Dying Declaration and Res Gestae Ramil F.

De Jesus

Introduction Evidence is the means, sanctioned by these rules (Rules on Evidence), of ascertaining in a judicial proceeding the truth respecting a matter of fact.1 When an evidence is not relevant or does not point out to prove something relevant to the subject matter of the proceeding, it should be excluded to save the court for unnecessary waste of time. Before evidence may be used in a judicial proceeding, it must be relevant to the subject matter and it must not be excluded by the Rules on Evidence. This is admissibility of Evidence which the Rules of Court defined as: Section 3 Rules of Court. Admissibility of evidenceEvidence is admissible when it is relevant to the issue and is not excluded by law or these rules.

One of the excluded evidence is that testimonial evidence that is not based on personal knowledge. The Rules of Court provides: Section 36. Testimony generally confined to personal knowledge; hearsay excluded. A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. (30a) Hearsay evidence is when a person testifies as to what someone else said in order to prove that what was said is the truth. The reason for the exclusion of hearsay evidence is that the Court does not have the opportunity to ascertain the truthfulness of the testimony because the person does is not the one who made the statement or the person who made the original statement was not presented in court. Hearsay evidence does not have to be spoken words, but can also be any statement found in a letter, email, public record or any other form of written
1

REVISED RULES ON EVIDENCE

communication. In general, hearsay evidence is inadmissible in a court of law. Two of the recognized exceptions to the hearsay evidence are dying declaration and res gestae.

Objective 1. To give an overview on the admissibility of dying declaration and res gestae. 2. To cite case law that discusses dying declaration and res gestae.

Generally, witnesses can testify only to those facts derived from their own perception. A recognized exception, though, is a report in open court of a dying persons declaration made under the consciousness of an impending death that is the subject of inquiry in the case.2: Section 37. Dying declaration. The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. The dying declaration is given credence, on the premise that no one who knows of ones impending death will make a careless and false accusation. Hence, not infrequently, pronouncements of guilt have been allowed to rest solely on the dying declaration of the deceased victim.3 To be admissible, a dying declaration must 1) refer to the cause and circumstances surrounding the declarants death; 2) be made under the consciousness of an impending death; 3) be made freely and voluntarily without coercion or suggestions of improper influence; 4) be offered in a criminal case, in which the death of the declarant is the subject of inquiry; and 5) have been made

2 3

People v. Medina, 435 SCRA 610 Marturillas v. People, G.R. No. 163217

by a declarant competent to testify as a witness, had that person been called upon to testify.4 In the case of People v. Enad, the Supreme Court held that the antemortem statement of the victim did not met the requisites of a dying declaration because the victim is alive and was able to testify in court, it reads: In the present case, the foregoing requisites were not met. A dying declaration is essentially hearsay, because one person is testifying on what another person stated. This is because the declarant can no longer be presented in court to identify the document or confirm the statement, but more important, to be confronted with said statement by the accused and be cross-examined on its contents. [70] It was patently incorrect for the trial court to have allowed prosecution witness PO3 Leonardo Inoc to testify on Antonios so-called "dying declaration" because Antonio was alive and later even testified in court.5 The ruling in People v. Dela Cruz gave credence to the dying declaration of the victim to his wife and son-in-law and admitted it as evidence and basis for convicting the suspect, it provides: On the other hand, the claim of the accused that there are six (6) other persons in the same barangay named Jerry, including one of the children of the deceased, and should create some doubt on the identity of the assailant of Pepito Tadal holds no water. Even though there really are six (6) other persons named Jerry, the identity of accused Jerry dela Cruz was clearly stated by the victim in his dying declaration. There is no doubt, therefore, as to the identity of herein accused as the assailant of the victim. As earlier stated, a dying man, like Pepito Tadal, does not have reason to falsely implicate another person, in this instance Jerry dela Cruz, as the perpetrator of the crime committed against him. He must face his creator with a clean mind and conscience.6

Admissibility of a dying declaration does not warrant that the accused will be convicted. A dying declaration is admissible in evidence as long as it met the
4 5

People v. Comiling, 424 SCRA 698 People v. Enad,G.R. No. 122934 6 People v. Dela Cruz, CA-G.R. CR. NO. 27827

requisites mentioned earlier. But when the dying declaration does not prove anything, or is not sufficient to convict the accused it will fail, as in the case of People v. Elizaga7: Upon a careful examination of the records, We discovered that the conviction of appellant Elizaga was based solely on the dying declaration of the victim Stacy. No eyewitness to the crime was presented in court. Pedro Tapuro, the person who was actually with the victim when he was shot and who could have given a detailed account of the whole incident, was never presented by the prosecution. Nobody testified that he saw the appellant within the vicinity of the crime before, during, or right after the commission of the crime. Neither did anyone attest that he saw the appellant in possession of a firearm or that he was the gunman. On the contrary, two witnesses corroborated the defense of the appellant that in the morning and afternoon of the day of the incident, appellant was in the store of Eustaquio Gumabao playing pool, rendering it physically impossible for him to have killed the victim. One of these witnesses, Juanito Martin, is even a colleague of the victim in the police force. It is true that the dying declaration of Stacy is valid and admissible. However, this does not mean that it will automatically convict the appellant of the crime of murder. Like any other dying declaration, its credibility and weight should be determined by the court, applying the same rules used in testing the weight and credibility of a testimony of a living witness. 6 In this particular case, it must be carefully examined in order for the trial court to determine whether or not the same is sufficient to prove the guilt of the accused beyond reasonable doubt. In his dying declaration, Stacy mentioned three people as his assailants, namely: Marcos Elizaga, Pabling Molina and Felipe Elizaga, appellant herein. Obviously, the said dying declaration does not prove that petitioner was the one who fired the shot that injured and later killed the victim.

In a case where there were two dying declarations, the Court favored the declaration that meets all the requisite of a dying declaration, hence: While witnesses in general can only testify to facts derived from their own perception, a
7

G.R. No. 78794 November 21, 1988

report in open court of a dying persons declaration is recognized as an exception to the rule against hearsay if it is "made under the consciousness of an impending death that is the subject of inquiry in the case."13 It is considered as "evidence of the highest order and is entitled to utmost credence since no person aware of his impending death would make a careless and false accusation. The Rules of Court states that a dying declaration is admissible as evidence if the following circumstances are present: "(a) it concerns the cause and the surrounding circumstances of the declarants death; (b) it is made when death appears to be imminent and the declarant is under a consciousness of impending death; (c) the declarant would have been competent to testify had he or she survived; and (d) the dying declaration is offered in a case in which the subject of inquiry involves the declarants death."15 The question to be answered is which dying declaration satisfies the aforementioned circumstances, the one made by Mary Jay to Lourdes and Norma, or the one she made before Atty. Duque and PO3 San Jose. Accused-appellant contends that his late wifes dying declaration as told to the defense witnesses Atty. Duque and PO3 San Jose effectively absolved him from any wrongdoing. However, it is the dying declaration presented by the prosecution that satisfies all the requisites provided in the Rules. In contrast, the dying declaration for the defense did not show that Mary Jays death at the time of said declaration appeared to be imminent and that she was under a consciousness of impending death. Moreover, We defer to the factual finding that the witnesses for the prosecution were more credible. Mary Jays dying declaration to her mother Lourdes and to Norma showed that accused-appellant was the one who set her in flames. Lourdes and the Maglians laundrywoman Norma both testified that Mary Jay, moments before her actual death, told them that it was accused-appellant who was responsible for burning her. Lourdes and Norma both testified that at the time of May Jays declaration, she was lucid and aware that she was soon going to expire. Furthermore, the so-called dying declaration made by Mary Jay to defense witnesses Atty. Duque and PO3 San Jose suffers from

irregularities. The dying declaration allegedly made to Atty. Duque and PO3 San Jose was handwritten by the latter but he did not have it sworn under oath. We reiterate too that it was not clear that it was executed with the knowledge of impending death since the statements were made more than a month before Mary Jay died. (People v. Maglian, G.R. No. 189834 March 30, 2011).

One of the requisites for a dying declaration may be admitted as evidence is that the declarant must be competent to testify. If the declarant is not a competent witness even if his statement meets the other three requisites it will inadmissible. The Court ruled that dying declaration meets the element of competency of witness and thus provides: On his competency to testify, there is no allegation nor evidence on record which would support the slightest impression that the declarant would have been incompetent to testify had he survived. At the time of his death he was a member of the police force and is presumably capable of perceiving, retaining what has been perceived and expressing what has been retained. These circumstances suffice to sustain the presumption of his competency to testify at the material time. The Court however ruled in a case that a statement may be considered as a dying declaration and at the same time part of res gestae, it provides: From the established facts in the case at bar, the trial court correctly considered the declaration of the victim a dying declaration and, therefore, admissible. The declarant was conscious of his impending death. This may be gleaned not only from the victim's insistence right after he reached their house that he should immediately be brought to the hospital and that he was becoming weaker by the moment, but also from the serious nature of his wounds (People vs. Sarabia, 127 SCRA 100 [1984] and the fact that the said victim died shortly afterwards (People v. Araja, 105 SCRA 133 [1981]). Even assuming that the victim's utterances were not made under a firm belief of an impending death, the victim's

statements may, at the very least, form part of the res gestae. For the admission of evidence as part of the res gestae, it is required that (a) the principal act, the res gestae, be a startling occurrence, (b) the statements forming part thereof were made before the declarant had the opportunity to contrive, and (c) the statements refer to the occurrence in question and its attending circumstances (People vs. Siscar, 140 SCRA 316 [1985]). We have ruled that while the statement of the victim may not qualify as a dying declaration because it was not made under the consciousness of impending death (People vs. Palamos, 49 Phil. 601 [1926]), it may still be admissible as part of the res gestae if it was made immediately after the incident (People vs. Reyes, 52 Phil. 538 [1928]), or a few hours thereafter (People vs. Tumalip, 60 SCRA 303 [1974]). Definitely, the victim's statement in the case at hand was made immediately after the incident, before he could even have the opportunity to contrive or concoct a story. Of relevance, too, is the fact that on two occasions, first at their house, and later while he was being brought to the hospital, he identified one and the same person as his assailant. Where the elements of both a dying declaration and a statement as part of the res gestae are present, as in the case at bar, the statement may be admitted as a dying declaration and at the same time as part of the res gestae (People vs. Balbas, 122 SCRA 859 [1983], (People v. Gado, G.R. No. 129556)

While in The requisites for the admissibility of dying declarations have already been established in a long line of cases. An antemortem statement or dying declaration is entitled to probative weight if: (1) at the time the declaration was made, death was imminent and the declarant was conscious of that fact; (2) the declaration refers to the cause and surrounding circumstances of such death; (3) the declaration relates to facts which the victim was competent to testify to; (4) the declarant thereafter died; and (5) the declaration is offered in a criminal case wherein the declarants death is the subject of the inquiry.[5]

The first element is lacking in the case at bar. It was not established with certainty whether Pelagio uttered his statement with consciousness of his impending death. While he was in pain when he made his statement, he expressly stated that accused-appellant only pistol-whipped him and almost shot him.[6] The significance of a victims realization or consciousness that he was on the brink of death cannot be gainsaid. Such ante mortem statement is evidence of the highest order because at the threshold of death, all thoughts of fabricating lies are stilled. The utterance of a victim made immediately after sustaining serious injuries may be considered the incident speaking through the victim. It is entitled to the highest credence.[7] Granting that Pelagio, after giving his statement, later on realized that he was dying, his statement still can not be considered a dying declaration. The crucial factor to consider is the contemporaneity of the moment when the statement was made and the moment of the realization of death. The time the statement was being made must also be the time the victim was aware that he was dying.

Although the Court did not consider the statement as a dying declaration, nevertjjheless it was considered as aprt of res gestae, it ruled further: The requisites for the admissibility of the victims ante mortem statement as part of the res gestae and also as a dying declaration are present in this case, hence the same should be admitted under both exceptions to the hearsay rule. (Citation omitted) While the admissibility thereof would naturally not be affected whether viewed under either or both considerations, the advantage of resting the issue on the aforesaid dual bases is that its admission would be invulnerable to a theorized absence of an element of one of said exceptions. This is particularly important in this case, considering that the very identification of the assailant and the accuracy thereof are essentially based on the declaration of the victim. (Emphasis supplied)

A declaration made spontaneously after a startling occurrence is deemed as part of the res gestae when (1) the principal act, the res gestae, is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements concern the occurrence in question and its immediately attending circumstances.[9] The term res gestae comprehends a situation which presents a startling or unusual occurrence sufficient to produce a spontaneous and instinctive reaction, during which interval certain statements are made under such circumstances as to show lack of forethought or deliberate design in the formulation of their content. Pelagios declaration is admissible as part of the res gestae since it was made shortly after a startling occurrence and under the influence thereof. Under the circumstances, the victim evidently had no opportunity to contrive his statement beforehand.[11]

In People v. Hernandez, the infliction on a person of a gunshot wound on a vital part of the body should qualify by any standard as a startling occurrence. And the rule is that testimony by a person regarding statements made by another as that startling occurrence was taking place or immediately prior or subsequent thereto, although essentially hearsay, is admissible exceptionally, on the theory that said statements are natural and spontaneous, unreflected and instinctive, made before there had been opportunity to devise or contrive anything contrary to the real fact that occurred, it being said that in these cases, it is the event speaking through the declarant, not the latter speaking of the event. In People v. Dela Cruz(2003) the Court did not consider the anti mortem statement as dying declaration but considered it as part of res gestae: We agree with the trial court that the anti mortem statement of the victim cannot be considered a dying declaration as the same was not made with awareness of his impending death. In People v.

10

Bautista, et al.,[7] we held that it is not indispensable that a declarant expires immediately thereafter. It is the belief of an impending death and not the rapid succession of death, in point of fact, that renders the dying declaration admissible. Nonetheless, his declaration is admissible as part of the res gestae. A declaration is deemed part of the res gestae and admissible in evidence as an exception to the hearsay rule when the following requisites concur: (1) the principal act, the res gestae, is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements must concern the occurrence in question and its immediately attending circumstances.[8] All these requisites are present in this case. The principal act, i.e., the stabbing, was a startling occurrence. The declaration was made right after the stabbing while the victim was still under the exciting influence of the startling occurrence, without any prior opportunity to contrive a story implicating the appellant. The declaration concerns the one who stabbed the victim. Thus, the trial court correctly appreciated the testimonies of prosecution witnesses Sanchez and Delos Santos on what the victim told them as part of the res gestae.8 Conclusion In order to qualify as a dying declaration and npart of res gestae which may exempt it from the hearsay rule, a statement must meet the certain requisites which were mentioned in the above discussion. Failing on any of such requisites may affect its admissibility and the admissibility is on the sound discretion of the Court.

PEOPLE OF THE PHILIPPINES, appellee, vs. ROGER DELA CRUZ y DOE, G.R. No. 152176. October 1, 2003