED IN THE INFORMATION.
10
4. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING THE
TESTIMONY OF KAREN GUIVENCAN DESPITE THE OBJECTION THAT SAID
TESTIMONY WHICH TRIED TO PROVE THAT THE ACCUSED FALSIFIED
EXHIBITS "B" TO "YY"-"YY-2" INCLUSIVE VIOLATED THE ACCUSED'S
CONSTITUTIONAL RIGHT TO BE INFORMED OF THE NATURE AND CAUSE
OF THE ACCUSATION AGAINST HER, FOR BEING IRRELEVANT AND
IMMATERIAL SINCE THE CHARGE AGAINST THE ACCUSED
IS ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE REVISED PENAL CODE.
5. WHETHER OR NOT THE TRIAL COURT ERRED IN CONCLUDING THAT
THE EVIDENCE OF THE PROSECUTION "REMAINS UNREFUTED AND
UNCONTROVERTED" DESPITE ACCUSED'S OBJECTION THAT SAID
EVIDENCE IS IMMATERIAL AND IRRELEVANT TO THE CRIME CHARGED.
6. WHETHER OR NOT THE DEFENSE'S NOT CROSS-EXAMINING KAREN
GUIVENCAN FOR THE REASON THAT HER TESTIMONY IS IMMATERIAL AND
IRRELEVANT AS IT TENDED TO PROVE AN OFFENSE NOT CHARGED IN
INFORMATION RESULTED IN THE ADMISSION OF SAID TESTIMONY AS
BEING "UNREFUTED AND UNCONTROVERTED", AND WHETHER OR NOT
THE DEFENSE'S OBJECTION WOULD NOT BE CONSIDERED WAIVED IF THE
DEFENSE CROSS-EXAMINED SAID WITNESS. CHIScD
7. WHETHER OR NOT THE TRIAL COURT ERRED IN RULING THAT EXHIBIT
"A", WHICH IS THE LIST OF CUSTOMERS COVERED BY SALESWOMAN
LERIMA PATULA WITH DIFFERENCE IN RECORD IS NOT HEARSAY AND
SELF-SERVING. 10
1. Whether or not the failure of the information for estafa to allege the
falsification of the duplicate receipts issued by petitioner to her
customers violated petitioner's right to be informed of the nature
and cause of the accusation;
2. Whether or not the RTC gravely erred in admitting evidence of the
falsification of the duplicate receipts despite the information not
alleging the falsification;
3. Whether or not the ledgers and receipts (Exhibits B to YY, and their
derivatives, inclusive) were admissible as evidence of petitioner's
guilt for estafaas charged despite their not being duly
authenticated; and

4. Whether or not Guivencan's testimony on the ledgers and receipts
(Exhibits B to YY, and their derivatives, inclusive) to prove
petitioner's misappropriation or conversion was inadmissible for
being hearsay.
Ruling
The petition is meritorious.
I defining the offense, but in such form as is sufficient to enable a person
Failure of information to allege falsification
did not violate petitioner's right to be informed
of the nature and cause of the accusation
Petitioner contends that the RTC grossly violated her Constitutional right to be informed
of the nature and cause of the accusation when: (a) it held that the information did not
have to allege her falsification of the duplicate receipts, and (b) when it convicted her
of estafa under Article 315, paragraph 1 (b) of the Revised Penal Code by relying on the
evidence on falsification.
The contention of petitioner cannot be sustained.
The Bill of Rights guarantees some rights to every person accused of a crime, among
them the right to be informed of the nature and cause of the accusation, viz.:
Section 14. (1) No person shall be held to answer for a criminal
offense without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of the nature and
cause of the accusation against him, to have a speedy, impartial,
and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after arraignment, trial
may proceed notwithstanding the absence of the accused provided that
he has been duly notified and his failure to appear is unjustifiable.
Rule 110 of the Revised Rules of Court, the rule then in effect when the information was
filed in the RTC, contained the following provisions on the proper manner of alleging the
nature and cause of the accusation in the information, to wit: TCIHSa
11
Section 8. Designation of the offense. Whenever possible, a complaint
or information should state the designation given to the offense by the
statute, besides the statement of the acts or omissions constituting the
same, and if there is no such designation, reference should be made to
the section or subsection of the statute punishing it. (7)
Section 9. Cause of accusation. The acts or omissions complained of
as constituting the offense must be stated in ordinary and concise
language without repetition, not necessarily in the terms of the statute
of common understanding to know what offense is intended to be
charged, and enable the court to pronounce proper judgment. (8)
The importance of the proper manner of alleging the nature and cause of the accusation
in the information should never be taken for granted by the State. An accused cannot be
convicted of an offense that is not clearly charged in the complaint or information. To
convict him of an offense other than that charged in the complaint or information would
be violative of the Constitutional right to be informed of the nature and cause of the
accusation. 11 Indeed, the accused cannot be convicted of a crime, even if duly proven,
unless the crime is alleged or necessarily included in the information filed against him.
The crime of estafa charged against petitioner was defined and penalized by
Article 315, paragraph 1 (b), Revised Penal Code, viz.:
Article 315. Swindling (estafa). Any person who shall defraud another
by any of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000
pesos but does not exceed 22,000 pesos, and if such amount exceeds
the latter sum, the penalty provided in this paragraph shall be imposed
in its maximum period, adding one year for each additional 10,000
pesos; but the total penalty which may be imposed shall not exceed
twenty years. In such cases, and in connection with the accessory
penalties which may be imposed under the provisions of this Code, the
penalty shall be termed prision mayor or reclusion temporal, as the case
may be.
2nd. The penalty of prision correccional in its minimum and medium
periods, if the amount of the fraud is over 6,000 pesos but does not
exceed 12,000 pesos;

3rd. The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period if such amount is over 200 pesos but
does not exceed 6,000 pesos; and
4th. By arresto mayor in its maximum period, if such amount does not
exceed 200 pesos, provided that in the four cases mentioned, the fraud
be committed by any of the following means: ESCcaT
xxx xxx xxx
1. With unfaithfulness or abuse of confidence, namely:
xxx xxx xxx
(b) By misappropriating or converting, to the prejudice of
another, money, goods, or any other personal property received
by the offender in trust or on commission, or for administration,
or under any other obligation involving the duty to make
delivery of or to return the same, even though such obligation
be totally or partially guaranteed by a bond; or by denying
having received such money, goods, or other property.
xxx xxx xxx
The elements of the offense charged were as follows:
(a) That the offender received money, goods or other personal property
in trust, or on commission, or for administration, or under any
other obligation involving the duty to make delivery of, or to
return, the same;
(b) That the offender misappropriated or converted such money, goods
or other personal property, or denied his part in its receipt;
(c) That the misappropriation or conversion or denial was to the
prejudice of another; and
(d) That the offended party made a demand on the offender for the
delivery or return of such money, goods or other personal
property. 12 ISHaTA
12
According to the theory and proof of the Prosecution, petitioner misappropriated or
converted the sums paid by her customers, and later falsified the duplicates of the
receipts before turning such duplicates to her employer to show that the customers had
paid less than the amounts actually reflected on the original receipts. Obviously, she
committed the falsification in order to conceal her misappropriation or conversion.
Considering that the falsification was not an offense separate and distinct from
the estafa charged against her, the Prosecution could legitimately prove her acts of
falsification as its means of establishing her misappropriation or conversion as an
essential ingredient of the crime duly alleged in the information. In that manner, her
right to be informed of the nature and cause of the accusation against her was not
infringed or denied to her.
We consider it inevitable to conclude that the information herein completely pleaded
the estafa defined and penalized under Article 315, paragraph 1 (b), Revised Penal
Code within the context of the substantive law and the rules. Verily, there was no
necessity for the information to allege the acts of falsification by petitioner because
falsification was not an element of the estafa charged.
Not surprisingly, the RTC correctly dealt in its decision with petitioner's concern thuswise:
In her Memorandum, it is the contention of [the] accused that [the]
prosecution's evidence utterly fails to prove the crime charged.
According to the defense, the essence of Karen Guivencan's testimony is
that the accused falsified the receipts issued to the customers served by
her by changing or altering the amounts in the duplicates of the receipts
and therefore, her testimony is immaterial and irrelevant as the charge
is misappropriation under Art. 315, paragraph (1b) of the Revised Penal
Code and there is no allegation whatsoever of any falsification or
alteration of amounts in the [i]nformation under which the accused was
arraigned and pleaded NOT GUILTY. Accused, thus, maintains that the
testimony of Karen Guivencan should therefore not be considered at all
as it tended to prove an offense not charged or included in the
[i]nformation and would violate [the] accused's constitutional and
statutory right to be informed of the nature and cause of the accusation
against her. The Court is not in accord with such posture of the accused.
It would seem that the accused is of the idea that because the
crime charged in the [i]nformation is merely [e]stafa and not
[e]stafa [t]hru [f]alsification of documents, the prosecution
could not prove falsification. Such argumentation is not correct.
Since the information charges accused only of misappropriation
pursuant to Art. 315, par. (1b) of the Revised [P]enal Code, the
Court holds that there is no necessity of alleging the falsification

in the Information as it is not an element of the crime
charged. DTcASE
Distinction should be made as to when the crimes of Estafa and
Falsification will constitute as one complex crime and when they
are considered as two separate offenses. The complex crime of
Estafa Through Falsification of Documents is committed when
one has to falsify certain documents to be able to obtain money
or goods from another person. In other words, the falsification is
a necessary means of committing estafa. However, if the
falsification is committed to conceal the misappropriation, two
separate offenses of estafa and falsification are committed. In
the instant case, when accused collected payments from the
customers, said collection which was in her possession was at
her disposal. The falsified or erroneous entries which she made
on the duplicate copies of the receipts were contrived to conceal
some amount of her collection which she did not remit to the
company . . . . 13
II
Testimonial and documentary evidence, being hearsay,
did not prove petitioner's guilt beyond reasonable doubt
Nonetheless, in all criminal prosecutions, the Prosecution bears the burden to establish
the guilt of the accused beyond reasonable doubt. In discharging this burden, the
Prosecution's duty is to prove each and every element of the crime charged in the
information to warrant a finding of guilt for that crime or for any other crime necessarily
included therein. 14 The Prosecution must further prove the participation of the accused
in the commission of the offense. 15 In doing all these, the Prosecution must rely on the
strength of its own evidence, and not anchor its success upon the weakness of the
evidence of the accused. The burden of proof placed on the Prosecution arises from the
presumption of innocence in favor of the accused that no less than the Constitution has
guaranteed. 16 Conversely, as to his innocence, the accused has no burden of
proof, 17 that he must then be acquitted and set free should the Prosecution not
overcome the presumption of innocence in his favor. In other words, the weakness of the
defense put up by the accused is inconsequential in the proceedings for as long as the
Prosecution has not discharged its burden of proof in establishing the commission of the
crime charged and in identifying the accused as the malefactor responsible for it.
Did the Prosecution adduce evidence that proved beyond reasonable doubt the guilt of
petitioner for the estafa charged in the information?
13
To establish the elements of estafa earlier mentioned, the Prosecution presented the
testimonies of Go and Guivencan, and various documents consisting of: (a) the receipts
allegedly issued by petitioner to each of her customers upon their payment, (b) the
ledgers listing the accounts pertaining to each customer with the corresponding
notations of the receipt numbers for each of the payments, and (c) the confirmation
sheets accomplished by Guivencan herself. 18 The ledgers and receipts were marked and
formally offered as Exhibits B to YY, and their derivatives, inclusive.
On his part, Go essentially described for the trial court the various duties of petitioner as
Footlucker's sales representative. On her part, Guivencan conceded having no personal
knowledge of the amounts actually received by petitioner from the customers or
remitted by petitioner to Footlucker's. This means that persons other than Guivencan
prepared Exhibits B to YY and their derivatives, inclusive, and that Guivencan based her
testimony on the entries found in the receipts supposedly issued by petitioner and in the
ledgers held by Footlucker's corresponding to each customer, as well as on the unsworn
statements of some of the customers. Accordingly, her being the only witness who
testified on the entries effectively deprived the RTC of the reasonable opportunity to
validate and test the veracity and reliability of the entries as evidence of petitioner's
misappropriation or conversion through cross-examination by petitioner. The denial of
that opportunity rendered the entire proof of misappropriation or conversion hearsay,
and thus unreliable and untrustworthy for purposes of determining the guilt or innocence
of the accused. AICHaS
To elucidate why the Prosecution's hearsay evidence was unreliable and untrustworthy,
and thus devoid of probative value, reference is made to Section 36 of Rule 130,Rules of
Court, a rule that states that a witness can testify only to those facts that she knows of
her personal knowledge; that is, which are derived from her own perception, except as
otherwise provided in the Rules of Court. The personal knowledge of a witness is a
substantive prerequisite for accepting testimonial evidence that establishes the truth of
a disputed fact. A witness bereft of personal knowledge of the disputed fact cannot be
called upon for that purpose because her testimony derives its value not from the credit
accorded to her as a witness presently testifying but from the veracity and competency
of the extrajudicial source of her information.
In case a witness is permitted to testify based on what she has heard another person say
about the facts in dispute, the person from whom the witness derived the information on
the facts in dispute is not in court and under oath to be examined and cross-examined.
The weight of such testimony then depends not upon the veracity of the witness but
upon the veracity of the other person giving the information to the witness without oath.
The information cannot be tested because the declarant is not standing in court as a
witness and cannot, therefore, be cross-examined.
It is apparent, too, that a person who relates a hearsay is not obliged to enter into any
particular, to answer any question, to solve any difficulties, to reconcile any

contradictions, to explain any obscurities, to remove any ambiguities; and that she
entrenches herself in the simple assertion that she was told so, and leaves the burden
entirely upon the dead or absent author. 19 Thus, the rule against hearsay testimony
rests mainly on the ground that there was no opportunity to cross-examine the
declarant. 20 The testimony may have been given under oath and before a court of
justice, but if it is offered against a party who is afforded no opportunity to cross-
examine the witness, it is hearsay just the same. 21
Moreover, the theory of the hearsay rule is that when a human utterance is offered as
evidence of the truth of the fact asserted, the credit of the assertor becomes the basis of
inference, and, therefore, the assertion can be received as evidence only when made on
the witness stand, subject to the test of cross-examination. However, if an extrajudicial
utterance is offered, not as an assertion to prove the matter asserted but without
reference to the truth of the matter asserted, the hearsay rule does not apply. For
example, in a slander case, if a prosecution witness testifies that he heard the accused
say that the complainant was a thief, this testimony is admissible not to prove that the
complainant was really a thief, but merely to show that the accused uttered those
words. 22 This kind of utterance is hearsay in character but is not legal hearsay. 23 The
distinction is, therefore, between (a) the fact that the statement was made, to which the
hearsay rule does not apply, and (b) the truth of the facts asserted in the statement, to
which the hearsay rule applies. 24
Section 36, Rule 130 of the Rules of Court is understandably not the only rule that
explains why testimony that is hearsay should be excluded from consideration. Excluding
hearsay also aims to preserve the right of the opposing party to cross-examine
the original declarant claiming to have a direct knowledge of the transaction or
occurrence. 25 If hearsay is allowed, the right stands to be denied because the declarant
is not in court. 26 It is then to be stressed that the right to cross-examine the adverse
party's witness, being the only means of testing the credibility of witnesses and their
testimonies, is essential to the administration of justice.
To address the problem of controlling inadmissible hearsay as evidence to establish the
truth in a dispute while also safeguarding a party's right to cross-examine her
adversary's witness, the Rules of Court offers two solutions. The first solution is to
require that all the witnesses in a judicial trial or hearing be examined only in courtunder
oath or affirmation. Section 1, Rule 132 of the Rules of Court formalizes this
solution, viz.: EAcHCI
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 question calls for a different mode of answer, the answers of the
witness shall be given orally. (1a)
14
The second solution is to require that all witnesses be subject to the cross-
examination by the adverse party. Section 6, Rule 132 of the Rules of Court ensures
this solution thusly:
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 any 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)
Although the second solution traces its existence to a Constitutional precept relevant
to criminal cases, i.e., Section 14, (2), Article III, of the 1987 Constitution, which
guarantees that: "In all criminal prosecutions, the accused shall . . . enjoy the right . .
. to meet the witnesses face to face . . .," the rule requiring the cross-examination by
the adverse party equally applies to non-criminal proceedings.
We thus stress that the rule excluding hearsay as evidence is based upon serious
concerns about the trustworthiness and reliability of hearsay evidence due to its not
being given under oath or solemn affirmation and due to its not being subjected to cross-
examination by the opposing counsel to test the perception, memory, veracity and
articulateness of the out-of-court declarant or actor upon whose reliability the worth of
the out-of-court statement depends. 27
Based on the foregoing considerations, Guivencan's testimony as well as Exhibits B to
YY, and their derivatives, inclusive, must be entirely rejected as proof of petitioner's
misappropriation or conversion.
III
Lack of their proper authentication rendered
Exhibits B to YY and their derivatives
inadmissible as judicial evidence
Petitioner also contends that the RTC grossly erred in admitting as evidence Exhibits B to
YY, and their derivatives, inclusive, despite their being private documents that were not
duly authenticated as required by Section 20, Rule 132 of the Rules of Court.
Section 19, Rule 132 of the Rules of Court distinguishes between a public document and
a private document for the purpose of their presentation in evidence, viz.:
 15
Section 19. Classes of documents. For the purpose of their Section 20. Proof of private documents. Before any private
presentation in evidence, documents are either public or document offered as authentic is received in evidence, its due
private. execution and authenticity must be proved either:

Public documents are: (a) By anyone who saw the document executed or written; or

(a) The written official acts, or records of the official acts of the (b) By evidence of the genuineness of the signature or
sovereign authority, official bodies and tribunals, and public officers, handwriting of the maker.
whether of the Philippines, or of a foreign country;
Any other private document need only be identified as that which it is
(b) Documents acknowledged before a notary public except last wills claimed to be.
and testaments; and CSIcHA
The Prosecution attempted to have Go authenticate the signature of petitioner in various
(c) Public records, kept in the Philippines, of private documents required receipts, to wit:
by law to be entered therein.
ATTY. ABIERA:
All other writings are private.
Q. Now, these receipts which you mentioned which do not tally with the
The nature of documents as either public or private determines how the documents may original receipts, do you have copies of these receipts?
be presented as evidence in court. A public document, by virtue of its official or
sovereign character, or because it has been acknowledged before a notary public A. Yes, I have a copy of these receipts, but it's not now in my possession.
(except a notarial will) or a competent public official with the formalities required by law,
or because it is a public record of a private writing authorized by law, is self- Q. But when asked to present those receipts before this Honorable Court,
authenticating and requires no further authentication in order to be presented as can you assure this
evidence in court. In contrast, a private document is any other writing, deed, or
instrument executed by a private person without the intervention of a notary or other
person legally authorized by which some disposition or agreement is proved or set forth. (Next Page)
Lacking the official or sovereign character of a public document, or the solemnities
prescribed by law, a private document requires authentication in the manner allowed by ATTY. ABIERA (continuing): cAaTED
law or the Rules of Court before its acceptance as evidence in court. The requirement of
authentication of a private document is excused only in four instances, Honorable Court that you will be able to present those receipts?
specifically: (a) when the document is an ancient one within the context of Section
21, 28 Rule 132 of the Rules of Court; (b) when the genuineness and authenticity of an A. Yes.
actionable document have not been specifically denied under oath by the adverse
party; 29 (c) when the genuineness and authenticity of the document have been Q. You are also familiar with the signature of the accused in this
admitted; 30 or (d) when the document is not being offered as genuine. 31 case, Anna Lerima Patula?

There is no question that Exhibits B to YY and their derivatives were private documents A. Yes.
because private individuals executed or generated them for private or business purposes
or uses. Considering that none of the exhibits came under any of the four exceptions,
they could not be presented and admitted as evidence against petitioner without the Q. Why are you familiar with the signature of the accused in this
Prosecution dutifully seeing to their authentication in the manner provided in Section 20 case?
of Rule 132 of the Rules of Court, viz.:

A. I used to see her signatures in the payroll and in the receipts
also.
Q. Okay, I have here a machine copy of a receipt which we would
present this, or offer the same as soon as the original receipts
can be presented, but for purposes only of your testimony,
I'm going to point to you a certain signature over this
receipt number FLDT96 20441, a receipt from Cirila
Askin, kindly go over the signature and tell the Honorable
Court whether you are familiar with the signature?
A. Yes, that is her signature.
INTERPRETER:
Witness is pointing to a signature above the printed word "collector".
(Next Page)
ATTY. ABIERA:
Q. Is this the only receipt wherein the name, the signature
rather, of the accused in this case appears?
A. That is not the only one, there are many receipts.
ATTY. ABIERA:
In order to save time, Your Honor, we will just be presenting the
original receipts Your Honor, because it's quite voluminous, so
we will just forego with the testimony of the witness but we will
just present the same using the testimony of another
witness, for purposes of identifying the signature of the
accused. We will request that this signature which has been
identified to by the witness in this case be marked, Your Honor,
with the reservation to present the original copy and present the
same to offer as our exhibits but for the meantime, this is only for
the purposes of recording, Your Honor, which we request the
same, the receipt which has just been identified awhile ago be
marked as our Exhibit "A" Your Honor.
COURT:
16
Mark the receipt as Exhibit "A".
ATTY. ABIERA:
And the signature be bracketed and be marked as Exhibit "A-1".
(Next Page)
COURT:
Bracket the signature & mark it as Exh. "A-1". What is the number of that
receipt?
ATTY. ABIERA:
Receipt No. 20441 dated August 4, 1996 the statement that: received
from Cirila Askin. 32 aHCSTD
xxx xxx xxx
As the excerpts indicate, Go's attempt at authentication of the signature of petitioner on
the receipt with serial number FLDT96 No. 20441 (a document that was marked as
Exhibit A, while the purported signature of petitioner thereon was marked as Exhibit A-1)
immediately fizzled out after the Prosecution admitted that the document was a
mere machine copy, not the original. Thereafter, as if to soften its failed attempt, the
Prosecution expressly promised to produce at a later date the originals of the receipt
with serial number FLDT96 No. 20441 and other receipts. But that promise was not even
true, because almost in the same breath the Prosecution offered to authenticate the
signature of petitioner on the receipts through a different witness (though then still
unnamed). As matters turned out in the end, the effort to have Go authenticate both
the machine copy of the receipt with serial number FLDT96 No. 20441 and the signature
of petitioner on that receipt was wasteful because the machine copy was inexplicably
forgotten and was no longer even included in the Prosecution's Offer of Documentary
Evidence.
It is true that the original of the receipt bearing serial number FLDT96 No. 20441 was
subsequently presented as Exhibit B through Guivencan. However, the Prosecution did
not establish that the signature appearing on Exhibit B was the same signature that Go
had earlier sought to identify to be the signature of petitioner (Exhibit A-1) on the
machine copy (Exhibit A). This is borne out by the fact that the Prosecution abandoned
Exhibit A as the marking nomenclature for the machine copy of the receipt bearing serial
number FLDT96 No. 20441 for all intents and purposes of this case, and used the same
 17
nomenclature to refer instead to an entirely different document entitled "List of ATTY. ZERNA:
Customers covered by ANA LERIMA PATULA w/difference in Records as per Audit duly
verified March 16-20, 1997." The signature of the collector be marked as

In her case, Guivencan's identification of petitioner's signature on two receipts based Q. By the way, there is a signature above the name of the
alone on the fact that the signatures contained the legible family name of Patulawas collector, are your familiar with that signature? (shown to
ineffectual, and exposed yet another deep flaw infecting the documentary evidence witness)
against petitioner. Apparently, Guivencan could not honestly identify petitioner's
signature on the receipts either because she lacked familiarity with such signature, or A. Yes.
because she had not seen petitioner affix her signature on the receipts, as the following
excerpts from her testimony bear out:
Q. Whose signature is that?
ATTY. ZERNA to witness:
A. Miss Patula.
Q. There are two (2) receipts attached here in the confirmation sheet,
will you go over these Miss witness? Q. How do you know?

A. This was the last payment which is fully paid by the customer. The A. It can be recognized because of the word Patula.
other receipt is the one showing her payment prior to the last
payment. Q. Are you familiar with her signature?

COURT: A. Yes.

Q. Where did you get those two (2) receipts? ATTY. ZERNA:

A. From the customer. We pray that the signature be bracketed and marked as Exhibit "B-3-a"

Q. And who issued those receipts? COURT:

A. The saleswoman, Miss Patula. Mark it.

ATTY. ZERNA: ATTY. ZERNA:

We pray, Your Honor, that this receipt identified be marked as Exhibit "B- The other receipt number 20045 be marked as Exhibit "B-4" and the
3", receipt number 20441. signature as Exhibit "B-4-a".

(Next Page) COURT:

COURT: Mark it. 33

Mark it. xxx xxx xxx

 18
ATTY. ZERNA: A. I made the basis on our ledger in the office. I just copied that
and showed it to the customers for confirmation.
Q. Ms. Witness, here is a receipt colored white, number 26603 issued to
one Divina Cadilig. Will you please identify this receipt if this is ATTY. ZERNA to witness:
the receipt of your office?
Q. What about the receipts?
A. Yes. AaCTcI
COURT:
Q. There is a signature over the portion for the collector. Whose
signature is this? Make a follow-up question and what was the result when you copied that
amount in the ledger and you had it confirmed by the customers,
A. Ms. Patula. what was the result when you had it confirmed by the customers?

Q. How do you know that this is her signature? WITNESS:

A. Because we can read the Patula. 34 A. She has no more balance but in our office she has still a balance of
P10,971.75.
We also have similar impressions of lack of proper authentication as to the ledgers the
Prosecution presented to prove the discrepancies between the amounts petitioner had ATTY. ZERNA to witness:
allegedly received from the customers and the amounts she had actually remitted to
Footlucker's. Guivencan exclusively relied on the entries of the unauthenticated ledgers Q. Do you have a- what's the basis of saying that the balance of this
to support her audit report on petitioner's supposed misappropriation or conversion, customer is still P10,971.75
revealing her lack of independent knowledge of the veracity of the entries, as the
following excerpts of her testimony show: (Next Page)

ATTY. ZERNA to witness: ATTY. ZERNA (continuing):

Q. What is your basis of saying that your office records showed [i]n your office?
that this Cecilia Askin has an account of P10,791.75?
COURT:
ATTY. DIEZ:
That was already answered paero, the office has a ledger.
The question answers itself, Your Honor, what is the basis, office record.
Q. Now, did you bring the ledger with you?
COURT:
A. No, Ma'am. 35
Let the witness answer.
(Continuation of the Direct Examination of
WITNESS: Karen Guivencan on August 13, 2002)

ATTY. ZERNA to witness:


Q. Okay, You said there are discrepancies between the original and the
duplicate, will you please enlighten the Honorable Court on
that discrepancy which you said?
A. Like in this case of Cirila Askin, she has already fully paid. Her
ledger shows a zero balance she has fully paid while in the
original
(Next page)
WITNESS (continuing):
[r]eceipt she has a balance of Ten Thousand Seven hundred
Ninety-one Pesos and Seventy-five Centavos (10,791.75).
COURT:
Q. What about the duplicate receipt, how much is indicated there?
A. The customer has no duplicate copy because it was already forwarded
to the Manila Office.
Q. What then is your basis in the entries in the ledger showing that it has
already a zero balance?
A. This is the copy of the customer while in the office, in the original
receipt she has still a balance.
xxx xxx xxx
ATTY. ZERNA:
The confirmation sheet
COURT:
The confirmation sheet was the one you referred to as the receipt in
your earlier testimony? Is that what you referred to as the
receipts, the original receipts? HIaTDS
A. This is what I copied from the ledger.
19
Q. So where was that (sic) original receipt which you said showed that
that particular customer still has a balance of Ten Thousand
something?
A. The receipt is no longer here.
Q. You mean the entry of that receipt was already entered in the
ledger?
A. Yes. 36
In the face of the palpable flaws infecting the Prosecution's evidence, it should come as
no surprise that petitioner's counsel interposed timely objections. Yet, the RTC
mysteriously overruled the objections and allowed the Prosecution to present the
unauthenticated ledgers, as follows:
(Continuation of the Direct Examination of
Witness Karen Guivencan on September 11, 2002)
ATTY. ZERNA:
CONTINUATION OF DIRECT-EXAMINATION
Q. Ms. Witness, last time around you were showing us several ledgers.
Where is it now?
A. It is here.
Q. Here is a ledger of one Divina Cadilig. This Divina Cadilig, how much
is her account in your office?
ATTY. DIEZ:
Your Honor please before the witness will proceed to answer the
question, let me interpose our objection on the ground
that this ledger has not been duly identified to by the
person who made the same. This witness will be testifying
on hearsay matters because the supposed ledger was not
identified to by the person who made the same.
COURT:

Those ledgers were already presented in the last hearing. I think they
were already duly identified by this witness. As a matter of fact, it
was she who brought them to court
(Next Page)
20
ATTY. DIEZ:
Your Honor please, to avoid delay, may I interpose a continuing
objection to the questions profounded (sic) on those
ledgers on the ground that, as I have said, it is hearsay.

COURT (cont.): COURT:

because these were the ledgers on file in their office. Okey (sic). Let the continuing objection be noted.

ATTY. DIEZ: Q. (To Witness) The clerk who allegedly was the one who prepared
the entries on those ledgers, is she still connected with
That is correct, Your Honor, but the person who made the entries is Footluckers?
not this witness, Your Honor. How do we know that the
entries there is (sic) correct on the receipts submitted to A. She is no longer connected now, Your Honor.
their office.
COURT:
COURT:
Alright proceed.
Precisely, she brought along the receipts also to support that. Let the
witness answer. (Next Page)

WITNESS: ATTY. ZERNA:

A. It's the office clerk in-charge. Your Honor, these are entries in the normal course of business.
So, exempt from the hearsay rule.
COURT:
COURT:
The one who prepared the ledger is the office clerk.
Okey (sic), proceed. 37
ATTY. ZERNA:
The mystery shrouding the RTC's soft treatment of the Prosecution's flawed presentation
She is an auditor, Your Honor. She has been qualified and she is the was avoidable simply by the RTC adhering to the instructions of the rules earlier quoted,
auditor of Footluckers. TIEHSA as well as with Section 22 of Rule 132 of the Rules of Court, which contains instructions
on how to prove the genuineness of a handwriting in a judicial proceeding, as follows:
COURT:
Section 22. How genuineness of handwriting proved. The handwriting
I think, I remember in the last setting also, she testified where those of a person may be proved by any witness who believes it to be the
entries were taken. So, you answer the query of counsel. handwriting of such person because he has seen the person write,
or has seen writing purporting to be his upon which the witness
xxx xxx xxx 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. (Emphases supplied)
If it is already clear that Go and Guivencan had not themselves seen the execution or
signing of the documents, the Prosecution surely did not authenticate Exhibits B to YY
and their derivatives conformably with the aforequoted rules. Hence, Exhibits B to YY,
and their derivatives, inclusive, were inescapably bereft of probative value as evidence.
That was the only fair and just result, as the Court held in Malayan Insurance Co., Inc. v.
Philippine Nails and Wires Corporation: 38
On the first issue, petitioner Malayan Insurance Co., Inc., contends
that Jeanne King's testimony was hearsay because she had no
personal knowledge of the execution of the documents
supporting respondent's cause of action, such as the sales
contract, invoice, packing list, bill of lading, SGS Report, and the Marine
Cargo Policy. Petitioner avers that even though King was personally
assigned to handle and monitor the importation of Philippine Nails and
Wires Corporation, herein respondent, this cannot be equated with
personal knowledge of the facts which gave rise to respondent's cause
of action. Further, petitioner asserts, even though she personally
prepared the summary of weight of steel billets received by respondent,
she did not have personal knowledge of the weight of steel billets
actually shipped and delivered. IEHDAT
At the outset, we must stress that respondent's cause of action is
founded on breach of insurance contract covering cargo consisting of
imported steel billets. To hold petitioner liable, respondent has to prove,
first, its importation of 10,053.400 metric tons of steel billets valued at
P67,156,300.00, and second, the actual steel billets delivered to and
received by the importer, namely the respondent. Witness Jeanne King,
who was assigned to handle respondent's importations, including their
insurance coverage, has personal knowledge of the volume of steel
billets being imported, and therefore competent to testify thereon. Her
testimony is not hearsay, as this doctrine is defined in Section 36, Rule
130 of the Rules of Court. However, she is not qualified to testify on
the shortage in the delivery of the imported steel billets. She
did not have personal knowledge of the actual steel billets
received. Even though she prepared the summary of the
received steel billets, she based the summary only on the
receipts prepared by other persons. Her testimony on steel
billets received was hearsay. It has no probative value even if
not objected to at the trial.
21
On the second issue, petitioner avers that King failed to properly
authenticate respondent's documentary evidence. Under Section 20,
Rule 132, Rules of Court,before a private document is admitted
in evidence, it must be authenticated either by the person who
executed it, the person before whom its execution was
acknowledged, any person who was present and saw it
executed, or who after its execution, saw it and recognized the
signatures, or the person to whom the parties to the
instruments had previously confessed execution thereof. In this
case, respondent admits that King was none of the
aforementioned persons. She merely made the summary of the
weight of steel billets based on the unauthenticated bill of
lading and the SGS report. Thus, the summary of steel billets
actually received had no proven real basis, and King's testimony
on this point could not be taken at face value.
. . . Under the rules on evidence, documents are either public or private.
Private documents are those that do not fall under any of the
enumerations in Section 19, Rule 132 of the Rules of Court. Section 20 of
the same law, in turn, provides that before any private document is
received in evidence, its due execution and authenticity must be proved
either by anyone who saw the document executed or written, or by
evidence of the genuineness of the signature or handwriting of the
maker. Here, respondent's documentary exhibits are private
documents. They are not among those enumerated in Section
19, thus, their due execution and authenticity need to be proved
before they can be admitted in evidence. With the exception
concerning the summary of the weight of the steel billets
imported, respondent presented no supporting evidence
concerning their authenticity. Consequently, they cannot be
utilized to prove less of the insured cargo and/or the short
delivery of the imported steel billets. In sum, we find no
sufficient competent evidence to prove petitioner's
liability. HaTSDA
That the Prosecution's evidence was left uncontested because petitioner decided not to
subject Guivencan to cross-examination, and did not tender her contrary evidence was
inconsequential. Although the trial court had overruled the seasonable objections to
Guivencan's testimony by petitioner's counsel due to the hearsay character, it could not
be denied that hearsay evidence, whether objected to or not, had no probative
value. 39 Verily, the flaws of the Prosecution's evidence were fundamental and
substantive, not merely technical and procedural, and were defects that the adverse
party's waiver of her cross-examination or failure to rebut could not set right or cure. Nor

did the trial court's overruling of petitioner's objections imbue the flawed evidence with
any virtue and value.
Curiously, the RTC excepted the entries in the ledgers from the application of the
hearsay rule by also tersely stating that the ledgers "were prepared in the regular course
of business." 40 Seemingly, the RTC applied Section 43, Rule 130 of the Rules of Court, to
wit:
Section 43. Entries in the course of business. Entries made at, or near
the time of the 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.
This was another grave error of the RTC. The terse yet sweeping manner of justifying the
application of Section 43 was unacceptable due to the need to show the concurrence of
the several requisites before entries in the course of business could be excepted from
the hearsay rule. The requisites are as follows:
(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 transactions 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. 41
The Court has to acquit petitioner for failure of the State to establish her guilt beyond
reasonable doubt. The Court reiterates that in the trial of every criminal case, a judge
must rigidly test the State's evidence of guilt in order to ensure that such evidence
adhered to the basic rules of admissibility before pronouncing an accused guilty of the
crime charged upon such evidence. The failure of the judge to do so herein nullified the
guarantee of due of process of law in favor of the accused, who had no obligation to
prove her innocence. Her acquittal should follow.
22
IV
No reliable evidence on damage
Conformably with finding the evidence of guilt unreliable, the Court declares that the
disposition by the RTC ordering petitioner to indemnify Footlucker's in the amount of
P131,286.92 with interest of 12% per annum until fully paid was not yet shown to be
factually founded. Yet, she cannot now be absolved of civil liability on that basis. Her
acquittal has to be declared as without prejudice to the filing of a civil action against her
for the recovery of any amount that she may still owe to Footlucker's.
WHEREFORE, the Court SETS ASIDE AND REVERSES the decision convicting ANNA
LERIMA PATULA of estafa as charged, and ACQUITS her for failure of the Prosecution
to prove her guilt beyond reasonable doubt, without prejudice to a civil action brought
against her for the recovery of any amount still owing in favor of Footlucker's Chain of
Stores, Inc.
No pronouncement on costs of suit. TaCDcE
SO ORDERED.
EN BANC
[G.R. No. 28655. August 6, 1928.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.
EUGENIO TOLEDO and SISENANDO
HOLGADO, defendants. EUGENIO TOLEDO, appellant.
C. V. Sanchez, for appellant.
Attorney-General Jaranilla, for appellee.
SYLLABUS
1. CRIMINAL LAW AND PROCEDURE; EVIDENCE; HEARSAY RULE, ITS
EXCEPTIONS; ADMISSIONS AGAINST PENAL INTEREST IN .SWORN DECLARATION OF
PERSON NOW DECEASED TENDING TO EXONERATE ACCUSED. H and M engaged in a
bolo duel. M was killed almost instantly. H was also seriously wounded but was able to proceed
to a neighboring house and from where to the municipal building. Before the municipal president,
H made a sworn statement in which he declared that when he and M fought there was nobody
present About one month later, H died from the wounds received in the fight. T, a worker of H,
was charged with the homicide of M and was convicted in the lower court. It is held that error was

committed in not admitting the verified declaration of H as the statement of a fact against penal
interest. (Opinion of Messrs. Justices Street, Malcolm, and Ostrand.)
2. ID.; ID.; ID.; ID. Hearsay evidence is excluded. One exception concerns the
admission of dying declarations. Another exception permits the reception, under certain
circumstances, of declarations of third parties made contrary to their own pecuniary or proprietary
interest. But by a large preponderance of authority in the United States, the declarations of a
person other than accused confessing or tending to show that he committed the crime are not
competent for accused on account of the hearsay doctrine.
3. ID.; ID.; ID.; ID. The general rule rejecting evidence of confessions of third parties
made out of court intended to exonerate the accused, examined in the light of its history and
policy, and found to be unjustified. It should not be received in the Philippine jurisdiction where
the principles of the common law have never been followed blindly. A study of the authorities
discloses that even if given application they are not controlling, for here the fact is that the
declarant is deceased and his statements were made under oath, while they read in such a way
as to ring with the truth.
4. ID.; ID.; ID.; ID. Any rule which hampers an honest man in exonerating himself is a
bad rule, even if it also hampers a villain in falsely passing for an innocent. (3 Wigmore on
Evidence, 2d ed., sec. 1477.)
5. ID.; ID.; ID.; ID. Wherever the state seeks to fasten criminality upon the party on
trial, the accused had a right to meet and rebut any testimony which may be offered against him
in any legitimate way. Any legitimate fact or circumstance which would meet or tend to meet the
state's case and break the force of criminative facts introduced against the accused is always
admissible. (Pace vs. State [1911], Court of Criminal Appeals of Texas, 135 Southwestern, 379.)
6. ID.; ID.; ID.; ID. Where a sworn statement against penal interest is admitted, the
question then is as to the effect to be given such a confession, which is solely one of weight and
credibility.
7. ID.; ID.; ID.; ID.; "RES GESTAE." Exhibit 1 should have been admitted in evidence
as a part of the res gestae for it was made by H on the same morning that the fight occurred and
without the interval of sufficient time for reflection. The declaration fulfilled the test of the facts
23
talking through the party and not the party talking about the facts. The modern tendency is toward
the extension of the rule admitting spontaneous declarations to meet the needs of justice when
other evidence of the same fact cannot be procured. (Opinion of Messrs. Justices Romualdez
and Villa-Real.)
8. ID.; ID.; ID.; ID.; SUFFICIENCY OF PROOF. Held by all of the members of the court
participating that T should be given the benefit of the reasonable doubt which prevails in their
minds and acquitted.
DECISION
MALCOLM, J p:
This is an appeal taken by Eugenio Toledo from a judgment of the Court of First Instance
of Mindoro, finding him guilty of the crime of homicide, and sentencing him therefor to
imprisonment for fourteen years, eight months, and one day, reclusion temporal, with the
corresponding accessory penalties, indemnity, and costs.
Sisenando Holgado and Filomeno Morales had had disputes about the occupation of
certain land situated in the municipality of Pinamalayan, Province of Mindoro. On the morning of
June 15, 1927, the two men happened to meet. The argument was renewed, and they agreed to
fight. They did engage in a bolo duel with a fatal result for Filomeno Morales, who was killed
almost instantly. Sisenando Holgado was also seriously wounded but was able to proceed to a
neighboring house. From there Sisenando Holgado was taken to the municipal building where he
made a sworn statement before the municipal president, in which he declared that only he and
Filomeno Morales fought. About one month later, Sisenando Holgado died from the wounds
received in the fight.
The prosecution and the defense alike agree on the facts above outlined. The disputable
point is whether the accused Eugenio Toledo intervened in the quarrel and dealt a mortal blow to
Filomeno Morales. For the prosecution, there was presented the witness Justina Villanueva, the
querida of Filomeno Morales, who testified to the presence and participation of EugenioToledo.
Her testimony was partially corroborated by that of the witness Justina Llave. On the other hand,
the theory for the defense was that Toledo was in another place when the fight between Morales
and Holgado occurred and that his only participation was on meeting Holgado, who was his

landlord or master, in helping him to a nearby house. To this effect is the testimony of the
accused and of Conrado Holgado, the son of Sisenando Holgado. The defense also relied upon
the affidavit of Sisenando Holgado, Exhibit 1, which was identified by the municipal president of
Pinamalayan.
Counsel de oficio in this court makes the following assignment of errors:
"I. The lower court erred in not admitting in evidence Exhibit 1.
"II. The lower court erred in not finding that accused appellant
Eugenio Toledo did not take part in the fight between accused Sisenando Holgado
and deceased Filomeno Morales, resulting in the death of the latter.
"III. The lower court erred in not giving accused-appellant
Eugenio Toledo the benefit of a reasonable doubt." Exhibit 1 above-mentioned in
assignment of error No. 1, made originally in Tagalog, in translation reads as
follows:
"AFFIDAVIT
"I, Sisenando Holgado, married, of legal age, and resident of this
municipality of Pinamalayan, Province of Mindoro, P. I., after being sworn in
accordance with law, state the following:
"My additional homestead situated in Calingag was cleaned by me and is
at present planted with palay (rice), on which I also plant hemp, but the hemp
planted by my workers is frequently uprooted by Filomeno Morales who claims that
said land is his, whereas when I was cleaning said land nobody objected to it, but
now that it is already cleaned, Filomeno Morales says that one-half of the land
occupied by me is his; for this reason I decided to see Filomeno Morales about this
matter and when I talked to him this morning (Wednesday) at about nine o'clock, at
the hemp plantation of Victorio Saudan situated in Calingag, he told me that if I
should plant there anything he would cut my neck, and to this I answered that if he
was going to cut my neck we would fight and thereupon he stabbed me with a
24
penknife and then I slashed at him; after this we separated, and I went to Dalmacio
Manlisic's house. When we fought, there was nobody present.
"Question by president: When you went to the house of Dalmacio Manlisic,
did you not meet anybody before reaching said house?
"Answer: I met one of my workers named Eugenio Toledo, who
accompanied me to the house of Dalmacio Manlisic.
"Question by president: How do you know that the hemp you planted on
your land above-mentioned was frequently uprooted by Filomeno Morales?
"Answer: Because he said so to my worker named Eulogio Supleo.
"Question by president: Do you have anything more to say about the
incident?
"Answer: No more.
"In testimony of all that I stated above, I signed this document in the
presence of two witnesses and then swore to it in the presence of the municipal
president here at Pinamalayan, Mindoro, this June fifteenth, nineteen hundred
twenty-seven.
His
"SISENANDO HOLGADO
Mark
"In the presence of:

(Sgd.) "ILLEGIBLE
"HILARION NIEVA
"Signed and sworn to before me, this June fifteenth, 1927.
(Sgd.) "ILLEGIBLE
"Municipal President"
The discussion of the case in court has revealed three different points of view among the
members participating, all leading to the same result of acquittal. Under such circumstances, it is,
of course, difficult for the writer of the opinion to do entire justice to those theories which do not
conform to his own. However, an effort will be made to present the various opinions, leaving it for
any individual member to enlarge upon the same, if he so desires.
I who would resolve the first assignment of error by holding that the court erred in not admitting
The Chief Justice and Mr. Justice Villamor would disregard entirely the first assignment of
error and would, therefore, refrain from all discussion relative to the admissibility of Exhibit 1.
Confining themselves exclusively to an analysis of the evidence other than Exhibit 1, they find
that Eugenio Toledo has not been proved guilty beyond a reasonable doubt. The contradictions in
the testimony for the prosecution pointed out by the trial judge do not impress these members of
the court so seriously. In reality, there being but one witness for the prosecution who, on account
of her relations with Filomeno Morales, and the land troubles, might be expected to exaggerate,
and there being on the contrary exculpatory evidence for the defense, even without Exhibit 1, the
Government has not made out its case. Consequently, on the testimonial facts, these members
vote for acquittal.
II
25
The second view is that for which Messrs. Justices Romualdez and Villa-Real are
responsible, and is that Exhibit 1 should have been admitted in evidence as a part of the ges
gestae, and that giving it effect, in relation with the other evidence, the accused has not been
proved guilty. What has heretofore been said with reference to the state of the record need not
here be repeated. It only remains to be stated that Exhibit 1 was made by Sisenando Holgado on
the same morning that the fight occurred and without the interval of sufficient time for reflection.
The declaration of Sisenando Holgado fulfilled the test of the facts talking through the party and
not the party talking about the facts. There was such a correlation between the statement and the
fact of which it forms part as strongly tends to negative the suggestion of fabrication or a
suspicion of afterthought. The nature and circumstances of the statement do not disclose intrinsic
evidence of premeditation as revealed in a long, coherent, closely connected story. The modern
tendency is toward the extension of the rule admitting spontaneous declarations to meet the
needs of justice when other evidence of the same fact cannot be procured. (22 C. J., pp. 461 et
seq.; U. S. vs. David [1903], 3 Phil., 128.)
III
The third opinion in court is that held by Messrs. Justices Street, Malcolm, and Ostrand,
Exhibit 1 as the statement of a fact against penal interest. Had Exhibit 1 been received, it is
believed that its influence would have been felt by the trial court. Without Exhibit 1, the appellate
court is bound by the appreciation of the evidence made in the trial court, and could, with little
propriety, set aside the findings made by a learned trial judge. The case calls for an examination
of the right of the courts to receive in evidence documents of the character of Exhibit 1.
Hearsay evidence, with a few well recognized exceptions, it has been said on high
authority, is excluded by courts in the United States that adhere to the principles of the common
law. One universally recognized exception concerns the admission of dying declarations. Another
exception permits the reception, under certain circumstances, of declarations of third parties
made contrary to their own pecuniary or proprietary interest. But the general rule is stated to be
that the declarations of a person other than accused confessing or tending to show that he
committed the crime are not competent for accused on account of the hearsay doctrine.
Professor Wigmore, one of the greatest living authorities on the law of evidence, has
attempted to demonstrate the false premises on which the arbitrary limitation to the hearsay rule

rests. He shows that the limitation is inconsistent with the language originally employed in stating
the principle and is unjustified on grounds of policy. Professor Wigmore in turn has been
answered by no less a body than the Supreme Court of Mississippi in the case of Brown vs.
State of Mississippi ([1910], 37 L. R. A., New Series, 345). The editor of the Mississippi case in L.
R. A., however, comes to the support of Professor Wigmore saying the unanimity of the decisions
"is as complete as the shock which they give the general sense of justice." The question has
likewise in recent years gained attention by the Supreme Court of the United States in the case
of Donnelly vs. United States ([1913], 228 U. S., 243). There it was held that the court below
properly excluded hearsay evidence relating to the confession of a third party, then deceased, of
guilt of the crime with which defendant was charged. Mr. Justice Pitney, delivering the opinion of
the court, said: "In this country there is a great and practically unanimous weight of authority in
the state courts against admitting evidence of confessions of third parties, made out of court, and
tending to exonerate the accused." Mr. Justice Van Devanter concurred in the result while Mr.
Justice Holmes, with whom concurred Mr. Justice Lurton and Mr. Justice Hughes, dissented. Mr.
Justice Holmes said:
". . . The rules of evidence in the main are based on experience, logic, and
common sense, less hampered by history than some parts of the substantive law.
There is no decision by this court against the admissibility of such a confession; the
English cases since the separation of the two countries do not bind us; the
exception to the hearsay rule in the case of declarations against interest is well
known; no other statement is so much against interest as a confession of murder; it
is far more calculated to convince than dying declarations, which would be let in to
hang a man (Mattox vs. United States, 146 U. S., 140; 36 Law. ed., 917; 13 Sup.
Ct. Rep., 50); and when we surround the accused with so many safeguards, some
of which seem to me excessive; I think we ought to give him the benefit of a fact
that, if proved, commonly would have such weight. The history of the law and the
arguments against the English doctrine are so well and fully stated by Mr. Wigmore
that there is no need to set them forth at greater length. (2 Wigmore, Evidence,
pars. 1476, 1477.)"
In the Philippine jurisdiction, we have never felt bound to follow blindly the principles of
the common law. A reexamination of some of those principles discloses anomalies.
26
A dying declaration is admitted of necessity in order, as the Supreme Court of Mississippi
states, "to reach those manslayers who perpetrate their crimes when there are no other
eyewitnesses." But the person accused of a crime, under the same principle of necessity, is not
permitted to free himself by offering in evidence the admission of another under oath that this
other committed the crime. Again admissions are receivable against either a pecuniary or a
proprietary interest, but not against a penal interest. We fail to see why it can be believed that a
man will be presumed to tell the truth in the one instance but will not be presumed to tell the truth
in the other instance. Again the exhibit would have been admitted against its maker at his trial, if
he had not died. But the document is held inadmissible to exonerate another. Yet the truth of the
exhibit is not different ill the first case than in the second.
A study of the authorities discloses that even if given application they are not here
controlling. Most of them do not concern the confessions of declarants shown to be deceased.
Practically all of them give as the principal reason for denying the admission of a confession of a
third person that he committed the crime with which the accused is charged, that it was not made
under oath. Here the declarant is deceased and his statements were made under oath. They also
read in such a way as to ring with the truth. When Sisenando Holgado declared "When we
fought, there was nobody present," it was at the end of Just such a rambling statement as a
wounded man would be expected to make. When Sisenando Holgado declared "I met one of my
workers named Eugenio Toledo, who accompanied me to the house of Dalmacio Manlisic," he
did so in response to a question by the municipal president. Exhibit 1 should have been received
not is conclusive evidence of innocence, but as evidence to be taken into consideration in
connection with the other proven facts.
We cannot bring this decision to a conclusion without quoting the well considered
language of Professor Wigmore on the subject, the pertinent part of a decision coming from a
court which has gained respect particularly in criminal cases, and an editorial note. Professor
Wigmore has said:
"PAR. 1476. History of the Exception; Statement of Fact against Penal
Interest, excluded; Confessions of Crime be a Third Person. It is to day
commonly said, and has been expressly laid down by many judges, that the
interest prejudiced by the facts stated must be either a pecuniary of a pro prietary
interest, and not a penal interest. What ground in authority there is for this limitation
may be found by examining the history of the exception at large.

"The exception appears to have taken its rise chiefly in two separate
rivulets of rulings, starting independently as a matter of practice, but afterwards
united as parts of a general principle. . . .
"These lines of precedent proceeded independently tin about the beginning
of the 1800s, when a unity of principle for some of them came gradually to be
perceived and argued for. This unity lay in the circumstance that all such
statements, in that they concerned matters prejudicial to the declarant's self-
interest, were fairly trustworthy and might therefore (if he were deceased) be
treated as forming an exception to the hearsay rule.
"This broad principle made its way slowly. There was some uncertainty
about its scope; but it was an uncertainty in the direction of breadth; for it was
sometimes put in the broad form that any statement by a person 'having no interest
to deceive' would be admissible. This broad form never came to prevail (post, par.
1576). But acceptance was gained, after two decades, for the principle that all
declarations of facts against interest (by deceased persons) were to be received.
What is to be noted, then, is that from 1800 to about 1830 this was fully understood
as the broad scope of the principle. It was thus stated without other qualifications;
and frequent passages show the development of the principle to this point.
"But in 1844, in a case in the House of Lords, not strongly argued and not
considered by the judges in the light of the precedents, a backward step was taken
and an arbitrary limit put upon the rule. It was held to exclude the statement of a
fact subjecting the declarant to a criminal liability, and to be confined to statements
of facts against either pecuniary or proprietary interest. Thenceforward this rule
was accepted in England; although it was plainly a novelty at the time of its
inception; for in several rulings up to that time such statements had been received.
"The same attitude has been taken by most American courts, excluding
confessions of a crime, or other statements of facts against penal interest, made by
third persons; although there is not wanting authority in favor of admitting such
statements.
27
"PAR. 1477. Same: Policy of this Limitation. It is plain enough that this
limitation, besides being a fairly modern novelty, is inconsistent with the broad
language originally employed in stating the reason and principle of the present
exception (ante, pars. 1457, 1476) as well as with the settled principle upon which
confessions are received (ante, par. 1475).
"But, furthermore, it cannot be justified on grounds of policy. The only
plausible reason of policy that has ever been advanced for such a limitation is the
possibility of procuring fabricated testimony to such an admission if oral. This is the
ancient rusty weapon that has always been drawn to oppose any reform in the
rules of evidence, viz., the argument of danger of abuse. This would be a good
argument against admitting any witnesses at all, for it is notorious that some
witnesses will lie and that it is difficult to avoid being deceived by their lies. The
truth is that any rule which hampers an honest man in exonerating himself is a bad
rule, even if it also hampers a villain in falsely passing for an innocent.
"The only practical consequences of this unreasoning limitation are
shocking to the sense of justice; for, in its commonest application, it requires, in a
criminal trial, the rejection of a confession, however well authenticated, of a person
deceased or insane or fled from the jurisdiction (and therefore quite unavailable)
who has avowed himself to be the true culprit. The absurdity and wrong of rejecting
indiscriminately all such evidence is patent.
"The rulings already in our books cannot be thought to involve a settled
and universal acceptance of this limitation. In the first place, in almost all of the
rulings the declarant was not shown to be deceased or otherwise unavailable as a
witness, and therefore the declaration would have been inadmissible in any view of
the present exception (ante, par. 1456). Secondly, in some of the rulings (for
example, in North Carolina) the independent doctrine (ante, pars. 139-141) was
applicable that, in order to prove the accused's non-commission of the offense by
showing commission by another person, not merely one casual piece of evidence
suffices but a 'prima facie' case resting on several concurring pieces of evidence
must be made out. Finally, most of the early rulings had in view, not the present
exception to the hearsay rule, but the doctrine of admissions (ante, pars. 1076,

1079) that the admissions of one who is not a co-conspirator cannot affect others
jointly charged.
"It is therefore not too late to retrace our steps, and to discard this
barbarous doctrine, which would refuse to let an innocent accused vindicate
himself even by producing to the tribunal a perfectly authenticated written
confession, made on the very gallows, by the true culprit now beyond the reach of
justice. Those who watched (in 1899) with self-righteous indignation the course of
proceedings in Captain Dreyfus' trial should remember that, if that trial had
occurred in our own courts, the spectacle would have been no less shameful if we,
following our own supposed precedents, had refused to admit what the French
court never for a moment hesitated to admit,the authenticated confession of the
escaped Major Esterhazy, avowing himself the guilty author of the treason there
charged." (3 Wigmore on Evidence, 2d ed., secs. 1476, 1477.)
In the case of Pace vs. State ( [1911], Court of Criminal Appeals of Texas, 135
Southwestern, 379), the appellant offered to prove in the trial court by the witness Byron Kyle that
on Saturday morning following the killing of the deceased on the previous Sunday he had a
conversation with Dick Cain, one of the parties to the homicide, in which Dick Cain admitted that
he killed the deceased. The court ruled:
". . . Wherever the state seeks to fasten criminality upon the party on trial,
the accused had a right to meet and rebut any testimony which may be offered
against him in any legitimate way. If Cain had been upon trial, his confession to the
witness Kyle would have been admissible beyond any shadow of doubt, and would
have been strong evidence to go before the jury. The state would have been
seeking to introduce this and with great earnestness, and correctly so. If appellant
could prove that another party or others committed the homicide, it might prove his
innocence, and would be strong evidence to go before the jury in his favor. Any
legitimate fact or circumstance which would meet or tend to meet the state's case
and break the force of criminative facts introduced against the accused is always
admissible. Appellant's contention was that he did not kill the deceased, but that
Cain did. The state's theory was that appellant shot the deceased, and Cain did not
shoot him. Under the rules of evidence this testimony was clearly inadmissible."
28
We would like finally to turn attention to what was said by the editor of L. R. A. in his note
in volume 37 hereinbefore referred to, viz.:
"The purpose of all evidence is to get at the truth. The reason for the
hearsay rule is that the extrajudicial and unsworn statement of another is not the
best method of serving this purpose. In other words, the great possibility of the
fabrication of falsehoods, and the inability to prove their untruth, requires that the
doors be closed to such evidence. So long therefore as a declarant is available as
a witness, his extrajudicial statement should not be heard. Where, however, the
declarant is dead or has disappeared, his previous statements out of court, if not
inadmissible on other grounds, are the best evidence. But they are not rendered
inadmissible by the mere fact that the declarant is unavailable, something else
is necessary. One fact which will satisfy this necessity is that the declaration is or
was against the declarant's interest, and this is because no sane person will be
presumed to tell a falsehood to his own detriment.
xxx xxx xxx
"Again, if, as seems indisputable, the desire to close the door to falsehood
which cannot be detected dictates the exclusion of such testimony, the question as
to the effect to be given to such a confession is solely one of weight and
credibility. . . ."
Any man outside of a court and unhampered by the pressure of technical procedure,
unreasoned rules of evidence, and cumulative authority, would say that if a man deliberately
acknowledged himself to be the perpetrator of a crime and exonerated the person charged with
the crime, and there was other evidence indicative of the truthfulness of the statement, the
accused man should not be permitted to go to prison or to the electric chair to expiate a crime he
never committed. Shall Judges trained and experienced in the law display less discerning
common sense than the layman and allow precedent to overcome truth?
JUDGMENT
For three somewhat divergent reasons, we are all of the opinion that the defendant-
appellant Eugenio Toledo should be given the benefit of the reasonable doubt which prevails in

our minds. Accordingly, the judgment appealed from will be reversed and the defendant and
appellant acquitted, and as it appears that he is now confined in Bilibid Prison, an order will
immediately issue directing his release, with costs de oficio.
FIRST DIVISION
[G.R. No. L-43955-56. July 30, 1979.]
RENATO LAZATIN alias RENATO STA.
CLARA, petitioner, vs. HONORABLE JUDGE JOSE C. CAMPOS, JR.,
NORA L. DE LEON, BERNARDO DE LEON, ARLENE DE LEON and
IRMA L. VELOSO, respondents.
Ernesto T. Zshornack, Jr. for petitioner.
Jose W. Diokno Law Office private respondents the Leons.
Arturo E. Balbastro for privates respondent Veloso.
DECISION
TEEHANKEE, J p:
The Court dismisses the petition which seeks to overrule respondent judge's orders
declaring that petitioner has failed to establish by competent evidence his alleged status
as an adopted child of the deceased Lazatin spouses and prays for judgment of this
Court "declaring as established the fact of (his) adoption as a son of the deceased
spouses entitling him to succeed in their estates as such." Respondent judge correctly
ruled that he could not allow petitioner (who had filed a motion to intervene in the
proceedings to probate the will of the late Margarita de Asis Vda. de Lazatin and to settle
her estate as her adopted son, after having earlier filed a motion to intervene in the
intestate proceedings of her pre-deceased husband as his admitted illegitimate [not
natural] son), over the opposition of private respondents, to introduce evidence that he
had "enjoyed .. the status of an adopted child of the said spouses" without his first
producing competent and documentary proof that there had been judicial proceedings
for his legal adoption by the said spouses which resulted in the final judgment of a
competent court decreeing his adoption. LibLex
On January 13, 1974, Dr. Mariano M. Lazatin died intestate in Pasay City, survived by his
wife, Margarita de Asis, and his adopted twin daughters, respondent Nora L. de Leon,
married to respondent Bernardo de Leon, and respondent Irma Lazatin, married to
Francisco Veloso.
One month after Mariano's death, his widow, Margarita de Asis, commenced an intestate
proceeding before the Court of First Instance of Pasay, docketed as Sp. Proc. No. 2326-P.
Mariano, Oscar, Virgilio and Yvonne, claiming to be admitted illegitimate (not natural)
29
children of Dr. Lazatin with one Helen Muoz, intervened. Subsequently, one
Lily Lazatin also intervened, claiming to be another admitted illegitimate (not natural)
child.
Two months after or on April 11, 1974, the widow, Margarita de Asis, also died, leaving a
holographic will executed on May 29, 1970, providing, among others, for a legacy of
cash, jewelry, and stocks to respondent Arlene de Leon, a granddaughter; a legacy of
support to Rodolfo Gallardo, a son of her late sister; and a legacy of education to Ramon
Sta. Clara, son of petitioner Renato Lazatin alias Renato Sta. Clara.
During her lifetime, Margarita de Asis kept a safety deposit box at the People's Bank and
Trust Company, Roxas Boulevard branch, which either she or respondent Nora L. de Leon
could open. Five days after Margarita's death, respondent Nora L. de Leon, accompanied
by her husband, respondent Bernardo de Leon, opened the safety deposit box and
removed its contents: (a) shares of stock; (b) her adoption papers and those of her
sister, respondent Irma L. Veloso; and (c) jewelry belonging to her and to her mother.
Respondent Nora L. de Leon claims that she opened the safety deposit box in good faith,
believing that it was held jointly by her and her deceased mother. Her sole reason for
opening the box was to get her stock certificates and other small items deposited
therein. When she was to close the deposit box, the bank personnel informed her that
she needed an authority from the court to do so, in view of her mother's death and so,
she removed everything from the box. llcd
On June 3, 1974, private respondents filed a petition to probate the will of the late
Margarita de Asis, before docketed as Sp. Proc. No. 2341-P of respondent Court. Days
after having learned that respondent Nora L. de Leon had opened this safety deposit
box, petitioner's son, Ramon Sta. Clara, filed a motion in the probate court, claiming that
the deceased had executed a will subsequent to that submitted for probate and
demanding its production. He likewise prayed for the opening of the safety deposit box.
Respondent Nora L. de Leon admitted that she opened the box but there was no will or
any document resembling a will therein.
Upon the order of the probate court, presided over by Judge Arsenio B. Alcantara, the
safety deposit box was opened on November 6, 1974, at which time it was found to be
empty, because prior thereto respondent Nora L. de Leon had already removed its
contents.
On November 22, 1974, or seven months after the death of Margarita de Asis, petitioner
intervened for the first time in the proceedings to settle the estate of the late Dr.
Mariano M. Lazatin (Sp. Proc. No. 2326-P), as an admitted illegitimate (not natural) child.
Under the same date of November 22, 1974, petitioner's son, Ramon, filed a petition in
the estate proceedings of Margarita de Asis to examine private respondents on the

contents of the safety deposit box. Whereupon, on January 31, 1975, the probate court
ordered respondent Nora L. de Leon to deliver the properties taken from the safety
deposit box to the Clerk of Court. Subsequently, however, the two cases (Sp. Proc. No.
2326-P, Mariano Lazatin, and 2341-P, Margarita de Asis) were transferred to the sala of
respondent Judge Jose C. Campos, Jr.
On May 29, 1975, Judge Campos issued an order requiring counsel for respondents Nora
L. de Leon and Bernardo de Leon to produce all those papers and items removed from
the safety deposit box and to deliver the same to the custody of the court within one
week. Within the period ordered, respondent Nora L. de Leon deposited with the Clerk of
Court, not the items themselves, but two keys to a new safety deposit box which could
only be opened upon order of the court.
On August 20, 1975, petitioner Renato Lazatin alias Renato Sta. Clara filed a motion to
intervene in the estate of Margarita de Asis, Sp. Proc. No. 2341-P, as an adopted child, on
the basis of an affidavit executed by Benjamin Lazatin, brother of the deceased Dr.
Mariano M. Lazatin, that petitioner was an "illegitimate son" of Dr. Lazatinand was later
adopted by him. This affidavit was later modified on August 19, 1975 to state that
petitioner was adopted by both Mariano M. Lazatin and his wife Margarita de Asis.
On September 29, 1975, Judge Campos found respondent Nora L. de Leon guilty of
contempt of court for not complying with the orders of January 31, 1975 and May 29,
1975, requiring her to produce and deliver to the court all the papers and items removed
from the safety deposit box. Her former counsel was also found guilty of contempt,
sentenced to pay a fine of P100.00 and suspended from appearing in the two cases (Sp.
Proc. No. 2326-P, Mariano M. Lazatin, and Sp. Proc. No. 2341-P, Margarita de Asis), on her
testimony that she, Nora L. de Leon, acted upon his advice. llcd
Respondent court heard petitioner's motion to intervene as an adopted son in the estate
of Margarita de Asis, Sp. Proc. No. 2341-P, at which hearings petitioner presented no
decree of adoption in his favor. Instead, petitioner attempted to prove, over private
respondents' objections, that he had recognized the deceased spouses as his parents: he
had been supported by them until their death; formerly he was known as
"Renato Lazatin" but was compelled to change his surname to "Sta. Clara" when the
deceased spouses refused to give consent to his marriage to his present wife; that at
first, he and his wife stayed at the residence of Engracio de Asis, father of Margarita, but
a few months later, they transferred to the Mercy Hospital at Taft Avenue, Manila, owned
by the deceased spouses, where they continuously resided up to the present.
Photographs were also intended to be presented by petitioner, e.g., photograph of Irma
Veloso where she addressed herself as sister of petitioner; photograph of deceased
Margarita de Asis and petitioner when he was a boy; document showing that petitioner's
real name is "Renato Lazatin." 1
30
Respondent court first reserved its ruling on private respondents' objections to the
admission of petitioner's evidence, but on November 14, 1975, when petitioner could not
present evidence on the issue of his alleged legal adoption, respondent court
discontinued the hearing and gave the parties time to file memoranda on the question of
the admissibility of the evidence sought to be introduced by petitioner.
On March 4, 1976, respondent court barred the introduction of petitioner's evidence
because:
"All the evidence submitted by Renato and Ramon Sta. Clara through
their counsel do not prove or have no tendency to prove the existence of
any judicial proceeding where the adoption of the parties above named
were taken up by any court. Neither do the evidence tend to establish
the presence of any record of a proceeding in court where the adoption
of the above named persons was held. The evidence, however, tends to
prove a status of a recognized natural child which however, is not the
legal basis for which Renato and Ramon seek to intervene in this
proceedings. In view thereof, and taking into consideration the evidence
heretofore presented by the petitioners, any further introduction of
similar evidence, documentary or oral, would not prove or tend to prove
the fact of their adoption but rather of a recognized natural child."
Petitioner then filed on March 16, 1976, in both cases, a motion to declare as established
the fact of adoption in view of respondent Nora L. de Leon's refusal to comply with the
orders of respondent court to deposit the items she had removed from the safety deposit
box of Margarita de Asis. As authority therefor, petitioner invokes the sanction of Rule
29, Section 3 of the Rules of Court, since according to him, the order of the court for the
production of the items in the safety deposit box can be considered as an order for
production and inspection of documents under Rule 27. LexLib
Private respondents opposed the motion, and on March 26, 1976, respondent court
denied petitioner's motion. On April 26, 1976, respondent Nora L. de Leon deposited with
respondent court the items she had removed from the safety deposit box. An inventory
was conducted by respondent court, with notice to the parties, and the items
surrendered consisted only of pieces of jewelry and stock certificates.
On June 3, 1976, respondent court, ruling on petitioner's motion for definite resolution on
his previous motion to declare as established the fact of adoption, issued the following
order:

"As far as the case of Renato Sta. Clara is concerned and his Petition to
establish his status as an adopted child, the Court has ruled that he has
failed to establish such status. The Court denies any motion for
reconsideration unless based on some documentary proof."
Hence, the petition at bar.
We find the ruling of the respondent court to be in conformity with law and
jurisprudence.
1. Adoption is a juridical act, a proceeding in rem, 2 which creates between two persons
a relationship similar to that which results from legitimate paternity and filiation. 3 Only
an adoption made through the court, or in pursuance with the procedure laid down under
Rule 99 of the Rules of Court is valid in this jurisdiction. 4 It is not of natural law at all,
but is wholly and entirely artificial. 5 To establish the relation, the statutory requirements
must be strictly carried out, otherwise, the adoption is an absolute nullity. 6 The fact of
adoption is never presumed but must be affirmatively proved by the person claiming its
existence. The destruction by fire of a public building in which the adoption papers would
have been filed if existent does not give rise to a presumption of adoption nor is the
destruction of the records of an adoption proceeding to be presumed. On the contrary,
the absence of a record of adoption has been said to evolve a presumption of its non-
existence. 7 Where, under the provisions of the statute, an adoption is effected by a
court order, the records of such court constitute the evidence by which such adoption
may be established. 8
2. Petitioner's flow of evidence in the case below does not lead us to any proof of judicial
adoption. We can not pluck from his chain of evidence any link to the real existence of a
court decree of adoption in his favor. Petitioner's proofs do not show or tend to show that
at one time or another a specific court of competent jurisdiction rendered in an adoption
proceeding initiated by the late spouses an order approving his adoption as a child of the
latter. No judicial records of such adoption or copies thereof are presented or attempted
to be presented. Petitioner merely proceeds from a nebulous assumption that he was
judicially adopted between the years 1928 and 1932. By what particular court was the
adoption decreed or by whom was the petition heard, petitioner does not even manifest,
much less show. There are no witnesses cited to that adoption proceeding or to the
adoption decree. Apparently on the assumption that the adoption was commenced in
Manila, petitioner's counsel secured a certification from the Court of First Instance of
Manila which, however, negatively reported "(T)hat among the salvaged records now
available in this Office, there has not been found, after a diligent search, any record
regarding the adoption of Mr. Renato Lazatin alias Renato Sta. Clara allegedly filed
sometime in the years 1928 to 1931 by the spouses Dr. Mariano M. Lazatin and
Margarita de Asis de Lazatin." The certification of the Local Civil Registrar of Manila
"(T)hat our pre-war records relative to decisions of the Court of First Instance were either
destroyed or burned during the Liberation of the City of Manila," does not furnish any
31
legal basis for a presumption of adoption in favor of petitioner. This is because there
was no proof that petitioner was really adopted in Manila or that an adoption petition
was filed in the Court of First Instance of Manila by the deceased spouses, where, after
hearing, a judgment of approval was rendered by said court. Moreover, if there was
really such adoption, petitioner could have conveniently secured a copy of the
newspaper publication of the adoption as required under Section 4, Rule 99 of the Rules
of Court (formerly Section 4 Rule 100) or a certification of the publishing house to that
effect. Petitioner's failure on this point is another strong indication of the non-existence
of the adoption paper. We also observed that the identity of the one who gave the
written consent to the adoption (Section 3, Rule 99. Rules of Court), whether the parents
or orphanage, does not appear in the trend of petitioner's evidence. The collation of
proof on this point is not so difficult and such proof must be presented if only to prove
the real existence of the adoption. And of course, if the adoption records were indeed
destroyed or burned during the war, the clear right and duty of petitioner was to duly
reconstitute the records as provided by law.
3. The absence of proof of such order of adoption by the court, as provided by the
statute, cannot be substituted by parol evidence that a child has lived with a person, not
his parent, and has been treated as a child to establish such adoption. 9 Even evidence
of declaration of the deceased, made in his lifetime, that he intended to adopt a child as
his heir, and that he had adopted him, and of the fact that the child resided with the
deceased, as a member of his family, from infancy until he attained his majority, is not
sufficient to establish the fact of adoption. 10 Nor does the fact that the deceased
spouses fed, clothed, educated, recognized and referred to one like petitioner as an
adopted child, necessarily establish adoption of the child. 11 Withal, the attempts of
petitioner to prove his adoption by acts and declarations of the deceased do not
discharge the mandatory presentation of the judicial decree of adoption. The thrust of
petitioner's evidence is rather to establish his status as an admitted illegitimate child,
not an adopted child which status of an admitted illegitimate child was the very basis
of his petition for intervention in the estate proceedings of the late Dr. Lazatin, as above
stated. (Supra, at page 3 hereof)
We do not discount though that declarations in regard to pedigree, although hearsay, are
admitted on the principle that they are natural expressions of persons who must know
the truth. 12 Pedigree testimony is admitted because it is the best that the nature of the
case admits and because greater evil might arise from the rejection of such proof than
from its admission. 13 But, in proving an adoption, there is a better proof available and it
should be produced. The whereabouts of the child's family and circulation of the
jurisdiction in which they resided and investigation in those courts where adoption are
usually granted would surely produce an adoption order, if indeed there was an
order. 14 Besides, since the point in favor of receiving hearsay evidence upon matters of
family history or pedigree is its reliability, it has been set forth as a condition upon which
such evidence is received that it emanate from a source within the family. Pursuant to
this view, before a declaration of a deceased person can be admitted to prove pedigree,

or ancestry, the relationship of the declarant, by either of blood or affinity to the family
in question, or a branch thereof, must ordinarily be established by competent
evidence. 15 Section 33 of Rule 130 states: "The act or declaration of a person
deceased, or outside of the Philippines, 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 . . .."
4. Secondary evidence is nonetheless admissible where the records of adoption
proceedings were actually lost or destroyed. But, prior to the introduction of such
secondary evidence, the proponent must establish the former existence of the
instrument. The correct order of proof is as follows: Existence; execution; loss; contents;
although this order may be changed if necessary in the discretion of the court. 16 The
sufficiency of the proof offered as a predicate for the admission of an alleged lost deed
lies within the judicial discretion of the trial court under all the circumstances of the
particular case. 17 "As earlier pointed out, petitioner failed to establish the former
existence of the adoption paper and its subsequent loss or destruction. Secondary proof
may only be introduced if it has first been established that such adoption paper really
existed and was lost. This is indispensable. 18 Petitioner's supposed adoption was only
testified to by him and is allegedly to be testified to by a brother of the deceased
Mariano M. Lazatin or others who have witnessed that the deceased spouses treated
petitioner as their child. If adoption was really made, the records thereof should have
existed and the same presented at the hearing or subsequent thereto or a reasonable
explanation of loss or destruction thereof, if that be the case, adduced. 19 Assuming the
mere fact that the deceased spouses treated petitioner as their child does not justify the
conclusion that petitioner had been in fact judicially adopted by the spouses nor does it
constitute admissible proof of adoption.
We cannot entertain the plea of petitioner that the sanction of Rule 29 should be applied
to consider as established the fact of his adoption due to the refusal of respondent Nora
L. de Leon to produce the document of adoption, because first, the fact or real existence
of petitioner's adoption had not been established; second, there is no proof that such
document of adoption is in the possession of respondent Nora L. de Leon; third, the motu
proprio order of the court for Nora de Leon to produce the items retrieved from the
safety deposit box cannot be treated as a mode of discovery of production and
inspection of documents under Rule 27; andfourth, the items deposited in the safety
deposit box have already been surrendered by respondent Nora L. de Leon on April 26;
1976 and no document of adoption in favor of petitioner was listed as found in the safety
deposit box. cdll
5. As a necessary consequence, petitioner Renato Lazatin alias Renato Sta. Clara cannot
properly intervene in the settlement of the estate of Margarita de Asis, Sp. Proc. No.
32
2341-P as an adopted child because of lack of proof thereof. For one to intervene in
an estate proceeding, it is a requisite that he has an interest in the estate, either as one
who would be benefited as an heir or one who has a claim against the estate like a
creditor. 20 A child by adoption cannot inherit from the parent by adoption unless the act
of adoption has been done in strict accord with the statue. Until this is done, no rights
are acquired by the child and neither the supposed adopting parent or adopted child
could be bound thereby. 21 The burden of proof in establishing adoption is upon the
person claiming such relationship. He must prove compliance with the statutes relating
to adoption in the jurisdiction where the adoption occurred. 22 A fortiori, if no hereditary
interest in the estate can be gained by a claimant who failed to submit proof thereof,
whether the will is probated or not, intervention should be denied as it would merely
result in unnecessary complication. 23To succeed, a child must be legitimate,
legitimated, adopted, acknowledged illegitimate natural child or natural child by legal
fiction or recognized spurious child. 24
In the face of the verified pleadings of record (constituting judicial admissions) which
show that petitioner sought to intervene on November 22, 1974 in the estate
proceedings of his alleged adoptive father Dr. Mariano M. Lazatin (Sp. Proc. No. 2326-P)
as an admitted illegitimate (not natural) child, 25 while his intervention on August 20,
1975 in the estate of Margarita de Asis, widow of the deceased Dr. Lazatin (Sp. Proc. No.
2341-P) was as her adopted child on the basis of the affidavit of a brother of the
deceased Dr. Lazatin, Benjamin Lazatin, executed on August 19, 1975 (which affidavit
modified a first affidavit executed on May 31, 1975, which failed to state by "oversight"
that Dr. Lazatin and his wife had "jointly adopted" petitioner, but stated that affiant knew
petitioner to be "an illegitimate son" of Dr. Lazatin who later "legally adopted (him) as a
son before the Court of First Instance of Manila sometime between the years 1928 and
1931") and prescinding from the question of whether a natural or spurious child may be
legally adopted by the putative father, we hold that no grave abuse of discretion nor
error of law as committed by respondent judge in issuing the questioned orders of March
4, 1976, March 26, 1976 and June 3, 1976 denying petitioner's petition "to declare as
established in this proceeding the fact of adoption" and denying "any motion for
reconsideration unless based on some documentary proof." The Court finds no basis to
grant the affirmative relief sought in this proceeding by petitioner for a rendition of
judgment "declaring as established the fact of your petitioner's adoption as a son of the
deceased spouses entitling him to succeed in their estates as such in accordance with
the applicable law on succession as to his inheritance." LLjur
Upon the filing of the petition, the Court issued on June 16, 1976 a temporary restraining
order; which as amended on July 21, 1976, restrained respondent judge "from
proceeding with the hearing scheduled on June 17, 1976 at 8:30 a.m., requiring the
submission of evidence to establish heirship in Special Proceedings No. 2326-P entitled
'Intestate Estate of the Late Mariano M. Lazatin' and Special Proceedings No. 2341-P,
entitled 'Testate Estate of the late Margarita de Asis Vda. de Lazatin,' and from
proceeding with the probate of the alleged holographic will of the deceased Doa

Margarita de Asis Vda. de Lazatin scheduled on June 29, 1976, August 10 and 12, 1976
and on any other dates." With the Court's determination of the issues as herein set forth,
there is no longer any need for restraining the proceedings below and the said
restraining order shall be immediately lifted.
On January 24, 1977, the Court upon petitioner's motion resolved to conditionally allow
respondent judge "to take the deposition of petitioner's witnesses to perpetuate their
testimonies pursuant to Rule 134, Section 7 of the Rules of Court, subject to the Court's
ruling in due course on the admissibility of such testimonies." The Court thereby
permitted in effect the advance testimonies of petitioner's witnesses, principally among
them Rafael Lazatin and Esteban L. Lazatin, both brothers of the deceased Dr. Mariano
L. Lazatin and as stated in petitioner's motion of January 11, 1977:
"Substantially, the testimony of the above named witnesses will be on
the fact that they had been informed by the deceased spouses, Mariano
and Margarita Lazatinthat your petitioner was their [Mariano's and
Margarita's] judicially adopted son and to elicit further from them the
fact that your petitioner enjoys the reputation of being their judicially
adopted son in the Lazatin family."
The Court's resolution allowing the advance testimonies of petitioner's witnesses was but
in application of the Court's longstanding admonition to trial courts as reaffirmed
in Lamagan vs. De la Cruz 26 , "to be liberal in accepting proferred evidence since even
if they were to refuse to accept the evidence, the affected party will nevertheless be
allowed to spread the excluded evidence on the record, for review on appeal." The Court
therein once again stressed the established rule that "it is beyond question that rulings
of the trial court on procedural questions and on admissibility of evidence during the
course of the trial are interlocutory in nature and may not be the subject of separate
appeal or review on certiorari, but are to be assigned as errors and reviewed in the
appeal properly taken from the decision rendered by the trial court on the merits of the
case," 27 and that a party's recourse when his proferred evidence is rejected by the trial
court is to make a formal offer stating on the record what a party or witness would have
testified to were his testimony not excluded, as well as to attach to the record any
rejected exhibits. cdphil
At the continuation of the proceedings below for declaration of heirship and for probate
of the alleged holographic will of the deceased Margarita de Asis Vda. deLazatin,
petitioner who has failed to establish his status as an alleged adopted child of Margarita
de Asis (unless, as reserved to him by the court below, he can show some documentary
proof) and whose intervention in the estate of the deceased Dr. Mariano Lazatin is as an
admitted illegitimate child, will have to decide whether he will pursue his first theory of
having the status of such admitted illegitimate child of said deceased. Whatever be his
theory and his course of action and whether or not he may be duly allowed to intervene
in the proceedings below as such alleged admitted illegitimate child, his recourse in the
33
event of an adverse ruling against him is to make a formal offer of proof and of his
excluded evidence, oral and documentary, and seek a reversal on an appeal in due
course. prcd
ACCORDINGLY, the petition is dismissed and the questioned orders denying petitioner's
petition below " to declare as established in this proceeding the fact of [his] adoption"
are hereby affirmed. The temporary restraining order issued on June 16, 1976 and
amended on July 21, 1976 is ordered lifted, effective immediately. Without costs.
SO ORDERED.
EN BANC
[G.R. No. L-24989. July 21, 1967.]
PEDRO GRAVADOR, petitioner-appellee, vs. EUTIQUIO MAMIGO,
THE DISTRICT SUPERVISOR OF BAYAWAN-STA. CATALINA SCHOOL
DISTRICT, THE DIVISION SUPERINTENDENT OF SCHOOLS OF
NEGROS ORIENTAL, THE DIRECTOR OF PUBLIC SCHOOLS and THE
SECRETARY OF EDUCATION, (all sued in their official and personal
capacities), respondents-appellants.
Solicitor General Arturo A. Alafriz, Assistant Solicitor General
I.C . Borromeo and Solicitor F. J . Bautista for respondents-
appellants.
Newton E. Serion for petitioner-appellee.
SYLLABUS
1. ADMINISTRATIVE LAW; FINDINGS OF FACT OF ADMINISTRATIVE OFFICIALS; EFFECT.
That the findings of fact of administrative officials are binding on the courts if supported
by substantial evidence, is a settled rule of administrative law.
2. ID.; EVIDENCE; DATE OF BIRTH; CIRCUMSTANCES EVIDENCING THE SAME. Although
a person can have no personal knowledge of the date of his birth, he may testify as to
his age as he had learned it from his parents and relatives, and his testimony in such
case is an assertion of family tradition. Indeed, even in his application for backpay, filed
through the Office of the Superintendent of Schools, on October 7, 1948, the petitioner
stated that the date of his birth is December 11, 1901. He repeated the same assertion
in 1956 and again in 1960 when he asked the Government Service Insurance System
and the Civil Service Commission to correct the date of his birth to December 11, 1901.
Again the import of the declaration of the petitioner's brother, contained in a verified
pleading in a cadastral case way back in 1924, to the effect that the petitioner was then
23 years old, cannot be ignored. Made ante litem motam by a deceased relative, this

statement is at once a declaration regarding pedigree within the intendment and
meaning of section 33 of Rule 130 of the Rules of Court. Thus, December 11, 1901 is
established as the date of birth of the petitioner not only by evidence of family tradition
but also by the declaration ante litem motam of a deceased relative.
3. ID.; QUO WARRANTO; PERIOD WITHIN WHICH ACTION MAY BE BROUGHT. Suits for
quo warranto to recover a public office must be brought within one year.
4. ID.; RULE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES; APPLICATION OF RULE
WHERE RIGHT ASSERTED MAY BE NULLIFIED IF OBSERVANCE THEREOF IS INSISTED
UPON. The rule on exhaustion of administrative remedies does not apply where
insistence on its observance would result in the nullification of the claim being asserted.
DECISION
CASTRO, J p:
The petitioner Pedro Gravador was the principal of the Sta. Catalina Elementary School in
Sta. Catalina, Negros Oriental on August 15, 1964 when he was advised by the then
Superintendent of Schools Angel Salazar, Jr., through the respondent Supervisor Teodulfo
E. Dayao, of his separation from the service on the ground that he had reached the
compulsory retirement age of 65. The advice reads:
"According to your pre-war records as a teacher in the public schools,
including your Employee's Record Card, which has just been found in
connection with the verification of the services of all school officials
including elementary school principals in this division, you were born on
November 26, 1897. As of this date, therefore, you are now 66 years, 8
months, and 22 days old.
"In view of the above, you are hereby advised of your separation from
the service effective immediately unless you can show valid proof in the
form of a baptismal or birth certificate that you are below sixty-five of
age today."
A few days later, the respondent Eutiquio Mamigo was designated teacher-in-charge
of the said elementary school.
On August 31, 1964 the petitioner wrote the Director of Public Schools, protesting his
forced retirement on the ground that the date of his birth is not November 26, 1897 but
December 11, 1901. Attached to his letter was the affidavit, executed on July 26, 1962,
of Lazaro Bandoquillo and Pedro A. Sienes, both of Amlan, Negros Oriental, in which
34
these two affiants declared that they knew that the petitioner "was born on December
11, 1901, in the Municipality of Amlan, formerly known as New Ayuquitan, Province of
Negros Oriental, Philippines" because "we were the neighbors of the late spouses,
NEPOMUCENO GRAVADOR and AGUEDA REGOROSA [petitioner's parents] and that we
were present when said PEDRO GRAVADOR was born; furthermore, we were also invited
during the baptismal party a few weeks after the birth of said PEDRO GRAVADOR."
On October 19, 1964 the petitioner wrote to the Division Superintendent of Schools,
reiterating his claim that he had not reached the age of 65 and enclosing some papers in
support thereof.
On April 13, 1965 he filed this suit for quo warranto, mandamus and damages in the
Court of First Instance of Negros Oriental. He asked the court to adjudge him entitled to
the office of principal of the Sta. Catalina Elementary School and to order payment to
him of not only his back salaries but also damages in the total amount of P52,400.
Named as respondents were Eutiquio Mamigo, the District Supervisor, the
Superintendent of Schools, the Director of Public Schools and the Secretary of Education.
The respondents filed their answer, entered into a stipulation of facts with the petitioner,
and thereafter the case was submitted for decision. The trial court concluded that the
petitioner was born on December 11, 1901 and accordingly granted his petition.
Immediate execution was ordered, as a result of which the petitioner was reinstated.
The respondents appealed directly to this Court.
On July 6, 1967 the petitioner asked for the dismissal of the appeal on the ground that
the issues posed thereby had become moot with his retirement from the service on
December 11, 1966 and the payment to him of the corresponding retirement benefits.
We deem it necessary, however, to review the trial court's decision on the merits,
considering that the computation of retirement annuities is based, among other things,
on the number of years of service of a retiree, 1 and that payment of benefits already
made to the petitioner on the basis of December 11, 1901 as the date of his birth would
not exempt him from the obligation to make a refund should this Court ultimately rule
that he was actually born on November 26, 1897, as the respondents claim.
The controversy on the petitioner's date of birth arose as a result of the conflicting
records of the Division of Schools of Negros Oriental. On the one hand the pre-war
records show his date of birth to be November 26, 1897. These records consist of two
Insular Teacher's Cards 2 and one Employee's Record Card. 3 It is on the basis of these
records that the Superintendent of Schools determined the petitioner's age to be 66
years, 8 months and 22 days on August 15, 1964.

On the other hand, the post-war records, consisting of an Elementary Teacher's Report
Card, 4 an Employee's Record Card 5 and an Employee's Record of Qualifications6 state
that the petitioner was born on December 11, 1901. These are the records on which the
petitioner bases his claim.
The problem is aggravated by two uncontroverted facts, namely, that the records of the
church where the petitioner was baptized were destroyed by fire, and that the municipal
civil register contains no record of the petitioner's birth.
According to the trial court, the post-war records were intended to replace the pre-war
records and therefore the correct date of birth of the petitioner is December 11, 1901.
The court also took into account the verified answer in a cadastral proceeding in the
Court of First Instance of Negros Oriental, dated March 15, 1924, filed by the petitioner's
brother, Romulo Gravador, now deceased. It is therein stated that the petitioner, said to
be one of the co-owners of a piece of land, was at the time 23 years old.
The respondents now contend that the trial court erred in placing full reliance on the
post-war records to establish the date of birth (December 11, 1901) of the petitioner.
They argue that these records were made only because it was thought that the pre-war
records had been lost or destroyed, but as some pre-war records had since been located,
the date contained in the pre-war records should be regarded as controlling; and that the
finding of the Superintendent of Schools that the petitioner was born on November 26,
1897 is an administrative finding that should not be disturbed by the court.
That the findings of fact of administrative officials are binding on the courts if supported
by substantial evidence, is a settled rule of administrative law. But whether there is
substantial evidence supporting the finding of the Superintendent of Schools is precisely
the issue in this case. The school official based his determination of the petitioner's age
on the pre-war records in the preparation of which the petitioner does not appear to
have taken a part. 7 On the other hand, the petitioner relies on post-war records which
he personally accomplished to prove the date of his birth. 8
It is our considered view that the lower court correctly relied upon the post-war records,
for three cogent reasons.
In the first place, as Moran states, although a person can have no personal knowledge of
the date of his birth, he may testify as to his age as he had learned it from his parents
and relatives and his testimony in such case is an assertion of a family
tradition. 9 Indeed, even in his application for back pay which he filed with the
Department of Finance, through the Office of the Superintendent of Schools, on October
7, 1948, the petitioner stated that the date of his birth is December 11, 1901. He
repeated the same assertion in 1956 and again in 1960 when he asked the Government
35
Service Insurance System and the Civil Service Commission to correct the date of his
birth to December 11, 1901.
In the second place, the import of the declaration of the petitioner's brother, contained in
a verified pleading in a cadastral case way back in 1924, to the effect that the petitioner
was then 23 years old, can not be ignored. Made ante litem motam by a deceased
relative, this statement is at once a declaration regarding pedigree within the
intendment and meaning of section 33 of Rule 130 of the Rules of Court.
Thus, December 11, 1901 is established as the date of birth of the petitioner only by
evidence of family tradition but also by the declaration ante litem motam of a deceased
relative.
Finally, the parties are agreed that the petitioner has a brother, Constantino, who was
born on June 10, 1898 and who retired on June 10, 1963 with full retirement pay. The
petitioner then could not have been born earlier than Constantino, say in 1897 as the
pre-war records indicate, because Constantino is admittedly older than he. 10
Still it is argued that the petitioner's action was prematurely brought because he had not
availed of all administrative remedies. This argument is without merit. Suits for quo
warranto to recover a public office must be brought within one year. 11 Before filing this
case the petitioner waited for eight months for the school officials to act on his protest.
To require him to tarry a little more would obviously be unfair to him since on April 13,
1965, when this case was filed, he had only four months left within which to bring the
case to court. There was neither manner nor form of assurance that the decision of the
Director of Public Schools would be forthcoming. The rule on exhaustion of
administrative remedies does not apply where insistence on its observance would result
in the nullification of the claim being asserted. 12
Accordingly, the judgment a quo is affirmed. No pronouncement as to costs.
EN BANC
[A.C. No. 533 . April 29, 1968.]
IN RE: FLORENCIO MALLARE
Rosendo J. Tansisin for the respondent.
Hon. Commissioner of Immigration Martiniano P. Vivo for the
complainant.
SYLLABUS

1. CIVIL LAW; MARRIAGE; PRESUMPTION OF MARRIAGE. Persons living together as
husband and wife are presumed to be married to each other (Rule 131, par. bb). Every
intendment of law and fact leans towards the validity of marriage and the legitimacy of
children (Art. 220, Civil Code),
2. CITIZENSHIP; EVIDENCE; PROBATIVE VALUE OF LANDING CERTIFICATE, INADEQUATE.
A landing certificate issued under section 7 of Act 702 by the Collector of Customs is
based on an administrative ex parte determination of the evidence presented and the
facts as stated by the applicant. As such, it carries little evidentiary weight as to the
citizenship of the applicant's spouse.
3. ID.; AFFIDAVIT EXECUTED BY ONE CLAIMING ELECTION OF PHILIPPINE CITIZENSHIP,
SELF-SERVING. The affidavit executed by respondent's father stating that he elected
to be a Filipino when he reached the age of majority is not a substitute for a duly
recorded election of Philippine citizenship, assuming that the affiant was qualified to so
elect. It is self-serving as it was executed for the purpose of making a change in a
miscellaneous lease application where he had previously stated that he is a citizen of
China; neither can it be regarded as a re-affirmation of an alleged election of citizenship
since no such previous election was proved to have existed.
4. ID.; EXERCISE OF SUFFRAGE DOES NOT ALTER CITIZENSHIP. Registration as a voter
may indicate the person's desire to exercise a right appertaining exclusively to Filipino
citizens but this does not alter his real citizenship which in this jurisdiction is
determinable by blood (jus sanguinis).
5. ID.; WHERE FATHER IS NOT A CITIZEN, ALL HIS CHILDREN REMAIN ALIENS, INCLUDING
THE LATTER'S MOTHER. Where the evidence is clearly preponderant, if not
overwhelming, that the respondent's father was and remained a Chinese, the
respondent's mother, admittedly a Chinese retained her original citizenship and their
offsprings, respondent included, are likewise Chinese nationals through and through.
6. ID.; CIVIL CASE FOR RESCISSION OF SALE AND RECOVERY OF LAND ON GROUND THAT
VENDEE IS A CHINESE, NOT RES JUDICATA ON ISSUE OF CITIZENSHIP. InCivil Case No.
329-G against respondent and the latter's brothers and sisters to recover a piece of land
from them on the ground that they were Chinese the Court declared them to be natural
born Filipinos and that the sale to them was valid. Such declaration did not constitute res
judicata. The pronouncement was not within the court's competence because the
declaration of citizenship was not the relief sought. Besides, at the time, the
pronouncement was beyond judicial power, there being no law authorizing the institution
of a judicial proceeding to declare the citizenship of an individual.
7. ID.; ACTIONS TO BE DECLARED FILIPINO CITIZEN OTHER THAN BY NATURALIZATION;
EFFECT. Civil Case No. 329-G, an action to declare invalid a deed of sale of land to
36
vendees who were supposed to be Chinese citizens, and Special Proceeding No. 3925,
an action for the correction of records of birth, are not modes of acquiring Philippine
citizenship; neither is the citizenship of the respondent converted to Filipino because
certain government agencies recognized him as such. He remains, by jus sanguinis, a
Chinese until he is naturalized.
8. ID.; APPEARANCE OF FISCAL IN A SPECIAL PROCEEDING TO CORRECT CITIZENSHIP IN A
RECORD OF BIRTH; EFFECT. The appearance of the fiscal in a special proceeding for
the correction of respondents' records of birth does not bind the State to the order of the
correction thereof because the proceeding was not instituted as in rem and, under no
law had the State given its consent to be a party thereto.
DECISION
REYES, J.B.L., J p:
The respondent, Florencio Mallare, was admitted to the practice of law on 5 March
1962. In his verified petition to take the bar examinations in 1961, he alleged that he is a
citizen of the Philippines and that "his father is Esteban Mallare and his mother is Te Na,
both Filipino citizens". (Personal Record, No. 17450, Bar Division)
On 16 July 1962, the then Acting Commissioner of Immigration Martiniano P. Vivo
denounced the respondent to this Court as a Chinaman masquerading as a Filipino
citizen and requested that the matter be investigated thoroughly and if the respondent
fails to show that he has legally become a Filipino, steps be taken for striking his name
from the roll of persons authorized to practice law. Acting upon the request, this Court,
on 9 August 1962, referred the matter to its Legal Officer-Investigator for investigation
and report. An investigation was thus held wherein the relator or complainant and the
respondent appeared and adduced their respective evidence.
The position of the respondent-lawyer is that he is a Filipino citizen based on the
supposed citizenship of his father, Esteban Mallare, alleged to be a Filipino citizen by
choice, because he was the illegitimate son of a Chinese father and a Filipina mother,
Ana Mallare; and that the respondent's mother, Te Na, a Chinese, followed the citizenship
of her husband upon their marriage.
The respondent's second theory is that, having been declared a Filipino citizen in a final
judgment in 1960 by the Court of First Instance of Quezon province, in its Civil Case No.
329-G (entitled, Vitaliano Itable vs. Artemio, Florencio, Paciencia, Esperanza and
Raymundo Mallare) and his birth record, wherein he was originally registered as a
Chinese, has likewise been ordered corrected to Filipino, by final judgment in Special
Proceeding No. 3925 of the same court, 1 his Filipino citizenship is conclusive,res
judicata and binding to the government and to the world.

Complainant Vivo disputed, on the facts, the respondent's first theory, and, on the
second theory, claimed that the aforestated Civil Case No. 329-G (Itable vs. Mallare) was
a simulated action calculated to obtain a judicial declaration of Philippine citizenship
and, after having obtained the said declaration, the respondent, together with his
brothers and sisters, utilized the declaration to change their birth and alien registration
the better to hide their true nationality, which is Chinese.
The respondent denies the charge of simulating an action, and by way of defense, points
out that Civil Case No. 329-G and Special Proceeding No. 3925 are not subject to
collateral attack and, since his birth record and alien registration (and that of his
brothers and sisters) have been corrected and cancelled, respectively, the question of
their citizenship is now moot and academic.
On respondent's first claim to citizenship by blood, the earliest datum that can be stated
about the respondent's supposed ancestry is that in 1902, 2 ex-municipal president
Rafael Catarroja, then eight years old, met for the first time Ana Mallare, the supposed
paternal grandmother of the respondent, in Macalelon, Quezon. He had not seen her
deliver or give birth to the baby boy, Esteban Mallare, father of the respondent, but met
the supposed Filipina mother and Esteban Mallare years later when the boy was already
(8) years old. (Annex "8", pp. 10-12, t.s.n., Sept. 24, 1959, Civil Case No. 329-G, CFI of
Quezon Province). There is no evidence that Ana Mallarewas an "inhabitant of the
Philippine Islands continuing to reside therein who was a Spanish subject on the eleventh
day of April, eighteen hundred and ninety-nine", as required by the Philippine Bill of July
1, 1902 and she cannot, therefore, be considered a Filipina. That witness Catarroja, the
respondent, and the latter's brothers and sisters, stated that Ana Mallare was a Filipina,
as well as their testimonies in the civil case that she had not married her Chinese
husband and that she is the true mother of Esteban Mallare, are more of opinion or
conjecture than fact, utterly insufficient to overcome the presumption that persons living
together as husband and wife are married to each other (Rule 131, par bb). "Every
intendment of law and fact", says Article 220 of our Civil Code "leans toward the validity
of marriage and the legitimacy of children."
The respondent relies on three documents as indicative of the alleged Philippine
citizenship of his father, Esteban Mallare. On 7 July 1926, Te Na, respondent's Chinese
mother, was described in a landing certificate of residence issued to her, as "wife of P.I.
citizen" and as "wife of Dy Esteban, P.I, citizen". (Annex "16", being Exh. "3" inCivil Case
No, 329-G). On 20 February 1939, Esteban Dy Mallare executed an affidavit stating
therein that when he reached the age of majority he had "definitely elected to be a
Filipino citizen following the citizenship of my mother." (Annex "4", being Exh. "1" in Civil
Case No. 329-G) And, in 1928, Esteban Mallare was a registered voter inMacalelon,
Quezon. (Annex "7", being Exh. "2" in Civil Case No, 329-G).
A landing certificate of residence issued under Section 7, Act 702 by the Collector of
Customs is based upon an administrative ex parte determination of the evidence
37
presented and the facts as stated by the applicant and, therefore, carries little
evidentiary weight as to the citizenship of the applicant's husband. In the instant case,
the truth of Te Na's declarations when she applied for the landing certificate could have
been inquired into had she been presented as a witness in these proceedings, but this
was not done.
The affidavit of Esteban Mallare, besides being self-serving, is not a substitute for a duly
recorded election of Philippine citizenship, assuming that the affiant was qualified to so
elect. When Esteban executed it, he was already thirty-six (36) years old and he
executed it for the purpose, stated in the last paragraph, of making a change in a
miscellaneous lease application wherein he had previously stated that he is a citizen of
China. Nor can it be regarded as a re- affirmation of an alleged election of citizenship,
since no such previous election was proven to have existed.
Esteban Mallare's registration as a voter indicates his desire to exercise a right
appertaining exclusively to Filipino citizens but this does not alter his real citizenship,
which, in this jurisdiction, is determinable by his blood (jus sanguinis).
Against these pretensions of Philippine citizenship, all the five (5) known children of the
spouses Esteban Mallare and Te Na, Artemio, Esperanza, Florencio, Paciencia and
Raymundo, were registered at birth as children of a Chinese father and a Chinese
mother and with the added detail that their parents were born in China.
The birth certificate of Esperanza Mallare (Exh. "F") who was born on 25 October 1939, is
particularly significant in this regard, because it bears the father's own signature. If
Esteban Mallare was indeed a Filipino by choice, as stated by him in his aforementioned
affidavit (Annex 4), then he should have so stated in this birth certificate of his daughter;
instead, he admits, against his own interest, that he is a Chinese. Esteban Mallare's own
death certificate (Exh. "C"), over the signature of his son, Artemio Mallare, shows against
Artemio's own interest, that Esteban was a Chinese, born in Fookiang, China; that he
died on 5 June 1945, at the age of 42 and was buried at the Chinese cemetery, having
resided in the Philippines for 28 years (Exh. "C"), i.e., only since 1917.
The affidavit of Artemio denying that the signature in the aforesaid death certificate is
his, is inadmissible and, therefore, should be rejected, as it was offered inevidence for
the first time after trial was closed, as an annex to the respondent's memorandum with
the investigator. The affiant was not examined thereon, and the affidavit is self-serving
besides.
The entire family, consisting of the father, mother and their four (4) children (Raymundo
was not yet born) were registered as aliens in 1942 in the then Division of Alien

Statistics, pursuant to the proclamation of the Commander-in-Chief of the Imperial
Japanese Forces in the Philippines and Executive Order No. 25 of the then Executive
Commission (See letter of Jan. 18, 1963 from the Bureau of Immigration to the Legal
Officer Investigator; see also pp. 171 and 180-181, Vol. 1, No. 4, Official Gazette,
published during Japanese occupation.)In addition, the respondent himself was again
registered as an alien in 1950, his application thereto bearing his thumbprints and
stating therein that he is a Chinese; that he belongs to the yellow race and that he had
used these other names: "Tan Jua Gae", "Enciong" and "Jua Gao" (Exh. "N"). He had been
a teacher in the Candon Chinese School (t.s.n., p. 17, Oct. 3, 1962). His explanation that
it was his mother who registered him as an alien is flimsy; and, as stated hereinbefore,
he did not present his mother as a witness.
The evidence is thus clearly preponderant, if not overwhelming that the respondent's
father, Esteban Mallare or "Mallari", also known as "Esteban Dy", "Esteban DyMallare"
and "Esteban Tan", was and remained a Chinese until he died; consequently, the
respondent's mother, admittedly a Chinese, retained her original citizenship and their
offspring, respondent, Florencio Mallare, together with his brothers and sisters, are
likewise Chinese nationals, through and through.
We now turn to respondent's second defense of res judicata. There are certain marks of
simulation that attended Civil Case No. 329-G, and indicating that it was brought to
circumvent a previous unfavorable opinion of the Secretary of Justice denying
cancellation of Mallare's alien registration (Op. No. (90, Ser. of 1955, dated March 31,
1955). The said civil case was instituted by the vendor (Vitaliano Itable) of a certain
parcel of land to rescind the sale and recover the land sold from the vendees, who are
the herein respondent and his brothers and sisters, on the ground that the said vendees
are Chinese. The vendor-plaintiff practically abandoned the case; the vendees-
defendants submitted evidence purporting to show their Filipino citizenship, and plaintiff
neither cross-examined nor presented rebuttal proof. After trial, the court, declaring the
vendees as natural-born Filipino citizens, decided for the validity of the sale of the parcel
of land.
On the basis of the foregoing declaration by the Court of First Instance of Quezon
Province, the respondent and his brothers and sisters filed Special Proceeding No.
3925, in the same court, but in a different branch, for the "correction" of their birth
records. The local fiscal, representing the Solicitor General, appeared but did not oppose
the petition; wherefore, after hearing, the court granted the petition. Based on the same
judicial declaration, the then Commissioner of Immigration De la Rosa (not the
complainant) cancelled on June 8, 1960, the alien registration of the herein respondent
and that of his brothers and sisters, and issued to them identification certificates
recognizing them as Filipino citizens. Then Solicitor General Alafriz took the same
position.
38
Civil Case No. 329-G and Special Proceeding No. 3925 are not modes of acquiring
Philippine citizenship; neither is the Chinese citizenship of the respondent converted to
Filipino because certain government agencies recognized him as such. He remains,
by jus sanguinis, a Chinese until he is naturalized.
It is noted that the declaration that the respondent and his brothers and sisters are
Filipino citizens is stated in the dispositive portion of the decision in Civil Case No. 329-G,
which was an action in personam. The pronouncement was not within the court's
competence, because the declaration of the citizenship of these defendants was not the
relief that was sought. At the time, the pronouncement was beyond judicial power, there
being no law authorizing the institution of a judicial proceeding to declare the citizenship
of an individual (Danilo Channie Tan v. Republic, L-14159, April 18, 1960; Palaran v.
Republic, L-15047, Jan. 30, 1962; Tan Yu Chin v. Republic, L-15775, April 29, 1961; Tan v.
Republic, L-16108, October 31, 1961; Santiago vs. Commissioner, L-14653, Jan. 31,
1963; Commissioner vs. Domingo, L-21274, July 31, 1963; Lao Yap Diok, et al., v.
Republic, L-19107-09, Sept. 30, 1964).
In the basic case Channie Tan vs. Republic, ante, this Court ruled as follows:
"Under our laws, there can be no action or proceeding for the judicial
declaration of the citizenship of an individual. Courts of justice exist for
the settlement of justiciable controversies, which imply a given right,
legally demandable and enforceable, an act or omission violative of said
right, and a remedy granted or sanctioned by law, for said breach of
right. As an incident only of the adjudication of the rights of the parties
to a controversy, the court may pass upon, and make a pronouncement
relative to, their status. Otherwise, such a pronouncement is beyond
judicial power. Thus, for instance, no action or proceeding may be
instituted for a declaration to the effect that plaintiff or petitioner is
married, or single, or a legitimate child, although a finding thereon may
be made as a necessary premise to justify a given relief available only to
one enjoying said status. At times, the law permits the acquisition of a
given status, such as naturalization, by judicial decree. But, there is no
similar legislation authorizing the institution of a judicial proceeding to
declare that a given person is part of our citizenry." (Tan vs. Republic, G.
R. No. L-14159, April 18, 1960, reiterated in G.R. No. L-15775, April 29,
1961).
The said judicial declaration 3 was merely an incident to the adjudication of the rights of
the parties to the controversy over land ownership. Their citizenship was not the thing
adjudicated in the judgment and the declaration that they are Filipinos was but a
necessary premise for the court to arrive at a conclusion that the sale of the realty was
valid as between the parties. Not being the thing directly adjudicated, their declared
citizenship is not res judicata, and cannot become conclusive.

The appearance of the fiscal, representing the Solicitor General, in Special Proceeding
No. 3925 does not bind the state to the order of "correction" of the birth records because
the proceeding was not instituted as in rem and, under no law had the state given its
consent to be party thereto. For this reason, the fiscal's appearance was an unauthorized
one.
It is noteworthy that in neither case relied upon by the respondent does it appear that
his claim for citizenship was given adequate publication so as to apprise all concerned
and give them opportunity to contest it or supply the corresponding public office any
derogatory data that might exist against the alleged citizenship. Hence, neither decision
constitutes res judicata on the issue of respondent's alleged Filipino nationality.
And certainly, the Supreme Court, acting pursuant to its inherent and constitutional
authority, may not be precluded from inquiring into the citizenship of persons admitted
to the practice of law, independent of any court's findings in the cases or proceedings
brought or instituted therein.
IN VIEW OF ALL THE FOREGOING, the respondent Florencio Mallare is hereby declared
excluded from the practice of law; his admission to the Philippine bar is revoked and he
is hereby ordered to return immediately to this Court the lawyer's diploma previously
issued to him.
Let a copy of this decision be furnished, when it becomes final, to me Secretary of
Justice, for such action as may be deemed warranted, and let another copy be sent to
the Local Civil Registrar of Macalelon, Quezon, for purposes of record in the
corresponding civil registry of births.
SO ORDERED.
FIRST DIVISION
[G.R. No. 65442. April 15, 1985.]
HAVERTON SHIPPING LTD. and OFSI SERVICES,
INC., petitioners, vs. THE NATIONAL LABOR RELATIONS
COMMISSION, THE HON. CRESENCIO M. SIDDAYAO, in his capacity
as Officer-in-Charge of the NATIONAL SEAMEN BOARD and
ALFREDO BENITEZ, respondents.
Taada, Sanchez, Taada & Taada for petitioners.
Legal Service (LACE) for respondents.
SYLLABUS
39
1. LABOR AND SOCIAL LEGISLATIONS; LABOR LAW; NATIONAL LABOR RELATIONS
COMMISSION; FINDINGS OF FACT GENERALLY ENTITLED TO GREAT RESPECT; EXCEPTION.
Generally, the rule is that findings of fact of the NLRC are entitled to great respect. But
the judgment below can be reversed when public respondents have overlooked certain
significant facts, which are sufficient to alter the questioned decision.
2. ID.; ID.; NATIONAL SEAMEN BOARD; ENTRIES IN VESSEL'S LOG BOOK ARE PRIMA
FACIE EVIDENCE OF FACTS STATED THEREIN. In declaring that copy of the Official
Entry in the Ship's Log Book was not legally binding for being hearsay, public
respondents overlooked the fact that under our laws the ship's captain is obligated to
keep a "log book" where, among others, he records the decisions he has adopted. Even
according to the law of the vessel's registry, that book is also "required by law" as
disclosed by the entry itself. There is no controversy as to the genuineness of the said
entry. The vessel's log book is an official record and entries made by a person in the
performance of a duty required by law are prima facie evidence of the facts stated
therein.
3. ID.; ID.; COMMISSION NOT PRECLUDED FROM TAKING INTO ACCOUNT EVIDENCE
SUBMITTED ONLY ON APPEAL; TECHNICAL RULES OF EVIDENCE NOT STRICTLY
FOLLOWED IN LABOR CASES. It is true that the Affidavits of Candelaria and Espiritu,
dated April 4 & 11, 1983, were submitted only when the case was on appeal to the NLRC.
Still, that should not have precluded the NLRC from taking them into account. There was
plausible reason for the delay in the submittal of their Affidavits in that the affiants were
out of the country plying back and forth between the ports of the Far East and South and
West Africa during the period from March 12, 1982 to March 16, 1983. It was only after
the expiration of their contract of employment that they returned to the Philippines and
executed their sworn statements before the Labor Arbiter. As the Labor Code specifically
provides, rules of evidence prevailing in Courts of law shall not be controlling and every
and all reasonable means to ascertain the facts in each case shall be used without
regard to technicalities.
4. ID.; ID.; PROBATIVE VALUE OF ENTRIES IN LOG BOOK NOT OVERCOME BY PRIVATE
RESPONDENT'S SUBMITTAL'S SERIOUS MISCONDUCT, JUST CAUSE FOR TERMINATION.
The inevitable conclusion is that public respondents had misappreciated the significance
of the entry in the vessel's official log book regarding the incident. The probative value of
the facts stated therein has not been overcome by BENITEZ's submittals. We are
constrained to hold, therefore, that BENITEZ's actuations were tantamount to serious
misconduct in connection with his work and is a just cause for termination of
employment.
DECISION
MELENCIO-HERRERA, J p:

This Petition for Certiorari seeks to annul and set aside the Decision of the National Labor
Relations Commission (First Division), dated August 17, 1983, affirming on appeal the
Decision of the National Seamen's Board (NSB) in NSB Case No. 3716-82 entitled
"Alfredo Benitez, complainant, vs. Haverton Shipping Ltd. and OFSI Services, Inc.,
respondents." The decretal portion of the NLRC Decision reads: Cdpr
"WHEREFORE, all the foregoing premises considered, a decision is
hereby rendered ordering the respondents, jointly and severally to pay
to complainant the sum of US DOLLARS FOUR THOUSAND SIX HUNDRED
SEVEN (US $4,607.00) or its equivalent in the Philippine Currency, as
salary for the unexpired portion of the employment contract.
"Counter-claim dismissed." 1
On November 4, 1983, we issued a Temporary Restraining Order enjoining respondents
from enforcing said Decision.
For resolution is the question of whether or not private respondent BENITEZ was
terminated for just cause even before the expiration of his employment contract.
The records show that on March 12, 1982, Alfredo BENITEZ was hired by OFSI Services,
the local manning agent of Haverton Shipping, as a boatswain on the M.V. Gold Alisa,
owned and operated by the latter, for a period of one year with a monthly salary of US
$485.00. On May 24, 1982, while the vessel was berthed at the port of Durban, South
Africa, a fight occurred between BENITEZ and his shipmates, Arnel Candelaria and
Maximo Espiritu, as a result of which the latter suffered injury on the fingers of his left
hand. An investigation of the incident was conducted by the Master who made a written
report of his findings and decision in the ship's "log book". BENITEZ was found to have
breached the disciplinary code of merchant service on several counts among which was
"assault with a knife on a member of the ship's crews," which behavior "seriously
detract(ed) from the safe and efficient working of the ship." He was then repatriated to
the Philippines after serving only two and a half months of his contract.
BENITEZ's version of the incident, as set forth in his Affidavit submitted to the NSB,
follows:
"On May 24, 1982, or thereabout, the ship M.V. Gold Alisa was in port at
Durban, South Africa, I asked permission from my officer for shore leave
and was granted. Espiritu and Candelaria went also on shore leave but
they arrived ahead of me. At that time I arrived late for my duty and
upon arrival I changed on my working clothes to assume my work. I saw
Espiritu in the mess hall with Candelaria and I noticed they were drunk.
Espiritu asked me why I did not work on my duty, though he has no
40
business to question me he being my immediate subordinate, but I
answered him that he better go to sleep because he was drunk. Espiritu
did not like my comment that he was drunk, he even called me some
nasty words, then he went to the pantry, got a knife and attacked me.
Candelaria tried to pacify him and separate us, in the process he was
able to hit me at the right eyelid and on my right hand, these (2) injuries
leaving scars on my hand and right eyelid. When Espiritu saw I was
bleeding he ran away and locked himself in his cabin. After the incident
the 1st officer and 2nd officer came and asked me about the incident
and I told them everything what had happened. The following morning I
told the Captain of the ship of the incident. I told the Captain that
Espiritu and Candelaria were drunk, it was Espiritu who provoked me to a
fight, it was Espiritu who got a knife and attacked me, I told him I did not
have any knife with me during the incident and I was not able to inflict
any injury on Espiritu as he was the one with a knife, and he and
Candelaria were grappling with the knife as Candelaria was trying to get
the knife from him. If ever Espiritu was injured, the same must have
been caused by the knife he was holding when Candelaria tried to get it
from him." 2
On the other hand, petitioners presented before the NSB a copy of the Official Entry in
the Ship's Log Book, dated May 25, 1982, to wit:
"Place of Occurrence: Durban
"Date of Occurrence: 24th and 25th May 1982
"24th May 1982
1800 Bosun Alfredo Benitez did not report for duty when his
watch commenced at 1800.
"25th May 1982
0200 It was reported to the Duty Officer, Mr. T. A. Andrews, that 'the
bosun had returned and that there were problems'. Mr. Andrews
proceeded to the crew messroom where he heard the bosun
shouting loudly, and in an obviously highly excitable state, at

A/B's Maximo Espiritu and Arnel Candelaria. The second officer
noticed blood on the bosun's shirt. The bosun was quietened and
led to his cabin. The second officer applied first aid to two cuts
on the fingers of Maximo Espiritu's left hand. (Later required two
stitches each.) It was stated by Espiritu that the bosun had attacked
him with a knife and that he had grabbed the knife, causing the cuts
on his fingers. Candelaria had then pulled the bosun away from
Espiritu. The master found the injuries consistent with this
allegation.
1100 The master received evidence from second officer T. A. Andrews.
1215 Hearing in the master's cabin. Present: The master, the chief
officer, Bosun Alfredo Benitez and A/B's Maximo Espiritu and
Arnel Candelaria.
"Statements were received from the two A/B's, who were then asked to
leave.
"After a thorough and careful investigation of all the events, the master
found that the Disciplinary Code of the British Merchant Service, and of
the Filipino National Seaman's Board, to which Alfredo Benitez had
agreed when he signed the Crew Agreement and his Company Contract,
had been breached on the following counts.
i) Absent from duty.
ii) Assault with an offensive weapon (knife) on a member
of the ship/s crew.
41
iii) Intimidation, and interference with the work of a
member of the ship's crew.
iv) Behaviour which seriously detracts from the safe and
efficient working of the ship.
v) Behaviour which seriously detracts from the social well-
being of any other person on board. (Maximo Espiritu. The bosun
had threatened 'to kill him'. Afterwards, Espiritu was too
frightened to sleep in his own cabin and had spent the night in
the cabin of a shipmate.)
"The master then asked Alfredo Benitez if he had anything to say.
"Benitez replied that he admitted all the charges and that he was guilty
of wielding a knife towards Espiritu and that the attack had been
thwarted by Candelaria pulling him away. In mitigation he stated that he
had on the previous day received a letter from home which had
contained bad news; and this had placed him in a depressed state of
mind. Benitez stated that he regreted the incident.
"The master said that, while he was aware that the initial argument was
not solely caused by the bosun, his assault on Espiritu had nevertheless
been no way to settle the dispute. The master found the bosun guilty of
all the charges and bearing in mind possible problems between Benitez
and the crew, especially during the long sea voyage to Singapore, the
master had no alternative but to dismiss Benitez immediately from his
service with the ship.
"Benitez' Account of Wages was drawn up and the sum of United States
Dollars 719.60 (Seven Hundred and Nineteen Dollars 60 cents,) the total
payable under the account was paid to Benitez in cash. Arrangements
were made with the company's agents, Polaris Shipping, to receive
Benitez and arrange for his repatriation to Manila. Benitez was then
signed off the Crew Agreement." 3
On June 7, 1982, BENITEZ filed with the NSB a complaint for illegal dismissal and
unlawful termination of contract. On the basis of the parties' position papers, decision
was rendered adopting BENITEZ's version and ruling that the copy of the Official Entry in
the Ship's Log Book was "purely hearsay and could not legally be binding". 4The NLRC

also rejected the Affidavits of able seamen Candelaria and Espiritu for the reason that
they were presented only when the case was already on appeal before it. LLjur
Generally, the rule is that findings of fact of the NLRC are entitled to great respect. 5 But
the judgment below can be reversed when public respondents have overlooked certain
significant facts, which are sufficient to alter the questioned decision. 6 That situation
confronts us now.
In declaring that copy of the Official Entry in the Ship's Log Book was not legally binding
for being hearsay, public respondents overlooked the fact that under our laws the ship's
captain is obligated to keep a "log book" where, among others, he records the decisions
he has adopted. 7 Even according to the law of the vessel's registry, that book is also
"required by law" as disclosed by the entry itself. 8 There is no controversy as to the
genuineness of the said entry. The vessel's log book is an official record and entries
made by a person in the performance of a duty required by law are prima facie evidence
of the facts stated therein. 9
That an investigation was conducted on the incident is admitted by BENITEZ. 10 The
reason, as stated in the entry, as to why BENITEZ was not given a copy before he
disembarked from the vessel was that the vessel had sailed for Singapore on the same
day and it was not possible in the short time available to provide BENITEZ with a copy of
the entry. 11
The two cut wounds sustained by Espiritu in his fingers, which required two stitches
each, conforms to his narration that BENITEZ lunged at him and tried to stab him with
the knife and that in protecting himself he held the blade of the knife with his left hand
and injured himself. 12 As stated in the entry, "(T)he master found the injuries consistent
with this allegation". 13 Candelaria's Affidavit 14 corroborates Espiritu's narrative of the
incident.
It is true that the Affidavits of Candelaria and Espiritu, dated April 4 & 11, 1983, were
submitted only when the case was on appeal to the NLRC. Still, that should not have
precluded the NLRC from taking them into account. There was plausible reason for the
delay in the submittal of their Affidavits in that the affiants were out of the country
plying back and forth between the ports of the Far East and South and West Africa during
the period from March 12, 1982 to March 16, 1983. It was only after the expiration of
their contract of employment that they returned to the Philippines and executed their
sworn statements before the Labor Arbiter. 15 As the Labor Code specifically provides,
rules of evidence prevailing in Courts of law shall not be controlling and every and all
reasonable means to ascertain the facts in each case shall be used without regard to
technicalities. 16
42
On the other hand, BENITEZ's claim that "(I)f ever Espiritu was injured, the same must
have been caused by the knife he was holding when Candelaria tried to get it from him,"
stands uncorroborated. cdrep
Reliance was placed by the NSB on the Master's rating of BENITEZ upon his discharge
that his ability and conduct was "very good," and that he was a good professional
man. 17 This rating was considered as offsetting the Master's entries in the log book,
The Master, J.B. Cullen of M.V. Gold Alisa, explained this, however, in a transmittal letter
dated June 10, 1982 to OFSI Services, thus: "Benitez in himself was not all that bad a
person. But he had a few drinks ashore, and chose to settle his differences with a knife,
which action is absolutely unacceptable aboard . . . Because I did not want to make
Benitez bear the consequences of this incident for the rest of his sea career, I did not
make any specific remark in his Seaman's Book however, it goes without saying that
he should not under any circumstances be appointed to a Haverton vessel again." 18
In the light of all the foregoing, the inevitable conclusion is that public respondents had
misappreciated the significance of the entry in the vessel's official log book regarding the
incident. The probative value of the facts stated therein has not been overcome by
BENITEZ's submittals.
We are constrained to hold, therefore, that BENITEZ's actuations were tantamount to
serious misconduct in connection with his work and is a just cause for termination of
employment. 19 As a consequence, he is not entitled to any salary for the unexpired
portion of his employment contract. LLpr
WHEREFORE, the Petition for Certiorari is granted, the questioned Decisions are
REVERSED, and the complaint dismissed. The Temporary Restraining Order heretofore
issued is made permanent. No costs.
SO ORDERED.
SPECIAL FIRST DIVISION
[G.R. No. 127598. February 22, 2000.]
MANILA ELECTRIC COMPANY, petitioner, vs. Hon. SECRETARY of
LABOR LEONARDO QUISUMBING and MERALCO EMPLOYEES and
WORKERS ASSOCIATION (MEWA), respondents.
Rolando R. Arbues, Atilano S. Guevarra, Jr. and Marianito D.
Miranda for petitioner.
Siguion Reyna, Montecillo & Ongsiako for petitioner.
Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P.
Fernandez for Meralco Employees and Workers Association.

The Solicitor General for public respondent.
M. B. Tomacruz Law Office and Jesus S. Silo for First Line Asso. of
Meralco Supervisory Employees.
SYNOPSIS
The Decision of the Court promulgated on January 27, 1999 modified the resolutions
made by the Secretary of Labor in favor of Meralco Employees. However, in view of the
motions for reconsideration filed, the Court herein reconsidered the matter of the
amount of wages and the retroactivity of the Collective Bargaining Agreement (CBA)
arbitral awards.
The 5.7 billion which was the Secretary of Labor's basis for granting the P2,200.00 wage
increase is higher than the actual net income of 5.1 billion admitted by petitioner
Meralco. It would be proper then to increase the Court's award of P1,900 to P2,000 for
the two years of the CBA award. On the retroactivity of the CBA arbitral award, based on
the letter of petitioner's Chairman and President of the Board to their stockholders that
the CBA "for the rank-and-file employees covering the period December 1, 1995 to
November 30, 1997 is still with the Supreme Court," the Court retroacts the subject CBA
awards to two years from said date as it is indicative of petitioner's recognition that the
CBA award covers the said period.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; RULES OF ADMISSIBILITY; COMMERCIAL LISTS AND THE
LIKE; REPORT RELIED UPON, NOT ADMISSIBLE. The All Asia Capital report upon which
the Union relies to support its position regarding the wage issue can not be an accurate
basis and conclusive determinant of the rate of wage increase. Under Section 45 of Rule
130 of the Rules of Evidence, statement of matters contained in a periodical may be
admitted only "if that compilation is published for use by persons engaged in that
occupation and is generally used and relied upon by them therein." As correctly held in
our Decision dated January 27, 1999, the cited report is a mere newspaper account and
not even a commercial list. At most, it is but an analysis or opinion which carries no
persuasive weight for purposes of this case as no sufficient figures to support it were
presented. Neither did anybody testify to its accuracy. It cannot be said that
businessmen generally rely on news items such as this in their occupation. Besides, no
evidence was presented that the publication was regularly prepared by a person in touch
with the market and that it is generally regarded as trustworthy and reliable. Absent
extrinsic proof of their accuracy, these reports are not admissible. In the same manner,
newspapers containing stock quotations are not admissible in evidence when the source
of the reports is available. With more reason, mere analyses or projections of such
reports cannot be admitted. In particular, the source of the report in this case can be
43
easily made available considering that the same is necessary for compliance with
certain governmental requirements.
2. LABOR AND SOCIAL LEGISLATION; LABOR STANDARDS; BASIS OF WAGE
DETERMINATION NEED NOT BE DISCUSSED. As mentioned in the January 27, 1999
Decision, the Court does "not seek to enumerate in this decision the factors that should
affect wage determination" because collective bargaining disputes particularly those
affecting the national interest and public service "requires due consideration and proper
balancing of the interests of the parties to the dispute and of those who might be
affected by the dispute." The Court takes judicial notice that the new amounts granted
herein are significantly higher than the weighted average salary currently enjoyed by
other rank-and-file employees within the community. It should be noted that the
relations between labor and capital is impressed with public interest which must yield to
the common good. Neither party should act oppressively against the other or impair the
interest or convenience of the public. Besides, matters of salary increases are part of
management prerogative.
3. ID.; ARBITRATION; WHEN ARBITRAL AWARD IN A LABOR DISPUTE WHERE THE
SECRETARY HAD ASSUMED JURISDICTION SHALL RETROACT. Labor laws are silent as to
when an arbitral award in a labor dispute where the Secretary had assumed jurisdiction
by virtue of Article 263 (g) of the Labor Code shall retroact. In general, a CBA negotiated
within six months after the expiration of the existing CBA retroacts to the day
immediately following such date and if agreed thereafter, the effectivity depends on the
agreement of the parties. On the other hand, the law is silent as to the retroactivity of a
CBA arbitral award or that granted not by virtue of the mutual agreement of the parties
but by intervention of the government. Despite the silence of the law, the Court rules
herein that CBA arbitral awards granted after six months from the expiration of the last
CBA shall retroact to such time agreed upon by both employer and the employees or
their union. Absent such an agreement as to retroactivity, the award shall retroact to the
first day after the six-month period following the expiration of the last day of the CBA
should there be one. In the absence of a CBA, the Secretary's determination of the date
of retroactivity as part of his discretionary powers over arbitral awards shall control. It is
true that an arbitral award cannot per se be categorized as an agreement voluntarily
entered into by the parties because it requires the interference and imposing power of
the State thru the Secretary of Labor when he assumes jurisdiction. However, the arbitral
award can be considered as an approximation of a collective bargaining agreement
which would otherwise have been entered into by the parties. The terms or periods set
forth in Article 253-A pertains explicitly to a CBA. But there is nothing that would prevent
its application by analogy to an arbitral award by the Secretary considering the absence
of an applicable law. Under Article 253-A: "(I)f any such agreement is entered into
beyond six months, the parties shall agree on the duration of retroactivity thereof." In
other words, the law contemplates retroactivity whether the agreement be entered into
before or after the said six-month period. The agreement of the parties need not be

categorically stated for their acts may be considered in determining the duration of
retroactivity. IATSHE
4. ID.; ID.; GRANT OF LOAN TO A COOPERATIVE; NOT JUSTIFIED. On the allegation
concerning the grant of loan to a cooperative, there is no merit in the union's claim that
it is no different from housing loans granted by the employer. The award of loans for
housing is justified because it pertains to a basic necessity of life. It is part of a privilege
recognized by the employer and allowed by law. In contrast, providing seed money for
the establishment of the employee's cooperative is a matter in which the employer has
no business interest or legal obligation. Courts should not be utilized as a tool to compel
any person to grant loans to another nor to force parties to undertake an obligation
without justification. On the contrary, it is the government that has the obligation to
render financial assistance to cooperatives and the Cooperative Code does not make it
an obligation of the employer or any private individual.
5. ID.; ID.; CONSULTATION WITH UNION IN CASES OF CONTRACTING OUT SERVICES FOR
SIX MONTHS OR MORE; REJECTED AS THE SAME IS MANAGEMENT PREROGATIVE. The
added requirement of consultation imposed by the Secretary in cases of contracting out
for six (6) months or more has been rejected by the Court. Suffice it to say that the
employer is allowed to contract out services for six months or more. However, a line
must be drawn between management prerogatives regarding business operations per
se and those which affect the rights of employees, and in treating the latter, the
employer should see to it that its employees are at least properly informed of its decision
or modes of action in order to attain a harmonious labor-management relationship and
enlighten the workers concerning their rights. Hiring of workers is within the employer's
inherent freedom to regulate and is a valid exercise of its management prerogative
subject only to special laws and agreements on the matter and the fair standards of
justice. The management cannot be denied the faculty of promoting efficiency and
attaining economy by a study of what units are essential for its operation. It has the
ultimate determination of whether services should be performed by its personnel or
contracted to outside agencies. While there should be mutual consultation, eventually
deference is to be paid to what management decides. Contracting out of services is an
exercise of business judgment or management prerogative. Absent proof that
management acted in a malicious or arbitrary manner, the Court will not interfere with
the exercise of judgment by an employer. As mentioned in the January 27, 1999
Decision, the law already sufficiently regulates this matter. Jurisprudence also provides
adequate limitations, such that the employer must be motivated by good faith and the
contracting out should not be resorted to circumvent the law or must not have been the
result of malicious or arbitrary actions. These are matters that may be categorically
determined only when an actual suit on the matter arises.
RESOLUTION
44
YNARES-SANTIAGO, J p:
In the Decision promulgated on January 27, 1999, the Court disposed of the case as
follows: LLpr
"WHEREFORE, the petition is granted and the orders of public
respondent Secretary of Labor dated August 19, 1996 and December 28,
1996 are set aside to the extent set forth above. The parties are directed
to execute a Collective Bargaining Agreement incorporating the terms
and conditions contained in the unaffected portions of the Secretary of
Labor's orders of August 19, 1996 and December 28, 1996, and the
modifications set forth above. The retirement fund issue is remanded to
the Secretary of Labor for reception of evidence and determination of
the legal personality of the MERALCO retirement fund." 1
The modifications of the public respondent's resolutions include the following:
January 27, 1999 decision Secretary's resolution
Wages -P1,900.00 for 1995-96 P2,200
X'mas bonus -modified to one month 2 months
Retirees -remanded to the Secretary granted
Loan to coops -denied granted
GHSIP, HMP
and Housing loans -granted up to P60,000.00 granted
Signing bonus -denied granted
Union leave -40 days (typo error) 30 days
High voltage/pole -not apply to those who are members of a team
not exposed to the risk

Collectors -no need for cash bond, no
need to reduce quota and MAPL
CBU -exclude confidential employees include
Union security -maintenance of membership closed shop
Contracting out -no need to consult union consult first
All benefits -existing terms and conditions all terms
Retroactivity -Dec. 28, 1996-Dec. 27, 199(9) from Dec 1, 1995
Dissatisfied with the Decision, some alleged members of private respondent union
(Union for brevity) filed a motion for intervention and a motion for reconsideration of the
said Decision. A separate intervention was likewise made by the supervisor's union
(FLAMES 2 ) of petitioner corporations alleging that it has bona fide legal interest in the
outcome of the case. 3 The Court required the "proper parties" to file a comment to the
three motions for reconsideration but the Solicitor-General asked that he be excused
from filing the comment because the petition filed in the instant case was granted by the
Court. 4 Consequently, petitioner filed its own consolidated comment. An "Appeal
Seeking Immediate Reconsideration" was also filed by the alleged newly elected
president of the Union. 5 Other subsequent pleadings were filed by the parties and
intervenors.
The issues raised in the motions for reconsideration had already been passed upon by
the Court in the January 27, 1999 decision. No new arguments were presented for
consideration of the Court. Nonetheless, certain matters will be considered herein
particularly those involving the amount of wages and the retroactivity of the Collective
Bargaining Agreement (CBA) arbitral awards.
Petitioner warns that if the wage increase of P2,200.00 per month as ordered by the
Secretary is allowed it would simply pass the cost covering such increase to the
consumers through an increase in the rate of electricity. This is a non sequitur. The Court
cannot be threatened with such a misleading argument. An increase in the prices of
electric current needs the approval of the appropriate regulatory government agency
and does not automatically result from a mere increase in the wages of petitioner's
employees. Besides this argument presupposes that petitioner is capable of meeting a
wage increase. The All Asia Capital report upon which the Union relies to support its
position regarding the wage issue can not be an accurate basis and conclusive
determinant of the rate of wage increase. Section 45 of Rule 130 Rules of Evidence
provides:
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 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."
Under the afore-quoted rule, statement of matters contained in a periodical may be
admitted only "if that compilation is published for use by persons engaged in that
occupation and is generally used and relied upon by them therein." As correctly held in
our Decision dated January 27, 1999, the cited report is a mere newspaper account and
not even a commercial list. At most, it is but an analysis or opinion which carries no
persuasive weight for purposes of this case as no sufficient figures to support it were
presented. Neither did anybody testify to its accuracy. It cannot be said that
businessmen generally rely on news items such as this in their occupation. Besides, no
evidence was presented that the publication was regularly prepared by a person in touch
with the market and that it is generally regarded as trustworthy reliable. Absent extrinsic
proof of their accuracy, these reports are not admissible. 6 In the same manner,
newspapers containing stock quotations are not admissible in evidence when the source
of the reports is available. 7 With more reason, mere analyses or projections of such
reports cannot be admitted. In particular, the source of the report in this case can be
easily made available considering that the same is necessary for compliance with certain
governmental requirements. cda
Nonetheless, by petitioner's own allegations, its actual total net income for 1996 was
P5.1 billion. 8 An estimate by the All Asia financial analyst stated that petitioner's net
operating income for the same year was about P5.7 billion, a figure which the Union
relies on to support its claim. Assuming without admitting the truth thereof, the figure is
higher than the P4.171 billion allegedly suggested by petitioner as its projected net
operating income. The P5.7 billion which was the Secretary's basis for granting the
P2,200.00 is higher than the actual net income of P5.1 billion admitted by petitioner. It
would be proper then to increase this Court's award of P1,900.00 to P2,000.00 for the
two years of the CBA award. For 1992, the agreed CBA wage increase for rank-and-file
was P1,400.00 and was reduced to P1,350.00, for 1993; further reduced to P1,150.00 for
1994. For supervisory employees, the agreed wage increase for the years 1992-1994 are
P1,742.50, P1,682.50 and P1,442.50, respectively. Based on the foregoing figures, the
P2,000.00 increase for the two-year period awarded to the rank-and-file is much higher
than the highest increase granted to supervisory employees. 9 As mentioned in the
January 27, 1999 Decision, the Court does "not seek to enumerate in this decision the
factors that should affect wage determination" because collective bargaining disputes
particularly those affecting the national interest and public service "requires due
consideration and proper balancing of the interests of the parties to the dispute and of
those who might be affected by the dispute." 10 The Court takes judicial notice that the
new amounts granted herein are significantly higher than the weighted average salary

currently enjoyed by other rank-and-file employees within the community. It should be
noted that the relations between labor and capital is impressed with public interest
which must yield to the common good. 11 Neither party should act oppressively against
the other or impair the interest or convenience of the public. 12 Besides, matters of
salary increases are part of management prerogative. 13
On the retroactivity of the CBA arbitral award, it is well to recall that this petition had its
origin in the renegotiation of the parties' 1992-1997 CBA insofar as the last two-year
period thereof is concerned. When the Secretary of Labor assumed jurisdiction and
granted the arbitral awards, there was no question that these arbitral awards were to be
given retroactive effect. However, the parties dispute the reckoning period when
retroaction shall commence. Petitioner claims that the award should retroact only from
such time that the Secretary of Labor rendered the award, invoking the 1995 decision
in Pier 8 case 14 where the Court citing Union of Filipino Employees v. NLRC, 15 said:
"The assailed resolution which incorporated the CBA to be signed by the
parties was promulgated on June 5, 1989, the expiry date of the past
CBA. Based on the provision of Section 253-A, its retroactivity should be
agreed upon by the parties. But since no agreement to that effect was
made, public respondent did not abuse its discretion in giving the said
CBA a prospective effect. The action of the public respondent is within
the ambit of its authority vested by existing law."
On the other hand, the Union argues that the award should retroact to such time granted
by the Secretary, citing the 1993 decision of St. Luke's. 16
"Finally, the effectivity of the Order of January 28, 1991, must retroact to
the date of the expiration of the previous CBA, contrary to the position of
petitioner. Under the circumstances of the case, Article 253-A cannot be
properly applied to herein case. As correctly stated by public respondent
in his assailed Order of April 12, 1991 dismissing petitioner's Motion for
Reconsideration
Anent the alleged lack of basis for the retroactivity provisions
awarded, we would stress that the provision of law invoked by the
Hospital, Article 253-A of the Labor Code, speaks of agreements
by and between the parties, and not arbitral awards . . .
"Therefore, in the absence of a specific provision of law prohibiting
retroactivity of the effectivity of arbitral awards issued by the Secretary
of Labor pursuant to Article 263(g) of the Labor Code, such as herein
involved, public respondent is deemed vested with plenary and
discretionary powers to determine the effectivity thereof."
46
In the 1997 case of Mindanao Terminal, 17 the Court applied the St. Luke's doctrine
and ruled that:
"In St. Luke's Medical Center v. Torres, a deadlock also developed during
the CBA negotiations between management and the union. The
Secretary of Labor assumed jurisdiction and ordered the retroaction of
the CBA to the date of expiration of the previous CBA. As in this case, it
was alleged that the Secretary of Labor gravely abused its discretion in
making his award retroactive. In dismissing this contention this Court
held:
"Therefore, in the absence of a specific provision of law
prohibiting retroactive of the effectivity of arbitral awards issued
by the Secretary of Labor pursuant to Article 263(g) of the Labor
Code, such as herein involved, public respondent is deemed
vested with plenary and discretionary powers to determine the
effectivity thereof."
The Court in the January 27, 1999 Decision, stated that the CBA shall be "effective for a
period of 2 years counted from December 28, 1996 up to December 27, 1999."
Parenthetically, this actually covers a three-year period. Labor laws are silent as to when
an arbitral award in a labor dispute where the Secretary had assumed jurisdiction by
virtue of Article 263 (9) of the Labor Code shall retroact. In general, a CBA negotiated
within six months after the expiration of the existing CBA retroacts to the day
immediately following such date and if agreed thereafter, the effectivity depends on the
agreement of the parties. 18 On the other hand, the law is silent as to the retroactivity of
a CBA arbitral award or that granted not by virtue of the mutual agreement of the
parties but by intervention of the government. Despite the silence of the law, the Court
rules herein that CBA arbitral awards granted after six months from the expiration of the
last CBA shall retroact to such time agreed upon by both employer and the employees or
their union. Absent such an agreement as to retroactivity, the award shall retroact to the
first day after the six-month period following the expiration of the last day of the CBA
should there be one. In the absence of a CBA, the Secretary's determination of the date
of retroactivity as part of his discretionary powers over arbitral awards shall control.
It is true that an arbitral award cannot per se be categorized as an agreement voluntarily
entered into by the parties because it requires the interference and imposing power of
the State thru the Secretary of Labor when he assumes jurisdiction. However, the arbitral
award can be considered as an approximation of a collective bargaining agreement
which would otherwise have been entered into by the parties. 19 The terms or periods
set forth in Article 253-A pertains explicitly to a CBA. But there is nothing that would

prevent its application by analogy to an arbitral award by the Secretary considering the
absence of an applicable law. Under Article 253-A: "(I)f any such agreement is entered
into beyond six months, the parties shall agree on the duration of retroactivity thereof."
In other words, the law contemplates retroactivity whether the agreement be entered
into before or after the said six-month period. The agreement of the parties need not be
categorically stated for their acts may be considered in determining the duration of
retroactivity. In this connection, the Court considers the letter of petitioner's Chairman of
the Board and its President addressed to their stockholders, which states that the CBA
"for the rank-and-file employees covering the period December 1, 1995 to November 30,
1997 is still with the Supreme Court," 20 as indicative of petitioner's recognition that the
CBA award covers the said period. Earlier, petitioner's negotiating panel transmitted to
the Union a copy of its proposed CBA covering the same period inclusive. 21 In addition,
petitioner does not dispute the allegation that in the past CBA arbitral awards, the
Secretary granted retroactivity commencing from the period immediately following the
last day of the expired CBA. Thus, by petitioner's own actions, the Court sees no reason
to retroact the subject CBA awards to a different date. The period is herein set at two (2)
years from December 1, 1995 to November 30, 1997.
On the allegation concerning the grant of loan to a cooperative, there is no merit in the
union's claim that it is no different from housing loans granted by the employer. The
award of loans for housing is justified because it pertains to a basic necessity of life. It is
part of a privilege recognized by the employer and allowed by law. In contrast, providing
seed money for the establishment of the employee's cooperative is a matter in which the
employer has no business interest or legal obligation. Courts should not be utilized as a
tool to compel any person to grant loans to another nor to force parties to undertake an
obligation without justification. On the contrary, it is the government that has the
obligation to render financial assistance to cooperatives and the Cooperative Code does
not make it an obligation of the employer or any private individual. 22
Anent the 40-day union leave, the Court finds that the same is a typographical error. In
order to avoid any confusion, it is herein declared that the union leave is only thirty (30)
days as granted by the Secretary of Labor and affirmed in the Decision of this Court.
The added requirement of consultation imposed by the Secretary in cases of contracting
out for six (6) months or more has been rejected by the Court. Suffice it to say that the
employer is allowed to contract out services for six months or more. However, a line
must be drawn between management prerogatives regarding business operations per
se and those which affect the rights of employees, and in treating the latter, the
employer should see to it that its employees are at least properly informed of its decision
or modes of action in order to attain a harmonious labor-management relationship and
enlighten the workers concerning their rights. 23 Hiring of workers is within the
employer's inherent freedom to regulate and is a valid exercise of its management
prerogative subject only to special laws and agreements on the matter and the fair
standards of justice. 24 The management cannot be denied the faculty of promoting
47
efficiency and attaining economy by a study of what units are essential for its
operation. It has the ultimate determination of whether services should be performed by
its personnel or contracted to outside agencies. While there should be mutual
consultation, eventually deference is to be paid to what management
decides. 25 Contracting out of services is an exercise of business judgment or
management prerogative. 26 Absent proof that management acted in a malicious or
arbitrary manner, the Court will not interfere with the exercise of judgment by an
employer. 27 As mentioned in the January 27, 1999 Decision, the law already sufficiently
regulates this matter. 28 Jurisprudence also provides adequate limitations, such that the
employer-must be motivated by good faith and the contracting out should not be
resorted to circumvent the law or must not have been the result of malicious or arbitrary
actions. 29 These are matters that may be categorically determined only when an actual
suit on the matter arises.
WHEREFORE, the motion for reconsideration is PARTIALLY GRANTED and the assailed
Decision is MODIFIED as follows: (1) the arbitral award shall retroact from December 1,
1995 to November 30, 1997; and (2) the award of wage is increased from the original
amount of One Thousand Nine Hundred Pesos (P1,900.00) to Two Thousand Pesos
(P2,000.00) for the years 1995 and 1996. This Resolution is subject to the monetary
advances granted by petitioner to its rank-and-file employees during the pendency of
this case assuming such advances had actually been distributed to them. The assailed
Decision is AFFIRMED in all other respects.
SO ORDERED. cdtai
THIRD DIVISION
[G.R. No. 150157. January 25, 2007.]
MAURICIO MANLICLIC and PHILIPPINE RABBIT BUS LINES,
INC., petitioners, vs. MODESTO CALAUNAN, respondent.
DECISION
CHICO-NAZARIO, J p:
Assailed before Us is the decision 1 of the Court of Appeals in CA-G.R. CV No. 55909
which affirmed in toto the decision 2 of the Regional Trial Court (RTC) of Dagupan City,
Branch 42, in Civil Case No. D-10086, finding petitioners Mauricio Manliclic and Philippine
Rabbit Bus Lines, Inc. (PRBLI) solidarily liable to pay damages and attorney's fees to
respondent Modesto Calaunan.
The factual antecedents are as follows:

The vehicles involved in this case are: (1) Philippine Rabbit Bus No. 353 with plate
number CVD-478, owned by petitioner PRBLI and driven by petitioner Mauricio Manliclic;
and (2) owner-type jeep with plate number PER-290, owned by respondent Modesto
Calaunan and driven by Marcelo Mendoza.
At around 6:00 to 7:00 o'clock in the morning of 12 July 1988, respondent Calaunan,
together with Marcelo Mendoza, was on his way to Manila from Pangasinan on board his
owner-type jeep. The Philippine Rabbit Bus was likewise bound for Manila from
Concepcion, Tarlac. At approximately Kilometer 40 of the North Luzon Expressway in
Barangay Lalangan, Plaridel, Bulacan, the two vehicles collided. The front right side of
the Philippine Rabbit Bus hit the rear left side of the jeep causing the latter to move to
the shoulder on the right and then fall on a ditch with water resulting to further
extensive damage. The bus veered to the left and stopped 7 to 8 meters from point of
collision.
Respondent suffered minor injuries while his driver was unhurt. He was first brought for
treatment to the Manila Central University Hospital in Kalookan City by Oscar Buan, the
conductor of the Philippine Rabbit Bus, and was later transferred to the Veterans
Memorial Medical Center.
By reason of such collision, a criminal case was filed before the RTC of Malolos, Bulacan,
charging petitioner Manliclic with Reckless Imprudence Resulting in Damage to Property
with Physical Injuries, docketed as Crim. Case No. 684-M-89. Subsequently on 2
December 1991, respondent filed a complaint for damages against petitioners Manliclic
and PRBLI before the RTC of Dagupan City, docketed as Civil Case No. D-10086. The
criminal case was tried ahead of the civil case. Among those who testified in the criminal
case were respondent Calaunan, Marcelo Mendoza and Fernando Ramos. HICSaD
In the civil case (now before this Court), the parties admitted the following:
1. The parties agreed on the capacity of the parties to sue and be sued
as well as the venue and the identities of the vehicles involved;
2. The identity of the drivers and the fact that they are duly licensed;
3. The date and place of the vehicular collision;
4. The extent of the injuries suffered by plaintiff Modesto Calaunan and
the existence of the medical certificate;
5. That both vehicles were going towards the south; the private jeep
being ahead of the bus;
48
6. That the weather was fair and the road was well paved and straight,
although there was a ditch on the right side where the jeep fell into. 3
When the civil case was heard, counsel for respondent prayed that the transcripts of
stenographic notes (TSNs) 4 of the testimonies of respondent Calaunan, Marcelo
Mendoza and Fernando Ramos in the criminal case be received in evidence in the civil
case in as much as these witnesses are not available to testify in the civil case.
Francisco Tuliao testified that his brother-in-law, respondent Calaunan, left for abroad
sometime in November, 1989 and has not returned since then. Rogelio Ramos took the
stand and said that his brother, Fernando Ramos, left for Amman, Jordan, to work.
Rosalia Mendoza testified that her husband, Marcelo Mendoza, left their residence to look
for a job. She narrated that she thought her husband went to his hometown in Panique,
Tarlac, when he did not return after one month. She went to her husband's hometown to
look for him but she was informed that he did not go there.
The trial court subpoenaed the Clerk of Court of Branch 8, RTC, Malolos, Bulacan, the
court where Criminal Case No. 684-M-89 was tried, to bring the TSNs of the testimonies
of respondent Calaunan, 5 Marcelo Mendoza 6 and Fernando Ramos 7 in said case,
together with other documentary evidence marked therein. Instead of the Branch Clerk
of Court, it was Enrique Santos Guevara, Court Interpreter, who appeared before the
court and identified the TSNs of the three afore-named witnesses and other pertinent
documents he had brought. 8 Counsel for respondent wanted to mark other TSNs and
documents from the said criminal case to be adopted in the instant case, but since the
same were not brought to the trial court, counsel for petitioners compromised that said
TSNs and documents could be offered by counsel for respondent as rebuttal evidence.
For the defendants, petitioner Manliclic and bus conductor Oscar Buan testified. The
TSN 9 of the testimony of Donato Ganiban, investigator of the PRBLI, in Criminal Case
No. 684-M-89 was marked and allowed to be adopted in the civil case on the ground that
he was already dead.
Respondent further marked, among other documents, as rebuttal evidence, the
TSNs 10 of the testimonies of Donato Ganiban, Oscar Buan and petitioner Manliclic in
Criminal Case No. 684-M-89.
The disagreement arises from the question: Who is to be held liable for the collision?
Respondent insists it was petitioner Manliclic who should be liable while the latter is
resolute in saying it was the former who caused the smash up. TEDaAc
The versions of the parties are summarized by the trial court as follows:

The parties differed only on the manner the collision between the two (2)
vehicles took place. According to the plaintiff and his driver, the jeep was
cruising at the speed of 60 to 70 kilometers per hour on the slow lane of
the expressway when the Philippine Rabbit Bus overtook the jeep and in
the process of overtaking the jeep, the Philippine Rabbit Bus hit the rear
of the jeep on the left side. At the time the Philippine Rabbit Bus hit the
jeep, it was about to overtake the jeep. In other words, the Philippine
Rabbit Bus was still at the back of the jeep when the jeep was hit.
Fernando Ramos corroborated the testimony of the plaintiff and Marcelo
Mendoza. He said that he was on another jeep following the Philippine
Rabbit Bus and the jeep of plaintiff when the incident took place. He
said, the jeep of the plaintiff overtook them and the said jeep of the
plaintiff was followed by the Philippine Rabbit Bus which was running
very fast. The bus also overtook the jeep in which he was riding. After
that, he heard a loud sound. He saw the jeep of the plaintiff swerved to
the right on a grassy portion of the road. The Philippine Rabbit Bus
stopped and they overtook the Philippine Rabbit Bus so that it could not
moved (sic), meaning they stopped in front of the Philippine Rabbit Bus.
He testified that the jeep of plaintiff swerved to the right because it was
bumped by the Philippine Rabbit bus from behind.
Both Mauricio Manliclic and his driver, Oscar Buan admitted that the
Philippine Rabbit Bus bumped the jeep in question. However, they
explained that when the Philippine Rabbit bus was about to go to the left
lane to overtake the jeep, the latter jeep swerved to the left because it
was to overtake another jeep in front of it. Such was their testimony
before the RTC in Malolos in the criminal case and before this Court in
the instant case. [Thus, which of the two versions of the manner how the
collision took place was correct, would be determinative of who between
the two drivers was negligent in the operation of their respective
vehicles.] 11
Petitioner PRBLI maintained that it observed and exercised the diligence of a good father
of a family in the selection and supervision of its employee, specifically petitioner
Manliclic.
On 22 July 1996, the trial court rendered its decision in favor of respondent Calaunan and
against petitioners Manliclic and PRBLI. The dispositive portion of its decision reads:
WHEREFORE, judgment is rendered in favor of the plaintiff and against
the defendants ordering the said defendants to pay plaintiff jointly and
solidarily the amount of P40,838.00 as actual damages for the towing as
well as the repair and the materials used for the repair of the jeep in
question; P100,000.00 as moral damages and another P100,000.00 as
49
exemplary damages and P15,000.00 as attorney's fees, including
appearance fees of the lawyer. In addition, the defendants are also to
pay costs. 12
Petitioners appealed the decision via Notice of Appeal to the Court of Appeals. 13
In a decision dated 28 September 2001, the Court of Appeals, finding no reversible error
in the decision of the trial court, affirmed it in all respects. 14
Petitioners are now before us by way of petition for review assailing the decision of the
Court of Appeals. They assign as errors the following:
I
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING
THE TRIAL COURT'S QUESTIONABLE ADMISSION IN EVIDENCE OF THE
TSN's AND OTHER DOCUMENTS PRESENTED IN THE CRIMINAL
CASE. EaCSTc
II
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING
THE TRIAL COURT'S RELIANCE ON THE VERSION OF THE RESPONDENT
ON HOW THE ACCIDENT SUPPOSEDLY OCCURRED.
III
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING
THE TRIAL COURT'S UNFAIR DISREGARD OF HEREIN PETITIONER PRBL's
DEFENSE OF EXERCISE OF DUE DILIGENCE IN THE SELECTION AND
SUPERVISION OF ITS EMPLOYEES.
IV
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING
THE TRIAL COURT'S QUESTIONABLE AWARD OF DAMAGES AND
ATTORNEY'S FEE.
With the passing away of respondent Calaunan during the pendency of this appeal with
this Court, we granted the Motion for the Substitution of Respondent filed by his wife,
Mrs. Precila Zarate Vda. De Calaunan, and children, Virgilio Calaunan, Carmelita
Honeycomb, Evelyn Calaunan, Marko Calaunan and Liwayway Calaunan. 15

In their Reply to respondent's Comment, petitioners informed this Court of a
Decision 16 of the Court of Appeals acquitting petitioner Manliclic of the charge 17 of
Reckless Imprudence Resulting in Damage to Property with Physical Injuries attaching
thereto a photocopy thereof.
On the first assigned error, petitioners argue that the TSNs containing the testimonies of
respondent Calaunan, 18 Marcelo Mendoza 19 and Fernando Ramos 20 should not be
admitted in evidence for failure of respondent to comply with the requisites of Section
47, Rule 130 of the Rules of Court.
For Section 47, Rule 130 21 to apply, the following requisites must be satisfied: (a) the
witness is dead or unable to testify; (b) 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; (c) the former case involved the same subject as that in
the present case, although on different causes of action; (d) the issue testified to by the
witness in the former trial is the same issue involved in the present case; and (e) the
adverse party had an opportunity to cross-examine the witness in the former case. 22
Admittedly, respondent failed to show the concurrence of all the requisites set forth by
the Rules for a testimony given in a former case or proceeding to be admissible as an
exception to the hearsay rule. Petitioner PRBLI, not being a party in Criminal Case No.
684-M-89, had no opportunity to cross-examine the three witnesses in said case. The
criminal case was filed exclusively against petitioner Manliclic, petitioner PRBLI's
employee. The cases dealing with the subsidiary liability of employers uniformly declare
that, strictly speaking, they are not parties to the criminal cases instituted against their
employees. 23
Notwithstanding the fact that petitioner PRBLI was not a party in said criminal case, the
testimonies of the three witnesses are still admissible on the ground that petitioner
PRBLI failed to object on their admissibility.
It is elementary that an objection shall be made at the time when an alleged
inadmissible document is offered in evidence; otherwise, the objection shall be treated
as waived, since the right to object is merely a privilege which the party may waive.
Thus, a failure to except to the evidence because it does not conform to the statute is a
waiver of the provisions of the law. Even assuming ex gratia argumenti that these
documents are inadmissible for being hearsay, but on account of failure to object
thereto, the same may be admitted and considered as sufficient to prove the facts
therein asserted. 24 Hearsay evidence alone may be insufficient to establish a fact in a
suit but, when no objection is made thereto, it is, like any other evidence, to be
considered and given the importance it deserves. 25
50
In the case at bar, petitioner PRBLI did not object to the TSNs containing the
testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in the
criminal case when the same were offered in evidence in the trial court. In fact, the TSNs
of the testimonies of Calaunan and Mendoza were admitted by both
petitioners. 26 Moreover, petitioner PRBLI even offered in evidence the TSN containing
the testimony of Donato Ganiban in the criminal case. If petitioner PRBLI argues that the
TSNs of the testimonies of plaintiff's witnesses in the criminal case should not be
admitted in the instant case, why then did it offer the TSN of the testimony of Ganiban
which was given in the criminal case? It appears that petitioner PRBLI wants to have its
cake and eat it too. It cannot argue that the TSNs of the testimonies of the witnesses of
the adverse party in the criminal case should not be admitted and at the same time
insist that the TSN of the testimony of the witness for the accused be admitted in its
favor. To disallow admission in evidence of the TSNs of the testimonies of Calaunan,
Marcelo Mendoza and Fernando Ramos in the criminal case and to admit the TSN of the
testimony of Ganiban would be unfair. ASHEca
We do not subscribe to petitioner PRBLI's argument that it will be denied due process
when the TSNs of the testimonies of Calaunan, Marcelo Mendoza and Fernando Ramos in
the criminal case are to be admitted in the civil case. It is too late for petitioner PRBLI to
raise denial of due process in relation to Section 47, Rule 130 of the Rules of Court, as a
ground for objecting to the admissibility of the TSNs. For failure to object at the proper
time, it waived its right to object that the TSNs did not comply with Section 47.
In Mangio v. Court of Appeals, 27 this Court, through Associate Justice Reynato S.
Puno, 28 admitted in evidence a TSN of the testimony of a witness in another case
despite therein petitioner's assertion that he would be denied due process. In admitting
the TSN, the Court ruled that the raising of denial of due process in relation to Section
47, Rule 130 of the Rules of Court, as a ground for objecting to the admissibility of the
TSN was belatedly done. In so doing, therein petitioner waived his right to object based
on said ground.
Petitioners contend that the documents in the criminal case should not have been
admitted in the instant civil case because Section 47 of Rule 130 refers only to
"testimony or deposition." We find such contention to be untenable. Though said section
speaks only of testimony and deposition, it does not mean that documents from a former
case or proceeding cannot be admitted. Said documents can be admitted they being
part of the testimonies of witnesses that have been admitted. Accordingly, they shall be
given the same weight as that to which the testimony may be entitled. 29
On the second assigned error, petitioners contend that the version of petitioner Manliclic
as to how the accident occurred is more credible than respondent's version. They anchor
their contention on the fact that petitioner Manliclic was acquitted by the Court of
Appeals of the charge of Reckless Imprudence Resulting in Damage to Property with
Physical Injuries.

To be resolved by the Court is the effect of petitioner Manliclic's acquittal in the civil
case.
From the complaint, it can be gathered that the civil case for damages was one arising
from, or based on, quasi-delict. 30 Petitioner Manliclic was sued for his negligence or
reckless imprudence in causing the collision, while petitioner PRBLI was sued for its
failure to exercise the diligence of a good father in the selection and supervision of its
employees, particularly petitioner Manliclic. The allegations read:
"4. That sometime on July 12, 1988 at around 6:20 A.M. plaintiff was on
board the above-described motor vehicle travelling at a moderate speed
along the North Luzon Expressway heading South towards Manila
together with MARCELO MENDOZA, who was then driving the same;
"5. That approximately at kilometer 40 of the North Luzon Express Way,
the above-described motor vehicle was suddenly bumped from behind
by a Philippine Rabbit Bus with Body No. 353 and with plate No. CVD 478
then being driven by one Mauricio Manliclic of San Jose, Concepcion,
Tarlac, who was then travelling recklessly at a very fast speed and had
apparently lost control of his vehicle;
"6. That as a result of the impact of the collision the above-described
motor vehicle was forced off the North Luzon Express Way towards the
rightside where it fell on its driver's side on a ditch, and that as a
consequence, the above-described motor vehicle which maybe valued at
EIGHTY THOUSAND PESOS (P80,000) was rendered a total wreck as
shown by pictures to be presented during the pre-trial and trial of this
case;
"7. That also as a result of said incident, plaintiff sustained bodily injuries
which compounded plaintiff's frail physical condition and required his
hospitalization from July 12, 1988 up to and until July 22, 1988, copy of
the medical certificate is hereto attached as Annex "A" and made an
integral part hereof;
"8. That the vehicular collision resulting in the total wreckage of the
above-described motor vehicle as well as bodily (sic) sustained by
plaintiff, was solely due to the reckless imprudence of the defendant
driver Mauricio Manliclic who drove his Philippine Rabbit Bus No. 353 at a
fast speed without due regard or observance of existing traffic rules and
regulations;
51
"9. That defendant Philippine Rabbit Bus Line Corporation failed to
exercise the diligence of a good father of (sic) family in the selection and
supervision of its drivers; . . ." 31
Can Manliclic still be held liable for the collision and be found negligent notwithstanding
the declaration of the Court of Appeals that there was an absence of negligence on his
part?
In exonerating petitioner Manliclic in the criminal case, the Court of Appeals said:
To the following findings of the court a quo, to wit: that accused-
appellant was negligent "when the bus he was driving bumped the jeep
from behind"; that "the proximate cause of the accident was his having
driven the bus at a great speed while closely following the jeep"; . . .
We do not agree.
The swerving of Calaunan's jeep when it tried to overtake the vehicle in
front of it was beyond the control of accused-appellant. ECDaAc
xxx xxx xxx
Absent evidence of negligence, therefore, accused-appellant cannot be
held liable for Reckless Imprudence Resulting in Damage to Property
with Physical Injuries as defined in Article 365 of the Revised Penal
Code. 32
From the foregoing declaration of the Court of Appeals, it appears that petitioner
Manliclic was acquitted not on reasonable doubt, but on the ground that he is not the
author of the act complained of which is based on Section 2 (b) of Rule 111 of the Rules
of Criminal Procedure which reads:
(b) Extinction of the penal action does not carry with it extinction of the
civil, unless the extinction proceeds from a declaration in a final
judgment that the fact from which the civil might arise did not exist.
In spite of said ruling, petitioner Manliclic can still be held liable for the mishap. The
afore-quoted section applies only to a civil action arising from crime or ex delictoand not
to a civil action arising from quasi-delict or culpa aquiliana. The extinction of civil liability
referred to in Par. (e) of Section 3, Rule 111 [now Section 2 (b) of Rule 111], refers

exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas
the civil liability for the same act considered as a quasi-delict only and not as a crime is
not extinguished even by a declaration in the criminal case that the criminal act charged
has not happened or has not been committed by the accused.33
A quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code with a
substantivity all its own, and individuality that is entirely apart and independent from a
delict or crime a distinction exists between the civil liability arising from a crime and
the responsibility for quasi-delicts or culpa extra-contractual. The same negligence
causing damages may produce civil liability arising from a crime under the Penal Code,
or create an action for quasi-delicts or culpa extra-contractual under the Civil Code. 34 It
is now settled that acquittal of the accused, even if based on a finding that he is not
guilty, does not carry with it the extinction of the civil liability based on quasi delict. 35
In other words, if an accused is acquitted based on reasonable doubt on his guilt, his civil
liability arising from the crime may be proved by preponderance of evidence only.
However, if an accused is acquitted on the basis that he was not the author of the act or
omission complained of (or that there is declaration in a final judgment that the fact from
which the civil might arise did not exist), said acquittal closes the door to civil liability
based on the crime or ex delicto. In this second instance, there being no crime
or delict to speak of, civil liability based thereon or ex delicto is not possible. In this case,
a civil action, if any, may be instituted on grounds other than the delict complained of.
As regards civil liability arising from quasi-delict or culpa aquiliana, same will not be
extinguished by an acquittal, whether it be on ground of reasonable doubt or that
accused was not the author of the act or omission complained of (or that there is
declaration in a final judgment that the fact from which the civil liability might arise did
not exist). The responsibility arising from fault or negligence in a quasi-delict is entirely
separate and distinct from the civil liability arising from negligence under the Penal
Code. 36 An acquittal or conviction in the criminal case is entirely irrelevant in the civil
case 37 based on quasi-delict or culpa aquiliana.
Petitioners ask us to give credence to their version of how the collision occurred and to
disregard that of respondent's. Petitioners insist that while the PRBLI bus was in the
process of overtaking respondent's jeep, the latter, without warning, suddenly swerved
to the left (fast) lane in order to overtake another jeep ahead of it, thus causing the
collision.
As a general rule, questions of fact may not be raised in a petition for review. The factual
findings of the trial court, especially when affirmed by the appellate court, are binding
and conclusive on the Supreme Court. 38 Not being a trier of facts, this Court will not
allow a review thereof unless:
52
(1) the conclusion is a finding grounded entirely on speculation, surmise
and conjecture; (2) the inference made is manifestly mistaken; (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) the
Court of Appeals went beyond the issues of the case and its findings are
contrary to the admissions of both appellant and appellees; (7) the
findings of fact of the Court of Appeals are contrary to those of the trial
court; (8) said findings of fact are conclusions without citation of specific
evidence on which they are based; (9) the facts set forth in the petition
as well as in the petitioner's main and reply briefs are not disputed by
the respondents; and (10) the findings of fact of the Court of Appeals are
premised on the supposed absence of evidence and contradicted by the
evidence on record. 39
After going over the evidence on record, we do not find any of the exceptions that would
warrant our departure from the general rule. We fully agree in the finding of the trial
court, as affirmed by the Court of Appeals, that it was petitioner Manliclic who was
negligent in driving the PRBLI bus which was the cause of the collision. In giving
credence to the version of the respondent, the trial court has this say:
. . . Thus, which of the two versions of the manner how the collision took
place was correct, would be determinative of who between the two
drivers was negligent in the operation of their respective vehicle. aIcSED
In this regard, it should be noted that in the statement of Mauricio
Manliclic (Exh. 15) given to the Philippine Rabbit Investigator CV
Cabading no mention was made by him about the fact that the driver of
the jeep was overtaking another jeep when the collision took place. The
allegation that another jeep was being overtaken by the jeep of
Calaunan was testified to by him only in Crim. Case No. 684-M-89 before
the Regional Trial Court in Malolos, Bulacan and before this Court.
Evidently, it was a product of an afterthought on the part of Mauricio
Manliclic so that he could explain why he should not be held responsible
for the incident. His attempt to veer away from the truth was also
apparent when it would be considered that in his statement given to the
Philippine Rabbit Investigator CV Cabading (Exh. 15), he alleged that the
Philippine Rabbit Bus bumped the jeep of Calaunan while the Philippine
Rabbit Bus was behind the said jeep. In his testimony before the
Regional Trial Court in Malolos, Bulacan as well as in this Court, he
alleged that the Philippine Rabbit Bus was already on the left side of the
jeep when the collision took place. For this inconsistency between his
statement and testimony, his explanation regarding the manner of how
the collision between the jeep and the bus took place should be taken
with caution. It might be true that in the statement of Oscar Buan given

to the Philippine Rabbit Investigator CV Cabading, it was mentioned by
the former that the jeep of plaintiff was in the act of overtaking another
jeep when the collision between the latter jeep and the Philippine Rabbit
Bus took place. But the fact, however, that his statement was given on
July 15, 1988, one day after Mauricio Manliclic gave his statement should
not escape attention. The one-day difference between the giving of the
two statements would be significant enough to entertain the possibility
of Oscar Buan having received legal advise before giving his statement.
Apart from that, as between his statement and the statement of
Manliclic himself, the statement of the latter should prevail. Besides, in
his Affidavit of March 10, 1989, (Exh. 14), the unreliability of the
statement of Oscar Buan (Exh. 13) given to CV Cabading rear its "ugly
head" when he did not mention in said affidavit that the jeep of
Calaunan was trying to overtake another jeep when the collision
between the jeep in question and the Philippine Rabbit bus took place.
xxx xxx xxx
If one would believe the testimony of the defendant, Mauricio Manliclic,
and his conductor, Oscar Buan, that the Philippine Rabbit Bus was
already somewhat parallel to the jeep when the collision took place, the
point of collision on the jeep should have been somewhat on the left side
thereof rather than on its rear. Furthermore, the jeep should have fallen
on the road itself rather than having been forced off the road. Useless,
likewise to emphasize that the Philippine Rabbit was running very fast as
testified to by Ramos which was not controverted by the defendants. 40
Having ruled that it was petitioner Manliclic's negligence that caused the smash up,
there arises the juris tantum presumption that the employer is negligent, rebuttable only
by proof of observance of the diligence of a good father of a family. 41 Under Article
2180 42 of the New Civil Code, when an injury is caused by the negligence of the
employee, there instantly arises a presumption of law that there was negligence on the
part of the master or employer either in the selection of the servant or employee, or in
supervision over him after selection or both. The liability of the employer under Article
2180 is direct and immediate; it is not conditioned upon prior recourse against the
negligent employee and a prior showing of the insolvency of such employee. Therefore,
it is incumbent upon the private respondents to prove that they exercised the diligence
of a good father of a family in the selection and supervision of their employee. 43
In the case at bar, petitioner PRBLI maintains that it had shown that it exercised the
required diligence in the selection and supervision of its employees, particularly
petitioner Manliclic. In the matter of selection, it showed the screening process that
petitioner Manliclic underwent before he became a regular driver. As to the exercise of
due diligence in the supervision of its employees, it argues that presence of ready
53
investigators (Ganiban and Cabading) is sufficient proof that it exercised the required
due diligence in the supervision of its employees. DACIHc
In the selection of prospective employees, employers are required to examine them as to
their qualifications, experience and service records. In the supervision of employees, the
employer must formulate standard operating procedures, monitor their implementation
and impose disciplinary measures for the breach thereof. To fend off vicarious liability,
employers must submit concrete proof, including documentary evidence, that they
complied with everything that was incumbent on them. 44
In Metro Manila Transit Corporation v. Court of Appeals, 45 it was explained that:
Due diligence in the supervision of employees on the other hand,
includes the formulation of suitable rules and regulations for the
guidance of employees and the issuance of proper instructions intended
for the protection of the public and persons with whom the employer has
relations through his or its employees and the imposition of necessary
disciplinary measures upon employees in case of breach or as may be
warranted to ensure the performance of acts indispensable to the
business of and beneficial to their employer. To this, we add that actual
implementation and monitoring of consistent compliance with said rules
should be the constant concern of the employer, acting through
dependable supervisors who should regularly report on their supervisory
functions.
In order that the defense of due diligence in the selection and
supervision of employees may be deemed sufficient and plausible, it is
not enough to emptily invoke the existence of said company guidelines
and policies on hiring and supervision. As the negligence of the
employee gives rise to the presumption of negligence on the part of the
employer, the latter has the burden of proving that it has been diligent
not only in the selection of employees but also in the actual supervision
of their work. The mere allegation of the existence of hiring procedures
and supervisory policies, without anything more, is decidedly not
sufficient to overcome such presumption.
We emphatically reiterate our holding, as a warning to all employers,
that "the formulation of various company policies on safety without
showing that they were being complied with is not sufficient to exempt
petitioner from liability arising from negligence of its employees. It is
incumbent upon petitioner to show that in recruiting and employing the

erring driver the recruitment procedures and company policies on
efficiency and safety were followed." . . . .
The trial court found that petitioner PRBLI exercised the diligence of a good father of a
family in the selection but not in the supervision of its employees. It expounded as
follows:
From the evidence of the defendants, it seems that the Philippine Rabbit
Bus Lines has a very good procedure of recruiting its driver as well as in
the maintenance of its vehicles. There is no evidence though that it is as
good in the supervision of its personnel. There has been no iota of
evidence introduced by it that there are rules promulgated by the bus
company regarding the safe operation of its vehicle and in the way its
driver should manage and operate the vehicles assigned to them. There
is no showing that somebody in the bus company has been employed to
oversee how its driver should behave while operating their vehicles
without courting incidents similar to the herein case. In regard to
supervision, it is not difficult to observe that the Philippine Rabbit Bus
Lines, Inc. has been negligent as an employer and it should be made
responsible for the acts of its employees, particularly the driver involved
in this case.
We agree. The presence of ready investigators after the occurrence of the accident is not
enough to exempt petitioner PRBLI from liability arising from the negligence of petitioner
Manliclic. Same does not comply with the guidelines set forth in the cases above-
mentioned. The presence of the investigators after the accident is not enough
supervision. Regular supervision of employees, that is, prior to any accident, should have
been shown and established. This, petitioner failed to do. The lack of supervision can
further be seen by the fact that there is only one set of manual containing the rules and
regulations for all the drivers of PRBLI. 46 How then can all the drivers of petitioner
PRBLI know and be continually informed of the rules and regulations when only one
manual is being lent to all the drivers?
For failure to adduce proof that it exercised the diligence of a good father of a family in
the selection and supervision of its employees, petitioner PRBLI is held solidarily
responsible for the damages caused by petitioner Manliclic's negligence. ISDHEa
We now go to the award of damages. The trial court correctly awarded the amount of
P40,838.00 as actual damages representing the amount paid by respondent for the
towing and repair of his jeep. 47 As regards the awards for moral and exemplary
damages, same, under the circumstances, must be modified. The P100,000.00 awarded
by the trial court as moral damages must be reduced to P50,000.00. 48 Exemplary
damages are imposed by way of example or correction for the public good.49 The
54
amount awarded by the trial court must, likewise, be lowered to P50,000.00. 50 The
award of P15,000.00 for attorney's fees and expenses of litigation is in order and
authorized by law. 51
WHEREFORE, premises considered, the instant petition for review is DENIED. The
decision of the Court of Appeals in CA-G.R. CV No. 55909 is AFFIRMED with the
MODIFICATION that (1) the award of moral damages shall be reduced to P50,000.00; and
(2) the award of exemplary damages shall be lowered to P50,000.00. Costs against
petitioners.
SO ORDERED.
FIRST DIVISION
[G.R. No. 150897. April 11, 2005.]
TURADIO C. DOMINGO, petitioner, vs. JOSE C. DOMINGO,
LEONORA DOMINGO-CASTRO and her spouse JUANITO CASTRO,
NUNCIA DOMINGO-BALABIS, ABELLA DOMINGO VALENCERINA and
the REGISTER OF DEEDS, QUEZON CITY, respondents.
DECISION
QUISUMBING, J p:
This is a petition for review under Rule 45 of the Rules of Court of the Decision 1 dated
November 26, 2001 in CA-G.R. CV No. 59331, of the Court of Appeals, which affirmed the
Judgment dated January 6, 1998 of the Regional Trial Court (RTC) of Quezon City, Branch
90, in Civil Case No. Q-89-3820. The trial court dismissed herein petitioner's complaint in
Civil Case No. Q-89-3820 for declaration of the nullity of a deed of absolute sale over a
house and lot located at Project 4, Quezon City. 2
Petitioner is the oldest of the five children of the late Bruno B. Domingo, formerly the
registered owner of the properties subject of this dispute. Private respondents Leonora
Domingo-Castro, Nuncia Domingo-Balabis, Abella Domingo, and Jose Domingo are
petitioner's siblings. A family quarrel arose over the validity of the purported sale of the
house and lot in Project 4 by their father to private respondents.
The facts of this case, as synthesized from the findings of the trial court and affirmed by
the court a quo, are as follows:
Bruno B. Domingo, a widower and retired military man, was the registered owner, as
shown by Transfer Certificate of Title (TCT) No. 128297, issued by the Register of Deeds

of Quezon City, of a house and lot with an area of 269.50 square meters, located at 34 H.
Honrubia St., Project 4, Quezon City.
In December 1970, Bruno needed money for his medical expenses, so he sold said
properties. On December 28, 1970, he signed a Deed of Absolute Sale conveying the
abovementioned properties to his children Leonora, Nuncia, Abella, and Jose for a
consideration of P10,000. The deed was witnessed by Concesa Ibaez and Linda Noroa
and notarized by Atty. Rosauro V. Noroa. 3
Jose then brought the deed to the Register of Deeds of Quezon City, as a result of which
TCT No. 128297 was cancelled and a new title, TCT No. 247069 was issued in the names
of the vendees. HSacEI
Bruno Domingo died on April 6, 1975. 4
Sometime in 1981 petitioner, who by then was residing on the disputed property,
received a notice from the Quezon City Hall declaring him a squatter and directing him
to demolish his shanty on the lot. Petitioner found out that the planned demolition was at
the instance of his brother, Jose and sister, Leonora.
Sometime in 1986, petitioner learned of the existence of the assailed Deed of Absolute
Sale when an ejectment suit was filed against him. Upon advice of his counsel, he had
the then Philippine Constabulary-Integrated National Police (PC-INP, now Philippine
National Police or PNP) Crime Laboratory in Camp Crame, Quezon City compare the
signature of Bruno on the said deed against specimen signatures of his father. As a
result, the police issued him Questioned Document Report No. 192-86 to the effect that
the questioned signature and the standard signatures were written by two different
persons. Another Questioned Document Report, No. 007-89, subsequently issued by the
police came up with the same conclusion.
Petitioner filed a complaint for forgery, falsification by notary public, and falsification by
private individuals against his siblings and Atty. Noroa before the public prosecutor of
Quezon City. But after it conducted an examination of the questioned documents, the
National Bureau of Investigation (NBI) came up with the conclusion that the questioned
signature and the specimen signatures were written by one and the same person, Bruno
B. Domingo. The public prosecutor dismissed the criminal complaint on June 22, 1989.
Petitioner appealed the order of dismissal to the Department of Justice (DOJ) but the
latter affirmed the prosecutor's action. A similar criminal complaint filed by petitioner
before the public prosecutor of Manila was likewise dismissed.
On October 23, 1989, petitioner instituted Civil Case No. Q-89-3820 before the RTC of
Quezon City for the declaration of the nullity of the Deed of Sale, reconveyance of the
disputed property, and cancellation of TCT No. 247069. Petitioner alleged that Bruno B.
55
Domingo's signature on the deed in question was forged. He likewise averred that the
sale was done in violation of the restriction annotated at the back of Bruno's title, to the
effect that prior approval of the People's Homesite and Housing Corporation
(PHHC) 5 was needed to effect any sale.
In their answer, private respondents relied heavily on the findings of the NBI that Bruno
B. Domingo's signature on the deed was genuine, and hence, the Deed of Absolute Sale
was not a forgery.
On January 6, 1998, the trial court disposed of Civil Case No. Q-89-3820 in this wise:
IN VIEW OF THE FOREGOING, judgment is rendered DISMISSING the
complaint in this case.
All other claims including counterclaim/s are dismissed for lack of legal
and/or factual basis.
SO ORDERED. 6
In dismissing the complaint, the trial court disregarded the conflicting reports of the
police crime laboratory and the NBI "for failure of the offering party or parties to show
that the standard or specimen signatures were indeed those of Bruno B.
Domingo." 7 The trial court likewise found that petitioner failed to substantiate his claim
that prior PHHC approval was needed before a valid sale of the properties in dispute
could be made. ScTIAH
Dissatisfied, petitioner elevated the case to the Court of Appeals, which docketed his
appeal as CA-G.R. CV No. 59331. He contended that the lower court erred in ruling that
the vendor's signature on the Deed of Absolute Sale of December 28, 1970 was not a
forgery.
On January 11, 2000, petitioner filed a motion for new trial with the appellate court on
the ground of newly discovered evidence consisting of a letter of Bruno B. Domingo
dated February 1, 1972 purportedly requesting from PHHC permission to mortgage the
house and lot in Project 4, Quezon City. Also on March 22, 2000, petitioner filed a
supplemental motion for new trial with the Court of Appeals, attaching the letter dated
February 2, 1972, of PHHC to Bruno B. Domingo, granting the latter's request on July 6,
2000. Petitioner moved that the appellate court grant him authority to put up a sari-
sari store on a portion of the disputed lot, allegedly to augment his meager pension.
In its resolution dated December 29, 2000, the appellate court denied all foregoing
motions. 8 In denying the motions for new trial, the appellate court noted that there was
no showing whatsoever that "the letter-request could not have been discovered and

produced prior to the trial below by the exercise of reasonable diligence and . . . is of
such a character as would probably change the result." 9 It likewise pointed out that
both the motion for new trial and the supplemental motion for new trial were "not
accompanied by affidavits showing the facts constituting the grounds therefor and the
newly discovered evidence." 10
On November 26, 2001, the appellate court decided CA-G.R. CV No. 59331 as follows:
WHEREFORE, the appeal is DISMISSED and the appealed decision is
AFFIRMED en toto.
SO ORDERED. 11
Hence, the instant petition for review interposed by petitioner grounded on the following
reasons for allowance of writ:
The declaration that the Deed of Absolute Sale dated December 28,
1970 was executed by Bruno B. Domingo over the properties covered by
TCT No. 128297, is not valid, proper and legal, because said Deed of
Absolute Sale was not executed by said Bruno B. Domingo, as per
findings of the [PC-INP] in its laboratory examination, and that the said
Deed of Absolute Sale was in violation of the prohibition annotated at
the back of said title, and that the sale was done within the prohibited
period of five (5) years. Moreover, said Bruno B. Domingo should [not
have] requested for authority to mortgage the property in question from
the People's Homesite [and] Housing Authority on February 1, 1972, if he
really sold the same in 1970. 12
The crucial issue for our resolution is: Did the court a quo err when it held that the trial
court correctly applied the rules of evidence in disregarding the conflicting PC-INP and
NBI questioned document reports?
Before this Court, petitioner insists that both the trial court and the appellate court
should have considered the PC-INP questioned document report as reliable, without
showing any cogent reason or sufficient arguments why said report should be deemed
reliable.
Under the Rules of Court, the genuineness of a handwriting may be proved by the
following:
(1) A witness who actually saw the person writing the instrument; 13
56
(2) A witness familiar with such handwriting and who can give his
opinion thereon, 14 such opinion being an exception to the
opinion rule; 15
(3) A comparison by the court of the questioned handwriting and
admitted genuine specimen thereof; 16 and
(4) Expert evidence. 17
The law makes no preference, much less distinction among and between the different
means stated above in proving the handwriting of a person. 18 It is likewise clear from
the foregoing that courts are not bound to give probative value or evidentiary value to
the opinions of handwriting experts, as resort to handwriting experts is not
mandatory. 19
In finding that the trial court correctly disregarded the PC-INP Crime Laboratory
questioned document report, the appellate court observed:
The PC-INP used as standards of comparison the alleged signatures of
Bruno in two documents, namely: letter to the Bureau of Treasury dated
April 1, 1958 and Republic Bank Check No. 414356 dated November 2,
1962. These documents precede by more than eight years the
questioned Deed which was executed on December 30, 1970. This
circumstance makes the PC-INP's finding questionable. 20
We find no reason to disagree with the Court of Appeals. The passage of time and a
person's increase in age may have decisive influence in his handwriting characteristics.
Thus, in order to bring about an accurate comparison and analysis, the standards of
comparison must be as close as possible in point of time to the suspected
signature. 21 As correctly found by the appellate court, the examination conducted by
the PC-INP Crime Laboratory did not conform to the foregoing standard. Recall that in the
case, the signatures analyzed by the police experts were on documents executed several
years apart. A signature affixed in 1958 or in 1962 may involve characteristics different
from those borne by a signature affixed in 1970. Hence, neither the trial court nor the
appellate court may be faulted for refusing to place any weight whatsoever on the PC-
INP questioned document report.
We likewise sustain the trial court and the Court of Appeals concerning the testimonies
of Clerma Domingo, Leonora, and Jose to the effect that they saw Bruno affixing his
signature to the questioned deed. 22 They were unrebutted. Genuineness of a
handwriting may be proven, under Rule 132, Section 22, by anyone who actually saw the

person write or affix his signature on a document. Petitioner has shown no reason why
the ruling made by the trial court on the credibility of the respondent's witnesses below
should be disturbed by us. Findings by the trial court as to the credibility of witnesses are
accorded the greatest respect, and even finality by appellate courts, since the former is
in a better position to observe their demeanor as well as their deportment and manner
of testifying during the trial. 23
Finally, the questioned Deed of Absolute Sale in the present case is a notarized
document. Being a public document, it is prima facie evidence of the facts therein
expressed. 24 It has the presumption of regularity in its favor and to contradict all these,
evidence must be clear, convincing, and more than merely preponderant. 25Petitioner
has failed to show that such contradictory evidence exists in this case. ESCDHA
WHEREFORE, the instant petition is DENIED. The Decision of the Court of Appeals dated
November 26, 2001 in CA-G.R. CV No. 59331 is AFFIRMED. Costs against petitioner.
SO ORDERED.
EN BANC
[G.R. No. 139070. May 29, 2002.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOEL
LEE, accused-appellant.
Solicitor General for plaintiff-appellee.
Benjamin A. Opena counsel for Herminia L. Marquez.
Pajares Asual & Adaci for accused-appellant.
SYNOPSIS
Accused-appellant was convicted of the crime of murder for the death of Joseph Marquez
and sentenced to death. On appeal, accused-appellant assailed the credibility of
Herminia Marquez, the lone prosecution eyewitness.
The Supreme Court held that Herminia's testimony was positive, clear and
straightforward. She did not waver in her narration of the shooting incident, neither did
she waffle in recounting her son's death. She was subjected by defense counsel to
rigorous cross and re-cross examinations and yet she stuck to her testimony given in the
direct examination. Moreover, as between Herminia's testimony in open court and her
sworn statement, any inconsistency therein does not necessarily discredit the witness.
Affidavits are generally considered inferior to open court declarations because affidavits
57
are taken ex-parte and are almost always incomplete and inaccurate. Oftentimes,
they are executed when the affiant's mental faculties are not in such a state as to afford
him a fair opportunity of narrating in full the incident that transpired. They are usually
not prepared by the affiant himself but by another who suggests words to the affiant, or
worse, uses his own language in taking the affiant's statements.
The Supreme Court affirmed the decision of the trial court convicting accused-appellant
of the crime of murder, but modified the penalty of death to reclusion perpetua.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NOT ADVERSELY AFFECTED
BY INCONSISTENCY BETWEEN THE TESTIMONY OF WITNESS IN OPEN COURT AND HER
SWORN STATEMENT; CASE AT BAR. Between Herminia's testimony in open court and
her sworn statement, any inconsistency therein does not necessarily discredit the
witness. Affidavits are generally considered inferior to open court declarations because
affidavits are taken ex-parte and are almost always incomplete and inaccurate.
Oftentimes, they are executed when the affiant's mental faculties are not in such a state
as to afford him a fair opportunity of narrating in full the incident that transpired. They
are usually not prepared by the affiant himself but by another who suggests words to the
affiant, or worse, uses his own language in taking the affiant's statements.
2. ID.; ID.; CHARACTER EVIDENCE; NOT GENERALLY ADMISSIBLE; EXCEPTIONS IN
CRIMINAL CASES. Character evidence is governed by Section 51, Rule 130 of the
Revised Rules on Evidence, viz: "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. . . . ."
3. ID.; ID.; ID.; CHARACTER, DEFINED. Character is defined to be the possession by a
person of certain qualities of mind and morals, distinguishing him from others. It is the
opinion generally entertained of a person derived from the common report of the people
who are acquainted with him; his reputation.
4. ID.; ID.; ID.; GOOD MORAL CHARACTER, DEFINED. "Good moral character" includes
all the elements essential to make up such a character; among these are common
honesty and veracity, especially in all professional intercourse; a character that
measures up as good among people of the community in which the person lives, or that
is up to the standard of the average citizen; that status which attaches to a man of good
behavior and upright conduct.

5. ID.; ID.; ID.; GENERALLY ADMISSIBLE IN SEX OFFENSES. In rape and acts of
lasciviousness or in any prosecution involving an unchaste act perpetrated by a man
against a woman where the willingness of a woman is material, the woman's character
as to her chastity is admissible to show whether or not she consented to the man's act.
The exception to this is when the woman's consent is immaterial such as in statutory
rape or rape with violence or intimidation. In the crimes of qualified seduction or
consented abduction, the offended party must be a "virgin," which is "presumed if she is
unmarried and of good reputation," or a "virtuous woman of good reputation." The crime
of simple seduction involves "the seduction of a woman who is single or a widow of good
reputation, over twelve but under eighteen years of age . . ." The burden of proof that
the complainant is a woman of good reputation lies in the prosecution, and the accused
may introduce evidence that the complainant is a woman of bad reputation.
6. ID.; ID.; ID.; GENERALLY ADMISSIBLE IN HOMICIDE CASES. In homicide cases, a
pertinent character trait of the victim is admissible in two situations: (1) as evidence of
the deceased's aggression; and (2) as evidence of the state of mind of the accused. The
pugnacious, quarrelsome or trouble-seeking character of the deceased or his calmness,
gentleness and peaceful nature, as the case may be, is relevant in determining whether
the deceased or the accused was the aggressor. When the evidence tends to prove self-
defense, the known violent character of the deceased is also admissible to show that it
produced a reasonable belief of imminent danger in the mind of the accused and a
justifiable conviction that a prompt defensive action was necessary.
7. ID.; ID.; ID.; PROOF OF VICTIM'S BAD MORAL CHARACTER, IRRELEVANT TO DETERMINE
THE PROBABILITY OR IMPROBABILITY OF THE KILLING IN CASE AT BAR. In the instant
case, proof of the bad moral character of the victim is irrelevant to determine the
probability or improbability of his killing. Accused-appellant has not alleged that the
victim was the aggressor or that the killing was made in self-defense. There is no
connection between the deceased's drug addiction and thievery with his violent death in
the hands of accused-appellant. In light of the positive eyewitness testimony, the claim
that because of the victim's bad character he could have been killed by any one of those
from whom he had stolen, is pure and simple speculation.
8. ID.; ID.; ID.; ID.; NOT NECESSARY IN CASE OF MURDER COMMITTED WITH TREACHERY
AND PREMEDITATION. [P]roof of the victim's bad moral character is not necessary in
cases of murder committed with treachery and premeditation. In People v. Soliman, a
murder case, the defense tried to prove the violent, quarrelsome or provocative
character of the deceased. Upon objection of the prosecution, the trial court disallowed
the same. The Supreme Court held: ". . . While good or bad moral character may be
availed of as an aid to determine the probability or improbability of the commission of
an offense (Section 15, Rule 123), such is not necessary in the crime of murder where
the killing is committed through treachery or premeditation. The proof of such character
may only be allowed in homicide cases to show "that it has produced a reasonable belief
of imminent danger in the mind of the accused and a justifiable conviction that a prompt
58
defensive action was necessary (Moran,Comments on the Rules of Court, 1952 ed.,
Vol. 3, p. 126). This rule does not apply to cases of murder."
9. ID.; ID.; ID.; ID.; ID.; CASE AT BAR. In the case at bar, accused-appellant is charged
with murder committed through treachery and evident premeditation. The evidence
shows that there was treachery. Joseph was sitting in his living room watching television
when accused-appellant peeped through the window and, without any warning, shot him
twice in the head. There was no opportunity at all for the victim to defend himself or
retaliate against his attacker. The suddenness and unexpectedness of the attack ensured
his death without risk to the assailant. Following the ruling in People v. Soliman, where
the killing of the victim was attended by treachery, proof of the victim's bad character is
not necessary. The presence of this aggravating circumstance negates the necessity of
proving the victim's bad character to establish the probability or improbability of the
offense charged and, at the same time, qualifies the killing of Joseph Marquez to murder.
10. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; EVIDENT PREMEDITATION; NOT
APPRECIATED IN CASE AT BAR. As to the aggravating circumstance of evident
premeditation, this cannot be appreciated to increase the penalty in the absence of
direct evidence showing that accused-appellant deliberately planned and prepared the
killing of the victim.
11. REMEDIAL LAW; CRIMINAL PROCEDURE; COMPLAINT OR INFORMATION; MUST
SPECIFY THE QUALIFYING AND AGGRAVATING CIRCUMSTANCES IN THE COMMISSION OF
THE OFFENSE. Neither can the aggravating circumstance of dwelling found by the trial
court be applied in the instant case. The Information alleges only treachery and evident
premeditation, not dwelling. Under Sections 8 and 9, Rule 110 of the Revised Rules of
Criminal Procedure, a complaint or Information must specify the qualifying and
aggravating circumstances in the commission of the offense. The Revised Rules of
Criminal Procedure took effect on December 1, 2000, and Section 8, Rule 110 is
favorable to the accused. It may be applied retroactively to the instant case.
DECISION
PUNO, J p:
On automatic review is the decision of the Regional Trial Court, Caloocan City, Branch
127 in Criminal Case No. C-54012 (98), which sentenced accused-appellant Noel Lee to
death for the murder of Joseph Marquez.
On May 27, 1998, an Information was filed against accused-appellant charging him with
the crime of murder committed as follows: DTSaIc

"That on or about the 29th day of September 1996, in Kalookan City,
Metro Manila, and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to kill, with treachery and evident
premeditation did then and there willfully, unlawfully and feloniously
attack and shoot one JOSEPH MARQUEZ y LAGANDI, with the use of a
handgun, thereby inflicting upon the latter serious physical injuries,
which ultimately caused the victim's death.
CONTRARY TO LAW." 1
Accused-appellant pleaded not guilty to the charge. At the trial, the prosecution
presented the following witnesses: (a) Herminia Marquez, the mother of the victim; (b)
Dr. Darwin Corpuz, a resident doctor at the Manila Caloocan University (MCU) Hospital;
(c) PO2 Rodelio Ortiz, a police officer who examined the crime scene; and (d) Dr. Rosaline
Cosidon, a medico-legal officer of the Philippine National Police (PNP) Crime Laboratory.
The prosecution established the following facts: At 9:00 in the evening of September 29,
1996, Herminia Marquez, 46 years of age and her son, Joseph, 26 years of age, were in
the living room of their house located at No. 173 General Evangelista St., Bagong Barrio,
Caloocan City. The living room was brightly lit by a circular fluorescent lamp in the
ceiling. Outside their house was an alley leading to General Evangelista Street. The alley
was bright and bustling with people and activity. There were women sewing garments on
one side and on the other was a store catering to customers. In their living room, mother
and son were watching a basketball game on television. Herminia was seated on an
armchair and the television set was to her left. Across her, Joseph sat on a sofa against
the wall and window of their house and the television was to his right. Herminia looked
away from the game and casually glanced at her son. To her complete surprise, she saw
a hand holding a gun coming out of the open window behind Joseph. She looked up and
saw accused-appellant Noel Lee peering through the window and holding the gun aimed
at Joseph. Before she could warn him, Joseph turned his body towards the window, and
simultaneously, appellant fired his gun hitting Joseph's head. Joseph slumped on the
sofa. Herminia stood up but could not move as accused-appellant fired a second shot at
Joseph and three (3) shots more two hit the sofa and one hit the cement floor. When
no more shots were fired, Herminia ran to the window and saw accused-appellant, in a
blue sando, flee towards the direction of his house. Herminia turned to her son, dragged
his body to the door and shouted for help. With the aid of her neighbor and kumpare,
Herminia brought Joseph to the MCU Hospital where he later died.
Police investigators arrived at the hospital and inquired about the shooting incident.
Herminia told them that her son was shot by Noel Lee. From the hospital, Herminia went
to the St. Martin Funeral Homes where Joseph's body was brought. Thereafter, she
proceeded to the Caloocan City Police Headquarters where she gave her sworn
statement about the shooting. 2
59
Upon request of the Caloocan City police, a post-mortem examination was made on
Joseph's body. Dr. Rosaline O. Cosidon, a medico-legal officer of the PNP Crime
Laboratory Service made the following findings:
"FINDINGS:
Fairly developed, fairly nourished male cadaver in rigor mortis with
postmortem lividity at the dependent portions of the body. Conjunctiva
are pale, Lips and nailbeds are cyanotic. A needle puncture mark was
noted at the dorsum of the right hand.
HEAD:
(1) Gunshot wound, frontal region, measuring 0.5 x 0.5 cm, just
right of the anterior midline, 161 cm from heel, with an upbraded
collar, measuring 0.2 cm superiorly and laterally, 0.1 cm medially
and inferiorly directed posteriorwards, downwards and to the left
fracturing the frontal bone, lacerating the brain. A deformed slug
was recovered embedded at the left cerebral hemisphere of the
brain.
(2) Gunshot wound, occipital region, measuring 0.5 x 0.5 cm, 2
cm left of the posterior midline, 162 cm from heel, with a uniform
0.2 cm upbraded collar, directed slightly anteriorwards,
downwards and lateralwards, fracturing the occipital bone and
lacerating the brain. A deformed slug was recovered at the left
auricular region.
(3) Contusion, right eyebrow, measuring 3 x 2 cm, 3 cm from the
anterior midline.
There are subdural and subarachnoidal hemorrhages.
Stomach is 1/4 full of partially digested food particles and positive
for alcoholic odor.
CONCLUSION:
Cause of death is intracranial hemorrhage as a result of gunshot wounds.
Head." 3

At the time of his death, Joseph was employed as driver by the Santos Enterprises
Freight Services earning P250.00 a day. 4 He left behind two children by his live-in
partner who are now under his mother's care and support. Herminia spent approximately
P90,000.00 for the funeral and burial expenses of her deceased son. The expenses were
supported by receipts 5 and admitted by the defense. 6
Herminia filed a complaint for murder against accused-appellant. The complaint,
docketed as I.S. No. 96-3246, was however dismissed for insufficiency of evidence in a
Resolution dated December 4, 1996 by Prosecutor Dionisio C. Sison with the approval of
Caloocan City Prosecutor Rosauro J. Silverio. 7 Herminia appealed the order of dismissal
to the Secretary of Justice. In a letter dated March 16, 1998, Secretary of Justice Silvestre
Bello III reversed and set aside the appealed Resolution and ordered the City Prosecutor
of Caloocan City to file an information for murder against the accused-
appellant. 8 Accordingly, the Information was filed and a warrant of arrest issued against
accused-appellant on June 8, 1998. On October 16, 1998, appellant was arrested by
agents of the National Bureau of Investigation (NBI).
Appellant is a well-known figure in their neighborhood and has several criminal cases
pending against him in Caloocan City. He was charged with frustrated homicide in 1984
and attempted murder in 1989. 9
For his defense, accused-appellant presented two witnesses: (a) Orlando Bermudez, a
neighbor; and (b) himself. He denies the killing of Joseph Marquez. He claims that from
8:00 to 10:00 in the evening of September 29, 1996, he was in his house located at 317
M. de Castro St., Bagong Barrio, Caloocan City. He was having some drinks with his
neighbor, Orlando Bermudez, and his driver, Nelson Columba. They were enjoying
themselves, drinking and singing with the videoke. Also in the house were his wife,
children and household help. At 10:00 P.M., Orlando and Nelson went home and accused-
appellant went to sleep. He woke up at 5:30 in the morning of the following day and
learned that Joseph Marquez, a neighbor, was shot to death. To appellant's surprise, he
was tagged as Joseph's killer. 10
Accused-appellant had known the victim since childhood and their houses are only two
blocks apart. Joseph had a bad reputation in their neighborhood as a thief and drug
addict. Six days before his death, on September 23, 1996, accused-appellant caught
Joseph inside his car trying to steal his car stereo. Joseph scampered away. As proof of
the victim's bad reputation, appellant presented a letter handwritten by his mother,
Herminia, addressed to Mayor Reynaldo Malonzo of Caloocan City, and sent through PO3
Willy Tuazon and his wife, Baby Ruth. In the letter, Herminia was surrendering her son to
the Mayor for rehabilitation because he was hooked onshabu, a prohibited drug, and was
a thief. Herminia was scared that eventually Joseph might not just steal but kill her and
everyone in their household because of his drug habit. 11
60
The accused-appellant likewise explained the two criminal cases filed against him in
1984 and 1989. The information for attempted murder was dismissed as a result of the
victim's desistance while in the frustrated homicide case, the real assailant appeared
and admitted his crime. 12
In a decision dated June 22, 1999, the trial court found accused-appellant guilty and
sentenced him to the penalty of death. The court also ordered appellant to pay the heirs
of the victim civil indemnity of P50,000.00, actual damages of P90,000.00, moral
damages of P60,000.00 and exemplary damages of P50,000.00 and the costs of the suit.
Thus:
"WHEREFORE, foregoing premises considered and the prosecution
having established beyond an iota of doubt the guilt of accused NOEL
LEE of the crime of Murder as defined and penalized under Article 248 of
the Revised Penal Code as amended by R.A. 7659, this court, in view of
the presence of the generic aggravating circumstance of dwelling and
without any mitigating circumstance to offset it, hereby sentences the
said accused to suffer the extreme penalty of DEATH; to indemnify the
legal heirs of the deceased civil indemnity of P50,000.00; to pay the
private complainant actual damages of P90,000.00 plus moral and
exemplary damages of P60,000.00 and P50,000.00, respectively; and to
pay the costs.
Consistent with the provisions of Section 10, Rule 122 of the 1985 Rules
on Criminal Procedure, as amended, let the entire records hereof
including the complete transcripts of stenographic notes be forwarded to
the Supreme Court for automatic review and judgment, within the
reglementary period set forth in said section.
SO ORDERED. 13
Hence, this appeal. Before us, accused-appellant assigns the following errors:
I
THE COURT A QUO GRAVELY ERRED IN RELYING HEAVILY ON THE SELF-
SERVING AND CONTRADICTORY TESTIMONY OF THE MOTHER OF THE
VICTIM, HERMINIA MARQUEZ, WHOSE NARRATION OF THE CHAIN OF
OCCURRENCE THAT LED TO THE DEATH OF JOSEPH MARQUEZ WAS
BEYOND BELIEF.
II
 61
THE TRIAL COURT GRAVELY ERRED IN HASTILY TAGGING THE ACCUSED- Now who was your companion, if any, at that time?
APPELLANT, NOEL LEE, AS THE ASSAILANT BASED MERELY ON THE
BIASED DECLARATION OF THE MOTHER WITHOUT CONSIDERING THE WITNESS:
SHADY CHARACTER OF THE VICTIM AGAINST WHOM OTHERS MIGHT
HAVE AN AXE TO GRIND. Me and my son, Joseph Marquez, and the wife upstairs putting the baby
to sleep.

Q: What were you and your son, Joseph, doing then?

III
A: Watching TV.
THE TRIAL COURT GRAVELY ERRED IN ITS DECISION OF FINDING GUILT
ON THE ACCUSED-APPELLANT WITHOUT EVEN RAISING A FINGER IN Q: Will you please tell us your position, I am referring to you and your
SATISFYING ITSELF THAT THE PHYSICAL EVIDENCE OBTAINING IN 1996 son in relation to the television set where you are watching the
ARE STILL PREVAILING IN 1999 WHEN THE CASE WAS TRIED ON THE show.
MERITS SO AS TO ESTABLISH THE IDENTITY OF THE ASSAILANT BEYOND
DOUBT.
A: We were facing each other while watching television which is on the
left side.
IV
Q: Will you please tell us where exactly was your son, Joseph, seated
THE COURT A QUO GRIEVOUSLY ERRED IN TREATING WITH LENIENCY while watching television?
HERMINIA MARQUEZ'S VACILLATION WITH RESPECT TO THE "BUTAS NG
BINTANA" AS CONTAINED IN HER SWORN STATEMENT AND THE "BUKAS
NA BINTANA" AS PER HER REPAIRED TESTIMONY A SERIOUS A: At the end most of the sofa.
PROCEDURAL ANOMALY THAT ASSAULTED THE SUBSTANTIAL RIGHT OF
THE ACCUSED-APPELLANT. Q: The sofa you are referring to is the one near the window.

V A: Yes, sir. Dikit lang po.

THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE EXTREME PENALTY Q: Will you give us an idea or describe to us that window which you
OF DEATH UPON ACCUSED-APPELLANT DESPITE OBVIOUS REASONABLE mentioned awhile ago?
DOUBT." 14
A: Transparent glass.
The assigned errors principally involve the issue of the credibility of Herminia Marquez,
the lone prosecution eyewitness. Accused-appellant claims that the trial court should not Q: How high is it from the ground?
have accepted Herminia's testimony because it is biased, incredible and inconsistent.
COURT:
Herminia's testimony on direct examination is as follows:
Which one?
"xxx xxx xxx
ATTY. OPENA:
ATTY. OPENA:
The window glass?
 62
WITNESS: COURT:

About three feet from the ground. Sustained.

ATTY. OPENA TO WITNESS: ATTY. OPENA TO WITNESS:

Q: You said three feet. What do you mean by that? Is that window Q: When you said end of sofa which portion, the left side or the right
elevated from the ground? side?

A: The same height as this court window which is about three feet from A: The right.
the ground, and from one another about four by four window
[sic], three feet by the ground. Q: Now, while you and your son were watching television, was there
anything unusual that transpired?
Q: Now, you demonstrated by showing a portion, you mean to tell us
that window was mounted on a concrete or hollow block? A: Yes, sir.

A: Hollow block, po. Q: Tell us what was that all about.

Q: How high is that hollow block that you were referring to? A: Mayroon po akong napansin na kamay na nakatutok sa anak ko.
Nakita ko po si Noel Lee na nakatayo sa may bintana.
COURT:
Q: What do you mean by the word "kamay?"
She said three feet.
A: Hawak hawak po niya iyong baril, nakatutok po sa anak ko.
ATTY. OPENA TO WITNESS:
Q: What did you do with what you saw?
Q: Which is higher, that sofa which is posted near the window or the
hollow block? A: Nakita ko pong gumanoon siya, sumilip na ganoon, sabay putok ng
baril. Tumingin po siya sa may bintana, ganoon po, sabay putok
A: Hollow block. ng baril.

Q: By how many inches or feet? COURT:

A: About half a foot. You said he turned the head. Who turned the head? Sino ang gumanyan
sa sinabi mo?
Q: You said the sofa was long. Will you please tell us in what portion of
your sofa your son Joseph was seated? A: (Witness demonstrating that the victim peeped through the window).

ATTY. VARGAS: Q: And then?

Already answered, your Honor. She said dulo, end of the sofa. A: At the same time the firing of the gun [sic] and I saw my son slumped.
 63
ATTY. OPENA TO THE WITNESS: Q: That Noel Lee that you are referring to, will you please point at him if
he is around?
Q: And after your son was slumped, what did you do?
A: (Witness going down the witness stand and pointing to accused Noel
A: I went to my son and carried him to take him to the hospital. Lee).

Q: How many shots did you hear? Q: How do you know that it was Noel Lee who shot your son?

A: Five shots. A: Kitang kita ko po. Magkatapat po kami.

Q: That was prior to helping your son? Q: Will you please describe to us?

A: Yes, sir. A: Maliwanag po kasi ang ilaw. Maliwanag din po sa labas, may nananahi
doon. Nandoon po kaming dalawa ng anak ko nanonood ng
Q: And how many times was your son hit? television. (Witness sobbing in tears). Napakasakit sa akin. Hindi
ko man lang naipagtanggol ang anak ko.
ATTY. VARGAS:
COURT:
Q: Objection, your honor. It was already answered. Because according to
her it was five shots. She was emotionally upset.

COURT: ATTY. OPENA:

It does not follow that the victim was hit. So, the witness may answer. I'll just make it on record that the witness was emotionally upset. May I
ask if she can still testify?
WITNESS:
xxx xxx xxx
Twice, Two shots hit my son, two shots on the sofa and one shot on the
cement. WITNESS:

COURT: Masakit lang po sa loob ko ang pagkawala ng anak ko.

How about the other one? ATTY. OPENA TO WITNESS:

A: Doon po sa semento. Q: You saw that the light was bright. Where were those lights coming
from?
ATTY. OPENA TO WITNESS:
A: Maliwanag po sa loob ng bahay namin dahil may fluorescent na bilog.
Saka sa labas may nananahi po doon sa alley katapat ng bahay
Q: And who fired these shots? namin. At saka po doon sa kabila, tindahan po tapat po namin,
kaya maliwanag ang ilaw.
A: Noel Lee.

Q: After trying to help your son, what happened?
A: I was able to hold on to my son up to the door. Upon reaching the
door, I asked the help of my kumpare.
Q: Meanwhile, what did the accused do after shooting five times?
A: He ran to the alley to go home.
Q: Now you said he ran to an alley towards the direction of their house.
Do you know where his house is located?
A: Yes, sir. 142 M. de Castro Street, Bagong Barrio, Caloocan City.
Q: How far is that from your residence?
A: More or less 150 to 200 meters.
Q: Where did you finally bring your son?
A: MCU.
Q: When you say MCU, are you referring to MCU Hospital?
A: Yes, sir. MCU Hospital.
64
Herminia's testimony is positive, clear and straightforward. She did not waver in her
narration of the shooting incident, neither did she waffle in recounting her son's death.
She was subjected by defense counsel to rigorous cross and re-cross examinations and
yet she stuck to her testimony given in the direct examination. She readily gave specific
details of the crime scene, e.g., the physical arrangement of the sofa and the television
set, the height of the sofa, the wall and the window, because the crime happened right
in her own living room. She explained that she was unable to warn Joseph because she
was shocked by the sight of accused-appellant aiming a gun at her son. The tragic
events unfolded so fast and by the time she took hold of herself, her son had been shot
dead.
A son's death in his mother's house and in her presence is a painful and agonizing
experience that is not easy for a mother to forget, even with the passing of time.
Herminia's testimony shows that she was living with a conscience that haunted and
blamed her own self for failing to protect her son or, at least, save him from death.
Nonetheless, accused-appellant points out inconsistencies in the eyewitness' testimony.
In her affidavit of September 30, 1996 given before PO2 Rodelio Ortiz, Herminia declared
that while she and Joseph were watching television, she saw a hand holding a gun
pointed at her son. The hand and the gun came out of a hole in the window, i.e.,
"butas ng bintana." On cross-examination, Herminia stated that she saw a hand holding
a gun in the open window, i.e., "bukas na bintana." According to accused-appellant, this
inconsistency is a serious flaw which cannot be repaired by her statement on the witness
stand.
The inconsistency between her affidavit and her testimony was satisfactorily explained
by Herminia on cross-examination:

Q: At MCU, life-saving devices were attached to my son. Later, after "xxx xxx xxx
reaching 11:00, he died.
ATTY. VARGAS
COURT:
Q: You said that you saw a hand from a hole in the window with a gun, is
11:00 P.M.? that correct?

A: Yes, ma'am. A: Bukas na bintana. Not from a hole but from an open window.

Q: Same day? Q: Madam witness, do you recall having executed a sworn statement
before the police, right after the shooting of your son?
A: Yes, ma'am.
A: Yes, sir.
xxx xxx xxx." 15

Q: I will read to you paragraph 8 of your statement which is already
marked as your Exhibit "A" in which is stated as follows:
"Isalaysay mo nga sa akin ang buong pangyayari? Answer: Sa
mga oras ng alas 9:00 ng gabi petsa 29 ng Setyembre 1996
habang ang aking anak ay nanonood ng palabas sa TV ng
basketball malapit sa kanyang bintana sa labas at ako naman ay
nakaupo sa sopa katapat ko siya subalit medyo malayo ng konti
sa kanya, mayroon akong napansin na kamay na may hawak ng
baril at nakaumang sa aking anak sa may butas ng bintana," do
you recall that?
A: Opo.
Q: What you saw from that butas is a hand with a gun, is that correct?
A: Opo.
Q: Madam witness, your window is just like the window of this
courtroom?
A: Yes, sir.
Q: In your testimony, you did not mention what part of the window was
that hand holding a gun that you saw? Is that correct?
A: Hindi naman po butas, kundi bukas na bintana. Nakabukas iyong
bintana namin.
Q: So in your sinumpaang salaysay in the statement that you said butas
na bintana is not correct?
A: Mali ho kasi, hindi ko na napansin iyan, kasi ito napansin ko, kinorect
ko.
COURT:
You show to the witness. There, butas na bintana.
WITNESS:
Mali po ang letra, Bukas hindi butas.
65
xxx xxx xxx." 16
Herminia corrected her affidavit by saying in open court that she saw the hand and the
gun coming out of the open window, not from a hole in the window. In her direct
testimony, Herminia presented a photograph of her living room just the way it looked
from her side on the night of the shooting. 17 The sofa on which Joseph was seated is
against the wall, with the window a few inches above the wall. The window is made of
transparent glass with six (6) vertical glass panes pushing outwards. The entire window
is enclosed by iron grills with big spaces in between the grills. The living room is well-lit
and the area outside the house is also lit by a fluorescent lamp.
Between Herminia's testimony in open court and her sworn statement, any inconsistency
therein does not necessarily discredit the witness. 18 Affidavits are generally considered
inferior to open court declarations because affidavits are taken ex-parte and are almost
always incomplete and inaccurate. 19 Oftentimes, they are executed when the affiant's
mental faculties are not in such a state as to afford him a fair opportunity of narrating in
full the incident that transpired. 20 They are usually not prepared by the affiant himself
but by another who suggests words to the affiant, or worse, uses his own language in
taking the affiant's statements. 21
Accused-appellant argues that since Herminia declared in her affidavit that she saw a
hand coming from the window, she did not see the person holding the gun, let alone who
fired it. 22 A complete reading of the pertinent portion of Herminia's affidavit will refute
appellant's arguments, viz:
"xxx xxx xxx
T Isalaysay mo nga sa akin and buong pangyayari?
S Sa mga oras ng alas 9:00 ng gabi, petsa 29 ng Setyembre 1996,
habang ang aking anak ay nanonood ng palabas sa T.V. ng
basketball malapit sa aming bintanan [sic] sa labas, at ako
naman ay nakaupo sa sopa katapat ko siya subalit medyo
malayo ng kaunti sa kanya, mayroon akong napansin akong [sic]
kamay na hawak-hawak na baril na nakaumang sa aking anak sa
butas na bintana na nakaawang, maya-maya ng kaunti ay
nakarinig na ako ng putok at ang unang putok ay tumama sa ulo
ng aking anak kaya napayuko siya, pagkatapos noon ay sunod-
sunod na ang putok na narinig ko, mga limang beses,
kaya kitang kita ko siya ng lapitan ko ang aking anak at

nakita ko itong si NOEL LEE, pagkatapos noon ay tumakbo
na ito papalabas ng iskinita papunta sa kanila.
xxx xxx xxx." 23
It is thus clear that when Herminia approached her son, she saw that the person firing
the gun was accused-appellant. Appellant continued firing and then ran away towards
the direction of his house. This account is not inconsistent with the witness' testimony in
open court.
Herminia's declarations are based on her actual account of the commission of the crime.
She had no ill motive to accuse appellant of killing her son, or at least, testify falsely
against appellant. Accused-appellant himself admitted that he and Herminia have been
neighbors for years and have known each other for a long time. Appellant is engaged in
the business of buying and selling scrap plastic and Herminia used to work for him as an
agent. 24 She would not have pointed to appellant if not for the fact that it was him
whom she saw shoot her son.
Indeed, the Solicitor General points out that it was appellant himself who had strong
motive to harm or kill Joseph. 25 Appellant revealed that six days before the shooting,
he caught Joseph inside his car attempting to steal the stereo. The alibi that appellant
was drinking with his friends that fateful night of September 29, 1996 does not rule out
the possibility that he could have been at the scene of the crime at the time of its
commission. The victim's house is merely two blocks away from appellant's house and
could be reached in several minutes. 26
The lone eyewitness' account of the killing finds support in the medico-legal report. Dr.
Rosalie Cosidon found that the deceased sustained two gunshot wounds one to the
right of the forehead, and the other, to the left side of the back of the victim's
head. 27 Two slugs were recovered from the victim's head. Judging from the location and
number of wounds sustained, Dr. Cosidon theorized that the assailant could have been
more than two feet away from the victim. 28 Both gunshot wounds were serious and
fatal. 29
Accused-appellant makes capital of Joseph's bad reputation in their community. He
alleges that the victim's drug habit led him to commit other crimes and he may have
been shot by any of the persons from whom he had stolen. 30 As proof of Joseph's bad
character, appellant presented Herminia's letter to Mayor Malonzo seeking his assistance
for Joseph's rehabilitation from drugs. On rebuttal, Herminia admitted that she wrote
such letter to Mayor Malonzo but denied anything about her son's thievery. 31
Character evidence is governed by Section 51, Rule 130 of the Revised Rules on
Evidence, viz:
66
"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.
xxx xxx xxx."
Character is defined to be the possession by a person of certain qualities of mind and
morals, distinguishing him from others. It is the opinion generally entertained of a person
derived from the common report of the people who are acquainted with him; his
reputation. 32 "Good moral character" includes all the elements essential to make up
such a character; among these are common honesty and veracity, especially in all
professional intercourse; a character that measures up as good among people of the
community in which the person lives, or that is up to the standard of the average citizen;
that status which attaches to a man of good behavior and upright conduct. 33
The rule is that the character or reputation of a party is regarded as legally irrelevant in
determining a controversy, so that evidence relating thereto is not admissible.
Ordinarily, if the issues in the case were allowed to be influenced by evidence of the
character or reputation of the parties, the trial would be apt to have the aspects of a
popularity contest rather than a factual inquiry into the merits of the case. After all, the
business of the court is to try the case, and not the man; and a very bad man may have
a righteous cause. 34 There are exceptions to this rule however and Section 51, Rule
130 gives the exceptions in both criminal and civil cases.
In criminal cases, sub-paragraph 1 of Section 51 of Rule 130 provides that the accused
may prove his good moral character which is pertinent to the moral trait involved in the
offense charged. When the accused presents proof of his good moral character, this
strengthens the presumption of innocence, and where good character and reputation are
established, an inference arises that the accused did not commit the crime charged. This
view proceeds from the theory that a person of good character and high reputation is not
likely to have committed the act charged against him. 35 Sub-paragraph 2 provides that
the prosecution may not prove the bad moral character of the accused except only in

rebuttal and when such evidence is pertinent to the moral trait involved in the offense
charged. This 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. 36 The offering of character evidence on his behalf is a privilege of the
defendant, and the prosecution cannot comment on the failure of the defendant to
produce such evidence. 37 Once the defendant raises the issue of his good character,
the prosecution may, in rebuttal, offer evidence of the defendant's bad character.
Otherwise, a defendant, secure from refutation, would have a license to unscrupulously
impose a false character upon the tribunal. 38
Both sub-paragraphs (1) and (2) of Section 51 of Rule 130 refer to character evidence of
the accused. 39 And this evidence must be "pertinent to the moral trait involved in the
offense charged," meaning, that the character evidence must be relevant and germane
to the kind of the act charged, 40 e.g., on a charge of rape, character for chastity; on a
charge of assault, character for peacefulness or violence; on a charge for embezzlement,
character for honesty and integrity. 41 Sub-paragraph (3) of Section 51 of the said Rule
refers to the character of the offended party. 42 Character evidence, whether good or
bad, of the offended party may be proved "if it tends to establish in any reasonable
degree the probability or improbability of the offense charged." Such evidence is most
commonly offered to support a claim of self-defense in an assault or homicide case or a
claim of consent in a rape case. 43
In the Philippine setting, proof of the moral character of the offended party is applied
with frequency in sex offenses and homicide. 44 In rape and acts of lasciviousness or in
any prosecution involving an unchaste act perpetrated by a man against a woman where
the willingness of a woman is material, the woman's character as to her chastity is
admissible to show whether or not she consented to the man's act. 45 The exception to
this is when the woman's consent is immaterial such as in statutory rape 46 or rape with
violence or intimidation. 47 In the crimes of qualified seduction 48 or consented
abduction, 49 the offended party must be a "virgin," which is "presumed if she is
unmarried and of good reputation," 50 or a "virtuous woman of good reputation." 51 The
crime of simple seduction involves "the seduction of a woman who is single or a widow
of good reputation, over twelve but under eighteen years of age . . . ." 52 The burden of
proof that the complainant is a woman of good reputation lies in the prosecution, and the
accused may introduce evidence that the complainant is a woman of bad reputation. 53
In homicide cases, a pertinent character trait of the victim is admissible in two
situations: (1) as evidence of the deceased's aggression; and (2) as evidence of the state
of mind of the accused. 54 The pugnacious, quarrelsome or trouble-seeking character of
the deceased or his calmness, gentleness and peaceful nature, as the case may be, is
relevant in determining whether the deceased or the accused was the
aggressor. 55 When the evidence tends to prove self-defense, the known violent
67
character of the deceased is also admissible to show that it produced a reasonable
belief of imminent danger in the mind of the accused and a justifiable conviction that a
prompt defensive action was necessary. 56
In the instant case, proof of the bad moral character of the victim is irrelevant to
determine the probability or improbability of his killing. Accused-appellant has not
alleged that the victim was the aggressor or that the killing was made in self-defense.
There is no connection between the deceased's drug addiction and thievery with his
violent death in the hands of accused-appellant. In light of the positive eyewitness
testimony, the claim that because of the victim's bad character he could have been
killed by any one of those from whom he had stolen, is pure and simple speculation.
Moreover, proof of the victim's bad moral character is not necessary in cases of murder
committed with treachery and premeditation. In People v. Soliman, 57 a murder case,
the defense tried to prove the violent, quarrelsome or provocative character of the
deceased. Upon objection of the prosecution, the trial court disallowed the same. The
Supreme Court held:
". . . While good or bad moral character may be availed of as an aid to
determine the probability or improbability of the commission of an
offense (Section 15, Rule 123),58 such is not necessary in the crime of
murder where the killing is committed through treachery or
premeditation. The proof of such character may only be allowed in
homicide cases to show "that it has produced a reasonable belief of
imminent danger in the mind of the accused and a justifiable conviction
that a prompt defensive action was necessary (Moran, Comments on the
Rules of Court, 1952 ed., Vol. 3, p. 126). This rule does not apply to
cases of murder." 59
In the case at bar, accused-appellant is charged with murder committed through
treachery and evident premeditation. The evidence shows that there was treachery.
Joseph was sitting in his living room watching television when accused-appellant peeped
through the window and, without any warning, shot him twice in the head. There was no
opportunity at all for the victim to defend himself or retaliate against his attacker. The
suddenness and unexpectedness of the attack ensured his death without risk to the
assailant. Following the ruling in People v. Soliman, where the killing of the victim was
attended by treachery, proof of the victim's bad character is not necessary. The presence
of this aggravating circumstance negates the necessity of proving the victim's bad
character to establish the probability or improbability of the offense charged and, at the
same time, qualifies the killing of Joseph Marquez to murder.

As to the aggravating circumstance of evident premeditation, this cannot be appreciated
to increase the penalty in the absence of direct evidence showing that accused-appellant
deliberately planned and prepared the killing of the victim. 60
Neither can the aggravating circumstance of dwelling found by the trial court be applied
in the instant case. The Information alleges only treachery and evident premeditation,
not dwelling. Under Sections 8 and 9, Rule 110 of the Revised Rules of Criminal
Procedure, a complaint or Information must specify the qualifying and aggravating
circumstances in the commission of the offense. 61 The Revised Rules of Criminal
Procedure took effect on December 1, 2000, and Section 8, Rule 110 is favorable to the
accused. It may be applied retroactively to the instant case.
Accordingly, without the aggravating circumstance of dwelling, the penalty of death was
erroneously imposed by the trial court. There being no aggravating circumstance, there
is no basis for the award of exemplary damages. 62
IN VIEW WHEREOF, the decision dated June 22, 1999 of the Regional Trial Court,
Caloocan City, Branch 127 in Criminal Case No. C-54012 (98) is affirmed insofar as
accused-appellant Noel Lee is found guilty of murder for the death of Joseph Marquez.
The death sentence imposed by the trial court is however reduced to reclusion perpetua,
there having been no aggravating circumstance in the commission of said crime. Except
for the award of exemplary damages, the award of civil indemnity, other damages and
costs are likewise affirmed.
U.S. Supreme Court
Michelson v. United States, 335 U.S. 469 (1948)
Michelson v. United States
No. 23
Argued October 14-15, 1948
Decided December 20, 1948
335 U.S. 469
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Syllabus
1. In a trial in a federal court for bribery of a federal officer, the defendant admitted the payment, but
claimed that it was induced by the officer, and the case hinged on whether the jury believed the
defendant or the officer. The defendant's character witnesses testified that they had known the
68
defendant for from 15 to 30 years, and that he had a good reputation for "honesty and
truthfulness" and for "being a law-abiding citizen." In cross-examining them, the prosecutor was
permitted to ask whether they had heard that the accused had been arrested 27 years previously for
receiving stolen goods. The trial judge had satisfied himself in the absence of the jury that the
question related to an actual
occurrence, and he carefully instructed the jury as to the limited purpose of this evidence.
Held. In the circumstances of this case and in view of the care taken by the trial judge to protect the
rights of the defendant, permitting the prosecutor to ask this question was not reversible error.
Pp. 335 U. S. 470-487.
2. The law does not invest the defendant with a presumption of good character; it simply closes the
whole matter of character, disposition and reputation on the prosecution's case in chief. The
defendant may introduce evidence tending to prove his good reputation, but, if he does so, it throws
open the entire subject, and the prosecution may then cross-examine defendant's witnesses to test
their credibility and qualifications, and may also introduce contradictory evidence. Pp. 335 U. S. 475-
479.
3. Both the propriety and abuse of hearsay reputation testimony, on both sides, depend on numerous
and subtle considerations, difficult to detect or appraise from a cold record. Therefore, rarely and only
on clear showing of prejudicial abuse of discretion, will appellate courts disturb rulings of trial courts
on this subject. P. 335 U. S. 480.
4. In this case, the trial judge was scrupulous to safeguard the practice against any misuse. P. 335 U.
S. 481.
5. A character witness may be cross-examined as to knowledge of rumors of defendant's prior arrest,
whether or not it culminated in a conviction. Pp. 335 U. S. 482-483.
Page 335 U. S. 470
6. It is not only by comparison with the crime on trial, but by comparison with the reputation asserted,
that a court may judge whether the prior arrest should be made the subject of inquiry. Pp. 335 U. S.
483-484.

7. That the inquiry concerned an arrest 27 years before the trial did not make its admission an abuse
of discretion in the circumstances of this case -- especially since two of the witnesses had testified
that they had known defendant for 30 years, defendant, on direct examination, had voluntarily called
attention to his conviction of a misdemeanor 20 years before, and since no objection was made on
this specific ground. P. 335 U. S. 484.
69
Defendant called five witnesses to prove that he enjoyed a good reputation. Two of them testified
that their acquaintance with him extended over a period of about thirty years, and the others said they
had known him at least half that long. A typical examination in chief was as follows:
"Q. Do you know the defendant Michelson?"

8. Notwithstanding the difficulty which a jury might have in comprehending instructions as to the "A. Yes."
limited purpose of such evidence, a defendant who elects to introduce witnesses to prove his good
reputation for honesty and truthfulness and for being a law-abiding citizen has no valid complaint "Q. How long do you know Mr. Michelson?"
about the latitude which existing law allows to the prosecution to meet this issue by cross-examination
of his character witnesses. Pp. 335 U. S. 484-485. "A. About 30 years."

165 F.2d 732 affirmed. "Q. Do you know other people who know him?"

Petitioner was convicted in a federal district court of bribing a federal officer. The Court of Appeals "A. Yes."
affirmed. 165 F.2d 732. This Court granted certiorari. 333 U.S. 866. Affirmed, p. 335 U. S. 487.
"Q. Have you have occasion to discuss his reputation for honesty and truthfulness and for being a
MR. JUSTICE JACKSON delivered the opinion of the Court. law-abiding citizen?"

In 1947, petitioner Michelson was convicted of bribing a federal revenue agent. [Footnote 1] The "A. It is very good. "
Government proved a
Page 335 U. S. 472
Page 335 U. S. 471
"Q. You have talked to others?"
large payment by accused to the agent for the purpose of influencing his official action. The
defendant, as a witness on his own behalf, admitted passing the money, but claimed it was done in "A. Yes."
response to the agent's demands, threats, solicitations, and inducements that amounted to
entrapment. It is enough for our purposes to say that determination of the issue turned on whether the "Q. And what is his reputation?"
jury should believe the agent or the accused. [Footnote 2]
"A. Very good."
On direct examination of defendant, his own counsel brought out that, in 1927, he had been convicted
of a misdemeanor having to do with trading in counterfeit watch dials. On cross-examination, it These are representative of answers by three witnesses; two others replied, in substance, that they
appeared that, in 1930, in executing an application for a license to deal in second-hand jewelry, he never had heard anything against Michelson.
answered "No" to the question whether he had theretofore been arrested or summoned for any
offense. On cross-examination, four of the witnesses were asked, in substance, this question:

"Did you ever hear that Mr. Michelson, on March 4, 1927, was convicted of a violation of the
trademark law in New York City in regard to watches?"
This referred to the twenty-year-old conviction about which defendant himself had testified on direct
examination. Two of them had heard of it and two had not.
To four of these witnesses, the prosecution also addressed the question the allowance of which, over
defendant's objection, is claimed to be reversible error:
"Did you ever hear that, on October 11th, 1920, the defendant, Solomon Michelson, was arrested for
receiving stolen goods?"
None of the witnesses appears to have heard of this.
The trial court asked counsel for the prosecution, out of presence of the jury, "Is it a fact according to
the best information in your possession that Michelson was arrested for receiving stolen goods?"
Counsel replied that it was, and, to support his good faith, exhibited a paper record which defendant's
counsel did not challenge.
The judge also on three occasions warned the jury, in terms that are not criticized, of the limited
purpose for which this evidence was received. [Footnote 3]
Page 335 U. S. 473
Defendant petitioner challenges the right of the prosecution so to cross-examine his character
witnesses. The Court of Appeals held that it was permissible. The opinion, however, points out that
the practice has been severely criticized, and invites us, in one respect, to change the rule. [Footnote
4] Serious and responsible criticism has
Page 335 U. S. 474
been aimed, however, not alone at the detail now questioned by the Court of Appeals, but at common
law doctrine on the whole subject of proof of reputation or character. [Footnote 5] It would not be
possible to appraise the
Page 335 U. S. 475
70
usefulness and propriety of this cross-examination without consideration of the unique practice
concerning character testimony, of which such cross-examination is a minor part. [Footnote 6]
Courts that follow the common law tradition almost unanimously have come to disallow resort by the
prosecution to any kind of evidence of a defendant's evil character to establish a probability of his
guilt. [Footnote 7] Not that the law invests the defendant with a presumption of good character, Greer
v. United States, 245 U. S. 559, but it simply closes the whole matter of character, disposition, and
reputation on the prosecution's case-in-chief. The State may not show defendant's prior trouble with
the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically
be persuasive that he is by propensity a probable perpetrator of the crime. [Footnote 8] The inquiry is
not rejected because character is
Page 335 U. S. 476
irrelevant; [Footnote 9] on the contrary, it is said to weigh too much with the jury, and to so
overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to
defend against a particular charge. The overriding policy of excluding such evidence, despite its
admitted probative value, is the practical experience that its disallowance tends to prevent confusion
of issues, unfair surprise, and undue prejudice. [Footnote 10]
But this line of inquiry, firmly denied to the State, is opened to the defendant because character is
relevant in resolving probabilities of guilt. [Footnote 11] He may introduce affirmative testimony that
the general estimate of his character is so favorable that the jury may infer that he would not be likely
to commit the offense charged. This privilege is sometimes valuable to a defendant, for this Court has
held that such testimony alone, in some circumstances, may be enough to raise a reasonable doubt
of guilt, and that, in the federal courts, a jury in a proper case should be so instructed. Edgington v.
United States, 164 U. S. 361.
Page 335 U. S. 477
When the defendant elects to initiate a character inquiry, another anomalous rule comes into play. Not
only is he permitted to call witnesses to testify from hearsay, but indeed such a witness is not allowed
to base his testimony on anything but hearsay. [Footnote 12] What commonly is called "character
evidence" is only such when "character" is employed as a synonym for "reputation." The witness may
not testify about defendant's specific acts or courses of conduct, or his possession of a particular
disposition or of benign mental and moral traits; nor can he testify that his own acquaintance,

observation, and knowledge of defendant leads to his own independent opinion that defendant
possesses a good general or specific character, inconsistent with commission of acts charged. The
witness is, however, allowed to summarize what he has heard in the community, although much of it
may have been said by persons less qualified to judge than himself. The evidence which the law
permits is not as to the personality of defendant, but only as to the shadow his daily life has cast in his
neighborhood. This has been well described in a different connection as
"the slow growth of months and years, the resultant picture of forgotten incidents, passing events,
habitual and daily conduct, presumably honest because disinterested, and safer to be trusted
because prone to suspect. . . . It is for that reason that such general repute is permitted to be proven.
It sums up a multitude of trivial details. It compacts into the brief phrase of a verdict the teaching of
many incidents and the conduct of years. It is the average intelligence drawing its conclusion."
Finch J., in Badger v. Badger, 88 N.Y. 546, 552.
While courts have recognized logical grounds for criticism of this type of "opinion based on hearsay"
testimony,
Page 335 U. S. 478
it is said to be justified by "overwhelming considerations of practical convenience" in avoiding
innumerable collateral issues which, if it were attempted to prove character by direct testimony, would
complicate and confuse the trial, distract the minds of jurymen, and befog the chief issues in the
litigation. People v. Van Gaasbeck, 189 N.Y. 408, 418, 82 N.E. 718.
Another paradox in this branch of the law of evidence is that the delicate and responsible task of
compacting reputation hearsay into the "brief phrase of a verdict" is one of the few instances in which
conclusions are accepted from a witness on a subject in which he is not an expert. However, the
witness must qualify to give an opinion by showing such acquaintance with the defendant, the
community in which he has lived, and the circles in which he has moved, as to speak with authority of
the terms in which generally he is regarded. To require affirmative knowledge of the reputation may
seem inconsistent with the latitude given to the witness to testify when all he can say of the reputation
is that he has "heard nothing against defendant." This is permitted upon assumption that, if no ill is
reported of one, his reputation must be good. [Footnote 13] But this answer is accepted only from a
witness whose knowledge of defendant's habitat and surroundings is intimate enough so that his
failure to hear of any relevant ill repute is an assurance that no ugly rumors were about. [Footnote 14]
71
Thus, the law extends helpful but illogical options to a defendant. Experience taught a necessity
that they
Page 335 U. S. 479
be counterweighted with equally illogical conditions to keep the advantage from becoming an unfair
and unreasonable one. The price a defendant must pay for attempting to prove his good name is to
throw open the entire subject which the law has kept closed for his benefit, and to make himself
vulnerable where the law otherwise shields him. The prosecution may pursue the inquiry with
contradictory witnesses [Footnote 15] to show that damaging rumors, whether or not well grounded,
were afloat -- for it is not the man that he is, but the name that he has, which is put in issue. Another
hazard is that his own witness is subject to cross-examination as to the contents and extent of the
hearsay on which he bases his conclusions, and he may be required to disclose rumors and reports
that are current even if they do not affect his own conclusion. [Footnote 16] It may test the sufficiency
of his knowledge by asking what stories were circulating concerning events, such as one's arrest,
about which people normally comment and speculate. Thus, while the law gives defendant the option
to show as a fact that his reputation reflects a life and habit incompatible with commission of the
offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a
mere parade of partisans.
Page 335 U. S. 480
To thus digress from evidence as to the offense to hear a contest as to the standing of the accused,
at its best, opens a tricky line of inquiry as to a shapeless and elusive subject matter. At its worst, it
opens a veritable Pandora's box of irresponsible gossip, innuendo, and smear. In the frontier phase of
our law's development, calling friends to vouch for defendant's good character, and its counterpart --
calling the rivals and enemies of a witness to impeach him by testifying that his reputation for veracity
was so bad that he was unworthy of belief on his oath -- were favorite and frequent ways of
converting an individual litigation into a community contest, and a trial into a spectacle. Growth of
urban conditions, where one may never know or hear the name of his next-door neighbor, have
tended to limit the use of these techniques, and to deprive them of weight with juries. The popularity
of both procedures has subsided, but courts of last resort have sought to overcome danger that the
true issues will be obscured and confused by investing the trial court with discretion to limit the
number of such witnesses and to control cross-examination. Both propriety and abuse of hearsay
reputation testimony, on both sides, depend on numerous and subtle considerations, difficult to detect

or appraise from a cold record, and therefore rarely, and only on clear showing of prejudicial abuse of
discretion, will Courts of Appeals disturb rulings of trial courts on this subject. [Footnote 17]
Wide discretion is accompanied by heavy responsibility on trial courts to protect the practice from any
misuse.
Page 335 U. S. 481
The trial judge was scrupulous to so guard it in the case be ore us. He took pains to ascertain, out of
presence of the jury, that the target of the question was an actual event which would probably result in
some comment among acquaintances if not injury to defendant's reputation. He satisfied himself that
counsel was not merely taking a random shot at a reputation imprudently exposed, or asking a
groundless question to waft an unwarranted innuendo into the jury box. [Footnote 18]
The question permitted by the trial court, however, involves several features that may be worthy of
comment. Its form invited hearsay; it asked about an arrest, not
Page 335 U. S. 482
a conviction, and for an offense not closely similar to the one on trial, and it concerned an occurrence
many years past.
Since the whole inquiry, as we have pointed out, is calculated to ascertain the general talk of people
about defendant, rather than the witness' own knowledge of him, the form of inquiry, "Have you
heard?" has general approval, and "Do you know?" is not allowed. [Footnote 19]
A character witness may be cross-examined as to an arrest whether or not it culminated in a
conviction, according to the overwhelming weight of authority. [Footnote 20] This rule is sometimes
confused with that which prohibits cross-examination to credibility by asking a witness whether he
himself has been arrested.
Arrest, without more, does not, in law any more than in reason, impeach the integrity or impair the
credibility of a witness. It happens to the innocent as well as the guilty. Only a conviction, therefore,
may be inquired about to undermine the trustworthiness of a witness.
72
Arrest, without more, may nevertheless impair or cloud one's reputation. False arrest may do that.
Even to be acquitted may damage one's good name if the community receives the verdict with a wink
and chooses to remember defendant as one who ought to have been convicted. A conviction, on the
other hand, may be accepted as a misfortune or an injustice, and even enhance the standing of one
who mends his ways and lives it down. Reputation is the net balance of so many debits and credits
that the law does not attach the finality to a conviction when
Page 335 U. S. 483
the issue is reputation, that is given to it when the issue is the credibility of the convict.
The inquiry as to an arrest is permissible also because the prosecution has a right to test the
qualifications of the witness to bespeak the community opinion. If one never heard the speculations
and rumors in which even one's friends indulge upon his arrest, the jury may doubt whether he is
capable of giving any very reliable conclusions as to his reputation.
In this case, the crime inquired about was receiving stolen goods; the trial was for bribery. The Court
of Appeals thought this dissimilarity of offenses too great to sustain the inquiry in logic, though
conceding that it is authorized by preponderance of authority. It asks us to substitute the Illinois rule
which allows inquiry about arrest, but only for very closely similar if not identical, charges, in place of
the rule more generally adhered to in this country and in England. [Footnote 21] We think the facts of
this case show the proposal to be inexpedient.
The good character which the defendant had sought to establish was broader than the crime
charged, and included the traits of "honesty and truthfulness" and "being a law-abiding citizen."
Possession of these characteristics would seem as incompatible with offering a bribe to a revenue
agent as with receiving stolen goods. The crimes may be unlike, but both alike proceed from the
same defects of character which the witnesses said this defendant was reputed not to exhibit. It is not
only by comparison with the crime on trial, but
Page 335 U. S. 484
by comparison with the reputation asserted, that a court may judge whether the prior arrest should be
made subject of inquiry. By this test, the inquiry was permissible. It was proper cross-examination
because reports of his arrest for receiving stolen goods, if admitted, would tend to weaken the
assertion that he was known as an honest and law-abiding citizen. The cross-examination may take

in as much ground as the testimony it is designed to verify. To hold otherwise would give defendant
the benefit of testimony that he was honest and law-abiding in reputation when such might not be the
fact; the refutation was founded on convictions equally persuasive, though not for crimes exactly
repeated in the present charge.
The inquiry here concerned an arrest twenty-seven years before the trial. Events a generation old are
likely to be lived down and dropped from the present thought and talk of the community, and to be
absent from the knowledge of younger or more recent acquaintances. The court, in its discretion, may
well exclude inquiry about rumors of an event so remote, unless recent misconduct revived them. But
two of these witnesses dated their acquaintance with defendant as commencing thirty years before
the trial. Defendant, on direct examination, voluntarily called attention to his conviction twenty years
before. While the jury might conclude that a matter so old and indecisive as a 1920 arrest would shed
little light on the present reputation, and hence propensities, of the defendant, we cannot say that, in
the context of this evidence and in the absence of objection on this specific ground, its admission was
an abuse of discretion.
We do not overlook or minimize the consideration that "the jury almost surely cannot comprehend the
Judge's limiting instructions," which disturbed the Court of Appeals. The refinements of the
evidentiary rules on this
Page 335 U. S. 485
subject are such that even lawyers and judges, after study and reflection, often are confused, and
surely jurors, in the hurried and unfamiliar movement of a trial, must find them almost unintelligible.
However, limiting instructions on this subject are no more difficult to comprehend or apply than those
upon various other subjects -- for example, instructions that admissions of a codefendant are to be
limited to the question of his guilt and are not to be considered as evidence against other defendants,
and instructions as to other problems in the trial of conspiracy charges. A defendant in such a case is
powerless to prevent his cause from being irretrievably obscured and confused; but, in cases such as
the one before us, the law foreclosed this whole confounding line of inquiry unless defendant thought
the net advantage from opening it up would be with him. Given this option, we think defendants in
general, and this defendant in particular, have no valid complaint at the latitude which existing law
allows to the prosecution to meet by cross-examination an issue voluntarily tendered by the
defense. See Greer v. United States, 245 U. S. 559.
73
We end, as we began, with the observation that the law regulating the offering and testing of
character testimony may merit many criticisms. England and some states have overhauled the
practice by statute. [Footnote 22] But the task of modernizing the longstanding rules on the subject is
Page 335 U. S. 486
one of magnitude and difficulty which even those dedicated to law reform do not lightly undertake.
[Footnote 23]
The law of evidence relating to proof of reputation in criminal cases has developed almost entirely at
the hands of state courts of last resort, which have such questions frequently before them. This
Court, on the other hand, has contributed little to this or to any phase of the law of evidence, for the
reason, among others, that it has had extremely rare occasion to decide such issues, as the paucity
of citations in this opinion to our own writings attests. It is obvious that a court which can make only
infrequent sallies into the field cannot recast the body of case law on this subject in many, many
years, even if it were clear what the rules should be.
We concur in the general opinion of courts, text writers, and the profession that much of this law is
archaic, paradoxical, and full of compromises and compensations by which an irrational advantage to
one side is offset by a poorly reasoned counter-privilege to the other. But somehow it has proved a
workable, even if clumsy, system when moderated by discretionary controls in the hands of a wise
and strong trial court. To pull one misshapen stone out of the grotesque structure is more likely simply
to upset its present balance between adverse interests than to establish a rational edifice.
The present suggestion is that we adopt for all federal courts a new rule as to cross-examination
about prior arrest, adhered to by the courts of only one state and
Page 335 U. S. 487
rejected elsewhere. [Footnote 24] The confusion and error it would engender would seem too heavy a
price to pay for an almost imperceptible logical improvement, if any, in a system which is justified, if at
all, by accumulated judicial experience, rather than abstract logic. [Footnote 25]
The judgment is
Affirmed.

U.S. Supreme Court
United States v. Nixon, 418 U.S. 683 (1974)
United States v. Nixon
No. 73-1766
Argued July 8, 1974
Decided July 24, 1974*
418 U.S. 683
Following indictment alleging violation of federal statutes by certain staff members of the White House
and political supporters of the President, the Special Prosecutor filed a motion under Fed.Rule
Crim.Proc. 17(c) for a subpoena duces tecum for the production before trial of certain tapes and
documents relating to precisely identified conversations and meetings between the President and
others. The President, claiming executive privilege, filed a motion to quash the subpoena. The District
Court, after treating the subpoenaed material as presumptively privileged, concluded that the Special
Prosecutor had made a sufficient showing to rebut the presumption and that the requirements of Rule
17(c) had been satisfied. The court thereafter issued an order for an in camera examination of the
subpoenaed material, having rejected the President's contentions (a) that the dispute between him
and the Special Prosecutor was nonjusticiable as an "intra-executive" conflict and (b) that the judiciary
lacked authority to review the President's assertion of executive privilege. The court stayed its order
pending appellate review, which the President then sought in the Court of Appeals. The Special
Prosecutor then filed in this Court a petition for a writ of certiorari before judgment (No. 73-1766), and
the President filed a cross-petition for such a writ challenging the grand jury action (No. 73-1834).
The Court granted both petitions.
Held:
1. The District Court's order was appealable as a "final" order under 28 U.S.C. 1291, was therefore
properly "in" the Court of Appeals, 28 U.S.C. 1254, when the petition for certiorari before judgment
was filed in this Court, and is now properly before this Court for review. Although such an order is
normally not final and subject to appeal, an exception is made in a
"limited class of
Page 418 U. S. 684
74
cases where denial of immediate review would render impossible any review whatsoever of an
individual's claims,"
United States v. Ryan, 402 U. S. 530, 402 U. S. 533. Such an exception is proper in the unique
circumstances of this case, where it would be inappropriate to subject the President to the procedure
of securing review by resisting the order and inappropriate to require that the District Court proceed
by a traditional contempt citation in order to provide appellate review. Pp. 418 U. S. 690-692.
2. The dispute between the Special Prosecutor and the President presents a justiciable controversy.
Pp. 418 U. S. 692-697.
(a) The mere assertion of an "intra-branch dispute," without more, does not defeat federal
jurisdiction. United States v. ICC,337 U. S. 426. P. 418 U. S. 693.
(b) The Attorney General, by regulation, has conferred upon the Special Prosecutor unique tenure
and authority to represent the United States, and has given the Special Prosecutor explicit power to
contest the invocation of executive privilege in seeking evidence deemed relevant to the performance
of his specially delegated duties. While the regulation remains in effect, the Executive Branch is
bound by it. United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260. Pp. 418 U. S. 694-696.
(c) The action of the Special Prosecutor within the scope of his express authority seeking specified
evidence preliminarily determined to be relevant and admissible in the pending criminal case, and the
President's assertion of privilege in opposition thereto, present issues "of a type which are
traditionally justiciable," United States v. ICC, supra, at 337 U. S. 430, and the fact that both litigants
are officers of the Executive Branch is not a bar to justiciability. Pp. 418 U. S. 696-697.
3. From this Court's examination of the material submitted by the Special Prosecutor in support of his
motion for the subpoena, much of which is under seal, it is clear that the District Court's denial of the
motion to quash comported with Rule 17(c), and that the Special Prosecutor has made a sufficient
showing to justify a subpoena for production before trial. Pp. 418 U. S. 697-702.
4. Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-
level communications, without more, can sustain an absolute, unqualified Presidential privilege of
immunity from judicial process under all circumstances. See, e.g., 5 U. S. Madison, 1 Cranch 137, 5
U. S. 177; Baker v. Carr, 369 U. S. 186, 369 U. S. 211. Absent a claim of need to protect military,
diplomatic, or sensitive national security secrets, the confidentiality of

Page 418 U. S. 685
Presidential communications is not significantly diminished by producing material for a criminal trial
under the protected conditions of in camera inspection, and any absolute executive privilege under
Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution.
Pp. 418 U. S. 703-707.
5. Although the courts will afford the utmost deference to Presidential acts in the performance of an
Art. II function, United States v. Burr, 25 F.Cas. 187, 190, 191-192 (No. 14,694), when a claim of
Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not
on the ground that military or diplomatic secrets are implicated, but merely on the ground of a
generalized interest in confidentiality, the President's generalized assertion of privilege must yield to
the demonstrated, specific need for evidence in a pending criminal trial and the fundamental
demands of due process of law in the fair administration of criminal justice. Pp. 418 U. S. 707-713.
6. On the basis of this Court's examination of the record, it cannot be concluded that the District Court
erred in ordering in camera examination of the subpoenaed material, which shall now forthwith be
transmitted to the District Court. Pp.418 U. S. 713-714.
7. Since a president's communications encompass a vastly wider range of sensitive material than
would be true of an ordinary individual, the public interest requires that Presidential confidentiality be
afforded the greatest protection consistent with the fair administration of justice, and the District Court
has a heavy responsibility to ensure that material involving Presidential conversations irrelevant to or
inadmissible in the criminal prosecution be accorded the high degree of respect due a President, and
that such material be returned under seal to its lawful custodian. Until released to the Special
Prosecutor, no in camera material is to be released to anyone. Pp. 418 U. S. 714-716.
No. 73-1766, 377 F.Supp. 1326, affirmed; No. 73-1834, certiorari dismissed as improvidently granted.
BURGER, C.J., delivered the opinion of the Court, in which all Members joined except REHNQUIST,
J., who took no part in the consideration or decision of the cases.
Page 418 U. S. 686
United States Court of Appeals,Fifth Circuit.
75
UNITED STATES of America, Plaintiff-Appellee, v. David Lee
JACKSON, Defendant-Appellant.
No.06-41680.
Decided: November 17, 2008
Before SMITH, WIENER, and HAYNES, Circuit Judges.Traci Lynne Kenner, Asst. U.S. Atty.
(argued), Tyler, TX, Joseph R. Batte, Asst. U.S. Atty., Beaumont, TX, for U.S. Douglas Milton Barlow
(argued), Barlow Law Firm, Beaumont, TX, Robert A. Morrow, Spring, TX, for Jackson.
David Jackson was sentenced to death for murder. He appeals, arguing that (1) the district court
refused to conduct a hearing to determine whether his due process rights were violated by
prosecutorial delay; (2) the Federal Death Penalty Act (FDPA) is unconstitutional; (3) the district
court improperly dismissed two jurors during voir dire; (4) the court allowed improper testimony;
(5) the court incorrectly excluded certain pieces of evidence; (6) the court unconstitutionally
restricted counsel's ability to object; (7) the court erred by not allowing Jackson to impeach a
government witness with evidence of a prior conviction for sexual assault; (8) the court incorrectly
allowed the government to impeach one of Jackson's witnesses with a non-final conviction; (9)
Jackson should have been allowed to allocute; (10) the jury should have been instructed at sentencing
that it could consider residual doubts about Jackson's guilt; (11) the verdict is inconsistent; and
(12) the district court incorrectly denied a motion for new trial. Finding no reversible error, we
affirm.
I.
Jackson, a federal prisoner, began arguing with another inmate, Daryl Brown, while a third inmate,
Arzell Gulley, watched. A fight broke out, the details of which are disputed: Jackson claims that
Brown pulled out a shank,1 but the government contends that Brown was unarmed and only
attempted to begin a fistfight. In any case, the confrontation culminated with all three running from
the yard where the argument started and through one of the prison units into a cell, where Jackson or
Gulley allegedly held Brown as the other attacked him with a shank. After approximately thirty
seconds, Jackson and Gulley left the cell walking in opposite directions. Brown, bleeding profusely,
collapsed and was soon pronounced dead.
Jackson was apprehended with Brown's blood on his clothes and an injury to his palm consistent with
recent use of a shank. While held by security, he tried to flush gambling paraphernalia down the
toilet. When guards tried to place another inmate in the special housing unit with him, he allegedly
told officials that he would kill the inmate if the inmate were not removed, saying if you don't believe
me, look at the [security] tapes, I'll kill again.
A grand jury indicted Jackson and Gulley for murder and possession of a dangerous weapon in
prison. The district court granted a motion to sever their trials, and Jackson was separately
reindicted, convicted on both counts, and sentenced to death.

At sentencing, the government presented evidence of Jackson's other convictions, including multiple
counts of armed robbery and various firearms charges, and testimony about his poor disciplinary
record in prison. An expert witness for the government who had conducted psychiatric evaluations
of Jackson testified that there was a high probability that he would commit violent crimes in the
future.
Jackson presented evidence of a poor home life growing up, low intelligence, post-traumatic stress
disorder, and institutionalization. He also noted that the government had not sought the death
penalty against Gulley, and he submitted an apology he had written for his most recent armed
robbery. Jackson also apologized to Brown's family, though he blamed Brown for starting the fight.
Jackson explained, I just wanted to stab [Brown]. I didn't want to kill him.
II.
The district court's factual findings are reviewed for clear error; its legal conclusions, de novo.
United States v. Avants, 367 F.3d 433, 441 (5th Cir.2004). We review for abuse of discretion the
decision to exclude jurors, United States v. Fields, 483 F.3d 313, 357 (5th Cir.2007), cert. denied, ---
U.S. ----, 128 S.Ct. 1065, 169 L.Ed.2d 814 (2008); evidentiary decisions, United States v. Marrero,
904 F.2d 251, 260 (5th Cir.1990); rulings regarding trial orderliness, United States v. Redd, 355 F.3d
866, 876-77 (5th Cir.2003); refusals to give requested jury instructions, United States v. Arnold, 416
F.3d 349, 356 (5th Cir.2005); and denials of new trials, United States v. Rivera, 295 F.3d 461, 470
(5th Cir.2002).
A.
Jackson raises Fifth and Sixth Amendment challenges to the lengthy delays in his prosecution. The
murder occurred in December 1999, but the government did not charge Jackson until November
2003, and then only for possession of a prohibited object, the shank used to stab Brown. That
charge was dismissed without prejudice in February 2004. In April 2005, the government charged
Jackson again, this time for capital murder and possession of a dangerous weapon. He finally
received a trial in October 2006 and was convicted a month later.
Jackson argues that the delays violated his Fifth Amendment right to due process. In the
alternative, he claims that the case should be remanded for a hearing with discovery on the
government's motives for the delays.
76
A panel of this circuit recently addressed both arguments in Gulley's appeal, United States v.
Gulley, 526 F.3d 809, 819-20 (5th Cir.2008), cert. denied, --- U.S. ----, 129 S.Ct. 159, 172 L.Ed.2d 116
(2008). The Gulley panel noted that under Fifth Circuit law, the defendant bears the burden of
proving that the pre-indictment delay caused substantial, actual prejudice and was intentionally
undertaken by the government for the purpose of gaining some tactical advantage over the accused
Id. at 820 (quoting United States v. Crouch, 84 F.3d 1497, 1514 (5th Cir.1996) (en banc)). To
demonstrate prejudice, the defendant must offer more than mere speculation of lost witnesses, faded
memories or misplaced documents; he must show an actual loss of evidence that would have aided
the defense and that cannot be obtained from other sources. Id. (citation omitted).
The panel noted that district courts should usually carry a motion to dismiss for pre-indictment
delay with the case, and make the determination of whether actual, substantial prejudice resulted
from the improper delay in light of what actually transpired at trial. Id. (quoting Crouch, 84 F.3d at
1516). Because the defendant must prove both bad faith and prejudice, a court need not hold a
hearing on the government's motives for the delay where the court has determined that no prejudice
resulted from it. Id.
The primary question, then, is whether the district court clearly erred in ruling that Jackson is
unable to show that the delay has caused an actual, substantial prejudice to his defense at this point in
time. To demonstrate prejudice, Jackson argues that (1) there is a potential witness who remains
unfound that could have impeached a government witness; (2) there are missing video tapes that
might have exculpatory information; (3) there was a summit among groups in prison that could
have produced more witnesses for the defense; and (4) his mother died, thereby depriving him of her
testimony at sentencing.
The first three proffered examples of prejudice are nothing more than mere speculation of lost
witnesses, faded memories or misplaced documents and do not demonstrate an actual loss of
evidence that would have aided the defense and that cannot be obtained from other sources. Id.
On appeal, Jackson provides no information about the potential witness, whom that witness could
have impeached, or how.2 Jackson also has yet to produce evidence that the video tapes ever existed
or that the summit actually occurred, nor has he adequately explained why these pieces of evidence
were important beyond non-specific explanations that they could easily have yielded more witnesses,
more connections, [and] more depth to the understanding of this incident. [B]ecause actual,
substantial prejudice to the defense at trial is required, a showing of mere potential or possible trial
prejudice does not suffice. Crouch, 84 F.3d at 1523 (emphasis omitted).
The final proffered prejudice is more plausible. The fact that Jackson's mother died and thus
could not testify is not as speculative as his other examples-we at least know who she is and that she
existed. He has not explained, however, what testimony she could have offered. Instead, in the
motion to the district court and his brief on appeal, he indicates only that his mother was the one
witness whose testimony may have caused the jury to spare [his] life. He does not give any hint as
to what her testimony would have been, let alone demonstrate that other, available witnesses could
not have provided the same information.3

The district court therefore did not clearly err when it concluded that Jackson was not prejudiced
by the prosecution's delay. There was no need for an evidentiary hearing.
Jackson also argues that the delays violated his Sixth Amendment right to a speedy trial, because he
did not receive a trial until nearly three years after his 2003 indictment. He concedes, however, that
any delay caused by his own requests for continuances should be discounted. According to Jackson,
then, the relevant delay for Sixth Amendment purposes runs from November 2003, the date of his
initial charge, to July 2005, the date of his first request for a continuance.
The Sixth Amendment protects the right of the accused to a speedy and public trial. U.S. Const.
amend. VI. This protection attaches when the defendant has been formally indicted or actually
restrained accompanying arrest. Dickerson v. Guste, 932 F.2d 1142, 1144 (5th Cir.1991).
Additionally, the period between a withdrawn indictment and a reindictment does not count for Sixth
Amendment purposes. Instead, when no indictment is outstanding, only the actual restraints
imposed by arrest and holding to answer a criminal charge engage the particular protections of the
speedy trial provision of the Sixth Amendment. United States v. Loud Hawk, 474 U.S. 302, 310-11,
106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (citations and internal quotations omitted).
We evaluate speedy trial claims by considering four factors-the length of delay, the reason for the
delay, the defendant's assertion of the right, and the prejudice to him-in a two-step process. At the
first step, we examine the length of the delay, which is to some extent a triggering mechanism.
Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the
other factors that go into the balance. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d
101 (1972). A delay of less than one year will rarely qualify as presumptively prejudicial for
purposes of triggering the Barker inquiry. Cowart v. Hargett, 16 F.3d 642, 646 (5th Cir.1994)
(concluding that where prejudice could not be presumed, we need not even consider the other
factors in order to deny [defendant]'s speedy trial claim). If the delay raises a presumption of
prejudice, we move to the second step, at which the length of the delay, the reason for the delay, and
defendant's diligence in asserting his or her rights is weighed against the prejudice to the defendant.
United States v. Bergfeld, 280 F.3d 486, 488 (5th Cir.2002) (citation omitted).
Because Jackson did not suffer a prejudicial delay, his Sixth Amendment claim fails to pass the
threshold inquiry. We note that the government vigorously disputes that Jackson's first indictment
triggered his speedy trial right. We need not resolve that disagreement, however, because even
assuming the first indictment is the correct triggering date, Jackson cannot demonstrate
presumptively prejudicial delay.
The first indictment was withdrawn in February 2004, and from then until the second indictment,
Jackson was not subject to any actual restraints imposed by arrest and holding to answer a criminal
charge, Loud Hawk, 474 U.S. at 310, 106 S.Ct. 648, in connection with Brown's murder. 4 Jackson
has therefore suffered, at most, six months of delay: three months from November 2003 through
February 2004 and three months from April 2005 through July 2005. A six-month delay is too
short to raise a presumption of prejudice.5
77
Further, as already discussed, the district court did not clearly err when it concluded that
Jackson suffered no prejudice during the entirety of the prosecutorial delay. The court therefore had
no obligation to conduct an inquiry into other Barker factors-including the reason for the delay-and
properly rejected Jackson's Sixth Amendment claim without holding an evidentiary hearing.
B.
Jackson makes at least two separate arguments that the FDPA is unconstitutional. 6 First, he
submits that the death penalty is cruel and unusual in violation of the Eighth Amendment. Second,
he contends that the Fifth and Sixth Amendments require that any non-statutory aggravating factors
used to support the death sentence be alleged in the indictment. Neither claim is supported by law.
Jackson concedes that this Court must reject [the Eighth Amendment] claim based on binding Fifth
Circuit precedent He is correct.7
The claim based on the Fifth and Sixth Amendments is similarly precluded.8 [I]t [is] neither
constitutional nor statutory error for the non-statutory aggravating factors to be omitted from the
indictment. United States v. Bourgeois, 423 F.3d 501, 507-08 (5th Cir.2005).
In response, Jackson argues that Bourgeois is undermined by Cunningham v. California, 549 U.S.
270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), which addressed a California sentencing system whereby
most criminal offense statutes prescribed three tiers of punishment; the sentencing judge was
required to impose the middle term unless he found aggravating or mitigating circumstances by a
preponderance of the evidence. The Court invalidated the arrangement because, under the Sixth
Amendment, [f]actfinding to elevate a sentence falls within the province of the jury employing a
beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining where the
preponderance of the evidence lies. 127 S.Ct. at 870. Jackson claims that the statutory scheme
invalidated in Cunningham is indistinguishable from the FDPA fact-finding and weighing
procedures and that the FDPA is even more structured, and thus more suspect.
Jackson's reliance on Cunningham is misplaced. The Sixth Amendment deficiencies identified in the
California plan are not present in the FDPA. First, the factfinding in the present case was performed
by a jury, not a judge. Second, the FDPA requires aggravating factors to be proved beyond a
reasonable doubt. 18 U.S.C. 3593(c). Because Cunningham is not on point and does not
undermine Bourgeois, which remains the controlling authority in this circuit, we reaffirm the
constitutionality of the FDPA.
C.
Jackson argues that the court improperly excluded for cause two veniremen, Janice Epps and Barbara
Lee. According to Jackson, they were erroneously excluded based on objections to the death penalty
that did not affect their ability to serve as jurors.

Under Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), a sentence
of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding
veniremen for cause simply because they voiced general objections to the death penalty or expressed
conscientious or religious scruples against its infliction. Nonetheless, potential jurors may be
excused where they have indicated either (1) that they would automatically vote against the
imposition of capital punishment without regard to any evidence that might be developed at the trial
of the case before them, or (2) that their attitude toward the death penalty would prevent them from
making an impartial decision as to the defendant's guilt. Id. at 522 n. 21, 88 S.Ct. 1770.
In Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Court clarified
that the standard is whether the juror's views would prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions and his oath [T]his standard does not
require that a juror's bias be proved with unmistakable clarity (internal quotations omitted). The
Court specified, in Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 2224, 167 L.Ed.2d 1014 (2007), that a
trial court removing a potential juror makes a judgment based in part on the demeanor of the juror,
a judgment owed deference by reviewing courts. Further, when there is ambiguity in the
prospective juror's statements, the trial court, aided as it undoubtedly [is] by its assessment of [the
venireman's] demeanor, [is] entitled to resolve [the question] in favor of the State. Id. at 2223
(quoting Witt, 469 U.S. at 434, 105 S.Ct. 844).
Jackson argues that Epps should not have been excused. Though he acknowledges that [a]fter
stating her position over and over [she] finally just shut down and said she wouldn't vote for death,
he contends that her voir dire as a whole demonstrated otherwise and that the prosecutor's badgering
led to the statements used to justify her exclusion for cause.
We disagree. In Epps's questionnaire, she answered that I don't believe I have the right to say if
someone should live or die. Under questioning, she admitted that she could accept the death
penalty for those that kill children or for just no reason at all. The court asked for additional
questioning as to her ability to follow juror instructions in cases where death might result, which led
to her statement that I would have to vote against the death penalty, and then she was excused.
The court observed Epps's demeanor and heard her answers. Those answers were inconsistent for a
time, which alone might have been ground to excuse her. Ultimately, however, she stated that she
would not vote for death. In light of the deference owed, the court did not abuse its discretion. 9
It is just as evident that the district court did not err as to Lee. During government questioning, she
agreed that even if the evidence pointed in the direction of a death sentence, she might not be able to
vote that way, because I'm not sure if I can live with myself if I do. Later, as with Epps, Lee
vacillated somewhat during questioning by the defense. Finally, under instruction to give a yes or no
answer, she was asked whether her feelings about the death penalty would substantially impair her
ability honestly to answer the questions presented, and she said yes. The district court properly
relied on that statement and excused her.
D.
78
Before the fight with Jackson began, Brown took off his shirt. Jackson argues that the court
improperly allowed a government witness to speculate about what Brown was thinking when he did
that.
Jackson sought to demonstrate that he acted in self-defense and that Brown initiated the
confrontation by pulling a shank on him. The government contends instead that Brown was
unarmed and initiated only a fistfight, from which he attempted to withdraw when Jackson drew his
own shank.
The government presented Derric Wilson, a special investigator at the prison, who testified that
inmates typically remove their shirts before a fistfight, because otherwise opponents may be able to
grab onto their clothes. But in a knife fight, Wilson said, it has been my experience that inmates
have typically padded their clothing, with some even going so far as to improvise protective vests
out of newspapers and magazines and make improvised body armor. Jackson objected, saying that
was pure speculation as to what [was] in the mind of an inmate when he takes his shirt off.
Jackson urges that the court abused its discretion in permitting the testimony, which he claims was
inadmissible because it was an unfounded opinion based upon mere conjecture. Alternatively, he
contends that if witnesses cannot testify as to what was in a defendant's mind, they should not be able
to say what was in a potential victim's mind.
Wilson's testimony was rationally related to what he observed as a prison official and was helpful for
understanding prison fights. He indicated both that he had not observed the yard fight between
Brown and Jackson and that his testimony was founded on unrelated investigations he had
conducted.10 Accordingly, his testimony was not mere conjecture regarding what Brown was
thinking, but rather background information about prison fights that the jury could consider or
disregard.
Moreover, a district court may admit testimony about a potential victim's state of mind. [I]n the
ordinary circumstance[,] we do not permit witnesses to speculate about a defendant's state of mind
or intent, United States v. Chavis, 772 F.2d 100, 107 (5th Cir.1985), because intent is one of the
ultimate issues for the jury. By contrast, the prejudice to a defendant is both less direct and less
substantial where a witness is testifying about what someone other than the defendant thought.
Therefore, even assuming arguendo that Wilson testified as to Brown's state of mind, the court did
not abuse its discretion.
Jackson argues that even if the testimony was admissible, the court erred when it allowed Wilson to
testify as a lay witness under Federal Rule of Evidence 701.11 He claims that some of Wilson's
testimony improperly crossed the line into expert testimony governed by Federal Rule of Evidence
702.12
Jackson did not raise this issue in the district court, so we review only for plain error. To prove
plain error, he must show (1) there was error, (2) the error was plain, (3) the error affected his
substantial rights, and (4) the error seriously affected the fairness, integrity or public reputation of

judicial proceedings. United States v. Jones, 489 F.3d 679, 681 (5th Cir.2007) (quoting United
States v. Olano, 507 U.S. 725, 732, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).
The distinction between lay and expert witness testimony is that lay testimony results from a process
of reasoning familiar in everyday life, while expert testimony results from a process of reasoning
which can be mastered only by specialists in the field. United States v. Sosa, 513 F.3d 194, 200 (5th
Cir.2008) (citations and internal quotations omitted). To be considered expert, testimony must
involve more than common sense or the officer's past experience formed from firsthand
observation. Id.
Wilson indicated that his testimony was based on his investigat[ion of] various assaults and fights
with knives and fights with fists[.] He represented that he was familiar with the clothing that
inmates typically wear when they're fighting with knives and aware of how inmates go about fist-
fighting[.] Based on those predicates, it appears that Wilson testified only as a lay witness drawing
from his past experiences formed from firsthand observation as an investigative agent.
Accordingly, any error in admitting his statements as lay rather than expert testimony was not plain.
E.
To demonstrate that he acted in self-defense, Jackson tried to introduce Brown's prison disciplinary
records into evidence. The district court barred the evidence, ruling that it should be admitted only
if Jackson could prove that he had knowledge of the specific acts described by the records. Jackson
contends that that ruling was improper and deprived him of the ability to present a complete defense.
Under Federal Rule of Evidence 404(a), character evidence is generally not admissible for the
purpose of proving action in conformity therewith on a particular occasion The rules make an
exception, however, and permit the introduction of [e]vidence of a pertinent trait of character of the
alleged victim of the crime offered by an accused Fed. R. Evid. 404(a)(2). Federal Rule of
Evidence 405 provides that such a trait of character may always be demonstrated to the jury by
presenting evidence of the victim's reputation. On the other hand, testimony about specific
instances of conduct may be used only if the character or a trait of character of a person is an
essential element of a charge, claim, or defense Fed. R. Evid. 405 (emphasis added).
The district court was correct to limit Jackson's ability to present Brown's disciplinary records.
Brown's propensity for violence is a pertinent trait of character, because it supports Jackson's
argument that Brown was the first aggressor. Accordingly, the court allowed extensive testimony on
Brown's reputation in the prison community.
The disciplinary records that Jackson attempted to introduce, however, involved specific instances
of conduct. Under rule 405, such evidence is admissible only if Brown's violent character was an
essential element of [Jackson's] defense. In Gulley, addressing the same issue, we held,
79
Brown's prior specific acts were not admissible to prove his alleged propensity for violence.
First, as recognized by the Seventh, Eighth, and Ninth Circuits, the plain language of Rule 405(b)
limits the use of specific instances of conduct to prove essential elements of a charge or defense.
Second, Brown's character was not an essential element of the self defense claim in the strict sense
because a self defense claim may be proven regardless of whether the victim has a violent or passive
character.
Gulley, 526 F.3d at 819 (internal citations and quotations omitted).
Jackson attempts to avoid Gulley by citing Holmes v. South Carolina, 547 U.S. 319, 321, 126 S.Ct.
1727, 164 L.Ed.2d 503 (2006), which addressed the constitutionality of an evidence rule under which
the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic
evidence that, if believed, strongly supports a guilty verdict. The Court noted that evidentiary rules
are given wide latitude unless they infringe upon a weighty interest of the accused and are arbitrary
or disproportionate to the purposes they are designed to serve. Id. at 324, 126 S.Ct. 1727 (citation
and internal quotations omitted). The Court concluded that the evidentiary rule was
unconstitutional, because it was arbitrary in the sense that it does not rationally serve the end that
the rule[ was] designed to further. Id. at 330-31, 126 S.Ct. 1727 (internal quotations omitted).
Jackson does not argue with any specificity why rules 404(a) and 405 are disproportionate or
arbitrary, i.e., [that they are] rules that exclude[] important defense evidence but that [do] not
serve any legitimate interests. Id. at 325, 126 S.Ct. 1727. By limiting the admissibility of specific
acts, rules 404 and 405 serve the legitimate interest of ensuring that juries do not acquit or convict on
impermissibly prejudicial grounds, but those rules allow limited exceptions where more context is
necessary in the interest of justice.13 This careful balance is hardly disproportionate or arbitrary, and
Jackson provides no argument to the contrary beyond assertion.
Jackson also claims that the government opened the door to the records. Defense witness Darrell
Evans, one of Jackson's fellow inmates, testified that Brown always have big knives and it be hanging
out of his pocket On cross-examination, the government expressed some skepticism and asked,
Are you saying that if you're walking around with a shank hanging out of your pocket, that a guard is
not going to notice that? Based on that question, Jackson again sought to admit the disciplinary
records, this time to rebut the impression that Brown did not possess shanks because the guards did
not notice it.
This argument is equally unavailing. First, the witness immediately clarified his testimony by
explaining that the knives would hang out of Brown's pockets only when he was sitting down in his
cell, not walking around in plain view of the guards. Second, the court correctly noted that the
disciplinary records would not be even arguably relevant unless they demonstrated that the guards
had in fact caught Brown with a shank.
Of the records even remotely related to violence,14 only two came from the prison; one documents an
incident in which Brown threw hot coffee on a guard, and the other reports that he threatened to stab
a guard. The remaining records came from other prisons, and even there, only two involved shanks.

Any relationship between the subject of cross-examination and the proffered evidence was tenuous
at best, and the court did not abuse its discretion in excluding it.
F.
Jackson avers that the district court violated his Sixth Amendment right to counsel when it allowed
only the lawyer that had conducted the direct examination of a witness to object during that witness's
cross-examination. Because Jackson did not object to that ruling and so did not preserve the issue
for appeal,15 we review only for plain error.
Plain is synonymous with clear or obvious, and at a minimum, contemplates an error which was As Jackson admits, however, registration as a sex offender is a scarlet letter. So although the jury
clear under current law at the time of trial Under plain error, if a defendant's theory requires the
extension of precedent, any potential error could not have been plain. United States v. Garcia-
Rodriguez, 415 F.3d 452, 455 (5th Cir.2005) (citing United States v. Hull, 160 F.3d 265, 271-72 (5th
Cir.1998)) (internal quotations omitted).
Any error here is not plain. Although Jackson correctly notes that federal law allows him to have
two attorneys, he can point to no caselaw that requires both of them to be permitted to object at the
same time; instead, Jackson argues for an extension of our existing Sixth Amendment jurisprudence.
The government, meanwhile, admits that it can find no authority on the issue; it cites general
precedent acknowledging the discretion a district court is afforded to control the trial. 16 Because this
is a question of first impression and the law was not obvious at the time of trial, any error was not
plain.
G.
Jackson argues that the district court erred when it forbade him from impeaching government
witness Victor Richards with evidence that Richards is a registered sex offender. Richards, an
inmate, testified that Jackson and Gulley chased Brown into a cell and stabbed him. In the 1980's,
Richards was convicted of sexual assault, sentenced to two years of probation, and required to
register as a sex offender.
Federal Rule of Evidence 609 establishes two relevant restrictions relevant regarding impeachment
by prior criminal convictions. First, under rule 609(a)(1), the impeachment evidence is subject to
Federal Rule of Evidence 403, which says that even relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury Fed.R.Evid. 403. Second, under rule 609(b), evidence of a conviction may
not be used if a period of more than ten years has elapsed since the date of the conviction or of the
release of the witness from the confinement imposed for that conviction, whichever is the later date
Fed.R.Evid. 609(b).
The district court excluded the evidence on both grounds, finding that the conviction was too old and
unfairly prejudicial. On appeal, Jackson raises three arguments: First, the conviction's probative
80
value is significant; second, because Richards is still required to register as a sex offender, he has
not yet been release[d] from the confinement imposed; and third, excluding the impeachment
evidence violated Jackson's Sixth Amendment right to cross-examine.
Jackson argues the evidence was probative because Richards was a registered sex offender, a result
of his felony conviction[, and so] he likely may also be untruthful. Further, because he was subject
to an ongoing legal obligation to register as a sex offender, he might have potential bias to testify for
the government, thereby staying in the good graces' of those who could prosecute him should he ever
fail to comply with his registration requirements.
might have considered Richards more likely to be untruthful if it had known of his conviction, there is
a significant danger that it would have instead improperly discounted his testimony because of
personal revulsion for sex offenses. Moreover, there was ample reason for the jury to find Richards
untrustworthy without introducing the prejudicial evidence-the jury already knew that (1) Richards
had been convicted of several other crimes (including burglary and theft); (2) he was currently in
prison for a 1999 bank robbery; (3) the government would attempt to get his bank robbery sentence
reduced in exchange for his testimony; and (4) he had a history of mental issues and drug abuse.
Given the potentially severe prejudice that could have resulted from admitting the conviction and its
mostly cumulative probative value, the district court did not abuse its discretion. 17
The court also did not commit constitutional error. Evidentiary rules generally are upheld unless
they infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the
purposes they are designed to serve (citation and internal quotations omitted). Holmes, 547 U.S. at
324, 126 S.Ct. 1727. [W]ell-established rules of evidence permit trial judges to exclude evidence if its
probative value is outweighed by certain other factors such as unfair prejudice, confusion of the
issues, or potential to mislead the jury. See, e.g., Fed. R. Evid. 403. Id. at 326, 126 S.Ct. 1727
(emphasis added). The decision to exclude the evidence because of its prejudicial value was
therefore constitutionally permissible.
H.
Defense witness Shannon Agofsky testified that Brown had a knife and said he was going to assault
Jackson. The government impeached Agofsky under Federal Rule of Evidence 609 with evidence
that Agofsky had been convicted of two counts of capital murder. Agofsky's case has an unusual
procedural history, however, that leads Jackson to question whether Agofsky was improperly
impeached with non-final convictions.
Agofsky's convictions for capital murder were the result of a single killing. In July 2006, in United
States v. Agofsky, 458 F.3d 369 (5th Cir.2006), we held that the Double Jeopardy Clause forbade
convicting Agofsky of both counts, because the charges amounted to the same offense. 18 Id. at 371-
72. We nonetheless concluded that one of the two death sentences could stand. Id. at 372-73.
Accordingly, we vacated the convictions to prevent double jeopardy and remanded with instruction

to impose, at the Government's election, a guilty verdict and death sentence for either Federal
Murder or Murder by a Federal Prisoner. Id. at 375.
Agofsky petitioned for writ of certiorari; because of the pending petition, the Fifth Circuit stayed the
mandate in August 2006. After the Court denied certiorari in January 2007, Agofsky v. United
States, 549 U.S. 1182, 127 S.Ct. 1149, 166 L.Ed.2d 998 (2007), the Fifth Circuit lifted the stay of the
mandate, which finally issued in February 2007. Agofsky testified at Jackson's trial in October
2006-after the Agofsky panel had rendered its opinion but before the Court denied certiorari and the
mandate issued.
On appeal, Jackson argues that Agofsky should not have been impeached with either conviction.
The question now is whether, at the time of the impeachment, Agofsky had two convictions (per the
original district court verdict), zero convictions (per the panel order vacating the convictions), or one
conviction (per the instruction that the district court reimpose one of the two original convictions on
remand). We conclude that he was correctly impeached with both convictions.
This court's decisions are not final until we issue a mandate. Charpentier v. Ortco Contractors,
480 F.3d 710, 713 (5th Cir.2007). In Charpentier, we rejected the argument that an award ceased to
exist on the date we issued our opinion [vacating the award]. Id. Similarly, Agofsky's convictions
did not cease to exist when the panel opinion vacating them was entered. Because the mandate had
not yet issued, the original district court judgment remained in effect; Agofsky was still convicted of
both crimes at the time of his testimony.19
Further, under rule 609(e), [t]he pendency of an appeal therefrom does not render evidence of a
conviction inadmissible. Accordingly, neither the stayed mandate in this court nor the pending
certiorari petition20affected the admissibility of Agofsky's convictions. 21 We note, however, that the
rules permitted Jackson to present information about Agofsky's appeal to ameliorate the
impeachment. Fed. R. Evid. 609(e) ( Evidence of the pendency of an appeal is admissible.).
Jackson declined to do so despite being reminded of the option by the district court.
I.
Jackson argues that, as a matter of constitutional right, he should have been allowed to submit a
statement of allocution to the jury.22 The district court denied Jackson's request to allocute, citing
United States v. Hall, 152 F.3d 381, 396 (5th Cir.1998) (We conclude that a criminal defendant in a
capital case does not possess a constitutional right to make an unsworn statement of remorse before
the jury that is not subject to cross-examination.), abrogated on other grounds by United States v.
Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000).
Jackson's brief does not even mention Hall, let alone attempt to distinguish it. This panel may not
overrule the decision of a prior panel. Teague v. City of Flower Mound, 179 F.3d 377, 383 (5th
Cir.1999). Accordingly, we follow Hall and uphold the district court's order.
J.
81
Jackson contends that the district court violated his Eighth Amendment rights when it failed to
instruct the jury at sentencing that if it had residual doubts about his guilt, it should not sentence
him to death. Binding Supreme Court precedent, however, forecloses this argument.
In Franklin v. Lynaugh, 487 U.S. 164, 174, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), Justice White,
writing for four Justices, first noted that [t]his Court's prior decisions, as we understand them, fail to
recognize a constitutional right to have [residual] doubts considered as a mitigating factor. 23 Even if
the Eighth Amendment guaranteed such a right, mere denial of a jury instruction did not impair the
right, because the trial court placed no limitation whatsoever on [defendant]'s opportunity to press
the residual doubts' question with the sentencing jury. Id. The Court also rejected the argument
that jurors needed to be told they could consider residual doubt. Accordingly, even if petitioner had
some constitutional right to seek jury consideration of residual doubts' about his guilt during his
sentencing hearing-a questionable proposition-the rejection of petitioner's proffered jury instructions
did not impair this right. Id. at 175, 108 S.Ct. 2320 (emphasis added). Justice O'Connor, for
herself and Justice Blackmun, went further and wrote that the Eighth Amendment does not require
[consideration of residual doubt by the sentencing body]. Id. at 187, 108 S.Ct. 2320.
The Fifth Circuit has also addressed the issue. Although there is a difference between rules relating
to what mitigating evidence the jury may consider and rules relating to instructing the jury how to
consider such evidence, a criminal defendant is not constitutionally entitled to instruct the jury to
consider residual doubt Smith v. Black, 904 F.2d 950, 968-69 (5th Cir.1990), vacated on other
grounds, 503 U.S. 930, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992).
We find no error in the denial of Jackson's request for a jury instruction on residual doubt. First,
neither the Supreme Court nor the Fifth Circuit has held that a defendant is entitled to such an
instruction.24 Second, even if we assume some right to consideration of residual doubt, the trial
court placed no limitation whatsoever on [Jackson]'s opportunity to press the residual doubts'
question with the sentencing jury. Jackson was able to argue self-defense at sentencing, and the
court explicitly instructed the jury that it could consider [a]ny other[ factors] you may find from the
evidence and anything else about the commission of the crime that would mitigate against
imposition of the death penalty. Following Franklin and Smith, we therefore conclude that any
right to consideration of residual doubt was not impaired.
K.
As part of rendering its sentencing verdict, the jury completed a special verdict form that included an
extensive sixty-item list of potential mitigating factors. Only one of those factors was found by all
twelve jurors,25 and fifty of them received zero support.
Jackson argues that the verdict is inconsistent with the evidence presented at trial. He claims that
in one case, the verdict contradicted an explicit government stipulation. Elsewhere, he claims that
the jury failed to find factors that had been demonstrated at trial beyond all doubt. He concludes
that [n]o rational juror could have viewed the evidence and then answered the questions regarding
the mitigating factors in such a manner without violating his oath as a juror.

As an initial matter, we have expressed doubt that a special verdict on mitigating factors is
reviewable.26Assuming, arguendo, that we possess the authority to review the jurors' special
findings regarding mitigating factors, we must accept the jurors' factual determinations unless no
reasonable juror could have arrived at the conclusion reached by the juror in question. Hall, 152
F.3d at 413. Further, verdict inconsistencies are generally tolerated. See Agofsky, 458 F.3d at
375.27
Jackson's strongest claim that the verdict is inconsistent involves Gulley. The government stipulated
that Gulley did not receive the death penalty, but on the special verdict form, only one juror found
that to be a proven mitigating factor. Jackson argues that in making that finding, [e]leven of the
twelve jurors found an uncontroverted, stipulated, written in stone fact, not to be a fact.
Jackson's argument overstates his case. The special verdict form asked whether the jury found that
[a]n equally culpable defendant, Arzell Gulley, did not receive a sentence of death as a result of the
offense (emphasis added). The government stipulated only that Gulley did not receive a sentence of
death; the jury, meanwhile, could have rationally concluded that he was not equally culpable.
Jackson testified that Gulley didn't help me kill the man and in fact yelled [l]et's get out of here
after the first stab. Thus, the jury's finding is neither inconsistent with the government's stipulation
nor irrational.
The other findings that Jackson cites as inconsistent all relate to factors that the government did not
stipulate to be true, e.g., Jackson's head injury as a baby, low I.Q. score, possible retardation, 28 bad
home life, good behavior in prison, and diligence in teaching himself to read. Jackson argues that
the evidence overwhelmingly established those factors without controversion by the government.
This mitigation evidence, however, could rationally be called into question. Much of it was provided
by Jackson's childhood and current girlfriend, whom the jury was free to disbelieve, 29 and the
government used cross-examination to cast doubt on the reliability of Jackson's expert witnesses.
Likewise, despite Jackson's claims to good behavior and educational achievement, the jury, upon
learning that he ran a gambling operation in prison, reasonably could have concluded that his
rehabilitation was not going well.
Further, and more fundamentally, the jury was not required to find that a factor was mitigating, even
if it believed the factor's factual predicate to be true. All the law requires is that jurors be aware that
they can consider a factor to be mitigating. See Bernard, 299 F.3d at 485-86. For example, no
juror found that Jackson experienced persistent falling when trying to walk until he was 5 years old
and this factor is mitigating. In reaching that conclusion, the jurors could have believed Jackson
experienced problems walking but that the factor did not weigh against a sentence of death.
82
The jury did not merely rubber-stamp the prosecution's request for a death sentence. Four jurors
found that Jackson's father was abusive and that the abuse was mitigating. Every juror found it
mitigating that Jackson had no positive role model. Six found it mitigating that he was in prison for
a non-violent offense. Ten found it mitigating that he was not actively looking to kill someone.
Nine found it mitigating that he was the first aggressor. Eight found it mitigating that there are
prisoners with worse records who are not sentenced to death.
In short, the jurors appear to have properly and conscientiously carried out their duties. We cannot
conclude that their findings are beyond the bounds of reason or are inconsistent with the
government's stipulations.
L.
Jackson argues that the court erred in denying him a new trial or at least a hearing regarding his new
trial motion. He contends the jury erroneously believed that even if he were sentenced to life
without parole, it was still possible he could be released before the end of his life-despite the district
court's explicit instruction to the contrary. To support this contention, Jackson offered an affidavit
of an investigator who contacted jurors after the trial. The affidavit stated that a number of them
believed that Jackson could be released early, as had happened with a cooperating witness who
testified at trial.
A juror's affidavit may not be received on a matter about which the juror would be precluded from
testifying. A juror may testify regarding only three aspects of the events surrounding deliberations:
(1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2)
whether any outside influence was improperly brought to bear upon any juror, or (3) whether there
was a mistake in entering the verdict onto the verdict form. Fed. R. Evid. 606(b) (emphasis added).
In United States v. Jones, 132 F.3d 232, 245-46 (5th Cir.1998), a death penalty case like Jackson's, we
unambiguously stated that [r]ule 606(b) has consistently been used to bar testimony when the jury
misunderstood instructions and that outside influence refers to a factor originating outside of
normal courtroom proceedings which influences jury deliberations, such as a statement made by a
bailiff to the jury or a threat against a juror (emphasis added). Jones is on point, 30 and the proffered
affidavit should not be received. The affidavit does not provide evidence that extraneous prejudicial
information was improperly brought to the jury's attention or that any outside influence was
improperly brought to bear upon any juror. At most, it indicates that some jurors apparently
misunderstood what Jackson concedes was the court's explicit instruction. Any misunderstanding
was seemingly caused by the testimony of a government witness, which came as a valid part of his
direct examination during normal courtroom proceedings.
Because the investigator's affidavit was inadmissible, and Jackson presented no other evidence of
jury confusion, the district court was well within its discretion to deny a new trial. Moreover, given
that Jackson had not proffered any admissible evidence, the court properly denied the motion to hold
an evidentiary hearing.31

For the reasons stated, we AFFIRM the conviction and sentence.
FOOTNOTES
1. A shank is a homemade knife.
2. Jackson gives no citations to this information in the trial record. See Fed. R.App. P. 28(a)(9)
(A) (noting need to include contentions and the reason for them, with citations to the authorities and
parts of the record on which the appellant relies).
3. Jackson's mother presumably would have testified regarding Jackson's background and
upbringing, but Jackson presented other witnesses on that same topic, including a childhood friend
who had personally witnessed much of the abuse Jackson suffered. And although Jackson suggests
that his mother could have effectively pleaded for her son's life, the district court properly ruled that
general pleas for mercy would not be permitted. See Kelly v. Lynaugh, 862 F.2d 1126, 1133 n. 12 (5th
Cir.1988) (noting that stepfather's request that jury spare defendant's life is not mitigating evidence
required to be admitted under Eighth Amendment); see also Jackson v. Dretke, 450 F.3d 614, 617-18
(5th Cir.2006) (holding that state court's decision to exclude execution impact testimony by
defendant's family and friends did not contradict Supreme Court governing law and was not
unreasonable application of Supreme Court precedent).
4. He was held on unrelated matters, including an arrest for bank robbery.
5. See, e.g., United States v. Maizumi, 526 F.2d 848, 851 (5th Cir.1976) (finding that a delay of 10
1/212 months was not presumptively prejudicial).
6. Jackson appears to raise a third argument that the due process clause is violated where
aggravating factors are treated differently from elements of a crime. He neither explains that
contention nor cites any law but instead attempts to incorporate arguments made to the district court
by reference as if fully set out for this Court's consideration.Argument by reference is not permitted;
an appellant who requests the adoption of previously filed legal and factual arguments abandon[s
those] arguments by failing to argue them in the body of his brief. Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir.1993) (citing Fed. R.App. P. 28(a)(4), now Fed. R.App. P. 28(a)(9), which requires a
brief to contain appellant's contentions and the reasons for them). This argument-if it even is a
separate argument-is waived.
7. See, e.g., United States v. Jones, 132 F.3d 232, 242 (5th Cir.1998) (We are bound by Supreme
Court precedent which forecloses any argument that the death penalty violates the Constitution under
all circumstances.).
83
8. The government disputes whether this issue was raised in the district court. If it was raised
and preserved, we would review the legal question de novo; otherwise, we would review only for plain
error. United States v. Vontsteen, 950 F.2d 1086, 1089-90 (5th Cir.1992) (en banc). We need not
decide whether the issue was adequately raised, however, because we affirm even under de novo
review.
9. See United States v. Bernard, 299 F.3d 467, 474-75 (5th Cir.2002) (affirming dismissal of
potential juror who indicated on her questionnaire that she did not feel [she] ha[d] the right to judge
whether a person lives or dies and then wavered during questioning).
10. As Jackson's brief acknowledges, [t]he government made no effort to connect these other
unrelated incidents to either Jackson nor [sic] the deceased.
11. Rule 701 provides,If the witness is not testifying as an expert, the witness' testimony in the form
of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on
the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue, and (c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
12. Rule 702 provides,If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness has applied the principles and methods
reliably to the facts of the case.
13. As the advisory committee notes to rule 405 explain,Of the three methods of proving character
provided by [rule 405], evidence of specific instances of conduct is the most convincing. At the same
time it possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume
time. Consequently the rule confines the use of evidence of this kind to cases in which character is,
in the strict sense, in issue and hence deserving of a searching inquiry. When character is used
circumstantially and hence occupies a lesser status in the case, proof may be only by reputation and
opinion. These latter methods are also available when character is in issue.Fed.R.Evid. 405 advisory
committee's note.
14. The majority of the records describe simple acts of mischief (e.g., falsely triggering fire
sprinklers) or insubordination (e.g., refusing to follow instructions from prison officials).
15. The issue arose when one of Jackson's lawyers, Mr. Barlow, objected during the cross-
examination of a witness that Jackson's other lawyer, Mr. Morrow, had directly examined. After
questioning was complete and the jury had been excused, the judge ordered, I don't want one of you
objecting and then the other one. That was Mr. Morrow's witness. Mr. Barlow, don't object if he's
the person responsible for the witness. Jackson's counsel responded by saying only Yes, your
honor.

16. The government cites, for example, United States v. Pace, 10 F.3d 1106, 1114 (5th Cir.1993)
(stating that the court of appeals must determine whether the trial court imposed unreasonable
limits on cross-examination such that a reasonable jury might have received a significantly different
impression of a witness' credibility had defense counsel pursued his proposed line of cross-
examination) (citation and internal quotations omitted).
17. Because we affirm the decision to exclude the evidence as unfairly prejudicial under rule 403,
we need not address its ruling that the conviction was too old to be admissible under rule 609(b).
18. He was convicted of both premeditated, first degree murder and premeditated, first degree
murder by a federal prisoner serving a term of life imprisonment.
19. The existence of the convictions did not automatically make them admissible. Rule 609(a)(1)
states that convictions for crimes that do not involve acts of dishonesty are admissible subject to rule
403, which allows the district court to exclude evidence where the probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury
Fed.R.Evid. 609(a)(1). Because Jackson did not raise a rule 403 challenge at trial or on appeal, we
do not review the district court's decision on the matter.
20. In Agofsky's case, the Supreme Court was acting as an appellate court. See U.S. Const. art.
III, 2. Agofsky's certiorari petition is therefore included in rule 609(e)'s reference to pendency of
an appeal.
21. Jackson argues that the obvious purpose of rule 609(e) is to respect the presumption of
correctness which ought to attend judicial proceedings and that that purpose is not served by
respecting a conviction that a court of appeals has reversed while certiorari is pending. That
argument is unavailing under the peculiar circumstances of this case.Agofsky's conviction was not
reversed on the merits-indeed, the district court was ordered to re-enter the conviction on one count.
Further, rule 609(e) is pellucid, and we must follow it. It is well established that when the statute's
language is plain, the sole function of the courts-at least where the disposition required by the text is
not absurd-is to enforce it according to its terms. Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct.
1023, 157 L.Ed.2d 1024 (2004) (internal quotations and citations omitted); see also, e.g., Garcia v.
Gloor, 618 F.2d 264, 268 (5th Cir.1980) ([W]e start with [the statute's] plain words without pausing
to consider whether a statute differently framed would yield results more consonant with fairness and
reason.).
22. A statement of allocution is [a]n unsworn statement from a convicted defendant to the
sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct,
apologize for the crime, or say anything else in an effort to lessen the impending sentence. Black's
Law Dictionary 83 (8th ed.2004).
23. The Court recently reiterated this aspect of Franklin in Oregon v. Guzek, 546 U.S. 517, 525, 126
S.Ct. 1226, 163 L.Ed.2d 1112 (2006). The Guzek Court, noting that Franklin did not resolve whether
the Eighth Amendment affords capital defendants such a right [to consideration of residual doubt],
84
concluded that we once again face a situation where we need not resolve whether such a right
exists Id.
24. The lengthy list of cases that Jackson cites suggest, at most, that a defendant is permitted to
argue residual doubt. None stands for the proposition that the Eighth Amendment compels a jury
instruction on residual doubt.
25. Factor #15: [Jackson] had no positive role model in his life as a child and this factor is
mitigating.
26. See United States v. Hall, 152 F.3d 381, 413 (5th Cir.1998) ([W]e question whether the jurors'
failure to find a particular mitigating factor constitutes a proper subject of review for this court.),
abrogated on other grounds by United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145
L.Ed.2d 792 (2000); see also United States v. Bernard, 299 F.3d 467, 485 (5th Cir.2002) (This court
has previously expressed doubt regarding its authority to review jury findings relating to mitigating
factors. [United States v.] Hall questions whether a jury's failure to find the existence of a mitigating
factor is subject to appellate review, since the FDPA does not require the jury to make special findings
of the existence of, or degree of jury unanimity upon, mitigating factors.) (internal citation omitted).
27. As explained in United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984),
[W]ith few exceptions [involving crooked members of the venire panel or improper outside influences
on the jury during trial], once the jury has heard the evidence and the case has been submitted, the
litigants must accept the jury's collective judgment. Courts have always resisted inquiring into a
jury's thought processes; through this deference the jury brings to the criminal process, in addition to
the collective judgment of the community, an element of needed finality.(Internal citations omitted.)
The case Jackson cites repeatedly as contrary persuasive authority, Getsy v. Mitchell, 456 F.3d 575
(6th Cir.2006), was vacated by the en banc court, Getsy v. Mitchell, 495 F.3d 295, 300, 309 (6th
Cir.2007) (en banc) (noting that [p]erhaps some day the Supreme Court will hold that inconsistent
verdicts are unconstitutional[, b]ut this is not the law of the land today ), cert. denied, --- U.S. ----,
128 S.Ct. 1475, 170 L.Ed.2d 299 (2008).
28. Jackson alludes to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)
(barring executions of the mentally retarded), but he does not make an Atkins claim.
29. See, e.g., Hall, 152 F.3d at 413 (In support of his claim that he experienced an upbringing that
militated against the imposition of the death penalty, Hall offered only the testimony of two of his
family members, which the jury was free to believe or disbelieve.) (emphasis added).
30. To avoid the impact of Jones, Jackson mischaracterizes the order denying a new trial as a
misstatement of the law. He seizes on the court's statement that because the jury charge did not
directly address or even allude to the possibility of future sentence reductions, the jury cannot be
accused of explicitly disregarding the court's instructions He argues that the court incorrectly
focused on the correctness of its instructions rather than the jury's violation of them.Jackson
overlooks the final sentences in the paragraph, in which the court properly explained it was
 85
concerned only with influences external to the trial: Moreover, so long as any misunderstanding clear insufficiency of the nonjuror evidence offered by petitioners, that an additional post-verdict
regarding the jury charge was not the result of an improper outside source or extraneous influence, evidentiary hearing was unnecessary.).
the district court need not grant a new trial (citing Jones, 132 F.3d at 245-46). The court then
explained that Jackson had failed to offer any evidence that showed that the jury's erroneous JERRY E. SMITH, Circuit Judge:
understanding of what life without parole meant had originated outside of the trial.

31. See, e.g., Tanner v. United States, 483 U.S. 107, 127, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987)
([T]he District Court did not err in deciding, based on the inadmissibility of juror testimony and the