[G.R. No. 113791. February 22, 1996] hesitation. We defer to such observation and explanation.
Indeed, there are
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. ROLANDO MENDOZA, accused-appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; TESTIMONIES; QUALIFICATION OF
WITNESSES. - Section 20, Rule 130 of the Rules of Court provides: Except
as provided in the next succeeding section, all persons who can perceive,
and perceiving, can make known their perception to others, may be
witnesses x x x. With respect to the disqualification of children to be
witnesses, Section 2 1(b) of the abovementioned rule reads: The following
persons cannot be witnesses: x x x (b) Children whose mental maturity is
such as to render them incapable of perceiving the facts respecting which
they are examined and of relating them truthfully. It is thus clear that any
child, regardless of age, can be a competent witness if he can perceive, and
perceiving, can make known his perception to others and of relating truthfully
facts respecting which he is examined.
2. ID.; ID.; ID.; ID.; DETERMINATION THEREOF; BEST RESOLVED BY THE
TRIAL COURT. - The requirements then of a childs competency as a witness
are the: (a) capacity of observation, (b) capacity of recollection, and (c)
capacity of communication. And in ascertaining whether a child is of sufficient
intelligence according to the foregoing requirements, it is settled that the trial
court is called upon to make such determination. As held in United States vs.
Buncad, (25 Phil. 530, 536 [1913]) quoting from Wheeler vs. United
States (159 U.S. 523 [1895]), and reiterated in People vs. Raptus (198
SCRA 425, 433 [1991]) and People vs. Libungan (220 SCRA 315, 323
[1993]): The decision of this question rests primarily with the trial judge, who
sees the proposed witness, notices his manner, his apparent possession or
lack of intelligence, and may resort to any examination which will tend to
disclose his capacity and intelligence as well as his understanding of the
obligations of an oath. As many of these matters cannot be photographed
into the record, the decision of the trial judge will not be disturbed on review
unless from that which is preserved it is clear that it was erroneous. The trial
court has adjudged Paul Michael competent to testify. We agree. A close and
careful examination of the testimony of Paul Michael shows that at the time
he testified, he could be deemed a child of above average intelligence, i.e.,
capable of giving responsive ansWers to the questions asked of him by the
trial judge, as well as recalling events and relating them to such recollections.
The initial hesitancy of Paul Michael to name his father as the author of the
crime was sufficiently explained by the trial court as follows: The first time
Paul Michael was presented as [a] witness, the only thing substantial he
testified on was that his father boxed his mother in the mouth and tied her.
On further questions, he refused to answer anymore. The Court noticed the
reason for such adamant attitude of the witness. His father, the accused, was
directly in his sight and whenever their eyes met, the child could speak no
more. The second time the witness was presented, the private prosecutor
covered the child from the accused. The Court likewise directed the accused
to sit farther away thereby placing the accused out of the direct sight of the
witness. As a result, the child was able to testify freely and extensively without
certain matters that aid the trial court in assessing the credibility of a witness
which are not available to the appellate court, such as emphasis, gesture,
and the inflection of the voice of the witness. The trial court had the distinct
opportunity to make such observations and to avail of such aids while Paul
Michael was on the witness stand, thusly, we find no reason to disregard the
assessment made by the trial court.
3. CRIMINAL LAW; ALTERNATIVE CIRCUMSTANCES; INTOXICATION;
MITIGATING, ABSENT SUFFICIENT PROOF THAT IT WAS HABITUAL
NOR SUBSEQUENT TO THE PLAN TO COMMIT THE FELONY; CASE AT
BAR. - The trial court correctly appreciated in favor of the accused-appellant
the mitigating circumstance of intoxication. The accused-appellant committed
the felony in question in a state of intoxication and there was no sufficient
proof that it was habitual nor subsequent to the plan to commit the felony.
APPEARANCES OF COUNSEL
The Solicitor General for plaintiff-appellee.
Miguel P. Pineda for accused-appellant.
DECISION
DAVIDE, JR., J.:
Maria Gina Avila Mendoza, a mother of three young children, was put to fire
in her home in Balasing, Sta. Maria, Bulacan, on 22 November 1989. She suffered
extensive second to fourth degree burns and died of hypostatic pneumonia and
infected fourth degree burns on 30 November 1989. Her husband, accused-
appellant Rolando Mendoza, was charged with the crime of parricide in an
information filed on 29 June 1990 with Branch 8 of the Regional Trial Court (RTC)
of Malolos, Bulacan. The accusatory portion thereof read:
That on or about the 22nd day of November, 1989, in the municipality of Sta.
Maria, province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused Rolando Mendoza, armed with a kerosene gas
[sic] and with intent to kill his wife Maria Gina Mendoza, with whom he was united
in lawful wedlock, did then and there wilfully, unlawfully and feloniously attack,
assault and burn with the kerosene gas he was then provided, the said Maria Gina
Mendoza which directly caused her death.
Contrary to law.1
Trial on the merits was had after accused-appellant entered a plea of not
guilty at his arraignment.2
The prosecution presented as its witnesses Paul Michael Mendoza, a five-
year old child of the victim and the accused-appellant; Jhun Avila, Teofisto Avila,
and Rodora Avila, the victims brother, father, and sister, respectively; and Dr. Nieto
M. Salvador, the Medico-Legal Officer of the National Bureau of Investigation
(NBI). On its part, the defense presented the accused-appellant himself and
Erlinda Porciuncula, a childhood friend.
 The testimonies of the witnesses for the prosecution established the following
facts:
The accused-appellant and the victim were married on 30 January 1985 at
the Sto. Cristo Parish Church in Bocaue, Bulacan and lived in Balasing, Sta.
Maria, Bulacan.3 Their union bore three children: Paul Michael, the eldest, who
was born on 7 June 1985,4 John-John, and Paula, the youngest.5
In the evening of 22 November 1989, the accused-appellant and his wife
were in their residence with their children. At around 4:00 a.m. the next morning,
relatives of the accused-appellant went to the house of Jhun Avila (the victims
brother) in Wawa, Balagtas, Bulacan, and informed him that his sister Gina got
burned. Two hours later, Jhun and his father Teofisto Avila went to the house of
Gina and her husband, only to discover that the latter were not there. They found
the things inside the house in disarray; saw a Coke bottle which smelled of
kerosene, hair strands and burned human flesh in the comfort room; and the
burned clothes of Gina outside the house. They also noticed that the branches and
leaves of the atienza tree in front of the house were likewise somewhat burned.
They proceeded to a neighbors house where Paul Michael, John-John, and Paula
were temporarily sheltered. Paul Michael was sitting in a corner and
somewhat tulala, while Paula was sleeping. Jhun then brought the children to his
house.6
As Erlinda Porciuncula informed the Avila family that Gina had been brought
to the Manila Sanitarium Hospital in Pasay City, Teofisto, Jhun, and Rodora
proceeded there.7 According to Jhun, however, they were not able to talk to Gina
that day as she was inside the operating room. It was only after two days that Jhun
was able to see Gina, who lay naked with all the hospital gadget[s] in the mouth
and at the head and she was completely bald and her body was burned.8 Jhun
likewise testified that Gina was unable to talk to her sister Rodora nor her father
Teofisto.9
Gina died on 30 November 1989. Dr. Noel Minay, Medico-Legal Officer of the
NBI,, conducted the autopsy and determined the cause of death to be hypostatic
pneumonia; infected 4th degree burns;10 and in his Autopsy Report,11 he entered
the following post-mortem findings:
Burns, extensive, second to fourth degree, with skin grafts, excepting the back of the neck
and head, pelvic area, buttocks, whole of the back, posterior aspect of the right leg, and
lower anterior third of the leg and foot, left side.
Lungs, with foci of consoliditions at the bases; transections shows (sic) yellowish mucoid
material in the lower part of the tracheo-bronchial tree.
Brain and other visceral organs, marked congestion.
Stomach contains small amount of yellowish fluid material.
This report also indicated that the cause of death was HYPOSTATIC
PNEUMONIA; INFECTED FOURTH DEGREE BURNS.
Dr. Nieto M. Salvador testified on the certification and autopsy report, in view
of Dr. Minays resignation from the NBI sometime after he examined the cadaver
of the victim.12
In the evening of 30 November 1989, Jhun told Paul Michael that his mother
Gina had died. Paul Michael then narrated to him what actually happened to his
mother that fateful evening. Because of these revelations and the findings of the
doctor, Jhun reported the matter to the police authorities in Sta. Maria, Bulacan.13
Jhun Avila had gone five times to the residence of Gina and the accused-
appellant from 23 November 1989 to 30 November 1989, yet he did not see the
accused-appellant; in fact, the latter never showed up during the wake nor burial
of Gina. It was only when the accused-appellant was arrested in the house of a
woman in Longos, Balagtas, Bulacan,14 that Jhun saw him for the first time after
the incident.
The medical expenses incurred for the hospitalization of Gina amounted to
P88,750.00, of which, her parents were able to pay only P18,000.00. For the
balance, Teofisto had to sign a promissory note to be paid on installments. 15
As to how Gina was burned, only five-year old Paul Michael could testify
thereon.
In his testimony during the presentation of the evidence in chief on 18
February 1991, Paul Michael declared that one evening inside their house, his
father boxed his mother on her mouth and then tied her up. However, the witness
did not answer succeeding questions which sought to elicit what happened
thereafter, although he kept on looking at his father throughout this period. He later
revealed that he saw matches and kerosene in their house. He likewise declared
that his mother was now in heaven because she was dead. 16 During his rebuttal
testimony on 12 October 1992, Paul Michael categorically declared that it was his
father who burned his mother. The accused-appellant, who was drunk at that time,
first tied the victims hands behind her back, then poured kerosene on the front of
her body and set her aflame. Paul Michael further declared that his father tied-up
his mother because they quarreled when his mother wanted him (Paul Michael) to
go with the accused-appellant to the street corner, but his father refused. Finally,
many times before, his parents quarreled because his father was always
drunk.17 Pertinent portions of Paul Michaels testimony on rebuttal are as follows:
Q When your father Rolando Mendoza testified on direct examination,
he stated that when he returned to your house in Balasing, Sta.
Maria, Bulacan on November 22, 1989, he saw your mother was
jumping up and down while her dress was already burning. What
can you say about that?
A It is not true, Sir.
Q Why do you say that it is not true?
A Because it was he who burned my mother, Sir.
COURT:
How did he burn your mother?
A At first he tied up my mother, then he poured kerosine [sic] upon my
mother, Sir.
Q What was tied, the hands or the feet of your mother? -
A The hands, Your Honor.
Q How was it tied?
A At the back, Your Honor.
Q Do you know the reason why she was tied up?
A Yes Your Honor. They were quarreling because my mother wanted
me to go with my father to [sic] street corner.
Q Then what happened next?
A Because of that they quarreled already.
Q What you mean is that your mother was objecting you to go [sic] with
your father?
A My mother wanted me to go with my father but my father refused me
[sic] to go with him, Your Hon or.
Q What would you do at the street corner with your father?
A She just wanted me to accompany my father.
Q And because of that quarrel, your father tied the hands of your
mother?
A Yes, Your Honor.
Q Then he put kerosine [sic] at the front body [sic] of your mother?
A Yes, Your Honor.
Q And after putting kerosine [sic], what did he do next?
A He lighted it, Your Honor.
Q Was that the first time that you[r] mother and your father quarreled?
A Many times, Your Honor.
Q What was the cause of their quarrel?
A Because my father was always drunk, Your Honor.
Q At the time when your mother was tied and then kerosine [sic] was
poured upon her dress, was your father drunk?
A Yes, Your Honor.
Q Your father always went out and when he returned he was always
drunk?
A Yes, Your Honor.18
The defense, of course, had a different story to tell.
Erlinda Porciuncula, who grew up with the accused-appellant and was like a
sister to him, testified that at around 8:30 p.m. of 22 November 1989, Rolando
Mendoza came to her house asking for help because his wife burned herself.
Together with the accused-appellant, she borrowed the owner-type jeep of her
neighbor so they could bring his wife to the hospital. They proceeded to St. Marys
Hospital, but the attending physician advised them to bring the victim to the
Philippine General Hospital (PGH). At the hospital, the staff could not admit the
victim due to the unavailability of rooms. On the way to the PGH, the victim, who
was lying in the front seat of the jeep, told Porciuncula that she was fed up with
her life and was entrusting her children to her. They then went to
the Manila Sanitarium Hospital where the victim was immediately given first aid
and transferred to the isolated Room No. 328. The accused-appellant requested
the witness to buy medicine and inform the relatives of the victim of what had
happened, which she acceded to. She was able to visit the victim three more times
before the victim died on 30 November 1989, and on two of these occasions, she
saw the accused-appellant at the hospital.19
Accused-appellant Rolando Mendoza testified that on 22 November 1989,
between 5:00 to 6:00 p.m., three persons who wanted to befriend him visited him
in his house. These three persons, of whom the accused-appellant could only
name one, brought a bottle of liquor and had a drinking session with him, which
lasted about an hour or two. As these three persons were leaving, the accused-
appellant offered to accompany them to the road. After doing so, he returned
home, whereupon he saw his wife jumping up and down and removing her burning
clothes. He saw a pail of water which he then used to douse out the flames. At this
time, his wife cursed him and said: Putang-ina mo, sawang-sawa na ako sa buhay
na ito, and Huwag mo akong pakialaman.20 The accused-appellant did not mind
her, merely proceeded to remove her dress and cried for help. The neighbors came
over and he entrusted the children to them. Several others arrived and he asked
one of them who owned a vehicle to help him bring his wife to the hospital. They
were able to bring her to St. Marys Hospital, but since the hospital did not have a
burns specialist, they were advised to bring the victim to a hospital in Manila. The
driver of the jeep, however, refused to bring them to Manila as he had neither a
drivers license nor gas. The accused-appellant was instead brought to Bocaue,
Bulacan, and there he was able to procure another vehicle and borrow some
money. Eventually, his wife was brought to the Manila Sanitarium Hospital after
the PGH refused to admit the victim. He stayed with his wife from the time she was
admitted up to the time she died, and even bought the needed medicines. He did
not attend her wake nor burial because of the threats his brother-in-law made.
When asked if he knew why his wife burned herself, he surmised that she
was aburido21from all their financial difficulties.22
 In giving full credence to the testimony of eyewitness Paul Michael, 23 the trial
court observed that:
As provided by Section 20, Rule 130 of the Rules of Court, a person who can perceive,
and perceiving, can make known his perception to others, may be a witness. A four-year
old boy can already speak clearly, can understand things happening around him, and
ready to study, to read and to write. For families who can afford, a four-year old child is
already sent to the nursery to begin his/her studies. An intelligent boy is undoubtedly the
best observer to be found. He is little influenced by the suggestion of others and describes
objects and occurrences as he has really seen them (Pp. vs. Bustos, 45 Phil. 9). Paul
Michael was five months over four years when the incident happened. He could perceive
things happening around him. This was the reason why when his grandfather and an
uncle found him in the house of a neighbor, he was in a state of shock, or at least
dumbfounded (tulala). Because he knew the implication of what had happened to his
mother. He knew that the burning of his mother might cause her death. If, indeed, he
could not yet perceive things, such happening would pass unnoticed and without impact
on him. Unless a childs testimony is punctured with serious inconsistencies as to lead one
to believe that he was coached, if he can perceive and make known his perception, he is
considered a competent witness (Pp. vs. Cidro, et al., 56 O.G. 3547).
The first time Paul Michael was presented as [a] witness, the only thing substantial he
testified on was that his father boxed his mother in the mouth and tied her. On further
questions, he refused to answer anymore. The Court noticed the reason for such adamant
attitude of the witness. His father, the accused, was directly in his sight and whenever
their eyes met, the child could speak no more. The second time the witness was
presented, the private prosecutor covered the child from the accused. The Court likewise
directed the accused to sit farther away thereby placing the accused out of the direct sight
of the witness. As a result, the child was able to testify freely and extensively without
hesitation.24
The trial court rejected the version of the accused-appellant, stating that:
Accused Rolando Mendoza made the defense that his wife Maria Gina Avila-Mendoza
burned herself. He, however, lost courage when Gina died. After Ginas death, he left the
hospital and never returned. He failed to visit her during the wake and even during the
burial. He was forced to come out only when arrested in a house of a woman in Longos,
Balagtas, Bulacan. Against such behaviour of his may be applied an interpretation of
flight in criminal law - that flight of the accused is an evidence of guilt and a guilty
conscience (U.S. vs. Alegado, 25 Phil. 310). Accused gave as a reason for his failure to
attend the wake and burial of his wife the threat of his brother-in-law to kill him if
anything would happen to Gina. It is said that the wicked flee even when no man
pursueth, whereas the righteous are as brave as a lion (U.S. vs. Sarikala, 37 Phil. 486). If,
indeed, accused was not guilty and nothing bothered his conscience, he would be brave as
a lion to meet his brother-in-law and face any and all consequences. In the same way that
if his conscience is clear, no threat, real or imaginary, in the whole world would
prevent him from staying by the side of his wife during her last moments on earth. The
fact that he Went into hiding, ashamed or fearful of the death of his wife is an indication
of his guilt. Further, the burning in the dress and body of Gina gives support to the claim
of the prosecution that she was burned. Paul Michael testified that the hands of his
mother were tied at the back. Jhun Avila testified that the branches and leaves of the
atienza tree were burned. They tend to show that Gina was tied at the back, placed near
the trunk of a tree and burned. Being tied, only the front portion of her body would
naturally be burned. The tendency of one who burns himself is to burn his whole body
and not stay stationary in one position so that both his front and back portions of his body
would be burned. In this case, however, only the front portion of Ginas dress and body
were burned as well as the branches and leaves of the atienza tree. That indicates that
while the victim was burning, she remained stationary in the place where she was tied. 25
Accordingly, the trial court convicted the accused-appellant as follows:
WHEREFORE, the Court finds the accused Rolando Mendoza guilty beyond reasonable
doubt of the crime of Parricide, defined and penalized under Article 246 of the Revised
Penal Code and hereby sentences him to a penalty of reclusion perpetua, and to
indemnify the parents of the victim Maria Gina Avila-Mendoza the sum of P88,000.00
representing the amount of hospital bills of the victim. No cost.
SO ORDERED.26
In this appeal, the accused-appellant prays for a reversal of the lower courts
decision, maintaining that if his evidence is considered in its entirety, it would show
his innocence. The accused-appellant underscores the fact that:
[A]fter November 22, 1989, the date of the incident, the child Paul Michael Mendoza had
been and remains under the custody and care of the parents and brothers and sisters of the
late Maria Gina Mendoza, who in full and unwavering anger, hatred, hostility,
resentment, revenge and spite against the accused, pursued the charge against the accused
and the ones who brought the child to the court to testify.27
He thus asks this Court to disregard the testimony of Paul Michael for being open
to serious question and consideration as it was often attended [by] unintelligible
answers and punctuated by contrary answers to previously given answers;
[b]esides the childs tender age, he suffer[s] from [a] lack or inadequacy of sense
of duty to tell the truth. He further claims that per the findings of the Medico-Legal
Officer, the victim did not die of burns but of hypostatic pneumonia. 28
After a thorough examination of the records and scrutiny of the evidence, we
find no merit in this appeal. The accused-appellants seven-page Brief miserably
fails to present convincing grounds why the challenged decision should be
overturned.
The lower court convicted the accused-appellant primarily on the basis of the
testimony of eyewitness Paul Michael Mendoza, and it is obvious that the pith of
the present appeal is the childs competency to testify and the credibility of his
testimony.
Section 20, Rule 130 of the Rules of Court provides:
Except as provided in the next succeeding section, all persons who can perceive, and
perceiving, can make known their perception to others, may be witnesses. xxx
With respect to the disqualification of children to be witnesses, Section 21(b)
of the abovementioned rule reads:
The following persons cannot be witnesses:
xxx xxx xxx
(b) Children whose mental maturity is such as to render them incapable of perceiving the
facts respecting which they are examined and of relating them truthfully.
It is thus clear that any child, regardless of age, can be a competent witness
if he can perceive, and perceiving, can make known his perception to others and
of relating truthfully facts respecting which he is examined. In the 1913 decision
in United States vs. Buncad,29 this Court stated:
Professor Wigmore, after referring to the common-law precedents upon this point, says:
But this much may be taken as settled, that no rule defines any particular age as
conclusive of incapacity; in each instance the capacity of the particular child is to be
investigated. (Wigmore on Evidence, vol. I, p. 638)30
While on the same subject, Underhill declares:
257. Children on the witness stand. - Under the common law, competency of a child
under the age of fourteen years to testify must be shown to the satisfaction of the court.
He is presumptively incompetent, but if he is shown to be competent it is immaterial how
young he may be when he testifies. He is competent if he possesses mental capacity and
memory sufficient to enable him to give a reasonable and intelligible account of the
transaction he has seen, if he understands and has a just appreciation of the difference
between right and wrong, and comprehends the character, meaning and obligation of an
oath. If the witness fulfills these requirements, it is immaterial as bearing upon his
competency that he is unable to define the oath or to define testimony. In the wise
discretion of the court, a child four, five, six and for such ages as seven, eight, nine, ten,
eleven, twelve, thirteen or fifteen years of age may be shown competent to testify. It may
not be said that there is any particular age at which as a matter of law all children are
competent or incompetent. x x x31
The requirements then of a childs competency as a witness are the: (a)
capacity of observation, (b) capacity of recollection, and (c) capacity of
communication.32 And in ascertaining whether a child is of sufficient intelligence
according to the foregoing requirements, it is settled that the trial court is called
upon to make such determination.33 As held in United States vs.
Buncad, quoting from Wheeler vs. United States,35 and reiterated in People vs.
34
Raptus36 and People vs. Libungan:37
The decision of this question rests primarily with the trial judge, who sees the proposed
witness, notices his manner, his apparent possession or lack of intelligence, and may
resort to any examination which will tend to disclose his capacity and intelligence as well
as his understanding of the obligations of an oath. As many of these matters cannot be
photographed into the record, the decision of the trial judge will not be disturbed on
review unless from that which is preserved it is clear that it was erroneous.38
The trial court has adjudged Paul Michael competent to testify. We agree. A
close and careful examination of the testimony of Paul Michael shows that at the
time he testified, he could be deemed a child of above average
intelligence, i.e., capable of giving responsive answers to the questions asked of
him by the trial judge, as well as recalling events and relating them to such
recollections. The initial hesitancy of Paul Michael to name his father as the author
of the crime was sufficiently explained by the trial court as follows:
The first time Paul Michael was presented as [a] witness, the only thing substantial he
testified on was that his father boxed his mother in the mouth and tied her. On further
questions, he refused to answer anymore. The Court noticed the reason for such adamant
attitude of the witness. His father, the accused, was directly in his sight and whenever
their eyes met, the child could speak no more. The second time the witness was
presented, the private prosecutor covered the child from the accused. The Court likewise
directed the accused to sit farther away thereby placing the accused out of the direct sight
of the witness. As a result, the child was able to testify freely and extensively without
hesitation.39
We defer to such observation and explanation. Indeed, there are certain
matters that aid the trial court in assessing the credibility of a witness which are
not available to the appellate court, such as emphasis, gesture, and the inflection
of the voice of the witness. The trial court had the distinct opportunity to make such
observations and to avail of such aids while Paul Michael was on the witness
stand,40 thusly, we find no reason to disregard the assessment made by the trial
court.
The accused-appellants contention that Paul Michaels testimony could have
been influenced by the relatives of Gina, who were full of unwavering anger,
hatred, hostility, resentment, revenge, more so since the child had been in their
custody since after 22 November 1989, is unacceptable. The charge is nothing but
unmitigated speculation as not a shred of evidence was offered in support thereof.
Not even the rigorous cross-examination Paul Michael underwent dented the
probative force of his testimony; on the contrary, it merely added strength thereto
as it elicited nothing less than the boys adherence to truth.
We realize how extremely painful it was for Paul Michael to reveal that it was
his father who burned his mother. He knew that such a revelation could send his
father to jail and thus brand him a son of a killer or a convict. If he did, nevertheless,
it was to expose the truth and give justice to his mother who met an excruciatingly
painful death. Verily, from the mouths of children we get the truth. 41
Neither are we persuaded by the accused-appellants claim that the cause of
death of his wife was hypostatic pneumonia and not due to the burns she
sustained. Such a claim borders on misrepresentation, for as earlier shown, both The trial court correctly appreciated in favor of the accused-appellant the
the Autopsy Report (Exhibit H-1) and the Certificate of Post-Mortem Examination mitigating circumstance of intoxication. The accused-appellant committed the
(Exhibit H) indicated the cause of death to be hypostatic pneumonia; infected felony in question in a state of intoxication and there was no sufficient proof that it
fourth degree burns. Moreover, as testified to by Dr. Nieto Salvador, the proximate was habitual nor subsequent to the plan to commit the felony. 45 It failed, however,
cause of the hypostatic pneumonia was Ginas recumbent position due to the fourth to award civil indemnity to the children of the victim. Conformably with current case
degree burns she suffered. Thus: law, they should be awarded the sum of P50.000.00.
COURT: WHEREFORE, the instant appeal is hereby DISMISSED. Being in
accordance with the facts and the law, the challenged decision of Branch 8 of the
What could have caused hypostatic pneumonia? Regional Trial Court of Bulacan in Criminal Case No. 1414-M-90 is AFFIRMED,
A The victim was recumbent because of her intensive infections in front subject to the above modification on the additional award of P5 0,000.00, as civil
of her body and therefore she was always lying down which could indemnity, to the heirs of the victim, Gina Avila Mendoza.
have caused the hypostatic pneumonia. Costs against the accused-appellant.
Q What you mean [is] it [was] because of the fourth degree burns the SO ORDERED.
victim sustained in front thats why she was always lying down and
unable to change her position?
A Yes, Your Honor.
Q Do you mean that hypostatic pneumonia can be acquire[d] by merely
always lying down?
A Yes, Your Honor.
Q Is that the only cause?
A Thats why it is called hypostatic because hypostatic means that the
assumed position of the patient is recumbent and the recumbent
position of the patient would greatly affect the fluids in the lungs
as it cant flow down.
xxx xxx xxx
Q Would you say that hypostatic pneumonia may also be caused by
fourth degree burns?
A Yes, Sir.42
It goes without saying that an accused is liable for all the consequences of
his felonious act.43
Finally, the accused-appellant was never seen after the death of his wife -
neither during her wake nor at her burial. His whereabouts were unknown. He did
not even bother to visit his children or inform them where to find him in case they
needed him, knowing all too well that he was the only parent left to them. In short,
he was even afraid to see his children; he could not trust them. In a manner of
speaking, he was afraid of his own shadow. All his protestations of innocence are
thus belied by his flight as indicative of guilt on his part, or of his guilty mind. It has
been said that the wicked man flees though no man pursueth, but the righteous
are as bold as a lion.44 The explanation proffered for his flight is lame and feeble,
moreover, he offered no credible proof that indeed the family of his wife had
threatened him bodily harm.
 [G.R. No. 129667. July 31, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERIC BAID Y her narration of the incident into writing[5] and then gave her a physical
OMINTA, accused-appellant.
DECISION
MENDOZA, J.:
This is an appeal from the decision[1] of the Regional Trial Court, Branch 95,
Quezon City, finding accused-appellant Eric Baid y Ominta guilty of the crime of
rape against Nieva Garcia y Saban, a mental patient, and sentencing him to suffer
the penalty of reclusion perpetua and to pay the victim the amount of P50,000.00
as moral damages.
The information against accused-appellant, based on the complaint filed by
the offended woman and her mother, alleged -
That on or about the 22nd day of December 1996, in Quezon City, Philippines,
the said accused by means of force and intimidation, to wit: by then and there
[willfully], unlawfully and feloniously undressing one NIEVA GARCIA y SABAN, a
mental patient suffering [from] schizophrenia and put himself on top of her, and
thereafter have carnal knowledge with the undersigned complainant against her
will and without her consent.
CONTRARY TO LAW.[2]
When arraigned, accused-appellant entered a plea of not guilty, whereupon
trial of the case on the merits proceeded.
The prosecution presented three witnesses, namely, the complainant, Dr.
Herminigilda Salangad, the complainant's attending psychiatrist, and Dr.
Emmanuel Reyes, the medico-legal officer who examined the complainant.
Complainant is a 27-year old single woman, who was diagnosed as having
suffered from schizophrenia since 1988. In December 1996, she was confined at
the Holy Spirit Clinic in Cubao, Quezon City because of a relapse of her mental
condition.[3] On the other hand, accused-appellant was a nurse-aide of said clinic.
On December 22, 1996, at around 3 a.m., accused-appellant sneaked into
the patients' room. He woke the complainant up and offered her a cigarette, at the
same time touching her foot. Complainant took the cigarette. As she smoked it,
accused-appellant caressed her. Apparently, she was aroused, because she
afterward removed her pants. It turned out she was not wearing any
underwear. Accused-appellant also removed his pants and the two had sexual
intercourse. Afterwards, they transferred under the bed and continued their sexual
intercourse. Complainant said she felt accused-appellant had an orgasm. A female
patient who had been awakened tried to separate the two, and, as she failed to do
so, she went out to call the two nurses on duty. The nurses responded but, when
they arrived, accused-appellant had left, while complainant had already put on her
pants.[4]
Complainant was brought later during the day before Dr. Emmanuel Reyes
for medico-legal examination. She told him what happened. Dr. Reyes reduced
examination. His report stated:[6]
FINDINGS:
GENERAL AND EXTRAGENITAL:
Fairly developed, and coherent female subject. Breasts are hemispherical with
pale brown areola and nipples from which secretions could be
pressed. Abdomen is flabby and soft.
GENITAL:
There is moderate growth of pubic hair. Labia majora are full, convex and
coaptated with the pale brown labia minora presenting in between. On separating
the same disclosed an abraided posterior fourchette and an elastic, fleshy-type
hymen with deep healed lacerations at 3, 6 and 9 o'clock. External vaginal orifice
offers moderate resistance to the introduction of the examining finger and the
virgin-sized speculum. Vaginal canal is wide with flattened rugosities. Cervix is
normal in size, color and consistency.
CONCLUSION:
Subject is in non-virgin state physically.
There are no external signs of application of any form of violence.
REMARKS:
Vaginal and peri-urethral smears are negative for gram negative diplococci and
for spermatozoa.
Dr. Reyes said the fresh abrasion, located at 6 o'clock posterior of the
complainant's genitalia, could have been recently caused by a hard blunt object,
such as an erect penis during sexual intercourse, or by the insertion of a finger. Dr.
Reyes found that complainant was suffering from mental illness and that she had
lapses in the course of her interview.[7]
Accused-appellant testified in his behalf. He stated that he had been a nurse-
aide of the Holy Spirit Clinic since September 18, 1995. His job was to watch the
patients, especially when they become violent. He also fetched them from their
homes. He admitted that he knew the complainant but claimed he did not know the
reason for her confinement. He denied the allegations against him. He testified
that, on the date and time referred to by the complainant, he was asleep in the
nurse-aide quarters located about ten meters from the room where complainant
was staying. He admitted, however, that to go to the patients' room, he did not
have to pass by the nurses' station. He said he knew that, at the time in question,
there were two nurses on duty and ten patients in the room. He described the
patients' room as having an area of about eight by five square meters with wooden
beds arranged one foot apart from each other.[8]
Accused-appellant was questioned by the trial court. He testified that on
December 22, 1996, he was on duty from 4 p.m. to 12 midnight. He was a stay-in
nurse-aide of the clinic. He stated that the clinic consisted of two floors and five
rooms. The room where complainant and the other patients were staying and his
quarters were both on the ground floor of the building. He admitted that the clinic
was for the mentally ill and that, as a nurse-aide, he was supposed to know the
status of every patient and his job was to watch them and pacify them whenever
they become violent. He said he was very well acquainted with the behavior of the
patients considering the length of time he had been working in the clinic. He
claimed, however, that he did not specifically know from what ailment complainant
was suffering, but only that she was undergoing treatment because of mental
deficiency.[9]
On cross-examination, accused-appellant admitted that he knew it was
prohibited to give cigarettes to patients. He further admitted that, as a nurse-aide,
he could enter the patients' room anytime to check their condition and see to it that
the lights were turned off when they were not needed. He further stated that he
was not investigated by the police when he was invited to their headquarters. [10]
On June 20, 1997, the trial court rendered its decision, [11] the dispositive
portion of which reads:
WHEREFORE, judgment is hereby rendered finding the accused Eric Baid y
Ominta GUILTY beyond reasonable doubt of the crime of rape defined in and
penalized by Art. 335 of the Revised Penal Code, as amended by Rep. Act 7659,
and hereby sentences the said accused to suffer the penalty of reclusion
perpetua. The accused is further ordered to indemnify the victim Nieva Garcia y
Saban the amount of P50,000.00, as moral damages.
IT IS SO ORDERED.
Accused-appellant contends that the trial court erred in convicting him of
rape.[12]
Complainant is suffering from schizophrenia, a psychotic disorder of
unknown etiology, characterized by disturbance in thinking involving a distortion of
the usual logical relations between ideas, a separation between the intellect and
the emotions so that the patient's feelings and his or her manifestations seem
inappropriate to his or her life situation, and a reduced tolerance for the stress of
interpersonal relations so that the patient retreats from social intercourse into his
or her own fantasy life and commonly into delusions and hallucinations, and may,
when untreated or unsuccessfully treated, go on to marked deterioration or
regression in his or her behavior though often unaccompanied by further
intellectual loss.[13] The following are the symptoms of schizophrenia:
A. Characteristic symptoms: Two (or more) of the following, each
present for a significant portion of time during a 1-month period (or
less if successfully treated):
(1) delusions
(2) hallucinations
(3) disorganized speech (e.g., frequent derailment or incoherence)
(4) grossly disorganized or catatonic behavior
(5) negative symptoms, i.e., affective flattening, alogia, or avolition
Note: Only one criterion A symptom is required if delusions are bizarre
or hallucinations consist of a voice keeping up a running commentary
on the person's behavior or thoughts, or two or more voices conversing
with each other.
B. Social/occupational dysfunction: For a significant portion of the time
since the onset of the disturbance, one or more major areas of
functioning such as work, interpersonal relations, or self-care are
markedly below the level achieved prior to the onset (or when the
onset is in childhood or adolescence, failure to achieve expected
level of interpersonal, academic, or occupational achievement).
C. Duration: Continuous signs of the disturbance persist for at least 6
months. This 6-month period must include at least 1 month of
symptoms (or less if successfully treated) that meet criterion A (i.e.,
active-phase symptoms) and may include periods of prodromal or
residual symptoms. During these prodromal or residual periods, the
signs of the disturbance may be manifested by only negative
symptoms or two or more symptoms listed in criterion A present in
an attentuated form (e.g., odd beliefs, unusual perceptual
experiences).
D. Schizoaffective and mood disorder exclusion: Schizoaffective
disorder and mood disorder with features have been ruled out
because either (1) no major depressive, manic, or mixed episodes
have occurred concurrently with the active-phase symptoms; or (2)
if mood symptoms, their total duration has been brief relative to the
duration of the active and residual periods.
E. Substance/general medical condition exclusion: The disturbance is
not due to the direct physiological effects of a substance (e.g., a
drug of abuse, a medication) or a general medical condition.
F. Relationship to a pervasive developmental disorder: If there is a
history of autistic disorder or another pervasive developmental
disorder, the additional diagnosis of schizophrenia is made only if
prominent delusions or hallucinations are also present for at least a
month (or less if successfully treated).[14]
Schizophrenia is classified into five subtypes, namely, paranoid,
disorganized (hebephrenic), catatonic, undifferentiated, and residual.[15]
Dr. Herminigilda Salangad, the complainant's attending psychiatrist and
consultant at the Medical Center in Muntinlupa, the Perpetual Help Medical Center,
the Philippine National Police, and the Holy Spirit Clinic, was presented as an
expert witness. According to her, complainant was, at the time of the incident,
suffering from an undifferentiated type of schizophrenia, described as having the
characteristic symptoms of schizophrenia but does not fit the profile for paranoid,
disorganized, or catatonic schizophrenia. Dr. Salangad stated that complainant
seemed to shift from one type of schizophrenia to another. Complainant was
catatonic when she first treated her, a situation where the patient shows waxy
flexibility (e.g., when a limb is repositioned, that limb remains in that position for a
prolonged period of time as if the patient is made of wax), mutism or agitation, and
the patient mimics words and actions during examination. Later, complainant
became paranoid, i.e., suspicious, hostile and aggressive. She also manifested a
behavior where she mumbled and smiled to herself.[16]
 It is contended that as complainant is a schizophrenic, her testimony should Q And what happened next after you said yes, I liked cigarette?
not have been given credence by the trial court. It is argued that: (1) there were A After that, he caressed me.
serious inconsistencies between her sworn statement and her testimony in court; COURT: (to the witness)
(2) the prosecution failed to present witnesses to corroborate her testimony; (3) Q How did he caress you?
complainant failed to identify accused-appellant; (4) the results of the medico-legal A He went on top of me.
examination were negative for spermatozoa; (5) the healed lacerations showed COURT: (to the prosecutor)
that complainant had sexual intercourse seven days before the alleged incident; Go ahead.
and (6) the probability was that her allegations of rape were merely a product of PROSECUTION: (to the witness)
her fantasy.[17] Q How about the other man who entered earlier, what happened him?
We disagree. A The smaller person went in and out of our room twice, the first time that he
Notwithstanding her mental illness, complainant showed that she was went, he touched the other woman beside me on the foot but the woman
qualified to be a witness, i.e., she could perceive and was capable of making resisted and shouted. After that, the second time, the other man went
known her perceptions to others.[18]Her testimony indicates that she could inside the room, he touched the other woman but the woman shouted
understand questions particularly relating to the incident and could give responsive and that smaller one went outside of the room.
answers to them. Thus she testified: Q When Eric Baid placed himself on top of you, where was that other man?
A He was no longer there.
PROSECUTION: (to the witness) .
Q Miss Nieva Garcia, are you still confined at the Holy Spirit Clinic, Los Angeles PROSECUTION: (to the witness)
St., Cubao, Quezon City? Q When Eric Baid was already on top of you, do you know if the small man
A Not anymore, sir. entered again your room?
Q On December 22, 1996, do you know whether you are at the Holy Spirit A No, sir.
Clinic, Los Angeles St., Cubao, Quezon City? Q And then, what happened when Eric Baid placed himself on top of you?
A Yes, sir. A I agreed.
Q Why were you there, Miss Witness? Q Agreed to what?
A My mother asked me if I want to be confined at the Holy Spirit Clinic and I A I agreed to the sex.
chose to be confined at the Holy Spirit because during that time, I was Q You mean to say that you and Eric Baid has sexual intercourse while on top
then taking my medicine. of your bed?
Q At around three o'clock in the morning of December 22, 1996, do you know A Yes, sir.
where were you? Q And what happened during the sexual intercourse while both of you were on
A Yes, I was lying on the bed inside the Holy Spirit Clinic. top of the bed?
Q And while lying on the bed, inside the Holy Spirit Clinic, do you know what A Somebody was awakened and told me, "Hoy, asawa mo ba iyan?
happened then, Miss Witness? Kinukubabawan ka." and I answered no.
A At that time, there was a person shorter than the person (witness pointing to Q And was Eric Baid, was he able to consummate that sexual intercourse, Miss
the person dressed in yellow t-shirt whose name when asked, answered Witness?
the name Eric Baid) and that person is smaller than the person inside the A Yes, sir.
courtroom was disturbing "kinakalabit" another person inside the room. Q And more or less, how long did the sexual intercourse last, Miss Witness?
Q And what happened after that first man entered the room at the Holy Spirit A Around three to five minutes.
Clinic? COURT: (to the witness)
A The girl was trying to avoid the other person because at that time, the Q Why, was he able to insert his private organ into your private organ?
accused Eric Baid was entering the room. A Yes, your Honor.
Q And what happened after Eric Baid entered the room? Q What did he do when he was able to insert his private organ into your private
A When Eric Baid entered the room as if he knew me already and he asked organ?
me, "Nieva, gusto mo ng sigarilyo?", at the same time, Eric Baid was A As if his orgasm suddenly appeared.
touching my foot. Q Do you understand when you say as if his orgasm suddenly appeared?
ATTY. VENTURANZA: A They are like what they call, your Honor, as if "naiputok".
I would just want to manifest that the witness while testifying, she was smiling. Q And what did he do when according to you "naiputok"?
PROSECUTION: (to the witness) A As if it was okay for him.
Q And after he asked you whether you like a stick of cigarette and touched Q You were wearing an underwear?
your foot, what happened next, Madam Witness? A None, your Honor.
A I said yes. Q You were actually naked?
 A I was wearing pants but I have no panty. Q And when you said that room was dark, is it totally dark or was it only a little
Q But who removed your pants? dark?
A I was the one, your Honor. A Little light, sir. It was a little bit dark and a little bit light. (medyo may ilaw)
Q What about Eric Baid, what was he wearing? Q So the time that you had sexual intercourse with the accused at that time,
A He was also wearing pants. you can identify the face of this person?
Q Who removed the pants of Eric Baid? A Yes, sir.
A He was the one.[19] COURT: (to the witness)
Q You said that medyo may ilaw, where was the light emanating at about 3:00
When complainant was questioned on cross and redirect examination, she in the morning?
explained how she was able to identify accused-appellant, to wit: A From the window outside, the room can be illuminated through the window,
ATTY. SALATANDRE: Your Honor.
Q You said a while ago that when the sex affair happened it was dark so all Q So when the light came from outside, was the source from the moon, from
throughout you did not see the face of the accused? the bulb of the Meralco post or from another light coming from another
A During that time it was dark but the latter part when he opened the light, I building or house?
saw his face, sir. A It is the light actually coming from the ceiling of the building of the clinic which
Q When the light was opened, he was about to leave the room? was outside the window, Your Honor.[20]
A About to leave, sir. Though she may have exhibited emotions inconsistent with that of a rape
Q He was already facing the door? victim ("inappropriate affect") during her testimony, such as by smiling when
A Yes, Sir. answering questions, her behavior was such as could be expected from a person
Q And you were at his back left inside the room? suffering from schizophrenia. Otherwise, complainant was candid, straightforward,
A No, Sir. and coherent.
Q Where were you then? Furthermore, aside from the testimony of Dr. Salangad on complainant's
A I was just inside the room in my bed not at his back, sir. consciousness and memory,[21] it is established that schizophrenic persons do not
Q You were already on your bed when he was about to leave the room? suffer from a clouding of consciousness and gross deficits of memory. [22] It has
A Yes, Sir. long been settled that a person should not be disqualified on the basis of mental
Q At that time that sex affair transpired between you and the accused, you did handicap alone.[23]
not even know his name? With regard to the alleged inconsistencies between complainant's sworn
A Yes, Sir. statement[24] and her testimony as to the number of times she and accused-
Q You were only told later on about this person? appellant had sexual intercourse and where they did the same, an examination of
A Yes, Sir. the evidence for the prosecution, particularly complainant's sworn statement and
ATTY. SALATANDRE: (to the Court) her interview with the examining medico-legal officer, shows that accused-
That will be all, Your Honor. appellant had sexual intercourse with her in different positions at various places in
COURT: the same room. When complainant testified, she stated that, aside from the fact
Any redirect? that accused-appellant had sexual intercourse with her on her bed, he made her
PROSECUTION: transfer later under the bed. Be that as it may, complainant has consistently
Yes, your Honor. established in all of her statements that he had sexual intercourse with her on her
COURT: bed. Whether or not he had sex with her near the window and while facing him is
Go ahead. of no moment and does not negate the finding of rape. Whatever may be the
PROSECUTION: inconsistencies in her testimony, they are minor and inconsequential. They show
Q You said that you were only able to identify the accused when he put on the that complainant's testimony was unrehearsed, and rather than diminish the
lights, when he was about to leave the room, how far were you from the probative value of her testimony, they reinforce it.[25]
accused? In the case at bar, the rape of complainant occurred in a room where other
A This distance, sir. (parties stipulated a distance of four meters, more or less) patients were sleeping. This circumstance, it is argued, is antithetical to the
Q You said that you saw his face at that time? possibility of the commission of rape. As this Court has repeatedly said, lust is no
A Yes, sir. respecter of time and place and the crime of rape can be consummated even when
Q And before this incident of December 22, 1996, were there any other the malefactor and the victim are not alone.[26]
occasion that he had any sexual intercourse with you? The plausibility of an allegation of rape does not depend on the number of
A None, sir. witnesses presented during the trial, so much so that, if the testimonies so far
Q And you often saw him as attendant in that clinic? presented clearly and credibly established the commission of the crime,
A Yes, sir.
corroborative evidence would only be a mere surplusage.[27] In this case, the trial
court gave credence to the testimonies of the prosecution witnesses on the basis
of which it adjudged accused-appellant guilty. In the absence of bias, partiality, and
grave abuse of discretion on the part of the presiding judge, his findings as to their
credibility are entitled to utmost respect as he had the opportunity to observe their
demeanor on the witness stand.[28]
Nor does the absence of spermatozoa in the genitalia of complainant destroy
the finding of rape since ejaculation is never an element thereof. [29] What
consummates the felony is the contact of the penis of the perpetrator, however
slight, to the vagina of his victim without her consent. [30] Neither is it required that
lacerations be found in the victim's hymen. We have held that a medical
examination is not a requisite for a rape charge to prosper as long as the victim
categorically and consistently declares that she has been defiled. [31] In this case,
aside from complainant's positive testimony, the medical examination of the
complainant showed an abrasion on her labia minora, indicating that she had
recent sexual intercourse.[32] That the deep healed lacerations found on the
complainant's genitalia may have been caused seven days prior to December 22,
1996 is immaterial and irrelevant considering that she is a non-virgin.
Accused-appellant also claims that complainant could have been
hallucinating in alleging that she had sexual intercourse with him on December 22,
1996. In answer, suffice it to say that complainant was steadfast and consistent in
stating that she was raped by accused-appellant. She maintained her allegation of
rape when she was physically examined by the medico-legal officer, when she
made her statement to the police and again when she testified in court. [33]
Accused-appellant assails the trial court's finding of lack of consent on the
part of the complainant to the sexual act. As the facts show, complainant herself
admitted that she agreed to have sex with him after he gave her a stick of
cigarette. However, it should be stressed that complainant was in no position to
give her consent. As Dr. Salangad said in her testimony:
COURT:
Q If you claim that the private complainant is suffering from this kind of illness,
schizophrenia, and manifests behavior to the effect that she can not be
active during lucid intervals now if she is suffering from this kind or mental
state, can she give an intelligent consent considering that the private
complainant is already above 20 years of age?
A In her case, I would say no, Your Honor.
Q I will rephrase my question. Because when I asked to give an intelligent
consent, you might be referring to acts that are very important to her like,
for example, "do you want to eat?" of course, she will give an intelligent
consent. "Do you want to sleep?" of course, she will give an intelligent
consent?
A Yes, Your Honor.
Q But things that would destroy her honor or reputation like for example having
sex with her, can she give an intelligent consent?
A No, Your Honor.
Q In other words, she would not know the consequences of her consenting to
such a proposal to have sex?
A Yes, Your Honor.
....
ATTY. SALATANDRE:
Q She can not give an intelligent consent to sex, your patient?
A Yes, sir.
Q Meaning she will just agree?
A She has said so when I asked her. She was just offered a cigarette.
Q Meaning if she opens her legs, she does not understand what she was
doing?
A She probably knew what she was doing but when we say an intelligent
consent, she has weighed the pros and cons on an action and its future
significance and also based on the upbringing, sir.
Q That she was on top of the bed, then the accused allegedly opened the
zipper of his pants and pulled down the pants up to his knees and placed
himself on top of the patient and tried to insert his organ to her organ and
the girl said she agreed to it because she likes it, does it mean all those
things that transpired she does not know or understand what was
happening?
A She knew what was happening but there is a difference in her judgment, in
her discernment. A child can be asked to lie down and knows that
somebody was on top of him or her and that is the thing of being aware.
But the judgment of the consent itself, the significance, the effect, we all
know that a normal person does not do these unless he or she
contemplates it.
Q I just do not know if I am correct, my interpretation about what you are saying
is that physically they are doing that, meaning the organ of the accused
was inserted into the organ of the patient allegedly but the girl did not
resist, the girl did not comment whatsoever because she did not
understand what is happening?
COURT:
No, she did not say that she did not understand what was happening, she can
not discern.
A Let me give you a little information. In the psychological state of mentally ill
patients, the basic instinct of a person is very prominent. They respond,
they eat and they can have sex, that is normal and they are just
responding on the level of their basic instinct. When you are a mature
person or a normal person and you have attained maturity and clearness
of mind, you now, of course, try to put things into their proper perspective,
socially and morally, that is where upbringing and education come in. I
would say that the patient's case, she is more responding in an instinctual
level without the use of intellect.[34]
Accused-appellant questions in this appeal the qualifications of Dr. Salangad
as an expert witness. However, he cannot do this now as he did not raise any
objection to Dr. Salangad's qualifications in the trial court. On the contrary, he even
cross-examined her on the matters on which she testified. In accordance with Rule
132, 36, objections not timely raised are deemed waived.
 The fact that Dr. Salangad was hired by the family of complainant to give
expert testimony as a psychiatrist did not by that fact alone make her a biased
witness and her testimony unworthy of consideration. As has been said:
. . . Although courts are not ordinarily bound by expert testimonies, they may
place whatever weight they choose upon such testimonies in accordance with
the facts of the case. The relative weight and sufficiency of expert testimony is
peculiarly within the province of the trial court to decide, considering the ability
and character of the witness, his actions upon the witness stand, the weight and
process of the reasoning by which he has supported his opinion, his possible
bias in favor of the side for whom he testifies, the fact that he is a paid witness,
the relative opportunities for study and observation of the matters about which he
testifies, and any other matters which deserve to illuminate his statements. The
opinion of the expert may not be arbitrarily rejected; it is to be considered by the
court in view of all the facts and circumstances in the case and when common
knowledge utterly fails, the expert opinion may be given controlling effect (20 Am.
Jur., 1056-1058). The problem of the credibility of the expert witness and the
evaluation of his testimony is left to the discretion of the trial court whose ruling
thereupon is not reviewable in the absence of an abuse of that discretion.[35]
It has not been shown in this case that the trial court abused its discretion in
appreciating the testimony of Dr. Salangad so as to justify setting aside its findings.
Art. 335 of the Revised Penal Code, as amended by R.A. No. 7659, provides:
ART. 335. When and how rape is committed. - Rape is committed by having
carnal knowledge of a woman under any of the following circumstances.
(1) By using force or intimidation;
(2) When the woman is deprived of reason or otherwise unconscious;
and
(3) When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
....
To warrant a conviction for rape under paragraph (2) of Art. 335, a woman
need not be proven as completely insane or deprived of reason. The phrase
"deprived of reason" has been construed to include those suffering from mental
abnormality or deficiency or some form of mental retardation, those who are
feebleminded although coherent.[36]
That the complainant was suffering from schizophrenia at the time of the rape
is shown by the fact that she was in the clinic precisely because of such illness
and by her behavior at the trial, during which she would smile for no reason at all
while answering the questions. Though she may not have totally lost her memory,
it was shown that she was suffering from an impairment of judgment, which made
her incapable of giving, an intelligent consent to the sexual act. It has been held
that where the rape victim is feeble-minded, the force required by the statute is the
sexual act itself.[37]
Even assuming then that the complainant consented to have sexual
intercourse with accused-appellant, the copulation would fall under the third
paragraph of Art. 335 of the Revised Penal Code in view of the fact that
complainant was mentally ill. Sexual intercourse with an insane, deranged, or
mentally deficient, feebleminded, or idiotic woman is rape, pure and simple.[38]
At any rate, complainant said in her sworn statement that she was afraid of
accused-appellant because of the nature of his job as a nurse-aid. Thus she
stated:
28. Tanong : Ikaw ba ay natatakot kay Eric?
Sagot : Kaunti lang, dahil sa trabaho niya.[39]
As Dr. Salangad explained:
ATTY. SALATANDRE:
.
Q Meaning that when she was asked on page 2 "Tanong 27 Q - Ikaw ba ay
tinakot o sinaktan ni Eric? S - Hindi naman po." This is her own answer,
nobody threatened her at that time?
A Yes, sir, but may I add. There was no direct threat but in her situation she
was brought there for confinement and treatment and for
safekeeping. She is in a situation wherein the attendants and the nurses
are all authorities around her, who dictate what to do. I believe that there
was some kind of threat or force in that level, although there was no direct
threat in the action.
COURT:
Q In the mind of Nieva Garcia, who were those that might be threatening to
her?
A The accused somehow had made the threat. Because in their daily activity,
the attendants and nurses dictate the things to do, they follow, they are
bosses in the clinic, they are in that kind of situation always, Your Honor.
Q That explains your presence during the investigation?
A To assist her in order that she is not afraid and in response to earlier question
of counsel if the patient was directly threatened or intimidated during the
act, I am giving you a general situation in an institution, in this kind of
institution. Sometimes they are restrained if they go out of line, they are
ones who restrain them, the attendants and the nurses do these, Your
Honor.[40]
As already stated, accused-appellant invoked alibi in his defense. He claimed
that, at the time of the incident, he was in his quarters at the Holy Spirit Clinic
sleeping. For the defense of alibi to be believed, the following requisites must be
met: (a) his presence at another place at the time of the perpetration of the offense
must be proven; and (b) it was physically impossible for him to be at the scene of
the crime.[41]
Accused-appellant's testimony itself demonstrates the untenability of his
alibi. First, his declaration that he was in another room of the clinic is
uncorroborated. Second, the room in which he said he was sleeping at that time
of the incident was only a few meters away from the patients' room where
complainant was confined. Third, he admitted that, as a nurse-aide, he was
allowed to enter the patients' room anytime for purposes of checking on the
patients. Above all, his alibi cannot be given credence because complainant has
pointed to him as the culprit of the rape. In cases in which the accused-appellant
was identified by the victim herself who harbored no ill motive against him, the
defense of alibi was rejected.[42]
The trial court correctly awarded moral damages in the amount
of P50,000.00, in accordance with our recent rulings that moral damages may be
awarded in rape cases without any need of proof of moral suffering. However, in
addition, civil indemnity in the amount of P50,000.00 should have been awarded
the complainant consistent with the ruling that rape victims are entitled to such an
award without need of proof except the fact of the commission of the offense. [43] On
the other hand, the plea of the prosecution that the indemnity should be raised
to P75,000.00 cannot be granted because such amount is awarded only in cases
of qualified rape. In this case, there were no qualifying circumstances raising the
penalty to death.[44]
WHEREFORE, the decision of the Regional Trial Court, Branch 95, Quezon
City is AFFIRMED with the modification that, in addition to the award of P50,000.00
for moral damages made by the trial court, complainant should be indemnified in
the amount of P50,000.00.
SO ORDERED.
G.R. No. L-38635 November 17, 1980
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DANIEL
HAYAG, Accused-Appellant.
AQUINO, J.:
Daniel Hayag appealed from the decision of the Court of First Instance of Davao
del Norte, Tagum Branch VIII, convicting him of rape, sentencing him to
"imprisonment for the rest of his natural life" and ordering him to pay to
Esperanza Ranga ten thousand pesos as moral damages (Criminal Case No.
1210).
Issue is the trustworthiness of the interpreter's verbalization of deaf-mute's sign
language. - In this alleged rape of Esperanza, 32, a farm girl and a deaf-mute,
the case has been simplified by the admission of the accused, Hayag, 50, a
married man with eight children, who finished grade six, that he had sexual
intercourse with Esperanza nine times between 1970 and December 4, 1972 in
the town of Carmen, Davao del Norte.
The ultimate issue is whether Virginia Ranga 26, a public school teacher, a
college graduate and the victim's sister, correctly and credibly interpreted and
verbalized the sign language of Esperanza as meaning that Hayag raped
Esperanza on October 26, 1972 or whether credence should be given to Hayag's
story that the sexual intercourse on that occasion, as on other occasions, was
voluntary.
Attached to the complaint for rape was a certificate from the Davao General
Hospital that on December 7, 1972 Esperanza was examined and found to be
"positive for pregnancy" (Exh. C or 10). However, the record does not show
whether she gave birth. There was no medical examination of
Esperanza immediately after the rape allegedly perpetrated on October 26,
1972.
The prosecution labored under the handicap that it could prove the alleged rape
only through the sign language of the victim, Esperanza. The victim's sister,
Virginia, who has communicated with her since childhood by means of sign
language, was the sole available witness who could make known to her the
questions on direct and cross-examination and could articulate her alleged
answers for the record.
Because there was no means of checking the correctness and veracity of
Virginia's interpretation and because she herself believed that Esperanza was
raped by Hayag, it is not surprising that the defense counsel vehemently
objected to Virginia's role as interpreter. The defense regarded her as biased and
as lacking the cold neutrality of a third person acting as interpreter.
As Esperanza did not study in the school for deaf-mutes and as there was no
instructor in that school available as an interpreter the trial court had no choice
but to use Virginia as the medium for communicating with Esperanza. Was she a
reliable interpreter? That is the intriguing question in this case.
This Court in two cases convicted an accused of having raped a deaf-mute but in
those cases an instructor in the school for deaf-mutes acted as an interpreter and
the conviction was not based solely on the evidence given by the victim. In the
instant case, the judgment of conviction was based exclusively on the story of
Esperanza that she was raped, a story made known through her sister, Virginia,
who signed the complaint for rape.
In People vs. De Leon, 50 Phil. 539, the accused was charged with having raped
his fifteen-year-old step-daughter, a deaf-mute The trial was held in the house,
called "Country Home;" where the accused brought the girl. She testified in sign
language which was interpreted by a teacher in the school for deaf-mutes. The
accused was convicted on the basis of such testimony.
In People vs. Sasota, 52 Phil. 281, the accussed was also charged with having
raped a fourteen-year-old deaf-mute. She testified with the assistance of an
instructor in the school for deaf-mutes. Her testimony was corroborated by her
seven-year-old sister who was present when the outrage was committed.
Seven days after the alleged rape, the victim, Rufina Barbuco, submitted to a
medical examination. The doctor introjudo su especulum en la parte genital de
ella y dicha Rufina sintio' dolor por la introduccion de dicho instrumento". The
accused was convicted of rape.
But in People vs. Bustos, 51 Phil. 385, a homicide case, the testimony of a deaf-
mute, an alleged eyewitness, as interpreted by a teacher from the school for
deaf-mutes, who did not teach the witness (the latter never having studied in
such school) was not given credence. (See People vs. Nava, CA 40 O.G. 4327
and People vs. Tejano, CA-G.R. No. 21954-R, May 25, 1959, 7 Velayo's Digest
724. As to a deaf-mute convicted of robbery, see People vs. Nazario, 97 Phil.
990.)
Rules regarding communication with a deaf-mute. - At the outset, it is relevant to
state the jurisprudential rules for verbalizing the perceptions of a deaf-mute.
'Although in ancient times the rule was otherwise, deaf-mutes are now generally
accepted as competent witnesses. In any given case a showing must be made
that the witness has a system of communication, and if he has and he is
otherwise competent, his testimony will be received" (81 Am. Jur. 2nd 116).
The modern rule is to the effect that deaf and dumb persons are not incompetent
as witnesses merely because they are deaf and dumb if they are able to
communicate the facts by a method which their infirmity leaves available to them,
and are of sufficient mental capacity to observe the matters as to which they will
testify and to appreciate the obligation of an oath; but where the person is not so
educated as it is possible to make him understand the questions which are put to
him he is not competent (97 C.J.S. 454).
The method to be employed in eliciting the testimony of a deaf-mute should be
that which is best suited to attain the desired end, the particular method of
examination resting largely in the discretion of the trial court. Thus, a deaf and
dumb witness may be examined by means of written questions to which he gives
written answers, or he may be examined through the medium of an interpreter
who communicates with the witness by means of signs. The qualifications of a
particular person to act as an interpreter for a deaf-mute rests largely in the
discretion of the trial court (98 C.J.S. 25).
The other statements of the procedure for taking the sign-language of a deaf-
mute are quoted below:
The modern and generally accepted rule is to the effect that deaf-mutes are
competent witnesses where they have sufficient knowledge to understand and
appreciate the sanctity of an oathand comprehend the facts as to which they
wish to speak, and are capable of communicating their Ideas with respect thereto
(Annotation, 9 ALR 482).
If deaf-mutes have sufficient understanding to comprehend facts about which
they undertake to speak, and appreciate the sanctity of an oath, they may give
evidence by signs, or through an interpreter or in writing, and such testimony,
through an interpreter, is not hearsay (Bugg vs. Town of Houlka, 84 So. 387, 9
ALR 480).
It has been said that a court has the inherent power to elicit testimony from a
competent deaf-mute by whatsoever means necessary to the end to be obtained,
and that the manner in which the examination of a deaf-mute should be
conducted is a matter to be regulated and controlled by the trial court in its
discretion.
However, it has also been said that the best method should be adopted. And
there is authority to the effect that the method adopted will not be reviewed by an
appellate court in the absence of a showing that the complaining party was in
some way injured by reason of the particular method adopted.
In fact it has been said that, in the absence of a showing as to what constituted
the best method of taking a deaf-mute's testimony, it will be presumed on appeal
that the trial court adopted the best method.
As is stated in the authorities approved in Bugg vs. Town of Houlka, 84 So. 387,
9 ALR 480, the general rule is that deaf-mutes who are competent to testify may
give evidence by signs, or through an interpreter, or in writing.
More specifically it has been held that a deaf-mute who can read and write may
testify through that medium. Thus, in Ritchey vs. People (1896), 23 Colo 314, 47
Pac. 272, a deaf-mute was examined by submitting to him written questions, to
which he replied in writing, which questions and answers were then read to the
jury.
And the general rule is that the evidence of a deaf-mute who can be
communicated with by signs may be taken through an interpreter who
understands such signs and can interpret them to the court.
And it has been held that it is permissible to take the testimony of a deaf-mute
through an interpreter by signs notwithstanding the evidence could have been
written. At least where there is no showing that the interpretation by signs is not
the better method.
And especially where it appears that the witness is capable of relating the facts
"correctly" by signs, but, while able to read and write, can only communicate
Ideas imperfectly' by writing. And it is not necessary that the witness be able to
read and write. However, it has been said that it would seem to be better in the
case of a deaf and dumb witness who can read and write to conduct his
examination in writing.
With respect to the conducting of the examination of a deaf-mute itself, it has
been held that the allowing of leading questions is in the discretion of the court.
This discretion was said to arise out of the fact that 'there is always more or less
difficulty in eliciting testimony' where the witness is a deaf-mute (Annotation, 9
ALR 482-484).
Procedure followed by the lower court in qualifying Virginia Ranga as an
interpreter of her sister's sign language. - How to communicate with the victim,
Esperanza, was the problem of the municipal judge during the preliminary
examination. Esperanza knows how to sign her name and to read and write
figures. That was all.
The complaint for rape, filed in the municipal court on December 26, 1972, was
signed by Esperanza. Her sister Virginia certified under oath that she translated,
interpreted and explained the contents of the complaint "faithfully and truthfully
through sign language" to Esperanza (p. 1, Record).
At the preliminary examination, the municipal judge tested the capacity of Virginia
to communicate with Esperanza. Virginia admitted that there were deficiencies in
her mode of communication with Esperanza. Virginia testified:
17. Q: (by municipal judge). How adequate is the communication between
Esperanza Ranga and you? - A: Not too much but I think only a few things which
she wish to convey which I do not understand.
18. Q: Would you ten me one or two of these few things which you don't
understand? - A: Those things which are very deep like for example
those invisible words.
19. Q: What do you mean by invisible words? - A: For example, the meaning of
the word 'truth' whereby I could not expect to her in one sign only the meaning of
the word 'truth' but I could only explain that through other signs.
20. Q: These signs that you employ in communicating between you and
Esperanza Ranga, are these conventional signs or the 'Deaf and Dumb signs? -
A: No, sir.
21. Q: What then are the signs? - A: Just like the actions.
22. Q: In other words, you just contrived or improvised the signs? - A: Yes, sir.
23. Q: For how long a time have both of you been at this means of
communications? - A: Since my birth.
24. Q: You mean that when you were born you ready communicate with each
other? - A: Not exactly but when I already teamed to talk and she could not
understand.
25. Q: Do you still employ the same improvised signs in communicating with your
older sister? - A: Yes, sir.
26. Q: Have you ever revised or modify these so-called improvised signs? - A:
No, sir.
27. Q: You have improvised along the way, have you? - A: Yes, sir.
28. Q: Suppose you wanted to convey to your older sister the meaning of: 'She
better dress up because you are going to bring her to the Court'. How would you
communicate with your sister?
A: (The witness demonstrated by raising her two hands from the head then
downward which would imply putting on the dress; her right hand placed over the
nose which means 'good or beautiful' and touch her older sister (Esperanza) on
her shoulder and pointing towards her and touching both of them with the same
hand gesturing towards the road and a sign indicating a roof which implies the
Municipal Hall.)
The Court is of the opinion that witness may adequately communicate with her
older sister Esperanza Ranga through their improvised sign language. In view
thereof, this Court hereby commissions Virginia Ranga to act as an interpreter for
her sister, Esperanza Ranga, in this preliminary examination (pp. 15-16, Record).
The municipal judge then asked Virginia to take an oath as an interpreter. After
taking the oath, the judge instructed Virginia to ask Esperanza whether the latter
understood the meaning of an oath. Esperanza replied by signs that she would
tell the truth.
According to the sign language of Esperanza, as interpreted by Virginia, the
alleged rape was committed in this manner:
While she (Esperanza) was she was pulled away from the road and then she
resisted and (was) dragged until she was kicked on her leg whereby she
stumbled down. The one (Hayag) who pulled her boxed her on her breast and on
the legs and then she lost consciousness and then when she lost consciousness,
she did not know what happened.
When she regained consciousness, she found out that she was raped by the
man who pulled her (pp. 16-17, Record).
Esperanza Identified the man who raped her as a person with a mole between
his eyes just below his forehead. She pointed to Hayag as the rapist. Hayag and
his counsel were present at the preliminary examination.
The rape was not reported because Hayag told Esperanza that she would be
killed if she divulged the rape to anybody (p. 18, Record).
Hayag waived the second stage of the preliminary investigation. The case was
elevated to the Court of First Instance where the provincial fiscal filed an
information for rape dated February 12, 1973.
The trial court tested Virginia's capacity to communicate with Esperanza in sign
language improvised by the two sisters, a procedure opposed by defense
counsel, as may be seen from the following transcript:
Private prosecutor: ... since the complainant, your Honor, is a deaf-mute, we wig
present her sister as an interpreter, and we will qualify the sister to act as an
interpreter. ...
Defense counsel: ... we object to the competency (of Virginia) on the ground that
this witness is not an expert witness to interpret the language of a deaf-mute.
She would not be competent as to the sign to be conveyed to her, and finally it
would be prejudicial and biased, your Honor. ...
I believe, your Honor, that this case is so serious as it involves the liberty of the
accused, and if we will be hasty in proceeding ... even granting that the witness
can be able to perceive and communicate, there is no definite provision in the
Rules of Court that a sister could be qualified as an interpreter to a deaf-mute. ...
Court: ... the Court win allow her (the sister) to be an interpreter in the case as
long as she can be qualified to interpret the signs of her sister.
Defense counsel ... And granting that the sister will be allowed to translate and
interpret in behalf of the offended party, how will we be so sure that the sister will
convey the same translation as the offended party wanted to convey to her? ...
Private prosecutor: Good faith is presumed, your Honor please. Bad faith is not
presumed. ...
Court: Well, anyway, those are recorded already and in case of an appeal, those
can be taken up because those will appear in the transcript of the stenographic
notes, all the objections that you have raised insofar as allowing the sister of the
offended party to interpret her sign language.
Defense counsel: ... we will submit a memorandum to that effect that the sister is
the interpreter in this case, she being not competent and expert witness.
Court: Well, she is not presented here as an expert witness. She is just being
used now as an interpreter, and you are objecting to that?
Defense counsel: ... We are really seriously objecting.
Court: ... the appellate court will be guided by the stenographic transcript whether
you made your observation and your objection in time before a person is allowed
to be an interpreter in a case like this.
We cannot also ask say a teacher in (the) school for deaf-mutes to be an
interpreter here because, probably, if that deaf-mute did not go to the school for
deaf-mutes, she would not know the sign language of the teacher.
So, probably, this is my personal observation, that they should adapt themselves
to the circumstances of the situation. Now, since their sister is dumb and cannot
hear, and because they were living together, they have to devise a way by which
they could communicate (with) each other, and, probably, not the same sign
language in the school for deaf and dumb persons.
So, in the interest of justice, the Court will allow the sister to interpret the
testimony of the offended party. (4-11 tsn June 11, 1973).
After Virginia had taken her oath and testified that she and Esperanza had been
communicating by means of sign language since childhood, she was directed to
ask Esperanza's name.
Virginia made a sign to Esperanza to sign her name. Esperanza wrote on a piece
of paper "Esperanza Ranga May 3, 1972 " (17-18 tsn June 11, 1973).
When the trial judge directed Virginia to ask Esperanza why she was in court,
Esperanza moved her head sidewise and placed a finger on her lips. She was
not able to answer that question in sign language because, as the private
prosecutor himself admitted, it is difficult to formulate a "why" question in sign
language (17-19, 23 tsn).
The fiscal noted that Esperanza could answer "what where and when" questions
but it would be difficult to make her understand a "why" question because "there
were certain questions that she cannot easily understand" (26-27 tsn). The
following portion of the transcript is a sample of how Virginia communicated with
Esperanza on direct examination:
Q. Alright. Tell her (Esperanza) to demonstrate to kick her right leg? - A. Yes,sir.
(Witness-interpreter's sister doing the same.)
Q. Tell her to repulse or fight back an opponent when she is attacked? - A. Yes,
sir. (The sister doing the same.)
Q. Let us be specific. Does your sister know how to look (up) a date in the
calendar? - A. Yes, sir.
Q. You taught her. - A. She has an Idea.
Q. Alright. Do you have ... a calendar? - A. Yes, sir.
xxx xxx xxx
Q Will you tell your sister to point to figure 7? - A. Yes, sir. (Witness-interpreter
translating the same to her sister in sign language and the sister likewise pointed
to figure 7.)
Q Tell her to point to No. 23. - A. Yes, sir. (Witness-interpreter translating the
same to the sister and the sister pointing also to No. 23.)
Q What about the month appearing in that calendar, can she read? What is that
month there appearing there in that calendar for 1973, in her sign language? ... -
A. She cannot read.
Q But she can read the days or the number? - A. Yes, sir.
Q Can she point to No. 18? (Witness-interpreter translating the same to the
sister, and the sister pointing also to No. 18.)
Q Alright. Now, how would she communicate the month of a year. What month is
she referring when she refers to a date, for example. How will she communicate
that with you? - A. She will use the calendar, sir.
Q But she cannot read the month in the calendar, she said already. Is it not? - A.
She can understand, and at least she can point.
Q Alright.Will you tell your sister to see in that calendar the month of July? - A.
We still need to write the month, sir.
Q You give her a piece of paper and write there July. Then let her locate it there
in the calendar. - A. Yes, sir. (Witness-interpreter doing the same and the sister
located the month of July.)
Q Now, tell her to locate the month of November. - A. Yes, sir. (The sister
locating the same )
Q Will you tell her whether she knows the days in the week, like Monday,
Tuesday, Wednesday like that? - A. Yes, sir. I think she knows.
Q And what are the days in the week? Ask her. - A. She does not know, sir.
Q Do you know what day is today? Ask her. - A. Yes, sir. (Witness-interpreter
translating the question to the sister, and she pointed to June 11 in the 1973
Calendar.)
Q Now, can you point therein the calendar any day? - A. (The sister pointed to
Tuesday after the question was properly translated to her by the witness-
interpreter.) "Court: Make it of record that she pointed to Tuesday.
Q by Court: Do you know what day is today? (Witness pointing to June 11 in the
1973 calendar.) - A: (by Witness-interpreter): She does not know, your Honor.
Q by Court: Do you know what is today? - (Witness pointing to June 11 in the
1973 calendar.)
Court: I think she can adequately communicate, perhaps not to our
satisfaction. Alright, ... (To the Witness-Interpreter Virginia): Do you swear to
interpret faithfully and to the best of your knowledge the questions to your sister
and the answers that she gives to the questions? - Witness-Interpreter: Yes, your
Honor.
Court: Alright. (To private prosecutor )Your first witness
Private prosecutor: Our first witness is the complainant herself, your Honor.
Court: Put her on the stand. (30-37 tsn.)
The oath was then administered to Esperanza. How it was administered is not
shown in the record. It should be recalled that Virginia testified that "invisible
words" like truth cannot be made known in sign language to Esperanza.
When Esperanza was asked as to her age, she write on a piece of paper "May 3,
1983 32" (39 tsn June 11, 1973).
Testimony of Esperanza as verbalized by her sister Virginia. - Esperanza resided
in Carmen and worked in the ricefield of her brother Dencio She used to walk
from her house to the ricefield which was quite far. Upon being asked, Esperanza
pointed to the figure "26" in the calendar. She worked in the ricefield on October
26, 1972 up to the time in the afternoon when the sun was in a certain position
which, as calculated by the court, meant that it was approximately three o'clock.
She was on her way home alone. She sketched the road leading to the highway
which was taken by her and the scene of the alleged rape (Exh. A or 2). When
she reached a grassy spot along the road, her left hand was pulled by a man with
a mole between his eyebrows whom Esperanza Identified as Hayag who was in
court. Hayag pulled her to the grassy bush. (At this point, defense counsel
manifested that Esperanza did not make any sign that she was pulled to the
grassy bush and that it was Virginia, the interpreter, who supplied that allegation,
47 tsn).
Esperanza resisted but Hayag kicked her in the right leg and she stumbled.
Hayag choked her while she was prostrate on the ground. Asked if she was
boxed, Esperanza replied that Hayag boxed her on the chest while he was
standing. At this point, Esperanza went down the witness stand and
demonstrated how she resisted.
Hayag removed her short pants and kissed her and then, as stated by the
interpreter, she was raped. Asked the leading question of whether she was
unconscious when she was raped, she replied in the affirmative and added that
she regained consciousness after she was raped. Her pants were on her side on
the ground. There was blood in her private part. She pushed aside Hayag.
Hayag stood up and told Esperanza not to tell anybody what happened or else
he would kill her. Hayag picked up her pants and threw them over her body and
left. She put on her pants and went home crying. She was still crying when she
arrived home but she did not disclose to her mother the alleged rape because of
the threat made by Hayag.
Esperanza indicated in the sketch the spot where she was raped on October 26,
1972, Identified as Exhibit A-2 or 2-A (63 tsn).
According to Esperanza. on December 4, 1972 she encountered Hayag in the
same place but she avoided him by passing near the central school and going to
the house of her sister-in-law, as indicated in the sketch, Exhibit A. She arrived
home at eight o'clock in the evening and reported the rape incident to her mother.
Hayag's story. - To support his defense that his sexual intercourse with
Esperanza was voluntarily consummated and was not accomplished through
force or against her will, he testified that he and Esperanza, whom he had known
for more than fifteen years, loved each other. They were neighbors in the town of
Carmen. Hayag's daughter Ester is married to Antonio, a brother of Esperanza.
Their liaison allegedly started one morning in December, 1970 when Esperanza
appeared at the foot of the stairs of his house and made a sign that she wanted
to drink water. Hayag signalled her to go upstairs. He was absent from work on
that day.
He went to the kitchen where Esperanza followed him. After she had drunk
water, she made a sign by pointing to herself and to Hayag and placing her two
fingers side by side or juxtaposing them. Hayag said that by means of that sign
Esperanza wanted to convey that she and Hayag were sweethearts. Hayag
nodded to show his assent to Esperanza's offer of love.
Hayag said that thereafter Esperanza embraced him and they kissed each other.
After the embrace, Esperanza disengaged herself and formed a circle with her
left thumb and index finger and inserted into the circle the fingers of her right
hand, repeatedly making a push-and-pull movement. That signal meant that she
wanted sexual intercourse. In answer to that signal, Hayag nodded.
Esperanza took off her panties and because the kitchen floor 'was dirty Hayag
indicated to her that they would have sexual congress on the table which was
clean. 'They performed the sexual intercourse on the table and reached the
climax in about five minutes.
After they went down from the table, they embraced and kissed and Esperanza
allegedly made a sign that they should repeat the sexual act. At that juncture,
Florita Hayag's daughter, barged in and saw them. They separated.
Four days later, Esperanza met Hayag at about six-thirty in the morning at the
crossing or intersection of the highway going to Tagum and the road going to
Tibal-og in the vicinity of the bridge and the chapel. There was a grassy spot in
that place (Exh. 9 and A). There, they had sexual intercourse for about five
minutes.
In the meantime, Florita reported to her mother, Adoracion, that she had seen
Hayag and Esperanza in a compromising situation. Hayag and his wife
quarrelled. Mrs. Hayag and her three daughters left the conjugal abode and took
refuge in her mother's house in Maco. Hayag was able to persuade his wife to
return to their house after he had promised not to have anything more to do with
Esperanza.
For more than a year, Hayag lived up to his promise. Then, in the morning of
May 12, 1972, Hayag met Esperanza on the highway while he was waiting for
transportation to take him to his work as a foreman (capataz) of the Bureau of
Public Highways in Mawab Nabunturan.
On that occasion, Esperanza allegedly made a sign to him that they should have
sexual intercourse, pointing to him the grassy spot where they had done it
before. Hayag made a counter-sign to convey to Esperanza the message that
they should have sexual intercourse after he had cleared a spot amidst the
dense talahibgrass.
It took Hayag three days to prepare the place of assignation (See photographs,
Exh. 5 to 8). On May 15, 1973 he and Esperanza allegedly had sexual
intercourse in the spot which he had cleared. Thereafter, they had six other acts
of sexual intercourse in that place. A white plastic raincoat allegedly belonging to
Esperanza was used to cover the ground (Exh. 4).
Hayag specified that he had carnal intercourse with Esperanza on September 2
and 23, October 20 and 26, November 4 and December 4, 1972. Esperanza
allegedly advised Hayag to remember the dates because she might become
pregnant. The last three acts of sexual intercourse took place in the afternoon
after Hayag had come from work and while Esperanza was on her way home
from the farm (13-14 tsn October 26, 1972).
After each sexual intercourse, Esperanza would take Hayag's ball pen and write
the date on the palm of his hand. Hayag himself did not make any record of the
dates of the sexual intercourse. He committed them to memory
In the afternoon of December 4, 1972, after Hayag and Esperanza had sexual
intercourse in their usual trysting place (Exh. 5 to 8), they were seen in that
vicinity by Jose Santillan, a close friend of Hayag, and by Esteban Ranga, the
uncle of Esperanza, who appeared to be angry and who held her and brought
her home.
Two days later, or on December 6, Hayag was arrested by Patrolmen Rolando
Yambao and Samuel Casuga because Esperanza's mother and uncle had
charged him with rape.
Hayag's daughter Florita and his wife Adoracion corroborated his testimony as to
the quarrel between him and his wife when she learned that he had an affair with
Esperanza.
Florita testified that Esperanza cried when she learned that Hayag was in prison
and in sign language she allegedly made it known that she had voluntary sexual
intercourse with Hayag and that, to prove that she loved Hayag, she (Esperanza)
gave to Florita the plastic raincoat already mentioned (Exh. 4).
Jose Santillan, a farmer, a friend of Hayag and a neighbor of the Ranga family,
testified that as a Peeping Tom or voyeur, he witnessed the sexual intercourse
between Hayag and Esperanza in the afternoon of December 4, 1972 in the
grassy spot mentioned by Hayag in his testimony.
The trial court reacted in disbelief of Hayag's story. It branded Hayag's version as
unusual and bizarre. It concluded that Hayag took advantage of the physical
defect of Esperanza and that he was under the illusion that because she is a
deaf-mute she would not be able to communicate the outrage perpetrated
against her.
Ruling. - Hayag's counsel de oficio contends in this appeal that the trial court
erred in basing the judgment of conviction on the testimony of Esperanza in sign
language as verbalized by her sister, an alleged biased interpreter.
We have conscientiously examined the record. Our conclusion is that the
prosecution failed to establish the guilt of the accused beyond reasonable doubt.
The culpability of Hayag cannot be made to rest on the uncorroborated story of
Esperanza, as conjectured by her sister and mother. That story in itself is not
clear, convincing, positive and free from suspicion. It is not impeccable and does
not ring true throughout (People vs. Ariarte 60, Phil. 326).
Lack of tenacious resistance on the part of Esperanza Ranga, her delay in
reporting the alleged rape to her mother and the absence of an immediate
medical examination of her private organ are circumstances creating reasonable
doubt as to the commission of the rape.
From Esperanza's version, as articulated by her sister, it is at once evident that
Esperanza did not offer much resistance to the alleged sexual assault made by
Hayag. She did not suffer any physical injuries. Her dress was not torn. She did
not attempt to free herself from the clutches of Hayag.
This is not a case of a teenage girl being raped by a strong and robust adult. This
is a case of a thirty-two-year-old farm girl who was allegedly forced to have
carnal intercourse by a fifty-year-old man. Her story does not contain details as to
how she repelled Hayag's attempts to ravish her. And that story was not
recounted by her directly in her own words but was made known by means of
sign language which was interpreted by her sister. The trustworthiness of that
interpretation is doubtful.
The defense objected to such interpretation. The probability of error or fabrication
in such a case is very manifest. As observed by Justice Villa-Real, that is a
dangerous procedure for ascertaining the truth especially in a case where the
liberty of an accused is at stake (People vs. Bustos, 51 Phil. 385, 390). The court
and the accused have no means of checking the accuracy of the verbalization
made by the interpreter who is herself interested in sending the accused to
prison.
It is difficult to rape a healthy adult woman without the help of confederates or
without terrifying her with a deadly weapon. If she makes a vigorous resistance,
the likelihood is that the lascivious desire of her assailant would be foiled.
The resistance would, as in this case, be more effective in an open field where
there are more chances of eluding the assailant or frustrating his advances. The
rape committed by a man without the assistance of other persons is possible but
is a rare case. (2 Cuello Calon, Derecho Penal, 1975 Ed., 588; People vs. Barbo,
L-30988, March 29, 1974, 56 SCRA 459, 467.)
Then, there is the fact that although the alleged rape took place on October 26,
1972, it was only forty days later, or on December 4, that Esperanza confided to
her mother (by means of signs, of course) that she was supposedly raped. Her
story was not corroborated.
The uncorroborated testimony of the offended woman may be sufficient under
certain circumstances to warrant a conviction for rape. Yet, "from the very nature
of the charge and the ease with which it may be made and the difficulty which
surrounds the accused in disproving it where the point at issue is as to whether
the cohabitation was had with or without the use of force or threats, it is
imperative that such testimony should be scrutinized with the greatest caution."
(Carson, J., in U.S. vs. Flores, 26 Phil. 262, 268.)
In all such cases the conduct of the woman immediately following the alleged
assault is of the utmost importance as tending to establish the truth or falsity of
the charge. Indeed it may well be doubted whether a conviction of the offense of
rape should ever be sustained upon the uncorroborated testimony of the woman
unless the court is satisfied beyond a reasonable doubt that her conduct at the
time when the alleged rape was committed and immediately thereafter was such
as might be reasonably expected from her under all the circumstances of the
case. (U.S. vs. Flores, pp. 268-269.)
Moreover, the case for the prosecution was irreparably impaired by the
inconsistencies committed by the complainant's mother, Mrs. Ranga. She first
swore that according to her interpretation of Esperanza's sign language five
rapes were admitted on different dates.
Then, she rectified her first affidavit and swore in a second affidavit and during
the preliminary examination that only one rape was committed. (Exh. 1 and 3.)
On the witness stand, she declared that the rape was committed on December 4,
1972 but on cross-examination she declared that her daughter was abused
on October 26, 1972. Contrary to the prosecution's theory, Mrs. Ranga testified
that Hayag did not do anything to Esperanza on December 4, 1972 (56 and 65
tsn August 6, 1972).

WHEREFORE, the trial court's judgment of conviction is reversed and set aside.
On the ground of reasonable doubt or the insufficiency of the prosecution's
evidence, defendant Daniel Hayag is acquitted of the charge of rape. Costs de
oficio.

SO ORDERED.
G.R. No. L-46306 February 27, 1979
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. MARIANO C. CASTAÑEDA, JR., as Judge of the Court of First
Instance of Pampanga, Branch III, and BENJAMIN F.
MANALOTO, respondents.
Fiscal Regidor Y Aglipay and Special Counsel Vicente Macalino for petitioner.
Moises Sevilla Ocampo for private petitioner.
Cicero J. Punzalan for respondent.
SANTOS, J.:
On the basis of the complaint 1 of his wife, Victoria M. Manaloto, herein private
respondent Benjamin Manaloto was charged before the Court of First Instance of
Pampanga, presided by respondent Judge, Hon. Mariano C. Castaneda Jr., with
the crime of Falsification of Public Document committed, according to the
Information, as follows:
That on or about the 19th day of May, 1975, in the Municipality
of San Fernando, province of Pampanga, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named a BENJAMIN F. MANALOTO, with deliberate intent to
commit falsification, did then and there willfully, unlawfully and
feloniously counterfeit, imitate and forge the signature of his
spouse Victoria M. Manaloto in a deed of sale executed by
said accused wherein he sold a house and lot belonging to the
conjugal partnership of said spouse in favor of Ponciano
Lacsamana under Doc. No. 1957, Page No. 72, Book No. LVII,
Series of 1975, notarized by Notary Public Abraham Pa.
Gorospe, thereby making it appear that his spouse Victoria M.
Manaloto gave her marital consent to said sale when in fact
and in truth she did not. 2
At the trial, the prosecution called the complaint-wife to the witness stand but the
defense moved to disqualify her as a witness, invoking Sec. 20, Rule 130 of the
Revised Rules Of Court which provides:
SEC. 20. Disqualification by reason of interest or relationship
— The following persons cannot testify as to matters in which
they are interested, directly or indirectly as herein enumerated.
xxx xxx xxx
(b) A husband can not be examined for or at his wife without
her consent; nor a wife for or against her husband without his
consent, except in a civil case by one against the other or in a
criminal case for a crime committed by one against the other.
The prosecution opposed said motion to disquality on the ground that the case
falls under the exception to the rule, contending that it is a "criminal case for a
crime committed by one against the other." Notwithstanding such opposition,
respondent Judge granted the motion, disqualifying Victoria Manaloto from
testifying for or against her husband, in an order dated March 31, 1977. A motion
for reconsideration petition was filed but was denied by respondent Judge in an
order dated May 19, 1977.
Hence, this petition for certiorari file by the office of the Provincial Fiscal, on
behalf of the People of the Philippines, seeking set aside the aforesaid order of
the respondent Judge and praying that a preliminary injunction or a ternporary
restraining order be issued by this Court enjoining said judge from further
proceeding with the trial of aforesaid Criminal Case No. 1011.
On June 20, 1977, this Court resolved — (a) to issue a temporary restraining
order, and (b) to require the Solicitor General to appear as counsel for the
petitioner. 3 The Office of the Solicitor General filed its Notice of Appearance on
June 27, 1977, 4 and its Memorandum in support of the Petition on August 30,
1977. 5 The respondents filed their Memorandum on September 5,
1977. 6 Whereupon, the case was considered submitted for decision. 7
From the foregoing factual and procedural antecedents emerges the sole issues
determinative of the instant petition, to wit: Whether or not the criminal case for
Falsification of Public Document filed against herein private respondent Benjamin
F. Manaloto — who allegedly forged the signature of his wife, Victoria M.
Manaloto, in a deed of sale, thereby making it appear that the latter gave her
marital consent to the sale of a house and lot belonging to their conjugal
partnership when in fact and in truth she did not — may be considered as a
criminal case for a crime committed by a husband against his wife and, therefore,
an exception to the rule on marital disqualification.
We sustain petitioner's stand that the case is an exception to the marital
disqualification rule, as a criminal case for a crime committed by the accused-
husband against the witness-wife.
1. The act complained of as constituting the crime of Falsification of Public
Document is the forgery by the accused of his wife's signature in a deed of sale,
thereby making it appear therein that said wife consented to the sale of a house
and lot belonging to their conjugal partnership when in fact and in truth she did
not. It must be noted that had the sale of the said house and lot, and the signing
of the wife's name by her husband in the deed of sale, been made with the
consent of the wife, no crime could have been charged against said husband
Clearly, therefore, it is the husband's breach of his wife's confidence which gave
rise to the offense charged. And it is this same breach of trust which prompted
the wife to make the necessary complaint with the Office of the Provincial Fiscal
which, accordingly, filed the aforesaid criminal case with the Court of First
Instance of Pampanga. To rule, therefore, that such criminal case is not one for a
crime committed by one spouse against the other is to advance a conclusion
which completely disregards the factual antecedents of the instant case.
2. This is not the first time that the issue of whether a specific offense may be
classified as a crime committed by one spouse against the other is presented to
this Court for resolution. Thus, in the case of Ordoño v. Daquigan, 8this Court,
through Mr. Justice Ramon C. Aquino, set up the criterion to be followed in
resolving the issue, stating that:
We think that the correct rule, which may be adopted in this jurisdiction, is that
laid down in Cargill v. State, 35 ALR, 133, 220, Pac 64,26 OkL 314, wherein the
court said:
The rule that the injury must amount to a physical wrong upon
the is too narrow; and the rule that any offense remotely or
indirectly affecting domestic within the exception is too broad.
The better rule is that, WHEN AN OFFENSE DIRECTLY
ATTACKS, OR DIRECTLY AND VITALLY IMPAIRS, THE
CONJUGAL RELATION, IT COMES WITHIN THE
EXCEPTION to the statute that one shall not be a witness
against the other except in a criminal prosecution for a crime
committed (by) one against the other.
may be disturbed. In such a case, as We have occasion to point out in previous
decisions, "identity of interests disappears and the consequent danger of perjury
based on that Identity is nonexistent. Likewise, in such a situation, the security
and confidence of private life which the law aims at protecting will be nothing but
Ideals which, through their absence, merely leave a void in the unhappy
home. 11Thus, there is no reason to apply the martial disqualification rule.
3. Finally, overriding considerations of public policy demand that the wife should
not be disqualified from testifying against her husband in the instant case. For, as
aptly observed by the Solicitor General," (t)o espouse the contrary view would
spawn the dangerous precedent of a husband committing as many falsifications
against his wife as he could conjure, seeking shelter in the anti-marital privilege
as a license to injure and prejudice her in secret — all with unabashed and
complete impunity.
IN VIEW OF ALL THE FOREGOING, the order of the lower court dated March
31, 1977, disqualifying Victoria Manaloto from testifying for or against her
husband, Benjamin Manaloto, in Criminal Case No. 1011, as well as the order
dated May 19, 1977, denying the motion for reconsideration are hereby SET
ASIDE. The temporary restraining order issued by this Court is hereby lifted and
the respondent Judge is hereby ordered to proceed with the trial of the case,
allowing Victoria Manaloto to testify against her husband.
SO ORDERED.

Applying the foregoing criterion in said case of Ordoño v. Daquigan this Court
held that the rape committed by the husband of the witness-wife against their
daughter was a crime committed by the husband against his wife. Although the
victim of the crime committed by the accused in that can was not his wife but
their daughter, this Court, nevertheless, applied the exception for the reason that
said criminal act "Positively undermine(d) the connubial relationship. 9

With more reason must the exception apply to the instant case where the victim
of the crime and the person who stands to be directly prejudiced by the
falsification is not a third person but the wife herself. And it is undeniable that the
act comp of had the effect of directly and vitally impairing the conjugal relation.
This is apparent not only in the act Of the wife in personally lodging her complaint
with the Office of the Provincial Fiscal, but also in her insistent efforts 10 in
connection with the instant petition, which seeks to set aside the order
disqualified her from testifying against her husband. Taken collectively, the
actuations of the witness-wife underacore the fact that the martial and domestic
relations between her and the accused-husband have become so strained that
there is no more harmony to be preserved said nor peace and tranquility which
G.R. No. L-568 July 16, 1947
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JUAN FRANCISCO, defendant-appellant.
Augusto Kalaw for appellant.
Assistant Solicitor General Roberto A. Gianzon and Acting Solicitor Isidro C.
Borromeo for appellee.
HILADO, J.:
Convicted of the crime of parricide by the Court of First Instance of Mindoro,
Juan Francisco appeals to this Court and asks us to reverse the decision of the
trial court and to acquit him of the crime charged.
On March 4, 1945, defendant, who had been previously arrested on charges of
robbery, was being held as detention prisoner in the municipal jail of Mansalay,
Mindoro. On that date he requested permission from the chief of police, and he
was allowed to go with Sergeant Pacifico Pimentel, who was detailed to guard
him. Upon their reaching the house, the sergeant allowed the prisoner to see his
wife who was at the time in a room of said house, while said sergeant remained
at the foot of the stairs. After a few moments, Pimentel heard the scream of a
woman. Running upstairs, he met defendant's wife running out of the room and
holding her right breast which was bleeding. Still moments later, Pimentel saw
defendant lying down with his little son Romeo, aged one year and a half, on his
breast. Pimentel also found defendant to have a wound in his belly while his child
had a wound in the back. Pimentel found the child dead.
The prosecution, in recommending the imposition of the capital penalty upon the
accused, relies mainly on: (1) the affidavit, Exhibit C (translation, Exhibit C-1),
which is a virtual confession of the accused; (2) Exhibit D, which is the record
made by the justice of the peace of Mansalay of the arraignment of the defendant
upon which the latter entered a plea of guilty; and (3) the rebuttal testimony of
Emilia Taladtad, wife of the appellant.
Exhibit C is an affidavit signed and sworn to by the appellant before the justice of
the peace of Mansalay on March 5, 1945,. Exhibit C-1 is its English translation. In
said affidavit appellant declares that: "I asked permission from the chief of police
so that I may be able to raise my bond and to indicate to me the house of one
Guillermo Gervasio, a policeman, and I was consented and the sergeant of
police accompanied me to my house; that upon arriving at the house, Sgt.
Pacifico Pimentel allowed me to go up in order that I may be able to talk to my
wife and the sergeant of police awaited me in the stairs of the house; when I was
in the house, I remembered what my uncle told me to the effect that he would
order someone to kill me because I am a shame and a dishonor to our family and
suddenly I lost my sense and I thought to myself that if someone would kill me it
would be more preferable for me to kill myself; when I looked at the bed I saw a
scissor near my wife and unconsciously I picked up the said scissor and
immediately stabbed my wife whereupon I looked for my child on the bed and
stabbed him; I killed my son Romeo Francisco whose age is more or less two
years and after that I stabbed myself; after stabbing myself, I heard a shot and
the sergeant of police asked me if I would surrender to him or not; I replied him
"yes" then I lost my consciousness."
Sergeant of Police Pimentel, whose veracity we find in the evidence no reason to
doubt, declared (p. 6, t.s.n., Lunar) that the accused confessed to him that
because he was already tired or disgusted with his life "on account of the
accusation of his father-in-law" against him, he wanted to wipe out his family by
stabbing his wife, his son and himself, and killing the three of them. The same
witness also stated (p. 9, ibid.) that the accused confessed to him that he
stabbed his wife, his child and himself because he was ashamed, as his father-
in-law told him that he should rather die than live in shame for having dishonored
the family of his wife.
The voluntariness and spontaniety of the confession contained in Exhibit C was
testified to by the justice of the peace of Mansalay and police sergeant Pimentel,
one Sebastian Punzalan, and the chief of police Alfredo Iwahi; that said justice of
the peace had previously read the contents of the same affidavit to the accused
and that the accused signed without any intimidation having been exerted in the
presence of said justice of the peace; that the accused signed voluntarily in the
session hall of the justice of the peace court in Barrio Paclasan (pp. 26-27, ibid.)
Pimentel testified, upon the same point, that no force was exerted upon appellant
to state what is contained in the affidavit; that he had not maltreated or boxed the
accused as pretended by the latter; that the contents of the exhibit were read to
the accused; that he did not threatened the accused to shoot the latter if he
would not swear to Exhibit C before the justice of the peace, as declared by said
accused (pp. 25-26, ibid.) In this connection we note from the testimony of the
accused himself that on the way to the house of the justice of the peace after the
incident, he was being helped by the chief of police Iwahi when, according to
him, Sergeant Pimentel told him that he was going to swear to the contents of
Exhibit C and that if he would not do so Pimentel would shoot him (p. 17, ibid.);
that (the same accused assured the court) Iwahi treated him well (t.s.n., p.
20, ibid.); and really from the entire testimony of this accused the good treatment
accorded him by Chief of Police Iwahi is clearly discernible. He was under
preventive detention in the house of Iwahi and it was Iwahi who suggested or told
him, after he had killed and dressed the former's pig, that he bring a kilo of the
meat to his (appellant's) wife (p. 13, ibid.) It was also Iwahi who allowed him to go
to his house on the same occasion for the purposes of the procurement of his
bail (p. 13, ibid.).
Under these circumstances, besides the complete absence of proof of any
reason or motive why Pimentel should so threaten the accused, we find the
accused's version incredible. On page 16 of the same transcript, answering a
question by the Court of First Instance, the accused testified that he understands
English and the translation Exhibit C-1 of the affidavit Exhibit C is in that
language.
Other indications of appellant's lack of trustworthiness are: While on page 14 of
said transcript he testified that he was the only one who went to the house of his
wife because Pimentel, according to him, remained in the house of Roberto
Magramo, on page 13 he declared that he was accompanied by the sergeant of
police of Mansalay, Pacifico Pimentel to the house of his wife and that the chief
of police ordered Pimentel to so accompany him. Contradicting the same
pretension of his having gone alone to his wife's house is his own testimony on
page 17 of the transcript wherein he assured affirmatively the question of his own
counsel whether Pimentel was the policeman who was with him to guard him on
the occasion of his going to his wife's house; and really, while he imputed upon
his wife the wounding of their child, who died as a consequence thereof, he
admitted that he did not tell this to the justice of the peace of Mansalay (p.
18, ibid.), and the reason he assigned for this passive conduct on his part to the
effect that he was afraid of Pimentel (p. 19, ibid.) is patently unacceptable, for no
motive whatsoever has been established to make us believe that the accused
had reasons to be so afraid of Pimentel. Appellant's testimony to the effect that
Pacifico Pimentel was testifying against him because Pimentel "being my guard
that time he might be held responsible for allowing me to go alone" (p. 17, ibid.)
is absolutely without merit. This testimony clearly reveals a desire to show that
because Pimentel allowed the accused to go up the house while the former
stayed at the foot of the stairs, said Pimentel would be responsible for what had
happened unless the accused was the one who killed the child and wounded his
wife rather than the wife having accidentally wounded the child and killed him
and been stabbed by the accused, who also stabbed himself. As we said a
moment ago, we do not give any merit to this purpose in testifying against the
accused to relieve himself of all responsibility for what had happened, it would
have been more conducive to this result if Pimentel had testified that it was not
the accused, whom he had allowed to go upstairs unguarded, who was guilty, but
his wife, of the wounding of the child, and that the accused wounded his wife only
as the result of the obfuscation produced by the child's death. And the fact that
Pimentel gave the version which might place no small blame on him for allowing
the accused to go up the house alone, gives special weight to his testimony.
This case, as developed by the evidence for the prosecution, which has not been
destroyed nor enervated by that of the defense, presents a truly strange
happening. But the fact of the commission of the crime of parricide appears to us
to have been established beyond reasonable doubt. As to the reasons impelling
the commission of the act, the case is a strange one and admittedly not common.
But while it is not necessary even to prove motive in case the commission of the
crime is established as required by law (U.S. vs. Ricafor, 1 Phil., 173;
U.S. vs. McMann, 4 Phil., 561; U.S. vs. Reyes, 18 Phil., 495; U.S. vs. Balmori
and Apostol, 18 Phil., 578), here we have a case of a crime proven beyond
reasonable doubt, not absolutely without a proven motive, but with proof of a
motive testified to by the accused himself in his confession, strange though it be.
But at times "truth is stranger than fiction," and it so happens here. The law must
be applied to the facts.
We have scanned and searched the evidence and the record diligently for facts
and circumstances which might sufficiently establish insanity or any allied
defense, but we have failed to find them.
As we construe the evidence, we believe that Exhibit C contains the truth, as
narrated by the accused himself who, at the time of making it, must have been
moved only by the determination of a repentant father and husband to
acknowledge his guilt for facts which, though perhaps done under circumstances
productive of a diminution of the exercise of will-power, fell short of depriving the
offender of consciousness of his acts. We will have occasion to further consider
this aspect of the case later.
Exhibit C was signed and sworn to by appellant the day following the fatal event.
Presumably, on making this confession appellant had not yet had time to reflect
upon the consequences of such a confession to himself — egoism was not yet
allowed to operate against the promptings of his conscience. But when on
February 23, 1946 — almost one year after — this man testified in his own
defense in the Court of First Instance, he already had had ample opportunity to
reflect upon those consequences. And what happened? As in similar cases, he
repudiated his confession, and alleged torture and violence to have been exerted
upon his person and his mind in order, so he now pretends, to extract it from him.
As we find the confession to have been given voluntarily, we feel justified in
concluding that its subsequent repudiation by the accused almost a year after
must have been due to his fear of its consequences to himself, which he not
improbably thought might cost him his own life. It was the struggle between the
noble and the ignoble in the man, and the latter, aided by instinct of self-
preservation, won.
Defense counsel attacks the value of Exhibit C as evidence of guilt for the reason
that the statements contained therein were not, counsel contends, given
spontaneously but through use of violence and intimidation. He also questions
the admissibility of Exhibit D on the ground that it has not been properly
identified; and, with more vigor and stronger emphasis, he impugns the
admissibility of the testimony of appellant's wife, invoking the provision of section
26 (d) of Rule 123 prohibiting the wife and the husband from testifying for or
against each other.
As to Exhibit C, this document was sworn to and subscribed by said accused
before the justice of the peace of Mansalay. This official testified that he asked
the prisoner before the latter signed said exhibit whether he understood the
contents thereof, and that said latter answered in the affirmative. The witness
further declared that appellant signed the exhibit voluntarily and that said
appellant said that the said affidavit was his (p. 10, ibid.). There is a total
absence of evidence, besides the testimony of appellant himself, to show that his
statements contained in said exhibit were extracted form him by the use of
violence and intimidation. While we are not unaware of the practice resorted to
by some peace officers of extracting admissions or confessions from persons
accused of crime by the employment of third-degree methods, in the present
case we fail to find from the evidence sufficient proof to destroy the categorical
testimony of the justice of the peace that Exhibit C was signed by appellant
voluntarily and with a full understanding thereof. Furthermore, the statements of
appellant in said Exhibit C were corroborated by the testimony of his wife on
rebuttal. This leads us to the consideration of the admissibility of the wife's
testimony.
The rule contained in section 265 (d) of Rule 123 is an old one. Courts and text-
writers on the subject have assigned as reasons therefor the following: First,
identity of interest; second, the consequent danger of perjury; third, the policy of
the law which deems it necessary to guard the security and confidences of
private life even at the risk of an occasional failure of justice, and which rejects
such evidence because its admission would lead to domestic disunion and
unhappiness; and fourth, because where a want of domestic tranquility exists,
there is danger of punishing one spouse through the hostile testimony of the
other. This has been said in the case of Cargill vs. State (220 Pac., 64; 25 Okl.
Cr., 314; 35 A.L.R., 133), thus:
The reasons given by law text-writers and courts why neither a husband
nor wife shall in any case be a witness against the other except in a
criminal prosecution for a crime committed by one against the other
have been stated thus: First, identity of interests; second, the
consequent danger of perjury; third, the policy of the law which deems it
necessary to guard the security and confidences of private life even at
the risk of an occasional failure of justice, and which rejects such
evidence because its admission would lead to domestic disunion and
unhappiness; and fourth, because, where a want of domestic tranquility
exists, there is danger of punishing one spouse through the hostile
testimony of the other. (70 C.J., 119.)
However, as all other general rules, this one has its own exceptions, both in civil
actions between the spouses and in criminal cases for offenses committed by
one against the other. Like the rule itself, the exceptions are backed by sound
reasons which, in the excepted cases, outweigh those in support of the general
rule. For instance, where the marital and domestic relations are so strained that
there is no more harmony to be preserved nor peace and tranquility of interests
disappears and the consequent danger of perjury based on that identity is non-
existent. Likewise, in such a situation, the security and confidences of private life
which the law aims at protecting will be nothing but ideals which, through their
absence, merely leave a void in the unhappy home.
At any rate, in the instant case the wife did not testify in the direct evidence for
the prosecution but under circumstances presently to be stated. It will be noted
that the wife only testified against her husband after the latter, testifying in his
own defense, imputed upon her the killing of their son. (p. 15, ibid.) By all rules of
justice and reason this gave the prosecution, which had theretofore refrained
from presenting the wife as a witness against her husband, the right to do so, as
it did in rebuttal; and the the wife herself the right to so testify, at least, in self-
defense, not of course, against being subjected to punishment in that case in
which she was not a defendant but against any or all of various possible
consequences which might flow from her silence, namely: (1) a criminal
prosecution against her which might be instituted by the corresponding
authorities upon the basis of her husband's aforesaid testimony; (2) in the moral
and social sense, her being believed by those who heard the testimony orally
given, as well as by those who may read the same, once put in writing, to be the
killer of her infant child. It has been aptly said that the law of evidence is the law
of common sense. Presuming the husband who so testified against his wife to be
endowed with common sense, he must be taken to have expected that the most
natural reaction which the said testimony would give rise to on the part of the
prosecution, as well as of his wife, was to deny upon rebuttal the new matter
which was involved in the same testimony, namely, the imputation that it was his
wife who killed their little son. Upon the part of the prosecution, because he not
only limited himself to denying that he was the killer, but went further and added
what was really a new matter consisting in the imputation of the crime upon his
wife. And upon the part of the wife, because of the reasons already set forth
above. Hence, in giving such testimony, the husband must, in all fairness, be
held to have intended all its aforesaid natural and necessary consequences. By
his said act, the husband — himself exercising the very right which he would
deny to his wife upon the ground of their marital relations — must be taken to
have waived all objection to the latter's testimony upon rebuttal, even considering
that such objection would have been available at the outset.
At this point, it behooves us to emphasize the all-important role of the State in
this case. The State being interested in laying the truth before the courts so that
the guilty may be punished and the innocent exonerated, must have the right to
offer the rebutting testimony in question, even against the objection of the
accused, because it was the latter himself who gave rise to its necessity. It may
be said that the accused husband thought that he would have more chances of
convincing the court of his pretended innocence if he pointed to his wife as
having caused the death of their child, instead of simply denying that he was the
author of the fatal act. To this we would counter by saying that if he was to be
allowed, for his convenience, to make his choice and thereby impute the act
upon his spouse, justice would be partial and one-sided if both the State and the
wife were to be absolutely precluded from introducing the latter's rebutting
testimony.
As well-settled as this rule of marital incompetency itself is the other that it may
be waived.
Waiver of incompetency. — Objections to the competency of a husband
or wife to testify in a criminal prosecution against the other may be
waived as in the case of the other witnesses generally. Thus, the
accused waives his or her privilege by calling the other spouse as a
witness for him or her, thereby making the spouse subject to cross-
examination in the usual manner. It is well-established that where an
accused introduces his wife as a witness in his behalf, the state is
entitled to question her as to all matters germane and pertinent to her
testimony on direct examination. It is also true that objection to the
spouse's competency must be made when he or she is first offered as
 witness, and that the incompetency may be waived by the failure of the
accused to make timely objection to the admission of the spouse's
testimony, although knowing of such incompetency, and the testimony
admitted, especially if the accused has assented to the admission,
either expressly or impliedly. Other courts have held that the witness's
testimony is not admissible even with the other spouse's consent.
Clearly, if the statute provides that a spouse shall in no case testify
against the other except in a prosecution for an offense against the
other, the failure of the accused to object does not enable the state to
use the spouse as a witness. (3 Wharton's Criminal Evidence, 11th Ed.,
section 1205, pp. 2060-2061.)
Wharton, in note 10 at the foot of page 2060 of the cited volume refers us to
section 1149 appearing on page 1988 of the same volume, dealing with waiver
objection to incompetency of witnesses in general. We transcribe this section for
convenient reference:
Waiver of objection to incompetency. — A party may waive his objection
to the competency of a witness and permit him to testify. A party calling
an incompetent witness as his own waives the incompetency. Also, if,
after such incompetency appears, there is failure to make timely
objection, by a party having knowledge of the incompetency, the
objection will be deemed waived, whether it is on the ground of want of
mental capacity or for some other reason. If the objection could have
been taken during the trial, a new trial will be refused and the objection
will not be available on writ of error. If, however, the objection of a party
is overruled and the ruling has been excepted to, the party may
thereafter examine the witness upon the matters as to which he was
allowed to testify to without waiving his objections to the witness's
competency. (Ibid., section 1149, p. 1988.)
It will be noted, as was to be expected, that in the last above-quoted section, the
author mentions certain specific cases where the courts concerned hold that
there was waiver, but for obvious reasons neither the author nor said courts have
attempted to make an enumeration of all possible cases of waiver. In the very
nature of things, it would be impossible to make a priori such a complete
enumeration and to say that it is exclusive. So long as the Legislature itself does
not make its own statutory and exclusive specification of cases of such waiver —
and we doubt that it ever will — no complete and exclusive enumeration can, nor
should, be attempted by the courts, for in the absence of such legislation the
cases of waiver will be as indefinite in number as indefinite are and always will be
the varying and unpredictable circumstances surrounding each particular case.
To illustrate, Mr. Wharton says above that the accused waives his or her privilege
by calling the other spouse as a witness for him or her, thereby making the
spouse subject to cross-examination in the usual manner, the reason being that
the State is entitled to question the spouse so presented as to all matters
germane and pertinent to the direct testimony. In the same way, and for a similar
reason, when the herein appellant gave his testimony in question in his defense,
the State had the right to rebut the new matter contained in that testimony
consisting in the imputation upon his wife of the death of the little boy. And that
rebuttal evidence, which was rendered necessary byappellant's own
testimony, could be furnished only by his wife who, as he fully knew,
was alone with him and their son at the precise place and time of the event. This
right to rebut is secured to the State, no less than to the accused, by Rule 115,
section 3, paragraph (c), the provision further authorizing the court, in furtherance
of justice, to permit one or the other party to offer "new additional evidence
bearing upon the main issue in question." So that if the waiver that we here
declare to flow from the above-mentioned testimony of appellant does not
happen to be among those which were mentioned in the cases cited by Mr.
Wharton, that is no reason against the existence of said waiver.
When the husband testified that it was his wife who caused the death of their
son, he could not, let us repeat, justly expect the State to keep silent and refrain
from rebutting such new matter in his testimony, through the only witness
available, namely, the wife; nor could he legitimately seal his wife's lips and thus
gravely expose her to the danger of criminal proceedings against her being
started by the authorities upon the strength and basis of said testimony of her
husband, or to bear the moral and social stigma of being thought, believed, or
even just suspected, to be the killer of her own offspring. A decent respect and
considerate regard for the feelings of an average mother will tell us that such a
moral and social stigma would be no less injurious to her than a criminal
punishment. And if the wife should, in such a case and at such a juncture, be
allowed to testify upon rebuttal, the scope of her testimony should at least be the
same as that of her husband. This is only simple justice and fairness dictated by
common sense. Since the husband had testified that it was his wife who caused
the death of the little boy, she should be allowed to say that it was really her
husband who did it. We hold that it is not necessary, to justify such rebuttal
evidence, and to declare the existence of the waiver upon which it was based,
that the wife be in jeopardy of punishment in the same case by reason of such
testimony of her accused husband. The rule of waiver of objection to the
competency of witnesses generally does not require this prerequisite in the case
between husband and wife. Rather the rule makes the determination of the
question hinge around the consequences which by common sense, in justice and
in fairness, should be deemed to have been expected by the spouse who first
testified naturally to flow from his act of giving that testimony. At any rate, the trial
court not only had the power to allow the State to utilize the wife as rebuttal
witness, but also the discretion to permit "new additional evidence bearing upon
the main issue in question." But even restricting the wife's testimony to merely
contradicting her husband's version that she was the one who killed their child,
there is evidence beyond reasonable doubt that appellant was the killer. With the
testimony of both spouses upon the point, instead of that of the accused alone,
let justice take its course.
As to Exhibit D, this document was a part of the record of the case in the justice
of the peace of court which was expressly presented by the prosecution as
evidence in the Court of First Instance.
But after all has been said and done, in justice to the accused, we believe that,
whether we are dealing with a simpleton or an eccentric, or we have here one of
those well-nigh inexplicable phenomena in human conduct where the judge finds
himself at a loss to discover an adequate motivation for the proven acts of the
accused, — indulging all reasonable intendments in favor of appellant, we are of
opinion that when he committed the crime charged against him he must have
been suffering from some illness (of the body, the mind, the nerves, or the moral
faculty) as is contemplated in paragraph 9 of article 13 of the Revised Penal
Code as a mitigating circumstance, namely, "such illness of the offender as
would diminish the exercise of the will-power of the offender without however
depriving him of consciousness of his acts."
Article 246 of the Revised Penal Code punishes parricide by the penalty
of reclusion perpetua to death. Article 63, paragraph 3, of the same code,
provides that when the commission of the act is attended by some mitigating
circumstance and there is no aggravating circumstance, and the law prescribes a
penalty composed of two indivisible penalties, the lesser penalty shall be applied;
in this case, in view of the above indicated circumstance and there being no
aggravating circumstance, the lesser penalty is reclusion perpetua, which was
the penalty correctly applied by the trial court, which penalty, of course, carries
with it the accessory penalties provided for in article 41 of the said Code. The
accused should also be sentenced to indemnify the heirs of the deceased
Romeo Francisco in the sum of P2,000, and to pay the costs.
As above modified, the appealed judgment is affirmed, with costs against
appellant. So ordered.
Moran, C.J., Paras, Perfecto, Bengzon, and Tuason, JJ., concur.
Briones J., concurs in the result.
PADILLA, J.:
I concur in the result. To my mind the evidence is sufficient to support the
judgment of conviction without taking into consideration the testimony of the
appellant's wife in rebuttal. I agree with Mr. Justice Feria in his dissent that she is
incompetent to testify against the appellant, her husband, there being an
objection to her testifying against him.
Separate Opinions
PABLO, M., concurrente y disidente:
Concurro con la opinion de la mayoria en cuanto condena al acusado. En mi
opinion aun sin tener en cuenta la declaracion de la esposa del acusado en
contra-pruebas, obra en autos concluyente prueba que establece la culpabilidad
del acusado.
En cuanto a la interpretacion de la Regla 123, articulo 26, seccion (d), concurro
con la disidencia del Magistrado Sr. Feria. La declaracion de la esposa debe ser
excluida como prueba contra el acusado, por inadmissible.
FERIA, J., dissenting:
Without necessity of discussing the merits of the case and deciding whether the
appellant's conviction by the Court of First Instance must be affirmed or reversed,
for the majority has decided to affirm it and it would be useless now for the
undersigned to dissent from or concur in the conviction of the appellant, we
dissent from the new theory enunciated in the majority opinion that the
appellant's testimony to the effect that his wife was the one who unintentionally
inflicted the wound which caused the death of the child, capacitated his wife to
testify as a witness on rebuttal against her husband, and "constituted a waiver of
all objections to her testimony."
The pertinent portion of the majority decision reads as follows:
"The reasons given by law text-writers and courts why neither a
husband nor wife shall in any case be a witness against the other
except in a criminal prosecution for a crime committed by one against
the other have been stated thus: First, identity of interests, second, the
consequent danger of perjury; third, the policy of the law which deems it
necessary to guard the security and confidences of private life even at
the risk of an occasional failure of justice, and which rejects such
evidence because its admission would lead to domestic disunion and
unhappiness; and fourth, because, where a want of domestic tranquility
exists, there is danger of punishing one spouse through the hostile
testimony of the other. (70 C.J., 119)"
However, as all other general rules, this one has its own exceptions,
both in civil actions between the spouses and in criminal cases for
offenses committed by one against the other. Like the rule itself, the
exceptions are backed by sound reasons which, in the excepted cases,
outweigh those in support of the general rule. For instance, where the
marital and domestic relations are so strained that there is no more
harmony to be preserved nor peace and tranquility which may be
disturbed, the reason based upon such harmony and tranquility fails. In
such case identity of interests disappears and the consequent danger of
perjury based on that identity is non-existent. Likewise, in such a
situation, the security and confidences of private life which the law aims
at protecting will be nothing but ideals which, through their absence,
merely leave a void in the unhappy home."
The new theory of the majority is evidently untenable for it is predicated upon the
incorrect premise or assumption that the abovementioned reasons or grounds of
the incapacity of one of the spouses to testify against the other in a proceeding in
which the latter is a party, are also applicable to testimony of one spouse against
the other who is not a party to the cause which it is offered or given, as in the
present case. This premise or assumption is incorrect, for said reasons do not
apply to the latter case. Were it applicable, the law would have also disqualified
one spouse to give testimony which in any way disparages or disfavor the other
although the latter is not a party to the cause; but the law does not so. The
prohibition contained in section 26 (d) of Rule 123 only relates to cases in which
the testimony of a spouse is offered for or against the other in a proceeding to
which the latter is a party (U.S. vs.Concepcion, 31 Phil., 182;
People vs. Natividad, 70 Phil., 315). And the reason is obvious. Although the
testimony of the husband against his wife who is not a party to the case is
admissible; yet, as said testimony can not be used as evidence against the wife
in a civil case or criminal prosecution against her, it would not effectively strain
the marital and domestic relations; lead to domestic disunion and unhappiness;
disturb the peace, harmony, and tranquility of the family, and destroy the identity
of interest.
Such testimony, far from producing said results, might have a different effect.
Where one of the spouses testifies in his defense that the other spouse, who is
not a party to the case, is the one who committed the crime charged, his
testimony, if believed by the court, would result in the acquittal and release of the
defendant spouse and enable the accused, if confined in prison, to join again his
spouse, without placing the latter in danger of being prosecuted and convicted by
his testimony. In the present case, the testimony of the appellant does not
require any rebuttal by his wife, because, according to the clear provisions of law,
the latter can not testify against her husband appellant, and the courts should
take into consideration in determining the probative force of such a testimony.
And it does not call for a denial by the wife in herself or own defense, because it
can not be used or admitted without her consent as evidence in a criminal case
instituted against her for her son's death.
Under the new theory of the majority, the prosecutor of one spouse who, in order
to free himself from liability as defendant in a criminal case would testify, as the
appellant has testified, that his other spouse who is not a party to the case is
responsible for their child's death, may take advantage of such testimony to
induce that other spouse to testify in her defense according to the prosecution,
and the latter in so testifying would naturally accuse the defendant to be the
guilty party in order to save himself or herself from criminal liability.
Who may give the assurance that the defendant's wife in the present case did
testify the way she she testified against her husband, not because her husband
is really guilty, but because she wanted to defend and save herself, taking into
consideration the way the question were propounded to her by the prosecution
and her answers thereto? The prosecution asked her: "The accused testified
here that you were the one who inflicted the wound at the back of Romeo
Francisco, is that right?" and she answered: "No sir he was the one who inflicted
the wound to my son Romeo Francisco." "P. Did you see him inflict the wound to
the child? — R. Yes sir." (P. 23, st. notes.) Who may dispel from the mind the
doubt that the prosecution in the court below, believing erroneously, but in good
faith, that the testimony of the appellant in his defense is admissible against and
tended to make his wife criminally responsible, imparted such wrong belief to and
induced her thereby to testify imputing the commission of the crime to her
husband although he is not guilty, just to save herself.
It is plain that if the wife testified against her husband, it was because the fiscal
erroneously assumed in his interrogatory above quoted that the appellant later
imputed to her the crime charged, for the testimony of the appellant quoted below
clearly belies the fiscal's assumption:
P. Please tell the Court what happened when you sat beside your wife?
Sr. Fiscal: Objection, no basis.
Court: He may answer.
R. When I sat beside my wife and our son was lying face downward on
the bed I was joking my wife because at the time I was drunk.
P. What was the relative position of your son with respect to you and
your wife? — R. I am going to demonstrate our relative positions, (the
accused was facing his wife and the wife was facing in the opposite
direction and the son was between them lying face downward and little
bit behind on the bed). I used to touch her, so she swung her hand
backward towards me, then I stood up and evaded the blow. Later on I
heard the boy cried.
P. What hand did your wife swing, left or right hand?-- R. Her right hand.
P. Is this the very scissors when she swung her arm? — R. Yes, sir.
P. After she swung her arm what happened? — R. The child cried.
P. Then what happened? — R. When I stood up our child was already
wounded so I became obfuscated.
P. Then what happened? — R. I got hold of the scissors that she was
holding and stabbed her and then stabbed myself."
Besides, it is to be borne in mind that the capacity or incapacity of one of the
spouses to testify against the other is governed by the statute in force and the
Court should construe the statute such as it is, and not as it should. It is for the
law-making power to evolve new theories and enact law in accordance therewith.
The provisions of section 26 (c), Rule 123, were copied from those of section 383
(3) of Act No. 190, as amended, and the latter were in turn taken from similar
provisions of law in force in the States of the Union, which are based on the
common-law. Under the common-law, husband and wife are absolutely
incompetent against each other except in a civil case instituted by one against
the other, or in a criminal case for a crime committed by one against the other;
and the consent of a spouse can not render the other spouse competent. But in
many states, statutes were enacted granting exceptions upon the common-law
rule and enabling one of them to testify against the other with the consent of the
latter in civil case, or the consent of the other or both in criminal cases. Under
such statute, one spouse who calls the other as a witness thereby consents that
the latter shall testify; and if the adverse party offers one of the spouses against
the other and the latter does not object, then he or she is presumed to have
consented to it.
In the case of Toskstein vs. Birmmerle (150 Mo., 491; 131 S.W., 126), it was held
that incompetency of a wife continues as at common-law where she is not
rendered competent under the provision of the enabling statute. In the case of
Conley vs. State (176 Ark., 654; 3 S.W. [2d], 980), the Supreme Court of
Arkansas ruled that statutes providing that no person shall be excluded from
testifying in prosecution for violation of Liquor Act do not change the general rule
that a wife cannot testify against her husband in a criminal prosecution. And in
another case entitled Connecticut Fire Ins. Co. vs. Chester P. & Ste. G.R. Co.
(171 Mo. App., 70; 153 S.W., 544), it was held that unless wife comes within
exceptions of the enabling statute granting exceptions upon the common-law rule
excluding her testimony in an action in which her husband is interested, the wife
can not testify.
Therefore, inasmuch as our statute on the matter, or section 26 (d), Rule 123,
provides that a wife cannot be examined for or against her husband without his
consent except in a criminal case for crime committed by one against the other,
and the appellant in the present case objected strenuously to the testimony of
her wife against him, her testimony is inadmissible and can not be taken into
consideration in the decision of the case. We can not, by any process of
reasoning or stretch of imagination, construe said provision so as to capacitate a
wife to be a witness against her husband if the latter, in testifying in his own
defense, says that his wife was the one who accidentally inflicted the fatal wound
on their small child. We can not evolve a new theory, however reasonable and
plausible it may be, and apply for the first time as if it were the law in the present
case against the appellant. It may be a good theory or a sufficient reason for
amending the law in order to include it as one of the exceptions of the rule
incapacitating one spouse to testify against the other; but we can not legally
apply it as a law now against the appellant, a defendant in a criminal case.
But the majority, not being sure of its stand on the admissibility of the testimony
of the wife against her husband, further states:
At any rate, in the instant case the wife did not testify in the direct
evidence for the prosecution but under circumstances presently to be
stated. It will be noted that the wife only testified against her husband
after the latter, testifying in his own defense imputed upon her the killing
of their little son. (P. 15, ibid.) By all rules of justice and reason this gave
the prosecution, which had theretofore refrained from presenting the
wife as a witness against her husband, the right to do so, as it did in
rebuttal; and to the wife herself the right to so testify, at least, in self-
defense,. . .. (P. 704, ante.)
To this we may reply that, in the first place, the testimony of the wife to the effect
that her husband was the one who inflicted and she saw him inflict the wound on
Romeo Francisco that caused the death of the latter (pp. 23, 24, st. notes), is not
a rebutting but a new additional evidence bearing upon the main issue whether
or not the defendant is guilty of the offense charged. For according to section 3
(c), Rule 115, the prosecution may, after the defendant has presented evidence
in support of his defense, "offer rebutting testimony, but rebutting only, unless the
court in furtherance of justice, permit them to offer new additional evidence
bearing upon the main issue in question." Her testimony would have been in
rebuttal only if she had limited herself to say that she did not inflict the wound on
her son. And in the second place, to make the testimony of the wife admissible in
rebuttal against the appellant, would be to amend the provision of said section 26
(d) of Rule 123 and establish another exception, that has never been adopted by
the statutes anywhere in the States of the Union and in this jurisdiction.
And not being sure as to the scope of a rebuttal testimony, the majority opinion
adds the following:
When the husband testified that it was his wife who caused the death of
their son, he could not, let us repeat, justly expect the State to keep
silent and refrain from rebutting such new matter in his testimony,
through the only witness available, namely, the wife; nor could he
legitimately seal his wife's lips and thus gravely expose her to the
danger of criminal proceedings against her being started by the
authorities upon the strength and basis of said testimony of her
husband, or to bear the moral and social stigma of being thought,
believed, or even just suspected, to be the killer of her own offspring. . .
. And if the wife should, in such a case and at such a juncture, be
allowed to testify upon rebuttal, the scope of her testimony should at
least be the same as that of her husband. This is only simple justice and
fairness dictated by common sense. Since the husband had testified
that it was his wife who caused the death of the little boy, she should be
allowed to say that it was really her husband who did it. . . . At any rate,
the trial court not only had the power to allow the State to utilize the wife
as rebuttal witness, but also the discretion to permit "new additional
evidence bearing upon the main issue in question." But even restricting
the wife's testimony to merely contradicting her husband's version that
she was the one who killed their child, there is evidence beyond
reasonable doubt that appellant was the killer.
It is elemental that the scope of a rebuttal is circumscribed to contradicting or
destroying the evidence of the adverse party tending to prove new matter in favor
of the latter, and can not extend to disproving directly the main issue in question,
that is, the guilt of the appellant in the present case. Evidently, the testimony of
the husband that his wife was the one who unintentionally inflicted the wound
which caused the death of their child, can not gravely expose her to the danger
of criminal proceeding against her," and "to bear the moral and social stigma of
being thought, believed, or even just suspected to be the killer of her own
offspring;" because said testimony is not admissible against his wife in that or in
any other cases, and everybody is presumed to know the law that incapacitates
the wife to testify against her accused husband and contradict what the latter
may testify against her however false it may be.
The conclusion in the majority decision that, if not in rebuttal, the court had
discretion to permit the prosecution to present the testimony of the wife, as
additional evidence bearing upon the main issue in question, is absolutely
untenable, since we have already shown that such a testimony is inadmissible as
evidence, and this court has already decided in the case of People vs.
Natividad (above cited), squarely applicable to the present case, that "a wife can
not testify against her husband in a criminal case in which the latter was charged
with having killed the child of the former."
The matter under discussion is the incompetency of the wife to testify, directly or
in rebuttal, in the present case against her husband, and not the guilt or
innocence of the appellant. Hence the last statement in the above quoted
decision of the majority that "even restricting the wife's testimony as merely
contradicting the husband's version that she was the one who killed their child,
there is other evidence beyond reasonable doubt that the appellant is the killer,"
is out of place for it has no bearing on the issue. The conclusion of fact on which
a sentence declaring a defendant guilty must be positive and not argumentative.
And if the appellant is to be convicted on the strength of other evidence, aside
from the testimony of the appellant's wife, the decision should express clearly
and distinctly the facts and the law on which the decision convicting the appellant
is based, as required by section 12, Article IX of the Constitution.
The majority's conclusion that the testimony of the appellant to the effect that the
cause of the death of their child was the wound unintentionally inflicted by his
wife, constituted a waiver of all objection to her testimony, is without any
foundation in fact and in law; because the defendant had strongly and
persistently objected to his wife taking the witness stand (st. t.s.n., p. 23), and no
law, court or authority, from time immemorial up to the present, has ever
recognized such testimony as a waiver. The only cases in which the incapacity of
one of the spouses to testify against the other is considered waived according to
law, are those stated in section 1205, of Wharton on Criminal Evidence, Vol. 3,
11th ed., quoted in the very opinion of the majority, which says the following:
SEC. 1205. Waiver of incompetency. — Objections to the competency
of a husband or wife to testify in a criminal prosecution against the other
may be waived as in the case of other witnesses generally. Thus, the
accused waives his or her privilege by calling the other spouse as a
witness for him or her, thereby making the spouse subject to cross-
examination in the usual manner. It is well-established that where an
accused introduces his wife as a witness in his behalf, the state is
entitled to question her as to all matters germane and pertinent to her
testimony on direct examination. It is also true that objection to the
spouse's competency must be made when he or she is first offered as a
witness, and that the incompetency may be waived by the failure of the
accused to make timely objection to the admission of the spouse's
testimony, although knowing of such incompetency, and the testimony
admitted, especially if the accused has assented to the admission,
either expressly or impliedly.
But the decision, after quoting subsequently section 1149 of the same work,
which refers to waiver of objection to competency of a witness in general,
concludes by saying "It will be noted, as was to be expected, that in the last-
quoted section, the author mentions certain specific cases where the courts
concerned hold that there was waiver, but for obvious reasons neither the author
nor the said courts have attempted to make an enumeration of all possible cases
of waiver. In the very nature of things, it would be impossible to make a
priori such a complete enumeration and to say that it is exclusive." The last-
quoted section in the decision reads in its pertinent part as follows:
SEC. 1149. Waiver of objection to incompetency. — A party may waive
his objection to the competency of a witness and permit him to testify. A
party calling an incompetent witness as his own waives the
incompetency. Also, if, after such incompetency appears, there is a
failure to make timely objection, by a party having knowledge of the
incompetency, the objection will be deemed waived, whether it on the
ground of want of mental capacity or for some other reason. . . .
The cases of waiver specified by Wharton in sections 1149 and 1205 of his work
on criminal evidence above-quoted, are the only cases of waiver of the objection
to the competency of one spouse to testify against the other, as well as of the
objection to the competency of any other witness to testify. Not only Wharton but
all works on criminal evidence enumerate only those cases, because there are
no other cases provided for by the statutes or declared by the courts in their
decisions. Authors or writers on evidence do not generally evolve and formulate
new legal theories but only expound those based on positive laws as the latter
have been interpreted and construed up-to-date by the courts. It is to be
presumed that during several centuries in which the rule excluding the testimony
of one spouse in a case in which the other is interested has been in force, a case
similar to the present must have been arisen, and it would be too presumptuous
to assume that this Court is the first to find correctly that the case is one of the
exceptions upon said rule. For the majority can not point out a single decision in
support of the exception which the majority intends to establish now for the first
time.
The above-mentioned cases of the objection to the competency of one of the
spouses to testify against the other are the only ones, and no writers on evidence
nor courts did or could enumerate or recognize other cases, since no legislative
or law making power had so provided; because what is called waiver is merely or
nothing more than the consent of one spouse that the other testify in a case in
which he or she is interested or a party, consent provided for as exception by
law. As the consent may be either express or implied: express when the spouse
who is a party presents the other spouse to testify, and implied when the adverse
party or the prosecution presents the other spouse as a witness, and the spouse
against whom the other is to testify does not object; so the waiver may also be
expressed and implied. And, therefore, just as there can not be any other way of
giving such consent than those above-stated, so there is no other case of waiver
under the laws now in force.

Therefore, this Court must, in the interest of justice, reject the testimony of the
defendant's wife, admitted as rebuttal evidence over the objection of the
appellant, and considered by the majority as corroborative of the defendant's
extrajudicial confession Exhibit C, and decide whether this confession alone is
sufficient to support the appellant's conviction.
G.R. No. L-25643 June 27, 1968
JOSE MANUEL LEZAMA and PAQUITA LEZAMA, petitioners,
vs.
HON. JESUS RODRIGUEZ, Judge of the Court of First Instance of Iloilo,
JOSE DINEROS, in his capacity as Receiver of the LA PAZ ICE PLANT and
COLD STORAGE CO., INC., and THE HON. COURT OF
APPEALS, respondents.
Efrain B. Trenas and Sergio D. Mabunay for petitioners.
Ricardo J. Gerochi for respondents.
CASTRO, J.:
The issue tendered for resolution in this case is whether a wife, who is a co-
defendant of her husband in an action, may be examined as a hostile witness by
the adverse party under section 6 of Rule 132 of the Rules of Court, without
infringing on her marital privilege not to testify against her husband under section
20 (b) of Rule 130. The trial court, presided by the respondent Judge Jesus
Rodriguez, ruled in the affirmative and required the wife to appear and testify.
The petitioners sued for certiorari but the Court of Appeals dismissed their
petition1 and denied their motion for reconsideration.2 Hence this appeal.3
On July 18, 1960 Jose S. Dineros, acting as receiver of the La Paz Ice Plant &
Cold Storage Co. in Iloilo, together with C.N. Hodges and Ricardo Gurrea, filed
an action in the Court of First Instance of Iloilo for the annulment of a judgment
rendered against the La Paz Ice Plant by the Court of First Instance of Manila in
civil case 39827. Named as defendants were Marciano C. Roque, in whose favor
judgment was rendered, and the spouses Jose Manuel and Paquita Lezama.
The complaint alleged that, because of mismanagement by the Lezamas, the La
Paz Ice Plant was placed under the receivership of Dineros; that during the
pendency of the receivership, Marciano C. Roque brought an action against the
La Paz Ice Plant in the Court of First Instance of Manila for the collection of
P150,000, which sum he had supposedly lent to it; that summons was served not
on the receiver but on the spouses Jose Manuel and Paquita Lezama; and that,
through the collusion of the Lezamas, Roque was able to obtain judgment by
default against the company. It was claimed that, because the summons was
served on Jose Manuel Lezama instead of on the receiver, the Court of First
Instance of Manila acquired no jurisdiction over the La Paz Ice Plant and that,
therefore, the decision of that court was void.1ªvvphi1.nêt
In their answer, the defendant spouses (the herein petitioners), while admitting
that the company was placed under receivership, maintained that Jose Manuel
Lezama nevertheless remained president of the La Paz Ice Plant and that as
such he had authority to receive in behalf of the company the court summons in
civil case 39827. They denied entering into collusion with Roque and averred that
they did not contest Roque's claim because they knew it to be a legitimate
obligation which the La Paz Ice Plant had incurred pursuant to a resolution of its
board of directors.
Issues having been joined, the case was thereupon heard. At the hearing
Dineros asked the court to issue a subpoena to Paquita Lezama to testify as "a
witness summoned by the plaintiffs in accordance with the Rules of Court." The
request was granted over the objection of the petitioners who invoked the
following provision of the Rules of Court:
A husband cannot be examined for or against his wife without her
consent; nor a wife for or against her husband without his consent,
except in a civil case by one against the other, or in a criminal case for a
crime committed by one against the other, or in a criminal case for a
crime committed by one against the other.4
This provision deals with two different matters which rest on different grounds of
policy: the disqualification of husband and wife to testify in each other's behalf, as
well as their privilege not to testify against each other.5 The fundamental theory
of the common law is said to be that relationship of the spouses, not their
pecuniary interest, is the basis of the disqualification. 6 Indeed section 20 of Rule
130 is entitled "Disqualification by reason of ... relationship."
On the other hand, while a shelter of emotional reasons has been offered7 for the
privilege, the "true explanation [which] is after all the simplest" 8 and which
constitutes "the real and sole strength of the opposition to abolishing the
privilege," is the natural repugnance in every fair-minded person to compelling a
wife or husband to be the means of the other's condemnation and to subjecting
the culprit to the humiliation of being condemned by the words of his intimate life
partner.9
Here the request for subpoena indicated that Paquita Lezama was to do no more
than testify as an adverse party in the case and, indeed, in the light of the
allegations both in the complaint and in the answer, the request was apparently
one that could reasonably be expected to be made. Thus, the complaint charged
13. — That in obtaining the judgment by default in Civil Case No. 39827
of the Court of First Instance of Manila against the La Paz Ice Plant &
Cold Storage Co., Inc. defendants, in gross and evident bad faith, and in
fraudulent conspiracy, made it appear that the La Paz Ice Plant & Cold
Storage Co., Inc. had obtained a loan of P150,000.00 from defendant
Marciano C. Roque thru defendant Jose Manuel Lezama allegedly upon
an authority vested upon defendant Jose Manuel Lezama by the alleged
Board of Directors of the La Paz Ice Plant & Cold Storage Co., Inc.
allegedly evidenced by the minutes of the meetings of the Board of
Directors of the said corporation signed by defendant Jose Manuel
Lezama and attested to by Benjamin Luis Borja and Paquita B. Lezama
and that defendants spouses Jose Manuel Lezama and Paquita B.
 Lezama had manipulated the books of the corporation by making it
appear that such fictitious loan was then in existence.
On the other hand, the answer claimed
13. That the herein defendants specifically deny all the allegations
contained in paragraph 13 of the complaint; the truth is, that the herein
defendants have not conspired and acted in bad faith with the plaintiff
[Marciano C. Roque] in Civil Case No. 39827 of the Court of First
Instance of Manila for the rendition of the said judgment referred to
therein; for the truth is, that the herein defendants, in their capacities as
President-Manager and Secretary of the La Paz Ice Plant & Cold
Storage Co., Inc., believing as they believe that the obligation sought to
be enforced by said civil action being legitimate and the allegations of
the complaint in said Civil Case No. 39827 of the Court of First Instance
of Manila are true, they did not deem it wise to contest the same; that
the obligation of P150,000.00 of the La Paz Ice Plant & Cold Storage
Co., Inc., which the defendant Marciano C. Roque sought to be
enforced in Civil Case No. 39827 of the Court of First Instance of Manila
was legitimately contracted in accordance with law; that said obligation
was duly entered in the books of the corporation and that the said loan
is not fictitious; that the amount realized therefrom was spent for the
benefit of the said corporation.
Thus, while the petitioners denied the charge that the loan was fictitious, they did
not deny the allegation that it was Paquita Lezama who, as secretary of the
company, signed the minutes of the meeting at which Jose Manuel Lezama was
allegedly authorized to negotiate the loan and that it was she who, likewise as
secretary, made the entry in the books of the corporation.
It was obviously to test the truth of the assertion that the loan transaction was
above board that Dineros, the company receiver, wanted Paquita Lezama on the
witness stand, not as a spouse witness "for or against her husband," but rather
as an adverse party in the case.
It is postulated that a party can make, as it were, such forays into his opponent's
position on the strength of section 6 of Rule 132 which provides:
Direct examination of unwilling or hostile witnesses. — A party may
interrogate any unwilling or hostile witness by leading questions. A party
may call an adverse party or an officer, director, or managing agent of a
public or private corporation or of a partnership or association which is
an adverse party, and interrogate him by leading questions and
contradict and impeach him in all respects as if he had been called by
the adverse party and the witness thus called may be contradicted and
impeached by or on behalf of the adverse party also, and may be cross-
examined by the adverse party only upon the subject-matter of his
examination in chief.
The basic issue may therefore be restated thus: In this case where the wife is a
co-defendant in a suit charging fraud against the spouses, can the wife be
compelled to testify as an adverse party witness concerning her participation in
the alleged fraud without violating section 20 (b) of Rule 130?
It is argued that the wife may be so compelled but her testimony would be
receivable only against her.10 It is even suggested that "each may testify in his or
her own behalf, although the testimony may inure to the benefit of the other
spouse, or against his or her own interest, although the testimony may also
militate against the other spouse."11 Upon the other hand, it is insisted that
compelling Paquita Lezama to testify will transgress section 20(b) of Rule 130,
especially if her testimony will support the plaintiff's charge.
The complaint charges "fraudulent conspiracy" on the part of the spouses and
one Marciano C. Roque to make it appear that the La Paz Ice Plant & Cold
Storage Co., Inc. was indebted to Roque. The wife, Paquita Lezama, is called
upon to testify as an adverse party witness on the basis of her following
participation in the alleged fraudulent scheme: "that it was Paquita Lezama who
as Secretary of the company signed the minutes of the meeting during which
Manuel Lezama was allegedly authorized to negotiate the loan and that it was
she who, likewise as Secretary, made the entry in the books of the corporation."
Evidently, Paquita Lezama will be asked to testify on what actually transpired
during the meeting and will be asked questions on the matter of the veracity or
falsity of the entry in the books of the corporation. Whether her testimony will turn
out to be adverse or beneficial to her own interest, the inevitable result would be
to pit her against her husband. The interests of husband and wife in this case are
necessarily interrelated. Testimony adverse to the wife's own interests would
tend to show the existence of collusive fraud between the spouses and would
then work havoc upon their common defense that the loan was not fictitious.
There is the possibility, too, that the wife, in order to soften her own guilt, if guilty
she is, may unwittingly testify in a manner entirely disparaging to the interests of
the husband.
Because of the unexpensive wording of the rule which provides merely that the
wife cannot be examined "for or against her husband without his consent," it is
further argued that "when husband and wife are parties to an action, there is no
reason why either may not be examined as a witness for or against himself or
herself alone," and his or her testimony could operate only against himself or
herself.12
Even if such view were generally acceptable as an exception to the rule, or even
as a separate doctrine, it would be inapplicable in this case where the main
charge is collusive fraud between the spouses and a third person, and the
evident purpose of examination of the wife is to prove that charge.
Indeed, in those jurisdictions which allow one spouse to be subjected to
examination by the adverse party as a hostile witness when both spouses are
parties to the action, either the interests of the spouses are separate or
separable, or the spouse offered as a witness is merely a formal or nominal
party.13

The final point urged upon us is that to prevent one spouse from testifying would
encourage alliance of husband and wife as an instrument of fraud; for then what
better way would there be to prevent discovery than to make a co-conspirator in
fraud immune to the most convenient mode of discovery available to the opposite
party? This argument overlooks the fact that section 6 of Rule 132 is a mere
concession, for the sake of discovery, from the rule which precludes the husband
or the wife from becoming the means of the other's condemnation. The said rule
of discovery should therefore not be expanded in meaning or scope as to allow
examination of one's spouse in a situation where this natural repugnance
obtains.

It may not be amiss to state in passing that the respondent Dineros has not
demonstrated that there is no evidence available to him other than the Lezamas'
testimony to prove the charge recited in the complaint.1äwphï1.ñët

ACCORDINGLY, the resolutions appealed from are versed, and this case is
ordered remanded to the court of origin for further proceedings in accordance
with law. No costs.
G.R. No. L-27434 September 23, 1986
GENARO GOÑI, RUFINA P. vda. DE VILLANUEVA, VIOLA P. VILLANUEVA,
OSCAR P. VILLANUEVA, MARINA P. VILLANUEVA, VERNA P.
VILLANUEVA, PRAXEDES P. VILLANUEVA, JR., JOSE P. VILLANUEVA,
SAMUEL P. VILLANUEVA, LOURDES P. VILLANUEVA, MILAGROS P.
VILLANUEVA DE ARRIETA, petitioners-appellants,
vs.
THE COURT OF APPEALS and GASPAR VICENTE, respondents-appellees.
Ambrosio Padilla Law Office for petitioners-appellants.
San Juan, Africa, Gonzales & San Agustin Law Office for respondents-appellees.
FERNAN, J.:
This is an appeal by certiorari from the decision of the then Court of Appeals in
CA-G.R. No. 27800-R entitled, "Gaspar Vicente, Plaintiff-Appellant, vs. Genaro
Goni, et. al., Defendants-Appellants" as well as from the resolution denying
petitioners' motion for reconsideration.
The factual backdrop is as follows:
The three (3) haciendas known as San Sebastian, Sarria and Dulce Nombre de
Maria situated in the Municipality of Bais, Negros Oriental, were originally owned
by the Compania General de Tabacos de Filipinas [TABACALERA]. Sometime in
1949, the late Praxedes T. Villanueva, predecessor-in-interest of petitioners,
negotiated with TABACALERA for the purchase of said haciendas. However, as
he did not have sufficient funds to pay the price, Villanueva with the consent of
TABACALERA, offered to sell Hacienda Sarria to one Santiago Villegas, who
was later substituted by Joaquin Villegas. Allegedly because TABACALERA did
not agree to the transaction between Villanueva and Villegas, without a guaranty
private respondent Gaspar Vicente stood as guarantor, for Villegas in favor of
TABACALERA. The guarantee was embodied in a document denominated as
"Escritura de Traspaso de Cuenta." 1
Either because the amount realized from the transaction between Villanueva and
Villegas still fell short of the purchase price of the three haciendas, or in
consideration of the guaranty undertaken by private respondent Vicente,
Villanueva contracted or promised to sell to the latter fields nos. 3, 4 and 13 of
Hacienda Dulce Nombre de Maria for the sum of P13,807.00. This agreement
was reduced to writing and signed by petitioner Genaro Goni as attorney-in-fact
of Villanueva, thus:
En consideracion a la garantia que Don Gaspar Vicente
assume con la Cia. Gral. de Tabacos de Filipinas por el saldo
de Don Santiago Villegas de P43,539.75 asumido por Don
Joaquin Villegas el que Subscribe Praxedes T. Villanueva se
compromete ceder es venta a Don Gaspar Vicente los campos
nos. 3, 4 y 13 del plano de porcelario de la Hacienda Dulce
Nombre de Maria, en compra projectada de la Cia. Gral. de
Tabacos de Filipinas. Estas campos representan 6-90-35
hectares por valor de P13,807.00 que Don Gasper Vicente
pagara directamente a Praxedes T. Villanueva
Bais Central, Octubre 24, 1949.
Fdo. Praxedes T. Villanueva
Por: Fdo Genaro Goñi Apoderado 2
Private respondent Vicente thereafter advised TABACALERA to debit from his
account the amount of P13,807.00 as payment for the balance of the purchase
price. However, as only the amount of P12,460.24 was actually needed to
complete the purchase price, only the latter amount was debited from private
respondent's account. The difference was supposedly paid by private respondent
to Villanueva, but as no receipt evidencing such payment was presented in court,
this fact was disputed by petitioners.
It is alleged by petitioners that subsequent to the execution of the
contract/promise to sell, Villanueva was able to raise funds by selling a property
in Ayungon, Negros Oriental. He thus went to private respondent Vicente for the
purpose of rescinding the contract/promise to sell However, as the amount of
P12,460.24 had already been debited from private respondent's account, it was
agreed that lots 4 and 13 of the Hacienda Dulce Nombre de Maria would merely
be leased to private respondent Vicente for a period of five (5) years starting with
crop-year 1950-51 at an annual rental of 15% of the gross income, said rent to
be deducted from the money advanced by private respondent and any balance
owing to Villanueva would be delivered by Vicente together with the lots at the
end of the stipulated period of lease.
On December 10, 1949, TABACALERA executed a formal deed of sale covering
the three haciendas in favor of Villanueva. Fields Nos. 3, 4 and 13 of the
Hacienda Dulce Nombre de Maria were thereafter registered in the name of
Villanueva under TCT No. T-4780 of the Register of Deeds of Negros Oriental.
The fields were likewise mortgaged by Villanueva to the Rehabilitation Finance
Corporation (RFC), later transferred to the Philippine National Bank on
December 16, 1955, for a total indebtedness of
P334,400.00.3
Meanwhile, Fields nos. 4 and 13 were delivered to private respondent Vicente
after the 1949-1950 milling season in January and February, 1950.
On June 17, 1950, Villanueva executed a "Documento de la Venta Definitive" in
favor of Joaquin Villegas, covering Lot No. 314 of the Cadastral Survey of Bais
with an area of 468,627 square meters, more or less. (Hacienda Sarria). A
supplemental instrument was later executed by Villanueva in favor of Villegas to
include in the sale of June 17, 1950 the sugar quota of the land.
On November 12, 1951, Villanueva died. Intestate proceedings were instituted on
November 24, 1951 before the then Court of First Instance of Negros Oriental,
docketed as Special Case No. 777. Among the properties included in the
inventory submitted to the court were fields nos. 3, 4 and 13 of Hacienda Dulce
Nombre de Maria. Field no. 13 with an area of 1 hectare, 44 ares and 95
centares was listed as Lot no. 723 of the inventory while fields nos. 3 and 4, with
areas of 3 hectares, 75 ares and 60 centares, and 1 hectare, 69 ares and 80
centares, respectively, were included in Lot no. 257 of the inventory.
On October 7, 1954, the day before the intestate proceedings were ordered
closed and the estate of the late Praxedes Villanueva delivered to his heirs,
private respondent Vicente instituted an action for recovery of property and
damages before the then Court of First Instance of Negros Oriental against
petitioner Goñi in his capacity as administrator of the intestate estate of Praxedes
Villanueva. In his complaint docketed as Civil Case No. 2990, private respondent
Vicente sought to recover field no. 3 of the Hacienda Dulce Nombre de Maria,
basing his entitlement thereto on the contract/promise to sell executed by the late
Praxedes Villanueva in his favor on October 24, 1949. He likewise prayed by way
of attorney's fees and other costs the sum of P2,000.00 and for such other further
relief which the court may deem just and equitable in the premises. 4
On October 25, 1954, petitioner Goni as defendant in Civil Case No. 2990, filed
an answer with counterclaim for accounting of the produce of fields nos. 4 and
13, as well as the surrerder thereof on June 20, 1955, the end of the fifth crop-
year, plus moral damages in the sum of P30,000.00 and P3,000.00 as attorney's
fees. After an answer to the counter-claim had been filed, private respondent
Vicente amended his complaint on September 1, 1955, to include a prayer for
damages representing the produce of field no. 3 from 1949-50 until delivery
thereof to him. An answer with counterclaim to the amended complaint was duly
filed, and on April 25, 1956, private respondent Vicente amended his complaint
anew to include as parties-defendants the heirs of the late Praxedes Villanueva.
On July 13, 1957, the parties entered into a stipulation of facts, agreeing, among
others, on the costs of production and produce of the three fields in question. The
case thereafter proceeded to trial. Plaintiff presented two (2) witnesses: then
party-plaintiff Gaspar Vicente, himself, who over the objection of therein
defendants testified on facts occurring before the death of Praxedes Villanueva,
and Epifanio Equio a clerk of TABACALERA Agency in the Bais Sugar Central.
Defendants presented Genaro Goni, who testified on the alleged verbal lease
agreement.
On December 18, 1959, the trial court rendered a decision ordering therein
defendants-heirs to deliver to Gaspar Vicente field no 3, to execute a formal deed
of sale covering fields nos. 3, 4 and 13 in favor of Vicente, to pay the latter actual
or compensatory damages in the amount of P 81,204.48, representing 15% of
the total gross income of field no. 3 for crop-years 1950-51 to 1958-59, and such
other amounts as may be due from said field for the crop years subsequent to
crop-year 1958-59, until the field is delivered to Vicente, and to pay the sum of
P2,000.00 as attorney's fees plus costs. Therein defendant Goñi was relieved of
any civil liability for damages, either personally or as administrator of the estate. 5
Both parties appealed the decision to the then Court of Appeals; the plaintiff from
the portion awarding damages on a claim that he was entitled to more, and
defendants, from the entire decision.
On December 15, 1966, the Court of Appeals promulgated its decision, affirming
that of the lower court, with the modification that the amount of damages to be
paid by defendant-heirs to the plaintiff should be the total net income from field
no. 3 from the crop year 1950-51 until said field is finally delivered to the plaintiff
plus interest thereon at the legal rate per annum. 6
Petitioners filed a motion for reconsideration, but were denied the relief sought in
a resolution dated February 9, 1967. Hence, the present appeal by certiorari
whereby petitioners raise the following questions of law:
MAY RESPONDENT GASPAR VICENTE TESTIFY ON
MATTERS OF FACT OCCURRING BEFORE THE DEATH OF
PRAXEDES T. VILLANUEVA, WHICH CONSTITUTES A
CLAIM OR DEMAND UPON HIS ESTATE. IN VIOLATION OF
RULE 123, SEC, 26, PAR. (C), NOW RULE 130, SEC. 20
PAR. (A)?
MAY NOT A WRITTEN PROMISE TO SELL DATED
OCTOBER 24,1949 BE NOVATED INTO A VERBAL
AGREEMENT OF LEASE DURING THE LIFETIME OF THE
PROMISSOR, WHOSE DEATH OCCURRED ON NOVEMBER
12, 1951, BY FACTS AND CIRCUMSTANCES
SUBSTANTIATED BY COMPETENT ORAL EVIDENCE IN
THIS CASE?
SHOULD THE PROMISEE IN A PROMISE TO SELL, WHO
PAID P12,460.24 WHICH WAS TO BE ACCOUNTED AND TO
BE CREDITED AS RENTALS AFTER FIVE (5) YEARS OF
LEASE, WHO IN HIS ORIGINAL COMPLAINT DID NOT
ALLEGE NOR PROVE DAMAGES, EXCEPT THE SUM OF
 P2,000.00 AS ATTORNEY'S FEES, RECEIVE A JUDGMENT
FOR DAMAGES IN THE AMOUNT OF P74,056.35 WHICH
CONSISTS OF P37,121.26 PLUS LEGAL INTEREST FOR
THE CROP YEARS 1950-51 TO 1958-59 AND FOR
P3,624.18 TO P4,374.78 FOR EVERY CROP YEAR
SUBSEQUENT TO 1958-59 PLUS
INTEREST? 7
We find that neither the trial nor appellate court erred in ruling for the admissibility
in evidence of private respondent Vicente's testimony. Under ordinary
circumstances, private respondent Vicente 8 would be disqualified by reason of
interest from testifying as to any matter of fact occurring before the death of
Praxedes T. Villanueva, such disqualification being anchored on Section 20(a) of
Rule 130, commonly known as the Survivorship Disqualification Rule or Dead
Man Statute, which provides as follows:
Section 20. Disqualification by reason of interest or
relationship.-The following persons cannot testify as to matters
in which they are interested, directly or indirectly, as herein
enumerated:
(a) Parties or assignors of parties to a case, or persons in
whose behalf a case is prosecuted, against an executor or
administrator or other representative of a deceased person, or
against a person of unsound mind, upon a claim or demand
against the estate of such deceased person or against such
person of unsound mind, cannot testify as to any matter of fact
occurring before the death of such deceased person or before
such person became of unsound mind.
The object and purpose of the rule is to guard against the temptation to give false
testimony in regard to the transaction in question on the part of the surviving
party and further to put the two parties to a suit upon terms of equality in regard
to the opportunity of giving testimony.9 It is designed to close the lips of the party
plaintiff when death has closed the lips of the party defendant, in order to remove
from the surviving party the temptation to falsehood and the possibility of fictitious
claims against the deceased. 10
The case at bar, although instituted against the heirs of Praxedes Villanueva
after the estate of the latter had been distributed to them, remains within the
ambit of the protection. The reason is that the defendants-heirs are properly the
"representatives" of the deceased, not only because they succeeded to the
decedent's right by descent or operation of law, but more importantly because
they are so placed in litigation that they are called on to defend which they have
obtained from the deceased and make the defense which the deceased might
have made if living, or to establish a claim which deceased might have been
interested to establish, if living. 11
Such protection, however, was effectively waived when counsel for petitioners
cross-examined private respondent Vicente. "A waiver occurs when plaintiff's
deposition is taken by the representative of the estate or when counsel for the
representative cross-examined the plaintiff as to matters occurring during
deceased's lifetime. 12 It must further be observed that petitioners presented a
counterclaim against private respondent Vicente. When Vicente thus took the
witness stand, it was in a dual capacity as plaintiff in the action for recovery of
property and as defendant in the counterclaim for accounting and surrender of
fields nos. 4 and 13. Evidently, as defendant in the counterclaim, he was not
disqualified from testifying as to matters of fact occurring before the death of
Praxedes Villanueva, said action not having been brought against, but by the
estate or representatives of the estate/deceased person.
Likewise, under a great majority of statutes, the adverse party is competent to
testify to transactions or communications with the deceased or incompetent
person which were made with an agent of such person in cases in which the
agent is still alive and competent to testify. But the testimony of the adverse party
must be confined to those transactions or communications which were had with
the agent. 13 The contract/promise to sell under consideration was signed by
petitioner Goñi as attorney-in-fact (apoderado) of Praxedes Villanueva. He was
privy to the circumstances surrounding the execution of such contract and
therefore could either confirm or deny any allegations made by private
respondent Vicente with respect to said contract. The inequality or injustice
sought to be avoided by Section 20(a) of Rule 130, where one of the parties no
longer has the opportunity to either confirm or rebut the testimony of the other
because death has permanently sealed the former's lips, does not actually exist
in the case at bar, for the reason that petitioner Goñi could and did not negate
the binding effect of the contract/promise to sell. Thus, while admitting the
existence of the said contract/promise to sell, petitioner Goñi testified that the
same was subsequently novated into a verbal contract of lease over fields nos. 4
and 13 of the Hacienda Dulce Nombre de Maria.
Novation takes place when the object or principal condition of an obligation is
changed or altered. 14 In order, however, that an obligation may be extinguished
by another which substitutes the same, it is imperative that it be so declared in
unequivocal terms, or that the old and the new obligations be on every point
incompatible with each other. 15 "Novation is never presumed. It must be
established that the old and the new contracts are incompatible in all points, or
that the will to novate appear by express agreement of the parties or in acts of
equivalent import. 16
The novation of the written contract/promise to sell into a verbal agreement of
lease was clearly and convincingly proven not only by the testimony of petitioner
Goñi, but likewise by the acts and conduct of the parties subsequent to the
execution of the contract/promise to sell. Thus, after the milling season of crop
year 1949-50, only fields nos. 4 and 13 were delivered to private respondent
Vicente. Fields nos. 3, 4 and 13 were subsequently registered in Villanueva's
name and mortgaged with the RFC. Villanueva likewise executed a deed of sale
covering Hacienda Sarria in favor of Joaquin Villegas. All these were known to
private respondent Vicente, yet he did not take any steps toward asserting and/or
protecting his claim over fields nos. 3, 4 and 13 either by demanding during the
lifetime of Villanueva that the latter execute a similar document in his favor, or
causing notice of his adverse claim to be annotated on the certificate of title of
said lots. If it were true that he made demands on Villanueva for the surrender of
field no. 3 as well as the execution of the corresponding deed of sale, he should
have, upon refusal of the latter to do so, immediately or within a reasonable time
thereafter, instituted an action for recovery, or as previously observed, caused
his adverse claim to be annotated on the certificate of title. Considering that field
no. 3, containing an area of three (3) hectares, 75 ares and 60 centares, is the
biggest among the three lots, an ordinary prudent man would have taken these
steps if he honestly believed he had any right thereto. Yet, private respondent
Vicente did neither. In fact such inaction persisted even during the pendency of
the intestate proceedings wherein he could have readily intervened to seek
exclusion of fields nos. 3, 4 and 13 from the inventory of properties of the late
Praxedes Villanueva.
The reason given by private respondent Vicente that field no. 3 was not delivered
to him together with fields nos. 4 and 13 because there were small sugar cane
growing on said field at that time belonging to TABACALERA, might be taken as
a plausible explanation why he could not take immediate possession of lot no. 3,
but it certainly could not explain why it took him four years before instituting an
action in court, and very conveniently, as petitioners noted, after Villanueva had
died and at the time when the verbal contract of lease was about to expire.
Both the trial and appellate courts chose to believe in the contract/promise to sell
rather than the lease agreement, simply because the former had been reduced to
writing, while the latter was merely verbal. It must be observed, though, that the
contract/promise to sell was signed by petitioner Goñi as attorney-in-fact of the
late Praxedes Villanueva, an indication, to our mind, that final arrangements were
made by petitioner Goñi in the absence of Villanueva. It was therefore natural for
private respondent Vicente to have demanded that the agreement be in writing to
erase any doubt of its binding effect upon Villanueva. On the other hand, the
verbal lease agreement was negotiated by and between Villanueva and private
respondent Vicente themselves. Being close friends and relatives 17 it can be
safely assumed that they did not find it necessary to reduce the same into
writing.
In rejecting petitioners' contention respecting the verbal lease agreement, the
appellate court put much weight on the failure of petitioners to demand an
accounting of the produce of fields nos. 4 and 13 from 1950 to 1954, when the
action for recovery of property was filed. Such failure was satisfactorily explained
by petitioners in their motion for reconsideration filed before the then Court of
Appeals, in this manner:
... Mr. Genaro Goni is also a farmer by profession and that
there was no need for him to demand a yearly accounting of
the total production because the verbal lease agreement was
for a term of 5 years. The defendant Mr. Genaro Goni as a
sugar planter has already full knowledge as to the annual
income of said lots nos. 4 and 13, and since there was the
amount of P12,460.25 to be liquidated, said defendant never
deemed it wise to demand such a yearly accounting. It was
only after or before the expiration of the 5 year lease that said
defendant demanded the accounting from the herein plaintiff
regarding the production of the 2 lots that were then leased to
him.
It is the custom among the sugar planters in this locality that
the Lessee usually demands an advance amount to cover the
rental for the period of the lease, and the demand of an
accounting will be only made after the expiration of the lease
period. It was adduced during the trial that the amount of
P12,460.75 was considered as an advance rental of the 2 lots
which was leased to the Plaintiff, lots nos. 4 and 13; so we
humbly believe that there was no necessity on the part of
defendant Mr. Genaro Goñi to make a yearly demand for an
accounting for the total production of 2 parcels leased to the
plaintiff. 18
Petitioners, having clearly and sufficiently shown that the contract/promise to sell
was subsequently novated into a verbal lease agreement, it follows that they are
entitled to a favorable decision on their counterclaim. Discussion of the third
issue raised therefore becomes unnecessary.
WHEREFORE, the decision appealed from is hereby reversed. The judicial
administrator of the estate of private respondent Gaspar Vicente and/or his
successors-in-interest are hereby ordered to: a) surrender possession of fields
nos. 4 and 13 of the Hacienda Dulce Nombre de Maria to petitioners; b) render
an accounting of the produce of said fields for the period beginning crop-year
1950-51 until complete possession thereof shall have been delivered to
petitioners; and c) to pay the corresponding annual rent for the said fields in an
amount equivalent to 15% of the gross produce of said fields, for the periods
beginning crop-year 1950-51 until said fields shall have been surrendered to
petitioners, deducting from the amount due petitioners the sum of P12,460.24
advanced by private respondent Gaspar Vicente.
G.R. No. 74306 March 16, 1992
ENRIQUE RAZON, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and VICENTE B. CHUIDIAN, in his
capacity as Administrator of the Estate of the Deceased JUAN T.
CHUIDIAN, respondents.
G.R. No. 74315 March 16, 1992
VICENTE B. CHUIDIAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, ENRIQUE RAZ0N, and E. RAZON,
INC., respondents.
GUTIERREZ, JR., J.:
The main issue in these consolidated petitions centers on the ownership of 1,500
shares of stock in E. Razon, Inc. covered by Stock Certificate No. 003 issued on
April 23, 1966 and registered under the name of Juan T. Chuidian in the books of
the corporation. The then Court of First Instance of Manila, now Regional Trial
Court of Manila, declared that Enrique Razon, the petitioner in G.R. No. 74306 is
the owner of the said shares of stock. The then Intermediate Appellate Court,
now Court of Appeals, however, reversed the trial court's decision and ruled that
Juan T. Chuidian, the deceased father of petitioner Vicente B. Chuidian in G.R.
No. 74315 is the owner of the shares of stock. Both parties filed separate
motions for reconsideration. Enrique Razon wanted the appellate court's decision
reversed and the trial court's decision affirmed while Vicente Chuidian asked that
all cash and stock dividends and all the pre-emptive rights accruing to the 1,500
shares of stock be ordered delivered to him. The appellate court denied both
motions. Hence, these petitions.
The relevant Antecedent facts are as follows:
In his complaint filed on June 29, 1971, and amended on
November 16, 1971, Vicente B. Chuidian prayed that
defendants Enrique B. Razon, E. Razon, Inc., Geronimo
Velasco, Francisco de Borja, Jose Francisco, Alfredo B. de
Leon, Jr., Gabriel Llamas and Luis M. de Razon be ordered to
deliver certificates of stocks representing the shareholdings of
the deceased Juan T. Chuidian in the E. Razon, Inc. with a
prayer for an order to restrain the defendants from disposing of
the said shares of stock, for a writ of preliminary attachment v.
properties of defendants having possession of shares of stock
and for receivership of the properties of defendant corporation .
..
xxx xxx xxx
In their answer filed on June 18, 1973, defendants alleged that
all the shares of stock in the name of stockholders of record of
the corporation were fully paid for by defendant, Razon; that
said shares are subject to the agreement between defendants
and incorporators; that the shares of stock were actually
owned and remained in the possession of Razon. Appellees
also alleged . . . that neither the late Juan T. Chuidian nor the
appellant had paid any amount whatsoever for the 1,500
shares of stock in question . . .
xxx xxx xxx
The evidence of the plaintiff shown that he is the administrator
of the intestate estate of Juan Telesforo Chuidian in Special
Proceedings No. 71054, Court of First Instance of Manila.
Sometime in 1962, Enrique Razon organized the E. Razon,
Inc. for the purpose of bidding for the arrastre services in South
Harbor, Manila. The incorporators consisted of Enrique Razon,
Enrique Valles, Luisa M. de Razon, Jose Tuason, Jr., Victor
Lim, Jose F. Castro and Salvador Perez de Tagle.
On April 23, 1966, stock certificate No. 003 for 1,500 shares of
stock of defendant corporation was issued in the name of Juan
T. Chuidian.
On the basis of the 1,500 shares of stock, the late Juan T.
Chuidian and after him, the plaintiff-appellant, were elected as
directors of E. Razon, Inc. Both of them actually served and
were paid compensation as directors of E. Razon, Inc.
From the time the certificate of stock was issued on April 1966
up to April 1971, Enrique Razon had not questioned the
ownership by Juan T. Chuidian of the shares of stock in
question and had not brought any action to have the certificate
of stock over the said shares cancelled.
The certificate of stock was in the possession of defendant
Razon who refused to deliver said shares to the plaintiff, until
the same was surrendered by defendant Razon and deposited
in a safety box in Philippine Bank of Commerce.
 Defendants allege that after organizing the E. Razon, Inc.,
Enrique Razon distributed shares of stock previously placed in
the names of the withdrawing nominal incorporators to some
friends including Juan T. Chuidian
Stock Certificate No. 003 covering 1,500 shares of stock upon
instruction of the late Chuidian on April 23, 1986 was
personally delivered by Chuidian on July 1, 1966 to the
Corporate Secretary of Attorney Silverio B. de Leon who was
himself an associate of the Chuidian Law Office (Exhs. C &
11). Since then, Enrique Razon was in possession of said
stock certificate even during the lifetime of the late Chuidian,
from the time the late Chuidian delivered the said stock
certificate to defendant Razon until the time (sic) of defendant
Razon. By agreement of the parties (sic) delivered it for deposit
with the bank under the joint custody of the parties as
confirmed by the trial court in its order of August 7, 1971.
Thus, the 1,500 shares of stook under Stock Certificate No.
003 were delivered by the late Chuidian to Enrique because it
was the latter who paid for all the subscription on the shares of
stock in the defendant corporation and the understanding was
that he (defendant Razon) was the owner of the said shares of
stock and was to have possession thereof until such time as he
was paid therefor by the other nominal
incorporators/stockholders (TSN., pp. 4, 8, 10, 24-25, 25-26,
28-31, 31-32, 60, 66-68, July 22, 1980, Exhs. "C", "11", "13"
"14"). (Ro11o — 74306, pp. 66-68)
In G.R. No. 74306, petitioner Enrique Razon assails the appellate court's
decision on its alleged misapplication of the dead man's statute rule under
Section 20(a) Rule 130 of the Rules of Court. According to him, the "dead man's
statute" rule is not applicable to the instant case. Moreover, the private
respondent, as plaintiff in the case did not object to his oral testimony regarding
the oral agreement between him and the deceased Juan T. Chuidian that the
ownership of the shares of stock was actually vested in the petitioner unless the
deceased opted to pay the same; and that the petitioner was subjected to a rigid
cross examination regarding such testimony.
Section 20(a) Rule 130 of the Rules of Court (Section 23 of the Revised Rules on
Evidence) States:
Sec. 20. Disqualification by reason of interest or relationship —
The following persons cannot testify as to matters in which
they are interested directly or indirectly, as herein enumerated.
(a) Parties or assignors of parties to a case, or persons in
whose behalf a case is prosecuted, against an executor or
administrator or other representative of a deceased person, or
against a person of unsound mind, upon a claim or demand
against the estate of such deceased person or against such
person of unsound mind, cannot testify as to any matter of fact
accruing before the death of such deceased person or before
such person became of unsound mind." (Emphasis supplied)
xxx xxx xxx
The purpose of the rule has been explained by this Court in this wise:
The reason for the rule is that if persons having a claim against
the estate of the deceased or his properties were allowed to
testify as to the supposed statements made by him (deceased
person), many would be tempted to falsely impute statements
to deceased persons as the latter can no longer deny or refute
them, thus unjustly subjecting their properties or rights to false
or unscrupulous claims or demands. The purpose of the law is
to "guard against the temptation to give false testimony in
regard to the transaction in question on the part of the
surviving party." (Tongco v. Vianzon, 50 Phil. 698; Go Chi Gun,
et al. v. Co Cho, et al., 622 [1955])
The rule, however, delimits the prohibition it contemplates in that it is applicable
to a case against the administrator or its representative of an estate upon a
claim against the estate of the deceased person. (See Tongco v. Vianzon, 50
Phil. 698 [1927])
In the instant case, the testimony excluded by the appellate court is that of the
defendant (petitioner herein) to the affect that the late Juan Chuidian, (the father
of private respondent Vicente Chuidian, the administrator of the estate of Juan
Chuidian) and the defendant agreed in the lifetime of Juan Chuidian that the
1,500 shares of stock in E. Razon, Inc. are actually owned by the defendant
unless the deceased Juan Chuidian opted to pay the same which never
happened. The case was filed by the administrator of the estate of the late Juan
Chuidian to recover shares of stock in E. Razon, Inc. allegedly owned by the late
Juan T. Chuidian.
It is clear, therefore, that the testimony of the petitioner is not within the
prohibition of the rule. The case was not filed against the administrator of the
estate, nor was it filed upon claims against the estate.
Furthermore, the records show that the private respondent never objected to the
testimony of the petitioner as regards the true nature of his transaction with the
late elder Chuidian. The petitioner's testimony was subject to cross-examination
by the private respondent's counsel. Hence, granting that the petitioner's
testimony is within the prohibition of Section 20(a), Rule 130 of the Rules of
Court, the private respondent is deemed to have waived the rule. We ruled in the
case of Cruz v. Court of Appeals (192 SCRA 209 [1990]):
It is also settled that the court cannot disregard evidence which
would ordinarily be incompetent under the rules but has been
rendered admissible by the failure of a party to object thereto.
Thus:
. . . The acceptance of an incompetent witness to testify in a
civil suit, as well as the allowance of improper questions that
may be put to him while on the stand is a matter resting in the
discretion of the litigant. He may assert his right by timely
objection or he may waive it, expressly or by silence. In any
case the option rests with him. Once admitted, the testimony is
in the case for what it is worth and the judge has no power to
disregard it for the sole reason that it could have been
excluded, if it had been objected to, nor to strike it out on its
own motion (Emphasis supplied). (Marella v. Reyes, 12 Phil.
1.)
The issue as to whether or not the petitioner's testimony is admissible having
been settled, we now proceed to discuss the fundamental issue on the ownership
of the 1,500 shares of stock in E. Razon, Inc.
E. Razon, Inc. was organized in 1962 by petitioner Enrique Razon for the
purpose of participating in the bidding for the arrastre services in South Harbor,
Manila. The incorporators were Enrique Razon, Enrique Valles, Luisa M. de
Razon, Jose Tuazon, Jr., Victor L. Lim, Jose F. Castro and Salvador Perez de
Tagle. The business, however, did not start operations until 1966. According to
the petitioner, some of the incorporators withdrew from the said corporation. The
petitioner then distributed the stocks previously placed in the names of the
withdrawing nominal incorporators to some friends, among them the late Juan T.
Chuidian to whom he gave 1,500 shares of stock. The shares of stock were
registered in the name of Chuidian only as nominal stockholder and with the
agreement that the said shares of stock were owned and held by the petitioner
but Chuidian was given the option to buy the same. In view of this arrangement,
Chuidian in 1966 delivered to the petitioner the stock certificate covering the
1,500 shares of stock of E. Razon, Inc. Since then, the Petitioner had in his
possession the certificate of stock until the time, he delivered it for deposit with
the Philippine Bank of Commerce under the parties' joint custody pursuant to
their agreement as embodied in the trial court's order.
The petitioner maintains that his aforesaid oral testimony as regards the true
nature of his agreement with the late Juan Chuidian on the 1,500 shares of stock
of E. Razon, Inc. is sufficient to prove his ownership over the said 1,500 shares
of stock.
The petitioner's contention is not correct.
In the case of Embassy Farms, Inc. v. Court of Appeals (188 SCRA 492 [1990])
we ruled:
. . . For an effective, transfer of shares of stock the mode and
manner of transfer as prescribed by law must be followed
(Navea v. Peers Marketing Corp., 74 SCRA 65).
As provided under Section 3 of Batas Pambansa Bilang, 68
otherwise known as the Corporation Code of the Philippines,
shares of stock may be transferred by delivery to the
transferee of the certificate properly indorsed. Title may be
vested in the transferee by the delivery of the duly indorsed
certificate of stock (18 C.J.S. 928, cited in Rivera v. Florendo,
144 SCRA 643). However, no transfer shall be valid, except as
between the parties until the transfer is properly recorded in
the books of the corporation (Sec. 63, Corporation Code of the
Philippines; Section 35 of the Corporation Law)
In the instant case, there is no dispute that the questioned 1,500 shares of stock
of E. Razon, Inc. are in the name of the late Juan Chuidian in the books of the
corporation. Moreover, the records show that during his lifetime Chuidian was
ellected member of the Board of Directors of the corporation which clearly shows
that he was a stockholder of the corporation. (See Section 30, Corporation Code)
From the point of view of the corporation, therefore, Chuidian was the owner of
the 1,500 shares of stock. In such a case, the petitioner who claims ownership
over the questioned shares of stock must show that the same were transferred to
him by proving that all the requirements for the effective transfer of shares of
stock in accordance with the corporation's by laws, if any, were followed (See
Nava v. Peers Marketing Corporation, 74 SCRA 65 [1976]) or in accordance with
the provisions of law.
The petitioner failed in both instances. The petitioner did not present any by-laws
which could show that the 1,500 shares of stock were effectively transferred to
him. In the absence of the corporation's by-laws or rules governing effective
transfer of shares of stock, the provisions of the Corporation Law are made
applicable to the instant case.
The law is clear that in order for a transfer of stock certificate to be effective, the
certificate must be properly indorsed and that title to such certificate of stock is
vested in the transferee by the delivery of the duly indorsedcertificate of stock.
(Section 35, Corporation Code) Since the certificate of stock covering the
questioned 1,500 shares of stock registered in the name of the late Juan
Chuidian was never indorsed to the petitioner, the inevitable conclusion is that
the questioned shares of stock belong to Chuidian. The petitioner's asseveration
that he did not require an indorsement of the certificate of stock in view of his
intimate friendship with the late Juan Chuidian can not overcome the failure to
follow the procedure required by law or the proper conduct of business even
among friends. To reiterate, indorsement of the certificate of stock is a mandatory
requirement of law for an effective transfer of a certificate of stock.
Moreover, the preponderance of evidence supports the appellate court's factual
findings that the shares of stock were given to Juan T. Chuidian for value. Juan
T. Chuidian was the legal counsel who handled the legal affairs of the
corporation. We give credence to the testimony of the private respondent that the
shares of stock were given to Juan T. Chuidian in payment of his legal services
to the corporation. Petitioner Razon failed to overcome this testimony.

In G.R. No. 74315, petitioner Vicente B. Chuidian insists that the appellate court's
decision declaring his deceased father Juan T. Chuidian as owner of the 1,500
shares of stock of E. Razon, Inc. should have included all cash and stock
dividends and all the pre-emptive rights accruing to the said 1,500 shares of
stock.

The petition is impressed with merit.

The cash and stock dividends and all the pre-emptive rights are all incidents of
stock ownership.

The rights of stockholders are generally enumerated as follows:

xxx xxx xxx

. . . [F]irst, to have a certificate or other evidence of his status

as stockholder issued to him; second, to vote at meetings of
the corporation; third, to receive his proportionate share of the
profits of the corporation; and lastly, to participate
proportionately in the distribution of the corporate assets upon
the dissolution or winding up. (Purdy's Beach on Private
Corporations, sec. 554) (Pascual v. Del Saz Orozco, 19 Phil.
82, 87)

WHEREFORE, judgment is rendered as follows:

a) In G.R. No. 74306, the petition is DISMISSED. The questioned decision and
resolution of the then Intermediate Appellate Court, now the Court of Appeals,
are AFFIRMED. Costs against the petitioner.

b) In G.R. No. 74315, the petition is GRANTED. The questioned Resolution

insofar as it denied the petitioner's motion to clarify the dispositive portion of the
decision of the then Intermediate Appellate Court, now Court of Appeals is
REVERSED and SET ASIDE. The decision of the appellate court is MODIFIED
in that all cash and stock dividends as, well as all pre-emptive rights that have
accrued and attached to the 1,500 shares in E. Razon, Inc., since 1966 are
declared to belong to the estate of Juan T. Chuidian.

SO ORDERED.
G.R. No. L-22948 March 17, 1925
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FAUSTO V. CARLOS, defendant-appellant.
M.H. de Joya, Jose Padilla, Vicente Sotto and Monico Mercado for appellant.
Attorney-General Villa-Real and City Fiscal Guevara for appellee.
OSTRAND, J.:
This is an appeal from a decision of the Court of First Instance of the City of
Manila finding the defendant Fausto V. Carlos guilty of the crime of murder and
sentencing him to suffer life imprisonment, with the accessory penalties
prescribed by law and with the costs.
It appears from the evidence that the victim of the alleged murder, Dr. Pablo G.
Sityar, on March 3, 1924, in Mary Chiles Hospital, performed a surgical operation
upon the defendant's wife for appendicitis and certain other ailments. She
remained in the hospital until the 18th of the same month, but after her release
therefrom she was required to go several times to the clinic of Doctor Sityar at
No. 40 Escolta, for the purpose of dressing the wounds caused by the operation.
On these occasions she was accompanied by her husband, the defendant. The
defendant states that on one of the visits, that of March 20, 1924, Doctor Sityar
sent him out on an errand to buy some medicine, and that while defendant was
absent on this errand Doctor Sityar outraged the wife. The defendant further
states that his wife informed him of the outrage shortly after leaving the clinic.
Notwithstanding this it nevertheless appears that he again went there on March
28th to consult the deceased about some lung trouble from which he, the
defendant, was suffering.. He was given some medical treatment and appears to
have made at least one more visit to the clinic without revealing any special
resentment.
On May 12, 1924, the defendant, suffering from some stomach trouble, entered
the Philippine General Hospital where he remained until May 18, 1924, and
where he was under the care of two other physicians. While in the hospital her
received a letter (Exhibit 5) from Doctor Sityar asking the immediate settlement of
the account for the professional services rendered his wife. Shortly after his
release from the hospital the defendant sought an interview with Doctor Sityar
and went to the latter's office several times without finding him in. On one of
these occasions he was asked by an employee of the office, the nurse
Cabañera, if he had come to settle his account, to which the defendant answered
that he did not believe he owed the doctor anything.
In the afternoon of May 26th the defendant again went to the office of the
deceased and found him there alone. According to the evidence of the
prosecution, the defendant then, without any preliminary quarrel between the
two, attacked the deceased with a fan-knife and stabbed him twice. The
deceased made an effort to escape but the defendant pursued him and
overtaking him in the hall outside the office, inflicted another wound upon him
and as a consequence if the three wounds he died within a few minutes. The
defendants made his escape but surrendered himself to the Constabulary at
Malolos, Bulacan, in the evening of the following day.
The defendant admits that he killed the deceased but maintains that he did so in
self-defense. He explains that he went to Doctor Sityar's office to protest against
the amount of the fee charged by the doctor and, in any event, to ask for an
extension of the time of payment; that during the conversation upon that subject
the deceased insulted him by telling him that inasmuch as he could not pay the
amount demanded he could send his wife to the office as she was the one
treated, and that she could then talk the matter over with the decease; that this
statement was made in such an insolent and contemptuous manner that the
defendant became greatly incensed and remembering the outrage committed
upon his wife, he assumed a threatening attitude and challenged the deceased to
go downstairs with him and there settle the matter; that the deceased thereupon
took a pocket-knife from the center drawer of his desk and attacked the
defendant, endeavoring to force him out of the office; that the defendant, making
use of his knowledge of fencing, succeeded in taking the knife away from the
deceased and blinded by fury stabbed him first in the right side of the breast and
then in the epigastric region, and fearing that the deceased might secure some
other weapon or receive assistance from the people in the adjoining room, he
again stabbed him, this time in the back.
The defendant's testimony as to the struggle described is in conflict with the
evidence presented by the prosecution. But assuming that it is true, it is very
evident that it fails to establish a case of self-defense and that, in reality, the only
question here to be determined is whether the defendant is guilty of murder or of
simple homicide.
The court below found that the crime was committed with premeditation and
therefore constituted murder. This finding can only be sustained by taking into
consideration Exhibit L, a letter written to the defendant by his wife and siezed by
the police in searching his effects on the day of his arrest. It is dated May 25,
1924, two days before the commission of the crime and shows that the writer
feared that the defendant contemplated resorting to physical violence in dealing
with the deceased.
Counsel for the defendant argues vigorously that the letter was a privileged
communication and therefore not admissible in evidence. The numerical weight
of authority is, however, to the effect that where a privileged communication from
one spouse to another comes into the hands of a third party, whether legally or
not, without collusion and voluntary disclosure on the part of either of the
spouses, the privilege is thereby extinguished and the communication, if
otherwise competent, becomes admissible. (28 R.C.L., 530 and authorities there
cited.) Such is the view of the majority of this court.
Professor Wigmore states the rule as follows:
For documents of communication coming into the possession of a third
person, a distinction should obtain, analogous to that already indicated
for a client's communications (ante, par. 2325, 2326); i. e., if they were
obtained from the addressee by voluntary delivery, they should still be
privileged (for otherwise the privilege could by collusion be practically
nullified for written communications); but if they were obtained
surreptitiously or otherwise without the addressee's consent, the
privilege should cease. (5 Wigmore on Evidence, 2nd ed., par. 2339.)
The letter in question was obtained through a search for which no warrant
appears to have been issued and counsel for the defendant cites the causes of
Boyd and Boyd vs. United States (116 U.S., 616) and Silverthorne Lumber Co.
and Silverthorne vs. United States (251 U.S., 385) as authority for the proposition
that documents obtained by illegal searches of the defendant's effects are not
admissible in evidence in a criminal case. In discussing this point we can do not
better than to quote Professor Wigmore:
The foregoing doctrine (i. e., that the admissibility of evidence is not
affected by the illegality of the means through which the party has been
enabled to obtain the evidence) was never doubted until the
appearance of the ill-starred majority opinion of Boyd vs. United States,
in 1885, which has exercised unhealthy influence upon subsequent
judicial opinion in many States.
xxx xxx xxx
The progress of this doctrine of Boyd vs. United States was as follows:
(a) The Boyd Case remained unquestioned in its own Court for twenty
years; meantime receiving frequent disfavor in the State Courts (ante,
par. 2183). (b) Then in Adams vs. New York, in 1904, it was
virtually repudiated in the Federal Supreme Court, and the orthodox
precedents recorded in the State courts (ante, par. 2183) were
expressly approved. (c) Next, after another twenty years, in 1914 —
moved this time, not by erroneous history, but by misplaced
sentimentality — the Federal Supreme Court, in Weeks vs. United
States, reverted to the original doctrine of the Boyd Case, but with a
condition, viz., that the illegality of the search and seizure should first
have been directly litigated and established by a motion, made before
trial, for the return of the things seized; so that, after such a motion, and
then only, the illegality would be noticed in the main trial and the
evidence thus obtained would be excluded. ... (4 Wigmore on Evidence,
2nd ed., par. 2184.)
In the Silverthorne Lumber Co. case the United States Supreme Court adhered
to its decision in the Weeks Case. The doctrine laid down in these cases has
been followed by some of the State courts but has been severely criticized and
does not appear to have been generally accepted. But assuming, without
deciding, that it prevails in this jurisdiction it is, nevertheless, under the decisions
in the Weeks and Silverthorne cases, inapplicable to the present case. Here the
illegality of the search and seizure was not "directly litigated and established by a
motion, made before trial, for the return of the things seized."
The letter Exhibit L must, however, be excluded for reasons not discussed in the
briefs. The letter was written by the wife of the defendant and if she had testified
at the trial the letter might have been admissible to impeach her testimony, but
she was not put on the witness-stand and the letter was therefore not offered for
that purpose. If the defendant either by answer or otherwise had indicated his
assent to the statements contained in the letter it might also have been
admissible, but such is not the case here; the fact that he had the letter in his
possession is no indication of acquiescence or assent on his part. The letter is
therefore nothing but pure hearsay and its admission in evidence violates the
constitutional right of the defendant in a criminal case to be confronted with the
witnesses for the prosecution and have the opportunity to cross-examine them.
In this respect there can be no difference between an ordinary communication
and one originally privileged.
The question is radically different from that of the admissibility of testimony of a
third party as to a conversation between a husband and wife overheard by the
witness. Testimony of that character is admissible on the ground that it relates to
a conversation in which both spouses took part and on the further ground that
where the defendant has the opportunity to answer a statement made to him by
his spouse and fails to do so, his silence implies assent. That cannot apply where
the statement is contained in an unanswered letter.
The Attorney-General in support of the contrary view quotes Wigmore, as
follows:
. . . Express communication is always a proper mode of evidencing
knowledge or belief. Communication to a husband or wife is always
receivable to show probable knowledge by the other (except where they
are living apart or are not in good terms), because, while it is not certain
that the one will tell the other, and while the probability is less upon
some subjects than upon others, still there is always some probability,
— which is all that can be fairly asked for admissibility. ... (1
Wigmore, id., par. 261.)
This may possibly be good law, though Wigmore cites no authority in support of
his assertion, but as far as we can see it has little or nothing to do with the
present case.
As we have already intimated, if Exhibit L is excluded, there is in our opinion not
sufficient evidence in the record to show that the crime was premeditated.
The prosecution maintains that the crime was committed with alevosia. This
contention is based principally on the fact that one of the wounds received by the
deceased showed a downward direction indicating that the deceased was sitting
down when the wound was inflicted. We do not think this fact is sufficient proof.
The direction of the wound would depend largely upon the manner in which the
knife was held.
For the reasons stated we find the defendant guilty of simple homicide, without
aggravating or extenuating circumstances.
The sentence appealed from is therefore modified by reducing the penalty to
fourteen years, eight months and one day of reclusion temporal, with the
corresponding accessory penalties and with the costs against the appellant. So
ordered.
Johnson, Malcolm, Johns, and Romualdez, JJ., concur.
Separate Opinions
VILLAMOR, J., dissenting:
His Honor, the judge who tried this case, inserts in his decision the testimony of
the witness Lucio Javillonar as follows:
The witness, Lucio Javillonar, testified that he went to the office of the
deceased some minutes before six o'clock in that evening in order to
take him, as had previously been agreed upon between them, so that
they might retire together to Pasig, Rizal, where they resided then; that
having noticed that the deceased was busy in his office, talking with a
man about accounts, instead of entering, he stayed at the waiting room,
walking from one end to another, while waiting for that man to go out;
that in view of the pitch of the voice in which the conversation was held
between the deceased and his visitor, and what he had heard, though
little as it was, of said conversation, he believes that there was not, nor
could there have been, any change of hard words, dispute or discussion
of any kind; that shortly thereafter, he saw the screen of the door of the
deceased's office suddenly open, and the deceased rush out stained
with blood, and followed closely by the accused who then brandished a
steel arm in the right hand; that upon seeing the deceased and
overtaking him, leaning upon one of the screens of the door of a tailor
shop a few feet from his office, slightly inclined to the right, with the
arms lowered and about to fall to the floor, the accused stabbed him on
the right side of the chest, thereby inflicting a wound on the right nipple;
and that then the accused descended the staircase to escape away, at
the same time that the deceased was falling to the ground and was
being taken by him with the assistance of other persons from said place
to a lancape (a sofa) where he died a few minutes later, unable to say a
word.
In deciding the question as to whether the act committed is murder, with the
qualifying circumstance of treachery, as claimed by the Attorney-General, the
trial judge says that the principal ground of the prosecution for holding that the
commission of the crime was attended by the qualifying circumstance of
treachery is a mere inference from the testimony of Lucio Javillonar, and that the
nature of the wounds found on the epigastric region of the deceased and his
back do not mean anything, because they could have been inflicted while the
deceased was standing, seated or inclined.
A careful consideration of the testimony of Lucio Javillonar, as set out in the
judgment appealed from, will show that, according to said eyewitness, the
deceased was with his arms lowered and about to fall to the floor when the
accused stabbed him on the right side of the chest with the weapon he was
carrying, thereby inflicting a wound on the right nipple, and that, according to the
doctor who examined the wounds, anyone of them could have caused the death
of the deceased. These being the facts proven, I am of opinion that application
must be made here of the doctrine laid down by this court in the case of United
States vs. Baluyot (40 Phil., 385), wherein it was held that "Even though a deadly
attack may be begun under conditions not exhibiting the feature of alevosia, yet if
the assault is continued and the crime consummated with alevosia, such
circumstance may be taken into consideration as a qualifying factor in the
offense of murder." I admit that none of the witnesses who testified in this case
has seen the beginning of the aggression; but it positively appears from the
testimony of the said witness Lucio Javillonar that, notwithstanding that the
deceased was already wounded and about to fall to the floor, he struck him with
another mortal blow with the weapon he was carrying, which shows that the
accused consummated the crime with treachery.
For the foregoing, I am of opinion that the judgment appealed from must be
affirmed, considering the act committed as murder, with the qualifying
circumstance of treachery, and in this sense I dissent from the majority opinion.
G.R. No. L-13109 March 6, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
DALMACEO ANTIPOLO, defendant-appellant.
Irureta Goyena and Recto for appellant.
Acting Attorney-General Paredes for appellee.
FISHER, J.:
The appellant was prosecuted in the Court of First Instance of the Province of
Batangas, charged with the murder of one Fortunato Dinal. The trial court
convicted him of homicide and from that decision he was appealed. One of the
errors assigned is based upon the refusal of the trial judge to permit Susana
Ezpeleta, the widow of the man whom the appellant is accused of having
murdered, to testify as a witness on behalf of the defense concerning certain
alleged dying declarations. The witness was called to the stand and having
stated that she is the widow of Fortunato Dinal was asked: "On what occasion did
your husband die?" To this question the fiscal objected upon the following
ground:
I object to the testimony of this witness. She has just testified that she is
the widow of the deceased, Fortunato Dinal, and that being so I believe
that she is not competent to testify under the rules and procedure in
either civil or criminal cases, unless it be with the consent of her
husband, and as he is dead and cannot grant that permission, it follows
that this witness is disqualified from testifying in this case in which her
husband is the injured party.
Counsel for defendant insisted that the witness was competent, arguing that the
disqualification which the fiscal evidently had in mind relates only to cases in
which a husband or wife of one of the parties to a proceeding is called to testify;
that the parties to the prosecution of a criminal case are the Government and the
accused; that, furthermore the marriage of Dinal to the witness having been
dissolved by the death of her husband, she is no longer his wife, and therefore
not subject to any disqualification arising from the status of marriage.
These propositions were rejected by the trial judge, and the objection of the fiscal
as to the testimony of the woman Ezpeleta was sustained. To this objection
counsel took exception and made an offer to prove by the excluded witness the
facts which he expected to establish by her testimony. Concerning these facts it
is sufficient at this time to say that some of them would be both material and
relevant, to such a degree that if proven to the satisfaction of the court, they
might have lead to the acquittal of the accused, as they purported to relate to the
dying declarations of the deceased, concerning the cause of his death, the
general purport being that his injuries were due to fall and not to the acts imputed
to the accused.
Section 58 of General Orders No. 58 (1900) reads as follows:
Except with the consent of both, or except in cases of crime committed
by one against the other, neither husband nor wife shall be a competent
witness for or against the other in a criminal action or proceeding to
which one or both shall be parties.
The reasons for this rule are thus stated in Underhill's work on Criminal Evidence
(second edition) on page 346:
At common law, neither a husband nor a wife was a competent witness
for or against the other in any judicial proceedings, civil or criminal, to
which the other was a party. . . . If either were recognized as a
competent witness against the other who was accused of crime, . . . a
very serious injury would be done to the harmony and happiness of
husband and wife and the confidence which should exist between them.
In Greenleaf's classical work on evidence, in section 337 [vol. I], the author says,
in stating the reasons for the rule at common law:
The great object of the rule is to secure domestic happiness by placing
the protecting seal of the law upon all confidential communications
between husband and wife; and whatever has come to the knowledge
of either by means of the hallowed confidence which that relation
inspires, cannot be afterwards divulged in testimony even though the
other party be no longer living.
This case does not fall with the text of the statute or the reason upon which it is
based. The purpose of section 58 is to protect accused persons against
statements made in the confidence engendered by the marital relation, and to
relieve the husband or wife to whom such confidential communications might
have been made from the obligation of revealing them to the prejudice of the
other spouse. Obviously, when a person at the point of death as a result of
injuries he has suffered makes a statement regarding the manner in which he
received those injuries, the communication so made is in no sense confidential.
On the contrary, such a communication is made for the express purpose that it
may be communicated after the death of the declarant to the authorities
concerned in inquiring into the cause of his death.
The same theory as that upon which section 58 of General Orders No. 58 is
based, underlies section 383, paragraph 3 of Act No. 190, which reads as
follows:
 A husband cannot be examined for or against his wife without her
consent; nor a wife for or against her husband without his consent; nor
can either, during the marriage or afterwards, be, without the consent of
the other, examined as to any communication made by one to the other
during the marriage; but this exception does not apply to a civil action or
proceeding by one against the other, or to a criminal action or
proceeding for a crime committed by one against the other.
The only doubt which can arise from a reading of this provision relates to the
meaning of the words "during the marriage or afterwards," and this doubt can
arise only by a consideration of this phrase separately from the rest of the
paragraph. Construed as a whole it is evident that it relates only to cases in
which the testimony of a spouse is offered for or against the other in a
proceeding to which the other is a party. The use of the word "afterwards" in the
phrase "during the marriage or afterwards" was intended to cover cases in which
a marriage has been dissolved otherwise than by death of one of the spouses —
as, for instance, by decree of annulment or divorce.
be contended that the dying declaration testified to by the witness was a
confidential communication made to her; on the contrary, it was
evidently made in the furtherance of justice for the express purpose that
it should be testified to in the prosecution of the defendant.
We are therefore of the opinion that the court below erred in excluding the
testimony of the witness Susana Ezpeleta, and that by reason of such exclusion,
the accused was deprived of one of his essential rights. That being the case, a
new trial must be granted.
For the reason stated, the judgment of the court below is hereby set aside and a
new trial is granted at which the testimony of the witness Susana Ezpeleta will be
admitted, together with any additional evidence which may be offered on the part
of the prosecution or the defense. At the new trial granted the accused, the
testimony taken at the former hearing shall be considered. The costs of this
appeal shall be de officio. So ordered.

The declarations of a deceased person while in anticipation of certain impending

death, concerning the circumstances leading up to the death, are admissible in a
prosecution of the person charged with killing the declarant. (U. S. vs. Gil, 13
Phil., Rep., 530.) Such dying declarations are admissible in favor of the
defendant as well as against him. (Mattox vs. U. S., 146 U. S., 140.) It has been
expressly held in several jurisdictions in the United States that the widow of the
deceased may testify regarding his dying declarations. In the case of the State
vs. Ryan (30 La. Ann., 1176), cited by appellant in his brief, the court said:

The next bill is as to the competency of the widow of the deceased to

prove his dying declarations. We see no possible reason for excluding
her . . . after the husband's death she is no longer his wife, and the rules
of evidence, as between husbands and wives, are no longer applicable.

In the case of Arnett vs. Commonwealth (114 Ky., 593, 596), the testimony of the
widow of the deceased as to his dying declarations made to her was objected to
upon the express ground that under the terms of the Kentucky Code, "the wife
was incompetent to testify even after the cessation of the marriage relation, to
any communication made by her by her husband during the marriage."

This contention was rejected, the court saying:

On grounds of public policy the wife can not testify against her husband
as to what came to her from him confidentially or by reason of the
marriage relation, but this rule does not apply to a dying communication
made by the husband to the wife on the trial of the one who killed him.
The declaration of the deceased made in extremes in such cases is a
thing to be proven, and this proof may be made by any competent
witness who heard the statement. The wife may testify for the state in
cases of this character as to any other fact known to her. . . . It can not