EVIDENCE

(Part VIII of IX)

Evidence (Rule 128-133) A. General Provisions 1. Definitions
Rule 128, Sec. 1. Evidence defined. - Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. (1) Evidence – the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. Relevant evidence – evidence which has a relation to the fact in issue as to induce belief in its existence or non-existence; evidence which tends in any reasonable degree to establish the probability or improbability of the fact in issue. Material evidence – evidence which is directed to prove a fact in issue as determined by the rules of substantive law and pleadings; evidence of such quality of substantial importance to the particular issue, apart from its relevance Escolin: The terms “relevant” and “material” are practically the same. They are used interchangeably by the SC. They differ in effect. Material evidence has substantial effect. Competent evidence – evidence which is not excluded by the law or by the Rules of Court Direct evidence – evidence which proves a fact in dispute without the aid of any inference or presumption Circumstantial evidence – proof of facts from which, taken collectively, the existence of the particular fact in dispute may be inferred as a necessary or probable consequence Expert evidence – testimony of a witness regarding a question of science, art or trade, when he is skilled therein Prima facie evidence – evidence which suffices for the proof of a particular fact until contradicted and overcome by other evidence Conclusive evidence – evidence which is incontrovertible and which the law does not allow to be contradicted Cumulative evidence – evidence of the same kind and character as that already given and tends to prove the same proposition Corroborative evidence – evidence of a different kind and character tending to prove the same point Best evidence – evidence which affords the greatest certainty of the fact in question Secondary evidence – evidence which is necessarily inferior to primary/best evidence and shows on its fact that better evidence exists Factum probans – the evidentiary fact by which the factum probandum is to be established; material evidencing the proposition, existent, and offered for the consideration of the tribunal Factum probandum – the ultimate fact sought to be established; proposition to be established, hypothetical, and that which one party affirms and the other denies Factum probandum Factum Probans Proposition to be established Material evidencing the proposition Conceived of as hypothetical; that which Conceived of for practical purposes as one party affirms and the other denies existent, and is offered as such for the consideration of the court

Collateral facts – matters other than facts in issue and which are offered as a basis merely for inference as to the existence or non-existence of the facts in issue Real evidence – evidence furnished by the things themselves, or view or inspection as distinguished from a description by them of a witness; that which is addressed directly to the senses of the court without the intervention of a witness Rebuttal evidence – evidence which is given to explain, repel, counteract or disprove facts given in evidence by the adverse party Positive evidence – when a witness affirms that a fact did or did not occur Negative evidence – when a witness states that he did not see or know the occurrence of a fact

2. Distinguish
Admissibility of evidence Pertains to the ability of the evidence to be allowed and accepted subject to its relevancy and competence Substantive essence or characteristic feature of evidence as would make it worthy of consideration by the court before its admission Proof Effect and result of evidence End Result Weight of evidence Pertains to the effect of evidence admitted The probative value of evidence which the court may give to admit after complying with the rules of relevancy and competency

Evidence Medium of proof Means to the end

3. Scope a. Rule 128 §2
Sec. 2. Scope. - The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. (2a)

b. Cases
Reyes v. CA, 216 SCRA 25 (1992)

The Rules of Court, and its rules on Evidence, are not even suppletorily applicable to agrarian cases. Special law allows affidavits to be admitted in evidence in agrarian courts, even without the witness testifying nor subject to cross-examination. Escolin: Note that in Reyes, what was presented were affidavits. Ordinarily, affidavits are not admissible before the regular courts because there is no opportunity for the other party to cross-examine. Depositions are admissible because there was an opportunity for the adverse party to cross-examine.
Pp v. Turco 337scra714 (2000)

Subject: Failure to qualify the doctor who conducted the medical exam as an expert witness. In People vs. Bernaldez (supra), the court a quo erred in giving weight to the medical certificate issued by the examining physician despite the failure of the latter to testify. While the certificate could be admitted as an exception to the hearsay rule since entries in official records (under Section 44, Rule 130, Rules of Court) constitute exceptions to the hearsay evidence rule, since it involved an opinion of one who must first be established as an expert witness, it could not be given weight or credit unless the doctor who issued it is presented in court to show his qualifications. We place emphasis on the distinction between admissibility of evidence and the

probative value thereof. Evidence is admissible when it is relevant to the issue and is not excluded by the law or the rules (Section 3, Rule 128, Rules of Court) or is competent. Since admissibility of evidence is determined by its relevance and competence, admissibility is, therefore, an affair of logic and law. On the other hand, the weight to be given to such evidence, once admitted, depends on judicial evaluation within the guidelines provided in Rule 133 and the jurisprudence laid down by the Court. Thus, while evidence may be admissible, it may be entitled to little or no weight at all. Conversely, evidence which may have evidentiary weight may be inadmissible because a special rule forbids its reception (Regalado, Remedial Law Compendium, Vol. II, 1998 ed., p. 550). Withal, although the medical certificate is an exception to the hearsay rule, hence admissible as evidence, it has very little probative value due to the absence of the examining physician. Nevertheless, it cannot be said that the prosecution relied solely on the medical certificate (stating that there was "[h]ymen rupture, secondary to penile insertion" as well as "foul-smelling discharges." The diagnosis was "[r]uptured hymen secondary to rape" [p. 68, Record]). In fact, reliance was made on the testimony of the victim herself which, standing alone even without medical examination, is sufficient to convict (People vs. Topaguen, 369 SCRA 601 [1997]). It is well-settled that a medical examination is not indispensable in the prosecution of rape (People vs. Lacaba, G.R. No. 130591, November 17, 1999; People vs. Salazar, 258 SCRA 55 [1996]; People vs. Venerable, supra). The absence of medical findings by a medico-legal officer does not disprove the occurrence of rape (People vs. Taneo, supra). It is enough that the evidence on hand convinces the court that conviction is proper (People vs. Auxtero, supra). In the instant case, the victim's testimony alone is credible and sufficient to convict. Famador: medical certificate can be used by the defense when: 1. the lacerations have already healed or that the lacerations are already old. 2. the admission of more fingers into the vagina would prove the “sweetheart defense”
Imperial Textile Mills, Inc. v. NLRC, 217 SCRA 237 (1993)

The unverified position paper is a mere procedural infirmity which does not affect the merits of the case. Procedural technicalities do not strictly apply to proceedings before the LA. The rules of evidence does not apply to .1 probation board .2 CTA .3 SEC .4 Immigration cases .5 LA/NLRC .6 CAR

B. Admissibility of Evidence
Sec. 3. Admissibility of evidence. - Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. (3a) Requisites for admissibility .1 relevant .2 competent

1. Relevancy a. Rule 128 §4
Sec. 4. Relevancy; collateral matters. – Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in

any reasonable degree to establish the probability or improbability of the fact in issue. (4a) Relevance – relation to the facts in issue as to induce belief in its existence or nonexistence Evidence on collateral matters allowed only when it tends in any reasonable degree to establish the probability or improbability of the fact in issue.

b. Cases
Bautista v. Aparece, 51 OG 805 (1954)

Nicolas Añasco sold 3 parcels of land to Valentin Justiniani, who in turn sold the same to Claudio Justiniani. Claudio executed public instrument, whereby he sold same property to Apolonio Aparece. Hermogenes Bautista illegally entered portions III & IV and took possession thereof, prompting Aparece to file complaint with guerilla forces. Upon hearing this, Bautista executed public instrument recognizing Aparece’s ownership of the property. Possession was restored to Aparece. Bautista filed complaint vs. Aparece for allegedly usurping portion of his land. Aparece’s special defense: portion of land referred to in the complaint was acquired by him from Claudio Justiniani and prayed for dismissal of the case. TC decision: Defendant Aparece is the owner of portions III & IV. Bautista appealed alleging that TC erred in admitting in evidence the document relinquishing plaintiff’s ownership & possession as embodied in “exhibit I”. Bautista argued that the document was executed under duress, force, intimidation and that guerilla officer has no jurisdiction over the matter. SC: Test of admissibility or inadmissibility of a certain document is WON it is relevant, material or competent. Relevant Evidence – one that has any value in reason as tending to prove any matter provable in an action. Evidence is material when it is directed to prove a fact in issue as determined by the rules of substantive law & pleadings. Competent Evidence – one that is not excluded by law in a particular case. The mere fact that the document in question was executed before a guerilla officer does not make the same irrelevant, immaterial, or incompetent to the main issue raised in the pleading.
Lopez v. Heesen, 365 P.2d 448 (1961)

Both prosecution and defense presented their respective expert witnesses. testimonies were naturally in contradiction with each other.

The

GR: Expert evidence is not conclusive upon the court. The court is not bound to accept said evidence. The court may use it as an aid. Exception: when the court is not knowledgeable or completely ignorant on the subject, the court should admit the expert evidence.
State of Missouri v. Ball, 339 S.W2d 783 (1960)

2. Competence a. Rule 128 §3
Sec. 3. Admissibility of evidence. - Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. (3a) Competence – not excluded by the law or the RoC

b. Constitutional rules of exclusion 1) Art. III, Secs. 2 and 3
Art. III, Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Art. III, Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

2) Art. III, Sec. 12
Art. III, Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. XXX

3) Art. III, Sec. 17
Art. III, Section 17. No person shall be compelled to be a witness against himself. Absolutely inadmissible – evidence obtained .1 from unreasonable searches and seizures, or .2 in violation of the right of privacy of communication and correspondence Relatively inadmissible (inadmissible only against the person whose rights are violated, admissible for other purposes) – evidence obtained .1 in violation of the right be informed of the right to remain silent and to have competent and independent counsel .2 from means which vitiate the free will .3 in violation of the right against self-incrimination

c. Statutory rules of exclusion 1) NIRC, §201, as amended by RA 8424
Sec. 201. Effect of Failure to Stamp Taxable Document. — An instrument, document or paper which is required by law to be stamped and which has been signed, issued, accepted or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled. No notary public or other officer authorized to administer oaths shall add his jurat or acknowledgment to any document subject to documentary stamp tax unless the proper documentary stamps are affixed thereto and cancelled.

Failure to stamp a document required by law to be stamped shall render the document inadmissible in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled (§201 NIRC). This is an absolute inadmissibility.

2) General Banking Act of 2000, RA 8791, §55.1 (b)
Sec. 55. Prohibited Transactions. 55.1. No director, officer, employee, or agent of any bank shall – (b) Without order of a court of competent jurisdiction, disclose to any unauthorized person any information relative to the funds or properties in the custody of the bank belonging to private individuals, corporations, or any other entity: Provided, That with respect to bank deposits, the provisions of existing laws shall prevail; Elements of the exclusion .1 director, officer, employee, or agent of any bank .2 disclosure to unauthorized person .3 information relative to the funds or properties in the custody of the bank belonging to private individuals, corporations, or any other entity .4 without a court order de Leon: Note that this provision covers only property in the custody of the bank other than bank deposits. For bank deposits, RA 1405 governs. Note also that the provision does not state the nature of the inadmissibility. I submit that it is a rule of absolute inadmissibility.

3) RA 1405: Law on Secrecy of Bank Deposits
Sec. 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation. GR: All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office. Exceptions .1 written permission of the depositor .2 impeachment, or .3 order of a competent court in cases of .a bribery or .b dereliction of duty of public officials, or .4 where the money deposited or invested is the subject matter of the litigation. de Leon: I submit that this is a rule of absolute inadmissibility.

4) RA 4200: Wire-tapping
Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described:

It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition. Unlawful acts .1 any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dectaphone or walkie-talkie or tape recorder, or however otherwise described: .2 any person to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured in the manner prohibited by this law; or .3 any person to replay the same for any other person or persons .4 any person to communicate the contents thereof, either verbally or in writing, or .5 any person to furnish transcriptions thereof, whether complete or partial, to any other person: The use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition. Sec. 2. Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished xxx. Sec. 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) that there are no other means readily available for obtaining such evidence. xxx Conditions for valid wiretapping .1 any peace officer

.2 authorized by a written order of the Court .3 in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping, espionage and other offenses against national security: Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. Information obtained in violation of the anti-wiretapping act is absolutely inadmissible.
Ramirez v. CA, 248 SCRA 590 (1995)

Even a person privy to a communication who records his private conversation with another without the knowledge of the latter violates the anti-wiretapping act. The recording is inadmissible in evidence.
Gaanan v. IAC, 145 SCRA 112 (1986) Salcedo Ortañez v. CA, 235 SCRA 111 (1994)

C. What Need NOT be Proved:
3 things that need not be proved .1 matters of mandatory judicial notice .2 matters of discretionary judicial notice .3 judicial admissions

1. Judicial notice a. Mandatory (Rule 129 §1)
Sec. 1. Judicial notice, when mandatory. - A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a) Mandatory Judicial Notice .1 existence and territorial extent of states, their political history, forms of government and symbols of nationality .2 the law of nations .3 the admiralty and maritime courts of the world and their seals .4 the political constitution and history of the Philippines .5 the official acts of the legislative, executive and judicial departments of the Philippines .6 the laws of nature .7 the measure of time, and .8 the geographical divisions
Sermonia v. CA, 233 SCRA 155 (1994)

In determining prescription in a prosecution for bigamy, the reckoning point is actual discovery of the subsequent marriage by the offended party, not from the registration of the marriage contract. The doctrine of constructive knowledge does not apply, even if it is more favorable to the accused.

b. Discretionary (Rule 129 §2)

Sec. 2. Judicial notice, when discretionary. - A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. (1a) Discretionary Judicial Notice – matters which are .1 of public knowledge, or .2 are capable of unquestionable demonstration, or .3 ought to be known to judges because of their judicial functions

c. When hearing required (Rule 129 §3)
Sec. 3. Judicial notice, when hearing necessary. - During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case.(n) When court takes judicial notice .1 During trial, on any matter – allow the parties to be heard thereon .2 After trial, and before judgment or on appeal – any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case Hearing is necessary when .1 During the trial, the court .a motu propio, on request of a party .b announces its intention to take judicial notice of any matter .2 After trial .a before judgment or on appeal .b motu propio, on request of a party .c takes judicial notice of any matter, and .d if such matter is decisive of a material issue in the case Hence, the court can take judicial notice of any matter during the trial as long as there is a hearing. If trial is already over, the court can take judicial notice only of matters decisive of a material issue in the case as long as there is a hearing (p. 88, Francisco). de Leon: Why on earth would a court take judicial notice of a matter which is not decisive of a material issue in a case?
City of Manila v. Garcia, 19scra413 (1967) L26053 Baguio v. Vda. de Jalagat, 42 SCRA 337 (1971) L28100 Prieto v. Arroyo, 14 SCRA 549 (1965) L17885 Ozaeta Romulo etc. , 92 SCRA 1 (1979) x Yao-Kee v. Sy-Gonzales, 167 SCRA 736 (1988) L55960 Tabuena v. CA, 196 SCRA 650 (1991) 85423

As a general rule courts are not authorized to take judicial notice, in the adjudication of cases pending before them, of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been heard or are actually pending before the same judge. However, an exception is when in the absence of objection, and as a matter of

convenience to all parties, a court may properly treat all or any part of the original record of a case filed in its archives as read into the record of a case pending before it, when, with the knowledge of the opposing party, reference is made to it for that purpose, by name and number or in some other manner by which it is sufficiently designated; or when the original record of the former case or any part of it, is actually withdrawn from the archives by the court's direction, at the request or with the consent of the parties, and admitted as a part of the record of the case then pending.
People v. Godoy, 250 SCRA 676 (1995) 115908-09 BPI-Family Bank v. CA 330scra507 (2000) 122480

2. Judicial admissions a. Rule 129 §4
Sec. 4. Judicial admissions. - An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (2a) Requisites for judicial admission .1 made by a party .2 in the course of the proceedings .3 in the same case de Leon: If the admission was made in outside the proceedings or in another case, it is also admissible under admissions of a party (Rule 130, Sec. 26). The admission may be contradicted only by showing that .1 it was made through palpable mistake or .2 no such admission was made

b. Instances of Judicial admissions
Instances of Judicial admissions .1 the genuineness and due execution of an actionable document copied or attached to a pleading, when the other party fails to specifically deny under oath (Rule 8 §8) .2 material allegations in the complaint, when the other party fails to specifically deny it (Rule 8 §11) .3 admissions in superseded pleadings, when offered in evidence (Rule 10 §8) .4 act, declaration, or omission of a party as to a relevant fact (Rule 130 §26) .5 implied admission of guilt in an offer of compromise by the accused in criminal cases, except quasi-offenses and those allowed by law to be compromised (Rule 130 §27) .6 admission by silence (Rule 130 §32)

c. Cases
Lucido v. Calupitan, 27 Phil. 48 (1914) 8200 Torres v. CA, 131 SCRA 24 (1984) L37420 Bitong v. CA 292scra503 (1998) 123553

D.Object and Documentary Evidence 1. Rule 130 §1-2
Sec. 1. Object as evidence. – Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. (1a)

Object Evidence – evidence addressed to the senses of the court Ocular inspection qualifies as object evidence. Sec. 2. Documentary evidence. – Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents. (n) Documentary evidence – any material containing modes of written expressions offered as proof of their contents

2. Cases
People v. Bardaje, 99 SCRA 388 (1980) L29271 Sison v. People, 250 SCRA 58 (1995) 108280-83 Adamczuk v. Holloway, 13 A.2d 2 (1940) State v. Tatum, 360 P. 2d 754 (1961)

E. Best Evidence Rule 1. Rule 130 §3-4
Sec. 3. Original document must be produced, exceptions. – When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office. (2a) Best Evidence Rule – When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself Exceptions: When the original .1 has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; .2 is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; .3 consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and .4 the original is a public record in the custody of a public officer or is recorded in a public office

2. Cases
People v. Tandoy, 192 SCRA 28 (1990) 80505 

The best evidence rule does not apply to the marked money in a buy bust operation because the inquiry is not on the contents of the marked bill, but merely its existence.

Air France v. Carrascoso, 18 SCRA 155 (1966) L21438  Meyers v. US, 171 F.2d 800 (1948)

BER only applies if the subject of inquiry is the contents of a document; such an inquiry need not be the main issue
People v. Tan, 105 Phil. 1242 (1959) L14257 Seiler v. Lucasfilm, 797 F.2d 1504 (1986)

US BER “or their equivalents” vs. Philippine BER “other modes of written expression;” is a disputed work in an infringement case object or documentary?
US v. Gregorio, 17 Phil. 522 (1910) 5791 Fiscal v. Reyes, 55 Phil 905 (1931) 35366 05aug31

Sec. 4. Original of document. – (a) The original of a document is one the contents of which are the subject of inquiry. (b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. (c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. (3a) Original documents .1 one the contents of which are the subject of inquiry. .2 When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. .3 When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals

F. Secondary Evidence 1. Rule 130 §5-8
Sec. 5. When original document is unavailable. – When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. (4a) Sec. 6. When original document is in adverse party's custody or control. – If the document is in the custody or under the control of the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss. (5a) Sec. 7. Evidence admissible when original document is a public record. – When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. (2a) cf Rule 132 §25-27
Sec. 25. What attestation of copy must state. - Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of

the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. (26 a) Sec. 26. Irremovability of public record. - Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. (27 a) Sec. 27. Public record of a private document. - An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (28a)

To prove loss, get affidavits of loss from all the people who possibly has a copy of the original, e.g. Notarized Deed of Sale .1 .2 .3 .4 .5 Vendor vendee notary public clerk of the court which gave the notary public commission Bureau of Archives

Requisites for admission of secondary evidence, according to grounds .1 the original has been lost or destroyed, or cannot be produced in court .a prove execution or existence .b prove cause of unavailability without bad faith of the offeror .c proof of contents in the following order )1 copy )2 recital of its contents in )a some authentic document, or )b testimony of witnesses .2 the original is in the custody or under the control of the adverse party .a adverse party had reasonable notice to produce the original (Subpoena duces tecum) .b proof of the original’s existence .c adverse party fails to produce the original .d proof of contents in the following order )1 copy )2 recital of its contents in )a some authentic document, or )b testimony of witnesses .3 the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and .4 the original is a public record in the custody of a public officer or is recorded in a public office – contents may be proved by a certified copy issued by the public officer in custody thereof .a Rule 132 §25: What attestation of copy must state )1 the copy is a correct copy of the original, or a specific part thereof )2 under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court .b Rule 132 §27: Public record of a private document - may be proved by )1 the original record, or )2 by a copy thereof )a attested by the legal custodian of the record )b with an appropriate certificate that such officer has the custody

2. Cases
Municipality of Victorias v. CA, 149scra32 (1987) L31189 31mar87

Facts: In action to recover land, a party failed to produce the deed of sale, but presented only a Certificate from the Archives Division of the Bureau of Records Management of an entry in a notarial register.

Held: Certificate is admissible. Where the original has been lost or destroyed, the offeror may prove its contents by a recital of its contents in some authentic document or by testimony of witnesses. The Certificate is one such authentic document.
de Vera v Aguilar, 218scra602 (1993) 83377 09feb 

In case of loss of the original of a document, the order of proof is as follows; 1) existence of the original, 2) its due execution, 3) loss, and 4) its contents. Failure to prove loss of all the originals without fault of the offeror renders secondary evidence inadmissible.
Vda. de Corpus v. Brabangco, (C.A.) 59 O.G. 8262 (1963) 

When the existence of a document is proven or admitted by both parties, the court should allow the lost document to be proven by parole; testimony of a witness regarding the contents of the document need not be verbatim or perfect.
Compañia Maritima v. Allied Free Workers Union, 77 SCRA 24 (1977) L28999 24may77

Voluminous character of accounts must be established, and it must be made available to the adverse party before parole; audit made by or testimony of private auditor is inadmissible as proof of original record or books of accounts; auditor’s opinion not admissible; best evidence on cost of equipment are sales invoices not testimony of an auditor
Villa Rey Transit, Inc. v. Ferrer, 25scra845 (1968) L23893 29oct68 

It is not necessary for a party seeking to introduce copy to prove that original is in actual possession of adverse party as long as it is under his control; adverse party need not admit that it is in his possession before a copy may be introduced.
Michael & Co., Inc. v. Enriquez, 33 Phil. 87 (1915) 10824 24dec15

To prove a lost document, must prove due execution, delivery (if required), and the fact of lost or destruction; it is important to have qualified witnesses. Sec. 8. Party who calls for document not, bound to offer it. - A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. (6a)

G.Parol Evidence Rule 1. Rule 130 §9
Sec. 9. Evidence of written agreements. – When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The terms "agreement" includes wills. (7a) When the terms of an, agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.
Exceptions: Parol Evidence Rule:

a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading .1 An intrinsic ambiguity, mistake or imperfection in the written agreement .2 failure of the written agreement to express the true intent and agreement of the parties .3 validity of the written agreement; or .4 The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement If the ground is subsequently-agreed terms, the subsequently-agreed terms must also be put in issue in the pleadings. The rule applies only to the terms of an agreement. If the evidence sought to be admitted refers to matters other than the terms of the agreement (e.g. statement of facts), then the PER does not apply, such evidence is admissible. PER applies only to the parties to the agreement. It does not apply where PER is invoked against a litigant who is a stranger to the agreement.
Requisites for mistake as exception to PER

.1 mutual between the parties .2 of fact, not of law .3 alleged and put in issue in the pleadings .4 proved by clear and convincing, not merely preponderance of, evidence Escolin: Note that the rule on self-defense also requires that the circumstances of selfdefense be proven by clear and convincing evidence.

2. Art. 1403 and 1405 Civil Code (Statute of Frauds)
Art. 1403. The following contracts are unenforceable, unless they are ratified: xxx (2) Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases an agreement hereafter made shall be unenforceable by action, unless the same, or some note or memorandum, thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents: (a) An agreement that by its terms is not to be performed within a year from the making thereof; (b) A special promise to answer for the debt, default, or miscarriage of another; (c) An agreement made in consideration of marriage, other than a mutual promise to marry; (d) An agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action or pay at the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum; (e) An agreement of the leasing for a longer period than one year, or for the sale of real property or of an interest therein; (f) A representation as to the credit of a third person. Art. 1405. Contracts infringing the Statute of Frauds, referred to in No. 2 of article 1403, are ratified by the failure to object to the presentation of oral evidence to prove the same, or by the acceptance of benefit under them.
Statute of Frauds: (Art1403 NCC)

If the following agreements are not in writing and subscribed, it is unenforceable and evidence thereof is inadmissible .1 not to be performed within a year from the making thereof .2 special promise to answer for the debt, default, or miscarriage of another; .3 agreement made in consideration of marriage, other than a mutual promise to marry; .4 agreement for the sale of goods, chattels or things in action, at a price not less than P500, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action or pay at the time some part of the purchase money; .5 lease for more than 1 year, or sale of real property or of an interest therein; .6 representation as to the credit of a 3rd person.
Exceptions (Art1405 NCC)

.1 failure to object to the presentation of oral evidence, or .2 acceptance of benefit under the agreement

3. Parol Evidence Rule vs. Best Evidence Rule
Parol Evidence Rule No issue as to the contents of a writing Parol evidence is offered Presupposes that original is in court Effect is: cannot add, subtract, or explain the contents Best Evidence Rule Issue is contents of a writing Secondary evidence is offered Applies when the original is not available Effect is: cannot present any evidence on the contents other than the original Invoked only if the controversy is between parties to the Invoked by anybody, whether a party to the agreement instrument or not Applies only to agreements and wills Applies to all kinds of writing

4. Cases
Cruz v CA, 192 SCRA 209 (1990) 79962 

Facts: Conrado Salonga (respondent) filed a complaint for collection and damages vs. petitioner Lucio Cruz in Lucena RTC alleging that in the course of their business, Cruz borrowed from him 35T as evidenced by a receipt. Cruz admitted having received the 35T not as a loan but as consideration for their fish pakyaw purchase and sublease agreement. RTC ruled in favor of Cruz and found that the transactions were indeed pakyaw and sublease agreements. On appeal, CA reversed the RTC ruling. CA ruled that the receipts are clear in its language and its tenor must not be clouded by any parol evidence introduced by Cruz such as self-serving testimonies. Held: PER does not apply to receipts because it is not an agreement. It is proof only of delivery of money. Furthermore, the parole evidence bars only evidence as to the terms, it does not bar evidence as to statement of facts. The receipt of money is merely a statement of fact. Lastly, failure of the adverse party to object renders parole evidence admissible.
Pioneer Savings & Loan Bank v. CA, 226 SCRA 740 (1993) 105419 27sep93

Facts: Pioneer execute an DoAS of a car in favor of Michael Santos. Pioneer claims that the car was merely a security for the time deposit placements of Santos’ relatives. Since Santos’ relatives have recovered their placements, Pioneer sued for recovery of the car. Held: Evidence of a prior or contemporaneous verbal agreement is generally not admissible to vary, contradict or defeat the operation of a valid instrument. While parol evidence is admissible in a variety of ways to explain the meaning of written contracts, it cannot serve the purpose of incorporating into the contract additional contemporaneous conditions which are not mentioned at all in the writing, unless there has been fraud or mistake. Pioneer failed to produce any instrument or written document which would prove that the deed of sale in question was only a security for the time deposit placements of Santos' relatives in Pioneer. The 2 main witnesses for Pioneer, were not mere employees of the bank. They were bank officers; one being a lawyer and supposed to be steeped in legal and banking knowledge and practices. They were expected to know the consequences of their act of signing a document which outrightly transferred

ownership over the subject vehicle in favor of Santos. They could have incorporated in the deed of sale (if such was the intention or agreement of the parties) a stipulation that transfer of ownership and registration of the vehicle in Santos' name were conditioned on the failure of his relatives to recover their time deposit placements in petitioner bank. No such stipulation was incorporated in the deed of sale which was an outright and unconditional transfer of ownership of the motor vehicle to respondent Santos. de Leon: Note that the PER exceptions of other term agreed by the parties refer to those agreed after, not before, the execution of the agreement. Pioneer should have invoked the exception that the agreement did not express their true intent and agreement.
Enriquez v. Ramos, 6 SCRA 219 (1962) L18077 29sep62 

Facts: In a foreclosure of REM case, plaintiff invokes the registered mortgage agreement. Defendant answers that the contract did not express the true agreement of the parties because it did not include the undertaking of plaintiff to construct roads on the land. Furthermore, defendant argues that the ordinance that requires the construction of such roads in the subdivision before the lots could be sold is deemed included in the contract. Held: Since the answer alleged that the contract did not express the true intention of the parties, it has therefore been put in issue in the pleadings. The same may therefore be subject of parole evidence.
Canuto v. Mariano, 37 Phil. 840 (1918) 11346 21mar 

Facts: Canuto executed a DoS with 1-year right to repurchase of a parcel of land to Mariano. Redemption period elapsed so Mariano set up a claim of absolute ownership despite the insistent demand of Canuto that she be permitted to exercise said right in accordance with an alleged oral agreement for the extension of the redemption period. Canuto presented witnesses to corroborate her testimony on the oral agreement. Mariano contends that Canuto should not be permitted to alter, vary, or contradict the terms of the written instrument by the introduction of oral evidence. Manila CFI ruled in favor of Canuto. Held: The rule forbidding the admission of parol or extrinsic evidence to alter, vary contradict a written instrument does not apply so as to prohibit the establishment by parol of an agreement between the parties to a writing, entered into subsequent to the time when the written instrument was executed, notwithstanding such agreement may have the effect of adding to, changing, modifying, or even altogether abrogating the contract of the parties as evidenced by the writing; for the parol evidence does not in any way deny that the original agreement of the parties was but merely goes to show that the parties have exercised their right to change or abrogate the same, or to make a new and independent contract. It makes no difference how soon after the execution of the written contract the parol one was made. If it was in fact subsequent and is otherwise unobjectionable it may be proved and enforced. Parol evidence may be introduced to prove subsequent agreement regardless of how soon such agreement was made.
Yu Tek & Co. v. Gonzales, 29 Phil. 384 (1915) 9935 01feb 

Facts: Yu Tek & Gonzales had a written contract where Gonzales will deliver sugar to Yu Tek. Gonzales received 3T in advance. The contract stipulated that in the event there is no delivery of sugar, Gonzales will return the 3T and pay 1.2T in damages. Sugar was not delivered, 3T was not returned and 1.2T was not paid. Judgment was rendered on the 3T only. Both parties appealed. Gonzales alleges that the court erred in refusing to permit parol evidence showing that the parties intended that the sugar was to be secured from the crop which Gonzales raised in his plantation, and that he was unable to fulfill the contract due to total failure of his crop. Held: Parol evidence inadmissible to incorporate additional contemporaneous conditions which are not mentioned at all in the writing, unless there is fraud or mistake.

Land Settlement & Development Corp. v. Garcia Plantation, 7 SCRA 750 (1963) L17820 24apr 

Facts: LSDC sued Garcia Plantation for specific performance of contract and for payment of unpaid balance of the purchase price of 2 tractors. Salud Garcia was made a co-defendant because of 2 IOU notes executed by her. Defendants admitted the execution of the IOU notes but contended that the same had been novated by a subsequent agreement in a letter giving them an extension to pay the account. LSDC in their reply and answer to the counterclaim, admitted the due execution and genuineness of the letter but contended that the same did not express the true intent and agreement of the parties, thereby placing the fact in issue, in the pleadings. At the trial, LSDC presented Atty. Guinto to testify on the true agreement and intention of the parties at the time of the letter’s execution. Upon Garcia’s objection, the lower court ruled out said testimony and prevented the introduction of evidence under the parol evidence rule. LSDC intended to present Kintanar (the writer of the letter) to testify but in view of the court’s ruling, LSDC rested its case. The parol evidence consisted of the testimony of Attys. Guinto and Kintanar, to the effect that in view of the plea of defendant Vicente B. Garcia to give the defendants an extension of time to pay their accounts, Atty. Kintanar gave the defendants up to May 31, 1957, to coincide with their ramie harvest "provided that they will make a substantial down payment immediately, with the understanding that upon non-payment of the substantial amount, the extension shall be deemed as not granted and the LASADECO shall feel free to seek redress in court". That there was such condition precedent is manifested by the second paragraph of the letter. Lower court dismissed the case stating that the action was premature due to the agreed extension. LSDC appealed to CA. CA certified case to SC. Held: Exception to PER may be put in issue in answer to counterclaim; when operation of contract made to depend upon occurrence of an event, which for that reason is a condition precedent, such may be established by parol evidence, since if it is proven, there will be no contract. PER does not apply to condition precedent because such condition is part of the terms of the contract. It does not modify, alter, or vary the terms or tenor of the contract. Had the trial court permitted, as it should, LSDC to prove the condition precedent to the extension of the payment, LSDC would have been able to show that because the defendants had failed to pay a substantial down payment, the agreement was breached and the contract contained in Exhibit "L", never became effective and the extension should be considered as not having been given at all. So that, although the complaint was filed on February 20, 1957, three months before the deadline of the extension on May 31, 1957, there would be no premature institution of the case. The lower court, therefore, erred in dismissing the case. The decision appealed from is reversed, and case remanded to the lower court for further proceedings.
Maulini v. Serrano, 28 Phil. 640 (1914) 8844 16dec 

Facts: Maulini brought an action upon the contract of indorsement alleged to have been made in his favor by Serrano on a IOU note executed by Padern, Moreno & Co with Serrano as payee. The indorsement did not indicate “without recourse”. Maker failed to pay the note upon presentation for payment. Maulini opted to collect from Serrano as indorser. Manila CFI although it received parol evidence on the subject provisionally, held that such evidence was inadmissible to alter, vary, modify or contradict the terms of the contract of indorsement. Thus this tended to show that, by verbal agreement between Maulini and Serrano, Serrano, in making the indorsement, was acting as agent for the indorsee, as a mere vehicle for the transfer of title and that his indorsement was w/o consideration. It seems that according to the parol evidence, Serrano was a broker doing business of looking up and ascertaining persons who had money to loan as well as those who desired to borrow money and acting as a middleman, negotiate a loan between the two.

Issue: WON Serrano may show by parol evidence that the indorsement was w/o consideration and that in making it, Serrano acted as agent for Maulini as a mere vehicle of transfer of the naked title from Padern to Maulini for which he received no consideration. Held: CFI erred in ruling as so. Consideration of a negotiable IOU note is, between the immediate parties to the contract, open to attack, under proper circumstances, for the purpose of showing an absolute lack or failure of consideration. PER does not apply where the purpose of parol evidence is to show that no written contract ever existed. CFI ruling is REVERSED. FAMADOR: I agree with dissenting opinion.
PNB v. Seeto, 91 Phil. 756 (1952) L4388 13aug 

Facts: Seeto went to PNB Surigao and presented a 5T check dated 10Mar pay to cash/bearer drawn by Gan Yek Kiao against PBCom Cebu. After consultation with PNB employees, Seeto made a general and unqualified indorsement of the check and PNB accepted it and paid Seeto. Check was mailed to PNB Cebu 20Mar and was presented to PBCom 09Apr but the check was dishonored for ISF. PNB demanded refund of the check but Seeto refused claiming that at the time of the negotiation of the check the drawer had sufficient funds and that had PNB forwarded the check earlier, it would have been paid. PNB filed a complaint with Surigao CFI alleging that Seeto gave assurances that the drawer of the check had sufficient funds and that upon these assurances PNB delivered the 5T to Seeto after the latter had made a general and unqualified indorsement. Seeto denied having made the alleged assurances. PNB presented 2 witnesses who testified that it was not the practice of PNB to cash out of town checks and that check was cashed because of Seeto’s assurances. CFI found that Seeto made an undertaking to refund the check in the event of dishonor and that there was no unreasonable delay in the presentation of the check. CA held that PNB was guilty of unreasonable retaining and withholding the check and that the delay in the presentment for payment was inexcusable, so that Seeto was discharged from liability. It also held that parol evidence is incompetent to show that one signing a check as indorser is merely a surety or guarantor, rejecting the evidence adduced at the CFI about Seeto’s assurances and promise to refund. CA reversed CFI ruling. PNB appealed to SC. PNB argues that the verbal assurances given by Seeto to the employees of the bank that he was ready to refund the amount if the check should be dishonored by PBCom is a collateral agreement, separate and distinct from the indorsement, by virtue of which PNB was induced to cash the check, and, therefore, admissible as an exception to the parol evidence rule. Held: Assurances made by an indorser that the drawer has funds, which assurances induced bank to cash the check, are admissible in evidence. We find, however, that the supposed assurances of refund in case of dishonor of the check are precisely the ordinary obligations of an indorser, and these obligations are, under the law, considered discharged by an unreasonable delay in the presentation of the check for payment. There was no express obligation assumed by the respondent herein that the drawer would always have funds, or that he (the indorser) would refund the amount of the check even if there was delay in its presentation, so that while the CA may have committed an error in disregarding the evidence submitted by petitioner at the trial of the assurances made by respondent herein at the time of the negotiation of the check, such error was without prejudice, because the supposed assurances given were part of his obligations as an indorser, which were discharged by the unreasonable delay in the presentation of the check for payment. The judgment appealed from is, therefore, affirmed, with costs against the petitioner.
Woodhouse v. Halili, 93Phil526 (1953) L4811 31jul 

Inducement by fraud may be proved by parol (drafts of the agreement as in this present case) because it goes into the validity of the agreement.
Robles v. Lizarraga Hermanos, 50Phil387 (1927) 26173 13jul

Facts: Robles was a co-heir and at the same time a lessee of Hacienda Nahalinan. Lizarraga Hermanos wanted to buy the hacienda 2yrs before the expiry of Robles’ lease. Held: Parol may be received regardless of whether the written agreement contains any reference to the collateral agreement and whether the action is at law or in equity even if it deals with related matters
Lechugas v. CA, 143scra335 (1986) L39972 06aug 

PER not applicable where suit is between one of the parties to the document and 3rd persons; PER does not apply and may not be invoked by either party to the litigation against the other, where at least one of the parties to the suit is not party or privy to the written agreement and does not base a claim on the instrument; both parties to the agreement must be parties to the suit
Inciong v. CA, 257 SCRA 578 (1996) 96405 26jun

PER does not specify that the agreement be a public document; need not be in any particular form or signed by the parties; fraud must be corroborated
Facts: Petitioner's liability resulted from the promissory note in the amount of P50,000.00 which he signed with Rene C. Naybe and Gregorio D. Pantanosas on February 3, 1983, holding themselves jointly and severally liable to private respondent Philippine Bank of Communications, Cagayan de Oro City branch. Said due date expired without the promissors having paid their obligation. Both obligors did not respond to the demands made, private respondent filed a complaint for collection of the sum of P50,000.00 against the three obligors. Petitioner alleged that five (5) copies of a blank promissory note were brought to him by Campos at his office. He affixed his signature thereto but in one copy, he indicated that he bound himself only for the amount of P5,000.00. Thus, it was by trickery, fraud and misrepresentation that he was made liable for the amount of P50,000.00. The lower court ruled in favor of the bank. The petitioner appealed to the CA which affirmed the ruling of the trial court. Issue: Whether or not parol evidence may overcome the contents of a promissory note. Held: Petitioner asserts that since the promissory note "is not a public deed with the formalities prescribed by law but . . . a mere commercial paper which does not bear the signature of . . . attesting witnesses," parol evidence may "overcome" the contents of the promissory note. The first paragraph of the parol evidence rule states: When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. Clearly, the rule does not specify that the written agreement be a public document. What is required is that the agreement be in writing as the rule is in fact founded on "long experience that written evidence is so much more certain and accurate than that which rests in fleeting memory only, that it would be unsafe, when parties have expressed the terms of their contract in writing, to admit weaker evidence to control and vary the stronger and to show that the parties intended a different contract from that expressed in the writing signed by them." Thus, for the parol evidence rule to apply, a written contract need not be in any particular form, or be signed by both parties. As a general rule, bills, notes and other instruments of a similar nature are not subject to be varied or contradicted by parol or extrinsic evidence.

Ortañez v. CA 266scra561 23Jan97

Contemporaneous conditions not referred to in the contract can not be proven by parol; merely alleging that the contract is subject to conditions does not “put” the exception “in issue in the pleadings”
Facts: On September 30, 1982, private respondents sold to petitioner two (2) parcels of registered land in Quezon City for a consideration of P35,000.00 and P20,000.00, respectively. Private respondents received the payments for the above-mentioned lots, but failed to deliver the titles to petitioner. On April 9, 1990 the latter demanded from the former the delivery of said titles. Private respondents, however, refused on the ground that the title of the first lot is in the possession of another person, and petitioner's acquisition of the title of the other lot is subject to certain conditions. Offshoot, petitioner sued private respondents for specific performance before the RTC. In their answer with counterclaim private respondents merely alleged the existence of the following oral conditions which were never reflected in the deeds of sale: 3.3.2 Title to the other property (TCT No. 243273) remains with the defendants (private respondents) until plaintiff (petitioner) shows proof that all the following requirements have been met:

(i) Plaintiff will cause the segregation of his right of way amounting to 398 sq. m.; (ii) Plaintiff will submit to the defendants the approved plan for the segregation; (iii) Plaintiff will put up a strong wall between …. During trial, private respondent Oscar Inocentes, a former judge, orally testified that the sale was subject to the above conditions, although such conditions were not incorporated in the deeds of sale. Despite petitioner's timely objections on the ground that the introduction of said oral conditions was barred by the parol evidence rule, the lower court nonetheless, admitted them and eventually dismissed the complaint as well as the counterclaim. On appeal, the Court of Appeals (CA) affirmed the court a quo. Held: The parol evidence herein introduced is inadmissible. First, private respondents' oral testimony on the alleged conditions, coming from a party who has an interest in the outcome of the case, depending exclusively on human memory, is not as reliable as written or documentary evidence. Spoken words could be notoriously unreliable unlike a written contract which speaks of a uniform language. Secondly, to buttress their argument, private respondents rely on the case of Land Settlement Development, Co. vs. Garcia Plantation where the Court ruled that a condition precedent to a contract may be established by parol evidence. However, the material facts of that case are different from this case. In the former, the contract sought to be enforced expressly stated that it is subject to an agreement containing the conditions-precedent which were proven through parol evidence. Whereas, the deeds of sale in this case, made no reference to any pre-conditions or other agreement. In fact, the sale is denominated as absolute in its own terms. Third, the parol evidence herein sought to be introduced would vary, contradict or defeat the operation of a valid instrument. Although parol evidence is admissible to explain the meaning of a contract, "it cannot serve the purpose of incorporating into the contract additional contemporaneous conditions which are not mentioned at all in the writing unless there has been fraud or mistake." No such fraud or mistake exists in this case. Fourth, we disagree with private respondents' argument that their parol evidence is admissible under the exceptions provided by the Rules, specifically, the alleged failure of the agreement to express the true intent of the parties. In this case, the deeds of sale are clear, without any ambiguity, mistake or imperfection, much less obscurity or doubt in the terms thereof. ACCORDINGLY, the appealed decision is REVERSED

H.Interpretation of Documents 1. Rule 130 §10-19

Sec. 10. Interpretation of a writing according to its legal meaning. – The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise. (8) Sec. 11. Instrument construed so as to give effect to all provisions. – In the construction of an instrument where there are several provisions or particulars. such a construction is, if possible, to be adopted as will give effect to all. (9) Sec. 12. Interpretation according to intention; general and particular provisions. – In the construction of an instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. (10) Sec. 13. Interpretation according to circumstances. – For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret. (11) Sec. 14. Peculiar signification of terms. – The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly.(12) Sec. 15. Written words control printed. – When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter. (13) Sec. 16. Experts and interpreters to be used in explaining certain writings. – When the characters in which an instrument is written are difficult to be

deciphered, or the language is not understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language. (14) Sec. 17. Of two constructions, which preferred. – When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made. (15) Sec. 18. Construction in favor of natural right. – When an instrument is equally susceptible of two interpretations, one is favor of natural right and the other against it, the former is to be adopted. (16) Sec. 19. Interpretation according to usage. – An instrument may be construed according to usage, in order to determine its true character. (17)
Rules of interpretation of documents

.1 .2 .3 .4 .5 .6

Interpretation of a writing according to its legal meaning in the place of execution Instrument construed so as to give effect to more provisions Interpretation according to intention of the parties particular over general Interpretation according to circumstances of the parties and the subject Terms presumed to be used in primary and general acceptation, evidence of local, technical, or peculiar signification use admissible .7 Written words control printed .8 When the characters are difficult to decipher, or the language is foreign, the evidence of experts and interpreters is admissible .9 When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it .10 When different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made .11 preference for natural right .12 usage may be considered

2. Arts. 1370-1379 Civil Code

Art. 1370. If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control. If the words appear to be contrary to the evident intention of the parties, the latter shall prevail over the former. Art. 1371. In order to judge the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered. Art. 1372. However general the terms of a contract may be, they shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree. Art. 1373. If some stipulation of any contract should admit of several meanings, it shall be understood as bearing that import which is most adequate to render it effectual. Art. 1374. The various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly. Art. 1375. Words which may have different significations shall be understood in that which is most in keeping with the nature and object of the contract.

Art. 1376. The usage or custom of the place shall be borne in mind in the interpretation of the ambiguities of a contract, and shall fill the omission of stipulations which are ordinarily established. Art. 1377. The interpretation of obscure words or stipulations in a contract shall not favor the party who caused the obscurity. Art. 1378. When it is absolutely impossible to settle doubts by the rules established in the preceding articles, and the doubts refer to incidental circumstances of a gratuitous contract, the least transmission of rights and interests shall prevail. If the contract is onerous, the doubt shall be settled in favor of the greatest reciprocity of interests. If the doubts are cast upon the principal object of the contract in such a way that it cannot be known what may have been the intention or will of the parties, the contract shall be null and void. Art. 1379. The principles of interpretation stated in Rule 123 of the Rules of Court shall likewise be observed in the construction of contracts.
Statutory rules of interpretation

.1 If the terms are clear, the literal meaning shall control. .2 If the words appear to be contrary to the evident intention of the parties, the intention shall prevail .3 In order to judge the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered. .4 terms of a contract shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree .5 If some stipulation of any contract should admit of several meanings, it shall be understood as bearing that import which is most adequate to render it effectual. .6 The various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly. .7 Words which may have different significations shall be understood in that which is most in keeping with the nature and object of the contract. .8 The usage or custom of the place shall be borne in mind in the interpretation of the ambiguities of a contract, and shall fill the omission of stipulations which are ordinarily established. .9 The interpretation of obscure words or stipulations in a contract shall not favor the party who caused the obscurity. .10 When it is absolutely impossible to settle doubts by the rules established in the preceding articles .a the doubts refer to incidental circumstances of )1 )2 a gratuitous contract, the least transmission of rights and interests shall prevail an onerous contract, the doubt shall be settled in favor of the greatest reciprocity of interests

.b If the doubts are cast upon the principal object of the contract in such a way that it cannot be known what may have been the intention or will of the parties, the contract shall be null and void. .11 The principles of interpretation stated in the Rules of Court shall likewise be observed

3. Cases
Lambert v. Fox, 26 Phil. 588 (1914)

If from the words the meaning is plain, contract should be enforced according to the words
Facts: Early in 1911 the firm known as John R. Edgar & Co., engaged in the retail book and stationery business, found itself in such condition financially that its creditors, including the plaintiff and the defendant, together with many others, agreed to take over the business, incorporate it and accept stock therein in payment of their respective credits. This was done, the plaintiff and the defendant becoming the two largest stockholders in the new corporation called John R. Edgar & Co., Incorporated. A few days after the incorporation was completed plaintiff and defendant entered into the following agreement: Therefore, the undersigned mutually and reciprocally agree not to sell, transfer, or otherwise dispose of any part of their present holdings of stock in said John R. Edgar & Co. Inc., till after one year from the date hereof. Either party violating this agreement shall pay to the other the sum of one thousand (P1,000) pesos as liquidated damages, unless previous consent in writing to such sale, transfer, or other disposition be obtained. Notwithstanding this contract the defendant Fox on October 19, 1911, sold his stock in the said corporation to E. C. McCullough of the firm of E. C. McCullough & Co. of Manila, a strong competitor of the said John R. Edgar & Co., Inc. The trial court in dismissing the case, decided favor of the defendant upon the ground that the intention of the parties as it appeared from the contract in question was to the effect that the agreement should be good and continue only until the corporation reached a sound financial basis….chuva chu chu. Issue: Whether or not interpretation is needed in enforcing the contract. Held: Contracts should be enforced as they read. The first duty of courts in enforcing contracts is to give attention to the words thereof. If from the words the meaning is plain, the contract should be enforced according to its words. The intention of parties to a contract must be determined, in the first instance, from the words of the contract itself. It is to be presumed that persons mean what they say when they speak plain English. Interpretation and construction should by the instruments last resorted to by a court in determining what the parties agreed to. Where the language used by the parties is plain, then construction and interpretation are unnecessary and, if used, result in making a contract for the parties. (Lizarraga Hermanos vs. Yap Tico, 24 Phil. Rep., 504.) In the case at bar the parties expressly stipulated that the contract should last one year. No reason is shown for saying that it shall last only nine months. Whatever the object was in specifying the year, it was their agreement that the contract should last a year and it was their judgment and conviction that their purposes would not be subversed in any less time. What reason can give for refusing to follow the plain words of the men who made the contract? We see none.

Capital Insurance v. Sadang, 21 SCRA 1183 (1967)

Doubt resolved against one who prepared the document
Facts: Plaintiff Capital Insurance & Surety Co., Inc., subscribed to a bond in behalf of Mateo Pinto and in favor of the Macondray Farms, Inc., the purpose of which was to guarantee the payment of rentals of the fishpond and other obligations of Mateo Pinto. To protect the interest of plaintiff Capital Insurance & Surety Co., Inc. from any liability that may arise from the above-mentioned bond, Mateo Pinto and the defendants in this case, Esteban M. Sadang and Maria Lachica, executed an idemnity agreement and a deed of real of real estate mortage on the property of the defendants. Mateo Pinto failed to pay the rentals of the leased fishpond to Macondray Farms, Inc. Because of the failure of Mateo Pinto to pay the said amount to Macondray Farms, Inc., plaintiff in the instant case as surety had to pay, as it did pay Macondray Farms, Inc., to settle the obligation of Mateo Pinto with the said Macondray Farms, Inc. Notwithstanding repeated demands, Mateo Pinto and his indemnitors including herein defendants failed to reimburse the Capital Insurance & Surety Co., Inc., the the said amount. Because of such failure to make reimbursement, the Capital Insurance & Surety Co., Inc., filed Civil Case against Mateo Pinto and his indemnitors including the defendants in this instant case for the collection. On the strength of the agreement of the parties in the Civil Case wherein it is agreed among others, that if after the sale of all the said properties, the judment shall not have been fully satisfied, then plaintiff may file as separate civil action against the defendants-spouses, Esteban M. Sadang and Maria Lachica, the other indemnitors, but at the same time dismissed the case against the herein defendants without prejudice. Two executions were issued by the court for the enforcement of the above-mentioned decision in Civil Case No. 30061 and after applying the proceeds of the sale of the properties in public auction there is still a deficiency in the amount of P14,456.44 which, in view of the failure of the herein dependants to pay in spite of plaintiff's repeated demands, had to become the subject of this instant case.

The trial court rendered judgment on April 20, 1961 (pp. 93-101, Record on Appeal) ordering defendants to pay to plaintiff only, the amount of P300.00. Issue: Which among the two interpretations is correct? Held: To point on which the parties disagree is the interpretation of the following stipulation in the mortgage contract executed by defendants-appellees: This mortgage is constituted to indemnify the mortgagee for any damage, cost, expenses and charges of whatever kind and nature that it may incur or sustain as a consequence of having acted as surety on the bond referred to above, and or its substitution, modification, alteration, change and/or renewals. That liability secured by the above properties is limited to the first P20,000.00 that might be incurred under the bond issued in favor of the Macondray Farms, Inc. Appellant lays stress on the general statement of appellees' liability as it appears in the contract, to wit; "to indemnify the mortgagee for any damage, cost, expenses and charges of whatever kind and nature that it may incur or sustain as a consequence of having acted as surety or the bond. Esteban Sadang agreed to be an indemnitor only on condition that he would answer for the "first P20,000.00 of the total P42,000.00 bond," and that "the moment the first P20,000.00 is paid the bonding company automatically releases my responsibility to them." The trial court found the said testimony to be uncontradicted. If the mortgage contract as actually drafted seems to be vague or ambiguous, the doubt must be resolved against appellant, whose lawyer prepared the document, and in accordance with the real intention of the parties as explained by defendants-appellees.

I. Rule 130 §20: Qualifications of Witnesses
Sec. 20. Witnesses; their qualifications. – 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. Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be a ground for disqualification. (18 a) Qualifications of witnesses .1 can perceive .2 perceiving .3 can make known their perception to others NOT ground for disqualification .1 Religious belief .2 political belief .3 interest in the outcome of the case, or .4 conviction of a crime, unless otherwise provided by law, e.g. .a A state witness must not have been convicted of any crime involving moral turpitude [Rule 119, Sec. 17 (e)] .b A person who has been convicted of falsification of a document, perjury or false testimony is disqualified from being a witness to a will (Art. 821 NCC)

1. Mental Incapacity or Immaturity a. Rule 130 §21
Sec. 21. Disqualification by reason of mental incapacity or immaturity. – The following persons cannot be witnesses: (a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; (b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. (19a) For a mentally defective person to be a witness, he must be mentally capable at the time of production, even if he was not so at the time of perception. A child must be mentally mature both at the time of perception and at the time of production. With regards to the subject matter of the testimony, we must make a distinction between absolute disqualifications and relative disqualifications. Objections based on absolute disqualifications may be raised upon the calling of the disqualified witness.

Objections based on relative disqualifications may be raised when it becomes apparent that the subject matter of the testimony covers inadmissible matters.
Absolutely disqualified witnesses

1. can’t perceive 2. not perceiving 3. can’t make known their perception to others 4. whose mental condition, at the time of their production for examination, render them incapable of intelligently making known their perception to others 5. whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and relating them truthfully 6. marital disqualification 7. parental and filial privilege
Relative disqualifications

1. dead man’s statute 2. marital communication privilege 3. attorney-client privilege 4. an attorney's secretary, stenographer, or clerk concerning any fact the knowledge of which has been acquired in such capacity 5. Physician-Patient Privilege 6. Priest-Penitent Privilege 7. State Secrets

b. Cases
People v. de Jesus, 129 SCRA 4 (1984)

Even though feeble minded, there is no showing that she could not convey her ideas by words or signs competent; even if she had difficulty comprehending the questions.
Facts: Clara Mina, an unmarried woman of 28, lived with her parents. Clara Mina, however, is feebleminded. She is unable to comb her hair, bathe herself and wash her clothes. Because of her mental condition, she just stayed in the house, doing no household chores The accused, Rogelio de Jesus, a 19-year old farmer, who lived in the house of his sister some 15 meters away from the victim's house, knew of Clara's mental infirmity, and has often seen her left alone in the house. While home alone, Clara Mina was seated on top of a trunk when Rogelio de Jesus suddenly entered the house, carried her in his arms and laid her on the floor. Objecting to what was being done to her, Clara gave an outcry "Madi! Madi!" ( or SHODI! SHODI! which translated means "I don't like! I don't like!") Rogelio, ignoring her cries, removed her panties as well as his own trousers. He lay on top of her, inserted his penis into her vagina and performed the sexual act. Otherwise stated, BOMBA NA SHO! Pastora Simon, Clara Mina’s mother caught Rogelio doing “The Nasty.” Rogelio sensed the mother and ran away shouting: ADTO NA MI NANG! Returning from the barrio captain's house, Pastora Simon investigated Clara, who revealed to her that she was carried away from the trunk where she was seated, then forcibly laid on the floor to have sexual intercourse with Rogelio. Medical examination conducted the following day revealed the following: (1) hymenal lacerations at 3 o'clock, 8 o'clock and 11 o'clock. (2) vagina admits one finger with ease. Two fingers with difficulty. (3) fresh perineal abrasion. (4) smear, not done due to lack of microscope. (5) contusion — left temporal area. Lesions to heal within one week. LOVERBOY(Rogelio) was later surrendered by his brother-in-law. The trial court found LOVERBOY guilty beyond reasonable doubt for the crime of Rape Issue: Whether or not a feeble-minded person (naay teriring) may be a competent witness. Held: That the complainant was feeble-minded and had displayed difficulty in comprehending the questions propounded on her is an undisputed fact. However, there is no showing that she could not convey her Ideas by words or signs. It appears in the records that complainant gave sufficiently intelligent answers to the questions propounded by the court and the counsels. The court is satisfied that the complainant can perceive and transmit in her own way her own perceptions to others. She is a competent witness.

People v. Salomon, 229 SCRA 402 (1993)

Being mental retardate is not per se a disqualification; although speech was slurred, testimony was positive, clear, plain and unambiguous.
Facts: While Sylvia Soria, a 20-year old mental retardate, was walking along the Maharlika Highway at Casabahan, Gandara, Samar, Alejandro Salomon and Feliciano Conge, who were apparently waiting for

her, accosted her and forcibly took her to the ricefield some ten meters away. There she was raped by Salomon with Conge's assistance. On her way home, she met her brother Senecio, to whom she related her ordeal. The two of them reported her rape to their father. That same night, the family walked the three-kilometer distance to the police station, where Restituto Soria signed a complaint for the rape of his daughter by Salomon and Conge. Sylvia was medically examined at the Gandara General Hospital by Dr. Susan Tanseco, who issued the following certificate: A physical examination has been done on Miss Sylvia Soria, 20 years of age, a resident of Brgy. Casab-ahan, Gandara, Samar. P.E. showed a single, linear, laceration on the labia minora at 6:00 o'clock position. There are isolated erythematous areas on both thighs. There is also the presence of sandy particles on the genital area. Speculum exam, however, showed negative findings. Three days later, Salomon and Feliciano could no longer be found. It was only after a four-month search that they were arrested in Aguado, Plaser, Masbate, from where, after being detained there for one month, they were taken back to Samar. Following a protracted investigation, an information for rape was filed against them with the RTC. The principal witness for the prosecution was Sylvia Soria herself, who recounted in detail the manner of her ravishment by Salomon with the help of his co-accused Conge. She described how she was dragged to the ricefield by the two accused and there undressed against her will. As Conge spread and pinned her legs, Salomon mounted and penetrated her, although with difficulty because she was still a virgin. She felt pain in her vagina and "something slippery." She could not cry out or repel the attack because the two were stronger than she and Conge was holding a bolo. After her rape, Salomon sucked and twisted her nipples and demanded that he suck his penis. Her low mentality was demonstrated in her angry testimony of her refusal: "The devil with him, it is not an icedrop." The trial court found respondents guilty. Issue: Whether or not a mentally retarded person is qualified to testify. Held: A mental retardate is not for this reason alone disqualified from being a witness. As in the case of other witnesses, acceptance of his testimony depends on its nature and credibility or, otherwise put, the quality of his perceptions and the manner he can make them known to the court. Thus, in People v. Gerones, the Court accepted the testimony of a rape victim notwithstanding that she had the mentality of a nine or ten-year old "because she was able to communicate her ordeal... clearly and consistently." In the case of People vs. Rondina, this Court declared: The testimony of the offended party herself was especially telling and credible despite the fact that she was somewhat mentally deficient, as the trial court noticed. Although she was really of limited intelligence, the complainant nevertheless did not forget the harrowing experience she suffered during that frightful night in the bushes when the three men seared her memory with the lust they forced upon her. The tale she narrated in court was not woven out of sheer imagination but born in anguish and remembered with pain and as plain an unembellished as the simple life she led. If she spoke in forthright language at the trial, it was because she was speaking the truth of that horrible ravishment she could not push out of her mind. In the case before us, the trial court noted that although Sylvia's speech was slurred and it was necessary at times to ask her leading questions, "her testimony was positive, clear, plain, coherent and credible." Her mental condition did not vitiate her credibility. We also believe, as we have observed often enough in many cases that a woman will not expose herself to the humiliation of a rape trail, with its attendant publicity and the morbid curiosity it will arouse, unless she has been truly wronged and seeks atonement for her abuse.

People v. Mendoza, G.R. No. 113791, Feb. 2, 1996

Any child, regardless of age, can be a witness as long as he meets the qualifications for competency: observation, recollection, and communication.
Facts: Maria Gina Avila Mendoza, a mother of three young children, was put to fire in her home. 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. 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. During his rebuttal testimony, Paul Michael categorically declared that it was his father who "burned" his mother. The trial court gave full credence to the testimony of eyewitness Paul Michael and ruled against the accused. The appeal was likewise unfavorable to the accused. Issue: The competence of the five-year old witness.

Held: 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. The requirements then of a child's 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, quoting from Wheeler vs. United States, and reiterated in People vs. Raptus and People vs. Libungan: 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. WHEREFORE, the instant appeal is hereby DISMISSED.

2. Marriage a. Rule 130 §22: Marital Disqualification Rule
Sec. 22. Disqualification by reason of marriage. – During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. (20a) Requisites for marital disqualification rule .1 marriage subsists .2 a spouse is a litigant .3 no consent from the spouse-litigant .4 not a civil case by one against the other, or a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. GR: During their marriage, spouses may not testify for or against the other without the consent of the affected spouse Exceptions: .1 in a civil case by one spouse against the other spouse, or .2 in a criminal case for a crime committed by one spouse against .a the other spouse or; .b the other spouse’s direct descendants or ascendants The marital disqualification rule refers to all matters, whether or not communicated by one spouse to the other. It applies only during the existence of the marriage. It can be invoked only if one spouse is a party to the action. It is an absolute disqualification and can be invoked the moment that one spouse is called to testify. This is a testimonial disqualification, as opposed to the testimonial privilege of ascendants and descendants (Rule 130 §25). Hence, the witness has no say whether the objection is to be raised or not. The holder of the privilege is the spouse-litigant. When the spouse-litigant consents to the testimony, the spouse-witness must testify whether he wants to or not. cf Rule 130 §24 (a), Marital Communications
Sec. 24. Disqualification by reason of privileged communication. – The following persons cannot testify as to matters learned in confidence in the following cases: (a) The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants;

Marital Disqualification

Marital Communications

Covers all matters regardless of source Applies during the marriage A spouse must be a litigant Invoked when a spouse is called to testify

Covers only those communicated by one spouse to another Applies during and after the marriage A spouse need not be a litigant Invoked when the testimony appears to cover privileged matters

Note that the exceptions under the marital disqualification and marital communications rule are the same.

b. Cases
Ordoño v. Daquigan, 62 SCRA 270 (1975) L-39012 jan31

The wife can therefore testify against her husband in such a case for rape against her daughter because it is considered a crime against the wife. When an offense directly attacks, or directly impairs the conjugal relation, it comes within the exception to the marital disqualification rule. de Leon: Note that when this case was decided, a crime by a spouse against the other’s descendant was not yet an express exception to the marital disqualification rule. Facts: Avelino Ordoño was charged in the municipal court of San Gabriel, La Union with having raped his daughter, Leonora, on 1970. The verified complaint dated November 7, 1973 was signed by the twenty four year old victim. In support of that complaint, Catalina Balanon Ordoño, the mother of Leonora, executed a sworn statement wherein she disclosed that on that same date, October 11th, Leonora had apprised her of the outrage but no denunciation was filed because Avelino Ordoño threatened to kill Leonora and Catalina (his daughter and wife, respectively) if they reported the crime to the police. Catalina Ordoño in her sworn statement further revealed that her husband had also raped their other daughter, Rosa, on March 25 and April 7, 1973. He was charged in court with that offense. Catalina Ordoño said that the rape committed by Avelino Ordoño against Leonora was mentioned during the investigation and trial of Avelino Ordoño for the rape committed against Rosa Ordoño. The defense counsel objected to the wife’s competency. He invoked the marital disqualification rule. The trial court overruled the objection. After the denial of Avelino Ordoño's motion for the reconsideration of the adverse ruling, he filed the instant action for certiorari and prohibition. Issue: Whether the rape committed by the husband against his daughter is a crime committed by him against his wife within the meaning of the exception found in the marital disqualification rule. Held: Under the marital disqualification rule found in Rule 130 of the Rules of Court providing that the husband or wife cannot be a witness for or against the other, ". . . except in a criminal case for a crime committed by one against the other." the wife is competent to testify against her husband in a case of rape committed by the husband against their daughter, In the law of evidence, the rape of a daughter is a crime committed by the husband against his wife within the meaning of the exception. The phrase "in a tribunal case for a crime committed by one against the other," an exception to the marital disqualification rule, should be interpreted to refer to an offense which directly attacks, or directly and vitally impairs the conjugal relations.

In Wilkinson vs. People, 282 Pac. 257, it was held that the wife was a competent witness against the husband in a prosecution for rape committed by the husband against his stepdaughter, who is the wife's natural daughter because the crime was "an outrage upon nature in its dearest and tenderest relations as well as a crime against humanity itself." The court adopted the interpretation the "a criminal action or proceeding for a crime committed by one against the other" may refer to a crime where the wife is the individual partially and directly injured or affected by the crime for which the husband is being prosecuted." In State vs. Chambers, 87 Iowa 1, 53 N.W. 1090, it was held under the statutory provision the husband or wife shall in no case be a witness for or against the other, except in a criminal proceeding for a crime committed by one against the other, that the wife was competent to testify against the other, that the wife was competent to testify against the husband in a case where he was prosecuted for incest committed against his stepdaughter. In State vs. Shultz, 177 Iowa 321, 158 N.W. 539, it was held that the wife may testify against the husband in a case where he was prosecuted for incest committed against their eleven-year old daughter because incest is a "crime committed against the wife."
People v. Castañeda, 88 SCRA 562 (1979) L-46306 feb27

The wife can testify against the husband in a case for falsification of the wife’s signature (marital consent) in public documents to sell share of wife in conjugal property because it is a crime committed by the husband against the wife. Facts: The above-named a BENJAMIN F. MANALOTO, forged 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, 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. 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. The prosecution opposed said motion to disqualify on the ground that the case falls under the exception to the rule. Notwithstanding such opposition, respondent Judge granted the motion, disqualifying Victoria Manaloto from testifying for or against her husband. A motion for reconsideration petition was filed but was denied by respondent Judge. Issue: Whether or not the criminal case for Falsification of Public Document committed by a husband against his wife, an exception to the rule on marital disqualification. Held: We sustain petitioner's stand that the case is an exception to the marital disqualification rule. A criminal case for Falsification of Public Document filed against the husband— who allegedly forged the signature of his wife 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. 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. 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 other spouse 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. 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 complained of had the effect of directly and vitally impairing the conjugal relation. 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," to 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.
Lezama v Rodriguez, 23 SCRA 1166 (1968) L-25643 jun27

Wife who is a co-defendant of her husband in a case of collusive fraud, where their interests are not separate, can not be examined as a hostile witness by the adverse party. Facts: Jose S. Dineros, acting as receiver of the La Paz Ice Plant & Cold Storage Co., together with C.N. Hodges and Ricardo Gurrea, filed an action for the annulment of a judgment rendered against the La Paz Ice Plant. 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 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. 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. Issue: 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. Held: The reason for the privilege of husband and wife not to testify against each other 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.

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. In a suit charging fraud against the spouses, the wife cannot be compelled to testify as an adverse party witness concerning her participation in the alleged fraud without violating section 20(b) of Rule 130, where as in this case, 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.
People v. Francisco, 78 Phil. 694 (1947) L-568 jul16

When the husband imputes crime against wife, he waives the marital disqualification rule. Facts: 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. Issue: Whether or not the rebuttal testimony of the wife of the appellant violates the rule on disqualification by reason of marriage. Held: "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.)

The rule that the husband and wife cannot testify for or against each other, as all other general rules, 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 a case identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of 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 defendant, who was accused of killing his son, testifying in his own behalf, 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. Held: That in giving such testimony, the husband must, in all fairness, be held to have intended all its 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. As above modified, the appealed judgment is affirmed, with costs against appellant. So ordered.

3. Dead Man’s Statute a. Rule 130 §23
Sec. 23. Disqualification by reason of death or insanity of adverse party. – 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. (20a) Requisites for dead man’s statute .1 the witness sought to be disqualified is the plaintiff .2 Executor, administrator or representative of a deceased person, or the person of unsound mind is the defendant .3 upon claim or demand against the estate of such deceased person or against such person of unsound mind .4 as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. .5 [no counterclaim is filed]

b. Cases
Razon v. IAC, 207 SCRA 234 (1992) GR#74306 16mar 

The dead man’s statute does not apply where the case is filed by the estate. Besides, cross-examination of the witness is a waiver of the privilege. Facts: In his complaint, Vicente B. Chuidian prayed that defendants Enrique B. Razon, E. Razon, Inc., et. Al. 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 vs. properties of defendants having possession of shares of stock and for receivership of the properties of defendant corporation . . . In their answer, 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… 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. Issue: Whether or not the “Dead man’s statute is applicable in the case at bar. Held: In the instant case, the testimony excluded by the appellate court is that of the defendant (petitioner herein) to the effect 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 1,5000 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 respondents' 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.
Reyes v. Wells, 54 Phil 102 (1929) 

If the witness sought to be disqualified is not the plaintiff (e.g. disinterested 3rd party), the dead man’s statute is not applicable.
Guerrero v. St. Clare’s Realty, 124 SCRA 553 (1983) L58164 02sep 

Mere witnesses not parties to the case are not disqualified by the dead man’s statute. Furthermore, the rule requires that the defendant must be the estate. It does not apply where the heirs are being sued in their individual capacities. “Representatives” are only those who, like the executor, one sued in their representative, not personal, capacity. Facts: During their lifetime the spouses Isidoro Guerrero and Panay Ramos were the absolute owners of the disputed property, which is a parcel of land. The spouses had six children, named Andres, Juliana, Aurelio, Leona, Jose and Cristina, and all surnamed Guerrero. Panay Ramos predeceased Isidoro Guerrero. Before his demise, Isidoro Guerrero verbally willed and ordained that the questioned lot be assigned and adjudicated to Andres Guerrero as his share in the inheritance, the other children having been assigned other lots. Accordingly, upon the death of Isidoro Guerrero, Andres Guerrero physically possessed the lot and cultivated it through his tenant Dominador Ramirez. Shortly after the beginning of the Japanese occupation, Andres Guerrero entrusted the land to his sister, Cristina Guerrero, and allowed her to have the property cultivated and to retain the owner's share in the harvests. The arrangement between brother and sister was that Cristina Guerrero could continue in the cultivation of the land and enjoyment of the owner's share in the produce for as long as she needed the property. Dominador Ramirez continued his tenancy until shortly before the death of Andres Guerrero. Sometime in July 1943, Andres Guerrero died survived by his widow, Segunda Laquindanum, and their children, who are the petitioners in this case. Cristina Guerrero continued as trustee of the deceased Andres Guerrero. The land was surveyed by the Bureau of Lands for and in the name of Andres Guerrer. Sometime during the latter part of 1971 certain people who introduced themselves as agents or buyers of the land approached some of the plaintiffs in order to secure their

consent to the sale of the property. Said plaintiffs were informed that the land was titled in the name of their cousin, Manuel Guerrero. Plaintiffs made inquiries and discovered the following: that Manuel Guerrero was able to have the lot titled in his name on the basis of a 'Deed of Sale of Land' purportedly executed by Cristina Guerrero; that in 1963, Manuel Guerrero, assisted by Felicisimo Guerrero, father of the defendants Guerreros, filed an application for registration of land; that notwithstanding the opposition of the heirs of Cristina Guerrero, the court ruled that Manuel Guerrero owned the lot; that despite oppositors' appeal to a higher court, the Register of Deeds issued Original Certificate of Title to the applicant; that on there was filed with the Register of Deeds of Rizal a "Deed of Absolute Sale" purportedly executed by Manuel Guerrero in favor of the defendants Guerreros; that the Register of Deeds gave due course to the registration of that deed; that on the same day that the deed of sale was registered, the defendants Guerreros caused to be notarized an "Articles of Partnership" of St. Clare's Realty Company, Ltd., constituting themselves as partners; that on September 28, 1971, the defendants Guerreros sold the disputed lot in a "Deed of Absolute Sale" to the St. Clare's Realty Company, Ltd.; that by virtue thereof, the Register of Deeds issued TCT in the name of said realty company. On October 19, 1973, Laura Cervantes testified that her mother, Cristina Guerrero, had been sick for a long time before she died at the age of 80 years in 1948; and that her mother could walk only inside their house in Parañaque; that the money spent for the illness of her mother came from Manuel Guerrero; and that, through her children, Cristina Guerrero could ask money from Manuel Guerrero because of the land that Andres Guerrero had lent to her. After Laura Cervantes had thus testified, counsel for the defendants Guerreros objected to the line of questioning on the ground that the said witness was testifying "on matters which are prohibited under Sec. 20(a), Rule 130, of the Rules of Court." The defendants Guerreros filed a written motion to disqualify Laura Cervantes as a witness on the basis of Section 20(a), Rule 130, of the New Rules of Court. The motion was opposed by the plaintiffs. On November 16, 1973, the trial court granted the motion and declared that Laura Cervantes, Jose Cervantes as well as other witnesses similarly situated, are disqualified to testify in the case. The CA affirmed the trial court’s ruling. Issue: Whether or not the witnesses Laura Cervantes and Jose Cervantes were correctly disqualified from testifying in the case and their testimonies excluded. Held: Upon the facts and under the law, this Court is fully persuaded that the affirmative rulings of both the trial court and the Court of Appeals were made in error. The present case is not a claim or demand against the estate of the deceased Manuel Guerrero. The defendants Guerreros are not the executors or administrators or representatives of such deceased. They are being sued as claimants of ownership in their individual capacities of the disputed lot. The lot is not a part of the estate of Manuel Guerrero. Hence, the inapplicability of dead man's rule. " It has been held that statutes providing that a party in interest is incompetent to testify where the adverse party is dead or insane, must be applied strictly in accordance with their express wording, irrespective of their spirit. The law uses the word 'against an executor or administrator or other representative of a deceased person.' It should be noted that after the mention of an executor or administrator the words or other representative follows, which means that the word 'representative' includes only those who, like the executor or administrator, are sued in their representative, not personal, capacity. And that is emphasized by the law by using the words 'against the estate of such deceased persons,' which convey the idea of an estate actually owned by the deceased at the time the case was brought and that, therefore, it is only his rights that are to be asserted and defendant in the litigation by the person representing him, not the personal rights of such representative." (Moran, ibid., pp. 169-171) The plain truth is that Laura Cervantes and Jose Cervantes are not parties in the present case, and neither are they assignors of the parties nor "persons in whose behalf a case is prosecuted." They are mere witnesses by whose

testimonies the plaintiffs aimed to establish that it was not Cristina Guerrero, but Andres Guerrero, who owned the disputed land at the time of its alleged sale to Manuel Guerrero; that Cristina Guerrero did not really sell but merely mortgaged the property to Manuel Guerrero
Abraham v. Recto-Kasten, 4 SCRA 298 (1962) L16741 31jan 

A cross-examination of the disqualified witness is a waiver of the dead man’s privilege, even if there was a continuing objection. Facts: Juan C. Ysmael, obtained a loan from Alfonso Abraham, Sr. and executed a promissory note in favor of the latter promising to pay the loan within 90 days with interest. The note was executed in the presence of Florencia Q. Abraham, the creditor's wife, who affixed her signature at the bottom thereof as a witness thereto. Upon the maturity of the note, a demand was made for its payment, but the debtor failed to pay. On February 9, 1945, Alfonso Abraham, Sr. died. On the other hand, Juan C. Ysmael died intestate on April 23, 1952 leaving the note still unpaid. In Special Proceedings for the settlement of the intestate estate of Juan Ysmael, Florencia Q. Vda. de Abraham, together with her sons, filed a pleading entitled "Reclamation" demanding payment of the amount represented by the note. As soon as Priscilla Recto-Kasten was appointed administratrix, the claimants reproduced their "Reclamation" before the lower court and the same was finally set for hearing. The counsel for the administratrix interposed a general and continuing objection to the testimony of Florencia Vda. de Abraham invoking the provisions of Section 26(c), Rule 123 of the Rules of Court. However, after the claimant had testified, he lengthily crossexamined her on the very matters against which he interposed a general objection. The trial court issued in Order-Decree allowing the claim against the intestate estate of Juan C. Ysmael The appellate court concluded that "the lower court erred in finding that the claimants have established a just and valid claim. Issue: Whether or not the wife of the deceased was disqualified from testifying. Held: There was a waiver of the prohibition contained in Section 26(c), Rules 123 of the Rules of Court, when the counsel for the administratrix extensively cross-examined the witness on the very matters subject of the prohibition. The reason for the rule apparently is that a litigant cannot be permitted to speculate as to what his examination of a witness may bring forth. Having made his selection of one of two courses which he may pursue, he has no right, after he discovers that the course selected is not to his advantage, and after he has put the opposite party to the expense, and has consumed the time of courts in a trial of the case in accordance with the course selected, to change his position and make another and different selection. Such course would be unfair both to the opposite party and to the court and should not be countenanced in any court of justice (IV Francisco, Rules of Court, 876, 877, citing the case of Comstock's Adm'r vs. Jacobs, 89 VT. 133, 94 A. 497, Ann. Cas. 1918A, 465).
Lichauco v. Atlantic Gulf, 84 Phil. 330 (1949) L2016 23aug

This in effect ruled that the Dead Man’s statute can not be invoked against a plaintiffcorporation. Interest no longer disqualifies a witness. Officers/stockholder of corporation may testify in a case filed against the estate of a deceased by the corporation Escolin: In an action where the administrator is the plaintiff, the defendant may testify on facts occurring prior to the death of the decedent. Facts: Richard T. Fitzsimmons was the president and one of the largest stockholders of Atlantic, Gulf and Pacific Company of Manila when the Pacific war broke out. He held 1,000 shares of stocks, of which 545 shares had not been fully paid for, but for which he had executed promissory notes in favor of the company. In 1941 the sum of P64,500 had been credited in his favor on account of the purchase price of the said 545 share of stock out of bonuses and dividends to which he was entitled from the company. Under his agreements with the company dated April 4 and July 12, 1939, should he die without having fully paid for the said 545 shares of stock, the company, at its option, may either

reacquire the said 545 shares of stock by returning to his estate the amount applied thereon, or issue in favor of his estate the corresponding number of the company's shares of stock equivalent to the amount paid thereon at P450 a share. Richard T. Fitzsimmons died on June 27, 1944 and special proceeding was subsequently instituted for the settlement of his estate. In due course the said company filed a claim against the estate of Richard T. Fitzsimmons. In his answer to the amended claim the administrator denied the alleged indebtedness of the deceased to the claimant. It is admitted that all the prewar books and records of the company were completely destroyed or lost during the war so testimonies of witnesses were admitted. The claimant called as witnesses Mr. Henry J. Belden and Mr. Samuel Garmezy, vicepresident-treasurer and president, respectively, of the claimant company, to testify on the status of the personal account of the deceased Fitzsimmons with the company; but upon objection of the administrator the trial court refused to admit their testimony on that point on the ground that said witnesses were incompetent under section 26(c) of Rule 123, they being not only large stockholders and members of the board of directors but also vice-president-treasurer and president, respectively, of the claimant company. Issue: Whether or not the officers of a corporation which is a party to an action against an executor or administrator of a deceased person are disqualified from testifying as to any matter of fact occurring before the death of such deceased person. Held: Officers and directors of corporations are not considered to be parties within the meaning of the law. (City Savings Bank vs. Enos) Inasmuch as section 26(c) of Rule 123 of the Rules of Court disqualifies only parties or assignors of parties, the officers and/or stockholders of a corporation are not disqualified from testifying for or against the corporation which is a party to an action upon a claim or demand against the estate of a deceased person as to any matter of fact occurring before the death of such deceased person.
Tongco v. Vianzon, 50 Phil 698 (1927) 27498 20sep

Action must be brought against the estate, not by the estate, to be covered under the dead man’s statute Escolin: The dead man’s rule does not apply in cadastral cases. Escolin: If there is no instrument evidencing the claim, it would be difficult to prove the claim in the estate proceeding because of the dead man’s statute. However, if there is such an instrument, it is not barred by the dead man’s statute (Neibert v. Neibert) Facts: Marcelino Tongco and Anastacia Vianzon contracted marriage on July 5, 1894. Marcelino died leaving Anastacia as his widow. The niece of the deceased, Josefa Tongco, was named administratrix of the estate. It appears that shortly before the death of Marcelino Tongco, he had presented claims in a cadastral case in which he had asked for titles to certain properties in the name of the conjugal partnership consisting of himself and his wife, and that corresponding decrees for these lots were issued in the name of the conjugal partnership not long after his death. In the cadastral case, the widow began action when she presented a motion for a revision of certain decrees within the one-year period provided by the Land Registration Law. Issue was joined by the administratrix of the estate. A decision was rendered by ordered that in lieu of the issued decrees, new decrees and certificates of title be issued as the exclusive properties of Anastacia Vianzon. Sometime later, a motion for a new trial was presented with accumulated affidavits by counsel for the losing party (administratrix). This motion was denied by the trial judge. The administratrix of the estate began action against Anastacia Vianzon for the recovery of specified property and for damages. The court renders judgment absolving the defendant from the complaint. The motion for a new trial was denied by His Honor, the trial judge.

From both of the judgments hereinbefore mentioned, the administratrix of the estate of Marcelino Tongco had appealed. Issue: Whether or not the testimony of the widow should be discarded. Held: Counsel is eminently correct in emphasizing that the object and purpose of this statute is to guard against the temptation to give false testimony in regard to the transaction is question on the part of the surviving party. He has, however, neglected the equally important rule that the law was designed to aid in arriving at the truth and was not designed to suppress the truth. The law twice makes use of the word "against." The actions were not brought "against" the administratrix of the estate, nor were they brought upon claims "against" the estate. In the first case at bar, the action is one by the administratrix to enforce demand "by" the estate. In the second case at bar, the same analogy holds true for the claim was presented in cadastral proceedings where in one sense there is no plaintiff and there is no defendant. Moreover, a waiver was accomplished when the adverse party undertook to cross-examine the interested person with respect to the prohibited matters. 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." We are of the opinion that the witness was competent.
Goñi v. CA, 144 SCRA 222 (1986) 

Heirs of a deceased are “representatives” within the ambit of the dead man’s statute; waived by defendant if he files counterclaim against plaintiff; adverse party may testify to transactions or communications with deceased which were made with an agent of such person if the agents is still alive and can testify as long as it is confined to the transactions

J. Privileged Communications
Privileged Communications .1 marital .2 attorney-client .3 physician-patient .4 priest-penitent .5 state secrets Sec. 24. Disqualification by reason of privileged communication. – The following persons cannot testify as to matters learned in confidence in the following cases: This is a rule of relative disqualification. Each of those enumerated is disqualified to testify as to specific matters only. It does not disqualify them from testifying on matters not privileged. Hence, it is improper to object to their testimony upon mere subpoena. One must wait until it becomes apparent that their testimony covers matters that are privileged (e.g. upon asking of a question that covers privileged matters; when the purpose of their testimony as admitted by the offeror covers privileged matters) before one may properly object. Though a relative disqualification, it is nevertheless a testimonial disqualification, as opposed to the testimonial privilege of ascendants and descendants (Rule 130 §25). [careful not to be confused in the multiple meanings of the word “privilege”] Hence, the witness has no say whether the objection is to be raised or not. When the holder of the privilege (not necessarily the opposing party) consents to the testimony, the witness must testify.

Note that the wording of the law is to the effect that “(someone) may not be examined without the consent of (another).” The law does not say that one can not testify or be examined over the objection of another. The wording of the law is to the effect that an objection of the other party in the privileged communication is not necessary for the privilege to hold. Consent of the other party in the privileged communication is an act that needs to be proved for the testimony to be admitted. This is not to say that failure of a such a party to object will never render such testimony admissible. This is to say that where the other party to the privileged communication is not a litigant in the case, and privileged communication is offered in evidence without the consent of such party, the litigant against whom the testimony is offered may object to its admission on the ground of privileged communication. Where the other party in the privileged communication is a litigant, then his failure to object will be taken as a consent to the testimony or a waiver of a privilege. The communication that is privileged need not be in any form. It can be oral or written. The communication ceases to be privileged if knowingly communicated in the presence of 3rd persons. In such a case, the privilege may not be invoked at all. However, if the privileged communication was within the surreptitious observation of a 3rd person, then the communication can be invoked if either the communicator or communicatee called to testify. However, the privilege can not be invoked if the 3rd person is called to testify.

1. Marital Communications a. Rule 130 §24 (a)
(a) The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants; Requisites for Marital Communications Rule .1 communication received .a from the spouse .b in confidence .c during the marriage .2 without the consent of the spouse Note that the marital communication rule applies even after the marriage. It applies only to matters communicated by one spouse to another in confidence. It does not cover knowledge of matters that a spouse obtains from a source other than other spouse. It can be invoked even if neither spouse is a party to the action. It is a relative disqualification and can be invoked only when it is apparent that the testimony would cover privileged matters. The exceptions to the rule are: .1 in a civil case by one against the other, or .2 in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants cf Rule 130 §22: Marital Disqualification Rule
Sec. 22. Disqualification by reason of marriage. – During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. (20a)

The marital disqualification rule refers to all matters, whether or communicated by one spouse to the other. It applies only during the existence of the marriage. It can be invoked only if one spouse is a party to the action. It is an absolute disqualification and can be invoked the moment that one spouse is called to testify. Marital Disqualification (Rule 130, Sec. 22) Covers all matters regardless of source Marital Communications (Rule 130, Sec. 24 [a]) Covers only matters communicated by one

spouse to another, during the marriage Applies during the marriage A spouse must be a litigant Invoked when a spouse is called to testify MEMORIZE! Applies during and after the marriage A spouse need not be a litigant Invoked when the testimony appears to cover privileged matters

b. Cases
People v. Carlos, 47 Phil. 626 (1925) L22948 17mar

Where the privilege communication from one spouse to the other comes into the hands of a 3rd party, without collusion or voluntary disclosure on the part of either spouse, not privilege; illegality of seizure must be raised by motion before trial for return of letter; unanswered letter inadmissible Facts: It appears from the evidence that the victim of the alleged murder, Dr. Pablo G. Sityar, performed a surgical operation upon the defendant's wife for appendicitis and certain other ailments. After her release therefrom she was required to go several times to the clinic of Doctor Sityar 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, 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. 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 of 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. 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 seized by the police in searching his effects on the day of his arrest. It is dated 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. Issue: Whether or not the letter was a privileged communication. Held: The letter in question was obtained through a search for which no warrant appears to have been issued. 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 crossexamine 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.

2. Attorney-Client Privilege a. Rule 130 §24 (b)
(b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity; Requisites for attorney-client privilege .1 existence of an attorney-client relationship .2 witness is an attorney .3 as to communication made by the client to him, or his advice given thereon .4 the communication was made in confidence .5 communication was made in the course of, or with a view to professional employment The privilege extends to the attorney's secretary, stenographer, or clerk concerning any fact the knowledge of which has been acquired in such capacity. The difference being consent of only the client is needed for the attorney to testify. However, the consent of both the attorney and the client is necessary for the attorney's secretary, stenographer, or clerk to testify. The attorney-client privilege does not apply if the attorney was sued by his client.

b. Cases
Uy Chico v. Union Life, 29 Phil. 163 (1915) L-9231 06jan

Communication made by client to attorney for purpose of being communicated to others not privileged, e.g. compromise agreement. Facts: The plaintiff seeks to recover the face value of two insurance policies upon a stock of dry goods destroyed by fire. It appears that the father of the plaintiff died in 1897, at which time he was conducting a business under his own name, Uy Layco. The plaintiff and his brother took over the business and continued it under the same name, "Uy Layco." Sometime before the date of the fire, the plaintiff purchased his brother's interest in the business and continued to carry on the business under the father's name. At the time of the fire "Uy Layco" was heavily indebted and subsequent thereto the creditors of the estate of the plaintiff's father. During the course of these proceedings, the plaintiff's attorney surrendered the policies of insurance to the administrator of the estate, who compromised with the insurance company for one-half their face value, or P6,000. This money was paid into court and is now being held by the sheriff. The plaintiff now brings this action, maintaining that the policies and goods insured belonged to him and not to the estate of his deceased father and alleges that he is not bound by the compromise effected by the administrator of his father's estate. The defendant insurance company sought to show that the plaintiff had agreed to compromise settlement of the policies, and for that purpose introduced evidence showing that the plaintiff's attorney had surrendered the policies to the administrator with the understanding that such a compromise was to be effected. The plaintiff was asked, while on the witness stand, if he had any objection to his attorney's testifying concerning the surrender of the policies, to which he replied in the negative. The attorney was then called for that purpose. Whereupon, counsel for the plaintiff formally withdrew the waiver previously given by the plaintiff and objected to

the testimony of the attorney on the ground that it was privileged. Counsel, on this appeal, base their argument of the proposition that a waiver of the client's privilege may be withdrawn at any time before acted upon Issue: Was the testimony in question privileged? Held: It is evident that a communication made by a client to his attorney for the express purpose of its being communicated to a third person is essentially inconsistent with the confidential relation. When the attorney has faithfully carried out his instructions be delivering the communication to the third person for whom it was intended and the latter acts upon it, it cannot, by any reasoning whatever, be classified in a legal sense as a privileged communication between the attorney and his client. It is plain that such a communication, after reaching the party for whom it was intended at least, is a communication between the client and a third person, and that the attorney simply occupies the role of intermediary or agent. AS to whether a waiver of the client's privilege personally made in open court can be withdrawn before acted upon, quaere. (consider whether it is correct).
Regala v. Sandiganbayan, 262 SCRA 124 (1996) 105938 20sep

Prosecution can not use attorneys as leverage to compel them to name their clients; client’s identity is protected when there is a strong probability exists that revealing client’s name would implicate him in the very activity for which he sought advice. Facts: The matters raised herein are an offshoot of the institution of the Complaint before the Sandiganbayan by the RP, through the PCGG against Eduardo M. Cojuangco, Jr., as one of the principal defendants, for the recovery of alleged ill-gotten wealth, which includes shares of stocks in the named corporations. ACCRA Law Firm performed legal services for its clients, which included, among others, the organization and acquisition of business associations and/or organizations, with the correlative and incidental services where its members acted as incorporators, or simply, as stockholders. More specifically, in the performance of these services, the members of the law firm delivered to its client documents which substantiate the client's equity holdings, i.e., stock certificates endorsed in blank representing the shares registered in the client's name, and a blank deed of trust or assignment covering said shares. In the course of their dealings with their clients, the members of the law firm acquire information relative to the assets of clients as well as their personal and business circumstances. As members of the ACCRA Law Firm, petitioners and private respondent Raul Roco admit that they assisted in the organization and acquisition of the companies included in Civil Case No. 0033, and in keeping with the office practice, ACCRA lawyers acted as nominees-stockholders of the said corporations involved in sequestration proceedings. The PCGG alleged that ACCRA law firm was involved in setting up financial and corporate framework and structures through the use of coco levy funds. In their answer, ACCRA said that the acts were made the course of rendering professional and legal services to clients. In its "Comment," respondent PCGG set the following conditions precedent for the exclusion of petitioners, namely: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignments petitioners executed in favor of its client covering their respective shareholdings. On March 18, 1992, respondent Sandiganbayan promulgated the Resolution, herein questioned, denying the exclusion of petitioners in PCGG Case No. 33, for their refusal to comply with the conditions required by respondent PCGG ACCRA lawyers moved for a reconsideration of the above resolution but the same was denied by the respondent Sandiganbayan. Hence, the ACCRA lawyers filed the petition for certiorari. Issue: Whether or not a lawyer may refuse in giving the identity of his client. Held: Petitioners' contentions are impressed with merit.

It is quite apparent that petitioners were impleaded by the PCGG as co-defendants to force them to disclose the identity of their clients. Clearly, respondent PCGG is not after petitioners but the "bigger fish" as they say in street parlance. The general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of this client. Reasons: First, the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. Second, the privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is a client. Third, the privilege generally pertains to the subject matter of the relationship. Finally, due process considerations require that the opposing party should, as a general rule, know his adversary. "A party suing or sued is entitled to know who his opponent is." He cannot be obliged to grope in the dark against unknown forces. Exceptions: Client identity is privileged where a strong probability exists that revealing the client's name would implicate that client in the very activity for which he sought the lawyer's advice. Where disclosure would open the client to civil liability; his identity is privileged. Where the government's lawyers have no case against an attorney's client unless, by revealing the client's name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the client's name is privileged. Summarizing these exceptions, information relating to the identity of a client may fall within the ambit of the privilege when the client's name itself has an independent significance, such that disclosure would then reveal client confidences. What these cases unanimously seek to avoid is the exploitation of the general rule in what may amount to a fishing expedition by the prosecution. The circumstances involving the engagement of lawyers in the case at bench, therefore, clearly reveal that the instant case falls under at least two exceptions to the general rule. First, disclosure of the alleged client's name would lead to establish said client's connection with the very fact in issue of the case, which is privileged information, because the privilege, as stated earlier, protects the subject matter or the substance (without which there would be not attorney-client relationship). There is no question that the preparation of the aforestated documents was part and parcel of petitioners' legal service to their clients. More important, it constituted an integral part of their duties as lawyers. Petitioners, therefore, have a legitimate fear that identifying their clients would implicate them in the very activity for which legal advice had been sought, i.e., the alleged accumulation of ill-gotten wealth in the aforementioned corporations. Furthermore, under the third main exception, revelation of the client's name would obviously provide the necessary link for the prosecution to build its case, where none otherwise exists. It is the link, in the words of Baird, "that would inevitably form the chain of testimony necessary to convict the (client) of a . . . crime." The logical nexus between name and nature of transaction is so intimate in this case that it would be difficult to simply dissociate one from the other. In this sense, the name is as much "communication" as information revealed directly about the transaction in question itself, a communication which is clearly and distinctly privileged. A lawyer cannot reveal such communication without exposing himself to charges of violating a principle which forms the bulwark of the entire attorney-client relationship.

Boss Joel manifestation: it is premature to apply the rules on evidence for there is no case yet, hence, there is no compulsion on the part of the lawyer to disclose the identity of there client.
Barton v. Leyte Asphalt and Mineral Oil Co., 46 Phil. 938 (1924) L-21237 22mar

Letter from client to attorney obtained by adverse party, admitted authentic in court, not privileged regardless whether legally or illegally obtained (what about constitutional rule of exclusion on evidence obtained in violation of the right to privacy of communication and correspondence?); one who overhears the communication with or without client’s knowledge is not privileged. Facts: The plaintiff is a citizen of the United States, resident in the City of Manila, while the defendant is a corporation organized under the law of the Philippine Islands with its principal office in the City of Cebu. Said company appears to be the owner by a valuable deposit of bituminous limestone and other asphalt products, located in Leyte and known as the Lucio mine. William Anderson, as president and general manager of the defendant company, addressed a letter to the plaintiff Barton, authorizing the latter to sell the products of the Lucio mine in the Commonwealth of Australia and New Zealand upon a scale of prices indicated in said letter. Plaintiff alleges that during the life of the agency indicated in Exhibit B, he rendered services to the defendant company in the way of advertising and demonstrating the products of the defendant and expended large sums of money in visiting various parts of the world for the purpose of carrying on said advertising and demonstrations, in shipping to various parts of the world samples of the products of the defendant, and in otherwise carrying on advertising work. Anderson wrote the plaintiff, to the effect that the company was behind with construction and was not then able to handle big contracts. (Exhibit FF.) On March 12, Anderson was in Manila and the two had an interview, in the course of which the plaintiff informed Anderson of the San Francisco order. Anderson thereupon said that, owing to lack of capital, adequate facilities had not been provided by the company for filling large orders and suggested that the plaintiff had better hold up in the matter of taking orders. The plaintiff expressed surprise at this and told Anderson that he had not only the San Francisco order (which he says he exhibited to Anderson) but other orders for large quantities of bituminous limestone to be shipped to Australia and Shanghai. In another interview on the same Anderson definitely informed the plaintiff that the contracts which be claimed to have procured would not be filled. Barton sued for specific performance. In the course of the trial, the defendant offered in evidence a carbon copy of a letter written by the plaintiff to his attorney in which plaintiff states, among other things, that his profit from the San Francisco contract would have been at the rate of eigthy-five cents (gold) per ton. The authenticity of this city document is admitted, and when it was offered in evidence by the attorney for the defendant the counsel for the plaintiff announced that he had no objection to the introduction of this carbon copy in evidence if counsel for the defendant would explain where this copy was secured. Upon this the attorney for the defendant informed the court that he received the letter from the former attorneys of the defendant without explanation of the manner in which the document had come into their possession. Upon this the attorney for the plaintiff made this announcement: "We hereby give notice at this time that unless such an explanation is made, explaining fully how this carbon copy came into the possession of the defendant company, or any one representing it, we propose to object to its admission on the ground that it is a confidential communication between client and lawyer." No further information was then given by the attorney for the defendant as to the manner in which the letter had come to his hands and the trial judge thereupon excluded the document, on the ground that it was a privileged communication between client and attorney. Issue: Whether or not the letter should be considered as privileged communication bet. Atty & client. Held: We are of the opinion that this ruling was erroneous; for even supposing that the letter was within the privilege which protects communications between attorney and

client, this privilege was lost when the letter came to the hands of the adverse party. And it makes no difference how the adversary acquired possession. The law protects the client from the effect of disclosures made by him to his attorney in the confidence of the legal relation, but when such a document, containing admissions of the client, comes to the hand of a third party, and reaches the adversary, it is admissible in evidence. In this connection Mr. Wigmore says: The law provides subjective freedom for the client by assuring him of exemption from its processes of disclosure against himself or the attorney or their agents of communication. This much, but not a whit more, is necessary for the maintenance of the privilege. Since the means of preserving secrecy of communication are entirely in the client's hands, and since the privilege is a derogation from the general testimonial duty and should be strictly construed, it would be improper to extend its prohibition to third persons who obtain knowledge of the communications. One who overhears the communication, whether with or without the client's knowledge, is not within the protection of the privilege. The same rule ought to apply to one who surreptitiously reads or obtains possession of a document in original or copy.
Orient Insurance v. Revilla, 54 Phil. 919 (1930) 34098 17sep

Introduction in evidence of a part of a paper by one party waives privilege as to other parts of the same writing; when a party invokes BER, it is the party who produces the original who is deemed to have introduced it in evidence; contract for attorney’s fees is not privileged; there is no partial waiver of privilege. Facts: The respondent Teal Motor Co., Inc. is plaintiff in a civil action instituted in the CFI of Manila for the purpose of recovering upon two fire insurance policies issued by the Orient Insurance Company, upon merchandise destroyed by a fire. In one of the clauses of the policies sued upon is a stipulation to the effect that all benefit under the policy would be forfeited if, in case of loss, the claim should be rejected by the insurer and action or suit should not be commenced within three months after such rejection. In the answer of the Orient Insurance Company, interposed in the case mentioned, it is alleged, by way of defense, that the company rejected the claim on April 15, 1929, that notice of such rejection was given to the plaintiff by letter on the same day, and that suit was not instituted on the policy until August 3, 1929, which was more than three months after the rejection of the claim. In the Course of the trial the witness E. M. Bachrach, president of the Teal Motor Co., Inc., while being examined in chief by the attorneys for the plaintiff, and speaking of the circumstances surrounding the institution of the action, said that he had reported certain conversations to plaintiff's attorneys, and he added: he waited for about a week longer and not having heard anything about it, in the meantime, on the 13th of July, he (Bachrach) received a letter from their attorneys urging him to file these cases. The attorney for the defendant, Orient Insurance Company, thereupon interposed, asking that the witness be required to produce the letter referred to from Mr. Guevara, or else his answer be stricken out. The witness replied that he had the letter with him and that he had no objection to show that part of the letter in which Guevara urged him to proceed with the cases. Upon being asked about the other part of the letter, the witness said that the other part contained private matter, "between the attorney and ourselves. Thereupon the attorney for the defendant, Orient Insurance Company, said he would like to see the letter, inquiring as to its date. The witness replied that it bore date of July 13, 1929; and upon the court inquiring whether the witness had any objection to the reading of the letter by the attorney for the defendant, the witness replied that he wished to consult with his attorney. Upon this the attorney for the adversary party, the Orient Insurance Company, suggested that he would like to have the letter marked without his reading it and it was accordingly marked as Exhibit 49. The attorney then said: "In view of the production of the letter, I withdraw the objection to the statement of the witness as to its contents," and he added: "I now ask the permission of the court to read the letter for my information." The court thereupon inquired of the attorney for the Teal Motor Co., Inc., whether he had any objection, and the attorney observed that he would have no objection to the disclosing of that part of the letter which referred exactly to the

point of the urging of the filing of the complaints, and he added: "Unfortunately, the other part of the letter being a communication between a client and attorney, I don't think, if your Honor please, it can be disclosed without the consent of both." Issue: Whether or not a communication may be presented only in part, excluding other parts for being privileged communication. Held:  The introduction in evidence of part of a paper writing by one party waives privilege as to other parts of the same writing.  When part of a writing is introduced in evidence by one litigant, his adversary is entitled to use other parts of the same writing, so far as relevant to the issues in the case; and to this end the attorney of the latter has a right to inspect the writing and to require its production in court. A witness for the plaintiff made an oral statement as to the substance of part of a letter which had been received by the plaintiff from its attorney, and when the fact was revealed that the communication had been made by letter, the attorney for the defendant requested that the witness be required to produce the letter in court, and if not, that his answer should be stricken out. This in legal effect was a demand for the production of "the best evidence," it being a well-known rule of law that a witness cannot be permitted to give oral testimony as to the contents of a paper writing which can be produced in court. In response to this request that portion of the letter to which the witness had supposedly referred was read into the record. It was stated in the court by the attorney for the plaintiff, in opposing the introduction of other portions of the letter in proof, that the other parts were privileged, because they related to the terms of employment between attorney and client, or to the fee to be paid to the attorney. With respect to this point it is difficult to see how a contract for fees could be considered privileged. Irrelevant it might, under certain circumstances, certainly be, but not privileged. Of course contracts between attorneys and clients are inherently personal and private matters, but they are a constant subject of litigation, and contracts relating to fees are essentially not of privileged nature. Privilege primarily refers to communications from client to attorney, an idea which of course includes communications from attorney to client relative to privileged matters. But, even supposing that the matter contained in the letter and withheld from the inspection of the adversary was originally of a privileged nature, the privilege was waived by the introduction in evidence of part of the letter. The provision in section 283 of the Code of Civil Procedure making the whole of a declaration, conversation, or writing admissible when part has been given in evidence by one party, makes no exception as to privileged matter; and the jurisprudence on the subject does not recognize any exception.
Hickman v. Taylor, 329 U.S. 495 (1947)

Privilege does not extend to information gathered by an attorney from witnesses; WorkProduct of atty can not be secured without sufficient justification. Facts: On February 7, 1943, the tug 'J. M. Taylor' sank while engaged in helping to tow a car float of the Baltimore & Ohio Railroad across the Delaware River at Philadelphia. The accident was apparently unusual in nature, the cause of it still being unknown. Five of the nine crew members were drowned. Three days later the tug owners and the underwriters employed a law firm, of which respondent Fortenbaugh is a member, to defend them against potential suits by representatives of the deceased crew members and to sue the railroad for damages to the tug. A public hearing was held on March 4, 1943, before the United States Steamboat Inspectors, at which the four survivors were examined. This testimony was recorded and made available to all interested parties. Shortly thereafter, Fortenbaugh privately interviewed the survivors and took statements from them with an eye toward the anticipated litigation; the survivors signed these statements on March 29. Fortenbaugh also interviewed other persons believed to have some information relating to the accident and in some cases he made memoranda of what they told him. At the time when Fortenbaugh secured the statements of the survivors, representatives of

two of the deceased crew members had been in communication with him. The fifth claimant, petitioner herein, brought suit in a federal court under the Jones Act on November 26, 1943, naming as defendants the two tug owners, individually and as partners, and the railroad. One year later, petitioner filed 39 interrogatories directed to the tug owners. The 38th interrogatory read: 'State whether any statements of the members of the crews of the Tugs 'J. M. Taylor' and 'Philadelphia' or of any other vessel were taken in connection with the towing of the car float and the sinking of the Tug 'John M. Taylor'. The tug owners, through Fortenbaugh, answered all of the interrogatories except No. 38 and the supplemental ones just described. While admitting that statements of the survivors had been taken, they declined to summarize or set forth the contents. They did so on the ground that such requests called 'for privileged matter obtained in preparation for litigation' and constituted 'an attempt to obtain indirectly counsel's private files.' It was claimed that answering these requests 'would involve practically turning over not only the complete files, but also the telephone records and, almost, the thoughts of counsel.' The District Court for the Eastern District of Pennsylvania, sitting en banc, held that the requested matters were not privileged. The court then decreed that the tug owners and Fortenbaugh, as counsel and agent for the tug owners forthwith 'Answer Plaintiff's 38th interrogatory and supplemental interrogatories. Upon their refusal, the court adjudged them in contempt and ordered them imprisoned until they complied. The Third Circuit Court of Appeals, also sitting en banc, reversed the judgment of the District Court. Issue: Whether or not any pre-trial device at the disposal of either counsel be used to inquire into materials collected by an adverse party's counsel in the course of preparation for possible litigation. Held: In urging that he has a right to inquire into the materials secured and prepared by Fortenbaugh, petitioner emphasizes that the deposition- discovery portions of the Federal Rules of Civil Procedure are designed to enable the parties to discover the true facts and to compel their disclosure wherever they may be found. It is said that inquiry may be made under these rules, epitomized by Rule 26, as to any relevant matter which is not privileged; and since the discovery provisions are to be applied as broadly and liberally as possible, the privilege limitation must be restricted to its narrowest bounds. On the premise that the attorney-client privilege is the one involved in this case, petitioner argues that it must be strictly confined to confidential communications made by a client to his attorney. And since the materials here in issue were secured by Fortenbaugh from third persons rather than from his clients, the tug owners, the conclusion is reached that these materials are proper subjects for discovery under Rule 26. We also agree that the memoranda, statements and mental impressions in issue in this case fall outside the scope of the attorney-client privilege and hence are not protected from discovery on that basis. It is unnecessary here to delineate the content and scope of that privilege as recognized in the federal courts. For present purposes, it suffices to note that the protective cloak of this privilege does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation. Nor does this privilege concern the memoranda, briefs, communications and other writings prepared by counsel for his own use in prosecuting his client's case; and it is equally unrelated to writings which reflect an attorney's mental impressions, conclusions, opinions or legal theories. We therefore affirm the judgment of the Circuit Court of Appeals.
Upjohn Company v. US, 449 U.S. 383 (1981)

Privilege extends to information given by employees to corporate communications not to facts.

Facts: Certain foreign subsidiaries of the parties, made questionable payments to foreign govts to secure business. The main offices directed their counsel to interview those employees and advise them on acceptable courses of conduct. The corporation thereafter voluntarily submitted a report to the SEC disclosing the questionable payments, which in turn transmitted a copy of that report to the IRS. The IRS was given a list of all those interviewed, but the attys refused to produce their notes and memorandum. Issue: Whether atty-client privilege is available to communications between corporate officers and employees and attys for corporation Held: The communications by petitioner's employees to counsel are covered by the attorney-client privilege If an employee making the communication, of whatever rank, is in a position to control or even to take a substantial part in a decision about any action which the corporation may take upon the advice of the atty, then he is (or personifies), the corporation when he makes his disclosure to the lawyer and the privilege would apply. The privilege exists to protect not only the giving of professional advice, but also the giving of information to the lawyer to enable him to give sound and informed advice, because the lawyer must be fully informed in order for his client to obtain full advantage of the legal system. The ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client, but also encourages laymen to seek early legal assistance (Hickman v. Taylor). The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the atty. The protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning a fact is an entirely different thing. The client cannot be compelled to answer the question >What did you say or write to the atty?= but may not refuse to disclose any relevant fact . . . merely because he incorporated a statement of such fact into his communication to his atty.
In re Grand Jury Investigation, 732 F.2d 447 (1983)

The general rule is the identity of a client is not protected; legal advice exception may be defeated through prima facie showing that the legal representation was secured in furtherance of present or intended continuing illegality, as where the representation itself is part of a larger conspiracy; it is the link between the client and the communication, not the link between client and possibility of potential criminal prosecution which is protected; last link exception is abandoned; disclosure might possibly implicate client in criminal activity not an exception
US v. McPartlin, 595 F.2d 1321 (7th Cir. 1979)

Statement made by co-defendant to an investigator acting for defendant’s counsel protected; communication by client to attorney remain privileged when attorney shares them with co-defendant for a common defense
US v. Gordon-Nikkar, 518 F.2d 972 (5th Cir. 1975)

Protection does not extend to the communication regarding an intended crime; communication divulged to strangers not protected
US v. Nobles, 422 US 225 (1975)

Facts: During respondent’s federal criminal trial, which resulted in a conviction, defense counsel sought to impeach the credibility of key prosecution witnesses by testimony of a defense investigator regarding statements previously obtained from the witnesses by the investigator. When the investigator was called as a witness, the District Court stated that a copy of the investigator’s report would have to be submitted to the prosecution for inspection at the completion of the investigator’s testimony. Defense counsel said he did not intend to produce the report, the court ruled that the investigator could not testify about his interviews with the witnesses. CA, considering such ruling to be a reversible error, held that both the Fifth Amendment and Federal Rule Criminal Procedure 16 prohibited the disclosure condition imposed.

Held: Work-Product Doctrine waived when client presents investigator as witness. Statements made by 3rd persons gathered by investigation not covered by the privilege.
People v. Sandiganbayan, 275 SCRA 505 (1997)

Facts:

3. Physician-Patient Privilege a. Rule 130 §24 (c)
(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient; Waivers of the physician-patient privilege, cf Rule 28, Sec. 3 and 4
Sec. 3. Report of findings. — If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial. (3a) Sec. 4. Waiver of privilege. — By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination. (4)

Requisites for physician-client privilege .1 civil case .2 witness is a person authorized to practice medicine, surgery or obstetrics .3 as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity .4 the information was necessary to enable him to act in that capacity .5 the information would blacken the reputation of the patient Escolin: The old rule used the word “character” (what the person actually is). The new rules use the word “reputation” (what people think of the person). Note that the patient need not be the source of the information. Only persons authorized to practice medicine, surgery or obstetrics are covered by the privilege. Hence, nurses, midwives and other people who attend to the ill can be called to testify as to any matter. The privilege does not cover expert opinion as long as the witness does not testify to matters specifically referring to the patient. There is no physician-patient privilege in criminal cases. de Leon: What about civil cases impliedly instituted with criminal cases?

1) Cases
Lim v. CA, 214 SCRA 273 (1992) 91114 25sep

The physician-patient privilege is not violated by permitting physician to give expert testimony regarding hypothetical facts. Facts: Petitioner Nelly Lim and private respondent Juan Lim are lawfully married to each other. Private respondent filed a petition for annulment of such marriage on the ground

that petitioner has been allegedly suffering from a mental illness called schizophrenia "before, during and after the marriage and until the present." Private respondent presented three (3) witnesses before taking the witness stand himself to testify on his own behalf. Private respondent's counsel announced that he would present as his next witness the Chief of the Female Services of the National Mental Hospital, Dr. Lydia Acampado, a Doctor of Medicine who specializes in Psychiatry. Said counsel forthwith orally applied for the issuance of a subpoena ad testificandum requiring Dr. Acampado to testify. Petitioner's counsel opposed the motion on the ground that the testimony sought to be elicited from the witness is privileged since the latter had examined the petitioner in a professional capacity and had diagnosed her to be suffering from schizophrenia. Over such opposition, the subpoena was issued. Petitioner's counsel filed an urgent omnibus motion to quash the subpoena and suspend the proceedings pending resolution of the motion. Before Dr. Acampado took the witness stand, the court heard this urgent motion. Movant argued that having seen and examined the petitioner in a professional capacity, Dr. Acampado is barred from testifying under the rule on the confidentiality of a physician-patient relationship. Counsel for private respondent contended, however, that Dr. Acampado would be presented as an expert witness and would not testify on any information acquired while attending to the petitioner in a professional capacity. The trial court, per respondent Judge, denied the motion and allowed the witness to testify. Petitioner filed with the public respondent CA a petition for certiorari and prohibition to annul the aforesaid order of respondent Judge on the ground that the same was issued with grave abuse of discretion amounting to lack of jurisdiction, and to prohibit him from proceeding with the reception of Dr. Acampado's testimony. CA denied the petition because the petitioner failed to establish the confidential nature of the testimony. Issue: Whether or not the testimony is covered by the disqualification by reason of privileged. (doctor-patient) Held: We are of the opinion that they do not fall within the realm of a privileged communication because the information were not obtained from the patient while attending her in her professional capacity and neither were the information necessary to enable the physician to prescribe or give treatment to the patient Nelly Lim. And neither does the information obtained from the physician tend to blacken the character of the patient or bring disgrace to her or invite reproach. Dr. Acampado is a Medical Specialist II and in-charge of the Female Service of the National Center for Mental Health a fellow of the Philippine Psychiatrist Association and a Diplomate of the Philippine Board of Psychiatrists. She was summoned to testify as an expert witness and not as an attending physician of petitioner. RATIONAL BEHIND THE RULE. — This rule on the physician-patient privilege is intended to facilitate and make safe full and confidential disclosure by the patient to the physician of all facts, circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient. It rests in public policy and is for the general interest of the community. SUBJECT TO WAIVER. — Since the object of the privilege is to protect the patient, it may be waived if no timely objection is made to the physician's testimony. REQUISITES. — In order that the privilege may be successfully claimed, the following requisites must concur: .1 the privilege is claimed in a civil case; .2 the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; .3 such person acquired the information while he was attending to the patient in his professional capacity; .4 the information was necessary to enable him to act in that capacity; and

.5 the information was confidential, and, if disclosed, would blacken the reputation (formerly character) of the patient. CONDITIONS. — These requisites conform with the four (4) fundamental conditions necessary for the establishment of a privilege against the disclosure of certain communications, to wit: .1 The communications must originate in a confidence that they will not be disclosed; .2 This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; .3 The relation must be one which in the opinion of the community ought to be sedulously fostered; .4 The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. SCOPE. — The physician may be considered to be acting in his professional capacity when he attends to the patient for curative, preventive, or palliative treatment. Thus, only disclosures which would have been made to the physician to enable him "safely and efficaciously to treat his patient" are covered by the privilege. It is to be emphasized that "it is the tenor only of the communication that is privileged. The mere fact of making a communication, as well as the date of a consultation and the number of consultations, are therefore not privileged from disclosure, so long as the subject communicated is not stated."
Krohn v. CA, 233 SCRA 146 (1994) 108854 14june

Non-physician testimony on a medical psychologist’s report is not covered by the physician-patient privilege. This is hearsay (because the other party could not cross examine the doctor who prepared the report) but there was no objection. Facts: Edgar Krohn, Jr., and the couple developed into a purportedly in an effort futile. They finally separated Ma. Paz Fernandez were married. The relationship between stormy one. Ma. Paz underwent psychological testing to ease the marital strain. The effort however proved in fact.

Edgar was able to secure a copy of the confidential psychiatric report on Ma. Paz prepared and signed by Drs. Cornelio Banaag, Jr., and Baltazar Reyes. Presenting the report among others, he obtained a decree ("Conclusion") from the Tribunal Metropolitanum Matrimoniale in Manila nullifying his church marriage with Ma. Paz on the ground of "incapacitas assumendi onera conjugalia due to lack of due discretion existent at the time of the wedding and thereafter." The decree was confirmed and pronounced "Final and Definite." Later, voluntary dissolution of the conjugal partnership was ordered by the CFI of Pasig. On 23 October 1990, Edgar filed a petition for the annulment of his marriage with Ma. Paz before the trial court. In his petition, he cited the Confidential Psychiatric Evaluation Report which Ma. Paz merely denied in her Answer as "either unfounded or irrelevant." At the hearing on 8 May 1991, Edgar took the witness stand and tried to testify on the contents of the Confidential Psychiatric Evaluation Report. This was objected to on the ground that it violated the rule on privileged communication between physician and patient. The trial court issued an Order admitting the Confidential Psychiatric Evaluation Report in evidence. Counsel of Ma. Paz then elevated the issue to respondent Court of Appeals which denied the petition for certiorari. Issue: Whether or not the testimony is covered by the disqualification by reason of privileged. (doctor-patient) Held: Petitioner's discourse while exhaustive is however misplaced. Lim v. Court of Appeals (214 SCRA 273 [1992]) clearly lays down the requisites in order that the privilege may be successfully invoked: (a) the privilege is claimed in a civil cases;

(b)the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; (c) such person acquired the information while he was attending to the patient in his professional capacity; (d)the information was necessary to enable him to act in that capacity; and (e) the information was confidential and, if disclosed, would blacken the reputation (formerly character) of the patient." In the instant case, the person against whom the privilege is claimed is not one duly authorized to practice medicine, surgery obstetrics. He is simply the patient's husband who wishes to testify on a document executed by medical practitioners. Plainly and clearly, this does not fall within the claimed prohibition. Neither can his testimony be considered a circumvention of the prohibition because his testimony cannot have the force and effect of the testimony of the physician who examined the patient and executed the report.

4. Rule 130 §24(d): Priest-Penitent Privilege
(d) A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs; Requisites for Priest-Penitent Privilege .1 witness is a minister or priest .2 as to any confession made to or any advice given by him in his professional character .3 in the course of discipline enjoined by the church to which the minister or priest belongs

5. State Secrets a. Rule 130 §24(e)
(e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. (21a) Requisites for the State Secrets rule .1 witness is a public officer .2 as to communications made to him in official confidence .3 the court finds that the public interest would suffer by the disclosure

b. Cases
US v. Nixon, 418 U.S. 683 (1974)

Absent a claim of need to protect military, diplomatic or sensitive national security secrets, executive privilege can not prevail over due process. Facts: A grand jury returned indictments against seven of President Richard Nixon's closest aides in the Watergate affair. The special prosecutor appointed by Nixon and the defendants sought audio tapes of conversations recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the subpoena claiming "executive privilege," which is the right to withhold information from other government branches to preserve confidential communications within the executive branch or to secure the national interest. Issue: Is the President's right to safeguard certain information, using his "executive privilege" confidentiality power, entirely immune from judicial review? Held: No. The Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege. The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of justice." Therefore, the president must obey the subpoena and produce the tapes and documents. Nixon resigned shortly after the release of the tapes.

Banco Filipino v. Monetary Board, 142 SCRA 523 (1986) 70054 08july

Confidential information is not necessarily privileged; no public interest is prejudiced by disclosure, thus not protected; is there a need for a law to declare it confidential? Facts: Subject of this "Petition to Set Aside Order to Produce Documents" is the Order of RTC, Makati, granting the motion of the petitioner herein, based on Section 1, Rule 27, of the Rules of Court, for the production, inspection, and copying of certain papers and records which are claimed as needed by the Petitioner Bank for the preparation of its comments, objections, and exceptions to the Conservator's report dated and Receiver's Report. The documents now asked to be produced, inspected, and copied are the following: (1) Copies of tapes and transcripts of the Monetary Board (MB) deliberations on the closure of Banco Filipino … (2) Copies of the letter and reports of first conservator, Mr. Basilio Estanislao, to the MB and to Central Bank Governor Jose Fernandez; …..etc, etc, etc. The RTC considered the documents not privileged because these constitute or contain evidence material to the issues into by the Court. These materials are said to comprise of records of the administrative proceedings conducted by respondent's officials and representatives from the inception of and preparation of the challenged reports and the resolution placing petitioner under receivership and thereafter under liquidation as it is the regularity and impartiality of these administrative proceedings which are being assailed by the petitioner, the trial court saw no reason why said documents should be thus concealed from it. The grounds recited in support of their petition are the following: (2) The tapes and transcripts of the Monetary Board deliberations are confidential pursuant to Sections 13 and 15 of the Central Bank Act. Sec. 13. Withdrawal of persons having a personal interest. …. Sec. 15. Responsibility. — Any member … wilfully violates this Act or who is guilty of gross negligence in the performance of his duties shall be held liable for any loss or injury suffered by the Bank as a result of such violation or negligence. Similar responsibility shall apply to the disclosure of any information of a confidential nature about the discussion or resolutions of the Monetary Board, except as required in Section 13 of this Act, or about the operations of the Bank, and to the use of such information for personal gain or to the detriment of the Government, the Bank or third parties. (As amended by Presidential Decree No. 72). (Italics supplied). Issue: Whether or not the said documents are privileged. Held: We accept the view taken by the court below that the documents are not privileged and that these constitute or contain evidence material to the issues being inquired into by the Court. The deliberations may be confidential but not necessarily absolute and privileged. There is no specific provision in the Central Bank Act, even in Sections 13 and 15 thereof, which prohibits absolutely the courts from conducting an inquiry on said deliberations when these are relevant or material to a matter subject of a suit pending before it. The disclosure is here not intended to obtain information for personal gain. There is no indication that such disclosure would cause detriment to the government, to the bank or to third parties. Significantly, it is the bank itself here that is interested in obtaining what it considers as information useful and indispensably needed by it to support its position in the matter being inquired to by the court below. This privilege, as this Court notes, is intended not for the protection of public officers but for the protection of public interest (Vogel vs. Gruaz 110 U.S. 311 cited in Moran, Comments on the Rules of Court, 1980 Ed. Vol. 5, p. 211). Where there is no public interest that would be prejudiced, this invoked rule will not be applicable. In the case at bar, the respondents have not established that public interest would suffer by the disclosure of the papers and documents sought by petitioner. Considering that petitioner bank was already closed as of January 25, 1985, any disclosure of the

aforementioned letters, reports, and transcripts at this time pose no danger or peril to our economy. Neither will it trigger any bank run nor compromise state secrets. Respondent's reason for their resistance to the order of production are tenuous and specious. If the respondents public officials acted rightfully and prudently in the performance of their duties, there should be nothing at all that would provoke fear of disclosure On the contrary, public interests will be best served by the disclosure of the documents. Not only the banks and its employees but also its numerous depositors and creditors are entitled to be informed as to whether or not there was a valid and legal justification for the petitioner's bank closure. It will be well to consider that— Public interest means more than a mere curiosity; it means something in which the public, the community at large, has some pecuniary interest by which their legal rights or liabilities are affected (State vs. Crocket, 206, p. 816 cited in Words and Phrases, Vol. 35, p. 229).

6. Newsman’s Privilege a. RA 53 as amended by RA 1477
Sec. 1. Without prejudice to his liability under the civil and criminal laws, the publisher, editor, columnist or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news-report or information appearing in said publication which was related in confidence to such publisher, editor or reporter unless the court or a House or committee of Congress finds that such revelation is demanded by the security of the State. Requisites of newsman’s privilege .1 publisher, editor, columnist or duly accredited reporter .2 of any newspaper, magazine or periodical of general circulation .3 cannot be compelled to reveal .4 as to the source of any news report or information appearing in said publication .5 related in confidence Exception: Court, a House or committee of Congress finds that such revelation is demanded by the security of the State.

b. Cases
Matter of Farber (A.B.), 394 A. 2d 330 (1978)

Constitution prevails over shield law, but entitled to hearing to prove relevance.

7. Bank Deposits (RA 1405)
Sec. 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation. Note that the privilege applies only to bank deposits. As to other property being held by a bank, bank personnel may be examined upon order of a court (Sec. 55.1 [d], RA 8791, General Banking Act of 2000).

K. Parental and Filial Privilege 1. Rule 130 §25
Sec. 25. Parental and filial privilege. – No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. (20a)

There is no distinction between legitimate or illegitimate relations. Note that this is a testimonial privilege, not a testimonial disqualification, found in §22-24 of Rule 130 [careful not to be confused in the multiple use of the word “privilege”]. Here, the witness is the holder of the privilege and has the power to invoke or waive the privilege. The relative against whom he is testifying can not invoke nor waive the privilege. However this must be construed in the light of Art. 215 of the Family Code
Art. 215. No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other. (315a)

Hence, a descendant may be compelled to testify in a criminal case where .1 the descendant-witness himself is the victim, or .2 the descendant-witness’s parent commits a crime against the descendant-witness’s other parent. Note that an ascendant may not be compelled to testify even if it is a crime by the descendant against the ascendant-witness. The ascendant-witness may testify voluntarily though.

2. Case
People v. Publico, 7 CAR (2s) 703 (1972)

Information given by child to 3rd person is protected

L. Admissions
Admissions that are admissible against a party .1 Admissions against interest .2 Compromises .3 Exceptions to Res Inter Alios Acta .a Partner’s/Agent’s admissions .b Co-conspirator’s statements .c Admission by Privies .4 Admissions by silence

1. Admissions against interest a. Rule 130, §26
Sec. 26. Admissions of a party. – The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (22) The general rule is evidence as to extra-judicial acts, omissions, and declarations (AODs) of a party is admissible. These evidences can either be favorable or unfavorable to a party. Rule 130, §26 expressly allows evidence of AODs prejudicial to the AODer. However, an objection may be raised as to the admissibility of AODs favorable to the AODer on the grounds of that these are self-serving AODs. The argument is “Rule 130 §26 only allows evidence of AODs prejudicial to the AODer.” However, §26 is only a rule of admissibility. It allows evidence of AODs prejudicial to the AODer, but does not prohibit evidence on AODs favorable to AODer. There being no express prohibition, any evidence on AODs favorable to the AODer falls under the general rule that evidence not excluded by law or the Rules is admissible (Rule 128 § 3). Any doubt as to such evidence refers to its weight or probative value and not to its admissibility. Self-serving statements = hearsay? Declaration against interest as an exception to the hearsay rule only applies if the declarant is deceased or unable to testify. Self-defeating statements can not be excluded by the hearsay rule because it is expressly admissible by the rules. Is personal knowledge on the part of the AODer required?

b. Cases
Keller & Co. v. COB L-68097 jan86 

President’s admission binds corporation.

Facts: Edward A. Keller & Co., Ltd. appointed COB Group Mktg, Inc. as exclusive distributor of its household products, Brite and Nuvan in Panay and Negros, as shown in the sales agreement. Under that agreement Keller sold on credit its products to COB Group Marketing. As security for COB Group Mktg's credit purchases up to the amount of P35,000, one Asuncion Manahan mortgaged her land to Keller. Manahan assumed solidarily with COB Group Mktg the faithful performance of all the terms and conditions of the sales agreement. On May 20, COB Group Mktg, through Jose Bax (president & GM) executed two second chattel mortgages over its 12 trucks (already mortgaged to Northern Motors, Inc.) as security for its obligation to Keller amounting to P179,185.16 as of April 30, 1971. However, the second mortgages did not become effective because the first mortgagee, Northern Motors, did not give its consent. But the second mortgages served the purpose of being admissions of the liability COB Group Marketing to Keller. The stockholders of COB Group Marketing, Moises P. Adao and Tomas C. Lorenzo, Jr., in a letter dated July 24, 1971 to Keller's counsel, proposed to pay Keller P5,000 on November 30, 1971 and thereafter every thirtieth day of the month for three years until COB Group Marketing's mortgage obligation had been fully satisfied. They also proposed to substitute the Manahan mortgage with a mortgage on Adao's lot at 72 7th Avenue, Cubao, Quezon City (Exh. L). On the other hand, Bax although not an accountant, presented his own reconciliation statements wherein he showed that COB Group Marketing overpaid Keller P100,596.72 (Exh. 7 and 8). He claimed overpayment although in his answer he did not allege at all that there was an overpayment to Keller. These pieces of documentary evidence are sufficient to prove the liability of COB Group Marketing and to justify the foreclosure of the two mortgages executed by Manahan and Lorenzo. The trial court dismissed the complaint and ordered Keller to pay COB the overpayment. The CA affirmed the trial court’s decision. Issue: Whether or not there was Admission on the part of COB group. Held: We find that the lower courts erred in nullifying the admissions of liability made in 1971 by Bax as president and general manager of COB Group Marketing and in giving credence to the alleged overpayment computed by Bax. The lower courts not only allowed Bax to nullify his admissions as to the liability of COB Group Marketing but they also erroneously rendered judgment in its favor in the amount of its supposed overpayment in the sum of P100,596.72 in spite of the fact that COB Group Marketing was declared in default and did not file any counterclaim for the supposed overpayment. The admissions of Bax are supported by the documentary evidence. It is noteworthy that all the invoices, with delivery receipts, were presented in evidence by Keller, together with a tabulation thereof covering the period from October 15, 1969 to January 22, 1971. Victor A. Mayo, Keller's finance manager, submitted a statement of account showing that COB Group Marketing owed Keller P184,509.60 as of July 31, 1971 (Exh. JJ). That amount is reflected in the customer's ledger, Exhibit M. Bax in that discussion did not present his reconciliation statements to show overpayment. His Exhibits 7 and 8 were an afterthought. He presented them long after the case was filed. The petitioner regards them as "fabricated",
Viacrusis v. CA L-29831 mar72 

Facts: It appears that the land of about 4 hectares involved in this case is part of a bigger lot of about 14.6303 hectares, covered Title in the name of Pedro Sanchez; that, on June 8, 1936, Sanchez executed the deed, Exhibit B, selling said lot of 14.6303 hectares to Anastacio Orais; that said Exhibit B was, on 1936, filed with the RD, and recorded in the memorandum of incumbrances of Homestead OCT No. 243; that, on July 7, 1941, or about 5 yrs later Sanchez executed another deed, Exhibit 10, conveying the

disputed portion, of four (4) hectares to Balentin Ruizo who, in turn, sold it, on 1945, to Guillermo Viacrucis (Exhibit II); that, on January 12, 1959, Anastacio Orais — who claimed to have made oral demands — formally demanded from Viacrucis that he vacate said portion and surrender its possession to him (Orais) that this demand was not heeded by Viacrucis who, instead, executed, on March 19, 1959, the deed, Exhibit 9, confirming the sale of said portion, allegedly made by him, on January 12, 1954, in favor of his brother-in-law Claros Marquez; and that the deeds of sale, Exhibits 10, 11 and 9, in favor of Ruizo, Viacrucis and Marquez, respectively, have not been registered in the Office of the Register of Deeds of Leyte. The trial court rendered a decision, in favor of the plaintiffs therein — respondent herein. On appeal taken by Mr. and Mrs. Viacrucis and Mr. and Mrs. Marquez, said decision, against them and in favor of Mr. and Mrs. Orais, was affirmed by the Court of Appeals. Issue: Whether or not there was admission by silence on the part of Orais. Held: It should be noted, however, that said testimony of Mrs. Castelo and this recognition by the now deceased Pelagio Castelo — which were confirmed by the public document Exh. G — constitute a declaration of Mr. and Mrs. Castelo adverse to their interest, which is admissible in evidence, pursuant to section 32 of said Rule 130. Petitioners have no reason whatsoever to object to the consideration in favor of Orais of said admission, the same having been made in 1936, more than five (5) years before their (petitioners) predecessor in interest, Balentin Ruizo, had entered into the picture, when Orais and Castelo were the only parties who had any interest in the object of said admission. Pursuant to said legal provision, such admission "may be received in evidence," not only against the party who made it "or his successors in interest," but, also, "against third persons." As regards the alleged failure of Orais to say anything when the bank refused to accept OCT No. 243 as collateral for the loan applied for by Orais, upon the ground that the land covered by said certificate of title was not his property, there is no competent evidence on whether or not Orais had said anything in response to said statement. Moreover, OCT No. 243 was in the name of Pedro Sanchez, and no matter how real the sale by the latter to Orais may be, the bank would not accept the land in question as security for said loan, unless and until OCT No. 243 shall have been cancelled and a transfer certificate of title issued to Orais. This, however, could not take place before the filing of his loan application, because the owner's duplicate of said certificate of title — admittedly delivered by Sanchez to Orais — had been lost in the possession of the latter's counsel, to whom he (Orais) had turned it over in connection with a given criminal case.

2. Compromises a. Rule 130, §27
Sec. 27. Offer of compromise not admissible. – In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. In criminal cases, except those involving quasioffenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser offense, is not admissible in evidence against the accused who made the plea or offer. An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. (24a) Note that the offer of compromise in civil cases is not admissible only as evidence of liability. If the offer of compromise is offered as evidence on other matters (e.g. amount of liability), then the evidence is admissible.

In civil cases, an offer of compromise is inadmissible regardless of the cause of action. In criminal cases, the general rule is an offer of compromise is admissible. However, it is inadmissible under the following cases: .1 quasi-offenses (criminal negligence) .2 cases allowed by law to be compromised (e.g. BIR can compromise tax cases) .3 plea of guilty later withdrawn .4 unaccepted offer to plead guilty to a lesser offense .5 offer to pay or payment of expenses occasioned by an injury .6 [the offer is made only to avoid the consequences of litigation] Note that the inadmissible offer to pay refers only to expenses occasioned by an injury. It does not include offers to pay other expenses. Ergo, an offer to pay for damages to property is admissible in criminal cases. Further note that an offer to pay for expenses other than those occasioned by an injury is inadmissible in civil cases. Though the 3rd paragraph of §27 excludes in civil cases offers to pay only for expenses occasioned by an injury, offers to pay for other expenses fall under the general rule that an offer to compromise in civil cases is not admissible. The exclusion in civil cases of offers to pay for expenses occasioned by an injury is merely a superfluity. Even if the exclusion was expressly applied to only criminal cases, an offer to pay for expenses occasioned by an injury is in the nature of an offer to compromise which is undoubtedly admissible in civil cases. The bottomline is: an offer to pay for any expense in civil cases is inadmissible.

b. Cases
Veradero v. Insular Lumber, 46 Phil. 176 (15sep1924) 21911

Evidence on an offer to compromise is admissible even in civil cases if it is to prove amount of a liability and not the liability itself. Facts: El Varadero de Manila completed satisfactorily certain repairs on the lighter Tatlo, the property of the Insular Lumber Company. The work was performed pursuant to no express agreement, but with the implicit understanding that the price would be as low as, or lower than, what could be secured from any other company. The Insular Lumber Company being of the opinion that the bill as presented by El Varadero de Manila was grossly exorbitant they proposed compromise. During the course of the abortive negotiations, however, the defendant expressed a willingness to pay the plaintiff P8,070.12. Having failed of realization, the matter was taken to court with the result that in the CFI of Manila, El Varadero de Manila, the plaintiff, secured judgment against the Insular Lumber Company, the defendant, in the amount of P5,310.70. Still dissatisfied, the plaintiff has appealed to this court and here as asked us to increase the amount of the judgment to P12,412.62. Issue: Whether or not the offer of compromise was admissible. Held: The general rule is that an offer of compromise is inadmissible. Where, however, the amount named in the offer to accept a certain sum in settlement appears to have been arrived at as a fair estimate of value, it is relevant. The rule of exclusion of compromise negotiations does not apply where there is no denial expressed or implied of liability, and the only questions discussed relate to the amount to be paid. Case at bench: Here, there was no denial of liability and the only question discussed was the amount to be paid which the plaintiff insisted should not be more than P8,070.12. Basing our findings, therefore, on the foregoing considerations, we are of the opinion that the reasonable value of the repairs performed by El Varadero de Manila on the Tatlo owned by the Insular Lumber Company, was something less than P8,000. We fix the sum definitely at P7,700.
US v. Torres, 34 Phil. 994 (20aug1915) L-10566

Offer of compromise in criminal cases inadmissible when accused shows that it was made not under a consciousness of guilt, but merely to avoid inconvenience of imprisonment or for some other reason; in this case, the law allowed compromise, thus the offer to compromise is not admitted. Facts: Walker(secret service agents of the Cebu Customhouse) testified that he had received information that on the night of 20Jan1914, Regino Torres would go to the house of the widow of one Franco to get some opium; that at 7:30 that evening they stationed themselves in Calle de Colon, where the said house stood, and a short while afterwards saw the two defendants come out of the door of the garage on the premises; that Samson seized Torres, and as Padilla started to run away Walker went in pursuit of him and on passing by Samson and Torres saw two tins of opium; that three times he ordered Padilla to halt, and, as the latter continued to run, after he had thrown one tin over a fence; that, after the arrest of both defendants, Walker and Samson set out with lights to search for the tins and found the one thrown by Padilla inside the inclosure, and the other two tins, about a meter from the place where Samson had been holding Torres. That the other officer, Samson, gave nearly the same testimony. He added, however, when questioned by the defense as to whether Walker had said anything to him on his return from his pursuit of Padilla, that Walker did say that he saw Regino Torres throw away two tins and that he was looking for them. He was also asked by the defense whether Walker had proposed to the defendants that they pay a fine in the form of a compromise, to which he replied that he had not, but that, on the contrary, it was the defendants who made this offer. Issue: Whether or not the offer of compromise is admissible in evidence. Held: An offer to compromise is not a confession of debt and is not admissible in evidence (Code of Civ. Proc., sec. 346). In a criminal case for theft (U.S. vs. Maqui, 27 Phil. Rep., 97) this court said that the weight both of authority and reason sustains the rule which admits evidence of offers to compromise, in criminal cases, but permits the accused to show that such offers were not made under a consciousness of guilt, but merely to avoid the inconvenience of imprisonment or for some other reason which would justify a claim by the accused that the offer to compromise was not in truth an admission of his guilt and an attempt to avoid the legal consequences which would ordinarily ensue therefrom. It is a legal maxim, which assuredly constitutes one of the bases of the right to penalize, that in the matter of public crimes which directly affect the public interest, in so far as public vengeance and private interests are concerned, no compromise whatever may be entered into as regards the penal action, however it may be with respect to the civil liability.
People v. Godoy, 250 SCRA 676 (06dec1995) 115908-09

Offer to compromise made by a person other than the accused is inadmissible if the accused repudiated the actions of such person by raising the trial court’s admission of evidence of such offer as an error. Facts: Complainant’s version: According to complainant Mia Taha, 17yrs old, at around 7:00 P.M. of January 21, 1994, she went to the boarding house of her cousin, Merlylyn Casantosan, at Pulot Center, Brooke's Point which is near the Palawan National School (PNS), Pulot Branch, where she was studying. When she saw that the house was dark, she decided to pass through the kitchen door at the back because she knew that there was nobody inside. As soon as she opened the door, somebody suddenly grabbed her, poked a knife on her neck, dragged her by the hand and told her not to shout. She was then forced to lie down on the floor. Although it was dark, complainant was able to recognize her assailant, by the light coming from the moon and through his voice, as accused-appellant Danny Godoy who was her Physics teacher at PNS. When she was already on the floor, appellant removed her panty with one hand while holding the knife with the other hand, opened the zipper of his pants, and then inserted his private organ inside her private parts against her will. She felt pain because it was her first experience and she cried. Throughout her ordeal, she could not utter a word.

She was very frightened because a knife was continually pointed at her. She also could not fight back nor plead with appellant not to rape her because he was her teacher and she was afraid of him. She was threatened not to report the incident to anyone or else she and her family would be killed. The following morning, complainant went home to her parents' house. She likewise did not tell her parents about the incident for fear that appellant might make good his threat. At around 3:00 P.M. of that same day, appellant arrived at the house of her parents and asked permission from the latter if complainant could accompany him to solicit funds because she was a candidate for "Miss PNS Pulot." When her parents agreed, she was constrained to go with appellant because she did not want her parents to get into trouble. The jeep proceeded to the Sunset Garden at the poblacion, Brooke's Point where they alighted. At the Sunset Garden, appellant checked in and brought her to a room where they stayed for three days. During the entire duration of their stay at the Sunset Garden, complainant was not allowed to leave the room which was always kept locked. She was continuously guarded and constantly raped by appellant. She was, however, never drunk or unconscious. Nonetheless, she was forced to have sex with appellant because the latter was always carrying a knife with him. In the early morning of January 25, 1994, appellant brought her to the house of his friend where she was raped by him three times. She was likewise detained and locked inside the room and tightly guarded by appellant. After two days, they left the place because appellant came to know that complainant had been reported and indicated as a missing person in the police blotter. They went to see a certain Naem, an imam, from whom appellant sought help. On that same day, she was released but only after her parents agreed to settle the case with appellant. Immediately thereafter, Mia's parents brought her to the District Hospital at Brooke's Point where she was examined by Dr. Rogelio Divinagracia who made the following medical findings: GENERAL: Well developed, nourished, cooperative, walking, conscious, coherent Filipina. BREAST: Slightly globular with brown colored areola and nipple. EXTERNAL EXAM.: Numerous pubic hair, fairly developed labia majora and minora, hymenal opening stellate in shape, presence of laceration superficial, longitudinal at the fossa navicularis, approximately 1/2 cm. length. INTERNAL EXAM.: Hymenal opening, stellate in shape, laceration noted, hymenal opening admits 2 fingers with slight resistance, prominent vaginal rugae, cervix closed. CONCLUSION: Hymenal opening admits easily 2 fingers with slight resistance, presence of laceration, longitudinal at the fossa navicularis approximately 1/2 cm. length. Hymenal opening can admit an average size penis in erection with laceration. Dr. Divinagracia further testified that the hymenal opening was in stellate shape and that there was a laceration, which shows that complainant had participated in sexual intercourse. On the basis of the inflicted laceration which was downward at 6 o'clock position, he could not say that there was force applied because there were no scratches or bruises, but only a week-old laceration. He also examined the patient bodily but found no sign of bruises or injuries. The patient told him that she was raped. Accused’s version: They were sweethearts Later, Fruit Godoy, the wife of appellant, went to their house and offered P50,000.00 for the settlement of the case. On their part, her husband insisted that they just settle, hence all three of them, Adjeril, Helen and Mia Taha, went to the Office of the Provincial Prosecutor where they met with the mother of appellant who gave them P30,000.00. Adjeril and Helen Taha subsequently executed an affidavit of desistance in Criminal Case for kidnapping pending in the prosecutor's office,. Helen Taha testified that she agreed to the settlement because that was what her husband wanted. Mia Taha was dropped

from the school and was not allowed to graduate. Her father died two months later, supposedly because of what happened. Issue: Whether or not the compromise offered by the accused’s wife was an implied admission of guilt. Held: The prosecution insists that the offer of compromise made by appellant is deemed to be an admission of guilt. This inference does not arise in the instant case. In criminal cases, an offer of compromise is generally admissible as evidence against the party making it. It is a legal maxim, which assuredly constitutes one of the bases of the right to penalize, that in the matter of public crimes which directly affect the public interest, no compromise whatever may be entered into as regards the penal action. It has long been held, however, that in such cases the accused is permitted to show that the offer was not made under a consciousness of guilt, but merely to avoid the inconvenience of imprisonment or for some other reason which would justify a claim by the accused that the offer to compromise was not in truth an admission of his guilt or an attempt to avoid the legal consequences which would ordinarily ensue therefrom. A primary consideration here is that the evidence for the defense overwhelmingly proves appellant's innocence of the offense charged. Further, the supposed offer of marriage did not come from appellant but was actually suggested by a certain Naem, who is an imam or Muslim leader and who likewise informed appellant that he could be converted into a Muslim so he could marry complainant. As a matter of fact, when said offer was first made to appellant, he declined because of the fact that he was already married. On top of these, appellant did not know, not until the trial proper, that his mother actually paid P30,000.00 for the settlement of these cases. Complainant's own mother, Helen Taha, testified that present during the negotiations were herself, her husband, Mia, and appellant's mother. Appellant himself was never present in any of said meetings. It has been held that where the accused was not present at the time the offer for monetary consideration was made, such offer of compromise would not save the day for the prosecution. In another case, this Court ruled that no implied admission can be drawn from the efforts to arrive at a settlement outside the court, where the accused did not take part in any of the negotiations and the effort to settle the case was in accordance with the established tribal customs, that is, Muslim practices and traditions, in an effort to prevent further deterioration of the relations between the parties.
People v. de Guzman, 265 SCRA 228 (02dec1996) 117217

The offer to compromise made by a person other than the accused was admitted in evidence because the accused failed to repudiate such acts by raising the trial court’s admission of evidence on such offer as an error. Facts: Homeward bound from where she worked as a sales clerk, complainant Gilda Ambray was waiting for a tricycle ride toward her residence. She waited for about ten minutes. When she noticed the accused, then wearing army pants, sitting at the guardhouse, she approached him and asked him some questions. He answered in a stammering manner. The complainant recognized the accused very well because it was summertime and the gate of the subdivision was well-lit. After Gilda started to walk, the accused mounted his tricycle, followed her and offered her a ride, to which she agreed. While on board the tricycle, Gilda noticed that the accused took a different route. The accused would once in a while stop the tricycle and tell her that it was not in good condition. When they reached Phase II of the same subdivision near an unfinished house, the accused stopped and told Gilda to push the tricycle. She alighted from the tricycle and paid him P5.00, which he did not accept. Gilda then walked away, but after she had taken about ten steps, the accused embraced her from behind, covered her mouth and held her neck tightly. She tried to shout but the accused threatened her. The accused then dragged her to a vacant lot ten meters away from the unfinished house. She attempted to shout again, but he threatened to kill her if she made noise. She fought to free herself from his hold, but the accused pushed and slapped her. He tried to raise her T-shirt while holding her neck tightly. He shouted and commanded her to raise her T-shirt, which she obligingly followed because of fear. He

removed her bra and kissed her breast. She shouted "Saklolo! Tulungan ninyo ako!," but the accused covered her mouth and again held her neck that she could hardly breathe. He held her hand tightly and positioned himself on top of her. He unzipped her pants and pulled it down her knees. She struggled to liberate herself, but to no avail. The accused then tried to insert his penis into her, but failed to do so because she struggled and fought back, then slapped him while covering her vagina with her hand. When she tried to stand, he pushed her down and, in the process, was able to completely pull down her pants and underwear. She pleaded to him to have mercy on her and told him that she had two children. He warned her: "Huwag kang sisigaw, papatayin kita!" The accused again tried to insert his penis into her, but she prevented him from doing so. The accused took her hand and let her hold his penis to make it stiff. As Gilda became too weak to struggle against the accused's sexual advances, the accused was able to finally consummate his dastardly desire. He then pulled out his penis and "fingered" her private organ for a short while. The accused then warned Gilda not to tell anybody, otherwise, he would kill her and all members of her family. He told her that she was his third victim but the two did not complain. He then dressed up. Gilda picked up her pants and underwear and hurriedly ran toward her home, without looking back. When Gilda arrived home, she told her mother and her husband, Aquilino Flores Ambray, that she was raped by the accused. Aquilino got angry and wanted to retaliate but was prevailed upon not to by Gilda's mother. Gilda Ambray was medically examined by a medico legal officer from the NBI and found the following: III. Conclusions: 1. The above physical injuries were noted on the body of the subject at the time of the examination. 2. Medical evidence indicative of recent sexual intercourse with man on or about the alleged date of examination. IV. Remarks: Laboratory Report S-92-94 spermatozoa. shows positive result for the presence of human

"Bebey" and Linda de Guzman, the parents of the accused, asked the help of Resurreccion Talub Quiocho, the accused's kumadre, to beg for Gilda's forgiveness for the accused's sake. The following day, Resurreccion accompanied the accused's parents, wife, children and sister-in-law to Gilda's house. Gilda met them, but to their plea for forgiveness, she told them "that should not be tolerated." Accused’s defense: Alibi, tricycle broke down. Issue: Whether or not the plea for forgiveness by the accused’s family is equivalent to an attempt to compromise and therefore an admission of guilt. Held: Any scintilla of doubt both as to the identification of the accused and as to his guilt was dissolved by the overtures of his parents, wife, children and sister-in-law on pleading for forgiveness from Gilda. The accused did not disown their acts, which were testified to by his kumadre, Resurreccion Talub Quiocho, and Gilda herself. He chose not to deny their testimony. Finally, despite the unequivocal pronouncement by the trial court that his guilt was "strongly established by the acts of his parents, wife and relatives, who had gone to the house of the victim to ask her forgiveness and to seek a compromise," the accused dared not assign that finding and conclusion as an error and his Appellant's Brief is conspicuously silent thereon. Indubitably then, the accused was a party to the decision to seek for forgiveness, or had prior knowledge of the plan to seek for it and consented to pursue it, or confirmed and ratified the act of his parents, wife, children and sister-in-law. A plea for forgiveness may be considered as analogous to an attempt to compromise. In criminal cases, except those involving quasi-offense (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. No one would ask for forgiveness unless he had committed some wrong, for to forgive means to absolve, to pardon, to cease to feel resentment against on account of wrong committed; give up claim to requital from or retribution upon an offender.

People v. Yparriguirre, 268 SCRA 35 (10feb1997) 117702

Whether a complaint has been filed or not is irrelevant as to the admissibility of an offer to compromise. Facts: Rosita Bacaling was a housemaid of appellant and his wife; that on or about 7:00 in the evening of July 6, 1990 at the spouses' room in Panabo, Davao, Rosita was cooking porridge for the spouses' two children, one aged four years old and the other nine months old. Accused-appellant arrived from work and found the two children asleep. He approached Rosita and gave her a small white envelope said to contain medicine for her skin disease. Rosita was afflicted with rashes on her thighs and stomach which she allegedly contracted from one of the children. Rosita opened the envelope and counted fifteen (15) tablets inside. As instructed by appellant, Rosita took all the tablets. A few minutes later, she felt weak and fell down. Suddenly, she realized that appellant was dragging her to the spouses' bed. She tried to get up but appellant pushed her down the bed and pointed a hunting knife at her neck. He ordered Rosita not to move or he would kill her. Then he removed her clothes and went on top of her. He kissed her face, breasts, stomach and private parts and then entered her. Rosita cried out in pain but appellant continued entering her. After satisfying his lust, appellant pulled out and punched Rosita in the stomach. She lost consciousness. Rosita did not say a word about the incident. She continued serving the Yparraguirres for one month before leaving them to return to her mother's house. Her mother found Rosita in a state of shock. She was brought to the Municipal Health Officer by her mother for examination. The Health officer found that: Physical examination externally no abnormal findings; Pelvic examination -- normal vagina with old laceration found at 2:00 [position]; hymen not intact; Internal examination -- admits one finger; Advised for pregnancy test and for consultation by [sic] psychiatrist. Upon the Municipal Health Officer's advice, Rosita was confined at the Davao City Mental Hospital for observation and treatment. After a week of treatment, Rosita began to talk and revealed that she was raped by appellant. The trial court found accused-appellant guilty. Issue: Whether or not the offer of compromise by the appellant’s wife was admissible in evidence (and should be considered as admission of guilt). Held: Mary Ann Yparraguirre, offered the victim's mother, Merlyn Bacaling, fifteen thousand pesos (P15,000.00) to dissuade her from filing the complaint. When Merlyn refused, Mary Ann increased the offer to twenty-five thousand pesos (P25,000.00). Still Merlyn refused to accept it. As pointed out by appellant, no criminal complaint had been filed at the time the compromise offer was made. Nevertheless, the rape incident was already known to appellant's wife. Mary Ann herself testified that Merlyn told her about it on November 3, 1990, the day when Mary Ann first offered the money. An offer to compromise does not require that a criminal complaint be first filed before the offer can be received in evidence against the offeror. What is required is that after committing the crime, the accused or his representative makes an offer to compromise and such offer is proved. NB: In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromised by the accused may be received in evidence as an implied admission of guilt.
People v. Maqui, 27 Phil. 97 (14mar1914) L-8931

Facts: The appellant in this case was convicted in the court below of the theft of the caraballa and her calf, and sentenced to imprisonment. Counsel for the accused contends that the trial court erred in giving probative value in accepting proof as to certain extrajudicial admissions alleged to have been made by the accused, including an offer to compromise the case by the payment of a sum of money.

Issue: Whether or not the offer of compromise can be construed as admission or confession of guilt. Held: The weight of authority and reason sustains the rule which admits evidence of offers to compromise, in criminal cases, but permits the accused to show that such offers were not made under a consciousness of guilt, but merely to avoid the inconvenience of imprisonment or for some other reason which would justify a claim by the accused that the offer to compromise was not in truth an admission of his guilt and an attempt to avoid the legal consequences which would ordinarily ensue therefrom. The record clearly discloses that these extrajudicial statements were made in the course of offers to compromise and that they were made by the accused voluntarily, though doubtless these offers to compromise were made in the hope that it accepted he would escape prosecution. We are satisfied beyond a reasonable doubt as to the guilt of the accused, but we are opinion that in imposing the penalty the trial court should have taken into consideration as a mitigating circumstance the manifest lack of "instruction and education" of the offender. • Satisfaction to the owner of the goods stolen is admissible, as evidence against the accused, but if made merely to avoid the inconvenience of imprisonment, and not under a consciousness of guilt, it is not evidence. (US vs. Hunter, 1 Cranch, C. C., 317.) • In a prosecution for seduction, evidence that the accused had sought an adjustment with the prosecutrix is inadmissible, if such offer of adjustment did not contain an admission of guilt. (Wilson vs. State, 73 Ala., 527.) • On a prosecution for assault with intent to commit rape upon a married woman, evidence is admissible on behalf of the prosecution to show that the defendant sent a third person to the father of the prosecutrix to ascertain if the case could be compromised. (Barr vs. People, 113 Ill., 471.) • In a larceny case, evidence is not admissible to show that defendant stated that he would pay $50 if it could be settled, in reply to threats by the owner of the goods stolen that he would be prosecuted for damages, and a solicitation to settle. (Frain vs. State, 40 Ga., 530.) • In a prosecution for larceny, evidence is not admissible that defendant paid a sum of money in settlement of a civil action brought to recover the property alleged to have been stolen. (State vs. Emerson, 48 Iowa, 172.) • An offer of compromise, voluntarily made by the accused, without threat or promise, and the reply thereto, are admissible in evidence upon his trial for a crime. (State vs. Bruce, 33 La. Ann., 186.) • An offer of compromise of a crime, unaccepted by the prosecutor, may be proven by the state as an admission of guilt, or as disclosing possession of the property which is the subject of the burglary and larceny charged in the indictment. (State vs. Rodriguez, 45 La. Ann., 1040; 13 Southern, 802.)

3. Res Inter Alios Acta a. Rule 130, §28
Sec. 28. Admission by third party. – The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. (25a) The general rule is extra-judicial acts of a person other than a party are inadmissible against such party. However, the rules also provide for exceptions: .1 Partner’s admissions; .2 agent’s admissions; .3 admissions by a joint owner, joint debtor, or other person jointly interested with the party; .4 Co-conspirator’s statements; .5 Admission by privies.

Is personal knowledge required for these exceptions to apply?

b. Cases
People v. Tena, 215 SCRA 43 (1992)

Facts: Accused was convicted of robbery with homicide on the basis of an extra-judicial confession of another admitting his participation in the offense. Held: This is not a co-conspirator’s statement because there was no evidence of conspiracy independent of the extra-judicial confession. Furthermore, the confession was executed long after the supposed conspiracy had ended. Escolin: Had the co-conspirator taken the witness stand and pointed to his co-accused, the testimony would have been admissible. In this case, what was presented was a merely his affidavit.
People v. Alegre, 94 SCRA 109 (1979) 

Absent independent evidence of conspiracy, extra-judicial confession of the accused is not admissible against others. FACTS: This case arose from the death of Adelina Sajo, Spinster, 57 years old, whose body was found strangled in her bathroom inside her house at the Maravilla cmpd., Ignacio St., Pasay City, in the early morning of July 26, 1966. Her bedroom was in "shambles," and the drawers & several cabinets were open, & some personal garments, handbags & papers were scattered on the floor. No witness saw the commission of the crime. Appellant Ramiro Alegre, who was then living with relatives in one of the rented rooms on the ground floor of the victim's house, was taken to the Pasay City police HQ for investigation in connection with the case, but was later released that same day for lack of any evidence implicating him in the crime. During the latter part of July, 1966, Melecio Cudillan was apprehended in Tacloban City, Leyte, in the act of pawning a bracelet, one of the pieces of jewelry taken from the victim. In explaining how he came into possession of the stolen pieces of jewelry, he admitted his participation in the killing and robbery of Sajo. This appears in his extrajudicial confession before the police authorities of Tacloban City on July 29, 1966. In this statement, which was written in the English language, Melecio Cudillan implicated a certain "Esok," Jesus Medalla, Mario Cudillan, one "Danny" Fernandez, and one "Rammy." When brought to Metro Manila and while he was inside the Pasay City police headquarters, Melecio Cudillan again executed an extrajudicial confession on July 31, 1966. This was sworn to before the Assistant City Fiscal of Pasay City on August 1, 1966. In this second statement, he narrated in detail the participation in the commission of the crime of Jesus Medalla, "Celso" Fernandez, "Rami" and "Mario." According to said statement, the declarant went near the cell within the Office of the Investigation Section, Secret Service Division, & identified them. Based on this, they were charged for Robbery with Homicide. They entered a plea of not guilty and the prosecution presented nine (9) witnesses. None of them, however, testified on the actual commission of the crime. The recital of facts contained in the decision under review was based principally and mainly on the EJ confessions of Cudillan. Thus, the details of the crime were taken from the "Pasay Sworn Statement." The only evidence, therefore, presented by the prosecution to prove the guilt of appellants are the testimonies of Sgt. Mariano Isla and Hernando Carillo. However, during the trial, Melecio Cudillan repudiated both the Tacloban City and Pasay City sworn statements as the product of compulsion and duress. He claimed that he was not assisted by counsel when he was investigated by the police. The lower court nevertheless convicted them. Thus, this automatic review. ISSUE: Whether or not the lower court erred in utilizing the EJ of Cudillan (now deceased) against appellants; in concluding from the alleged "silence" of appellants

when allegedly pointed to by Cudillan as "his companions" in the commission of the crime, an admission of guilt? HELD: Judgment appealed reversed, and Alegre, Comayas and Medalla are hereby ACQUITTED. The extrajudicial confessions of Melecio Cudillan on the basis of which the trial court was able to reconstruct how Melecio Cudillan committed the crime in question, cannot be used as evidence and are not competent proof against appellants Ramiro Alegre and Jesus Medalla, under the principle of "res inter alios acta alteri nocere non debet," there being no independent evidence of conspiracy. As a general rule, the extrajudicial declaration of an accused, although deliberately made, is not admissible and does not have probative value against his co-accused. It is merely hearsay evidence as far as the other accused are concerned. While there are recognized exceptions to this rule, the facts and circumstances attendant in the case at bar do not bring it within the purview of such exceptions. The only evidence, therefore, linking the appellants to the crime would be their purported tacit admissions and/or failure to deny their implications of the crime made by Melecio Cudillan, and/or their purported verbal confessions to Hernando Carillo, an inmate of the Pasay City jail. The settled rule is that the silence of an accused in criminal cases, meaning his failure or refusal to testify, may not be taken as evidence against him, and that he may refuse to answer an incriminating question. It has also been held that while an accused is under custody, his silence may not be taken as evidence against him as he has a right to remain silent; his silence when in custody may not be used as evidence against him, otherwise, his right of silence would be illusory.
People v. Raquel, 265 SCRA 248 (1996)

Extra-judicial confession of accused can not be used to implicate co-accused unless repeated in open court. FACTS: At midnight of July 4, 1986, Agapito Gambalan, Jr. attended to the person knocking at the backdoor of their kitchen and was surprised to find heavily armed men declaring a hold-up and fired their guns at him. Juliet went out of their room after hearing gunshots and saw her husband dead while a man took her husband's gun and left hurriedly. She shouted for help at their window and saw a man fall beside their water pump while two (2) other men ran away. George Jovillano responded to Juliet's plea for help. He reported the incident to the police. The police came and found one of the perpetrators of the crime wounded and lying at about 8 meters from the victim's house. He was identified as Amado Ponce. He was first treated at a clinic before he was brought to the police station. Amado Ponce revealed to P/Sgt. Andal S. Pangato that appellants Sabas and Valeriano Raquel were the perpetrators of the crime and that they may be found in their residence. However, the police failed to find them there since appellants fled immediately after the shooting incident. Appellants were later on apprehended on different occasions. Upon the other hand, appellants relied on alibi as their defense. Valeriano Raquel testified that on July 2, 1986, he left Paatan, Kabacan, Cotabato and went to Tunggol Pagalungan, Maguindanao. He stayed in the house of his sister-in-law, the wife of his deceased brother. Together with Boy Madriaga and Corazon Corpuz, he harvested palay on July 3 and 4. Antonio Raquel, 64 years old, testified that on July 2, 1986 he was at home when his son Valeriano Raquel told him that he was going to Tunggol, Pagalungan, Maguindanao to harvest palay. On (the) same date, his other son, Sabas Raquel, also asked his permission to leave since the latter, a soldier, was going to his place of assignment at Pagadian. On July 5, 1986, several policemen came over to his house, looking for his two (2) sons. He gave them pictures of his sons and even accompanied them to Tunggol where they arrested his son Valeriano.

T/Sgt. Natalio Zafra, of the 102 Brigade, Aurora, Zamboanga, testified that on July 4, 1986, he was assigned in the 2nd Infantry Battalion, First Infantry Division, Maria Cristina, Iligan City. Sabas Raquel was under his division then, and was on duty on July 4, 1986. On August 10, 1993, the trial court, as stated at the outset, rendered judgment finding all of the accused guilty beyond reasonable doubt of the crime charged and sentenced them accordingly. Not satisfied therewith, herein appellants filed a notice of appeal wherein they manifested that they were appealing the decision to the CA which forwarded it to the SC in view of the penalty. ISSUE: Whether or not the trial court erred in convicting accused Sabas and Valeriano Raquel of the crime charged, despite absence of evidence positively implicating them as the perpetrators of the crime? HELD: Acquitted Sabas. TC reversed. The lone eyewitness, Juliet Gambalan, was not able to identify the assailants of her husband. The identity of the Raquels as the culprits was based chiefly on the extrajudicial statement of accused Amado Ponce pointing to them as his co-perpetrators of the crime. As earlier stated, the said accused escaped from jail before he could testify in court and he has been at large since then. The extrajudicial statements of an accused implicating a co-accused may not be utilized against the latter, unless these are repeated in open court. If the accused never had the opportunity to crossexamine his co-accused on the latter's extrajudicial statements, it is elementary that the same are hearsay as against said accused. A distinction should be made between extrajudicial & judicial confessions. The former deprives the other accused of the opportunity to cross-examine the confessant, while in the latter his confession is thrown wide open for cross-examination and rebuttal. The res inter alios rule ordains that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. An extrajudicial confession is binding only upon the confessant and is not admissible against his co-accused. The reason for the rule is that, on a principle of good faith and mutual convenience, a man's own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him. Although the above-stated rule admits of certain jurisprudential exceptions, those exceptions do not however apply to the present case. Firstly, except for that extrajudicial statement of accused Amado Ponce, there exists no evidence whatsoever linking appellants to the crime. In fact, the testimony of police Sgt. Andal S. Pangato that appellant Sabas Raquel was wounded and went to the clinic of Dr. Anulao for treatment using the name Dante Clemente, was negated by Dr. Anulao. Secondly, this extrajudicial statement, ironically relied upon as prosecution evidence, was made in violation of the constitutional rights of accused Amado Ponce. This was unwittingly admitted in the testimony of the same Sgt. Andal S. Pangato. Extrajudicial statements made during custodial investigation w/o the assistance of counsel are inadmissible & can’t be considered in the adjudication of the case. While the right to counsel may be waived, such waiver must be made with the assistance of counsel. A conviction in a criminal case must rest on nothing less than a moral certainty of guilt. Without the positive identification of appellants, the evidence of the prosecution is not sufficient to overcome the presumption of innocence guaranteed by the Bill of Rights to them. It would not even have been necessary to stress that every reasonable doubt in criminal cases must be resolved in favor of the accused. The requirement of proof beyond reasonable doubt calls for moral certainty of guilt. In the instant case, the test of moral certainty was neither met nor were the standards therefor fulfilled.

c. Exceptions

Note that all the exceptions to res inter alios acta require that the relationship be proven by evidence independent of the act or declaration sought to be admitted.

1) Partner’s/Agent’s admissions a) Rule 130, §29
Sec. 29. Admission by co-partner or agent. – The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (26a) Requisites for admission by co-partner or agent .1 act or declaration of a partner, agent, or person jointly interested with the party .2 within the scope of authority .3 made during the existence of the partnership, agency or joint interest .4 the partnership, agency, or joint interest is shown by evidence other than such act or declaration

b) Cases
Ormachea v. Trillana, 13 Phil 194 (1909)

Discharge of a debt given by a managing partner, 2 years after the partnership had been dissolved does not qualify as a partner’s admission and can not prejudice or bind the other partners.
Kiel v. Estate of Sabert, 46 Phil 193 (1924)

Facts: After a partner died, the remaining partner sought to recover his share in the partnership. Held: The declarations of one partner, not made in the presence of his co-partner, are not competent to prove the existence of a partnership, between them as against such other partner. The existence of a partnership cannot be established by general reputation, rumor, or hearsay.
Mahlandt v. Wild Canid Survival, 588 F.2d 626 (8th Cir. 198)

The jurisdiction in which this case is decided has a law which explicitly declared that an act of a party or his agent is not hearsay; agent need not have personal knowledge of his statement as long as it is within the scope of his authority, may be used against him and his principal

2) Co-conspirator’s statements a) Rule 130, §30
Sec. 30. Admission by conspirator. – The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act of declaration. (27) Requisites for co-conspirator’s statements .1 act or declaration of a conspirator .2 relating to the conspiracy .3 made during its existence .4 the conspiracy is shown by evidence other than such act of declaration.

b) Cases
People v. Cabrera, 57 SCRA 715 (28june1974) L-37398

Facts: Accused was convicted based on the extra-judicial confession of his co-accused. Held: The statement was made after, not during, the conspiracy, hence it was inadmissible.

Facts: At about 11:00 in the evening of January 17, 1972 Sgt. Tanfelix of Valenzuela, Bulacan, while on a patrol duty received an instruction to proceed immediately to Jose Reyes Memorial Hospital at Manila to investigate an abandoned person who was found at the North Diversion Road suffering from stab wounds. This abandoned and wounded person was identified as Luis de la Cruz. In the antemortem statement the deceased named defendant Rosario Cabrera as the person who hired his jeep but did not know the names of the three men who stabbed him and took his money and jeep. The next morning (01/18), defendant Cabrera was arrested by the police. Two days later, she executed an extra-judicial confession. In the said extra-judicial confession she pointed to appellant Villanueva as the mastermind of the robbery. She merely hired the jeep upon instruction of appellant but the robbery and the killing of the deceased were done by appellant and his two unidentified companions. Lt. Palomares of the Valenzuela PD who took the extra-judicial confession of defendant Cabrera testified to identify and to read the contents of the said extra-judicial confession over the continuing objection of appellant's counsel. Appellant reiterated his objection when the said extra-judicial confession was being offered in evidence. The only evidence that would support the judgment of conviction of appellant Villanueva was the extra-judicial confession of his co-accused Rosario Cabrera which was read into the record over the continuing objection of appellant's counsel. Appellant reiterated his objection when the said extra-judicial confession was being offered in evidence. Counsel for the People, joining appellant's counsel, ask for the reversal of appellant's conviction and his acquittal. Issue: Whether or not the admission by the co-conspirator was admissible in evidence. Held: Said admission is inadmissible against appellant who made timely objection thereto. (Said statement could be used against Cabrera if there is corpus delicti. There is no question that Cabrera's inculpatory statements were made by her during the investigation conducted by the Valenzuela police on January 20, 1972, two days after the date of the incident in question. For this reason alone, that is, that said statement was not made during the existence of the alleged conspiracy between her and appellant, but after said supposed conspiracy had already ceased and when she was already in the hands of the authorities.
People v. Yatco, 97 Phil. 941 (28nov1955) L-9181

Confession regarding conspiracy may be used against confessor (multiple admissibility); confession regarding conspiracy should be conditionally admitted until conspiracy is proved; statements must be made during the conpiracy and in furtherance of its object to be admissible. Facts: In an amended information filed by the City Attorney of Quezon City on March 22, 1955, Juan Consunji, Alfonso Panganiban, and another whose identity is still unknown, were charged with having conspired together in the murder of one Jose Ramos. During the progress of the trial on May 18, 1955, while the prosecution was questioning one of its witnesses, Atty. Arturo Xavier of the National Bureau of Investigation, in connection with the making of a certain extra-judicial confession (allegedly made before him) by defendant Juan Consunji to the witness, counsel for the other defendant Alfonso Panganiban interposed a general objection to any evidence on such confession on the ground that it was hearsay and therefore incompetent as against the other accused Panganiban. The Court below ordered the exclusion of the evidence objected to, but on an altogether different ground: that the prosecution could not be permitted to introduce the confessions of defendants Juan Consunji and Alfonso Panganiban to prove conspiracy between them, without prior proof of such conspiracy by a number of definite acts, conditions, and circumstances. The prosecution then moved in writing for reconsideration of the order of exclusion, but again the motion was denied. Wherefore, this petition for certiorari.

Issues: Whether or not the admission of a co-conspirator is admissible against his coconspirator. Whether or not the admission should be completely excluded. Held: Under the rule of multiple admissibility of evidence, even if Consunji's confession may not be competent as against his co-accused Panganiban, being hearsay as to the latter, or to prove conspiracy between them without the conspiracy being established by other evidence, the confession of Consunji was, nevertheless, admissible as evidence of the declarant's own guilt, and should have been admitted as such. Sec. 30 of Rule 130 refers to statements made by one conspirator during the pendency of the unlawful enterprises ("during its existence") and in furtherance of its object, and not to a confession made, as in this case, long after the conspiracy had been brought to an end. It is particularly noteworthy that the exclusion of the proferred confessions was not made on the basis of the objection interposed by Panganiban's counsel, but upon an altogether different ground, which the Court issued motu proprio. Panganiban's counsel objected to Consunji's confession as evidence of the guilt of the other accused Panganiban, on the ground that it was hearsay as to the latter. But the Court, instead of ruling on this objection, put up its own objection to the confessions — that it could not be admitted to prove conspiracy between Consunji and Panganiban without prior evidence of such conspiracy by a number of indefinite acts, conditions, circumstances, etc. and completely excluded the confessions on that ground. By so doing, the Court overlooked that the right to object is a mere privilege which the parties may waive; and if the ground for objection is known and not reasonably made, the objection is deemed waived and the Court has no power, on its own motion, to disregard the evidence.
People v. Chaw Yaw Shun, 23 SCRA 127 (1968)

Conspiracy must be proved by independent evidence other than the confession; reiterated “in furtherance”. Facts: Alvarez was charged with the murder of Hector Crisostomo. During the investigation he made a tape-recorded statement admitting his participation in the crime. Subsequently, he made a handwritten statement also admitting his participation but implicated Chaw Yaw Shun as the one who ordered him to kill Crisostomo. Shun surrendered after which he was investigated. Believing that Shun was not telling the truth, because he would not admit participation in the crime, the investigator destroyed the statement. In view of such denial, Shun was investigated again and made a written confession that he ordered the killing of Crisostomo. While Shun was detained, he gave a statement that the written confession was obtained thru force, threat and intimidation. The TC, finding conspiracy, convicted Alvarez and Shun for murder. Issue: WON the statements made by Alvarez and Shun are admissible to establish conspiracy? Held: The SC held that the confession made by Shun is inadmissible as evidence because it was induced, extorted by means of torture, abuse or by personal violence. Moreover, conspiracy must be proved by independent evidence other than the confession. The admissibility of a confession by one accused against the other must relate to statements made by one conspirator during the pendency of the unlawful enterprise. In this case, the conflicting confession of Alvarez are not binding on Shun for being hearsay, aside from having been repudiated by Alvarez himself during the trial. There is, therefore no locking confession so to say, for there being no independent evidence establishing an overt act of Shun connected to the crime.
People v. Serrano, 105 Phil. 531 (27apr1959) L-7973

Requirement that conspiracy must be shown 1st other than confession applies only to extra-judicial confessions not to testimony in open court. Facts: In the evening of 16 October 1950, between 8:00 and 9:00 o'clock, Eulogio Serrano told Piping Serrano, Domingo Cadiang, Santiago Yumul, Filemon Cenzon and Anastacio Reyes then gathered at the sala of the house of the first, that Pablo Navarro had been including and prompting people to call on Senator Pablo Angeles David and

testify on the Maliwalu massacre, and for that reason he manifested to them his desire and plan to do away with Navarro. Eulogio Serrano instructed them to wait for Navarro in the town of Bacolor, lure him to go with them to barrio Dolores and there kill him. They tried to execute the plan for three days but failed. Finally, on the forth day they succeeded in executing the said plan when Navarro, together with Manguera, agreed to join them in a drinking session. Navarro and Manguera were killed that same day. Appellants defense: Alibi & under fear of greater evil. Cadiang – at the farm working with palay; Cenzon – at the market, hauled lumber, gas up; Yumul – worked as laborer removing railroad tracks. The defendants were found guilty based on a testimony made by Anastacio Reyes. The appellants contend further that in order that the testimony of a conspirator may be admissible in evidence against his co-conspirator, it must appear and be shown by evidence other than the admission itself that the conspiracy actually existed and that the person who is to be bound by the admission was a privy to the conspiracy. Issue: Whether or not the admission of Reyes can be used against the appellants. Held: The rule that "The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration," applies only to extra-judicial acts or declaration, but not to testimony given on the stand at the trial, where the defendant has the opportunity to cross-examine the declarant. And while the testimony of accomplices or confederates in crime is always subject to grave suspicion, "coming as it does from a polluted source," and should be received with great caution and doubtingly examined, it is nevertheless admissible and competent. The trial court did not err in convicting the appellants. For lack of sufficient number of votes to impose the death penalty, the judgment appealed from is affirmed, with the proportionate costs against the appellants.

3) Admission by Privies a) Rule 130, §31
Sec. 31. Admission by privies. – Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. (211) Requisites for admission by privies .1 a party derives title to property from another .2 act, declaration, or omission of the transferor .3 made while holding the title .4 in relation to the property Tequillo: Does this not violate the Property Registration Decree, that says 3rd parties are not bound unless the encumbrance is registered?

b) Cases
Alpuerto v. Pastor, 38 Phil. 785 (1918)

“Privies” denotes any act whereby the successor is substituted in the place of the predecessor in interest; purchaser at execution sale is a privy of the execution debtor; “3rd parties” are persons who have not intervened in the execution of the instrument either as principals or witnesses. Facts: The three parcels of land involved in this case formerly belonged to Juan Llenos. Plaintiff Eladio Alpuerto petitioned the lower court to make a declaration against the defendant Jose Perez Pastor, to the effect that the plaintiff is the owner of the said lands by virtue of a contract of sale with right of repurchase executed by Llenosin his (plaintiff’s) favor. Defendant Pastor alleged that the plaintiff was not entitled to the relief sought because the transaction by which the plaintiff claims to have acquired title was simulated and fictitious and that the supposed conveyance was effected for the purpose of defrauding the defendant as creditor of Llenos.

It appears that at the time of the supposed sale to Alpuerto, there had been pending for nearly two years in the CFI an action for collection of a considerable sum of money, in which pastor was plaintiff and Llenos was defendant. On July 3, 1912, the contract of sale with right of repurchase was executed (not notarized) by the parties, Llenos and Alpuerto. This document was signed by the contracting parties and was altered by two subscribing witnesses. On January 27, 1913, or about six months after the sale took place, judgment in the collection case was rendered in favor of Pastor. This judgment was affirmed upon appeal to the SC on November 20, 1914. On December 3, 1914, the contract of sale was acknowledged before a notary public. And on April 12, 1915, an execution was issued upon the judgment in the collection case and the property in question was levied upon as property of Llenos. Despite Alpuerto’s objection on the ground that he owned the property, the sheriff proceeded with the public sale and the property was sold to Pastor. Issue: Who is entitled to the property in question? Was the sale from Llenos to Alpuerto fraudulent? Held: Article 1297 of the Civil Code says that a transfer of property made by one against whom a condemnatory judgment has been pronounced is to be presumed fraudulent. The cardinal question in the case therefore is: Was the transfer in question made after a judgment had been entered against Llenos? This in turn depends upon whether the contract of sale shall be considered effective as from the date upon which it purports to have been executed (July 3, 1912) or from the date when it was acknowledged before a notary public (December 3, 1914), for in the interval between these two dates final judgment had been rendered against Llenos both in the CFI and in the SC. According to Article 1225 of the Civil Code, a private document legally recognized shall have, with regard to those who signed it and their privies (causahabientes), the same force as a public instrument. The expression “legally recognized” means recognized or acknowledged by the person or persons executing the document. Concerning the meaning of the expression “privies”, Manresa has this to say: “The said word denotes the idea of succession, not only by right of heirship and testamentary legacy, but also that of succession by singular title, derived from acts intervivos and for special purposes; hence, an assignee of a credit, and one subrogated to it, et., will be privies; in short, he, who, by succession is placed in the position of one of those who contracted the juridical relation and executed the private document and appears to be substituting him in his personal rights and obligations, is a privy.” Thus, Pastor, the purchaser at public sale must be considered a privy or successor in interest of the execution debtor and is bound by the instrument which conveyed the property to Alpuerto- and this from the date of the execution of that instrument as a private document. Nevertheless, circumstances show that the sale made by Llenos to Alpuerto was one in fraud of creditors; the deed of sale with right of repurchase must therefore be annulled and the property delivered to defendant. Judgment reversed.
City of Manila v. Del Rosario, 5 Phil. 227 (1905)

Admission must be made while one holds title. Facts: The City of Manila wanted to recover two lots in Calle Clavel and Barcelona. The witnesses gave different answers as to whether or not the lots were owned by the City. It appears that what actually happened was that Lorenzo del Rosario acquired the land from Cipriano Roco and later on sold it to Jacinto del Rosario. The City of Manila wanted to make use of two documents made by Lorenzo, one of which contained an offer to buy the land from the City of Manila (Lorenzo mistakenly thought that the City owned the land) and the other was a letter to the Municipal Board of Manila (the President of the Board advised Lorenzo to write this to avoid litigation with the City).

Issue: May these two letters be used in evidence against Jacinto del Rosario (the present owner)? Held: No. Lorenzo signed the first document before he acquired the land from Cipriano Roco and the second one was signed by him after he had transferred the land to Jacinto del Rosario. This being the case, the statements contained in the documents are not binding on Jacinto as they were made when Lorenzo no longer had title to the lands.

4. Admissions by silence a. Rule 130 §32
Sec. 32. Admission by silence. – An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. (23a) Requisites for admission by silence .1 The act or declaration is made in the presence and within the hearing or observation of a party .2 The party does or says nothing .3 The act or declaration naturally calls for action or comment if not true .4 Such action or comment is proper and possible on the part of the party.

b. Cases
People v. Paragsa, 84 SCRA 105 (1978) 

Failure by a supposed rape victim to rebut sweetheart defense based on testimonial evidence may be taken against her. Requirements for admission by silence: 1) heard and understood, 2) at liberty to deny, 3) affects his rights, 4) within his knowledge, and 5) material to the issue. Facts: This case involves a review of the CA’s conviction of the accused for rape and its imposition of the penalty of reclusion perpetua. The accused Bienvenido Paragsa was charged and convicted for allegedly raping complainant Mirasol Magallanes, who is 12 ½ yrs. old. Mirasol alleges that while she was alone in her hosue, Paragsa, armed with a hunting knife, entered and managed to rape her. On the other hand, Paragsa admits having sexual intercourse with her but denies that he used force and intimidation against her. He claims that they were sweethearts, that Mirasol invited him to her house that day and that it was already their 3rd intercourse. This was corroborated by 2 other witnesses, Batosbatosan and Ducay. Issue: WON Paragsa should be convicted for rape? Held: No, he should be acquitted. unsatisfactory to satisfy a conviction. The prosecution’s evidence is weak and

1. Force and intimidation was not proven. Mirasol did not make any outcry or resist the accused. She did not immediately tell her aunt, who happened to have passed by at the time of the alleged incident, what had happened nor did she tell her parents about it. 2. Mirasol did not bother at all to rebut the testimony of the accused which was corroborated by 2 other witnesses to the effect that she and the accused were sweethearts. The rule allowing silence of a person to be taken as an implied admission of the truth of the statements uttered in his presence is applicable in criminal cases. But before the silence of a party can be taken as an admission of what is said, it must appear: o that he heard and understood the statement o that he was at liberty to interpose a denial o that the statement was in respect to some matter affecting his rights or in which he was then interested and calling, naturally, for an answer o that the facts were within his knowledge

o that the fact admitted or inference to be drawn from his silence would be material to the issue. 3. These requisites are all present in this case. Hence, the silence of Mirasol on the facts alleged by the accused and his witnesses may be safely construed as an admission of the truth of such assertion.
People v. Alegre, 94 SCRA 109 (1979) 

Silence of accused in custody during investigation can not be used as evidence against him. FACTS: This case arose from the death of Adelina Sajo, Spinster, 57 years old, whose body was found strangled in her bathroom inside her house at the Maravilla cmpd., Ignacio St., Pasay City, in the early morning of July 26, 1966. Her bedroom was in "shambles," and the drawers & several cabinets were open, & some personal garments, handbags & papers were scattered on the floor. No witness saw the commission of the crime. Appellant Ramiro Alegre, who was then living with relatives in one of the rented rooms on the ground floor of the victim's house, was taken to the Pasay City police HQ for investigation in connection with the case, but was later released that same day for lack of any evidence implicating him in the crime. During the latter part of July, 1966, Melecio Cudillan was apprehended in Tacloban City, Leyte, in the act of pawning a bracelet, one of the pieces of jewelry taken from the victim. In explaining how he came into possession of the stolen pieces of jewelry, he admitted his participation in the killing and robbery of Sajo. This appears in his extrajudicial confession before the police authorities of Tacloban City on July 29, 1966. In this statement, which was written in the English language, Melecio Cudillan implicated a certain "Esok," Jesus Medalla, Mario Cudillan, one "Danny" Fernandez, and one "Rammy." When brought to Metro Manila and while he was inside the Pasay City police headquarters, Melecio Cudillan again executed an extrajudicial confession on July 31, 1966. This was sworn to before the Assistant City Fiscal of Pasay City on August 1, 1966. In this second statement, he narrated in detail the participation in the commission of the crime of Jesus Medalla, "Celso" Fernandez, "Rami" and "Mario." According to said statement, the declarant went near the cell within the Office of the Investigation Section, Secret Service Division, & identified them. Based on this, they were charged for Robbery with Homicide. They entered a plea of not guilty and the prosecution presented nine (9) witnesses. None of them, however, testified on the actual commission of the crime. The recital of facts contained in the decision under review was based principally and mainly on the EJ confessions of Cudillan. Thus, the details of the crime were taken from the "Pasay Sworn Statement." The only evidence, therefore, presented by the prosecution to prove the guilt of appellants are the testimonies of Sgt. Mariano Isla and Hernando Carillo. However, during the trial, Melecio Cudillan repudiated both the Tacloban City and Pasay City sworn statements as the product of compulsion and duress. He claimed that he was not assisted by counsel when he was investigated by the police. The lower court nevertheless convicted them. Thus, this automatic review. ISSUE: Whether or not the lower court erred in utilizing the EJ of Cudillan (now deceased) against appellants; in concluding from the alleged "silence" of appellants when allegedly pointed to by Cudillan as "his companions" in the commission of the crime, an admission of guilt? HELD: Judgment appealed reversed, and Alegre, Comayas and Medalla are hereby ACQUITTED. The extrajudicial confessions of Melecio Cudillan on the basis of which the trial court was able to reconstruct how Melecio Cudillan committed the crime in question, cannot be used as evidence and are not competent proof against appellants Ramiro Alegre and Jesus Medalla, under the principle of "res inter alios acta alteri nocere non debet," there

being no independent evidence of conspiracy. As a general rule, the extrajudicial declaration of an accused, although deliberately made, is not admissible and does not have probative value against his co-accused. It is merely hearsay evidence as far as the other accused are concerned. While there are recognized exceptions to this rule, the facts and circumstances attendant in the case at bar do not bring it within the purview of such exceptions. The only evidence, therefore, linking the appellants to the crime would be their purported tacit admissions and/or failure to deny their implications of the crime made by Melecio Cudillan, and/or their purported verbal confessions to Hernando Carillo, an inmate of the Pasay City jail. The settled rule is that the silence of an accused in criminal cases, meaning his failure or refusal to testify, may not be taken as evidence against him, and that he may refuse to answer an incriminating question. It has also been held that while an accused is under custody, his silence may not be taken as evidence against him as he has a right to remain silent; his silence when in custody may not be used as evidence against him, otherwise, his right of silence would be illusory.
Griffin v. California, 380 U.S. 853 (1965)

Court may not comment on accused’s failure to testify regarding facts within his knowledge. Facts: Griffin was convicted of murder in the first degree. He did not testify at the trial on the issue of his guilt but he testified at the separate trial (California penal laws provide separate trials if the case has two issues) on the issue of penalty. Pursuant to the California Constitution (Art. I, sec 13 of the California Constitution provides in part: “…in any criminal case, whether the defendant testifies or not, his failure to explain or deny by his testimony any evidence or facts in the case against him may be commented upon by the court and counsel, and may be considered by the court or jury.”), the trial court instructed the jury on the issue of his guilt and reminded its members that Griffin had a constitutional right not to testify. It declared that the failure of the defendant to deny or explain the evidence of which he had knowledge does not create a presumption of guilt nor by itself warrant an inference of guilt. It commented further: “As to evidence or facts against him which defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.” The prosecutor had this to say: “The defendant certainly knows whether Essie Mae had this beat up appearance at the time he left the apartment and went down the alley with her…What kind of man is that would want to have sex with a woman that beat up at the time he left…He would know how she got down the alley. He would know how the blood got on the bottom of the steps…He would know whether he beat her or mistreated her…He would know whether he walked away from that place cool as a cucumber…because he was conscious of his won guilt…These things he has not seen fit to take the stand and deny or explain. And in the whole world, if anybody would know, this defendant would know. Essie Mae is dead, she can’t tell you her side of the story. The defendant won’t.” (underscoring supplied) Griffin was sentenced to death. Hence, this petition for certiorari. Issue: Whether comment on the failure to testify violated the Self-Incrimination Clause of the Fifth Amendment of the US Constitution. Held: The Fifth Amendment, in its direct application to the federal government and its bearing on states by provision of the Fourteenth amendment, forbids either comment by the prosecution of the accused’s silence or instructions by the court that such silence is evidence of guilt. The principle behind the rule that a defendant may be a competent witness, but that his failure to make such a request shall not create any presumption against him, was designed to bar the prosecutor’s counsel from commenting on the

defendant’s refusal to testify. Thus, the state constitutional provision allowing comment by the court or counsel directly contravenes the Constitution. The decision of the lower court was reversed.

M.

Confessions

1. Rule 130, §33
Sec. 33. Confession. – The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him. (29a) This rule is applicable only in criminal cases. A confession need not be in writing in order to be admissible in evidence. If it is in writing, it is NOT required to be under oath. Escolin: However, if it is not in writing, the prosecution may find difficulty in proving it.

2. Art. III, §§12 and 17, 1987 Constitution
Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. Section 17. No person shall be compelled to be a witness against himself.

3. Rule 115 (e)
Sec. 1. Rights of accused at trial. – xxx (e) To be exempt from being compelled to be a witness against himself.

4. Cases
People v. Sarmiento, 147 SCRA 252 (1987)

A confession, to be admissible, must have been executed in the presence of counsel. Waiver of right to counsel must be with the assistance of counsel.
People v. Marra, 236 SCRA 565 (1994)

Where the confession was made even before the accused was under custodial investigation, it is admissible even if he was not assisted by counsel. Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the accused is said to be under custodial investigation.
People v. Sumayo, 70 SCRA 488 (1976)

Where the extra-judicial confessions of the accused are consistent in many material details and manifest amazing consistency and accuracy in the narration of events and of facts which could not have been known to the police investigators if the same were not voluntarily given by the accused, such statements are admissible against the accused on the doctrine of interlocking confessions.

de Leon: The value of the doctrine of interlocking confessions is when a confession is inadmissible against one accused (e.g. obtained without counsel), but it is nevertheless admissible against the other co-accused. The confession of one may be used against another to produce evidence of guilt beyond reasonable doubt.
People v. Compil, 244 SCRA 135 (1995)

FACTS: On 23 October 1987, midnight, MJ Furnitures located along Tomas Mapua Street, Sta. Cruz, Manila, which also served as the dwelling of the spouses Manuel and Mary Jay was robbed. The intruders made their way into the furniture shop through the window grills they detached on the second floor where the bedroom of the Jays was located. Two (2) of the robbers placed the 2 maids into the bathroom while Mary was caught, tied and gagged in the bedroom. Manuel Jay was not yet home. He was to come from their other furniture store along Tomas Pinpin Street, also in Sta. Cruz. The bedroom was ransacked and they took some P35,000 in cash and pieces of jewelry worth P30,000. Afterwards, Mary who was gagged in the bedroom, and one of the housemaids herded into the bathroom, heard Manuel agonizing amid a commotion in the ground floor. After noticing that the two (2) men guarding them had already left, the helpers dashed out of the bathroom and proceeded to the bedroom of their employers. Upon seeing Mary, the two (2) maids untied her hands and took out the towel from her mouth. They then rushed to the ground floor where they saw Manuel sprawled on the floor among the pieces of furniture which were in disarray. He succumbed to 13 stab wounds. In the investigation that followed, Jessie Bartolome, a furniture worker in MJ Furnitures, told operatives of the WPD that just before the incident that evening, while with his girlfriend Linda Hermoso inside an owner-type jeep parked near MJ Furnitures, he saw his co-workers Compil, Mabini and Jacale go to the back of the furniture shop. Linda then confirmed the information of Bartolome to the police. On 27 October 1987, WPD agents together with Tomas Jay, brother of the deceased, where able to arrest Compil in Tayabas, Quezon. Upon being arrested, Compil readily admitted his guilt and pointed to the arresting officers the perpetrators of the heist from a picture of the baptism of the child of Mabini's sister. Compil was then brought to the Tayabas Police Station where he was further investigated. On their way back to Manila, he was again questioned. He confessed that shortly before midnight on 23 October 1987 he was with the group that robbed MJ Furnitures. He said he was only a lookout for which he received P1,000 He did not go inside the furniture shop since he would be recognized. Compil said that his cohorts stabbed Manuel Jay to death. He also narrated that after the robbery, they all met in Bangkal, Makati, in the house of one Pablo Pakit, a brother of his co-conspirator Rogelio Pakit, where they shared the loot and drank beer until 4:30 a.m. They all left for Quezon and agreed that from there they would all go home to their respective provinces. From Tayabas, Quezon, the arresting team together with accused Compil proceeded to the house of Pablo Pakit who confirmed this narration of Compil. On 28 October 1987, the day following his arrest, Compil after conferring with CLAO lawyer Melencio Claroz executed a sworn statement before Cpl. Patricio Balanay of the WPD admitting his participation in the heist as a lookout. He named the six (6) other perpetrators of the crime as Jacale, Mabini, Alvos, Pakit, a certain "Erning" and one "Lando," and asserted that he was merely forced to join the group by Jacale and Mabini who were the masterminds. Meanwhile WPD agents failed to apprehend the cohorts of Compil. On 12 November 1987 an Information for robbery with homicide was filed against Marlo Compil. Assisted by a counsel de oficio he entered a plea of "Not Guilty" when arraigned.

After the prosecution had rested, the accused represented by counsel de parte instead of adducing evidence filed a demurrer to evidence. On 2 June 1988 the RTC of Mla. denied the demurrer and found the accused guilty of robbery with homicide. ISSUE: Whether or not accused Compil’s confessions were admissible in evidence? HELD: THE EXTRAJUDICIAL CONFESSION IS INADMISSIBLE. Citing Gamboa v. Cruz, the SC held that "[t]he right to counsel attaches upon the start of an investigation, i.e., when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from respondent/accused. At such point or stage, the person being interrogated must be assisted by counsel to avoid the pernicious practice of extorting forced or coerced admissions or confessions from the lips of the person undergoing interrogation for the commission of the offense." The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means — by telephone if possible — or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. Here, Compil was immediately subjected to an interrogation upon his arrest in the house of Rey Lopez in Tayabas, Quezon. He was then brought to the Tayabas Police Station where he was further questioned. And while on their way to Manila, the arresting agents again elicited incriminating information. In all three instances, he confessed to the commission of the crime and admitted his participation therein. In all those instances, he was not assisted by counsel. The belated arrival of the CLAO lawyer the following day even if prior to the actual signing of the uncounseled confession does not cure the defect for the investigators were already able to extract incriminatory statements from Compil. The operative act, it has been stressed, is when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect who has been taken into custody by the police to carry out a process of interrogation that lends itself to eliciting incriminatory statements, and not the signing by the suspect of his supposed extrajudicial confession. Although the extrajudicial confession is inadmissible, nevertheless, the accused had been found by the SC to be guilty of the crime. The guilt of the accused may be established through circumstantial evidence. The circumstances as gleaned from the factual findings of the trial court in case at bar form an unbroken chain which leads to a fair and reasonable conclusion pointing to the accused as one of the perpetrators of the crime. Hence even disregarding Compil’s oral and written confessions, as we do, still the prosecution was able to show that he was a co-conspirator in the robbery with homicide. Although, the arrest, search and seizure were made without the benefit of a warrant, Compil is now estopped from questioning this defect after failing to move for the quashing of the information before the trial court. Thus any irregularity attendant to his arrest was cured when he voluntarily submitted himself to the jurisdiction of the trial court by entering a plea of "not guilty" and by participating in the trial. Compil’s argument the TC should have convicted the arresting police officers of arbitrary detention, if not delay in the delivery of detained persons, is misplaced, since, the law enforcers who arrested him are not being charged and prosecuted in the case at bench. Likewise devoid of merit is the contention of Compil that granting that he had participated in the commission of the crime, he should be considered only as an accomplice. Disregarding his extrajudicial confession and by reason of his failure to adduce evidence in his behalf, the SC had considered only the evidence of the prosecution which shows that the perpetrators of the crime acted in concert. Direct proof is not essential to prove conspiracy which may be inferred from the acts of the accused during and after the commission of the crime which point to a joint purpose, concert of action and community of interest. Thus, circumstantial evidence is sufficient to prove conspiracy. And where conspiracy exists, the act of one is the act of all, and each is to be held in the same degree of liability as the others.
People v. Wong Chuen Ming, 256 SCRA 182 (1996)

FACTS: The eleven (11) accused, namely, Wong Chuen Ming and Au Wing Cheung (British nationals), Tan Soi Tee, Chin Kok Wee, Lim Chan Fatt, Chin Kin Yong, Yap Boon Ah, Chin Kong Song, Chin Kin Fah, Chai Min Huwa and Lim Nyuk Sun (all Malaysian nationals) arrived in Manila from Hong Kong on board a PAL flight. All accused arrived in Manila as a tour group arranged by Select Tours International Co., Ltd. Wing Cheung, an employee of Select Tours acted as their tour guide. After passing through and obtaining clearance from immigration officers at the NAIA, the tour group went to the baggage claim area to retrieve their respective checked-in baggages. They placed the same in one pushcart and proceeded to Express Lane 5 which at the time was manned by customs examiner Danilo Gomez. Au Wing Cheung handed to Gomez the tour group's passenger's manifest, their baggage declarations and their passports. Upon inspection, Gomez allowed two of the group to pass but after finding a number of Alpen Cereal boxes in each of the baggages of the accused, he became suspicious and opened one of them with a cutter. It was found to contain a white crystalline substance which was later found to be shabu. The tour group was ordered to proceed to the district collector's office. Inside the collector's office, Gomez continued to examine the baggages of the other members of the tour group. He allegedly found a total of thirty (30) boxes of Alpen Cereals containing white crystalline substance were allegedly recovered from the baggages of the eleven (11) accused. As Gomez pulled out these boxes from their respective baggages, he bundled said boxes by putting masking tape around them and handed them over to Bonifacio. Upon receipt of these bundled boxes, Bonifacio called out the names of accused as listed in the passengers' manifest and ordered them to sign on the masking tape placed on the boxes allegedly recovered from their respective baggages. Also present at this time were Capt. Rustico Francisco and his men, agents of the Bureau of Customs and several news reporters. A few minutes later, District Collector Antonio Marquez arrived with General Job Mayo and then NBI Deputy Director Mariano Mison. Capt. Francisco testified that shortly after all boxes of Alpen Cereals were recovered, he conducted a field test on a sample of the white crystalline substance. His test showed that the substance was indeed "shabu." Capt. Francisco immediately informed the eleven (11) accused that they were under arrest. Thereafter, all accused, as well as the Alpen Cereals boxes which were placed inside a big box, were brought to Camp Crame. At Camp Crame, accused were asked to identify their signatures on the boxes and after having identified them, they were again made to sign on the plastic bags containing white crystalline substance inside the boxes bearing their signatures. The examination by Elizabeth Ayonon, a forensic chemist at the Philippine National Police Crime Laboratory at Camp Crame, confirmed that the white crystalline substance recovered from accused was "shabu." The total weight of "shabu" recovered was placed at 34.45 kilograms. For their part, the. defense interposed by all accused was basically anchored on the testimony of their co-accused Lim Chan Fatt, a technician and self-confessed "call boy", who admitted being responsible for bringing the boxes of Alpen Cereals into the country although he denied any knowledge that they contained "shabu." Lim Chan Fatt testified that except for Chin Kong Song and Lim Nyuk Sun, all other accused were unknown or complete strangers to him until their trip to the Philippines on 7 September 1991. With respect to Chin Kong Song and Lim Nyuk Sun, Lim Chan Fatt allegedly met them at his boarding house in Hongkong where the two (2) temporarily lived a few days before said trip. According to Lim Chan Fatt, prior to their departure date, a certain Ah Hong, a coboarder and a Hongkong businessman, approached him and asked him if he could kindly bring with him boxes of cereals to the Philippines. Ah Hong promised Lim Chan Fatt that a certain Ah Sing will get these boxes from him at the Philippine airport and for this trouble, Ah Sing will see to it that Lim Chan Fatt will have a good time in the Philippines. Ah Hong allegedly even opened one (1) box to show that it really contained cereals. Lim Chan Fatt acceded to Ah Hong's request as he allegedly found nothing wrong with it. Consequently, Ah Hong delivered to Lim Chan Fatt thirty (30) boxes of Alpen Cereals. Since his baggage could not accommodate all thirty (30) boxes, Lim Chan Fatt requested

Chin Kong Song and Lim Nyuk Sun to accommodate some of the boxes in their baggages. Lim Chan Fatt claimed that he entrusted five (5) boxes to Chin Kong Song and another five (5) to Lim Nyuk Sun. He allegedly placed four (4) boxes inside a hand carried plastic bag while the rest were put inside his baggage. On the basis of this testimony, the defense endeavored to show that only Lim Chan Fatt, Chin Kong Song and Lim Nyuk Sun were responsible for bringing boxes of Alpen Cereals into the country and even then they cannot be held liable for violation of Section 15, Article II of R.A. No. 6425, as amended, as they allegedly had no knowledge that these boxes contained "shabu.” Accused Chin Kong Song and Lim Nyuk Sun' and accused-appellants Au Wing Cheung and Wong Chuen Ming. Accused-appellants denied that boxes of Alpen Cereals were recovered from their baggages. They claimed that they affixed their signatures on the boxes only because they were threatened by police authorities who were present during the examination inside the collector's office. Accused-appellant Au Wing Cheung maintained that he was a bona fide employee of Select Tours International Co., Ltd. and that he had no prior knowledge that the tour group he was supposed to accompany to the Philippines brought boxes containing "shabu." For his part, accused-appellant Wong Chuen Ming tried to dissociate himself from the other accused by testifying that he was not a part of their group. He claimed that he was originally booked with another travel agency, Wing Ann Travel Co., for a five-day Cebu tour. This Cebu tour was allegedly cancelled due to insufficient number of clients and accused-appellant was subsequently transferred to and accommodated by Select Tours. The other accused who did not take the witness stand opted to adopt as their own all testimonial and documentary evidence presented in court for the defense. On 29 November 1991, the trial court rendered judgment convicting all the accused. Only accused-appellants Wong Chuen Ming and Au Wing Cheung filed their joint appeal brief. ISSUE: Whether or not the lower court erred in finding the accused guilty beyond reasonable doubt? HELD: Accused’s contention that they were deprived of their right to counsel and due process when their previous counsels also represented the other accused despite "conflicting interests" was not accepted by the SC having found that said counsels tried to present all the defenses available to each of the accused and that they did not, in any way, put in jeopardy accused-appellants' constitutional right to counsel. It does not appear from the records that the effectiveness of accused-appellants' previous counsels was diminished by the fact that they also jointly represented the other accused. The SC held that the signatures of accused on the boxes, as well as on the plastic bags containing "shabu," are inadmissible in evidence. Accused were not informed of their Miranda rights i.e. that they had the right to remain silent and to counsel and any statement they might make could be used against them, when they were made to affix their signatures on the boxes of Alpen Cereals while they were at the NAIA and again, on the plastic bags when they were already taken in custody at Camp Crame. By affixing their signatures, accused in effect made a tacit admission of the crime charged for mere possession of "shabu" is punished by law. These signatures of accused are tantamount to an uncounselled extra-judicial confession which is not sanctioned by the Bill of Rights (Section 12 [1][3], Article III, 1987 Constitution). They are, therefore, inadmissible as evidence for any admission wrung from the accused in violation of their constitutional rights is inadmissible against them. The fact that all accused are foreign nationals does not preclude application of the "exclusionary rule" because the constitutional guarantees embodied in the Bill of Rights are given and extend to all persons, both aliens and citizens. Among the prosecution witnesses, only Gomez testified that all the seized baggages, including those owned by Chuen Ming and Wing Cheung, contained a box or boxes of "shabu." His testimony was given credence by the TC since he was presumed to have performed his duties in a regular manner. However, Gomez' testimony inculpating accused-appellants was not corroborated by other prosecution witnesses. Customs

collector Bonifacio cannot recall if each and everyone of accused were found in possession of any box or boxes of Alpen Cereals and the testimony of NARCOM officer Capt. Francisco casts doubt on the claim of Gomez that he recovered boxes of "shabu" from the baggages of accused-appellants. While Capt. Francisco was categorical in stating that boxes of "shabu" were recovered from the baggages belonging to the other nine (9) accused Malaysians, he admitted that he was not sure whether Gomez actually recovered boxes of "shabu" from accused-appellants' baggages. Hence, the presumption of regularity in the performance of duties accorded to Gomez cannot, by itself, prevail over the constitutional right of accused-appellants to be presumed innocent especially in the light of the foregoing testimonies of other prosecution witnesses. There are other circumstances that militate against the conviction of accused-appellants. First, accused-appellants are British (Hongkong) nationals while all the other accused are Malaysians. It is difficult to imagine how accused-appellants could have conspired with the other accused, who are total strangers, when they do not even speak the same language. Second, overwhelming evidence consisting of testimonies of accusedappellant An Wing Cheung's superiors was presented to show that he was a bonafide employee of Select Tours International Co., Ltd. Third, evidence showed that accusedappellant Ming was not originally part of the tour group arranged by Select Tours but he was only accommodated by the latter at the last minute when his package tour to Cebu was cancelled by Wing Ann Travel Co. Finally, as testified to by Capt. Francisco, both accused-appellants adamantly refused to sign on the transparent plastic bags containing shabu." The SC, thus, held that accused-appellants' participation in the illegal transportation of "shabu" into the country has not been proven beyond reasonable doubt.
People v. Alegre, 94 SCRA 109 (1979)

FACTS: This case arose from the death of Adelina Sajo, Spinster, 57 years old, whose body was found strangled in her bathroom inside her house at the Maravilla cmpd., Ignacio St., Pasay City, in the early morning of July 26, 1966. Her bedroom was in "shambles," and the drawers & several cabinets were open, & some personal garments, handbags & papers were scattered on the floor. No witness saw the commission of the crime. Appellant Ramiro Alegre, who was then living with relatives in one of the rented rooms on the ground floor of the victim's house, was taken to the Pasay City police HQ for investigation in connection with the case, but was later released that same day for lack of any evidence implicating him in the crime. During the latter part of July, 1966, Melecio Cudillan was apprehended in Tacloban City, Leyte, in the act of pawning a bracelet, one of the pieces of jewelry taken from the victim. In explaining how he came into possession of the stolen pieces of jewelry, he admitted his participation in the killing and robbery of Sajo. This appears in his extrajudicial confession before the police authorities of Tacloban City on July 29, 1966. In this statement, which was written in the English language, Melecio Cudillan implicated a certain "Esok," Jesus Medalla, Mario Cudillan, one "Danny" Fernandez, and one "Rammy." When brought to Metro Manila and while he was inside the Pasay City police headquarters, Melecio Cudillan again executed an extrajudicial confession on July 31, 1966. This was sworn to before the Assistant City Fiscal of Pasay City on August 1, 1966. In this second statement, he narrated in detail the participation in the commission of the crime of Jesus Medalla, "Celso" Fernandez, "Rami" and "Mario." According to said statement, the declarant went near the cell within the Office of the Investigation Section, Secret Service Division, & identified them. Based on this, they were charged for Robbery with Homicide. They entered a plea of not guilty and the prosecution presented nine (9) witnesses. None of them, however, testified on the actual commission of the crime. The recital of facts contained in the decision under review was based principally and mainly on the EJ confessions of Cudillan. Thus, the details of the crime were taken from the "Pasay Sworn

Statement." The only evidence, therefore, presented by the prosecution to prove the guilt of appellants are the testimonies of Sgt. Mariano Isla and Hernando Carillo. However, during the trial, Melecio Cudillan repudiated both the Tacloban City and Pasay City sworn statements as the product of compulsion and duress. He claimed that he was not assisted by counsel when he was investigated by the police. The lower court nevertheless convicted them. Thus, this automatic review. ISSUE: Whether or not the lower court erred in utilizing the EJ of Cudillan (now deceased) against appellants; in concluding from the alleged "silence" of appellants when allegedly pointed to by Cudillan as "his companions" in the commission of the crime, an admission of guilt? HELD: Judgment appealed reversed, and Alegre, Comayas and Medalla are hereby ACQUITTED. The extrajudicial confessions of Melecio Cudillan on the basis of which the trial court was able to reconstruct how Melecio Cudillan committed the crime in question, cannot be used as evidence and are not competent proof against appellants Ramiro Alegre and Jesus Medalla, under the principle of "res inter alios acta alteri nocere non debet," there being no independent evidence of conspiracy. As a general rule, the extrajudicial declaration of an accused, although deliberately made, is not admissible and does not have probative value against his co-accused. It is merely hearsay evidence as far as the other accused are concerned. While there are recognized exceptions to this rule, the facts and circumstances attendant in the case at bar do not bring it within the purview of such exceptions. The only evidence, therefore, linking the appellants to the crime would be their purported tacit admissions and/or failure to deny their implications of the crime made by Melecio Cudillan, and/or their purported verbal confessions to Hernando Carillo, an inmate of the Pasay City jail. The settled rule is that the silence of an accused in criminal cases, meaning his failure or refusal to testify, may not be taken as evidence against him, and that he may refuse to answer an incriminating question. It has also been held that while an accused is under custody, his silence may not be taken as evidence against him as he has a right to remain silent; his silence when in custody may not be used as evidence against him, otherwise, his right of silence would be illusory.
People v. Yip Wai Ming, 264 SCRA 224 (1996)

FACTS: Accused-appellant Yip Wai Ming and victim Lam Po Chun, both Hongkong nationals, came to Manila on vacation on July 10, 1993. The two were engaged to be married. Hardly a day had passed when Lam Po Chun was brutally beaten up and strangled to death in their hotel room. On the day of the killing, July 11, 1993, Yip Wai Ming, was touring Metro Manila with Filipino welcomers while Lam Po Chun was left in the hotel room allegedly because she had a headache and was not feeling well enough to do the sights. For the slaying, Yip Wai Ming was charged for murder. He was later on convicted by the RTC of Manila. There was no eyewitness to the actual killing of Lam Po Chun. All the evidence about the killing is circumstantial. Evidence presented by the prosecution alleged that on the day of the murder, Cariza Destresa, the occupant of room 211, the room adjacent to room 210 of the couple heard a loud argument inside the couples room and a struggle where there was supposedly a faint cry and a loud thud (like someone banging on the floor). The front desk clerk also testified that Yip Wai Ming, at about 10 a.m., came down later to meet with Gwen de los Santos who was to accompany them to a tour around Manila. Ming left his fiancée Lam in their room and gave specific instructions that she shouldn’t be disturbed. He was perspiring and kind of in a hurry. During the whole morning of July 11, 1993, after appellant left the hotel until his return at 11 o'clock in the evening, he did not call his fiancee Lam Po Chun to verify her physical condition. When Ming arrived at 11 p.m. on that day, he asked the receptionist for the key of his room. Then together with Fortunato Villa, the roomboy, proceeded to Room 210. When the lock was opened and the door was pushed, Lam Po Chun was found dead lying face down on the bed covered with a

blanket. Appellant removed the blanket and pretended to exclaim 'My God, she is dead' but did not even embrace his fiancee. Instead, Ming asked the room boy to go down the hotel to inform the front desk, the security guard and other hotel employees to call the police. When the police arrived, they conducted an examination of the condition of the doors and windows of the room as well as the body of the victim and the other surroundings. They found no signs of forcible entry and they observed that no one can enter from the outside except the one who has the key. The police also saw the victim wrapped in a colored blanket lying face down. When they removed the blanket and tried to change the position of her body, the latter was already in state of rigor mortis, which indicates that the victim has been dead for ten (10) to twelve (12) hours. The police calculated that Lam Po Chun must have died between 9 to 10 in the morning of July 11, 1993 (pp. 2-29), tsn, September 22, 1993). Prior to the death of the victim, her brother, Lam Chi Keung, learned that her life was insured with the Insurance Company of New Zealand in Causeway Bay, Hongkong, with Ming as the beneficiary. The premium paid for the insurance was more than the monthly salary of the deceased as an insurance underwriter in Hongkong. ISSUE: Whether or not the circumstantial evidence linking Ming to the killing is sufficient to sustain a judgment of conviction beyond reasonable doubt? HELD: Judgment reversed. Accused acquitted. The SC found that the trial court relied only and conjectures and surmises in arriving at its conclusion. Before a conviction can be had upon circumstantial evidence, the circumstances should constitute an unbroken chain which leads to but one fair and reasonable conclusion, which points to the accused, to the exclusion of all others, as the guilty person Every hypothesis consistent with innocence must be excluded if guilt beyond reasonable doubt is based on circumstantial evidence. All the evidence must be consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with that he is innocent, and with every other rational hypothesis except that of guilt. The SC found that certain key elements, without which the picture of the crime would be faulty and unsound, are not based on reliable evidence. A key element in the web of circumstantial evidence is motive which the prosecution tried to establish. Nevertheless, the supposed insurance policy with which motive was established was not duly proven. The prosecution presented Exhibit "X", a mere xerox copy of a document captioned "Proposal for Life Insurance" as proof of the alleged insurance. It is not a certified copy, nor was the original first identified. The authenticity of the document has thus not been duly established. The policy was unsigned and it was not clear whether it was indeed taken out by Lam. Also, Law only earned $5000 a month while the premium of the policy was for $5400. Such a discrepancy negates the assumption that there was a policy taken and a motive for the crime. There was also no conclusive findings as to the time of the death as testified to by Dr. Manuel Lagonera, medico-legal officer of the WPD. The fact that there as no forcible entry does not presupposes nor negates the possibility that somebody may have knocked and entered the room after Lam opened the door thinking it was hotel staff. Detective Yanquiling was so convinced that it was Ming who did it that he did not conduct any other further investigation. The TCs reliance on the Destreza testimony was also rebutted by the SC being unreliable having given contradictory statements as to the time when she heard the “banging” sounds or even to the date as to when her Australian boyfriend came to Manila. Ming was arrested on July 13, 1993, two days after the killing. There was no warrant of arrest. Officer Yanquiling testified that there was no warrant and he arrested Ming based on “series of circumstantial evidence.” He had no personal knowledge of Yip Wai Ming having committed the crime. Ming stated that five police officers at the police station beat him up. They asked him to undress, forced him to lie down on a bench, sat on his stomach, placed a handkerchief over his face, and poured water and beer over his face. When he could no longer bear the pain, he admitted the crime charged, participated in a re-enactment, and signed an extrajudicial statement. All the while, he was not informed

of his right to remain silent nor did he have counsel of his choice to assist him in confessing the crime. The custodial interrogation of accused-appellant was violative of Section 12, Article III of the Constitution. The Constitution provides that "(3) Any confession or admission obtained in violation of this section or Section 17 hereof shall be inadmissible against him." Section 17,. Article III provides: "No confession, shall be compelled to be a witness against himself." Any confession, including a re-enactment without admonition of the right to silence and to counsel, and without counsel chosen by the accused is inadmissible in evidence.
People v. Maqueda, 242 SCRA 565 (1995)

FACTS: British Horace William Barker, a WB consultant, and his Filipino wife, Teresita Mendoza lived in Tuba, Benguet where, in the early morning of 27 August 1991, Horace was brutally slain and Teresita badly battered with lead pipes on the occasion of a robbery in their home. Sufficient prima facie evidence pointed to Rene Salvamante as one of the suspect. As to Rene's co-conspirator, the prosecution initially included Richard Malig in the information for robbery with homicide and serious physical injuries filed with the RTC of Benguet. Prior to the arraignment of Malig, the prosecution filed a motion to amend the information to implead as co-accused Hector Maqueda but, later, the Prosecutor asked that accused Malig be dropped from the information since the evidence disclosed no sufficient evidence against him. The motion to drop Malig was granted and warrants for the arrest of accused Salvamante and Maqueda were issued. Maqueda was subsequently arrested on March 1992 in Guinyangan, Quezon and was brought to the headquarters of the 235th PNP Mobile Force Company at Sta. Maria, Calauag, Quezon. Its commanding officer, Maj. Virgilio F. Renton, directed SPO3 Armando Molleno to get Maqueda's statement. He did so and according to him, he informed Maqueda of his rights under the Constitution. Maqueda thereafter signed a Sinumpaang Salaysay (Exhibit "LL") wherein he narrated his participation in the crime at the Barker house. On 9 April 1992, he filed an application for bail where he stated that "he is willing and volunteering to be a State witness in the above-entitled case, it appearing that he is the least guilty among the accused in this case." Prosecutor Zarate then had a talk with Maqueda regarding such statement and asked him if he was in the company of Salvamante on 27 August 1991 in entering the house of the Barkers. After he received an affirmative answer, Prosecutor Zarate told Maqueda that he would oppose the motion for bail since he, Maqueda, was the only accused on trial (Exhibit "II"). In the meantime, Ray Dean Salvosa arrived at the Office of Prosecutor Zarate and obtained permission from the latter to talk to Maqueda. Salvosa then led Maqueda toward the balcony. Maqueda narrated to Salvosa that Salvamante brought him to Baguio City in order to find a job as a peanut vendor but found out later that they were going to rob the Barkers. He initially objected to the plan, but later on agreed to it. He admitted having hit Mrs. Barker with a lead pipe after she came down and in helping Salvamante in beating up Mr. Barker who had followed his wife downstairs. When the Barkers were already unconscious on the floor, Salvamante looted the house. They made their escape through Baguio City & then rode a Philippine Rabbit Bus heading for Manila. On 22 April 1992, the prosecution filed an Amended Information with only Salvamante and Maqueda as the accused. Salvamante remained at large and trial proceeded against Maqueda only who entered a plea of not guilty. Maqueda interposed a defense of alibi stating that he was not in Benguet then and that he was working as a caretaker in a polvoron factory in Sukat, Muntinlupa. This was denied however by the owner Castrence.

In its decision promulgated on 31 August 1993, the TC found Maqueda guilty on the ground that there was a conviction "based on the confession and the proof of corpus delicti" as well as on circumstantial evidence. ISSUE: Whether or not the trial court erred in allowing the supposed confession of Maqueda to be admitted in evidence against him? HELD: The trial court erred in admitting the Sinumpaang Salaysay executed by Maqueda to SPO3 Molleno. The TC pointed out that the Sinumpaang Salaysay is not an extrajudicial confession, it is only an extrajudicial admission. There is a distinction between the two as shown in Sections 26 and 33, Rule 130 of the Rules of Court. In a confession, there is an acknowledgment of guilt. The term admission is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of his guilt or of the criminal intent to commit the offense with which he is charged. And under Section 3 of Rule 133, an extrajudicial confession made by the accused is not sufficient for conviction unless corroborated by evidence of corpus delicti. HOWEVER, the exercise of the rights to remain silent and to counsel and to be informed thereof under Section 12(1), Article III of the Constitution are not confined to that period prior to the filing of a criminal complaint or information but are available at that stage when a person is "under investigation for the commission of an offense." Ordinarily, once a criminal complaint or information is filed in court and the accused is thereafter arrested by virtue of a warrant of arrest, he must be delivered to the nearest police station or jail and the arresting officer must make a return of the warrant to the issuing judge, and since the court has already acquired jurisdiction over his person, it would be improper for any public officer or law enforcement agency to investigate him in connection with the commission of the offense for which he is charged. If, nevertheless, he is subjected to such investigation, then Section 12(1), Article III of the Constitution and the jurisprudence thereon must be faithfully complied with. Here, the Sinumpaang Salaysay of Maqueda taken by SPO2 Molleno after the former's arrest was taken in palpable violation of the said Constitutional provision. As disclosed by a reading thereof. Maqueda was not even told of any of his constitutional rights under the said section. The statement was also taken in the absence of counsel. Such uncounselled Sinumpaang Salaysay is wholly inadmissible pursuant to paragraph 3, Section 12, Article III of the Constitution. NEVERTHELESS, the extrajudicial admissions of Maqueda to Prosecutor Zarate and to Ray Dean Salvosa are not governed by the exclusionary rules under the Bill of Rights. Maqueda voluntarily and freely made them to Prosecutor Zarate not in the course of an investigation, but in connection with Maqueda's plea to be utilized as a state witness; and as to the other admission, it was given to a private person. The provisions of the Bill of Rights are primarily limitations on government, declaring the rights that exist without governmental grant, that may not be taken away by government and that government has the duty to protect. or restrictions on the power of government found "not in the particular specific types of action prohibited, but in the general principle that keeps alive in the public mind the doctrine that governmental power is not unlimited.'' They are the fundamental safeguards against aggressions of arbitrary power, or state tyranny and abuse of authority. In laying down the principles of the government and fundamental liberties of the people, the Constitution did not govern the relationships between individuals. Accordingly, Maqueda's admissions to Ray Dean Salvosa, a private party, are admissible in evidence against the former under Section 26, Rule 130 of the Rules of Court. Citing Aballe vs. People, the declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood it. The said witness need not repeat verbatim the oral confession; it suffices if he gives its substance. By analogy, that rule applies to oral extrajudicial admissions. To be added to Maqueda's extrajudicial admission is his Urgent Motion for Bail wherein he explicitly stated that "he is willing and volunteering to be a state witness in the above entitled case, it appearing that he is the least guilty among

the accused in this case." In the light of these admissions, Maqueda's guilt was established beyond moral certainty. His defense of alibi was futile because by his own admission he was not only at the scene of the crime at the time of its commission, he also admitted his participation therein. Even if we disregard his extrajudicial admissions to Prosecutor Zarate and Salvosa, his guilt was, as correctly ruled by the trial court, established beyond doubt by circumstantial evidence. The following circumstances were duly proved in this case: (1) He and a companion were seen a kilometer away from the Barker house an hour after the crime in question was committed there; (2) Rene Salvamante, who is still at large, was positively identified by Mrs. Barker, Norie Dacara, and Julieta Villanueva as one of two persons who committed the crime; (3) He and co-accused Rene Salvamante are friends; (4) He and Rene Salvamante were together in Guinyangan, Quezon, and both left the place sometime in September 1991, (5) He was arrested in Guinyangan, Quezon, on 4 March 1992, and (6) He freely and voluntarily offered to be a state witness stating that "he is the least guilty." Section 4, Rule 133 of the Rules of Court provides that circumstantial evidence is sufficient for conviction if: 1. There is more than one circumstance 2. The facts from which the inferences are derived are proven; and 3. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Or, as jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proved constitute an unbroken chain which leads to one fair and reasonable conclusion which points to the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty. All the requisites are present in this case. Therefore, conviction affirmed.
Bruton v. US, Parker v. Randolph, 442 U.S. 62 (1979)

Facts: Three co-defendants, who had been convicted or murder at a joint trial before a jury in a Tennessee trial court, sought habeas corpus relief from a District Court claiming that an error had been committed when the trial court admitted some of their confessions into evidence. All three co-defendants none of whom had testified at trial, claimed that error had occurred when their interlocking oral confessions were admitted into evidence with cautionary instructions to the jury that each confession could be used only against the defendant who gave it and could not be considered as evidence of a codefendant’s guilt. The District Court granted habeas corpus relief holding that as to the admission of the interlocking oral confessions, that the co-defendant’s rights had been violated under the SC’s decision in Bruton v US, in which it had been held that an accused’s right of crossexamination is violated by the admission of a co-defendant’s confession inculpating the accused, notwithstanding jury instructions that the co-defendant’s confession must be disregarded in determining the accused’s guilt or innocence. The CA affirmed the decision. Issue: WON the admission of co-defendant’s confessions infringed respondent’s rights Held: No. The SC held that the admission of respondent’s confessions with proper limiting jury instructions did not infringe respondent’s constitutional rights. In this case, unlike in Bruton, the defendant had already confessed. Incriminating extrajudicial statements will not have the same devastating consequences to a defendant who has already confessed. In this case, defendant corroborated his co-defendant’s story and has blamed himself. Thus the natural motivation to blame others, which renders incriminating statements suspect (as held in Bruton), does not exist in this case.

The right to confrontation does not bar admission into evidence of every relevant extrajudicial statement by a nontestifying declarant simply because it in some way implicates the defendant. An instruction directing the jury to consider a co-defendant’s statement only against its source is sufficient to avoid offending the defendant’s confrontation right. When the defendant’s own confession is before the jury, the possible prejudice that may result from the jury’s failure to follow the court’s instructions is not so devastating or vital as to require departure from the general rule allowing admission of evidence with limiting instructions. Dissent: J. Stevens expressed the view that there had been a violation of right under Bruton and that such was not harmless.
People v. Encipido, G.R. No. 7009l, Dec. 29, 1986 People v. Endino, G.R. No. 133026, Feb. 20, 2001

N.Previous Conduct as Evidence 1. Rule 130, §34-35
Sec. 34. Similar acts as evidence. – Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. (48 a) GR: Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another time Exceptions: It may be received to prove a specific .1 intent .2 knowledge .3 identity .4 plan .5 system .6 scheme .7 habit .8 custom or .9 usage, and .10 the like. Sec. 35. Unaccepted offer. – An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money instrument, or property. (49 a)

2. Cases
US v. Evangelista, 24 Phil 453 (1913)

In a trial for arson, the prosecution may prove that the accused had attempted to set fire to the house on the day previous to the burning alleged in the information, for the purpose of showing the intent of the accused in subsequently setting fire to the house. Where a person is charged wit the commission of a specific crime, testimony may be received of the other similar acts committed about the same time, only for the purpose of establishing the criminal intent of the accused.
US v. Pineda, 37 Phil 457 (1918)

Facts: A druggist filled a prescription for protassium chlorate with barium chlorate, a poison, causing the death of two horses. After analyzing the packages, two chemists went to the drug store of the defendant and bought potassium chlorate, which when analyzed was found to be barium chlorate.

Held: The testimony of the chemist was admissible in order to demonstrate defendant's motive and negligence. It is permissible to ascertain defendant's knowledge and intent and to fix his negligence. If the defendant has on more than one occasion performed similar acts, accident in good faith is possibly excluded, negligence is intensified, and fraudulent intent may even be established. There is no better evidence of negligence than the frequency of accidents. Evidence is admissible in a criminal action which tends to show motive, although it tends to prove the commission of another offense by the defendant. Facts: Feliciano Santos, owner of some sick horses, went to the drug store of Santiago Pineda, a registered pharmacist with a prescription from Dr. Richardson to purchase potassium chlorate for the sick horses. When Santos administered the medicine to his horses, the horses died. Santos, thereupon brought the remaining packages to the Bureau of Science for examination and it was found that the packets contained not potassium chlorate but barium chlorate (which was a poison). The two chemists, Drs. Peña & Darjuan of the said Bureau when to Pineda’s drug store and bought potassium chlorate but where again given barium chlorate. Dr. Buencamino performed an autopsy of the horses and found that indeed they were poisoned. In the trial, the two chemists testified to their purchase of potassium chlorate but where instead given barium chlorate. The admission of such testimony was objected to by the defense. The TC convicted Pineda for violation of the penal provisions of the Pharmacy Law, thus, this appeal. Issue: Whether or not the lower court erred in admitting the testimony of the two chemists? Held: The SC affirmed the judgment. As a general rule, the evidence of other offenses committed by a defendant is inadmissible. But Pineda has confused the res inter alios acta maxim with certain exceptions thereto. The testimony presented was not to convict the accused of a second offense nor is there an attempt to draw the mind away from the point at issue and thus to prejudice defendant’s case. The purpose is to ascertain Pineda’s knowledge and intent and to fix his negligence. If Pineda has on more than one occasion performed similar acts, accident in good faith is possibly excluded, negligence is intensified, and fraudulent intent may even be established. It has been said that there is no better evidence of negligence than the frequency of accidents. Evidence is admissible in a criminal action which tends to show motive, although it tends to prove the commission of another offense by the defendant.
People v. Irang, 64 Phil 285 (1937)

Facts: After barging into her home, a man ordered Maximiniana Vicente to bring out her money and jewelry. As she turned over the items, she looked at the man's face and saw that he had pockmarks and a scar on his left eyelid. Irang was identified by Maximiana from a police line-up and was charged. During the trial, Maximiana’s neighbor, Juana de la Cruz, testified that on the night in question, her house was assaulted by malefactors. de la Cruz noticed that one of them had pockmarks and a scar on the left eyelid. She identified that man to be Irang. Held: The testimony of Juana de la Cruz indirectly corroborates Maximiniana’s testimony that the man of the same description was the one who went to her house and demanded delivery of her money and jewelry. While evidence of another crime is, as a rule, not admissible in a prosecution for robbery, it is admissible when it is otherwise relevant, as where it tends to identify defendant as the perpetrator of the robbery charged, or tends to show his presence at the scene or in the vicinity of the crime at the time charged, or when it is evidence of a circumstance connected with the crime. Facts: On the night of November 8, 1935, 7 persons with white stripes on their faces, two carrying guns while the rest had bolos, went to the house of the spouses Perfecto and Maximiana Melocotones. Some of these persons went up the house while the rest remained on guard downstairs. The men ordered Perfecto to bring out his money but before he could do so Perfecto was attacked with bolos by the men. Perfecto slumped to the floor dead. So, the men instead ordered his wife to get the money and jewelries to which she complied and surrendered about P70 in case and P200 worth of jewelry.

That same night, a group of men with similar descriptions as those that robbed the Melocotones assaulted the house of Juana de la Cruz. After they left the house of the Melocotones, Toribio Melocotones, son of Perfecto and Maximiana, who had seen the assailants arrive and leave their house reported the incident to the police. Maximiana gave a description where she stated that one of her assailants had a pockmarked face. When groups of men where presented to Maximiana for identification she pointed to Benjamin Irang as the one who struck her with the butt of his gun and demanded delivery of money and jewelries. He was also identified by Juana de la Cruz as one of those who assaulted her home. Irang later on executed an affidavit which was sworn to by him before the deputy clerk of the CFI of Nueva Ecija stating he was merely invited to the said town and when already there he was brought by a certain Fidel Estrella to be part of a group that would raid the house of Perfecto Melocotones and that he merely stood guard. He also assailed the admission of the testimony of Juana de la Cruz that the said group supposedly assaulted her house. The CFI of Nueva Ecija convicted said accused Irang. Issue: Whether or not Juana de la Cruz testimony is admissible? Held: The testimony of Juana de la Cruz that her house is located only about 100 meters from that of Perfecto and that they were assaulted by a group of men fitting the same description as those who assaulted Perfecto’s house is admissible. While evidence of another crime is, as a rule, not admissible in a prosecution for robbery, it is admissible when it is otherwise relevant, as where it tends to identify defendant as the perpetrator of the robbery charged, or tends to show his presence at the scene or in the vicinity of the crime at the time charged, or when it is evidence of a circumstance connected with the crime. His affidavit is also admissible. An admission made under oath before a deputy clerk of court cannot be considered involuntary merely because the person who made it allegedly having done so under threat, the persons supposed to have threatened him having denied such fact. Judgment affirmed.
People v. Soliman, 53 O.G. 8083 (1957)

Facts: Ernesto Basa and Ernesto Balaktaw were sleeping in a pushcart along a sidewalk when Basa was assaulted by Sofronio Palin (who held down Basa) and Geronimo Soliman (who stabbed him many times with a balisong). Thereafter, they ran away. Balaktaw brought Basa to the police who in turn brought him to a hospital where however Basa died. As a defense, Soliman stated that on several occasions Basa had assaulted him, once he was punched and in another with a lead pipe, and on that occasion he was being extorted money. Soliman during that incident stabbed him as Basa and three of his companions attacked him. Palin corroborated that statement of Soliman. The TC convicted both men. Issue: Whether or not there was sufficient evidence convicting the two accused? Held: Judgment affirmed. The findings of fact particularly the character of the wounds inflicted and the admission made by Soliman that he had inflicted the wounds support the testimony of Balaktaw as to what happened. The defense points out that the TC erred in not allowing them a new trial based on newly discovered evidence particularly the criminal record of Balaktaw. The court herein hled that the criminal record of Balaktaw cannot be considered as newly discovered evidence because it was available to the defense much prior to the trial of the case. Also, the fact that a person has been previously convicted for a crime does not necessarily disqualify him as a witness for he amy still prove to be a truthful one. The defense’s claim that the trial court also erred in not allowing the defense to prove that the deceased had a violent, quarrelsome or provocative character. While good or

bad moral character may be availed of as an aid to determine the probability or improbability of the commission of an offense, such is not necessary in a crime of murder where the killing is committed through treachery or premeditation. The proof of such character may only be allowed in homicide cases to show “that it has produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary.”
People v. Babiera, 52 Phil. 97 (19sep1928) 28871

Facts: Justo Babiera was the owner of two parcels of land who sold the land to Basilio Copreros with right of repurchase. The period for repurchase having expired, Basilio Copreros took possession of said two parcels of land, and on March 24, 1927, made application to the registrar of deeds for the Province of Iloilo for the registration of the consolidation of his title to said parcels. On the 26th of the said month, Basilio Copreros leased said parcels to Severino Haro. Because of this, Babiera sued Copreros for the recovery of the possession which was dismissed by the lower court. Babiera appealed but asked for its dismissal later then filed a complaint for recovery of property. Fermin Bruces who was Severino Haro's copartner on shares in said lands, while tilling the land, was constantly harassed by Justo Babiera accompanied by his copartner on shares, Rosendo Paycol. On August 21, 1927, when Severino Haro and his companions were returning to the town of Oton, and upon their coming near Rosendo Paycol's house, in which were Clemente Babiera, his father Justo Babiera, and his mistress Dominga Bores, said Severino Haro had an encounter with Clemente Babiera in which Severino Haro received several wounds in consequence of which he died a week later in Saint Paul's Hospital of Iloilo. Held: Examined in the light of the ordinary conduct of men, Severino Haro's alleged attitude, in having tried to take Clemente Babiera's cow after having agreed to accept P2 for the damages, and having ordered that the animal be returned to its owner, is highly illogical, and not a scintilla of evidence has been presented to explain this change of determination, as unexpected as it is unreasonable. With respect to the allegation that Margarito Mediavilla and Severino Haro began the attack, inasmuch as it has not been proved that they were the instigators, it cannot be conceived that they committed said unlawful aggression, for he who has no reason to provoke, has no reason to attack unlawfully. The defense also attempted to prove that Severino Haro was of a quarrelsome disposition, provoking, irascible, and fond of starting quarrels in the municipality of Oton, but the trial judge would not permit it. While it is true that when the defense of the accused is that he acted in self-defense, he may prove the deceased to have been of a quarrelsome, provoking and irascible disposition, the proof must be of his general reputation in the community and not of isolated and specific acts (Underhill Criminal Evidence, par. 325, p.570), such as the accused Clemente Babiera tried to prove, and hence the lower court did not err in not admitting such proof. But even if it had been proved by competent evidence that the deceased was of such a disposition, nevertheless, it would not have been sufficient to overthrow the conclusive proof that it was the said accused who treacherously attacked the deceased.
US v. Mercado, 26 Phil. 127 (13nov1913) L-8332

Facts: These defendants were charged with the crime of coaccion in the Court of First Instance of the Province of Bulacan. During the trial, the prosecution asked the witness for the defense how many times was he convicted of assault upon other persons. To this question, the defendant Tomas Mercado objected on the ground that the question was impertinent. Mr. Lloret explained the purpose of his question by saying that he wish to demonstrate that he (witnessdefendant) has a pugnacious (aggressive) disposition.

Upon the question and the objection Judge Barretto ruled that "the character of the witness has an intimate relation or may have a strong relation with the facts being investigated in the present cause. The objection was overruled." The defendants were convicted of the crime charged of which decision, the defendants appealed. Issue: Whether or not the trial court erred in overruling the objection of the accused to the private prosecutor's question referring to the character of the witness. Held: Generally speaking, a witness cannot be impeached by the party against whom he has been called, except by showing: 1. that he has made contradictory statements: or 2. by showing that his general reputation for the truth, honesty, or integrity is bad. The question to which the defendant objected neither attempted to show that the witness had made contradictory statements nor that his general reputation for truth, honesty, or integrity was bad. While you cannot impeach the credibility of a witness, except by showing that he has made contradictory statements or that his general reputation for truth, honesty, or integrity is bad, yet, nevertheless, you may show by an examination of the witness himself or from the record of the judgment, that he has been convicted of a high crime. (Sec. 342, Act No. 190.) In the present case, the other offense to which the question above related was not a high crime, as that term is generally used, and we assume that the phrase "high crime," as used in section 342, is used in its ordinary signification. High crimes are generally defined as such immoral and unlawful acts as are nearly allied and equal in guilt to felonies. We believe that the objection to the above question was properly interposed and should have been sustained. The question now arises, did the admission of the question prejudice the rights of the defendants? If there was proof enough adduced during the trial of the cause, excluding the particular proof brought out by this question to show that the defendants are guilty of the crime. then the question and answer and the ruling of the court upon the same did not affect prejudicially the interests of the defendants. Errors committed by the trial court, which are not prejudicial to the rights of the parties, should be disregarded by the court. In our opinion the evidence clearly shows that the witness committed the assault to which reference is made in the complaint in the present cause. Whether he had committed other assaults or not was a matter of no importance in the present action. The admission or rejection, therefore, of the proof to which such question related could in no way prejudice the rights of the defendants.
People vs Lee, 32SCRA596 (29may2002)139070

Facts: At 9:00 in the evening of September 29, 1996, Herminia Marquez and her son, Joseph, were in the living room of their house. The living room was brightly lit by a circular fluorescent lamp in the ceiling. Outside their house was an alley leading to General Evangelista Street. The alley was bright and bustling with people and activity. There were women sewing garments on one side and on the other was a store catering to customers. In their living room, mother and son were watching a basketball game on television. Herminia was seated on an armchair and the television set was to her left. Across her, Joseph sat on a sofa against the wall and window of their house and the television was to his right. Herminia looked away from the game and casually glanced at her son. To her complete surprise, she saw a hand holding a gun coming out of the open window behind Joseph. She looked up and saw accused-appellant Noel Lee peering through the window and holding the gun aimed at Joseph. Before she could warn him, Joseph turned his body towards the window, and simultaneously, appellant fired his gun hitting Joseph’s head. Joseph slumped on the sofa. Herminia stood up but could not move as accused-appellant fired a second shot at Joseph and three (3) shots more— two hit the sofa and one hit the cement floor. When no more shots were fired, Herminia ran to the window and saw accused-appellant, in a blue sando, flee towards the direction of his house. Herminia turned to her son, dragged his body to the door and shouted for help. With the aid of her neighbor and kumpare, Herminia brought Joseph to the MCU Hospital where he later died.

Held: In the instant case, proof of the bad moral character of the victim is irrelevant to determine the probability or improbability of his killing. Accusedappellant has not alleged that the victim was the aggressor or that the killing was made in self-defense. There is no connection between the deceased’s drug addiction and thievery with his violent death in the hands of accused-appellant. In light of the positive eyewitness testimony, the claim that because of the victim’s bad character he could have been killed by any one of those from whom he had stolen from is pure and simple speculation. Moreover, proof of the victim’s bad moral character is not necessary in cases of murder committed with treachery and premeditation. In People v. Soliman, a murder case, the defense tried to prove the violent, quarrelsome or provocative character of the deceased. Upon objection of the prosecution, the trial court disallowed the same. The Supreme Court held: "x x x While good or bad moral character may be availed of as an aid to determine the probability or improbability of the commission of an offense (Section 15, Rule 123), such is not necessary in the crime of murder where the killing is committed through treachery or premeditation. The proof of such character may only be allowed in homicide cases to show "that it has produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary (Moran, Comments on the Rules of Court, 1952 ed., Vol. 3, p. 126). This rule does not apply to cases of murder." In the case at bar, accused-appellant is charged with murder committed through treachery and evident premeditation. The evidence shows that there was treachery. Joseph was sitting in his living room watching television when accused-appellant peeped through the window and, without any warning, shot him twice in the head. There was no opportunity at all for the victim to defend himself or retaliate against his attacker.

O.Hearsay Rule 1. Testimonial Knowledge a. Rule 130, §36
Sec. 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. (30 a)

b. Cases
People v. Damaso, 212 SCRA 547 (1992)

Hearsay evidence, whether objected to or not, cannot be given credence. The lack of objection may make any incompetent evidence admissible. But admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to or not has no probative value.
People v. Brioso, 37 SCRA 336 (30jan1971) L-28482

Facts: On 23 December 1966, between 8 and 9 in the evening, the spouses Silvino Daria and Susana Tumalip were in their house at barrio Tiker, Tayum, Abra. The husband was making rope in the annex of their house, while the wife, four meters away, and was applying candle wax to a flat iron. Silvino Daria was using a lamp where he worked. Outside, the night was bright because of the moon overhead. Cecilia Bernal, a niece and neighbor of the spouses, was alarmed by the barking of dogs. She peeped through a crack in the wall of her house and saw appellants herein pass southward in the direction of the house Silvino Daria that was six meters away. Brioso was carrying a long gun. Her suspicions awakened, she went downstairs and, shielded by the fence, witnessed each appellant point a gun at the bamboo wall of Daria's house. Two detonations followed, and thereafter she heard Daria moaning and his wife call for help, saying her husband had been shot. Bernal went to the house and found the victim prostrate, wounded and unable to speak. The widow, however, testified that right after

being shot, she rushed to her husband's side and he told her that he was shot by Juan Brioso and Mariano Taeza. Silvino Daria expired one hour later as a result of gunshot wounds in the abdomen and leg. A few days later, Cecilia Bernal and the widow, Susana Tumalip, executed affidavits pointing to the two accused as the killers (Exibits "B" and "C," respectively). Held: We find no discrepancy in the testimony of Cecilia Bernal on the material points. Moreover, the testimony of Cecilia Bernal finds corroboration in the declaration of the victim, who told his wife that it was Juan Brioso and Mariano Taeza who shot him. This statement does satisfy the requirements of an ante mortem statement. Judged by the nature and extent of his wounds, Silvino Daria must have realized the seriousness of his condition, and it can be safely inferred that he made the same under the consciousness of impending death, considering that he died only one hour after being shot.
People v. Cusi, 14 SCRA 944 (14aug1965) L-20986

Facts: In Criminal Case No. 6813 of the Court of First Instance of Davao, Arcadio Puesca, Walter Apa, Jose Gustilo, Filomeno Macalinao, Ricardo Dairo, and Magno Montano were charged with robbery in band with homicide, to which they pleaded not guilty. During the trial, and while Sgt. Lucio Bano of the Police Force of Digos, Davao was testifying as a prosecution witness regarding the extrajudicial confession made to him by the accused Arcadio Puesca, he said that the latter, aside from admitting his participation in the commission of the offense charged, revealed that other persons conspired with him to to commit the offense, mentioning the name of each and everyone of them. Following up this testimony, the prosecuting officer asked the witness to mention in court the names of Puesca's alleged co-conspirators. Counsel for the accused Macalinao, Gustilo and Dairo objected to this, upon the ground that whatever the witness would say would be hearsay as far as his clients were concerned. The respondent judge resolved the objection directing the witness to answer the question but without mentioning or giving the names of the accused who had interposed the objection. In other words, the witness was allowed to answer the question and name his co-conspirators except those who had raised the objection. The prosecuting officer's motion for reconsideration of this ruling was denied. Hence the present petition for certiorari praying that the abovementioned ruling of the respondent judge be declared erroneous and for a further order directing said respondent judge to allow witness Bano to answer the question in full. Held: The question involved herein is purely one of evidence. There is no question that hearsay evidence, if timely objected to, may not be admitted. But while the testimony of a witness regarding a statement made by another person, if intended to establish the truth of the facts asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement (People vs. Lew Yon, 97 Cal. 224; VI Wigmore 177-8). In the present case, the purpose of the prosecuting officer, as manifested by him in the discussions below, is nothing more than to establish the fact that the accused Puesca had mentioned to Sgt. Bano the names of those who conspired with him to commit the offense charged, without claiming that Puesca's statement or the answer to be given by Sgt. Bano would be competent and admissible evidence to show that the persons so named really conspired with Puesca. For this limited purpose, we believe that the question propounded to the witness was proper and the latter should have been allowed to answer it in full, with the understanding, however, that his answer shall not to be taken as competent evidence to show that the persons named really and actually conspired with Puesca and later took part in the commission of the offense. On the other hand, the fact which the prosecuting officer intended to establish would seem to be relevant to explain why the police force of the place where the offense was committed subsequently questioned and investigated the persons allegedly named by Puesca.
People v. Gaddi, 170 SCRA 649 (27feb1989) 74065

Facts: At about 5pm of December 11, 1981 Ernesto Guzman saw appellant Nerio Gaddi and the victim Augusto Esguerra drinking gin. In the morning of the following day,

appellant told Ernesto Guzman that he killed his drinking partner Augusto Esguerra and dumped his body in a toilet pit. Guzman advised appellant to surrender to the police. After work, Guzman went to the police and reported what appellant told him. At around 2:00 o'clock in the afternoon of the same day, Corporal Rogelio Castillo and Detective Rodrigo Salamat arrested appellant. Appellant told Corporal Castillo that he killed the victim and where he buried the body. Later, Pat. Jesus Patriarca arrived. Appellant himself led the policeman and Barangay residents to where the body was in a toilet pit in the backyard of Ernesto Guzman. The policeman, with the help of the Barangay residents, dug out the body. The body of the victim was Identified by Ernesto Guzman, his wife, and Jose Esguerra, victim's brother. Pat. Patriarca took pictures of the body, noted the statements of Ernesto Guzman and Jose Esguerra, and took down the confession of appellant. Later, the cadaver was subjected to autopsy. A man's T-shirt with collar, colored yellow, red and blue, and red shorts, were recovered from the pit where the body of the victim was dug out. The T-shirt and shorts were identified by Ernesto Guzman as those worn by appellant while he was drinking with the victim on December 11, 1981. A small table, rubber slipper, bottle of wine and glass were likewise recovered from the same pit. Defense version: Gaddi was asked by Guzman to buy gin. That it was Guzman who confessed the killing to him but Guzman told the police that it was Gaddi who killed Esguerra. Held: Where the conviction of an accused is based merely on circumstantial evidence, as in this case, it is essential for the validity of such conviction that: 1) there be more than one circumstance; 2) the facts from which the inferences are derived are proven; and 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Although no general rule has been formulated as to the quantity of circumstantial evidence which will suffice for any case, yet all that is required is that the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty and at the same time inconsistent with any other hypothesis except that of guilty. In the case at bar, the circumstantial evidence adduced by the prosecution sufficiently satisfies the quantum of proof necessary to uphold a judgment of conviction. The following circumstances proven by the prosecution indubitably point to the accused as the perpetrator of the crime committed against Augusto Esguerra. 1. The fact that said victim was last seen on the day he was killed in the company of the accused, drinking gin at the back of the house of Ernesto Guzman. 2. The fact that on the day after the drinking spree, the accused himself admitted to Ernesto Guzman that he stabbed his drinking companion and that the latter was 'nadisgrasya niya" so he dumped the body of the victim in a hole being dug out for a toilet, located at the yard of Ernesto Guzman 3. The fact that when he was turned over to Pat. Arturo Angeles and Pat. Rogelio Castillo of the Northern Police District by the barangay people who apprehended him, be admitted the truth of the charge of the barangay residents that he killed someone and that he dumped the body of the victim in a place being dug out as an improvised toilet . At the time the barangay people started digging for the body of the victim, the appellant was even instructing them as to the exact location where the body was buried 4. The fact that the place where be led the police officers and the barangay residents, i.e. the toilet pit in the backyard of Ernesto Guzman, was indeed the site where he buried the victim as the body of the victim was found there after the digging. 5. The fact that the T-shirt and shorts which the accused was wearing during the drinking spree were later recovered from the place where the victim was buried. Appellant however disputes the trial court's reliance on the testimonies of the prosecution witnesses as a basis for his conviction. As a rule, the trial court's assessment

of the credibility of the prosecution witnesses is entitled to great weight and respect since it has the advantage of observing the demeanor of a witness while on the witness stand and therefore can discern if such witness is telling the truth or not. Moreover, appellant's claim that Ernesto Guzman's testimony on Gaddi's confession of the crime to him cannot be given credence for being hearsay is unavailing. This Tribunal had previously declared that a confession constitutes evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience. Here, when Guzman testified that the appellant, who probably was bothered by his conscience, admitted the killing to him, there was no violation of the hearsay rule as Guzman was testifying to a fact which he knows of his own personal knowledge; that is, he was testifying to the fact that the appellant told him that he stabbed Augusta Esguerra and not to the truth of the appellant's statement. The trial court found no reason to doubt Guzman's credibility as a witness considering his stature in the community as a member of a religious movement participating in such activities as "mañanita" and procession of the Fatima and Black Rosary [Rollo, p. 30.] In fact, on the day the killing took place, he left his house where appellant and his companion, Esguerra were still drinking and went to the house of Junior Isla to attend a "mañanita" and participate in the weekly activity of bringing down the crucifix and the image of the Fatima.
Leake v. Hagert, 175 N.W.2d 675 (1970)

Facts: Leake and Hagert were engaged in a collision on Highway 3. It resulted in the damage of Hagert’s car and Leake’s plow. The accident occurred at around 6:45 pm. Hagert hit the rear of Leake’s tractor which was towing his plow. Leake claimed that it was Hagert’s negligence which caused the accident while Hagert claims that because of the absence of lights and rear reflectors, she could not see Leake’s tractor and plow. During trial, evidence was adduced and different testimonies of persons were presented. One such testimony was that of Edward Gross, an adjuster who investigated the scene of the accident. He stated in his testimony that while he was making his investigation, he talked to Leake’s son, who told him that the lens in the small light had been missing from its frame for some time prior to the accident. Leake’s contended that such statement was hearsay. Issue: WON said statement was indeed hearsay Held: Yes. Allen Leake contends that whether or not the red lens was out at the time of the accident is a material question of fact, determinative as to the contributory negligence by Allen Leake. Leake’s son did not testify in the present action; he was not a party to the action; his statement was not made under oath; his statement was not subject to crossexamination; and he was not available as a witness at the time of trial because he was in the army and overseas. We find that it was error for the trial court to admit into evidence the testimony concerning what Leake’s son said to Edward Gross; the son’s statements were hearsay and should have been excluded.
U.S. v. Zenni, 492 F. Supp. 464 (1980)

Facts: While conducting a search of the premises of defendant Zenni, Ruby Humphrey, pursuant to a lawful search warrant which authorized a search for evidence of bookmaking activity, government agents answered the telephone several times. The unknown callers stated directions for the placing of bets on various sporting events. The government proposes to introduce this evidence to show that the callers believed that the premises were used in betting operations. The existence of such belief tends to prove that they were so used. The defendants object on the ground of hearsay. Issue: WON the utterances of the unknown callers fall within the operation of the hearsay rule, and thus inadmissible Held: The utterances were not within the operation of the hearsay rule.

The Federal Rules of Evidence state that: Rule 801. “(a) Statement. – A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion. (c) Hearsay. ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trail or hearing, offered in evidence to prove the truth of the matter asserted. Rule 802. “Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.’ Assertion is not defined in the rules, but has the connotation of a forceful or positive declaration. The effect of the definition of ‘statement’ is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one. Conclusion: The utterances of the bettors telephoning in their bets were nonassertive verbal conduct, offered as relevant for an implied assertion to be inferred from them, namely, that bets could be placed at the premises being telephoned. The language is not an assertion on its face, and it is obvious these persons did not intend to make an assertion about the fact sought to be proved or anything else. As an implied assertion, the proferred evidence is expressly excluded from the operation of the hearsay rule by Rule 801 of the federal Rules of Evidence, and the objection thereto must be overruled.
Estrada vs Desierto 356 SCRA 108 (03apr2001) 146710-15

Facts: The Supreme Court, in a prior decision, used the Angara Diary (“AD”) to establish Estrada’s intent to resign. Issue: Does the use of the AD violate the rule against the admission of hearsay evidence? Held:No. The AD is not an out of court statement. The AD is part of the pleadings in the cases at bar. Estrada (E) cannot complain he was not furnished a copy of the AD. Nor can he feign surprise on its use. To be sure, the said diary was frequently referred to by the parties in their pleadings. E had all the opportunity to contest the use of the diary but unfortunately failed to do so. Even assuming arguendo that the AD was an out of court statement, still its use is not covered by the hearsay rule. The rules of exclusion do not cover admissions of a party and the AD belongs to this class. Although the AD is not the diary of E, E is bound by it, in accordance with the doctrine of adoptive admission. Sec. Angara acted for and in behalf of E in the crucial days before Pres. Arroyo took her oath as President. Admissions of an agent (Secretary Angara) are binding on the principal (E). Moreover, the ban on hearsay evidence does not cover independently relevant statements. It was also an admission against interest, which could be considered an exception to the hearsay rule. The AD contains statements of E which reflect his state of mind and are circumstantial evidence of his intent to resign. BOSS JOEL: this is a weird decision. Why did the SC talk about hearsay, res actos inter alia, and other rules of evidence when there was neither trial nor hearing held? It should be noted that the Rules on Evidence will only apply when there is a trial or a hearing. (Sec2, Rule128) When the SC relied on the “admission against interest rule” they effectively excluded any chance that the best evidence rule and the hearsay rule could be applied. Thus, if there would be objections on the ground of best evidence and/or hearsay, these would be overruled because the basis for the offer of the AD is admission against interest. Besides, objections based on best evidence would not be possible because there was no document presented.

2. Exceptions

Exceptions to the hearsay rule .1 waiver .2 independently relevant evidence .3 dying declaration .4 Declaration against interest .5 Act or declaration about pedigree .6 Family reputation or tradition regarding pedigree .7 Common reputation .8 Part of the res gestae .9 Verbal acts .10 Entries in the course of business .11 Entries in official records .12 Commercial lists and the like .13 Learned treatises .14 Testimony or deposition at a former proceeding

a. Dying Declaration 1) Rule 130, §37

Sec. 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. (31 a) Requisites for admissibility of a dying declaration .1 declaration of a dying person .2 made under the consciousness of an impending death .3 his death is the subject of inquiry .4 as evidence of the cause and surrounding circumstances of such death

2) Cases
People v. Devaras, 37 SCRA 697 (1971)

Facts: The next morning after being stabbed or 11 hours later, as the victim was about to be taken to the hospital, a patrolman was able to get his statement as to the identity of the perpetrators. The victim was unable to sign the statement and he died the next day. Held: The statement was not part of the res gestae because of the lapse of considerable time between the commission of the offense and the taking of the statement. However, the statement amounts to a dying declaration, as it is a statement coming from a seriously wounded person even if death occurs hours or days after it was inflicted if there be showing that it was due to the wound whose gravity did not diminish from the time he made his declaration until the end came. There is no need for proof that the declarant state "that he has given up the hope of life.” It is enough if. from the circumstances, it can be inferred with certainty that such must have been his state of mind. It is sufficient that the circumstances are such as to lead inevitably to the conclusion that the time [of such statement] the declarant did not expect to survive the injury from which he actually died. Its admissibility is not affected by death occurring hours or days afterwards.
People v. Laquinon, 135 SCRA 91 (28feb1985) L-45470 

Facts: Pablo Remonde was shot. The barrio captain found him lying on the sand at the bank of a river. Pablo’s hands were tied on his back and he was lying face down. The barrio captain took Pablo’s ante-mortem statement and learned that he was Pablo Remonde, he was shot by Gregorio Laquinon, and that Pablo was not sure if he would survive the gunshot wounds he suffered. Pablo died in the hospital 3 days later. Laquinon was charged and convicted of Murder. Laquinon argues that the statement is not a dying declaration because it was not made under the consciousness of an impending death. Held: The statement of the deceased Pablo Remonde is not admissible as a dying declaration since the deceased was in doubt as to whether he would die or not. The declaration fails to show that the deceased believed himself in extremis, at the point of death when every hope of recovery is extinct, which is the sole basis for admitting this

kind of declarations as an exception to the hearsay rule. It may be admitted, however, as part of the res gestae since the statement was made immediately after the incident and the deceased Pablo Remonde had no sufficient time to concoct a charge against the accused. de Leon: In Devaras, consciousness of impending death was inferred from the extent of the injuries. In Laquinon, the declarant expressly said that he was not sure that we was going to die. The moral of the story is, in taking a dying declaration, don’t ask if the declarant thinks he will die.  Facts: People's version of the case is as follows: On November 13, 1972, at about 11:30 o'clock in the evening, Samama Buat, barrio captain of Clib, Hagonoy, Davao del Sur, was at his residence in barrio Clib. In a short while he heard gunshots coming from the bank of a river some three hundred meters to the south of his house. Then, his brother, Leocario Buat, arrived and told him that a man was shouting for help at the bank of the river. Samama Buat told his brother to call the barrio councilman. Thereafter, he proceeded to the place where the unidentified man was. His brother, Leocario and the barrio councilman also arrived there. Samama Buat found the man lying on the sand and asked who he was. The man answered, "I am Pablo Remonde." Remonde's two hands were tied on his back. He was lying face down. Samama Buat then took the "ante mortem" statement of Pablo Remonde. He asked him who he was to which he answered that he was Pablo Remonde. Samama Buat asked "who shot you" and Remonde said that it was Gregorio Laquinon. He asked Pablo Remonde whether from the gunshot wounds he suffered he would survive to which the victim answered "I do not know." After that, barrio captain Buat went to the municipality of Hagonoy and reported to Vice Mayor Antonio Biran the shooting of Pablo Remonde. Vice Mayor Biran went to the scene of the incident and asked the victim who shot him to which the latter answered that he was shot by Gregorio Laquinon. Pablo Remonde was placed on a jeep of the Vice Mayor and brought to the hospital. Pablo Remonde was admitted to the Canos Hospital in Digos, Davao del Sur where he was attended to by Dr. Alfonso Llanos. Dr. Llanos performed an operation on the victim from whose body a slug was recovered. Pablo Remonde died in the hospital on November 16, 1972 because of bullet wounds. The accused Gregorio Laquinon denied having killed the deceased. The trial court summarized his defense, as follows: In his defense, the accused declared that he was a KM member; that he was ordered by one Noli Cabardo, then their CO, to fetch Pablo Remonde; he requested one Cristino Nerosa to go with him, and matter of factly, they brought Remonde to the place where said CO Cabardo with ten companions, was waiting at the riverbank; that before reaching the place, Nerosa separated from him and he alone brought Remonde to Cabardo. There Cabardo confronted Remonde why, having been commanded to buy some provisions in Matanao, he (Remonde) never returned; to which Remonde answered that he spent the money 'in drinking and gambling; when upon Cabardo got mad and as Remonde attempted to escape, he (witness) heard a shot which must have been fired by Cabardo as he was holding a .38 Cal. revolver; that he (witness) also had that evening a Cal. 22 paltik; that after the shot he saw Remonde sprawled on the ground, and then Cabardo ordered them to go to the mountain as in fact they did; that two days later during the day, their mountain camp was raided by the PC and Cabardo and two others were killed while he (witness) was able to escape and went to Magpet, North Cotabato, and engaged in farming therein with his relatives; but believing that as a KM member he 'committed something,' he surrendered to the Davao PC Barracks in May, 1975 (Exhibit '2'), where up to now he is being confined. Issue: May the Statements of Remonde be admissible as a dying declaration. Held: The dying declaration of the deceased Pablo Remonde is not admissible as an ante-mortem declaration since the deceased was in doubt as to whether he would die or not. The declaration fails to show that the deceased believed himself in extremist, "at

the point of death when every hope of recovery is extinct, which is the sole basis for admitting this kind of declarations as an exception to the hearsay rule." It may be admitted, however, as part of the res gestae since the statement was made immediately after the incident and the deceased Pablo Remonde had no sufficient time to concoct a charge against the accused. Indeed, the Court cannot believe that CO Cabardo did the killing as related by the accused for the following reasons: First, when the deceased was allegedly delivered to CO Cabardo, he was already handtied at his back, that the place of the shooting was "covered by thick bushes and beside the river", and that CO Cabardo was with ten men excluding the accused; under these circumstances, it is hard to believe that the deceased, with all those overwhelming handicap, would attempt to flee. Second, if the deceased truly tried to flee, the logical thing he would do would be to flee away from and not towards Cabardo; in doing the former he would turn to his right or to his left or towards his back; if he fled to his left or right, or towards his back, he would be exposing one side of his body, or his back, and when fired upon in that position he would have been hit on one side of the body or at his back. The evidence — as testified to by Dr. Llanos — however, shows that the deceased had only one wound a gunshot wound, in the abdomen; this shows he was fired upon frontally, the bullet going through and through the intestines and lodged, presumably in the bony portions of his back, that is why the slug (Exhibit "B") was recovered. The accused's version, therefore, that the deceased tried to flee is hard to believe for being against the physical facts.
People v. Sabio, 102 SCRA 218 (27jan1981) L-26193 

Facts: Catalino Espina was found by his grandnephew in his house lying and wounded. Espina asked for the police. When police officers arrived, they asked Espina “who slashed and robbed” him. Espina answered that it was Sabio. His declaration was taken down and thumbmarked by him. Sabio was charged and convicted of robbery with homicide. Sabio questions the admissibility of the declaration on the ground that it was not made under the consciousness of an impending death because the victim had hopes of recovery for his first word to his grandnephew was for the latter to fetch the police. Held: Statement is admissible. The seriousness of the injury on the victim's forehead which had affected the brain and was profusely bleeding; the victim's inability to speak unless his head was raised; the spontaneous answer of the victim that "only Papu Sabio is responsible for my death"; and his subsequent demise from the direct effects of the wound on his forehead, strengthen the conclusion that the victim must have known that his end was inevitable. That death did not ensue till 3 days after the declaration was made will not alter its probative force since it is not indispensable that a declarant expires immediately thereafter. It is the belief in impending death and not the rapid succession of death, that renders the dying declaration admissible. The fact that the victim told his grandnephew to fetch the police, does not negative the victim's feeling of hopelessness of recovery but rather emphasizes the realization that he had so little time to disclose his assailant to the authorities. However, only homicide was proved. The evidence supportive of the charge of robbery is at best circumstantial and does not establish beyond reasonable doubt that the accused had carried away personality belonging to the offended party. There was no eyewitness to the alleged robbery, nor was any part of the alleged missing objects recovered. The consummation of the robbery cannot he inferred nor presumed from the circumstance that the accused was seen running "with his hands inside his shirt", or that the "barro", alleged to have contained cash amounting to about P8, was seen on the floor, open and empty, or that the things and merchandise inside the house were in disarray. Nor can the dying declaration of the victim be admitted to establish the fact of robbery. The admission of dying declarations has always been strictly limited to criminal prosecutions for homicide or murder as evidence of the cause and surrounding circumstances of death. de Leon: Could not have the statement been admissible as proof of Sabio’s guilt of robbery as a part of the res gestae?

Facts: The 13-year old accused was charged with Robbery with Homicide for the death of Catalino Espina, an octogenarian, owner of a small sari-sari store located in his house, who, in the early morning of October 5, 1965, was found on the second floor of his dwelling wounded on the forehead, from which injury he died three days later. The merchandise in his store was in a state of disarray and the tin can containing the cash sales in the amount of P8.00 was found empty. The accused was positively identified by JESUSA BIRONDO, a neighbor of the victim who saw him running from the scene of the incident that fateful morning. CAMILO SEMILLA saw the accused ran pass him about six meters away towards his (accused’s) house at about 5am while waiting for someone to help him carry his banca to the shore. The victim in his ante-mortem statement taken by the police in the presence of the victim's grandnephew also identified him. The accused was found guilty as charged, with the attendant aggravating circumstances or disregard of respect due to the 80-year old victim and recidivism, and without any mitigating circumstances. He was sentenced to death but in view of his youth, the trial Court recommended that the penalty be commuted to reclusion perpetua. Issue: Whether or not the dying declaration of the victim may be used to prove the crime of Robbery. Held: The dying declaration of the victim which points to the accused as the one slashed and robbed him cannot be admitted to establish the factor of robbery. The admission of dying declarations has always been strictly limited to criminal prosecutions for homicide or murder as evidence of the cause and surrounding circumstances of death. The arguments advanced are unavailing. The defense questions the admissibility of Exhibit "A" of the prosecution as an antemortem statement arguing that there is no evidence showing that when the declaration was uttered the declarant was under a consciousness of an impending death; that, in fact, the victim had hopes of recovery or his first word to Camilo Semilla was for the latter to fetch the police. Defense counsel argues further that there are doubts as to when said Exhibit "A" was thumb-marked because, although it was already in existence in the morning of October 5, 1965, as alleged by Patrolman Fuentes, the accused was never confronted with the document when he was taken in to custody by the police for the first time from the morning of October 5 to October 6, 1965, thereby implying that the document did not yet exist at that time. The seriousness of the injury on the victim's forehead which had affected the brain; his inability to speak until his head was raised; the spontaneous answer of the victim that "only Papu Sabio is responsible for my death"; and his subsequent demise from the direct effects of the wound on his forehead, strengthen the conclusion that the victim must have known that his end was inevitable. The death did not ensue till three days after the declaration was made will not alter its probative force since it is not indispensable that declarant expires immediately thereafter. It is the belief in impending death and not the rapid succession of death, in point of fact, that renders the dying declarations admissible. Further, the fact that the victim told his grandnephew Camilo Semilla to fetch the police, does not negative the victim's feeling of hopelessness of recovery but rather emphasizes the realization that he had so little time to disclose his assailant to the authorities. The mere failure of the police to confront the accused with the antemortem declaration the first time the latter was arrested and incarcerated from, neither militates against the fact of its execution considering that it was evidence that the police was under no compulsion to disclose.
People v. de Joya, 203 SCRA 343 (1991)

Facts: Eulalia Deamse was fatally wounded. Her grandson, Alvin Valencia, came home and found her wounded. He asked his grandmother "Apo, Apo, what happened?" The deceased victim said: "Si Paqui". After uttering those two words, she expired. It is not disputed that "Paqui" is the nickname of Pioquinto de Joya. De Joya was charged and convicted of robbery with homicide. Held: A dying declaration to be admissible must be complete in itself. To be complete in itself does not mean that the declarant must recite everything that constituted the res

gestae of the subject of his statement, but that his statement of any given fact should be a full expression of all that he intended to say as conveying his meaning in respect of such fact. The statement as offered must not be merely a part of the whole as it was expressed by the declarant; it must be complete as far it goes. It is immaterial how much of the whole affair of the death is related, provided the statement includes all that the declarant wished or intended to include in it. Thus, if an interruption cuts short a statement which thus remains clearly less than that which the dying person wished to make, the fragmentary statement is not receivable, because the intended whole is not there, and the whole might be of a very different effect from that of the fragment; yet if the dying person finishes the statement he wishes to make, it is no objection that he has told only a portion of what he might have been able to tell. Since the declarant was prevented from saying all that he wished to say, what he did say might have been qualified by the statements which he was prevented from making. That incomplete declaration is not therefore entitled to the presumption of truthfulness which constitutes the basis upon which dying declarations are received. In this case, the dying declaration of the deceased victim here was incomplete. The words "Si Paqui" do not constitute by themselves a sensible sentence. The phrase "Si Paqui" must, moreover, be related to the question asked by Alvin: "Apo, Apo, what happened?" Alvin's question was not: "Apo, Apo, who did this to you?" The deceased was cut off by death before she could convey a complete or sensible communication to Alvin. The trial court simply assumed that by uttering the words "Si Paqui", the deceased had intended to name her killer. But Eulalia herself did not say so and we cannot speculate what the rest of her communication might have been had death not interrupted her. We are unable to regard the dying statement as a dying declaration naming the appellant as the doer of the bloody deed. Escolin: Justices Relova and Francisco and I disagree with this decision. Under the context, what else could have “Si Paqui” meant other than that he was responsible for the crime?
People v. Salison, G.R. No. L-115690, Feb. 20, 1996

Facts: At around 8PM 30Nov1990, witness Maria Magdalena Ayola saw appellant Salison approach the victim, Rolando Valmoria, who was then watching television in a store. Salison placed his arm around Valmoria's shoulder and brought him behind a neighbor's house where there was a mango tree. There, appellant Salison boxed Valmoria in the abdomen. During the fistfight between Salison and Valmoria, the three other accused Andiente, Dignaran and Fediles suddenly appeared and joined the fight and simultaneously attacked Valmoria. It was then when witness Emilia Fernandez approached them that the three co-accused disappeared, leaving Salison and Valmoria behind. Fernandez was able to separate Salison from Valmoria. However, the three co-accused returned and started to maul Valmoria again, with Salison rejoining the three in assaulting the victim. When Valmoria fought back, accused Salison, Fediles and Andiente picked up pieces of wood and started to hit Valmoria at the back on his nape, and on the rear part of his head, Valmoria fell to the ground and, upon finding a chance to do so, he stood up and ran towards his house which was a few meters away. The assailants followed Valmoria but failed to further hit the victim because Valmoria was able to hide inside his house. During this time, the victim remained seated inside the house. Shortly thereafter, Valmoria started to complain of dizziness and pain in his head which was bleeding at that time. Consequently, at the request of Valmoria, his parents accompanied him to the house of witness Patricia Alcoseba, the purok leader. The victim asked Alcoseba to write down his declaration regarding the incident explaining that if he should die and no witness would testify, his written declaration could be utilized as evidence. After making that declaration in the house of witness Alcoseba, Valmoria and his parents proceeded to the hospital. Subsequently, the victim was allowed to go home. However, at 4:00 o'clock the following morning, he started to convulse and was rushed to the hospital. After three days there, Valmoria died.

Issue: May the statement of the victim be admitted as a dying declaration? Held: What further strengthens the case of the prosecution was the declaration of Valmoria, made and signed by him right after the incident, as to who were responsible for the injuries he sustained. Appellant, however, maintains that said written statement, which was reduced into writing by witness Patricia Alcoseba and purporting to be a dying declaration, is inadmissible as evidence since it was in the Cebuano regional language and was not accompanied with a translation in English or Pilipino. The appellant further contends that the declaration was not made under the consciousness of an impending death. The records do not disclose that the defense offered any objection to the admission of the declaration. Thus, the defense waived whatever infirmity the document had at the time of its submission as evidence. The declaration can be translated into English or Pilipino as it is already admitted in evidence and forms part of the record. As earlier narrated, at the time the deceased made the declaration he was in great pain. He expressed a belief on his imminent death and the hope that his declaration could be used as evidence regarding the circumstances thereof. A person would not say so if he believes he would recover and be able to testify against his assailants. At all events, assuming that declaration is not admissible as a dying declaration, it is still admissible as part of the res gestae, since it was made shortly after the startling incident and, under the circumstances, the victim had no opportunity to contrive.

b. Declaration Against Interest 1) Rule 130, §38
Sec. 38. Declaration against interest. – The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons. (32 a) Requirements for hearsay testimony on declaration against interest .1 declaration made by a person deceased, or unable to testify .2 against the interest of the declarant .3 the fact asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true .4 as evidence against himself or his successors in interest and against third persons cf Rule 130 Sec. 31
Sec. 31. Admission by privies. – Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. (211)

Admission by privies One of 3 exceptions to res inter alios acta Evidence against the successor in interest of the admitter Admitter need not be dead or unable to testify Relates to title to property Admission need not be against the admitter’s interest

Declaration against interest Exception to hearsay Evidence against even the declarant, his successor in interest, or 3rd persons Declarant is dead or unable to testify Relates to any interest Declaration must be against the interest of the declarant

2) Cases

Viacrusis v. CA, 44 SCRA 176 (1972)

Previous recognition of ownership in another by a party in possession of property in dispute is admission against interest which may be received even against 3rd persons. Facts: It appears that the land of about 4 hectares involved in this case is part of a bigger lot of about 14.6303 hectares, covered Title in the name of Pedro Sanchez; that, on June 8, 1936, Sanchez executed the deed, Exhibit B, selling said lot of 14.6303 hectares to Anastacio Orais; that said Exhibit B was, on 1936, filed with the RD, and recorded in the memorandum of incumbrances of Homestead OCT No. 243; that, on July 7, 1941, or about 5 yrs later Sanchez executed another deed, Exhibit 10, conveying the disputed portion, of four (4) hectares to Balentin Ruizo who, in turn, sold it, on 1945, to Guillermo Viacrucis (Exhibit II); that, on January 12, 1959, Anastacio Orais — who claimed to have made oral demands — formally demanded from Viacrucis that he vacate said portion and surrender its possession to him (Orais) that this demand was not heeded by Viacrucis who, instead, executed, on March 19, 1959, the deed, Exhibit 9, confirming the sale of said portion, allegedly made by him, on January 12, 1954, in favor of his brother-in-law Claros Marquez; and that the deeds of sale, Exhibits 10, 11 and 9, in favor of Ruizo, Viacrucis and Marquez, respectively, have not been registered in the Office of the Register of Deeds of Leyte. The trial court rendered a decision, in favor of the plaintiffs therein — respondent herein. On appeal taken by Mr. and Mrs. Viacrucis and Mr. and Mrs. Marquez, said decision, against them and in favor of Mr. and Mrs. Orais, was affirmed by the Court of Appeals. Issue: Whether or not there was admission by silence on the part of Orais. Held: It should be noted, however, that said testimony of Mrs. Castelo and this recognition by the now deceased Pelagio Castelo — which were confirmed by the public document Exh. G — constitute a declaration of Mr. and Mrs. Castelo adverse to their interest, which is admissible in evidence, pursuant to section 32 of said Rule 130. Petitioners have no reason whatsoever to object to the consideration in favor of Orais of said admission, the same having been made in 1936, more than five (5) years before their (petitioners) predecessor in interest, Balentin Ruizo, had entered into the picture, when Orais and Castelo were the only parties who had any interest in the object of said admission. Pursuant to said legal provision, such admission "may be received in evidence," not only against the party who made it "or his successors in interest," but, also, "against third persons." As regards the alleged failure of Orais to say anything when the bank refused to accept OCT No. 243 as collateral for the loan applied for by Orais, upon the ground that the land covered by said certificate of title was not his property, there is no competent evidence on whether or not Orais had said anything in response to said statement. Moreover, OCT No. 243 was in the name of Pedro Sanchez, and no matter how real the sale by the latter to Orais may be, the bank would not accept the land in question as security for said loan, unless and until OCT No. 243 shall have been cancelled and a transfer certificate of title issued to Orais. This, however, could not take place before the filing of his loan application, because the owner's duplicate of said certificate of title — admittedly delivered by Sanchez to Orais — had been lost in the possession of the latter's counsel, to whom he (Orais) had turned it over in connection with a given criminal case.
People v. Toledo, 51 Phil. 825 (1928)

Declaration against interest, as an exception to the hearsay rule, covers not only pecuniary interest, but also penal interest. Facts: Sisenando Holgado and Filomeno Morales had disputes about the occupation of certain land situated in the municipality of Pinamalayan, Province of Mindoro. On the morning of June 15, 1927, the two men happened to meet. The argument was renewed, and they agreed to fight. They did engage in a bolo duel with a fatal result for Filomeno Morales, who was killed almost instantly. Sisenando Holgado was also seriously wounded but was able to proceed to a neighboring house. From there Sisenando Holgado was taken to the municipal building where he made a sworn statement before the municipal

president, in which he declared that only he and Filomeno Morales fought. About one month later, Sisenando Holgado died from the wounds received in the fight. The prosecution and the defense alike agree on the facts above outlined. The disputable point is whether the accused Eugenio Toledo intervened in the quarrel and dealt a mortal blow to Filomeno Morales. For the prosecution, there was presented the witness Justina Villanueva, the querida of Filomeno Morales, who testified to the presence and participation of Eugenio Toledo. Her testimony was partially corroborated by that of the witness Justina Llave. On the other hand, the theory for the defense was that Toledo was in another place when the fight between Morales and Holgado occurred and that his only participation was on meeting Holgado, who was his landlord or master, in helping him to a nearby house. To this effect is the testimony of the accused and of Conrado Holgado, the son of Sisenando Holgado. The defense also relied upon the affidavit of Sisenando Holgado, Exhibit 1, which was identified by the municipal president of Pinamalayan. Issue: Whether or not the verified declaration of Holgado was a statement of fact against penal interest. Held: It is held that error was committed in not admitting the verified declaration of H as the statement of a fact against penal interest. One exception concerns the admission of dying declarations. Another exception permits the reception, under certain circumstances, of declarations of third parties made contrary to their own pecuniary or proprietary interest. But by a large preponderance of authority in the United States, the declarations of a person other than accused confessing or tending to show that he committed the crime are not competent for accused on account of the hearsay doctrine. The general rule rejecting evidence of confessions of third parties made out of court intended to exonerate the accused, examined in the light of its history and policy, and found to be unjustified. It should not be received in the Philippine jurisdiction where the principles of the common law have never been followed blindly. A study of the authorities discloses that even if given application they are not controlling, for here the fact is that the declarant is deceased and his statements were made under oath, while they read in such a way as to ring with the truth. Exhibit 1 should have been admitted in evidence as a part of the res gestae for it was made by H on the same morning that the fight occurred and without the interval of sufficient time for reflection. The declaration fulfilled the test of the facts talking through the party and not the party talking about the facts. The modern tendency is toward the extension of the rule admitting spontaneous declarations to meet the needs of justice when other evidence of the same fact cannot be procured.
People v. Majuri, 96 SCRA 472 (1980)

Facts: At or about 1PM of 28Jan1972, the accused was at the seashore of Calarian relaxing since he has just arrived from Jolo, Sulu that particular day. At that time, he was already running away from the authorities because he is an escapee from San Ramon Prison and Penal Farm. Later on, the accused proceeded to his father's house which is just near the seashore, Upon reaching the house, he saw Nori Mohamad (Majuri’s common law wife?) but he had no time to talk to her because immediately after seeing him, Nori ran away, going to the direction of the street. Armed with the bolo which he had been carrying, he chased after Nori and he caught up with her at the street where he started stabbing her with the bolo, hitting her on the different parts of the body. When he saw Nori fell down on the street badly wounded, he hurriedly left the place and ran towards the far end of Calarian. On April 19, 1972, Airol Aling was charged with parricide. Then, the accused was placed on the witness stand and examined by his counsel. He admitted that he killed his wife. He declared that after he was informed by his counsel

that the penalty for parricide is death or life imprisonment, he, nevertheless, admitted the killing of his wife because that was the truth. In answer to the question of the fiscal, the accused said that he understood that by pleading guilty he could be sentenced to death or reclusion perpetua because he was an escaped convict. Issue: Whether or not the marriage was not absolutely proved. Held: Counsel de oficio assigned to present the side of the accused in this review, contends that the marriage of Airol to Norija was not absolutely proven. That contention cannot be sustained. The testimony of the accused that he was married to the deceased was an admission against his penal interest. It was a confirmation of the maxim semper praesumitur matrimonio and the presumption "that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage" (Sec. 5[bbl, Rule 131, Rules of Court). He and the deceased had five children. He alluded in his testimony to his father-in-law. That implies that the deceased was his lawful wife. The fact that he bitterly resented her infidelity. Her failure to visit him in prison and her neglect of their children are other circumstances confirmatory of their marital status.
Fuentes v. CA, 253 SCRA 430 (1996)

Facts: At 4AM 24Jun1989 Julieto Malaspina together with Godofredo Llames, Honorio Osok and Alberto Toling, was at a benefit dance at Dump Site, Tudela, Trento, Agusan del Sur. Petitioner called Malaspina and placed his right arm on the shoulder of the latter saying, "Before, I saw you with a long hair but now you have a short hair." Suddenly petitioner stabbed Malaspina in the abdomen with a hunting knife. Malaspina fell to the ground and his companions rushed to his side. Petitioner fled. Before the victim succumbed to the gaping wound on his abdomen he muttered that Alejandro Fuentes, Jr., stabbed him. Dr. Porfirio L. Salubre, the Rural Health Physician who autopsied the cadaver of Julieto Malaspina on 24 July 1989, reported that death was due to "stab wound at left lumbar region 1-1/2 in. in length with extracavitation of the small and large intestines." Petitioner claims on the other hand that it was his cousin Zoilo Fuentes, Jr., alias "Jonie" who knifed Malaspina; that when the victim was killed he was conversing with him; that he was compelled to run away when he heard that somebody with a bolo and spear would "kill all those from San Isidro" because "Jonie," the killer, was from that place; that since he was also from San Isidro he sought refuge in his brother's house where he met "Jonie;" that "Jonie" admitted spontaneously that he stabbed Malaspina because after a boxing match before the latter untied his gloves and punched him; that as there were many persons milling around the house "Jonie" jumped out and escaped through the window; that he was arrested at eight o'clock in the morning of 24Jun1989 while he was in a store in the barangay. The RTC of Prosperidad, Agusan del Sur, found petitioner guilty. CA affirmed the judgment. Held: One of the recognized exceptions to the hearsay rule is that pertaining to declarations made against interest. The admissibility in evidence of such declaration is grounded on necessity and trustworthiness. There are three (3) essential requisites for the admissibility of a declaration against interest: (a) the declarant must not be available to testify; (b) the declaration must concern a fact cognizable by the declarant; and (c) the circumstances must render it improbable that a motive to falsify existed. But more importantly, the far weightier reason why the admission against penal interest cannot be accepted in the instant case is that the declarant is not "unable to testify." There is no showing that Zoilo is either dead, mentally incapacitated or physically incompetent which Sec. 38 obviously contemplates. His mere absence from the jurisdiction does not make him ipso facto unavailable under this rule. For it is incumbent upon the defense to produce each and every piece of evidence that can break the

prosecution and assure the acquittal of the accused. Other than the gratuitous statements of accused-appellant and his uncle to the effect that Zoilo admitted having killed Malaspina, the records show that the defense did not exert any serious effort to produce Zoilo as a witness. Lest we be misunderstood, the Court is always for the admission of evidence that would let an innocent declaration of guilt by the real culprit. But this can be open to abuse, as when the extrajudicial statement is not even authenticated thus increasing the probability of its fabrication; it is made to persons who have every reason to lie and falsify; and it is not altogether clear that the declarant himself is unable to testify. Thus, for this case at least, exclusion is the prudent recourse.

c. Pedigree 1) Rule 130, §39
Sec. 39. Act or declaration about pedigree. – The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. (33 a) Requisites for admissibility of hearsay evidence as to pedigree .1 act or declaration of a person deceased, or unable to testify .2 in respect to the pedigree of another person .3 related to him by birth or marriage .4 where it occurred before the controversy .5 the relationship between the 2 persons is shown by evidence other than such act or declaration. "Pedigree" – includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, the names of the relatives, and facts of family history intimately connected with pedigree.

2) Cases
Gravador v. Mamigo, 20 SCRA 742 (1967) 

Facts: The petitioner Pedro Gravador was the principal of the Sta. Catalina Elementary School on 15Aug1964 when he was advised by the then, Superintendent of Schools Angel Salazar, Jr., of his separation from the service on the ground that he had reached the compulsory retirement age of 65. A few days later the respondent Eutiquio Mamigo was designated teacher-in-charge of the said elementary school. On 31Aug1964 the petitioner wrote the Director of Public Schools, protesting his forced retirement on the ground that the date of his birth is not 26Nov1897 but 11Dec1901. Attached to his letter was the affidavit of Lazaro Bandoquillo and Pedro A. Sienes, in which these two affiants declared that they knew that the petitioner "was born on 11Dec1901, in the Municipality of Amlan formerly known as New Ayuquitan Province of Negros Oriental, Philippines" because, "we were the neighbors of the late spouses, NEPOMUCENO GRAVADOR and AGUEDA REGOROSA [petitioner's parents], and we were present when said PEDRO GRAVADOR was born; furthermore, we were also invited during the baptismal party a few weeks after the birth of said PEDRO GRAVADOR." On 13Apr1965 he filed this suit for quo warranto, mandamus and damages in the Court of First Instance of Negros Oriental. The trial court concluded that the petitioner was born on 11Dec1901 accordingly granted his petition. Immediate execution was ordered, as a result of which the petitioner was reinstated. The respondents appealed directly to this Court.

Held: It is our considered view that the lower court correctly relied upon the post-war records, for three cogent reasons. In the first place, as Moran states, although a person can have no personal knowledge of the date of his birth, he may testify as to his age as he had learned it from his parents and relatives and his testimony in such case is an assertion of a family tradition. Indeed, even in his application for back pay which he filed with the Department of Finance, through the Office of the Superintendent of Schools, on 07Oct1948, the petitioner stated that the date of his birth is 11Dec1901. He repeated the same assertion in 1956 and again in 1960 when he asked the GSIS and the Civil Service Commission to correct the date of his birth to 11Dec1901. In the second place, the import of the declaration of the petitioner's brother, contained in a verified pleading in a cadastral case way back in 1924, to the effect that the petitioner was then 23 years old, can not be ignored. Made ante litem motam by a deceased relative, this statement is at once a declaration regarding pedigree within the intendment and meaning of section 33 of Rule 130 of the Rules of Court. Thus, 11Dec1901 is established as the date of birth of the petitioner not only by evidence of family tradition but also by the declaration ante litem motam of a deceased relative. Finally, the patties are agreed that the petitioner has a brother, Constantino, who was born on 10Jun1898 and who retired on 10Jun1963 with full retirement pay. The petitioner then could not have been born earlier than Constantino, say in 1897 as pre-war records indicate, because Constantino is admittedly older than he.
Tison v. CA, 276 SCRA 582 (1997)

Facts: The present appellate review involves an action for reconveyance filed by herein petitioners against herein private respondent before the RTC over a parcel of land with a house and apartment thereon located at San Francisco del Monte, Quezon City and which was originally owned by the spouses Martin Guerrero and Teodora Dezoller Guerrero. It appears that petitioners Corazon Tison and Rene Dezoller are the niece and nephew, respectively, of the deceased Teodora Dezoller Guerrero who is the sister of petitioner's father, Hermogenes Dezoller. Teodora Dezoller Guerrero died on 05Mar1983 without any ascendant or descendant, and was survived only by her husband, Martin Guerrero, and herein petitioners. Petitioners' father, Hermogenes, died on 03Oct1973, hence they seek to inherit from Teodora Dezoller Guerrero by right of representation. The records reveal that upon the death of Teodora Dezoller Guerrero, her surviving spouse, Martin, executed an Affidavit of Extrajudicial Settlement adjudicating unto himself, allegedly as sole heir, the land in dispute which is covered by TCT #66886, as a consequence of which TCT #358074 was issued in the name of Martin Guerrero. On 02Jan1988, Martin Guerrero sold the lot to herein private respondent Teodora Domingo and thereafter, a TCT was issued in the latter's name. Martin Guerrero died on 25Oct1988. Subsequently, herein petitioners filed an action for reconveyance on 02Nov1988, claiming that they are entitled to inherit one-half of the property in question by right of representation. During the hearing, petitioner Corazon Dezoller Tison was presented as the lone witness, with the following documentary evidence offered to prove petitioners' filiation to their father and their aunt, to wit: a family picture; baptismal certificates of Teodora and Hermogenes Dezoller; certificates of destroyed records of birth of Teodora Dezoller and Hermogenes Dezoller; death certificates of Hermogenes Dezoller and Teodora Dezoller Guerrero; certification of destroyed records of live birth of Corazon and Rene Dezoller; joint affidavits of Pablo Verzosa and Meliton Sitjar attesting to the parents, date and place of birth of Corazon and Rene Dezoller; joint affidavit of Juliana Cariaga and Manuela Cariaga attesting to the fact of marriage between Martin Guerrero and Teodora Dezoller; and the marriage certificate of Martin and Teodora Guerrero. Petitioners thereafter rested their case and submitted a written offer of these exhibits to which a Comment was filed by herein private respondent.

Subsequently, private respondent filed a Demurrer to Plaintiff's Evidence on the ground that petitioners failed to prove their legitimate filiation with the deceased Teodora Guerrero in accordance with Article 172 of the Family Code. On 03Dec1992, the RTC issued an order granting the demurrer to evidence and dismissing the complaint for reconveyance. In upholding the dismissal, respondent CA declared that the documentary evidence presented by herein petitioners, such as the baptismal certificates, family picture, and joint affidavits are all inadmissible and insufficient to prove and establish filiation. Hence, this appeal. Held: Petitioners' evidence, as earlier explained, consists mainly of the testimony of Corazon Dezoller Tison, the baptismal, death and marriage certificates, the various certifications from the civil registrar, a family picture, and several joint affidavits executed by third persons all of which she identified and explained in the course and as part of her testimony. The primary proof to be considered in ascertaining the relationship between the parties concerned is the testimony of Corazon Dezoller Tison to the effect that Teodora Dezoller Guerrero in her lifetime, or sometime in 1946, categorically declared that the former is Teodora's niece. Such a statement is considered a declaration about pedigree which is admissible, as an exception to the hearsay rule, under Section 39, Rule 130 of the Rules of Court, subject to the following conditions: (1) that the declarant is dead or unable to testify; (2) that the declarant be related to the person whose pedigree is the subject of inquiry; (3) that such relationship be shown by evidence other than the declaration; and (4) that the declaration was made ante litem motam, that is, not only before the commencement of the suit involving the subject matter of the declaration, but before any controversy has arisen thereon. There is no dispute with respect to the first, second and fourth elements. What remains for analysis is the third element, that is, whether or not the other documents offered in evidence sufficiently corroborated the declaration made by Teodora Dezoller Guerrero in her lifetime regarding the pedigree of petitioner Corazon Dezoller Tison or, if at all, it is necessary to present evidence other than such declaration. The general rule, therefore, is that where the party claiming seeks recovery against a relative common to both claimant and declarant, but not from the declarant himself or the declarant's estate, the relationship of the declarant to the common relative may not be proved by the declaration itself. There must be some independent proof of this fact. As an exception, the requirement that there be other proof than the declarations of the declarant as to the relationship, does not apply where it is sought to reach the estate of the declarant himself and not merely to establish a right through his declarations to the property of some other member of the family. We are sufficiently convinced, and so hold, that the present case is one instance where the general requirement on evidence aliunde may be relaxed. Petitioners are claiming a right to part of the estate of the declarant herself. Conformably, the declaration made by Teodora Dezoller Guerrero that petitioner Corazon is her niece, is admissible and constitutes sufficient proof of such relationship, notwithstanding the fact that there was no other preliminary evidence thereof, the reason being such declaration is rendered competent by virtue of the necessity of receiving such evidence to avoid a failure of justice. More importantly, there is in the present case an absolute failure by all and sundry to refute that declaration made by the decedent. From the foregoing disquisitions, it may thus be safely concluded, on the sole basis of the decedent's declaration and without need for further proof thereof, that petitioners are the niece and nephew of Teodora Dezoller Guerrero. As held in one case, where the subject of the declaration is the declarant's own relationship to another person, it seems absurd to require, as a foundation for the admission of the declaration, proof of the very fact which the declaration is offered to establish. The preliminary proof would render the main evidence unnecessary. Applying the general rule in the present case would nonetheless produce the same result. For while the documentary evidence submitted by petitioners do not strictly

conform to the rules on their admissibility, we are however of the considered opinion that the same may be admitted by reason of private respondent's failure to interpose any timely objection thereto at the time they were being offered in evidence. It is elementary that an objection shall be made at the time when an alleged inadmissible document is offered in evidence, otherwise, the objection shall be treated as waived, since the right to object is merely a privilege which the party may waive.

d. Family Tradition 1) Rule 130, §40
Sec. 40. Family reputation or tradition regarding pedigree. – The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. (34 a) Requisites for admissibility of hearsay evidence as to family reputation or tradition regarding pedigree .1 reputation or tradition existing in a family .2 previous to the controversy .3 in respect to the pedigree of any one of its members .4 the witness testifying thereon be also a member of the family, either by consanguinity or affinity Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. de Leon: note that in family tradition, the declarant must be dead or unable to testify. In family reputation or tradition, there is not even a declarant to speak of; just a witness who was aware of an exiting family reputation or tradition.

2) Case
People v. Alegado, 201 SCRA 37 (1991)

Testimony of a witness and the witness’ grandfather as to the date of birth and age of the witness is evidence on family tradition which is admissible as an exception to hearsay. Facts: On April 14, 1988, at about 6:00 o'clock in the afternoon, complainant was playing at the Freedom Square inside the public market of San Carlos City when appellant, a 170-pound, 53 year old market watchman at the time, held her by the hand and took her upstairs to the second floor of the public market building which houses some government offices and which at the time was expectedly deserted. There, he told the complainant to hold his penis and jack it off. Thereafter, appellant ordered complainant to lie down, and when she refused he pushed her down on the floor. When complainant was lying flat on her back, appellant placed himself on top of her while she was still wearing her pedal pusher shorts and panty. So, appellant forced her to take off her pedal pushers and panty and thereupon he lay on top of her. Appellant then tried to insert his penis into her vagina but it did not penetrate fully before he ejaculated. Complainant bled a little. Thereafter, appellant gave complainant P 2.00 and left. Complainant stood up and went down the building but never told anybody about it because she was afraid the appellant would kill her. On April 20, 1988, at about 7:00 o'clock in the evening complainant was sitting at the Freedom Square when appellant approached her and told her to go with him upstairs to the second floor of the public market. Complainant refused but appellant shoved her towards the stairs, held her by the left arm, and brought her to the upper floor near the civic center. There, appellant succeeded in raping the complainant. Complainant felt some liquid oozing out from appellant's organ and into her being. And after appellant had withdrawn his sex organ, complainant discovered that her vagina

was bleeding. Appellant then stood up and told her not to tell anybody about it. Then appellant gave her P 2.00 and left. As appellant was going downstairs, he was seen by Patrolwoman Evangeline Alfaro, a member of the San Carlos City INP assigned at Precinct No. 1, a police outpost near the main entrance of the public market. Pat. Alfaro knew appellant well because he was the public market watchman at the time. A minute later, Pat. Alfaro saw complainant coming down the same. Pat. Alfaro noticed that complainant was pale, with blood flowing to her thighs and legs, and was reeling as if feeling dizzy. Pat. Alfaro approached complainant and asked what happened to her. Complainant answered that she was taken upstairs and raped by appellant. Immediately, Pat. Alfaro brought complainant to the city hospital where she was examined by Dr. Oscar Jagdon in the presence of two medical technologists. Dr. Jagdon confirmed the report that indeed complainant was raped. Thereafter, Pat. Alfaro reported the incident to the Station Guard by phone then took complainant to the police station after the medical examination. When they reached the station, appellant who had already been taken into custody was readily identified by complainant as the rapist. Complainant was then investigated and she rendered her statement to the police. Accused-appellant's version: Alibi; roamed around checking padlocks of stores then had a snack The accused-appellant contends that the offended party's actual age at the time of the alleged incidents of rape was not established with certainty, hence, it was error on the part of the trial court to convict the accused-appellant of statutory rape as defined and penalized under paragraph 3, Article 335 of the Revised Penal Code. Held: We are not persuaded. The testimonies of the prosecution witnesses, the offended party herself and her maternal grandfather, Cornelio Villarosa, as to the fact that the victim was born on September 5, 1976 do not constitute hearsay evidence as claimed by the accused-appellant but rather fall under the exceptions to the hearsay rule as provided under sections 39 and 40 of Rule 130 of the Revised Rules on Evidence. The word pedigree under Section 39 of the same Rule includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred and the names of the relatives. In the present case, the applicability of Rule 130, Section 39 of the Revised Rules on Evidence to prove the victim's age is beyond question. The said provision contains three requisites for its admissibility, namely: .1 that there is controversy in respect to the pedigree of any of the members of a family; .2 that the reputation or tradition of the pedigree of the person concerned existed previous to the controversy; and .3 that the witness testifying to the reputation or tradition regarding the pedigree of the person must be a member of the family of said person. All these preconditions are obtaining in the case at bar considering that the date of birth of the rape victim is being put in issue; that the declaration of the victim's grandfather relating to tradition (sending a child to school upon reaching the age of seven) existed long before the rape case was filed; and that the witness testifying to the said tradition is the maternal grandfather of the rape victim. Inasmuch as the accused-appellant failed to present contrary evidence to dispute the prosecution's claim that the victim in this case was below twelve (12) years old at the time of the rape incidents under consideration, we affirm the trial court's finding that the victim in these rape cases was under twelve years of age. It is axiomatic in rape cases that the slightest penetration of the female's private organ is sufficient to consummate the crime.
Ferrer v. de Inchausti, 38 Phil 905 (1918) 

Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, to be admissible as an evidence of pedigree, need NOT be proven to have been made at the same time as the occurrence of the events documented.

e. Common Reputation 1) Rule 130, §41
Sec. 41. Common reputation. – Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation. (35) Requisites for admissibility of hearsay evidence as to Common reputation .1 Common reputation .2 existing previous to the controversy .3 respecting either .a facts of public or general interest more than 30 years old, or .b marriage or .c moral character Monuments and inscriptions in public places may be received as evidence of common reputation.

2) Cases
City of Manila v. Del Rosario, 5 Phil 227 (1905)

Facts: This is an action to recover the possession of the two lots described in the complaint, located in Calles Clavel and Barcelona, district of Tondo, at present occupied by the defendant. Plaintiff introduced both documentary and oral evidence. The latter consisted of the testimony of John R. Wilson, Eduardo Timoteo, Juan Villegas, Sotera Roco, Lorenzo del Rosario, and Modesto Reyes, the city attorney. The first witness testified that he did not know of his own knowledge if the land in question belonged to the city (p. 11 of the bill of exceptions). The next witness testified that the land included in Calles Clavel and Barcelona was formerly part of Plaza Divisoria, which belonged to the Central Government (not the city), and that he did not know to whom it now belongs (pp. 12 and 13 of the bill of exceptions). It must be borne in mind that this witness referred to the land included in Calles Clavel and Barcelona, and not to the lots described in the complaint. These lots abut (be adjacent to) upon the streets referred to, but do not form a part of either. According to the complaint, they are building lots. The third witness, Juan Villegas, testified that the land in question was formerly included in the Gran Divisoria, and that all the land included in it belonged to the city. In this particular his testimony is at variance with that of the preceding witness, who testified that the land belonged to the Central Government. Villega's testimony was merely hearsay. It consisted of that he had learned from some of the oldest residents in that section of the city. His testimony was introduced by the plaintiff apparently for the purpose of proving that the city was generally considered the owner of the land, drawing from this fact the presumption of actual ownership under paragraph 11, section 334, of the Code of Civil Procedure. Held: Such testimony, however, does not constitute the "common reputation" referred to in the section mentioned. "Common reputation," as used in that section, is equivalent to universal reputation. The testimony of this witness is not sufficient to establish the presumption referred to. Furthermore, this witness stated that the land in Calle Azcarraga had been partitioned between the municipality and the Central Government, share and share alike, and that the Central Government (not the city) retained Calles Gabriel de Rivera and Barcelona, which are precisely the street on which the property abuts. Of these documents the most important of all is the petition presented by Lorenzo del Rosario to the "mayor of the city of Manila" on the 26th of September, 1891, and the letter written by him on the 9th of October, 1901, to the Municipal Board of Manila. Lorenzo del Rosario, in his testimony, admitted the authenticity of both documents which contain an offer to the municipality of Manila to purchase the land on Calle Clavel.

Lorenzo del Rosario admitted also that he signed the first document under the misapprehension that the land belonged to the city, but that he had been subsequently informed by some of the city officials that the land did not belong to the municipality, but to Cipriano Roco y Vera. He stated that he signed the second document because the President of the Municipal Board, Señor Herrera, advised him to do so in order to avoid litigation with the city. His testimony in this respect was not contradicted. We accordingly hold that the provisions of section 346 of the Code of Civil Procedure are applicable to the case at bar in so far as they declare that an offer of compromise is not admissible in evidence. In view of the foregoing, we hold that the defendant had a perfect right to ask for the dismissal of the case on the ground that the plaintiff had failed to establish the allegations in the complaint, and the court erred in overruling his motion to dismiss.

f. Res Gestae 1) Rule 130, §42
Sec. 42. Part of the res gestae. – Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. xxx Requisites for admissibility of hearsay evidence as to res gestae .1 Statements made by a person either .a while a startling occurrence is taking place or .b immediately prior or .c immediately subsequent thereto .2 with respect to the circumstances thereof

2) Cases
People v. Putian, 74 SCRA 133 (1976) 

A declaration made by a person immediately after being wounded, pointing out or naming his assailant, may be considered as part of the res gestae and is admissible in evidence. A statement was given sometime after the stabbing while the declarant was undergoing treatment at a medical clinic, where he had no time to concoct a falsehood or to fabricate a malicious charge against the accused and no motive has been shown as to why he would frame-up the accused would render the statement admissible as a part of the res gestae. Facts: Appellant admits that on 22Nov1969 while Teodulo Panimdim was attending a dance, he (Panimdim) was stabbed in the left groin. As a result of that assault, Panimdim died five days later at the provincial hospital. The question is: Did Putian stab Panimdim? According to the prosecution, in the evening of that day, while Patrolman Arturo Yap was passing Barrio Tabo-o, he noticed a commotion at the back of the dance hall in that barrio. He was informed that someone had been stabbed. He looked for the culprit. He found Guillermo Putian behind the municipal building with a dagger and scabbard in his possession. Yap investigated Putian. The latter denied that he stabbed Panimdim. Yap arrested Putian and surrendered him to Jesus Gomonit, the guard at the municipal hall. Patrolman Yap then repaired to the clinic of Doctor Saceda where the victim, Teodulo Panimdim, alias Doling, was brought for treatment. At the clinic, Yap wrote on a piece of paper the victim's declaration. When that statement was taken, Panimdim was in a sitting position. Without anybody's help, he put on his undershirt, pants and shirt. He went to his house without anyone's assistance. Yap explained that Panimdim mentioned only a person named Guirmo and that he, Yap, was the one who added the surname Putian in the statement Exhibit C. He clarified that he wrote that surname because he knew of no other person called Guirmo in that locality except Guirmo Putian, an alleged gambler.

Issue: Whether or not the statements given by Panimdim was part of res gestae. Held: The res gestae rule embraces (a) spontaneous exclamations and (b) verbal acts. The trial court admitted Panimdim's statement as a spontaneous statement made after the commission of a felony. Appellant Putian contends that Panimdim's statement was not spontaneous because it was "made several hours after the incident". He claims that the requisite that the declarant gave the statement before he had time to devise or contrive was not present in this case. Appellant further contends that because the statement is in narrative form, it is not the statement contemplated in the rule. We hold that the trial court did not err in characterizing Panimdim's statement as a part of the res gestae and as proving beyond reasonable doubt that Putian inflicted upon him the stab wound that caused his death five days later in the hospital. "Although a declaration does not appear to have been made by the declarant under the expectation of a sure and impending death, and, for the reason, is not admissible as a dying declaration, yet if such declaration was made at the time of, or immediately after, the commission of the crime, or at a time when the exciting influence of the startling occurrence still continued in the declarant's mind, it is admissible as a part of the res gestae." Panimdim's statement was given sometime after the stabbing while he was undergoing treatment at a medical clinic. He had no time to concoct a falsehood or to fabricate a malicious charge against Putian. No motive has been shown as to why he would frame up Putian.
People v. Peralta, 237 SCRA 218 (1994)

Facts: Atanacia Ramos had a daughter Rosita. Rosita married Domiciano Peralta. They had a daughter Siony. On morning, Siony came to Atanacia at her house frantically told her that Domiciano was strangling Rosita. They went to the Peralta home and found Rosita dead. Domiciano was not there. They immediately reported the matter to the police, who eventually arrested the Domiciano. At the preliminary investigation, Siony executed a sworn statement implicating her father. Domiciano was charged with Parricide. At the trial Atanacia testified as to Siony’s declaration. However, Siony testified for her father and said that though she saw someone strangling her mother, she did not see who it was. After the defense rested, the prosecution presented the investigating judge who testified as to the regularity of the conduct of the preliminary investigation. TC convicts. Held: The statement Siony made to her grandmother when she rushed to inform her of her father's attack on her mother was part of the res gestae. Res gestae means the "thing done." It refers to those exclamations and statements made by either the participants, victims or spectators to a crime immediately before, during or immediately after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement. Siony rushed to Atanacia immediately upon seeing her father strangling her mother to death. Her spontaneous declaration to Atanacia was part of the res gestae and is assumed to preclude the probability of premeditation of fabrication. Since the utterance was made under the immediate and uncontrolled domination of the senses rather than reason and reflection, and during the brief period when consideration of selfinterest could not have been fully brought to bear, the utterance may be taken as expressing Siony's real belief as to the facts just observed by her. Besides, where a witness executes a statement for the prosecution and retracts his testimony and subsequently testified for the defense, the test to decide which testimony to believe is one of comparison coupled with the application of the general rules of evidence. Retractions are generally unreliable and are looked upon with considerable disfavor by the courts. Siony testified during the preliminary examination conducted by Judge Paano that the appellant choked her mother to death. Her subsequent retraction was an afterthought and has no probative value at all.

Furthermore, there are certain circumstances that may have persuaded the daughter to change her former declaration and testify in favor of her father. First, the accused was her father after all, and she probably felt that she should not be responsible for his incarceration for the rest of his life. Second, her testimony was given 7 years after the incident and therefore could not be expected to be as accurate as the statement she made in the preliminary investigation only hours after the killing. Third, during all this time, her father had been under detention and she must have believed that this was punishment enough for him. Lastly, she was, at the time she testified in court, living with her father's sister, who may have greatly influenced her testimony and caused her to recant her earlier statement.

g. Verbal acts 1) Rule 130, §42
Sec. 42. Part of the res gestae. – xxx So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae (36 a) Requisites for admissibility of hearsay evidence as to verbal acts .1 statements accompanying an equivocal act .2 material to the issue .3 giving it a legal significance

2) Case
Dusepec v. Torres, 39 Phil 760 (1919)

Facts: Tan Po Pik died in the Philippines intestate. After he died, Marta Torres, claiming to be his widow, took possession of his estate and partitioned it between herself and her children by the deceased. Plaintiffs claim to be the legal wife and children of the deceased from China. They now sue to recover their supposed share of the estate. The SC found numerous inconsistencies as to the testimonial and documentary evidence of the plaintiffs as to lead to the conclusion that the plaintiffs are not who they claim to be. However, the plaintiff offered in evidence a sworn declaration of the deceased that the plaintiffs were his children. Defendants offered letters between the deceased and his brother showing that deceased’s sworn declaration was to deceive the customs authorities to allow plaintiffs to enter the country. Plaintiffs object to the admissibility of such letters. Held: The declaration was made in proceedings before customs authorities upon arrival of the plaintiffs from China. The arrival and admission of these plaintiffs and the declaration of Tan Po Pik are isolated parts of an event which is the voyage from China to the Philippines of these supposed children of the deceased. Their preparations for the voyage and the plans conceived by them to obtain their sure entrance into this country are also part of the voyage. In order to consider the declaration made by Tan Po Pik before the customs authorities, the other acts, declarations, and events occurring before the said entrance into the country, which may have an essential bearing or which have led to the realization of their entrance into the country are admissible in evidence in this case on the ground that they constitute parts of the same transaction, or of the res gestae. A word, an expression, or an act of a person, considered apart from the circumstances surrounding them, does not signify anything, and in many cases it signifies the opposite of the true sense of the said word, expression, or act. It is imprudent and illegal to consider the declaration made by Tan Po Pik before the customs authorities separately from the circumstances which prompted him to make such a declaration. We must therefore inquire into circumstances which surrounded the entrance of the plaintiffs and the declaration made by Tan Po Pik on that occasion. In this case, letters between Tan Po Pik and his brother in China contained an agreement that for plaintiffs to enter the Philippines, Tan Po Pik was to declare before the customs authorities that plaintiffs were his children. The names of the children whom Tan were supposed to declare as his children were the same as the names of the plaintiffs, except that they now bear the surname Tan. The letters even refer to one of the plaintiffs as the deceased’s nephew. If these plaintiffs were really children of Tan Po Pik, there would

have been no necessity for the above letters. Thus, Tan Po Pik’s declaration before the customs authorities is for the sole purpose of allowing the children to enter the Philippines, and such a declaration is entirely false. All these letters formed an essential part of the fact of the coming of these plaintiffs to Manila, because if these letters had not been transmitted and received the plaintiffs could not have succeeded in entering the Philippines. Therefore, all the statements and declarations-of Tan Po Ho in these documents relative to the prosecution of the object of the conspiracy are admissible in evidence.
People v. Lungayan, 162 SCRA 100 (1988) 

Facts: Complainant Agripina Juan Vda. de Garzota, then 52 years old and a widow, was asleep inside the room at their market stall located in the public market of barangay Oscariz, municipality of Ramon, Isabela, on the evening of 20Jan1980. With her were her two married daughters, his son-in-law and grandchildren. At about 10PM, the accused woke up the complainant to observe some people drinking at a stall in violation of the barangay ordinance prohibiting the same after 10:00 o'clock in the evening. So they went. They stood a few meters away from the said stall for ten minutes to observe the drinking session. Suddenly the accused held her hands which made the complainant shout but was not heard due to the loud music. The accused slapped her and brought out his gun which he pointed at her breast threatening to kill her if she creates any noise. The accused then pulled her and she fell on the ground hitting her head on the pavement so she lost consciousness, sustaining injuries on the palms of her hands. When she regained consciousness after a short while, she was dragged by the accused towards the banana grove near the market. She managed to stand and walk while being dragged. The accused then carried her body across the canal and dropped her on the ground causing her to fall flat on her belly and her fingers were again injured by the broken glasses on the ground. She could not free herself nor shout for help because of the threat to her life. After she fell flat on the ground, the accused held her and pressed her down and he proceeded to remove her skirt and shorts and thereafter her blouse leaving her exposed naked with her back to the ground. She was not wearing any panty or brassiere then. Besides pressing her down the accused stepped on her thigh with his left foot as he went on top of her naked body. Then he stood up warning her not to make any noise and he removed his pants and tee-shirt after which he again went on top of her naked body holding her hands. Pointing the gun at her breast anew, the accused repeated his threat to kill her if she resisted. Then the accused started mashing her breast and succeeded in having sexual congress with the complainant. She felt his penis penetrating her vagina followed by a push and pull movement for less than an hour, until she felt semen emitting from his penis and entering her body. When she reached home about 12:00 midnight, Silveria asked her what happened and she revealed that the accused abused her. When Silveria pressed for details, the complainant replied that she will tell her the following morning. The next morning complainant told Silveria everything that happened to her and thereafter she proceeded to Santiago town and reported the incident to Mr. Segundo Maylem, post commander and Executive Vice Chapter Commander, VFP Southern Isabela, from whom she sought assistance. She was advised to submit herself to an investigation and medical examination. After due investigation by the PC, a complaint for rape was filed signed and sworn to by complainant in the MTC against the accused. In appealing his conviction, the accused, through counsel assailed the credibility of complainant and interposed the defense of denial and alibi. However, by way of rebuttal of the People's brief filed by another collaborating counsel for appellant, the failure of the prosecution to establish involuntariness on the part of the victim was emphasized. Held: The appeal is impressed with merit.

Complainant was a widow, 52 years of age. She had been married three times. She was not that innocent about the world. When appellant invited her at 10PM to step out of her house, she should have declined. Going out alone with a man late in the evening is neither in good taste nor safe even if the one who invited her was the barrio captain. But obviously, the appellant was quite intimate with the complainant. When he knocked at her door and was allowed entry, he proceeded into the bedroom of complainant and woke her up himself. Complainant went with the appellant in her shorts. She took no precaution as any discreet woman would do by at least putting on her panty and a brassiere instead of stepping out with the appellant in her shorts. If she could not be heard as her voice was drowned by the blaring stereo player, she should have shouted louder again and again. Better still, she should have run towards the canteen which was just two meters away or to her residence which was one market stall away. After allegedly shouting once, she kept her peace. She was allegedly dragged although she admits she willingly walked along. She was allegedly carried across the canal by the appellant although she was taller and definitely bigger than appellant. When she fell on the ground, the appellant removed her shorts and skirt without difficulty. She offered no resistance. Even as he stood up to remove his pants she did not attempt to stand up to escape nor to shout for help. There was no sign of struggle or resistance. Then the appellant put his penis into her vagina penetrating her. They had sexual intercourse for almost one hour. She even felt the semen of appellant as it entered her body. Not a whimper, not a sound from the complainant was heard. She claims she was afraid due to the gun of appellant and his threats. She did not even describe the type of gun the appellant threatened her with several times. Nor had the prosecution shown appellant ever had a gun. All indications show that she submitted to his advances. As the Court sees it, what actually happened in this case, is that when the complainant went out with the appellant that evening, she was aware of the risk of going out alone with a man for a reason that is far from unavoidable. They were close and side by side for sometime, allegedly watching the drinking session at Linda's canteen. They must have succumbed to the temptation of the flesh. One thing led to the other until they had sexual intercourse. Perhaps the complainant did not initiate or motivate the sexual interlude. In the least, she must have abetted it if not willingly submitted to the advances of the appellant. Indeed, they were in ecstasy for almost one hour. Such mutual and passionate lovemaking can certainly not be characterized as involuntary. It was free and without any compulsion. The appellant was 48 years old when the incident happened. To think that a younger man would rape an elderly woman of 52 years, widow, three times married, would be quite unusual. It is more probable that it was consensual. The trial court considered the revelation of the complainant to her daughter Silveria of what happened to her when she returned home as part of the res gestae. It is important to stress that her statement must not only be spontaneous. It must also be made at a time when there was no opportunity for her to concoct or develop her own story. As the Court observed, the complainant did not immediately go home after the sexual encounter. She took a walk. She spent some time thinking of what to do. Her clothes were muddy. She had some bruises on her body and back because she was lying down on the ground during the sexual intercourse and their passionate interlude. She had enough time to make a decision on what will be the nature of her story. Her revelation cannot thus be categorized as part of the res gestae. WHEREFORE, the judgment appealed from is REVERSED AND SET ASIDE and another judgment is hereby rendered ACQUITTING the appellant of the offense charged, with costs de oficio.
People v. Tolentino, 218 SCRA 337 (1993) 

Facts: At around 7pm of 07Nov1983, Adelaida Lingad left her niece, Grace Paule and her three (3) children namely: Geraldine (Irene), Glenly and Enrique, all minors, at home to attend the wake of her uncle in a house 200 meters away from her place. The children were the only ones left at home. Her husband was then working abroad. At that time, Adelaida had P4,000.00 in cash which was wrapped in newspaper and kept hidden under her bed. Before leaving the house, Adelaida instructed the kids to go to bed. At around 1pm or 2pm of 08Nov1983, accused Tala, Tolentino, Matawaran and an unknown person whose face was covered entered the house of Adelaida Lingad by forcibly breaking the window grill of the comfort room and demanded to know from the children where their mother hid her money. Grace Paule knew Manolito Tolentino alias Bong because he is both an uncle and a barriomate. She also knew Carlito Tala alias Boy who is a relative of her mother and Rodolfo Matawaran who is a "barkada" of Carlito. She recognized all the accused for the lights were on. When the man whose face was covered threatened to stab the kids, Geraldine got so frighten that she revealed to the accused where her mother hid the money. After Tolentino took the P4,000.00, he stabbed Grace Paule and the children. During the stabbing incident, Grace Paule lost consciousness but was able to regain it back after about five (5) minutes and shouted for help. Her mother and grandmother, who lived nearby, heard her and immediately proceeded to said house but the four (4) accused had already left. When accused Tolentino's brother informed Adelaida about the stabbing incident that took place in her house, Adelaida immediately rushed to her house and saw all the children with stab wounds. Glenly was lying on the bed already dead while her bloodied niece Grace was sitting down near the door looking pale and holding her heart. Upon reaching Geraldine, who was lying at the porch, she asked her the identities of the person responsible for stabbing them with the latter answering "Bong-Bong" and also mentioning the names of Tala and Matawaran. However, when she asked her son Enrique the latter was not able to answer but merely made a sign with his three (3) fingers. Thereafter, Adelaida lost consciousness and was brought to the house of her mother. Grace Paule was the only surviving victim. Defense: Alibi, delivered water melons. Held: We find Grace's testimony credible. There is no evidence on record to show why said witness would falsely implicate the accused-appellant Tala who is a relative of her mother unless it is the truth. Moreover, her testimony was corroborated by prosecution witness Adelaida Lingad when the latter testified that her deceased daughter Geraldine mentioned the names of the accused-appellant Tala and accused Matawaran as the persons who stabbed her before she died. As to accused-appellant's contention that the statement of Geraldine, naming her assailant soon after she was stabbed is inadmissible as part of res gestae, We find said contention fallacious. The trial court had correctly applied the principle of res gestae, namely: (1) that the principal act, the res gestae, be a startling occurrence; (2) that the statements were made before the declarant had time to contrive or devise; and (3) that the statements made must concern the occurrence in question and its immediately attending circumstances which are all present in the case at bar as Geraldine had named accusedappellant as one of the perpetrators in the commission of the crime immediately after the occurrence of the stabbing incident.

h. Entries in the Course of Business 1) Rule 130, §43
Sec. 43. Entries in the course of business. – Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. (37 a)

Requisites for admissibility of hearsay evidence as to Entries in the course of business .1 Entries made at, or near the time of the transactions to which they refer .2 by a person deceased, or unable to testify .3 who was in a position to know the facts therein stated .4 if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. Note that in business records, the person making the entry must be deceased or unable to testify. In official records, the person making the entry need not be deceased or unable to testify (Rule 130, Sec. 44). Both official and business records are only prima facie evidence. If the person making the entry is still alive, use the record to refresh his memory. (Rule 132, Sec. 16)

2) Cases
Palmer v. Hoffman, 318 U.S. 109 (1943)

Facts: This case arose out of a grade crossing accident which occurred in Massachusetts. The accident occurred on the night of 25Dec1940. On 27Dec1940, the engineer of the train, who died before the trial, made a statement at a freight office of petitioners where he was interviewed by an assistant superintendent of the road and by a representative of the Massachusetts Public Utilities Commission. This statement was offered in evidence by petitioners under the Act of 20Jun1936. They offered to prove (in the language of the Act) that the statement was signed in the regular course of business, it being the regular course of such business to make such a statement. Respondent's objection to its introduction was sustained. Issue: Whether or not the statement made by the engineer was admissible as entries in the course of business. Held: We agree with the majority view below that it was properly excluded. We do not think that it was made 'in the regular course' of business within the meaning of the Act. The business of the petitioners is the railroad business. That business like other enterprises entails the keeping of numerous books and records essential to its conduct or useful in its efficient operation. Though such books and records were considered reliable and trustworthy for major decisions in the industrial and business world, their use in litigation was greatly circumscribed or hedged about by the hearsay rule-restrictions which greatly increased the time and cost of making the proof where those who made the records were numerous. An accident report may affect that business in the sense that it affords information on which the management may act. It is not, however, typical of entries made systematically or as a matter of routine to record events or occurrences, to reflect transactions with others, or to provide internal controls. The conduct of a business commonly entails the payment of tort claims incurred by the negligence of its employees. But the fact that a company makes a business out of recording its employees' versions of their accidents does not put those statements in the class of records made 'in the regular course' of the business within the meaning of the Act. In short, it is manifest that in this case those reports are not for the systematic conduct of the enterprise as a railroad business. Unlike payrolls, accounts receivable, accounts payable, bills of lading and the like these reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating, not in railroading.
Philamlife v. Capital Assurance Corp., (CA) 72 O.G. 3941

Facts: Philam entered into a Memorandum of Agreement with Capital Assurance and the Galang spouses. The Galangs were agents of Philam.

Under the agreement, Capital and the Galangs, jointly and severally, agreed to pay Philam a certain sum with interest in consideration of Philam’s issuance of a clearance in favor of the Galangs. The sum was paid in full by Capital Life. However, there appears to be a stipulation in the Agreement to the effect that Capital and the Galangs would pay to Philam any and all obligations of the Galangs arising from the unremitted premium collections and such other agency accounts. Pursuant to this, Philam wrote a letter to Capital informing it that the Galangs had collected premium payments from policy holders and failed to remit the same to it. Philam demanded payment therefore. The Galangs did not admit that such amount was due and so Capital refused to pay. Philam sued for collection of the additional amounts against Capital, the lone defendant. During the trial, Philam had but one witness, Narciso Bacani, the chief of its Accounts Control Office. He testified on a statement of account showing that the Galangs are indebted to Philam. He however, DID NOT HAVE PERSONAL KNOWLEDGE ABOUT HOW THE ACCOUNT HAD RISEN AS HIS OFFICE MERELY COMPUTED THE CHARGES BASED ON DEBIT MEMOS RECEIVED FROM OTHER DEPARTMENTS OF PHILAM. CFI ruled against Capital. Capital contends that Philam has not proven the alledged unremitted premium payments. It contests the admissibility of the said statement of account (SOA). Issue: WON the SOA is admissible. Held: No. The witness could have had knowledge of the entries made as it was his office which made such entries in the SOA, but certainly he did not have personal knowledge of the facts stated in the entries i.e., that the Galangs had collected premiums and failed to remit them since by his own admission, he merely computed the charges. Moreover, he is not a “person deceased, outside of the Phils, or unable to testify” so that the entries made could be received in evidence as an exception to the hearsay rule. Consequently, the testimony of the witness here is worthless as evidence and the SOA to which he testified is likewise bereft of probative value. The entries in question being so far removed from the exceptions to the hearsay rule, cannot and should not substitute for a witness’ personal knowledge of the transactions sought to be established. Complaint dismissed. Dissenting (justice de Castro): Testifying on the SOA, the witness stated without controversion that he prepared the same pursuant to his duties as a section chief of the account control office. As a matter of course, his section compiles and computes unremitted premium collections based on data received from the other departments. It is hard to see how the statement should be less trustworthy when the person who prepared it is available and did precisely testify on it. As for his knowledge of the facts stated in the entries, practical necessity makes it sufficient that he received the information in the regular course of business, when the person giving such information gave it in compliance with a duty. It is not essential that the entrant should have personal knowledge of the fact entered by him if he made the entry in the regular course of business, recording a report made to him by one or more other ersons in the regular course of business lying in the personal knowledge of the latter, there is no objection of receiving the entry provided that practical inconveniences of producing on the stand the numerous persons thus concerned would in the particular case outweigh the probable utility of doing so. The entrant may be said to have received the information on the regular course of business, when the person giving such information gave it in compliance with his duty.

i. Official Records 1) Rule 130, §44
Sec. 44. Entries in official records. – Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in

the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. (38) Requisites for admissibility of hearsay evidence as to Entries in official records .1 made in the performance of his duty .2 by either .a a public officer of the Philippines, or .b by a person in the performance of a duty specially enjoined by law Note that in official records, the person making the entry need not be deceased or unable to testify, but he must be a public officer or a person in the performance of a duty specially enjoined by law. In business records, the person making the entry must be deceased or unable to testify. Both official and business records are only prima facie evidence.

2) Cases
Fortus v. Novero, 23 SCRA 1330 (1968)

Facts: Ciriaca Angelo was the owner of the parcel of land. She had only one child, Crisanta Ilagan. Crisanta predeceased her mother. Crisanta was married to Fermin Fortus. They had an only son, the Victorino Fortus. Ciriaca died intestate. The property therefore passed on to Victorino Fortus. However, Victorino never caused the OCT to be cancelled and to have another issued in his name. Ciriaca’s estate was therefore not yet closed. Victorino Fortus and Julia Fortus were husband and wife but were childless. Upon Victorino's death, Julia executed an affidavit of extra-judicial summary settlement of Ciriaca’s estate and had it registered. Rosario Novero, claiming to be an illegitimate child of Victorino with Patricia Novero, initiated proceedings for summary settlement of Ciriaca’s estate. Julia opposed, along with the Fortuses, who claim to be Victorino’s halfbrother and sisters. They claim to be the legitimate children of Fermin Fortus with Jacoba Aguil. The Fortuses did not present the marriage contract or certificate of their alleged parents, but sought to present secondary evidence. The SC found the testimonial evidence the Fortuses presented to lay the basis for introduction of secondary evidence were inconsistent, incredible and insufficient to establish than an original marriage contract was indeed executed. However, the Fortuses presented baptismal certificates of some of them to prove the marriage of their parents. Note that they must prove marriage because otherwise, they would be illegitimate relatives of Victorino which would disqualify them from inheriting from him. Held: The record of baptism attests to the fact of the administration of the sacrament on the date stated therein, but not the truth of the statements therein made as to the parentage of the child baptized. Neither are the baptismal certificates public documents or public writings, because the parochial records of baptisms are not public or official records, as they are not kept by public officers, and are not proof of relationship or filiation of the child baptized. Furthermore, though the Fortuses invoke that since for the past 30 years their parents had deported themselves in public as husband and wife and had been living under the same roof, the legal presumption is that they had entered into a lawful marriage. This presumption, however, is only applicable where there is no clear and concrete evidence showing otherwise. In this case, however, there is a certificate from the Division of Archives to the effect that 'no copy of the marriage record of spouses Fermin Fortus and Jacoba Aguil supposed to have been solemnized in the year 1902 and 1905 in the Municipality of Rosario, Batangas had been received by said office for file', and this certification is further strengthened by the affirmation of Clemente Barbosa, a clerk in the office of the municipal treasurer of Rosario, Batangas, that there was no record of such marriage supposedly contracted between the spouses Fermin Fortus and Jacoba Aguil from 1902 and 1922 of the Municipality of Rosario, Batangas. At most, the baptismal certificates were only a prima facie proof which oppositor Julia Fortus had overcome by satisfactory evidence to the effect that Fermin Fortus and Jacoba Aguil

were never married and hence all of their children are not legitimate brothers or half brothers and therefore have no right to inherit from Victorino Fortus. Escolin: Before, baptismal certificates were competent evidence to establish the parentage of the child. After Act 3753, baptismal certificates were no longer competent.
Johnson v. Lutz, () Africa v. Caltex, 16 SCRA 448 (31mar1966) L-12986 

Facts: It appears that in the afternoon of 18Mar1948 a fire broke out at the Caltex service station at the corner of Antipolo street and Rizal Avenue, Manila. It started while gasoline was being hosed from a tank truck into the underground storage, right at the opening of the receiving tank where the nozzle of the hose was inserted. The fire spread to and burned several neighboring houses, including the personal properties and effects inside them. Their owners, among them petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the station and the second as its agent in charge of operation. Negligence on the part of both of them was attributed as the cause of the fire. 1. Police Department Report:"Investigation disclosed that at about 4PM 18Mar1948, while Leandro Flores was transferring gasoline from a tank truck, plate No. T-5292 into underground tank of the Caltex Gasoline Station located at the corner of Rizal Avenue and Antipolo Street, this City, an unknown Filipino lighted a cigarette and threw the burning match stick near the main valve of the said underground tank. Due to the gasoline fumes, fire suddenly blazed. Quick action of Leandio Flores in pulling off the gasoline hose connecting the truck with the underground tank prevented a terrific explosion. However, the flames scattered due to the hose from which the gasoline was spouting. It burned the truck and the following accessories, and residences." 2. The Fire Department Report:In connection with their allegation that the premises was (sic) subleased for the installation of a coca-cola and cigarette stand,) the complainants furnished this Office a copy of a photograph taken during the fire and which is submitted herewith. It appears in this picture that there is in the premises a coca-cola cooler and a rack which according to information gathered in the neighborhood contained cigarettes and matches, installed between the gasoline pumps and the underground tanks." The trial court and the Court of Appeals found that petitioners failed to prove negligence and that respondents had exercised due care in the premises and with respect to the supervision of their employees. Issue: Whether or not reports on the fire prepared by the Manila Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of the Philippines are admissible in evidence as entries in official records. Held: As to report of Detective Capacillo: There are three requisites for admissibility under the rule just mentioned: a. that the entry was made by a public officer, or by another person specially enjoined by law to do so; b. that it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and c. that the public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information. Of the three requisites just stated, only the last need be considered here. Obviously the material facts recited in the reports as to the cause and circumstances of the fire were not within the personal knowledge of the officers who conducted the investigation. Was knowledge of such facts, however, acquired by them through official information? As to

some facts the sources thereof are not even identified. Others are attributed to Leopoldo Medina, referred to as an employee at the gas station where the fire occurred; to Leandro Flores, driver of the tank truck from which gasoline was being transferred at the time to the underground tank of the station; and to respondent Mateo Boquiren, who could not, according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their statements as "official information acquired by the officers who prepared the reports, the persons who made the statements not only must have personal knowledge of the facts stated but must have the duty to give such statements for record. The reports in question do not constitute an exception to the hearsay rule: the facts stated therein were not acquired by the reporting officers through official information, not having been given by the informants pursuant to any duty to do so. The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine of res ipsa loquitur should apply so as to presume negligence on the part of appellees. Predicated on these circumstances and the further circumstance of defendant’s failure to explain the cause of the fire or to show its lack of knowledge of the cause, plaintiff has evoked the doctrine of res ipsa loquitur. There are many cases in which the doctrine may be successfully invoked and this, we think, is one of them. The gasoline station, with all its appliances, equipment and employees, was under the control of appellees. A fire occurred therein and spread to and burned the neighboring houses. The persons who knew or could have known how the fire started were appellees and their employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable inference that the incident happened because of want of care. As to report by Captain Leoncio Mariano: The foregoing report, having been submitted by a police officer in the performance of his duties on the basis of his own personal observation of the facts reported, may properly be considered as an exception to the hearsay rule. Those facts, descriptive of the location and objective circumstances surrounding the operation of the gasoline station in question, strengthen the presumption of negligence under the doctrine of res ipsa loquitur, since on their face they called for more stringent measures of caution than those which would satisfy the standard of due diligence under ordinary circumstances. There is no more eloquent demonstration of this than the statement of Leandro Flores before the police investigator. Flores was the driver of the gasoline tank wagon who, alone and without assistance, was transfering the contents thereof into the underground storage when the fire broke out. He said: "Before loading the underground tank there were no people, but while the loading was going on, there were people who went to drink coca-cola (at the coca-cola stand) which is about a meter from the hole leading to the underground tank." He added that when the tank was almost filled he went to the tank truck to close the valve, and while he had his back turned to the "manhole" he heard someone shout "fire." Decision reversed.
People v. Leones, 117 SCRA 382 (30sep1982) L-48727 

Facts: Complainant Irene Dulay was a salesgirl employed in the store of Mr. & Mrs. Pepito Leona at San Fernando, La Union where she resided. On 22Apr1973, the complainant who had headache stayed in her room. Earlier that day, the members of the Leones family, including the accused-appellant Joseph Leones and his sister Elizabeth, had gone to nearby beach resort for a picnic. At about past noon the appellant and Elizabeth returned to their house. While there, the appellant and Elizabeth entered the room where complainant was lying down and forced her to take three tablets dissolved in a spoon which according to them were aspirin. The complainant refused to take the tablets but was forced to do so when the appellant held her mouth while his sister pushed the medicine. Then the appellant and Elizabeth left the room and after a while the complainant felt dizzy.

Later, the appellant returned to the complainant's room and took off her panty. Then the appellant went on top of her. The complainant tried to push him but as she was weak and dizzy, the appellant succeeded in abusing her. At about 4:30 P.M. of the same date, Natividad Leones, the stepmother of the appellant, found the complainant unconscious near her room without any panty on. She was then taken to the La Union Provincial Hospital by the driver of the Leona family. When admitted to the hospital at about 6PM of the same date, the complainant was semiconscious, incoherent and hysterical. She refused to talk and to be examined by the doctors. She was irritated when approached by a male figure. The complainant was first attended to by Dr. Antonino Estioco who found out that she had vaginal bleeding. The complainant was then referred to Dr. Fe Cayao who was informed by Dr. Estioco that she might have been a victim of rape. In the presence of the complainant's father, Dr. Cayao examined her on 26Apr1973 after which she issued a medical certificate with the following findings: .1 Presence of erythema (redness of the skin) of the vestibular portion of external genitalia; .2 Healing lacerations of the hymen at 2:00 o'clock and 10 o'clock; .3 Easily admit one finger with pain; .4 Unclotted blood at the vagina cavity; .5 Smear exam for sperm cell-negative; D'plococci-negative Florence test-reagent not available.' Because of the lack of facilities in the hospital, Dr. Cayao was not able to make any examination to determine whether drug was given to the complainant. Defense: Alibi, at the beach. Held: The written entries in the clinical case record, Exh. "2", showing the date of her admission in the hospital on 22Apr1973, her complaint of vaginal bleeding and the diagnosis of "Healing lacerated wide at 2 o'clock and 10 o'clock hymen" are prima facie evidence of the facts therein stated, the said entries having been made in official records by a public officer of the Philippines in the performance of his duty especially enjoined by law, which is that of a physician in a government hospital. (Rule 130, Sec. 38, Rules of Court). In the case at bar, Dr. Antonino Estioco was the admitting physician but unfortunately, he was not presented as a witness for the government. Since there was found laceration, wide, at 2 o'clock and 10 o'clock of the hymen which was then already healing on 22Apr1973, it follows reasonably that the defloration occurred several days before, which may have happened when Irene Dulay took a weeklong vacation to her hometown in Pugo, La Union (tsn, p. 10, June 27, 1975) and there is evidence that she had a suitor named Ferdinand Sarmiento who is from nearby Agoo, La Union. And when she returned to the house of her employer in San Fernando, La Union, she had already chest and stomach pains and a headache. From the same clinical case record, Exhibit "2", it appears clearly that the alleged victim, Irene Dulay, was having her menstrual period when she was supposedly raped for the Complaint indicated that she had vaginal bleeding. She herself admitted in her testimony that on 22Apr1973, she was having her menstruation. (tsn, p. 9, June 27, 1975). It is quite abnormal and unnatural, almost unheard of in human experience and behavior that a man would have sexual intercourse with a woman then having her menstrual period, as was the admitted condition of the complainant when she was allegedly abused by the accused. And because of this universal abhorrence, taboo and distaste to have sexual contact with a menstruating female and this is so however passionate and lustful the man may be unless he is depraved or demented, We cannot believe that the accused-appellant, a young fourth year college student of civil engineering studying in Baguio City, would break or violate such a taboo by drugging the complainant girl with the help of his sister and afterwards have sex relations with her in her menstrual condition. There are also proof that complainant was obsessed with the accused and that the complainant was “praning.”

Manalo v. Robles Trans. Co., Inc., 99 Phil. 729 (16aug1956) L-8171

Facts: On 09Aug1947, a taxicab owned and operated by defendant appellant Company and driven by Edgardo Hernandez its driver, collided with a passenger truck at Parañaque, Rizal. In the course of and as a result of the accident, the taxicab ran over Armando Manalo, an eleven year old, causing him physical injuries which resulted in his death several days later. Edgardo Hernandez was prosecuted for homicide through reckless imprudence and after trial was found guilty of the charge and sentenced to one year prision correccional, to indemnify the heirs of the deceased in the amount of P3,000, in case of insolvency to suffer subsidiary imprisonment, and to pay costs. Edgardo Hernandez served out his sentence but failed to pay the indemnity. Two writs of execution were issued against him to satisfy the amount of the indemnity, but both writs were returned unsatisfied by the sheriff who certified that no property, real or personal, in Hernandez' name could be found. On 17Feb1953, plaintiffs Emilio Manalo and his wife Clara Salvador, father and mother respectively of Armando, filed the present action against the Company to enforce its subsidiary liability. Eventually, the trial court rendered judgment sentencing the defendant Company to pay to plaintiffs damages. The company appealed. To prove their case against the defendant Company, the plaintiff presented evidences, among them, the sheriff’s return of the writs of execution. Defendant company objected to CFI admitting the sheriff’s return. CFI ruled against defendant company. In their appeal, defendant contends that admitting the sheriff’s return without presenting the sheriff in court deprived them of the opportunity to cross-examine the said sheriff. Issue: Whether or not it is necessary that the sheriff testify in court on his return of the writs. Held: A sheriff's return is an official statement made by a public official in the performance of a duty specially enjoined by law and forming part of official records, and is prima, facie evidence of the facts stated therein. The sheriff making the return need not testify in court as to the facts stated in his entry. To the foregoing rules with reference to the method of proving private documents, an exception is made with reference to the method of proving public documents executed before and certified to, under the hand and seal of certain public officials. The courts and the legislature have recognized the valid reason for such an exception. The litigation is unlimited in which testimony by officials is daily needed; the occasions in which the officials would be summoned from his ordinary duties to declare as a witness are numberless. The public officers are few in whose daily work something is not done in which testimony is not needed from official sources. Were there no exception to official statements, hosts of officials would be found devoting, the greater part of their time to attending as witnesses in court or delivering their depositions before an officer. The work of Administration of government and the interest of the public having business with officials would alike suffer in consequence. The law reposes a particular confidence in public officers that it presumes they will discharge their several trusts with accuracy and fidelity; and, therefore, whatever acts they do in discharge of their public duty may be given in evidence and shall be taken to be true under such a degree of caution as the nature and circumstances of each case may appear to require. Judgment affirmed.
People v. Cabuang, 217 SCRA 675 (27jan1993) 103292 

Facts: While Evelyn de Vera and Maria Victoria Parana were walking home through an uninhabited place at about 11PM on 14Oct1988, accused Cabuang and Matabang suddenly appeared from the surrounding rice fields. Cabuang grabbed Maria Victoria and covered her mouth, Evelyn ran away because she became terribly frightened and Matabang followed in pursuit. Matabang lost sight of Evelyn along the road.

From her hiding place in the front yard of a house along the road, Evelyn saw Maria Victoria pass by in a tricycle with the accused Cabuang, Matabang and two (2) other men and heard Maria Victoria crying and pleading for help. Evelyn clearly recognized Cabuang and Matabang, but not the other two (2). Early the next morning, on 15Oct1988, the body of Maria Victoria was found in the barangay traversed by the road on which Maria Victoria were walking the night before. Issue: Whether or not the Police Blotter was conclusive. Held: Appellants principally urge that the trial court had erred in finding that prosecution witness Evelyn de Vera had positively identified Modesto Cabuang and Nardo Matabang as the assailants of Maria Victoria. Appellants point to the entry in the Bayambang police blotter (Exhibit "I") which stated that the assailants were "still unidentified" although the entry was made after prosecution witness Evelyn de Vera was questioned by the police. We consider this contention bereft or merit. Upon receiving the report that a dead body was found, members of the Bayambang Police Station immediately proceeded to the reported crime scene on the morning of 15Oct1988. The police investigator, Pfc. Elegio Lopez, who initially questioned witness De Vera that morning, noticed that she was in a state of shock. He accordingly chose to defer further questioning until the afternoon of the same day when Evelyn had calmed down sufficiently to be able to give a sworn statement to the police. Thus, there was the initial report prepared and recorded in the police blotter at around 11AM, stating that the assailants were still unidentified; there was, upon the other hand, Evelyn de Vera's sworn statement made and completed in the afternoon of the same day, where she revealed the identities of the men she had seen the night before and who she believed were responsible for the rape and death of her cousin Maria Victoria. The failure of Evelyn to specify the accused-appellants as the doers of the horrific rape, killing and robbery of Maria Victoria the first time she was questioned by the police, does not adversely affect her credibility. It is firmly settled case law that the delay of a witness in revealing to the police authority what he or she may know about a crime does not, by itself, render the witness' testimony unworthy of belief. Entries in a police blotter though regularly done in the course of performance of official duty, are not conclusive proof of the truth of such entries, In People v. Santito, Jr., this Court held that entries in official records like a police blotter are only prima facie evidence of the facts therein set out, since the entries in the police blotter could well be incomplete or inaccurate. Testimony given in open court during the trial is commonly much more lengthy and detailed than the brief entries made in the police blotter and the trial court cannot base its findings on a police report merely, but must necessarily consider all other evidence gathered in the course of the police investigation and presented in court. In the case at bar, we conclude that Prosecution witness Evelyn de Vera did positively and clearly identify Modesto Cabuang and Nardo Matabang as among those who had raped and killed and robbed the hapless Maria Victoria Parana.
People v. Gabriel, G.R. No. L-107735, Feb. 1, 1996

Facts: The evidence shows that at around 7pm of 26Nov1989, within the vicinity of Pier 14 at North Harbor along Marcos Road, Manila, a fistfight ensued between Jaime Tonog on one hand and the accused Ricardo San Gabriel together with "Ramon Doe" on the other. The fight was eventually broken up when onlookers pacified the protagonists. Ricardo and Ramon then hastened towards Marcos Road but in no time were back with bladed weapons. They approached Tonog surreptitiously, surrounded him and simultaneously stabbed him in the stomach and at the back, after which the assailants ran towards the highway leaving Tonog behind on the ground. He was then brought to Mary Johnston Hospital where he was pronounced dead on arrival. The accused has a different version. He testified that he saw Tonog drunk; Tonog even attempted to box him but he parried his blow; Tonog continued walking but when he chanced upon Ramon he suddenly and without provocation boxed and kicked Ramon; Ramon fought back but was subdued by his bigger assailant so the former ran towards the highway; when Tonog met a certain "Mando" he boxed the latter who however fought back despite his (accused) warning not to; at this moment he saw Ramon return with a bolo on hand; he warned Ramon not to fight but his advice went unheeded;

instead, with bolo on hand Ramon struck Tonog on the belly; when "Mando" saw what happened he ("Mando") pulled out his knife and also stabbed Tonog at the back; Ramon and "Mando" then fled towards the highway. The accused further claimed that he even stayed with the victim and called out the latter's companions to bring him to the hospital; that prosecution witness Brenda Gonzales only arrived at the crime scene after Tonog was already taken to the hospital; that Brenda even inquired from him what happened and then prodded him to testify; that his refusal coupled with the fact that he owed Gonzales some money earned him the ire of the latter and that was why he was charged for the death of Tonog. Held: The accused leans heavily on the Advance Information Sheet prepared by Pat. Steve Casimiro which did not mention him at all and named only "Ramon Doe" as the principal suspect. Unfortunately this cannot defeat the positive and candid testimonies of the prosecution witnesses. Entries in official records, as in the case of a police blotter, are only prima facie evidence of the facts therein stated. They are not conclusive. The entry in the police blotter is not necessarily entitled to full credit for it could be incomplete and inaccurate, sometimes from either partial suggestions or for want of suggestions or inquiries, without the aid of which the witness may be unable to recall the connected collateral circumstances necessary for the correction of the first suggestion of his memory and for his accurate recollection of all that pertain to the subject. It is understandable that the testimony during the trial would be more lengthy and detailed than the matters stated in the police blotter. Significantly, the Advance Information Sheet was never formally offered by the defense during the proceedings in the court below. Hence any reliance by the accused on the document must fail since the court cannot consider any evidence which has not been formally offered. Parenthetically, the Advance Information Sheet was prepared by the police officer only after interviewing Camba an alleged eyewitness. The accused then could have compelled the attendance of Camba as a witness. The failure to exert the slightest effort to present Camba on the part of the accused should militate against his cause. Entries in official records made in the performance of his duty by a public officer or by a person in the performance of a duty specially enjoined by law are prima facie evidence of the facts therein stated. But to be admissible in evidence three (3) requisites must concur: (a) The entry was made by a police officer or by another person specially enjoined by law to do so; (b) It was made by the public officer in the performance of his duties or by such other person in the performance of a duty specially enjoined by law; and, (c) The public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information. The Advance Information Sheet does not constitute an exception to the hearsay rule, hence, inadmissible. The public officer who prepared the document had no sufficient and personal knowledge of the stabbing incident. Any information possessed by him was acquired from Camba which therefore could not be categorized as official information because in order to be classified as such the persons who made the statements not only must have personal knowledge of the facts stated but must have the duty to give such statements for the record. In the case of Camba, he was not legally so obliged to give such statements.

j. Commercial Lists 1) Rule 130, §45
Sec. 45. Commercial lists and the like. – Evidence of statements of matters of interest, to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. (39) Requisites for admissibility of hearsay evidence as to Commercial lists a. statements of matters of interest b. to persons engaged in an occupation

c. contained in a list, register, periodical, or other published compilation d. as tending to prove the truth of any relevant matter so stated e. the compilation is i. published for use by persons engaged in that occupation and ii. generally used and relied upon by them therein. e.g. NEDA reports, part of the newspaper which reports the prices of shares

2) Cases
State v. Lungsford, 400 A.2d 843 (1979)

Facts: Lungsford was arrested upon being found in possession of a 1968 Plymouth Road Runner which was stolen from James Wilton. He was charged with the crime of knowingly possessing a motor vehicle with an altered serial number. The State unable to produce Wilton at trial to identify the vehicle or to testify that it was stolen. Lungsford testified at trial that he bought the car from James Law. Although he had title and registration he couldn’t corroborate the hearsay nature of certain evidence admitted. The errors focus on the way the police attempted to prove that the car in question was stolen. Cars have distinguishing numbers which are placed in the cars at the point of production. The vehicle identification number (VIN) indicates the year, type and make of the car. In the case at bar, the VIN was riveted into the driver’s side of the dashboard. There was also a factory order number stamped under the hood of stamped to the radiator brace on the driver’s side. There was also a packing slip number in the coils of the back seat. A car can be traced through any of these numbers. Since it appeared that the VIN wasn’t factory installed, the National Automobile Theft Bureau was requested to trace the car through the factory order no. A factory trace provides the time of manufacture and reveals the zone office where the car was sold, permitting the identification of the first owner. The VIN for the vehicle may also be determined. The trace of the factory order number stamped on the radiator brace produced an allegedly corresponding VIN. Lungsford claimed that the windshield was smashed and the VIN tag was broken loose on one side, that he bought new seats from a junkyard, replaced the engine and put in a new radiator and brace. No receipts were presented. He re-registered the car due to a lost license plate. The State relied on the NATB factory trace information to establish that the car was the same one Wilton reported stolen. The judge didn’t allow the State to prove what NATB told the detective, but the entire tracing process was crucial in the State’s attempt to link the car in Lungsford’s possession to the stolen Wilton vehicle which it had allowed. The judge convicted Lungsford. The NATB is a non-profit corporation, national in scope, financed by about 500 automobile insurance companies representing 95% of the industry. Its purpose is to prevent and reduce theft and losses of automobiles. It gathers and disseminates information on stolen automobiles and assists law enforcers in their identification and recovery. It is the repository for all vehicle information and identification numbers on all American and Foreign made cars, thus an informational warehouse & registry of the industry. Issue: Whether or not the criminal investigation report of NATB be admissible in evidence? Held: Conviction reversed. Although Walsh was not permitted to tell the jury the contents of the information he received from NATB, his whole process of tracing the identity of the said car was dependent thereon. This crucial link was evidential against Lungsford. The record is devoid of any proof on the reliability of the NATB procedures and of any evidential basis for admission of data derived therefrom. There must be compliance with Evid. R. 63 (30) whereby the judge must be convinced that the compilation, list, register, periodical is published for use by persons engaged in that occupation and is generally considered useful or reliable. If such is met, then statements from the compilation, etc. are

admissible to prove the truth of the relevant matter stated. The rationale of this rule is that the use of such materials is necessary because it is too difficult to call the witness to the stand all those who have participated in the preparation or compilation of such. The trustworthiness requirement is satisfied by the requirement that a finding be made by the judge that the material is regularly published for use by persons who rely on it. There is no reason to falsify such compilation etc. since it needs to be accurate. The trial judge erred in holding that this hearsay of Wilton was admissible under business records exception. While police records may qualify as business records for certain purposes and in certain respects, they are not vehicles by which substantive evidential status may be conferred upon the otherwise hearsay declarations of a victim or witness to the crime, accident or other occurrence. If the declarant is unavailable to testify and if the statement is not admissible under res gestae or dying declarations, it cannot be admitted predicated upon the circumstance that the statement was made to a police officer who paraphrased its content in his report. The rationale is that records made in the usual course of business “normally possess a circumstantial probability of trustworthiness.” The business record exception is predicated on the fact that the record itself is kept in the usual course of business and that the recorded information is obtained from a declarant having a business duty to communicate truthfully. Both have to be met. In this case, the 2nd criteria was not met. A police record is admissible to prove that a report of a crime was made by a member of the public and when it was made and received. But it is not admissible to prove the truth of the contents of that report since members of the public, whether targets of investigation, witnesses or victims, are not under a duty to make an honest and truthful report. Citizen declarations are held to constitute hearsay in respect of otherwise admissible police reports.
PNOC Shipping vs. CA (299 SCRA 402)

Facts: In the morning of 21Sep1977, the M/V Maria Efigenia XV, owned by the Maria Efigenia Fishing Corp., collided with Luzon Stevedoring’s (LSC) vessel, Petroparcel near Fortune Island in Nasugbu, Batangas. After an investigation was conducted, the Philippine Coast Guard found Petroparcel at fault. After an unsuccessful demand by Maria Efigenia, they sued LSC and Cap’t Duruelo (captain of the boat) for damages. Since, LSC had sold all of its boats, barges and ships to PNOC Shipping, PNOC assuming the obligations of LSC on the boats replaced LSC as party defendant. The Lower Court ruled in favor of Maria Efigenia awarding P6,438,048.00 representing the value of the fishing boat with interest at the rate of 6% per annum. In arriving at the above disposition, the LC cited the evidence presented by Maria Efigenia consisting the testimony of its sole witness, Edilberto del Rosario, their general manager. He testified that Maria Efigenia XV was wooden boat owned by the said corporation and, at the time it sank, it was then carrying 1,060 baneras of assorted fish the value of which was never recovered. Also, lost were two Cummins engines (250 hp), radar, pathometer and compass. Because of the loss of the ship, they had to hire a lawyer to litigate their claim in the Baord of Marine Inquiry and here in the lower court. The lower court considered the following documentary evidence: (1.) “Marine Protest” executed by Delfin Villarosa; (2.) a quotation for the construction of a 95-footer trawler by Magalong Engineering costing P2,250,000; (3.) a pro forma invoice for the Cummins model engine costing P1,160,000 each; (4.) a quotation for a compact daylight radar costing P145,000; (5.) quotation of prices for nylon ropes, compass, floats; (6.) retainer agreement between del Rosario and F. Sumulong Law for attorney’s fees and (7.) a quotation for nets and baneras (tubs). On the other hand, PNOC presented Lorenzo Lazaro, its Senior Estimator at its shipyard, as an expert witness stating that the award was excessive but he could not give a breakdown of the prices for the replacement of the boat. MR was denied. On appeal to the CA, the award was affirmed. Issue: Whether or not the court erred in admitting the documents presented by Maria Efigenia Fishing Corp. as in the nature of documents in a commercial lists, in the nature of market reports or quotations, trade journals, trade circulars and price lists, exempt from the hearsay rule? Held: Decision modified. Award of Actual Damages deleted and an award of P2,000,000 in Nominal Damages is given.

To enable an injured party to recover actual or compensatory damages, he is required to prove the actual amount of loss with reasonable degree of certainty premised upon competent proof on the basis of available evidence. Damages cannot be presumed and courts must point to specific facts as basis for the measure of the award. In this case, actual damages was proven only by the sole testimony of the fishing corps. general manager and certain pieces of documentary evidence. PNOC had objected to the admission of such evidence on the ground that these were not duly authenticated and that Del Rosario had no personal knowledge on the contents of the writing and neither was an expert on the subject. This objection was ignored by the lower court. The court herein held that the price quotations that became the basis of the award are ordinary private writings which under the Revised Rules of Court should have been proferred along with the testimony of the authors thereof. Del Rosario could not have testified on the veracity of the contents of the writings even though he was the seasoned owner of a fishing fleet because he was not the one who issued the price quotations. Such a testimony was hearsay. Also, any testimony he makes shall be considered selfserving interests. The court also holds that the documents do not fall under any of the exceptions to the hearsay rule. The CA had considered said documents as part of one of the exception under the Commercial Lists and the Like Rule. In order, to fall under such an exception, a document must be: 1. it is a statement of matters of interest to persons engaged in an occupation; 2. such statement is contained in a list, register, periodical or other published compilation; 3. said compilation is published for the use of persons engaged in that occupation; and 4. it is generally used and relied upon by persons in the same occupation. Therefore, applying ejusdem generis, the exhibits mentioned are mere price quotations issued personally to Del Rosario. These are not published in any list, register, periodical or other compilation on the relevant subject matter. Neither are these “market reports,” as these are not standard handbooks or periodicals, containing data of everyday professional need and relied upon in the work of the occupation. These are merely letters responding to the queries of Del Rosario. Damages may not be awarded on the basis of hearsay evidence. Nevertheless, since the fishing corp. had been injured, nominal damages are awarded not as an equivalent of a wrong inflicted but simply in recognition of a technical injury.
Estrada vs. Noble, [C.A,] 49 O.G. 139

Facts: Maximino Noble conveyed a parcel of land he owned in Camarines Sur to Proculo, his son, on 22Jun1945 by means of a public deed. The public deed stipulated that the sum of P2,600 in Japanese currency (P180 of which was paid to Francisco Espiritu by Proculo as repurchase price in July 1944) and P500 Philippine currency, the total of P3,100 was paid by Proculo to Maximino in 1944 & in June 1945. That this sale is being made subject to the condition that Maximino preserves unto himself, his heirs and assigns, the right to repurchase or redeem the parcel of land for P2,600 and P500 and within a 5-year period from the date of the instrument, provided that if Maximino, his heirs and assigns fail to exercise the right of redemption within the time aforesaid, this sale shall be irrevocable and unconditional without the necessity of executing any other instrument. On 28Feb1948, by means of another public deed, conveyed the same parcel by way of absolute sale to Gregoria Estrada for P3,000 Philippine currency. Only P2,300 was paid, the P700 to be invested in the redemption of the property from Proculo. Gregoria offered to redeem, tendering P700 to Proculo, which he refused. Hence, this action for conventional redemption to compel Proculo to reconvey the property to her. The trial court ruled in favor of Gregoria. Proculo contends that the said court should not have applied the Ballantine Scale of Values and should have fixed the redemption price at P3,100 which was the amount he paid therefore, under the case of Rogers vs. Smith.

Issue: Whether or not the courts can simply take judicial notice of the Ballantine Scale of Values? Held: Yes. Ballantine submitted a conversion table which recommended the adoption of measures which were greatly needed to solve the problem created by transactions made during the Japanese occupation and to hasten the economic recovery of the country. The SC, CA and the different CFIs in the country have repeatedly applied its provisions in numerous cases. It is therefore an official document whose publication constituted a leading event of general interest and whose provisions are widely known and have played an important part in the contemporary political history of the country of which courts of justice could take judicial cognizance. There can be no doubt of the propriety of the trial court’s action in applying the table to the transaction at bar. No evidence of the rate of exchange between Japanese occupation currency and Philippine currency at the time the transaction took place having been presented, the case is one which calls for the application of said conversion table. The doctrine laid down in Roger vs. Smith, Bell is inapplicable to the case at bar. The transaction in that case was a debt which created the relation of debtor-creditor between the parties, and the instrument in which it is recorded did not provide for the payment of the debt in any specific currency. Hence, the debt had to be paid in legal tender at the time payment of the obligation was demanded, under the provision of the Act of the U.S. Cognress. However, in the case at bar, the transaction is distinct. It is a sale with the right of repurchase and it was executed on 22Jun1945. It did not create a relation of debtor and creditor between the parties. It simply conferred upon the vendor a legal right which he may or may not exercise.

k. Learned Treatises 1) Rule 130, §46
Sec. 46. Learned treatises. – A published treatise, periodical or pamphlet on a subject of history, law, science or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. (40 a) Requisites for admissibility of hearsay evidence as to Learned treatises (used to prove unwritten foreign law) a. published treatise, periodical or pamphlet b. on a subject of history, law, science or art c. Either i. the court takes judicial notice, or ii. a witness expert in the subject testifies that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject

2) Cases

Yao Kee v. Sy-Gonzales, 167 SCRA 736 (1988)

Philippine courts can not take judicial notice of foreign law. Failure to prove foreign law whether unwritten under Rule 130, Sec. 46 or written under Rule 132, Sec. 24, raises the presumption that the law is the same as ours. Escolin: This provision is useful to prove an unwritten law. E.g. learned treatises on unwritten law which the court has taken judicial notice: Manresa, Sanchez-Roman. E.g. of writers of treatises acknowledged as experts: Corpus juris, Corpus juris secundum, LRA If it is a written law that is sought to be proven, cf Rule 132, Sec. 19
Sec. 19. Classes of documents. – For the purpose of their presentation in evidence, documents are either public or private.

Public documents are: (a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; xxx

E.g. of written official acts: Judicial decisions, executive orders. Our courts take judicial notice of local laws. However, there are certain instances when an official copy of the written official act is required to be presented. cf Rule 132, Sec. 24
Sec. 24. Proof of official record. – The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (25 a)

Ways to prove written foreign official acts a. official publication, or b. copy i. attested by the officer having the legal custody of the record, or by his deputy, and ii. if the record is not kept in the Philippines 1. accompanied with a certificate that such officer has the custody made by a. a secretary of the embassy or legation b. consul general, consul, vice consul, or consular agent or c. by any Philippine officer in the foreign service stationed in the foreign country in which the record is kept 2. and, authenticated by the seal of his office.

l. Prior Testimony 1) Rule 130, §47
Sec. 47. Testimony or deposition at a former proceeding. – The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. (41 a) cf with the rules on admissions (Rule 130 Secs. 26-33, RoC) and interrogatories (Rule 24, RoC) Requisites for admissibility of hearsay evidence as to prior testimony a. testimony or deposition b. of a witness deceased or unable to testify c. given in a former case or proceeding d. involving the same parties and subject matter e. as evidence against the adverse party f. adverse party had the opportunity to cross-examine him

2) Cases
Tan v. CA, 20 SCRA 54 (1967)

Absent a showing that the witness is dead, outside the Philippines, or unable to testify, their prior testimony is inadmissible. Mere refusal to testify is does not amount to inability to testify. The party could have urged to court to have these witnesses summoned, arrested, and punished for contempt in case of refusal to obey the summons. Facts: Petitioners Carmelita and Rodolfo thru their mother, Celestina Daldo, as guardian ad litem, filed a case for recognition as illegitimate children and support against Francisco Tan. Oral evidence was presented by them & as the plaintiff were about to rest, Celestina moved for dismissal because the parties have reached an amicable settlement. Celestina she said in an affidavit submitted to the court, “Francisco is not

the father of my children . . .” So, the court dismissed the case. One year & eight months later, a similar case was instituted with the grandmother as guardian. At first, the court held that the case is barred by res judicata because of the previous civil case but on motion for reconsideration, support and recognition were granted. The CA reversed, saying the evidence wasn’t enough to establish paternity. In the second case, the witnesses of the kids who testified in the first case refused to testify, & the court did not admit the testimonies of these witnesses from the former trial. Thus, this petition on certiorari with the SC. Issue: Whether or not the refusal to testify fall under the “unable to testify” provision of Sec. 47, Rule 130? Held: The SC affirmed the CA. The witnesses weren’t dead. Neither were they outside the RP. They simply didn’t want to testify. This doesn’t amount to an inability to testify. Therefore, the prior testimony rule cannot be applied in this case. Also, the plaintiff in this case could have asked the court to compel these witnesses to come, but they didn’t do so. All in all, the evidence wasn’t enough to show paternity for the children in order to be recognized by Tan.
People v. Liwanag, 73 SCRA 473 (1976)

Facts: The prosecution moved that the testimony of the witnesses presented during the preliminary investigation of this case be adopted as part of the evidence in chief of the prosecution. The trial court granted the motion subject to the condition that the witnesses be further cross-examined by counsel for the accused. At the trial, the witnesses for the prosecution who testified at the preliminary investigation were recalled and were again cross-examined by counsel for the appellant. Held: The testimony sought to be made part of the evidence in chief are not ex-parte affidavits, but testimony of witnesses taken down by question and answer during the preliminary investigation in the presence of the accused and his counsel who subjected the said witnesses to a rigid and close cross-examination. The inclusion of said testimony was made subject to the right of the defendant to further cross-examine the witnesses whose testimony are sought to be reproduced and, pursuant to said order, the witnesses were recalled to the stand during the trial and again examined in the presence of the appellant. Upon the facts, there was no curtailment of the constitutional right of the accused to meet the witnesses face to face.
Ohio v. Roberts, 448 U.S. 56 (1980)

Facts: Defendant Herschel Roberts was charged with forgery of a check in the name of Bernard Isaacs and with possession of stolen credit cads belonging to the latter and his wife, Amy. At a preliminary hearing, defendant’s appointed counsel called the victim’s daughter, Anita, as the defense’s only witness. Anita testified that she had permitted defendant to use her apartment for several days while she was away. However, she refused to admit that she had given defendant checks and the credit cards without informing him that she did not have permission to use them. At the defendant’s subsequent credit cards with the understanding that he could use them. The daughter did not appear at trial even though several subpoenas had been issued to her at her parent’s residence. The State offered the transcript of her preliminary hearing testimony in rebuttal. The defendant objected to this on the ground that it was violative of the Confrontation Clause. The mother testified that Amy’s whereabouts were unknown to them. The TC admitted the transcript into evidence while the CA reversed. The SC of Ohio ruled that the transcript was inadmissible because the mere opportunity to crossexamine at the preliminary hearing did not afford constitutional confrontation for purposes of trial. Issue: Whether or not the transcript of testimony is admissible? Held: Yes, the introduction in evidence at defendant’s trial of the daughter’s preliminary hearing testimony was constitutionally permissible. When a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause requires a showing of his unavailability. Even then his statement is admissible only if it bears adequate “indicia of reliability.” The daughter’s prior testimony bore

sufficient indicia of reliability afforded the trier of facts a satisfactory basis for evaluating the truth of the prior statement. Even though defense counsel’s questioning of the witness occurred on direct examination defense counsel tested the testimony with the equivalent of significant cross-examination. His questioning which was replete with leading questions and comporting with the principal purpose of cross-examination which is to challenge the veracity of the daughter’s testimony, clearly partook of crossexamination as a matter of form. This was so even though the witness was not personally available for questioning at the trial and that the defendant had a different lawyer at trial from the one at the preliminary hearing. It afforded substantial compliance with the purposes behind the Confrontation Clause. The record disclosed that the witness was constitutionally unavailable for purposes of the defendant’s trial. Case was reversed and remanded.

P. Opinion Rule 1. Rule 130, §48-50
Sec. 48. General rule. – The opinion of a witness is not admissible, except as indicated in the following sections. (42) Sec. 49. Opinion of expert witness. – The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence. (43 a) Sec. 50. Opinion of ordinary witnesses. – The opinion of a witness for which proper basis is given, may be received in evidence regarding (a) the identity of a person about whom he has adequate knowledge; (b) A handwriting with which he has sufficient familiarity; and (c) The mental sanity of a person with whom he is sufficiently acquainted. The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person. (44 a) GR: The opinion of a witness is not admissible. Exceptions: Admissible opinion evidence a. a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence. b. the identity of a person about whom he has adequate knowledge; c. a handwriting with which he has sufficient familiarity d. the mental sanity of a person with whom he is sufficiently acquainted. e. his impressions of the i. emotion ii. behavior iii. condition or iv. appearance of a person

2. Cases
Dilag & Co. v. Merced, 45 O.G. 5536 (1949)

Facts: Plaintiff was the owner of a truck which was entrusted to Pabo Dilag. On the night of December 31, 1944, during the Japanese occupation, the truck was stolen. After the liberation, Dilag saw the truck parked in front of the City Lunch in San Pablo City. Recognizing that it was the same car owned by their company he had seized the car with the aid of policemen. The plaintiff company filed a case for recovery against Merced its present possessor and also against Lim Ben, Sy Pua and Sixto Zandueta, former alleged owners. In the course of the trial in the lower court, Jose Aguilar of the Bureau of Public Works testified as to the tell tale marks of alterations on the motor number of the truck. This testimony was impugned by the defendants on the ground that Aguilar was not qualified as an expert on motor numbers. Issue: Whether or not Aguilar qualified as an expert?

Held: Yes. It appears that Aguilar has been with the Bureau since 1930, having occupied the position of inspector in charge of weighing and measuring trucks and verifying their motor numbers, chief of registration division for 8 years and from 1938 to date of the trial, chief investigator of motor vehicles, charged with the duty of investigating conflicting claims on motor vehicles. With such a background experience, a person who has occupied those positions should be deemed amply qualified for the simple task of determining whether the number appearing on the motor of a particular vehicle is genuine or not. Although a witness, in order to be competent as an expert, must show himself to be skilled or experienced in the business or profession to which the subject relates, there is no precise requirement as to the mode in which skill or experience shall have been acquired. Scientific training and study are not always essential to the competency of the witness as an expert. A witness may be competent to testify as an expert although his knowledge was acquired through the medium of practical experience rather than scientific study or research. Generally, speaking, any person who by study or experience has acquired practical knowledge or experience may be allowed to give in evidence his opinion upon matters of technical knowledge and skill relating to such business or employment. Even where the problem presented is one which ordinarily requires some scientific knowledge or training, one long experienced may testify as an expert, although he has pursued no special study of the matter. Knowledge acquired by doing is no less valuable than that acquired by study.
U.S. v. Trono, 3 Phil. 213 (1904)

Facts: Benito Perez, Policarpio Guevara and Felipe Bautista were suspected of committing theft of a revolver. They were arrested and taken by Valentin Trono, a subinspector of the municipal police and other policemen, to Sapang-Angelo and beaten and ill-treated. Perez died the next morning. Trono et al were charged with murder and convicted by the trial court. They are now contending on appeal that Perez was not ill-treated but that the cause of death was hypertropic cirrhosis (whatever that means!) as certified by the examining physician, Icasiana. The testimony of the physician was not given credence by the court. Issue: Whether or not the court is bound by the testimony of a physician acting as an expert witness? Held: No. Expert testimony no doubt constitutes evidence worthy of meriting consideration, although not exclusive, on questions of a professional character. The courts, however, are not bound to submit to such testimony. They are free to weigh them, and they can give or refuse to give them any value as proof, or they can even counterbalance such evidence with other elements of conviction which may have been adduced during the trial. In the present case, the court did not give credit to the testimony of the physician because:  it appears that the physician was an intimate friend of one of the accused Angeles;  the physician stated in the certificate that Perez died from cholera (not hypertropic cirrhosis) but the mom of the deceased testified that her son was of a robust constitution and suffered no ailments whatever;  the physician’s certificate stated that Perez’s body showed only two small bruises but other witnesses testified that they saw more bruises in different parts of his body;  the physician himself when he was testifying during the trial withdrew his statements made in the physician’s certificate.
State v. Garver, 225 P.2d 771 (1950) U.S. v. Stifel, 433 F.2d 431 (6th Cir. 1970) Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786 (1993)

United States v. Bonds, 12 F.3d 540 (1993) People v. Adoviso GR# 116196-97 23jun1999

Facts: In this case, on the night of February 18, 1990, Emeterio and Rufino Vasquez were shot by five assailants inside their house in Bula, Camarines Sur. During the incident, Bonifacio, son of Emetrio, saw Pablo Adoviso and five other hooded persons shooting his father and his nephew being shot. He hid himself in the dark and only rushed to the injured victims aide when the assailants left, accompanied by his son Elmer. Elmer gave first aid to his grandfather and cousin by binding their wounds with diapers while Bonifacio went to the municipal building to fetch the police. The police came and brought the two victims to the hospital. Both, however, died the next morning. Adoviso was charged for the murder of the two victims. In his defense, he alleged alibi and that he offered in evidence the testimony of Ernesto Lucena, a polygraph exminer of the NBI in Manila. In a Polygraph report, Lucena opined that his polygrams revealed that there were no specific reactions indicative of deception to pertinent questions relevenat to the investigations of the crimes. Nevertheless, the TC convicted him for murder. Issue: Whether or not the court erred in not considering the polygraph as having exculpated the accused from the crime charged? Held: Judgment affirmed. The witnesses were able to see and identify him clearly and thus his defense of alibi couldn’t stick. As to the polygraph test defense, a polygraph is an electromechanical instrument that simultaneously measures and records certain physiological changes in the human body that are believed to be involuntarily cause by an examinee’s conscious attempt to deceive the questioner. The theory behind a polygraph or a lie detector test is that a person who lies deliberately will have a rising blood pressure and a subconscious block in breathing, which will be recorded in the graph. However, American courts almost uniformly reject the results of polygraph tests when offered in evidence for the purpose of establishing the guilt or innocence of one accused of a crime, whether the accused or the prosecution seeks its introduction for the reason that the polygraph has not as yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception. The rule is no different here. In People vs. Daniel, the court stated that much faith and credit should not be vested upon a lie detector test as it is not conclusive. Appellant had not advanced any reason why this rule should not apply to him.
People v. Baid GR#129667 31jul2000

Facts: 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. 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. Complainant was brought later during the day before Dr. Emmanuel Reyes for medicolegal examination. She told him what happened. Dr. Reyes reduced her narration of the incident into writing and then gave her a physical examination. 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. Issue: Whether or not the testimony of the complainant who was “pra-pra” is admissible in evidence. Held: Notwithstanding her mental illness, complainant showed that she was qualified to be a witness, i.e., she could perceive and was capable of making known her perceptions to others. Her testimony indicates that she could understand questions particularly relating to the incident and could give responsive answers to them. Though she may have exhibited emotions inconsistent with that of a rape victim ("inappropriate affect") during her testimony, such as by smiling when answering questions, her behavior was such as could be expected from a person suffering from schizophrenia. Otherwise, complainant was candid, straightforward, and coherent. Furthermore, aside from the testimony of Dr. Salangad on complainant's consciousness and memory, it is established that schizophrenic persons do not suffer from a clouding of consciousness and gross deficits of memory. It has long been settled that a person should not be disqualified on the basis of mental handicap alone. With regard to the alleged inconsistencies between complainant's sworn statement and her testimony as to the number of times she and accused-appellant had sexual intercourse and where they did the same, an examination of the evidence for the prosecution, particularly complainant's sworn statement and her interview with the examining medico-legal officer, shows that accused-appellant had sexual intercourse with her in different positions at various places in the same room. When complainant testified, she stated that, aside from the fact that accused-appellant had sexual intercourse with her on her bed, he made her transfer later under the bed. Be that as it may, complainant has consistently established in all of her statements that he had sexual intercourse with her on her bed. Whether or not he had sex with her near the window and while facing him is of no moment and does not negate the finding of rape. Whatever may be the inconsistencies in her testimony, they are minor and inconsequential. They show that complainant's testimony was unrehearsed, and rather than diminish the probative value of her testimony, they reinforce it. In the case at bar, the rape of complainant occurred in a room where other patients were sleeping. This circumstance, it is argued, is antithetical to the possibility of the commission of rape. As this Court has repeatedly said, lust is no respecter of time and place and the crime of rape can be consummated even when the malefactor and the victim are not alone. The plausibility of an allegation of rape does not depend on the number of witnesses presented during the trial, so much so that, if the testimonies so far presented clearly and credibly established the commission of the crime, corroborative evidence would only be a mere surplusage. Nor does the absence of spermatozoa in the genitalia of complainant destroy the finding of rape since ejaculation is never an element thereof. What consummates the felony is the contact of the penis of the perpetrator, however slight, to the vagina of his victim without her consent. 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. 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. 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 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 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. 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.

Q.Rule 130, §51: Character Evidence
Sec. 51. Character evidence not generally admissible; exceptions. – (a) In Criminal Cases: (1) The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. (2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent it to the moral trait involved in the offense charged. Note that in criminal cases, the prosecution goes first. Hence, it can not present evidence on the bad moral character of the accused on its evidence in chief. (3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. (b) In Civil Cases: Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of character involved in the case. This covers either party to the case. (c) In the case provided for in Rule 132, Section 14. (46 a, 47 a) cf Rule 132, Sec. 14
Sec. 14. Evidence of good character of witness. – Evidence of the good character of a witness is not admissible until such character has been impeached. (17)

GR: Character evidence not generally admissible Exceptions a. In Criminal Cases: i. accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. ii. In rebuttal, the prosecution may prove the bad moral character of the accused which is pertinent it to the moral trait involved in the offense charged. iii. moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. b. In Civil Cases – only when pertinent to the issue of character involved in the case. c. good character of an impeached witness

R. Rule 131, §1: Burden of Proof
Sec. 1. Burden of proof. – Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (1 a, 2 a) Burden of proof – the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law

1. Civil Cases a. Rule 133, Sec. 1
Rule 133, Sec. 1. Preponderance of evidence, how determined. – In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining whether a contract is a sale or equitable mortgage, the evidence presented must be clear and convincing, not merely a preponderance of evidence.

b. Cases
Pornellosa v. LTA, L-14040, 31 January 1986

Facts: The plaintiffs Pornellosa Spouses are claiming a parcel of land by virtue of a deed of sale by its former occupant, Vicenta San Jose, who sold to them also the house located in the said property. However, the lot in question happens to form part of the Santa Clara Estate on which many families have settled through the consent of its owner. This Estate was acquired by the Philippine Government by virtue of Commonwealth Act no. 539, Sec. 1. There is no evidence showing that Vicenta San Jose owned the land. She merely owned the house on it. This action by the spouse is to compel the Land Tenure Administration to sell the lot in question to them in the amount of P1,505.00. All the spouses presented in support of their claim were documents of the sale of the house to them by San Jose. Issue: Whether or not the spouses Pornellosa have proven their claim to own the lot in question? Held: A party’s claiming a right granted or created by law must prove his claim by competent evidence. A plaintiff is duty-bound to prove his allegations in the complaint. He must rely on the strength of his evidence and not on the weakness of that of his opponent. The plaintiffs who want to compel the Director of Lands to sell them the lot of an expropriated landed estate should prove their allegation that they acquired the rights of a bona fide occupant to said lot. A sale of a house is not sufficient to convey title or any right to the lot on which the house stands. Acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property, must appear in a public document.
IFC v. Tobias, 78 SCRA 28 (1977)

Facts: Tobias bought an installment one Dodge truck from Leelin Motors. Tobias executed a promissory note in favor of Leelin Motors, which note was secured by a chattel mortgage on the truck in favor of Leelin Motors. The latter indorsed the note and assigned the mortgage to IFC. As a consequence, Tobias paid six installments to IFC. On May 14, 1970, IFC’s counsel wrote to Tobias demanding him to pay or to surrender the truck otherwise court action would be pursued. At the time the letter was written, Tobias was in arrear in the payment of more than 2 installments. Tobias wrote back saying that he was surrendering the truck because the truck was with Leelin Motors when it met an accident & because of the delay in its repairs. Upon learning of the accident, IFC decided not to get the truck and sued for payment. The LC and CA dismissed the IFC’s complaint on the ground that inasmuch as Tobias surrendered the truck, he complied with the IFC’s demands. Now, IFC claims that it is an unpaid vendor who under Art. 1484 of the NCC may choose exacting fulfillment of the obligation, canceling the sale or foreclosing the mortgage if any; and that it now chose the first option. Tobias claims that IFC is now estopped to claim payment when it demanded the surrender to which demand Tobias acceded. Held: The SC reversed the LC’s and CA’s rulings. Art. 1484 is clear in that an unpaid (in the payment of 2 or more installments) vendor has the 3 options (alternative, not cumulative). IFC has not availed of cancellation nor of foreclosure (which presupposes more than a mere demand to surrender possession). Thus, IFC is still free to avail of the

remedy of exacting fulfillment. As regards estoppel, to hold IFC in estoppel, it must be shown that the latter knew of the accident when it gave Tobias its options to pay or to surrender. IFC claims it had no such knowledge. Nobody in his right mind would give the options Tobias had, if the accident was known. The more plausible thing to do is to ask for payment had IFC known. Besides, the allegation of IFC that it had no knowledge is a negative allegation which needs no evidence to support it, not being an essential part of the statement of the right on which the cause of action is founded. The burden of proof, therefore, is on Tobias to disprove IFC’s lack of knowledge. Tobias failed.

2. Criminal Cases a. Rule 133, Sec. 2
Rule 133, Sec. 2. Proof beyond reasonable doubt. – In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. For self-defense, the accused must show clear and convincing evidence.

b. Cases
People v. Pajenado, 31 SCRA 812 (1970)

The prosecution has the burden of proving even the negative elements of a crime (e.g. lack of license to possess a firearm). Escolin: The remedy is to present the certification of the officer, who is in charge of issuing the licenses, that the accused was not issued a license. Facts: The LC found Pajenado guilty of murder and illegal possession of firearm. He appealed to the SC and argued that there is no prima facie case in which to hold him guilty of illegal possession of firearm because the prosecution failed to prove his lack of a license to carry a firearm. Issue: Whether or not Pajenado should be found guilty of illegal possession of firearms? Held: No. Under the provisions of Sec. 2, Rule 131 of the Rules of Court, in criminal cases, the burden of proof as to the offense charged lies on the prosecution and that a negative fact alleged by the prosecution must be proven if “it is an essential ingredient of the offense charged.” The burden of proof was with the prosecution and in this case they must prove that the firearm used by Pajenado in committing the offense charged was not properly licensed. It cannot be denied that the lack of or the absence of a license is an essential ingredient of the offense of illegal possession of firearm. The information filed against Pajenado specifically alleged that he had no license or permit to possess the said gun. Thus it seems clear that it was the prosecution’s duty not to merely allege that negative fact but to prove it as well.
People v. Verzola, 80 SCRA 600 (1977)

The elements of self-defense must be proven by clear, satisfactory and convincing evidence. Facts: On the night of September 28, 1969, Bernardo Molina was clubbed to death by Ricardo Verzola in the presence of Josefina Molina inside Molina's house at Barrio Lipcan, Bangued, Abra. The body of the victim was subsequently carried by the two to the ground and left at the foot of the stairs. Verzola then went to his house, changed his clothes and threw his bloodstained sweater undershirt and underwear, including the piece of wood be used in clubbing the deceased, inside their toilet. Afterwards, he went to the municipal building and reported to the police authorities that Bernardo had died in an accident. The police authorities went to Lipcan to conduct the investigation. They found the body of the deceased sprawled at the foot of the bamboo ladder. When questioned, Josefina revealed that Verzola was the assailant of her husband. She later gave a written statement narrating the incident, stating that Verzola went to their house, entered her room where she was sleeping with her husband, woke her up and had carnal knowledge of her; that when Bernardo woke up and attempted to rise

Verzola clubbed Bernardo. This statement was sworn to by her before Municipal Judge Valera. At about 4:00 a.m., Verzola was picked up by the police and, in the municipal bldg., he executed a written statement admitting that he clubbed the victim several times. He stated therein that, he went to Bernardo’s house and went under their house pricking with a bamboo twig Josephina who was laying down. She came down to my place, where they did “everything.” But before that in the night, Josephina told him 'THAT HER HUSBAND WAS PLANNING TO KILL HIM and just after they were through, Josephina went upstairs inside (the) house, and because he cannot withstand anymore the plan of her husband to kill him, he went upstairs and in the room he saw Bernardo lying down. He clubbed him three times at the nape, and when he did not move anymore that was the time when we both with Josephine Molina throw him downstairs of their house. After that he went home. He further admitted that Josephina was his paramour. The said statement was sworn to in front of Judge Valera. Verzola then guided the authorities to his house where, in their presence, he retrieved from the toilet his bloodstained clothes as well as the piece of wood which he used in clubbing the deceased. Dr. Luis P. Bringas Municipal Health Officer, who conducted the autopsy, testified that the deceased died instantaneously as a result of cardio-respiratory failure caused by "cerebral compressions and hemorrhages". The deceased sustained different lacerations on the head and back of the ear. Versola, later, impugned his statement and claimed he did so in self-defense. Thus, he testified that while he was feeding his two cows in front of his house, he heard cries for help coming from Bernardo’s house. Recognizing it to be Josefina’s voice, he proceeded to the house. He armed himself with a pan of a plow upon entering the yard because he feared an intruder had entered the Molina's residence. At the door of the room, he heard the man say: 'Vulva of your mother, I will kill you." As he entered the room, he saw his Josefina in a corner, being maltreated by Bernardo. After he noticed his presence, he said: "Vulva of your mother, I will kill all of you." At that juncture, Bernardo stooped to pick up a bolo from the floor. As Bernardo was still bending towards the bolo, he struck him twice with the piece of wood, hitting the head of the victim, causing him to fall. After he had fallen, he tried to revive the victim by shaking the head of the latter on his lap while saying: "Hoy, Hoy, Hoy". He explained that this was the reason why there were bloodstains on his clothes. Josefina corroborated said new statement of Verzola. Both appellants contended that they were not aware of the contents of their E-J confessions as they were made to sign them by the police w/o being able to read their contents. The trial court convicted Verzola as principal while Josefina as an accessory to murder. Issue: Whether or not the accused’s guilt was proven beyond reasonable doubt? Held: SC affirms Verzola conviction but acquits Josefina. There can be no question that once an accused has admitted the killing of a human being, the burden is on him to establish the existence of any circumstance which may justify the killing or at least attenuate the offense committed. To establish his exculpation, or the justification for the act, he must prove such affirmative allegation by clear, satisfactory and convincing evidence. He must rely on the strength of his own evidence and not on the weakness of that for the prosecution for even if that were weak, it could not be disbelieved after the accused himself had admitted the killing. It is evident that no such proof was adduced by Verzola. Verzola’s conduct was incompatible with the reaction of one who killed another in legitimate self-defense. Although he claims that he brought the victim down the stairs in order to bring him to the hospital, yet when he was able to get a jeep he did not utilize it for that purpose but instead used it in going to town. Moreover, he kept quiet about the incident. It was only from Josefina Molina that the police learned for the first time that Verzola was the assailant of the deceased. Verzola attempted to conceal his participation by hiding his bloodstained clothes and the weapon he used. The physical facts of the case, such as nature, character and location of the wounds sustained by the deceased and the presence of the bloodstains on the beddings of the

victim are undisputed. These facts and circumstances belie the claim of the appellant that he clubbed the victim in self- defense. On the contrary, they sufficiently indicate that the fatal injuries were inflicted upon the victim when the latter was lying defenseless on the floor, as he was either sleeping or was just beginning to wake up. Although Josefina admitted in her extra-judicial statement that she was the paramour of Verzola for over a year, there is no proof that she had knowledge of the criminal design of her co-appellant. Neither has she cooperated with him by previous or simultaneous acts, much less is there any showing that she supplied the principal with material or moral aid. Her only participation was in assisting her co-appellant in bringing the body of the deceased to the ground. The question, therefore, is whether or not by said overt act she could be held criminally responsible as an accessory. An accessory does not participate in the criminal design, nor cooperate in the commission of the felony, but, with knows of the commission of the crime, he subsequently takes part in three (3) ways: (a) by profiting from the effects of the crime; (b) by concealing the body, effects or instruments of the crime in order to prevent its discovery; and (c) by assisting in the escape or concealment of the principal of the crime, provided he acts with abuse of his public functions or the principal is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive or is known to be habitually guilty of some other crime. The main difference separating accessories after the fact the responsibility of the accessories is subsequent to the consummation of the crime and subordinate to that of the principal. There was no proof also that the act of Josephina in bringing down the body was to destroy the body of the crime or to make it appear that death of the victim was accidental. It must be noted that Josefina testified that she helped her co- appellant bring the body of the deceased down the stairs because of fear.
U.S. v. Dube, 520 F.2d 250 (1st Cir. 1975) Patterson v. New York, 432 U.S. 19 (1977)

3. Administrative Cases a. Rule 133, Sec. 5
Rule 133, Sec. 5. Substantial evidence. – In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (n) substantial evidence – that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

b. Cases

S. Presumptions 1. Conclusive presumptions a. Rule 131, §2
Sec. 2. Conclusive presumptions. – The following are instances of conclusive presumptions: (a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it:

(b) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them. (3 a) Instances of conclusive presumptions a. a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it: b. The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.

b. Arts. 1431-1439 NCC: Estoppel
Art. 1431. Through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. Art. 1432. The principles of estoppel are hereby adopted insofar as they are not in conflict with the provisions of this Code, the Code of Commerce, the Rules of Court and special laws. Art. 1433. Estoppel may in pais or by deed. Art. 1439. Estoppel is effective only as between the parties thereto or their successors in interest. Art. 1434. When a person who is not the owner of a thing sells or alienates and delivers it, and later the seller or grantor acquires title thereto, such title passes by operation of law to the buyer or grantee. Art. 1435. If a person in representation of another sells or alienates a thing, the former cannot subsequently set up his own title as against the buyer or grantee. Art. 1436. A lessee or a bailee is estopped from asserting title to the thing leased or received, as against the lessor or bailor. Art. 1437. When in a contract between third persons concerning immovable property, one of them is misled by a person with respect to the ownership or real right over the real estate, the latter is precluded from asserting his legal title or interest therein, provided all these requisites are present: (1) There must be fraudulent representation or wrongful concealment of facts known to the party estopped; (2) The party precluded must intend that the other should act upon the facts as misrepresented; (3) The party misled must have been unaware of the true facts; and (4) The party defrauded misrepresentation. must have acted in accordance with the

Art. 1438. One who has allowed another to assume apparent ownership of personal property for the purpose of making any transfer of it, cannot, if he received the sum for which a pledge has been constituted, set up his own title to defeat the pledge of the property, made by the other to a pledgee who received the same in good faith and for value. Statutory instances of estoppel a. non-owner transferor who later acquires title passes ownership to the transferee by operation of law (Art. 1434 NCC) b. agent who alienates can not claim title against the transferee (Art. 1435 NCC) c. a lessee or a bailee is estopped from asserting title to the thing leased or received, as against the lessor or bailor. (Art. 1436 NCC) d. in a contract between 3rd persons concerning immovable property, one of them is misled by a person with respect to the ownership or real right over the real estate,

the latter is precluded from asserting his legal title or interest therein, provided all these requisites are present: i. fraudulent representation or wrongful concealment of facts known to the party estopped; ii. party precluded must intend that the other should act upon the facts as misrepresented; iii. party misled must have been unaware of the true facts; and iv. party defrauded must have acted in accordance with the misrepresentation. (Art. 1437 NCC) e. One who has allowed another to assume apparent ownership of personal property for the purpose of making any transfer of it, cannot, if he received the sum for which a pledge has been constituted, set up his own title to defeat the pledge of the property, made by the other to a pledgee who received the same in good faith and for value. (Art. 1438 NCC)

c. Cases
Molina v. CA, 109 Phil 769 (1960)

Facts: Felix Molina then overseer of Basilisa Manjon, informed her that some guerilla soldiers would arrest her for investigation, because one Conchita Cuba complained to them against her for having illegally encroached on her property. Afraid to be taken to the guerilla camp Manjon asked the Molina what was best for her to do. He suggested that she execute a fictitious deed of sale in his favor for the portion in question which was the one claimed by Conchita Cuba, in order that he could defend her rights in his name against the claim of Conchita Cuba. Manjon accepted the suggestion and asked Molina to have the corresponding deed of sale prepared which Manjon signed. However, Manjon made the Molina sign a statement in, which he expressly admitted that the transaction was only a simulated sale. The Molina denied the whole story and asserted that the statement was a forgery. Manjon sues Molina for recovery of possession of land. TC ruled for the Manjon on the ground that she could not have disposed the land because it was part of the public domain, sales patent having been issued to plaintiff by the government only on 1948. CA affirms. Held: Under the doctrine of estoppel by deed, when a person who is not the owner of a thing sells or alienates and delivers it and later the seller or grantor acquires title thereto, such title passes by operation of law to the buyer or grantee. Case remanded to determine whether the sale was indeed fictitious.
Fige v. CA, 233 SCRA 586 (1994)

The juridical relation between petitioners and private respondents is that of lessee and lessor. Considering this jural relationship, petitioners cannot claim that they purchased the questioned lot from somebody else. A tenant cannot, in an action involving the possession of the leased premises, controvert the title of his landlord. Nor can a tenant set up any inconsistent right to change the relation existing between himself and his landlord, without first delivering up to the landlord the premises acquired by virtue of the agreement between themselves.

2. Disputable presumptions a. Rule 131, §4
Sec. 3. Disputable presumptions. – The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: (a) That a person is innocent of crime or wrong; (b) That an unlawful act was done with an unlawful intent; (c) That a person intends the ordinary consequences of his voluntary act; (d) That a person takes ordinary care of his concerns; (e) That evidence willfully suppressed would be adverse if produced;

(f) That money paid by one to another was due to the latter; (g) That a thing delivered by one to another belonged to the latter; (h) That an obligation delivered up to the debtor has been paid; (i) That prior rents or installments had been paid when a receipt for the later ones is produced; (j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him; (k) That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly; (1) That a person acting in a public office was regularly appointed or elected to it; (m) That official duty has been regularly performed; (n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; (o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them; (p) That private transactions have been fair and regular; (q) That the ordinary course of business has been followed; (r) That there was a sufficient consideration for a contract; (s) That a negotiable instrument was given or indorsed for a sufficient consideration; (t) That an indorsement of a negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; (u) That a writing is truly dated; (v) That a letter duly directed and mailed was received in the regular course of the mail; (w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession. The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. The following shall be considered dead for all purposes including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for four years since the loss of the vessel or aircraft; (2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and whose existence has not been known for four years; (4) If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has a wellfounded belief that the absent spouse is already dead. In case of

disappearance, where there is danger of death under the circumstances hereinabove provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceeding as provided in the Family Code and in the rules for a declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact; (y) That things have happened according to the ordinary course of nature and the ordinary habits of life; (z) That persons acting as copartners have entered into a contract of copartnership; (aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; (bb) That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, has been obtained by their joint efforts, work or industry. (cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired property through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal. (dd) That if the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rides shall govern in the absence of proof to the contrary: (1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage; (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (ee) That a thing once proved to exist continues as long as is usual with things of that nature; (ff) That the law has been obeyed; (gg) That a printed or published book, purporting to be printed or published by public authority, was so printed or published; (hh) That a printed or published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases; (ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest; (jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and age of the sexes, according to the following rules: 1. If both were under the age of fifteen years, the older is deemed to have survived;

2. If both were above the age of sixty, the younger is deemed to have survived; 3. If one is under fifteen and the other above sixty, the former is deemed to have survived; 4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived; if the sex be the same, the older; 5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived. (kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time. (5 a)

b. Cases
People v. Padiernos, 69 SCRA 484 (1976)

Mere non-presentation of a written statement of a witness to the police which she allegedly did not sign, does not give rise to the presumption that it "contained declarations disastrous to the prosecution case". The presumption that suppressed evidence is unfavorable does not apply where the evidence was at the disposal of both the defense and the prosecution through use of compulsory processes, e.g. subpoena duces tecum.
People v. Pablo, 213 SCRA 1 (1992)

The presumption that evidence willfully suppressed would be adverse if produced does not apply when the testimony of the witness is merely corroborative. Neither does it apply in cases where the witness, as in this case, is available to the accused because then, the evidence would have the same weight against one party as against the other. Mere failure to present the poseur-buyer in a buy-bust operation is not suppression of evidence.
Pascual v. Angeles, 4 Phil. 604 (1905)

Facts: This is an action to recover possession of a tract of land, for payment of rent due (from 1899 to 1902) damages and costs brought by Miguel Pascual against Macario Angeles. The land in question formerly belonged to Ciriaca Pascual (sister of Miguel) who leased such to the defendant Angeles. Upon the death of Ciriaca, it was inherited by the Miguel and Angeles recognized Miguel as heir and successor to his sister, and that he had paid the rents due to the lessor (Ciriaca) to the Miguel since Ciriaca’s death in 1894, when in 1901 eventually decided to keep the land for himself and stopped paying rent. Angeles specifically denied the genuineness and due execution of the lease agreement, and argues that he has been in adverse, quiet, peaceful, public and continuous possession of the same lot for 30 years. The trial court entered judgment in favor of the defendant. The plaintiff filed a motion for a new trial alleging that it was not necessary to show that the land in question had been allotted to the plaintiff in the partition of the estate of his sister since it satisfactorily appeared that the defendant had been paying rent or the plaintiff under the questioned lease, thus recognizing him as the lawful owner and successor to his sister. Also that he had sufficiently proved the identity of the land in question. The motion for a new trial was denied thus he appealed to the SC. Issue: Whether or not Angeles or a tenant can deny the title of his landlord in a contract of lease? Held: The SC held that since the action arose from a contract of lease which presuppose in the lessor a right to the ownership or possession of the property, the lessor cannot be compelled to prove his title thereto. The tenant cannot deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them. Since Miguel was the testamentary successor of his sister, and that the lessee recognized him as possessor and heir to the deceased by paying rent to him. Angeles is now barred from questioning the right of Ciriaca and her successor Miguel to the land.

Also the defendant cannot question the genuineness and due execution of the lease which he himself recognized as it was admitted into evidence. He also cannot question the identity of the land in question since in his answer, he stated that he had been in possession of the lot in question and so both parties were in agreement as to the lot in question.
Ormachea v. Trillana, 13 Phil. 194 (1909)

Facts: Manuel Ormachea Tin-Congco and Luis Vizmanos were engaged in business and that in the course thereof Santiago Trillana (Defendant) purchased from them merchandise to the value of P4,000. In June or July 1901, the partnership was dissolved and the business was divided up between the partners. All accoutnes and debts of the defendant were allotted to the plaintiff. On Jan. 15, 1904, the Plaintiff filed a complaint against defendant to recover said amount. The indebtedness was proven by the documents (vales) signed by the Defendant in favor of Plaintiff or of Vizmanos or Lawa (their agent). In his answer, the defendant alleged that the had already settled his accounts and obligations contracted in the business to which the complaint refers, by means of periodical payments in tuba. In evidence of this, while testifying under oath, he introduced a document dated 19 November 1903, signed by the agent Lawa declaring that the defendant had no outstanding debt with the partnership. The trial judge ruled in favor of the Plaintiff. Issue: Whether or not the defendant is liable to pay the said amount? Held: Yes. When the agent Lawa executed the document, the business had already closed and he had ceased to act in it administration and management. Therefore, he was not authorized to sign the document made out by the debtor, extinguishing the latter’s liability. Since the vales existed, and were in possession of the creditor, it was because the amounts they called for had not yet been paid, inasmuch as an obligation can only be presumed to have been fulfilled when the proofs of its existence have been returned to the debtor.
Yee Hem v. United States, 268 U.S. 178 (1925) County Court of Ulster City v. Allen, 442 U.S. 140 Sandstrom v. Montana, 442 U.S. 510 (1979)

[Note: Sec. 3, Disputable presumptions – (c.) That a person intends the ordinary consequences of his voluntary act.] Facts: In this case, 18 yr. Old David Sandstorm confessed to the slaying of Annie Jessen. Based upon the confession and corroborating evidence, David Sandstorm was charged with deliberate homicide in that he “purposely or knowingly caused the death of Annie Jensen.” At trial, the jury was informed that although Sandstorm admitted killing the victim, he did not do so “purposely or knowingly,” and therefore was not guilty of “deliberate homicide” but of a lesser crime. They contended that 2 court-appointed health experts described the mental state of Sandstorm as compounded by a personality disorder aggravated by alcohol consumption. The prosecution requested the trial judge to instruct the jury that “the law presumes that a person intends the ordinary consequence of his voluntary acts.” Sandstorm’s counsel objected arguing that “the instruction has the effect of shifting the burden of proof on the issue of purpose or knowledge to the defense and that is impermissible under the Federal Constitution and due process of law. The objection was overruled and the jury found petitioner guilty, sentencing him to 100 yrs. in prison. Sandstorm appealed to the Montana SC affirming in toto. Thus, this petition on certiorari to the SC. Issue: Whether or not such instructions given by the Trial judge shifted the of proof on criminal prosecution to the defense? Held: The SC reversed the Montana SC.

The Respondents contention was that the instruction was merely a permissive inference – that is, it allows but did not require the jury to draw conclusions about defendants intent from his actions – and that such inferences are constitutional. Nevertheless, the SC found that the jury was not told that they had a choice of inferring intent but rather it can be seen that a reasonable juror could easily have viewed such an instruction as mandatory. Respondent argues further that even if viewed as a mandatory presumption rather than as a permissive inference, the presumption did not conclusively establish intent but rather could be rebutted. The court pointed out that, a reasonable jury could interpret the presumption as “conclusive” and not technically as a presumption which could be an irrebutable direction by the court to find intent once convinced of the facts triggering the presumption (which is the voluntariness of the killing done by Sandstorm) – thus effectively shifting the burden of persuasion on the element of intent. Montana’s own Rules of Evidence expressly state that the presumption at issue here may be overcome only “by a preponderance of evidence contrary to the presumption.” Such a requirement shifts not only the burden of production but also the ultimate burden of persuasion on the issue of intent. A State must prove every ingredient of an offense beyond a reasonable doubt and may not shift the burden of proof to the defendant by means of such a presumption. Because Sandstorm’s jury may have interpreted the instruction as either a burden shifting presumption or a conclusive presumption, either interpretation would have deprived defendant his right to due process and thus render such instruction unconstitutional.

3. Rule 131, §4: Legitimacy or Illegitimacy
Sec. 4. No presumption of legitimacy or illegitimacy. – There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. (6)

T. Examination of Witnesses 1. Rule 132 §1-18
Sec. 1. Examination to be done in open court. – The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. (1 a) Examination of witnesses presented in a trial or hearing a. done in open court b. under oath or affirmation c. answers of the witness shall be given orally, unless i. the witness is incapacitated to speak, or ii. the question calls for a different mode of answer Sec. 2. Proceedings to be recorded. – The entire proceedings of a trial or hearing, including the questions propounded to a witness and his answers thereto, the statements made by the judge or any of the parties, counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or stenotype or by other means of recording found suitable by the court. A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings. (2 a) The rules now require even the statements of the judge be recorded. Requisites for transcript to be deemed prima facie a correct statement of the proceedings a. made by the official stenographer, stenotypist or recorder and b. certified as correct by him

Sec. 3. Rights and obligations of a witness. – A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness: (1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; (2) Not to be detained longer than the interests of justice require; (3) Not to be examined except only as to matters pertinent to the issue; (4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or (5) Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (3 a, l9 a) Obligation of a witness – answer questions, although his answer may tend to establish a claim against him Rights of a witness a. To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; b. Not to be detained longer than the interests of justice require; c. Not to be examined except only as to matters pertinent to the issue; d. Not to give an answer which will tend to subject him to a penalty for an offense, unless otherwise provided by law; or e. Not to give an answer which will tend to degrade his reputation, unless it be to the fact i. at issue or ii. from which the fact in issue would be presumed iii. of his previous final conviction for an offense. Sec. 4. Order in the examination of an individual witness. – The order in which an individual witness may be examined is as follows: (a) Direct examination by the proponent; (b) Cross-examination by the opponent; (c) Re-direct examination by the proponent; (d) Re-cross-examination by the opponent. (4) Sec. 5. Direct examination. – Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. (3 a) Direct examination – the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. Sec. 6. Cross-examination; its purpose and extent. – Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. (8a) Witness may be cross-examined by the adverse party a. as to any matters stated in the direct examination, or connected therewith b. with sufficient fullness and freedom i. to test his 1. accuracy and 2. truthfulness and 3. freedom from interest or bias, or the reverse ii. to elicit all important facts bearing upon the issue

Sec. 7. Re-direct examination; its purpose and extent. – After the crossexamination of the witness has been concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the crossexamination. On re-direct examination, questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion. (12) Re-direct examination a. to explain or supplement his answers given during the cross-examination b. with leave of court, on matters not dealt with during the cross-examination Sec. 8. Re-cross-examination. – Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion. (13) Re-cross-examination a. on matters stated in his re-direct examination, and b. with leave of court, other matters Sec. 9. Recalling witness. – After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. (14) A witness can be recalled only with leave of the court. Sec. 10. Leading and misleading questions. – A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed, except: (a) On cross examination; (b) On Preliminary matters; (c) When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; (d) Of an unwilling or hostile witness; or (e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. It is not allowed. (5 a, 6 a, and 8 a) Leading questions – a question which suggests to the witness the answer which the examining party desires GR: Leading questions not allowed. Exceptions a. cross examination; b. Preliminary matters; c. difficulty in getting direct and intelligible answers from a witness who is i. ignorant, or ii. a child of tender years, or iii. feeble mind, or iv. a deaf-mute; d. unwilling or hostile witness (cf Rule 132, Sec. 12); or

Sec. 12. Party may not impeach his own witness. – xxx A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand.

e. witness is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.

Misleading question – one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. Misleading questions are never allowed. No exceptions. Sec. 11. Impeachment of adverse party's witness. – A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. (15) Impeachment of adverse party's witness a. contradictory evidence b. evidence that his general reputation for truth, honesty, or integrity is bad c. evidence that he has made at other times statements inconsistent with his present testimony d. evidence of conviction of an offense Sec. 12. Party may not impeach his own witness. – Except with respect to witnesses referred to in paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his credibility. A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand. The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but such cross examination must only be on the subject matter of his examination-in-chief. (6 a, 7 a) GR: The party producing a witness is not allowed to impeach his credibility. Exceptions: When party may impeach his own witness (except evidence of bad character) a. an unwilling or hostile witness; or b. a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. Grounds for declaring a witness unwilling or hostile a. adverse interest b. unjustified reluctance to testify, or c. misled the party into calling him to the witness stand. Consequences of being an unwilling, hostile, or adverse witness a. may be impeached by the proponent, except by evidence of bad character b. may also be impeached by the opponent c. may be cross-examined by the opponent, only on the subject matter of his direct examination d. proponent may ask leading questions Sec. 13. How witness impeached by evidence of inconsistent statements. – Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. (16) Requisites for impeaching a witness by prior inconsistent statements

a. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. b. the statements must be i. related to him ii. with the circumstances of the times and places and the persons present c. he must be asked whether he made such statements d. if so, allowed to explain them Escolin: if the witness refuses to acknowledge the prior inconsistent statement, present someone who can testify that the recording of the prior statement was accurate (e.g. stenographer, in which case, the statement is prima facie evidence of the fact stated therein). Sec. 14. Evidence of good character of witness. – Evidence of the good character of a witness is not admissible until such character has been impeached. (17) cf Rule 130, Sec. 51
Sec. 51. Character evidence not generally admissible; exceptions. – xxx (c) In the case provided for in Rule 132, Sec(ion 14. (46 a, 47 a)

Evidence of the good character of a witness is not admissible until such character has been impeached. Sec. 15. Exclusion and separation of witnesses. – On any trial or hearing, the judge may exclude from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses. The judge may also cause witnesses to be kept separate and to be prevented from conversing with one another until all shall have been examined. (18) Sec. 16. When witness may refer to memorandum. – A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly written or recorded; but in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross-examine the witness upon it, and may read it in evidence. So, also, a witness may testify from such a writing or record, though he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. (10 a) Requisites for a witness to refer to a memorandum a. the memorandum must have been written or recorded by himself or under his direction b. either i. at the time when the fact occurred, or ii. immediately thereafter, or iii. at any other time when the fact was fresh in his memory c. he knew that the same was correctly written or recorded d. the memorandum must be produced and may be inspected by the adverse party, who may, if he chooses, cross-examine the witness upon it, and may read it in evidence. e. if the witness retains no recollection of the particular facts, he must swear that the writing or record correctly stated the transaction when made Sec. 17. When part of transaction, writing or record given in evidence, the remainder admissible. – When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence. (11 a)

When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other. When a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence. cf Dusepec v. Torres, 39 Phil 760 (1919) under Rule 130 Sec. 42 Sec. 18. Right to inspect writing shown to witness. – Whenever a writing is shown to a witness, it may be inspected by the adverse party. (9 a)

2. Cases a. Examination in Open Court
People v. Estenzo, 72 SCRA 428 (1976)

Facts: In Crim. Case no. 289, People vs. Ojoy, of CFI of Iloilo, after the accused had testified in his defense, his counsel manifested that for his subsequent witnesses he was filing only their affidavits subject to cross-examination by the prosecution on matters stated therein. Private prosecutors objected to the proposed procedure but notwithstanding the Judge issued an order sustaining the proposed procedure. Contending that the said order violates Sec. 1 and Sec. 2 of Rule 132 and Sec. 1 of Rule 133, the petitioners herein file this petition on certiorari with the SC. Issue: Whether or not said order is violative of the Rules of Court, requiring that the testimonies of witnesses should be given orally in open court? Held: The SC annuls said order. The main and essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the adverse party the opportunity of cross-examination. "The opponent" demands confrontation for the purpose of cross-examination which cannot be had except by the direct and personal putting of questions and obtaining immediate answers. Personal appearance of the witness before the judge, enables the judge as the trier of facts "to obtain the elusive and incommunicable evidence of a witness deportment while testifying, and a certain subjective moral effect is produced upon the witness. It is only when the witness testifies orally that the judge may have a true idea of his countenance, manner and expression, which may confirm or detract from the weight of his testimony. The physical condition of the witness will reveal his capacity for accurate observation and memory, and his deportment and physiognomy will reveal clues to his character. The great weight given the findings of fact of the trial judge in the appellate court is based upon his having had just that opportunity and the assumption that he took advantage of it to ascertain the credibility of the witnesses. Thus, if a trial judge prepares his opinion immediately after the conclusion of the trial, with the evidence and his impressions of the witnesses fresh in his mind, it is obvious that he is much more likely to reach a correct result than if he simply reviews the evidence from a typewritten transcript, without having had the opportunity to see, hear and observe the actions and utterances of the witnesses. Rules governing the examination of witnesses are intended to protect the rights of litigants and to secure orderly dispatch of the business of the courts. Under the rules, only questions directed to the eliciting of testimony which, under the general rules of evidence, is relevant to, and competent to prove, the issue of the case, may be propounded to the witness. A witness can testify only on those facts which he knows of his own knowledge. Thus, on direct examination, leading questions are not allowed, except or, preliminary matters, or when there is difficult in getting direct and intelligible answer from the witness who is ignorant, a child of tender years, or feebleminded, or a deaf mute. It is obvious that such purpose may be subverted, and the orderly dispatch of the business of the courts thwarted if trial judges are allowed, as in the case at bar, to adopt any procedure in the presentation of evidence other than what is specifically authorized by the Rules of Court.

Galman v. Pamaran, 138 SCRA 294 (1985)

Facts: Aug. 21, 1983, former Senator Benigno Aquino Jr. was assassinated as he was about to disembark at the tarmac of the Manila International Airport. Lying prostrate on the ground also was the dead body of Rolando Galman, the supposed assassin. PD 1886 was promulgated by then President Marcos creating an ad hoc Fact Finding Body which became known as the Agrava Board (chaired by Justice Corazon Agrava). Pursuant to said decree various witnesses testified and appeared before the said board and/or produced documentary and other evidence. Among the witnesses where Gen. Fabian Ver, Gen. Prospero Olivas, and orther soldiers comprising Aquino’s security detail. Upon termination of the investigation, 2 reports were submitted to Pres. Marcos and which was referred to the Tanodbayan. After conducting the preliminary investigation, the Tanodbayan filed with the Sandiganbayan 2 informations for murder (one for Aquino, the other for Galman) against Ver et al either as accessories, accomplices and several principles. Upon arraignment, all accused pleaded guilty. In the course of trial, the prosecution offered as part of its evidence, the individual testimonies of Ver et al before the Agrava Board. Ver filed a formal motion to exclude his testimony in said board contending that it is violative of his right against self-incrimination and the immunity granted by PD 1886. Olivas and the other respondents followed Ver’s motion with their own similar motion. The Tanodbayan opposed said motion contending that the immunity could not be granted because of their failure to invoke their right against self-incrimination before the Agrava Board. On June 13, 1985, the Sandiganbayan issued a resolution admitting all the evidence except the testimonies produced by Ver et al in view of the immunity granted by PD 1886. MR was denied. Issue: Whether or not the testimonies given by Ver et al can be admitted in evidence, being violative of their right to self-incrimination? Held: 9-5, Petition Dismissed. LACK OF DUE PROCESS AND APPLICATION OF EXCLUSIONARY RULE As to the argument that the fact-finding initiative of the Agrava Board did not constitute a custodial investigation - The court herein held that the Agrava Board was created by PD 1886 not merely to determine the facts surrounding Aquino’s death but also to identify the culprits for their consequent prosecution. As pointed out PD 1886, sec. 12 provides that the Agrava Board if its findings warrant the prosecution of any person the Board may file the initiatory complaint with the proper government agency. By its very nature, the investigation and questioning made by the Agrava Board was in the nature of a custodial investigation requiring that the accused be given counsel and that he be appraised of his rights under the Miranda doctrine. The court found in review of the pleadings and annexes of the proceedings of the Agrava Board was constitutionally infirm for not conforming with the specified constitutional standards thus they should be excluded. EFFECT OF IMMUNITY STATUTES Use Immunity vs. Transactional Immunity - The Court further pointed out that PD 1886 denied to Ver et al the right to remain silent because under Sec. 5, PD 1886 that they should answer all questions raised if not they would be cited for contempt of court. Also, they cannot invoke the right not to be a witness against themselves. Nevertheless, PD 1886’s denial of such rights was based on the fact that the law provided immunity to the persons who may testify in front of said board. Thereinafter, the court differentiated, “use immunity” from “transactional immunity” as applied here and granted by law. “Use immunity” prohibits use of witness’ compelled testimony and its fruits in any manner in connection with the criminal prosecution. “Transaction Immunity” grants

immunity to the witness from prosecution for an offense to which his compelled testimony relates. PD 1886 grants “use immunity” only. – It makes only the witness immune from use of any statement given but not immune from prosecution by reason or on the basis thereof. Merely testifying do not render the witness immune from prosecution notwithstanding his invocation of his right of self-incrimination. He is merely saved from the use against him of such statement and nothing more. Stated otherwise, he still runs the risk of being prosecuted even if he sets up his right against self-incrimination. Due process demands that the Agrava board should have been informed of their Miranda rights. Invocation of right to remain silent before giving testimony and to prevent its use is wrong. – The literal interpretation of PD 1886 in such a way is repugnant to Article IV, Sec. 20 of the Constitution, which is the first test of admissibility. Dissents: Teehankee – The right against self-incrimination in proceedings other than criminal is considered an option of refusal to answer, not a prohibition of inquiry. The privilege must be invoked at the proper time and that time is when the question is propounded. This has to be so because before a question is asked there would be no way of telling whether the information to be elicited from the witness is self-incriminating or not. A person who has been summoned to testify ‘cannot decline to appear, nor can he decline to be sworn as a witness’ and no claim of privilege can be made until a question calling for incriminating answer is asked; at that time, and, generally speaking, at that time only, the claim of privilege may properly be interposed. Melencio-Herrera - There should be no automatic “immunity bath” of the entire testimony before the Board for immunity does not extend to such of the evidence as is not privileged. Relova – Under PD 1886, testimony adduced before the Agrava Board may not be used against the witness only after he has invoked the privilege against self-incrimination. Therefore, respondents cannot invoke the immunity clause of PD 1886 since they did not claim the privilege to remain silent when being asked questions at the Agrava Board hearing.

b. Cross-Examination
de la Paz, Jr. v. IAC, 154 S 65 (1987)

Where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. Implied waiver of the right of cross-examine may take various forms, as long as the party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of it reasons attributable to himself alone. Repeated absences, and/or unjustified motions for postponement of the hearing in which the witness is scheduled to be cross-examined until the witness passed away is a waiver of the right to crossexamine. Facts: On May 12, 1983, Loreto de la Paz filed a complaint against the petitioners with the RTC of Rizal for a judicial declaration of ownership of a 43,830 square meter parcel of land in the name of Ponciano de la Paz with damages Loreto alleged that the subject parcel of land was among the properties adjudicated to her and her mother as a result of a partition submitted by the heirs of Ponciano de la Paz and approved by the court. The subject matter of Civil Case No. 1399 was Ponciano's testate estate. In their answer, the petitioners denied that the disputed lot was among the properties adjudicated to Loreto and her mother. They claimed that the parcel of land was not accounted for in the probate proceedings but is actually community property of the parties. The parties, except for petitioner Enrique de la Paz, were admittedly compulsory heirs of Ponciano de la Paz who died in 1916. Loreto was the only legitimate child of Ponciano

while: 1) Emilio de la Paz, Jr., is the son of Emilio, a recognized natural child of Ponciano; 2) Manuela de la Paz is the recognized natural child of Ponciano; 3) Natividad de la Paz is the daughter of Emilio, recognized natural child of Ponciano; 4) Margarita de la Paz is the daughter of Wenceslao, a recognized natural child of Ponciano; and 5) Zenaida de la Paz, is the daughter of Augusto, another recognized natural child of Ponciano. As regards petitioner Enrique de la Paz, Loreto denied his claim that he is one of the heirs of Ponciano. The petitioners, however, allege that he is also a compulsory heir of Ponciano, he being the son of Ponciano de la Paz, Jr., the eldest child of the decedent. The parties failed to arrive at an amicable settlement during pre-trial. Hence, trial on the merits followed. Loreto took the witness stand. She finished her direct testimony on March 12, 1984. On April 25, 1984, the petitioners' counsel began his cross-examination of Loreto. The cross-examination was, however, not completed. The petitioners' counsel moved in open court for the continuance of the cross-examination on the ground that he still had to conduct a lengthy cross-examination. On May 18, 1984, Loreto's counsel filed a motion for "correction of transcript" due to some errors in the transcript of stenographic notes taken during the direct testimony of Loreto. The motion was granted. This order granting the correction prompted the petitioners'' counsel to manifest that he would not be able to undertake the cross-examination of the witness as scheduled. The trial was rescheduled three times. During the scheduled trial on September 14, 1984, neither the petitioners, nor their counsel appeared despite due notice. Loreto's counsel, therefore, filed a motion that she be allowed to present evidence ex parte before a commissioner. The motion was granted and Loreto presented additional evidence ex parte in the afternoon of the same day. On this same date, she finished the presentation of her evidence and submitted her case for decision. Despite this development, the petitioners upon their motion were allowed to crossexamine Loreto. On the scheduled hearing set on September 18, 1984, the petitioners' counsel failed to appear, and the cross-examination of Loreto was deferred for the fourth (4th) time. Finally, on November 7, 1984, the petitioners' counsel resumed his repeatedly postponed cross-examination of Loreto. The cross-examination was, however, cut short and rescheduled again on motion of the petitioners' counsel. Unfortunately, Loreto died on December 1, 1984. An amended complaint was filed for the purpose of substituting the respondents, herein, they being the children and heirs of Loreto. At the resumption of the trial on January 21, 1985, the petitioners moved verbally to strike off the record the entire testimony of Loreto. The motion was denied. A verbal motion for reconsideration was likewise denied. The petitioners filed a petition with the IAC to annul the lower court's orders dated January 24, 1985 and February 11, 1985 and to prohibit the court from further proceeding. This petition notwithstanding, the lower court continued the proceedings. Thus, on March 29, 1985, the lower court promulgated a decision declaring the private respondents, the children and heirs of Loreto, as the true owners of the subject parcel of land. The IAC denied the petition and the MR. Issue: Whether or not the testimony of Loreto should be stricken off the records. Held: A motion to strike off testimony from the record is an interlocutory order. Wellsettled is the rule that interlocutory orders may not be subjects of a petition of certiorari unless issued in patent abuse of discretion.

In the case at bar, the petitioners' failure to cross-examine Loreto was through no fault of the respondents. As can be gleaned from the record, Loreto was available for crossexamination from the time she finished her direct testimony on March 12, 1984 to November 7, 1984, the last scheduled hearing of the case before her death on December 1, 1984. The petitioners not only kept on postponing the cross-examination but at times failed to appear during scheduled hearings. The postponement of the trial on May 23, 1984 to a later date duet o the correction of the stenographic notes of Loreto's testimony may be justified, but the same cannot be said for the subsequent posponements requested by the petitioners. The scheduled trials before November 7, 1984, did not push through, because of the petitioners' fault. It may also be recalled that at the scheduled hearing on September 14, 1984 neither the petitioners nor their counsel appeared leading to the presentation of evidence ex parte. And also during the scheduled hearing on September 18, 1984, when the petitioners were allowed to crossexamine Loreto despite the fact that the case was already deemed submitted for decision, the petitioners again failed to appear. Under these circumstances, we rule that the petitioners had waived their right to crossexamine Loreto. Through their own fault, they lost their right to cross-examine Loreto. Her testimony stands.
Fulgado v. CA, 182 S 81 (1990)

The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal, civil, or administrative, is a fundamental right which is part of due process. The right is not to an actual, but a mere opportunity to cross-examine. Failure of the adverse party to move to schedule the hearing for the cross-examination of a witness before he died or migrated abroad (the imminence of which the adverse party was aware) is a waiver of such right. The burden is on the party wishing to exercise the right to cross-examination, not necessarily the plaintiff, to schedule the hearing. Facts: On September 9,1967, Ruperto Fulgado, a man approaching the twilight of his life, undertook the arduous task of filing an action in the CFI against herein respondents for the annulment of certain contracts of sale and partition with accounting. The defendants (herein private respondents) filed their answer to the complaint with special and affirmative defenses and a counterclaim. After several deferments, the pre-trial conference was finally set for February 1, 1968 at 8:30 in the morning. Private respondents and their counsel failed to appear on time at the pre-trial and were subsequently declared as in default. Plaintiff Fulgado was then allowed to present his evidence ex parte before the Deputy Clerk of Court. Meanwhile, upon learning of their predicament, private respondents immediately filed a motion to lift the order of default on the same day that the order was issued. The trial court denied said motion in its order of February 16, 1972. Their motion for reconsideration was also denied. Persistently, respondents filed a petition for relief from the default order. Once more, this was denied. On April 24, 1972, the trial court rendered a decision in favor of plaintiff Ruperto Fulgado. On appeal, however, the CA found that private respondents had been deprived of their day in court by the unjust denial of their motion to lift the order of default. The Court of Appeals' decision became final and executory on June 27,1974 and the records of the case were remanded to the trial court. The case was set for hearing but was rescheduled because the judge went on leave. In the meantime, Fulgado died and was substituted by his heirs. Fulgado's witness, Jose Fulgado, referred to in the dispositive part of the Appellate Court's judgment, had earlier migrated to the United States. The respondents prayed for the sticking off from the records the testimonies of the petitioner’s witnesses which the court allowed. As a consequence, the case was dismissed. The CA affirmed the TC’s decision. Issue: Whether or not the testimony of the witnesses should be excluded.

Held: The appeal is well-taken. The principle requiring a testing of testimonial statements by cross-examination has always been understood as requiring, not necessarily an actual cross-examination, but merely an opportunity to exercise the right to cross-examine if desired. Thus the resolution of the present case would hinge on whether or not this was an opportunity for cross-examination. From the records presented, it is manifest that private respondents had enough opportunity to cross-examine plaintiff Fulgado before his death, and Jose Fulgado before his migration. When the Court of Appeals set aside the default judgment and remanded the case to the court of origin for trial on the merits, "granting to the defendants the opportunity to present their evidence." This was a positive signal for them to proceed with the cross-examination of the two Fulgados. But despite knowledge of Ruperto's failing health (he was then 89 years of age) and Jose's imminent travel to the United States, private respondents did not move swiftly and decisively. They tarried for more than one year from the finality of the Appellate Court's decision on June 27, 1974 to ask the trial court on July 3, 1975 to set the already much delayed case for hearing "in any date of August and September ... ."
Razon v. CA, 207 SCRA 234 (1992) Capital Subdivision v. Negros Occidental, 52 O.G. 4672 (1956) U.S. v. Mercado, 26 Phil. 127 (1913) U.S. v. Marshall, 762 F.2d 419 (5th Cir. 1985)

c. Recalling Witnesses
People v. Rivera, 200 S 786 (1991)

The discretion to recall a witness is not properly invoked or exercisable by an applicant's mere general statement that there is a need to recall a witness "in the interest of justice," or "in order to afford a party full opportunity to present his case," or that, as here, "there seems to be many points and questions that should have been asked" in the earlier interrogation. To regard expressed generalities such as these as sufficient ground for recall of witnesses would make the recall of witness no longer discretionary but ministerial. Something more than the bare assertion of the need to propound additional questions is essential before the Court's discretion may rightfully be exercised to grant or deny recall. There must be a satisfactory showing of some concrete, substantial ground for the recall. There must be a satisfactory showing on the movant's part, for instance, that particularly identified material points were not covered in the crossexamination, or that particularly described vital documents were not presented to the witness whose recall is prayed for, or that the cross-examination was conducted in so inept a manner as to result in a virtual absence thereof. Absent such particulars, there would be no foundation for a trial court to authorize the recall of any witness. Furthermore, failure of the recalled witness to be appear is not ground to strike out his testimony. There should have been a showing of the indispensability of his further examination, what it was that would have been elicited, and that such additional testimony would cause the evidence to become inadmissible. Lastly, striking out of testimony must be upon motion. It can not be ordered motu propio. Facts: Wilfredo Sembrao was charged with Arson for allegedly willfully causing the fire which destroyed the 2nd and 3rd floors of the “I Love You Restaurant and Sauna Bath” Owned by Juanito Tan and frequented by Stanley Fabito. On December 8, 1987, prosecution witness Benjamin Lee testified on Sembrano’s act of running from the VIP room where the fire started and his refusal to stop. On April 26, 1987, cross, re-direct and re-cross examinations were conducted after which Lee was asked to step down.

After the prosecution completed its presentation of evidence but before it could rest its case, defendant’s original counsel withdrew and was substituted by defendant’s original counsel withdrew and was substituted by atty. Rodriguez, who then filed a motion to recall Lee for further examination on the ground that “there seems to be many points and questions that should have been asked but were not profounded by the other defense counsel who conducted the cross-examination.” The court granted the motion over objections of the prosecution. Lee failed to come since he left his work and transferred somewhere else to dispense with the recall of Lee but the RTC denied this and even ordered the testimony of Lee to be stricken of the record due to a lack of complete cross-examination. Hence, this petition. Issue: Whether or not the RTC’s grant of leave to recall Lee was proper? Held: No. Certiorari granted. Although the Rules of Court gives the court discretion in granting leave for the recall of witnesses, such cannot be exercised on the basis of applicant’s mere general statement that there is need to recall a witness “in the interest of justice” or “in order to afford a party full opportunity to present his case” or the reason invoked in the present case. To regard these generalities as sufficient ground to recall a witness would make it ministerial rather than discretionary. Thus, there must be a satisfactory showing of some concrete, substantial ground for the recall (e.g. that particularly identified material points were not covered in the cross, that particularly described vital documents were not presented to the witness whose recall is prayed for, that the cross-examination was conducted in so inept a manner as to result in a virtual absence thereof). Here, the questions that were supposedly not asked were not specified in the motion. Moreover, the RTC acted whimsically when it ordered the striking out of Lee’s testimony. The court acted unilaterally without any motion to this effect and without giving the prosecution opportunity to contest it. The striking out was ordered without any showing that further cross was really indispensable. Here, Lee was already subjected to both cross and re-cross so that the absence of cross can neither be invoked as a ground to strike out Lee’ testimony.
People v. Del Castillo, 25 SCRA 716 (1968)

Facts: Estrada was one of several accused in kidnapping Elvira Principe. The CFI found Estrada guilty and was sentenced to death. The case of the people was established thru the testimonies of 12 witnesses. Ceribo, one of the witnesses who testified for the prosecution, testified that he was a surrendered Huk and he already knew about the kidnapping because there was a conference in Barrio Biga where it was agreed to kidnap Elvira because she was the one pointed to by Estrada. Estrada’s defense was that the charge against him was a pure concoction. Estrada sought to recall Ceribo because it was claimed that he was to retract his previous testimony from the prosecution and then testify for the defense. However, the court denied the defense the right to call back Ceribo. Issue: Whether or not the court abused its discretion in denying the defense the right to call back witness Ceribo? Held: The SC held that under Sec. 14, Rule 132 Rules of Court explicitly provides that the court may grant or withhold leave to recall a witness, in its discretion, as the interests of justice may require. It was the better part of discretion and caution on the part of the court to have denied it. The record is loaded with circumstances tending to show insidious attempts, too obvious to be overlooked, to tamper with the witnesses for the prosecution.
Victorias Milling Co., Inc. v. Ong Su, 79 SCRA 207 (1977)

d. Leading Questions
People v. Salomon, 229 SCRA 403 (1994)

A mental retardate is not for this reason alone disqualified from being a witness. As in the case of other witnesses, acceptance of his testimony depends on its nature and

credibility or, otherwise put, the quality of his perceptions and the manner he can make them known to the court. In the case before us, the trial court noted that although Sylvia's speech was slurred and it was necessary at times to ask her leading questions, "her testimony was positive, clear, plain, coherent and credible." Her mental condition did not vitiate her credibility.
State v. Scott, 149 P2d 152 (1944)

e. Impeaching One's Own Witness
Becker v. Eisenstodt, 158 A.2d 706 (1960)

f. Impeachment By Bias
U.S. v. Abel, 469 U.S. 45 (1984) U.S. v. Harvey, 547 F.2d 720 (2d Cir.1976)

g. Impeachment By Prior Inconsistent Statement
Villalon, Jr. v. IAC, 144 S 443 (1986)

A party may impeach a witness by introducing into evidence their previous testimony in his disbarment proceedings which are inconsistent with their current testimony. An attorney may waive the confidential nature of his own disbarment proceedings. Facts: On May 16, 1979, a case for "Annulment of Deed of Absolute Sale, Recovery of Possession and Damages" was filed by private respondent Catalina NEVAL Vda. de Ebuiza, mother of the other private respondents all surnamed Ebuiza, against petitioner Atty. Roman R. Villalon, Jr. and his sons for the recovery of a parcel of land located at Urbiztondo, San Juan. La Union. The property involved was also the subject of a Disbarment Case previously filed on July 22, 1975 with this Court by private respondent Francisco EBUIZA, charging petitioner Villalon with falsification of a deed of absolute sale of that property in his and his sons' favor, but which petitioner Villalon claimed to have been his contingent fee for the professional services he had rendered to EBUIZA's parents. The Disbarment Case was referred by this Court to the Office of the Solicitor General for investigation, report and recommendation where testimonial evidence was received. The case still pends thereat. In the course of the trial of the Civil Case, petitioners introduced in evidence the testimonies of some of the private respondents, namely, NEVAL, EBUIZA, and Justina Ebuiza San Juan (NEVAL, et als.), in the Disbarment Case for the purpose of impeaching their testimonies in the Civil Case. Private respondents filed a Motion to Strike from the records of the Civil Case all matters relating to the proceedings in the Disbarment Case. Over petitioners' opposition, on September 20, 1985, the TC issued its questioned Order granting the Motion to Strike. Their MR was denied so they filed a petition for Certiorari, Prohibition, and mandamus with the IAC which denied their petition. Held: By issuing its Order to strike, the Trial Court deprived petitioners of their right to impeach the credibility of their adverse parties' witnesses by proving that on former occasions they had made statements inconsistent with the statements made during the trial, despite the fact that such statements are material to the issues in the Civil Case. The subject matter involved in the disbarment proceedings i.e., the alleged falsification of the deed of absolute sale in petitioners' favor, is the same issue raised in the Civil Case wherein the annulment of the said deed of absolute sale is sought. The offer of evidence, suggested by respondent Appellate Court as a remedy open to petitioners, while procedurally correct, would be inadequate and ineffective for purposes of impeachment. The broader interests of justice would then require that petitioners be

given sufficient latitude to present and prove their impeaching evidence for judicial appreciation.
People v. Resabal, 50 Phil 780 (1927)

To impeach a witness by prior inconsistent statements, he must be given ample opportunity to explain the discrepancies by a reading to him of such prior statement. Mere presentation of the statement, without said declaration having been read to the witness while he testified, is no ground for impeaching his testimony. Escolin: Note that the accused now does not have the right to cross-examine the witness during the preliminary investigation. He can only give questions to the investigating officer to be propounded to the witness. Facts: The evidence shows, as an indisputable fact, that in the early morning of April 25, 1926, one Primo Ordiz died at his own home in the barrio of Bogo, municipality of Maasin, Leyte, form the effects of an internal hemorrhage caused by a sharp wound in the left lung, as appears from the death certificate. The defense argues that Glicerio Orit is not a credible witness, because of his having been excluded from the information to be used as a witness for the prosecution; and, because, moreover, of the contradiction in his testimony at the preliminary investigation and during the trial. The TC convicted the accused of murder. Counsel for the defense alleges that the trial court erred in not ignoring Glicerio Orit's testimony, and in not acquitting the accused Alejo Resabal on the ground of reasonable doubt. Held: We are of the opinion that the mere fact of having been excluded from the information to be used as a witness for the Government, does not prevent this witness from telling the truth in this case, especially in the absence of proof showing the interest he might possibly have in testifying against the accused. Neither is the apparent contradiction which may be noted in his declarations before the court of the justice of the peace, and before the court of first instance sufficient to discredit his testimony, for the simple reason that this witness was not given ample opportunity, by a reading to him of his declarations before the court of the justice of the peace, to explain the discrepancies noted by counsel for the accused. The mere presentation of Exhibit 1, without said declaration having been read to the witness while he testified in the Court of First Instance, is no ground for impeaching his testimony.
U.S. v. Webster, 734 F.2d 1191 (7th Cir. 1984)

h. Impeachment By Other Means
U.S. v. Mercado, 20 Phil. 127 (1913) Mosley v. Commonwealth, 420 SW2d 679 (1967) Coles v. Harsh, 276 P. 248 (1929) U.S. v. Medical Therapy Services, 583 F.2d 36 (2d Cir. 1978) Newton v. State, 127 A. 123 (Md. 1924) State v. Oswalt, 381 P. 2d 617 (1963)

i. Exclusion of Witnesses

People v. Sandal, 54 Phil. 883 (1930)

Facts: Sandal, Arimao, Lonsing, Mama and Pampang were charged and convicted for the murder of Eleno Lamorena in the CFI of Lanao. On appeal, said persons assigned as error the trial court’s refusal to admit a certain witness presented by the defense on the ground that said witness had been present during a hearing despite the court’s order that all witnesses leave the court. Issue: Whether or not the exclusion of the witness was proper? Held: Yes. Conviction affirmed. Under the circumstances of the case, it lies within the discretion of the court to admit or reject the testimony of the witness. Although the SC is of opinion that the lower court should have admitted the testimony of the witness, especially when he said that he did not hear what the other witnesses testified, yet there is nothing to show that this error has affected appellant’s defense especially since there is no indication whatsoever as to what the witness would have stated in his testimony.
State v. Bishop, 492 P2d 509 (1972)

Facts: Joe Berry Bishop was convicted of sale and possession of dangerous drugs. When the case was called for trial, defense counsel requested all witnesses be excluded. The prosecutor stated that most of his witnesses were police officers. Counsel for the defendant argued that his client would be prejudiced by allowing the officers to remain and moved for their exclusion. This motion was denied because the trial court wanted the police officers who would be witnesses to be able to view the trail as an educational experience, and wanted them to be able to see the fruits of their labor. Hence, this appeal to the CA of Oregon. Issue: Whether or not the TC erred in not excluding the witnesses and was the defendant prejudiced by this failure to exclude the witnesses? Held: Yes, the trial court erred. A review of Oregon SC cases reveals that a motion to exclude witnesses is normally granted. The practice of excluding witnesses from the courtroom except while each is testifying is to be strongly recommended, particularly here the testimony of the witnesses is in any measure cumulative or corroborative. However, these authorities mean that when one party moves to exclude witnesses and the other party voices no objection, the motion should always be granted. When the motion is opposed, the trial court’s discretion comes into play. The trail court must weigh the “good cause shown” for not excluding witnesses against policy favoring exclusion. Thus, if the record contains some showing of good cause for not excluding the witnesses and if the trial court made a reasonable choice between the good cause shown and the policy favoring exclusion, its decision will not be disturbed on appeal. But if the record contains no reason for not excluding witnesses, or an insufficient reason, then the trial court has abused its discretion. In this case, the CA found that the reasons advanced by the trial court were not relevant to the purpose of the trail, namely, the determination of whether the defendant was guilty of the crime charged. Balanced against the danger that the witnesses memories might be confused by other testimony, and the other reasons for the rule of sequestration (exclusion), the reasons advanced by the court were insufficient. Yes, he was prejudiced. The State has the burden to prove the lack of prejudice from denial of defendant’s motion to exclude witnesses, and when a trail court has abused its discretion by not excluding witnesses, prejudice will be assumed unless the record affirmatively reflects the contrary.

j. Refreshing Recollection
State v. Peoples, 319 S.E. 2d 177 (1984)

U.Authentication and Proof of Documents 1. Rule 132 §19-33

Sec. 19. Classes of documents. – For the purpose of their presentation in evidence, documents are either public or private. Public documents are: (a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (b) Documents acknowledged before a notary public except last wills and testaments; and (c) Public records, kept in the Philippines, of private documents required by law to be entered therein. All other writings are private. (20a) Public documents a. written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; b. notarized documents, except last wills and testaments; and c. public records, kept in the Philippines, of private documents required by law to be entered therein.
Public documents Genuineness and authenticity presumed Binding against the parties and 3rd persons Certain transactions are required to be in a public document (e.g. donation of real property) Private documents Must prove genuineness and execution Binds only parties to the document due

Sec. 20. Proof of private document. – Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker. (cf with Rule 132, Sec. 22) Any other private document need only be identified as that which it is claimed to be. (21 a) Sec. 22. How genuineness of handwriting proved. – The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. (23 a) Sec. 21. When evidence of authenticity of private document not necessary. – Where a private document is more than thirty years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. (22 a) Requisites for admissibility of private document a. offered as authentic – due execution and authenticity must be proved i. either by 1. anyone who saw the document executed or written; or

2. evidence of the genuineness of the signature or handwriting of the maker. a. any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his 1. upon which the witness has acted or been charged, and 2. has thus acquired knowledge of the handwriting of such person b. a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge ii. Unless it is an ancient document; requisites 1. more than 30 years old 2. produced from a custody in which it would naturally be found if genuine, and 3. unblemished by any alterations or circumstances of suspicion b. not offered as authentic – identified as that which it is claimed to be Sec. 23. Public documents as evidence. – Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. (24 a) Documents consisting of a. entries in public records made in the performance of a duty by a public officer – prima facie evidence of the facts therein stated. b. all other public documents – evidence, even against a 3rd person, of the fact which gave rise to their execution and of the date of the latter. Sec. 24. Proof of official record. – The record of public documents referred to in paragraph (a) of Section 19 (official acts), when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (25 a) The record of public documents of official acts may be evidenced by a. an official publication thereof or b. a copy i. attested by 1. the officer having the legal custody of the record, or 2. his deputy, and ii. if the record is not kept in the Philippines 1. accompanied by a certificate that such officer has the custody made by a. secretary of the embassy or legation b. consul general c. consul d. vice consul, or e. consular agent or f. any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept 2. authenticated by the seal of his office. Procedure in obtaining copy of foreign official acts a. get a copy from the legal custodian b. have the legal custodian attest that the copy is correct c. have the Philippine consul certify that the person in #2 is the legal custodian of a copy of official act Sec. 25. What attestation of copy must state. – Whenever a copy of a document or record is attested for the purpose of evidence, the attestation

must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. (26 a) Attestation of copy must a. state the copy is a correct copy of the original, or a specific part thereof, as the case may be b. be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court Sec. 26. Irremovability of public record. – Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. (27 a) GR: Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept Exception: upon order of a court where the inspection of the record is essential to the just determination of a pending case Sec. 27. Public record of a private document. – An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (28a) Public record of a private document may be proved by a. the original record, or b. a copy thereof i. attested by the legal custodian of the record ii. with an appropriate certificate that such officer has the custody Sec. 28. Proof of lack of record. – A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry. (29) Proof of lack of record a. A written statement i. signed by an officer having the custody of an official record or by his deputy ii. that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, b. accompanied by a certificate that such officer is supposed to have custody If a notarized document is lost, get certifications of loss from a. notary public b. bureau of archives c. clerk of court who commissioned the notary public Sec. 29. How judicial record impeached. – Any judicial record may be impeached by evidence of: (a) want of jurisdiction in the court or judicial officer, (b) collusion between the parties, or (c) fraud in the party offering the record, in respect to the proceedings. (30 a) Any judicial record may be impeached by evidence of a. want of jurisdiction in the court or judicial officer b. collusion between the parties, or c. fraud in the party offering the record, in respect to the proceedings Sec. 30. Proof of notarial documents. – Every instrument duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. (31 a)

Every instrument duly acknowledged or proved and certified as provided by law a. may be presented in evidence without further proof b. the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved Sec. 31. Alterations in document, how to explain. – The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that the document shall not be admissible in evidence. (32 a) The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute a. must account for the alteration, either as i. made by another, without his concurrence, or ii. made with the consent of the parties affected by it, or iii. otherwise properly or innocently made, or iv. the alteration did not change the meaning or language of the instrument b. If he fails to do that the document shall not be admissible in evidence Sec. 32. Seal. – There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned. (33 a) Sec. 33. Documentary evidence in an unofficial language. – Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. (34 a) Documents written in an unofficial language a. shall not be admitted as evidence, unless accompanied with a translation into English or Filipino b. parties or their attorneys are directed to have such translation prepared before trial.

2. Cases a. Proof of private documents
Buñag v. CA, 158 SCRA 299 (1988)

The authenticity and due execution of a private document is not proven by testimony that the party thumbmarked it. The circumstances of the presence of the witness during the execution must be related. There must be proof that the party understood it, considering he was illiterate (implied from the thumbmarking). There must be showing that the document was duly read, explained and translated to the illiterate party. Facts: These is a case for recovery of possession of a parcel of land in Pampanga between Bunag and Bautista. Bunag claims that the property in question was originally owned by his father Apolonio Bunag Aguas as shown by Tax Declaration Nos. 546 for 1941 and 320 for 1960 (Exhs. B & E). They had transferred their residence to Tarlac from Pampanga and Jose Bautista Santiago, a nephew-in-law, was allowed by his father to erect a house on said lot and lived therein on the condition that he would pay for the land taxes as compensation for the use of the land. He admitted, however, that he only learned about this agreement from his father. On September 15,1962, and September 24,1962 he sent written demands to defendant Bruno Bautista, thru his lawyer, to vacate the lot and remove the houses thereon, (Exhs. A & B). On the other hand, Bautista testified that he is the owner of the land in question by virtue of a deed of sale, of January 3, 1941, signed by Apolonio Bunag with his thumbmark; that Bunag first offered

it for sale to his brother Jose Bautista, but as the latter had no money, he referred the matter to his father; that after he was contacted in Baguio by his father, he sent the P100.00 as consideration of the sale and so the sale was consummated between his father and Bunag; that he came down from Baguio and had the house repaired and he stayed there with his family until liberation when they left the house and allowed his sister Estrudes Bautista to live therein; that he planted bananas, chicos, trees, calamansi, eggplants, thereon; that he had been paying the land taxes thereon (Exhs. 5 to 5-M); that the property is declared in his name (Exh. 6); and he denies that her sister Estrudes requested Apolonio Bunag to allow her to stay on the property as her sister had a house of her own then. Brigida Bautista testified that her brother bought the said property from Apolonio Bunag and that she was present when Bunag affixed Ms thumbmark on the document (Exh. 1); that aside from this deed, there were other documents supporting the sale as the note (Exh. 2) containing the consideration and the parties. Assessor's Field Sheet of the property (Exh. 3) and the letter of the assessor to Bunag in 1941 informing him of the revision of the assessment. (Rollo, pp. 15-18). The trial court decided in favor of petitioner. The CA, finding the deed of sale (Exhibit 1) to have been validly executed and rueld in favor of Bruno. MR was denied by the CA. Issue: Whether or not the deed of sale was authentic and validly executed? Held: Note here that the deed of sale (Exhibit 1) was not acknowledged before a notary public and neither are there any signatures in the blank spaces for the signatures of attesting witnesses. The document is typewritten in English and over the similarly typewritten words "APOLONIO BUNIAG" is a thumbprint. The deed of sale is not notarized and is, therefore, a private writing whose due execution and authenticity must be proved before it can be received in evidence. Proof of the due execution and authenticity of private writings is required under Section 21, Rule 132 of the Revised Rules of Court, to wit: Sec. 21. Private writing, its execution and authenticity, how proved. — Before any private writing may be received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the writing executed; (b) By evidence of the genuineness of the handwriting of the maker; or (c) By a subscribing witness. To support its conclusion as to the due execution and authenticity of the deed of sale, the CA relied on the testimony of Brigida Bautista, a sister of private respondents. However, the TC had ruled otherwise since it received the testimony of Brigida with caution, coming as it does from a sister of the defendants. The circumstances other alleged presence during the "execution" of the deed of sale was not related. Neither does she give any light as to whether Apolonio Bunag understood the document. It should be noted that the deed was written in English. Since it appears that said document was merely thumb-marked, it could reasonably be inferred that Apolonio Bunag, the supposed vendor, was illiterate. Under the circumstances, the minimum proof necessary to establish due authenticity should, in the least, include evidence that the document (Exhibit "1") was duly read, explained and translated to Apolonio Bunag. Unfortunately, no such evidence was presented. The SC also considered the lack of instrumental witnesses in the document. The mischief that lurks behind accepting at face value a document that is merely thumb-marked. without any witnesses to it, and not acknowledged before a notary public could be one of the reasons behind the requirement of the rules on evidence that a private writing must be shown to be duly executed and authenticated. The probative value of the testimony of Brigida Bautista, who did not furnish us with any details surrounding the execution of Exhibit "l," coming as it does from a person whose partisanship can not, and should not, be overlook falling short the minimum requirements of credibility. The testimony of an eye-witness as to the execution of a private document must be positive. He must state that the document was actually executed by the person whose name is subscribed thereto. It is not sufficient if he states in a general manner that such person made the writing. More so if the document was merely thumb-marked.

The Court adopts the TC's findings and its conclusion that the due execution and authenticity of the deed of sale (Exhibit 1) was not proved and thus such private document should be excluded.

b. Ancient documents
Bartolome v. IAC, 183 SCRA 102 (1990)

Where the offeror’s witness testified that the document had a missing 4th page, the document can not qualify as an ancient document because it is blemished by alteration or circmstance of suspicion. An incomplete document is akin to an altered document, more so if the missing page contains the signature of the parties to the document. Proof of the document’s authenticity and due execution is therefore necessary.
Heirs of Lacsa v. CA, 197 SCRA 234 (1991)

Lack of signatures on the first pages of a document alone is not a blemish that would disqualify a document from being an ancient document. Allegations that the pages had been substituted should be proven in order to disqualify the document from being an ancient document, more so if the documents were shown to be exact copies of the original on file with the Register of Deeds. Proof of their due execution and authenticity is no longer required. de Leon: Note that the document was actually a public record because it had been registered with the Registry of Deeds. Therefore, the court did not have to determine whether the document was in fact an ancient document because it was in the first place a public document whose authenticity and due execution need not be proven. The problem with this case is it is now authority to say that private documents whose first pages are not signed by the parties can qualify as ancient documents. Keep in mind that crucial to the ruling in Lacsa was the fact that the document presented matches the one on file in the Registry of Deeds. Had there been no matching copy in the Registry of Deeds, I submit that the document can not qualify as an ancient document. Facts: An action for recovery of possession was field by Songco and Doe alleging that Lacsa owed the disputed piece of and by showing an OCT and that the respondent occupied the land by fraud. Respondents denied the allegation and said that the OCT relied upon by the petitioners was superseded by a TCT by virtue of a document (Exh. 3) and later by superseded by another document (Exh. 7). Petitioners submit that the documents are not ancient documents for it must not only be 30 yrs. old but also found in the proper custody and is unblemished by alterations and is otherwise free from suspicion. They allege that the document cannot be considered as such because the first 2 pages did not bear the signatures of the parties to the document. Issue: Whether or not the documents are ancient documents? Held: Yes, under the rule, the documents must be atleast 30 yrs. old and this was shown by the fact that exh. 3 was executed on April 7, 1923 and Exh. 7 on January 20, 1924. The next requisite that it be found or produced from a custody in which it would naturally be found was shown when the document was found under the care of the Register of Deeds as they certified that both documents are copies of the original. The petitioner’s contention that the lack of signature on the first two apges cast doubt on the authenticity of the document was answered by the SC saying that “we cannot uphold this surmise absent any proof whatsoever.” As the petitioner failed to show proof of the irregularity, the SC ruled that the document is valid. As a contract appearing honest and lawful on its face must be treated as such and one who assails the genuineness must present conclusive evidence of fabrication.

c. Proof of foreign judgments
Pacific Asia Overseas v. NLRC, 161 SCRA 122 (1988)

To be enforceable, the foreign judgment must be proven as a public document of a written official act or record of an act of an official body or tribunal of a foreign country. The offeror must submit an attestation issued by the proper foreign official having legal custody of the original judgment that the copy is a faithful reproduction of the original,

which attestation must be authenticated by a Philippine Consular officer having jurisdiction in that country. Facts: Teodoro Rances was engaged by Pacific Asia Overseas Shipping Corporation (Pascor) as Radio Operator of a vessel belonging to Pascor's foreign principal, the GulfEast Ship Management Limited. Four (4) months later, and after having been transferred from one vessel to another four times for misbehaviour and inability to get along with officers and crew members of each of the vessels, the foreign principal terminated the services of Rances citing the latter's poor and incorrigible work attitude and incitement of others to insubordination. Pascor filed a complaint against Rances with the POEA for acts unbecoming a marine officer and for “character assassination.” Rances denied the charges set out in the complaint and by way of counterclaim demanded an amount of US$ 1,500.00 which a court in Dubai had, he contended, awarded in his favor against petitioner's foreign principal. The POEA found Rances liable for inciting another officer or seaman to insubordination and challenging a superior officer to a fist fight and imposed six (6) months suspension for each offense or a total of twelve (12) months suspension. The POEA decision passed over sub silentio the counterclaim of Rances. Later, Rances filed a complaint against Pascor where he sought to carry out and enforce the same award obtained by him in Dubai allegedly against Pascor's foreign principal which he had pleaded as a counterclaim in the first POEA Case. Rances claimed that be had filed an action in the Dubai court for US$ 9,364.89, which claim was compromised by the parties for US$ 5,500.00 plus "a return ticket to (private respondent's) country," with the proviso that "the opponent" would pay "to the claimant" US$ 1,500.00 'in case the wife of the claimant Rances doesn't agree with the amount sent to [her] and that since his wife did not "agree with" the amount given to her, he was entitled to recover the additional US$ 1,500.00." As evidence of this foreign award, Rances submitted what purports to be an "original copy of the decision" of the Dubai court written in Arabic script and language, With a copy of an English translation by an unidentified translator and a copy of a transmittal letter dated 23 September 1984 signed by one Mohd Bin Saleh "Honorary Consul for Philippines." In its answer filed on 11 December 1985, petitioner Pascor made four principal arguments: (1.) that the copy of the Dubai decision relied upon by Rances could not be considered as evidence, not having been properly authenticated; (2.) that Pascor was not a party to the Dubai court proceedings; (3.) that the POEA had no jurisdiction over cases for the enforcement of foreign judgments; and (4.) that the claim had already been resolved in POEA Case No: M-84-09-848, having been there dismissed as a counterclaim. In its decision, the POEA held Pascor liable to pay Rances the amount of US$ 1,500.00 "at the prevailing rate of exchange at the time of payment." The POEA denied Pascor's appeal for having been filed out of time. On 29 May 1986, the POEA denied private respondent's Motion for a Writ of Execution and elevated the case to the NLRC. On 14 August 1986, NLRC denied petitioner's appeal as filed out of time. Issue: (Related to evidence) Whether or not the Dubai decision was admissible in evidence as proven? Held: The appeal should have been allowed by the NLRC because there was a real effort and legal cause for the said appeal. In the end, the decision of the POEA was set aside. Ruling on the merits, An examination of the complaint filed by Rances in the POEA shows that the cause of action pleaded by Rances was enforcement of the decision rendered by the Dubai Court which purported to award him, among other things, an additional amount of US$ 1,500.00 under certain circumstances. Petitioner argues vigorously that the POEA had no authority and jurisdiction to enforce the judgment of a foreign court. Under Section 1, Rule 1, Book VI of the POEA Rules and Regulations, it will be seen that the POEA has jurisdiction to decide all cases 'involving employer employee relations arising out of or by virtue of any law or contract involving Filipino workers for overseas employment, including seamen." Respondent Rances, however, relied not upon the employer employee relationship between himself and petitioner corporation and the latter's

foreign principal, but rather upon the judgment obtained by him from the Dubai Court which had apparently already been partially satisfied by payment to respondent Rances of US$ 5,500.00. The POEA has no jurisdiction to hear and decide a claim for enforcement of a foreign judgment. Such a claim must be brought before the regular courts. The POEA is not a court; it is an administrative agency exercising, inter alia, adjudicatory or quasi-judicial functions. Neither the rules of procedure nor the rules of evidence which are mandatorily applicable in proceedings before courts, are observed in proceedings before the POEA. Even assuming in arguendo that the POEA has jurisdiction, still Rances cannot rely upon the Dubai decision. The Dubai decision was not properly proved before the POEA. The Dubai decision purports to be the written act or record of an act of an official body or tribunal of a foreign country, and therefore a public writing under Section 20 (a) of Rule 132 of the Revised Rules of Court. Sections 25 and 26 of Rules 132 prescribe the manner of proving a public of official record of a foreign country in the following terms: Sec. 25. Proof of public or official record. — An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied. if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate maybe be made by a secretary of embassy or litigation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. Sec. 26. What attestation of copy must state. — Whenever a copy of a writing is attend for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. (Emphasis supplied) In the instant case, respondent Rances failed to submit any attestation issued by the proper Dubai official having legal custody of the original of the decision of the Dubai Court that the copy presented by said respondent is a faithful copy of the original decision, which attestation must furthermore be authenticated by a Philippine Consular Officer having jurisdiction in Dubai. The transmittal letter, dated 23 September 1984, signed by Mohd Bin Saleh, Honorary Consul for Philippines' does not comply with the requirements of either the attestation under Section 26 nor the authentication envisaged by Section 25. There is another problem in respect of the admissibility in evidence of the Dubai decision. The Dubai decision is accompanied by a document which purports to be an English translation of that decision., but that translation is legally defective. Section 34 of Rule 132 of the Revised Rules of Court requires that documents written in a non-official language like Arabic) shall not be admitted as evidence unless accompanied by a translation into English or Spanish or Filipino. In the instant case, there is no showing of who effected the English translation of the Dubai decision which respondent Rances submitted to the POEA. The English translation does not purport to have been made by an official court interpreter of the Philippine Government nor of the Dubai Government. Neither the Identity of the translator nor his competence in both the Arabic and English languages has been shown. The English translation submitted by the respondent is not sworn to as an accurate translation of the original decision in Arabic. Neither has that translation been agreed upon by the parties as a true and faithful one. The foregoing does not exhaust the difficulties presented by reliance upon the Dubai decision. The Dubai Court decision, even on the basis of the English translation submitted by respondent Rances, does not purport on its face to have been rendered against petitioner Pascor nor against the foreign principal of petitioner. Respondent Rances simply assumed that the decision was rendered against petitioner's foreign principal. The Dubai decision does not Identify the parties to the litigation that was resolved by said decision. Accordingly, the Dubai decision can scarcely be enforced against petitioner Pascor. Further, even if the Dubai decision had on its face purported to

be rendered against petitioner Pascor, we must note that petitioner Pascor has expressly denied that jurisdiction had ever been acquired by the Dubai court over the person of Pascor in accordance with the Rules of Procedure applicable before the Dubai Court. Respondent Rances has not proved the contents of the Dubai Rules of Procedure governing acquisition of jurisdiction over the person of a non-resident defendant. Finally, if it be assumed (arguendo, once more) that the Dubai Court had indeed acquired jurisdiction over the person of Pascor's foreign principal — Gulf East Ship Management Ltd. — it still would not follow that Pascor would automatically be bound by the Dubai decision. The statutory agency (or suretyship) of Pascor is limited in its reach to the contracts of employment Pascor entered into on behalf of its principal with persons like respondent Rances. Such statutory inability does not extend to liability for judgments secured against Gulf East Ship Management Ltd., in suits brought against Gulf East outside Philippine territorial jurisdiction, even though such a suit may involve a contract of employment with a Filipino seaman.
Zalamea v. CA, 228 SCRA 23 (1993)

Foreign laws do not prove themselves nor can the courts take judicial notice of them. Like any other fact, they must be alleged and proved. Written law may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has custody. The certificate may be made by a secretary of an embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. Mere testimony of a witness is not sufficient to prove foreign law. Facts: Zalamea purchased two tickets from the Manila agent of TWA. Cesar and Suthira’s tickets were purchased as a 75% discount, while Liana’s was a full fare ticket. They all had confirmed reservations. In NY, on the appointed date, they checked in an hour earlier but they were placed in the wait-list. Eventually, only Cesar was able to board while the 2 others had to book with American Airlines. Upon their arrival in Manila, they filed an action for damages based on breach of contract of air carriage. The LC ruled in their favor, while the CA modified it as regards moral damages, on the ground that there was no fraud or bad faith, since ‘. . . overbooking of flights is specifically allowed by the Code of Federal Regulations” by the CAB. Issue: Whether or not the CA erred in holding that there was no fraud or bad faith because it has a right to overbook flights? Held: The US law or regulation allegedly authorizing overbooking has never been proved. Foreign laws do not prove themselves nor can the court take judicial notice of them. Like any other fact, they must alleged and prove. Written law may be evidenced by an official publication thereof or by a copy attested by the officers having legal custody of the record, or by his deputy and accompanied with a certificate that such officer has custody. The certificate may be made by a secretary of an embassy or legation, consul-general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Phil. stationed in the foreign country in which the record is kept and authenticated by the seal of his office. Here, TWA relied solely on the testimony of it customer service agent that the Code of the CAB allows overbooking. Aside from said statement no official publication of said code was presented as evidence. Thus, the CA’s finding that overbooking is specifically allowed by the US Code of Federal Regulations has no basis in fact.

d. Documents in unofficial language
Pacific Asia Overseas v. NLRC, 161 SCRA 122 (1988)

A document written in an unofficial language should be translated into either English or Filipino. The translator should be identified either as an official interpreter of the court, or as a competent translator of both languages. The translation should be either sworn to as an accurate translation of the original, or agreed upon by the parties.
People v. Monleon, 74 SCRA 263 (1976)

Affidavits written in an unofficial language and not accompanied with a translation are inadmissible in evidence. Escolin: The NIRC provides that all notarial documents which don’t have the required documentary stamp tax will not be admitted in evidence. Facts: One night, Monleon arrived at his house drunk. He inquired from Concordia, his wife, whether their carabao had been fed by their ten-year old son, Marciano. She assured him that the carabao had been fed. He repaired to the place where the carabao was tethered to check the veracity of her statement. He discovered that the carabao had not been adequately fed. He became furious. When he was about to whip Marciano, Concordia intervened. A violent quarrel ensued between them. He placed himself astride his wife's chest, squezzed her neck, pressed her head against a post, and kicked her in the abdomen. He shouted: "What do I care if there would be someone who would be buried tomorrow. You let your brothers and sisters stand up and I will also include them." Felicisimo, one of the couple's six children, pulled away his father and stopped his assault on Concordia. The following morning Concordia vomitted blood. She died at eleven o'clock on that morning of June 2. Death was due to "acute abdomen" (Exh. B), a pathologic condition within the belly, requiring surgical intervention Sixteen days after Concordia death, Monleon thumbmarked a confession, written in the Cebuano dialect and sworn to before the town mayor (Exh. C). He admitted in that confession that he assaulted his wife and that he had repented for the wrong which he had done to her. He orally admitted to Perfecto Bongo, a lieutenant in the Cebu City police department and a relative of Concordia, that he (Monleon) assaulted his wife because he was drunk and she was a nagger. On July 31, 1970 or about two months after Concordia's death, a medico-legal officer of the National Bureau of Investigation (NBI) exhumed her body. He found bluish-black discolorations on the sphenoid temporal bones of her skull, on the atlas or cervical vertebra below the skull or at the base of the neck, and on the first ribs. The discolorations were due to internal hemorrhage "caused by trauma or external violence." The doctor ventured the opinion that the "acute abdomen" could have been caused "by external violence" Monleon denied that he used violence against his wife. He testified that he and his wife had merely a verbal quarrel and that Clemencia, the sister of Concordia and the wife of his elder brother, testified against him because Clemencia and Monleon had a boundary dispute regarding the lands inherited by Clemencia and Concordia from their father, Victor Bongo. Monleon said that Lieutenant Bongo asked him to sign a "recibo" that he would take care of his children. He also said that some persons threatened to kill him if he did not affix his thumbmark to his confession. The trial court convicted Monleon of parricide. In this appeal, his counsel de oficio alleged that the trial court erred in giving credence to Monleon's confession, the affidavit of his son, Marciano, and the testimonies of the prosecution witnesses and the NBI medico-legal officer, Doctor Ceferino Cunanan; in treating the alleged declarations of Concordia Bongo to Clemencia's husband as part of the res gestae and in rejecting the testimonies of Monleon and his two children, Marciano and Felicisima. Held: TC’s judgment affirmed but lowered to reclusion perpetua. The court herein held that: The corpus delicti or the fact of the commission of the crime of which Concordia Bongo was the victim was established by the prosecution witnesses, Clemencia Bongo-Monleon and Epifania Bongo. Hence, Monleon's extrajudicial confession (Exh. C) was corroborated by evidence of the corpus delicti (Sec. 3, Rule 133 and sec. 29, Rule 130, Rules of Court). The discrepancies in the testimonies of the prosecution witnesses do not destroy the probative value of the confession nor negate Monleon's admission therein that he assaulted his wife. A court may reject portions of the confession by reason of the improbability of the facts or statements therein or because of their falsity or untrustworthiness.

The mayor and Lieutenant Bongo testified that Monleon was not forced to affix his thumbmark to the confession. There is no evidence that he was tortured or maltreated. Monleon could have complained to the fiscal during the preliminary investigation that he was forced to execute his confession. He did not do so. Appellant's counsel argues that the trial court erred in admitting Marciano Monleon's affidavit which was written in the Cebuano dialect (Exh. E) and which was not accompanied with the corresponding translation. That confession is well-taken. The trial court erred in admitting that affidavit over the objection of appellant's counsel because section 34, Rule 132 of the Rules of Court provides that documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English, Spanish or the national language "To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial" The trial court, also, erred in ruling that the alleged declarations of Concordia Bongo to the husband of Clemencia Bongo Monleon, as to the violent acts inflicted upon her (Concordia) by appellant Monleon, are part of the res gestae. That ruling was made in connection with Clemencia's testimony (not on direct examination but in answer to the questions of the trial judge) that at eight o'clock in the evening of June 1, 1970, or about an hour after Concordia was assaulted by Monleon, she (Concordia) left her house and went to Clemencia's house three hundred meters away and recounted to Clemencia's husband (appellant Monleon's brother) how she was beaten by Monleon. Appellants counsel observed that it was incredible that Concordia, after being severely maltreated by Monleon (according to the prosecution's version), would still have the strength to go to Clemencia's house which was located on a hill. Clemencia's testimony reveals that she must have been confused in making that assertion, assuming that it was accurately translated and reported. A careful scrutiny of her entire testimony reveals that what she really meant was that Concordia on the following day, June 2, recounted to her, as Concordia recounted also to Epifania, how she was maltreated by Monleon. In all probability what happened was that Clemencia, on arriving at her house at around eight o'clock in the evening of June 1, apprised her husband that she witnessed the assault made by Monleon on her sister, Concordia.
People v. Salison, 253 SCRA 758 (1996)

Facts: At around 8:00 o'clock in the evening of November 30, 1990, witness Maria Magdalena Ayola saw appellant Salison approach the victim, Rolando Valmoria, who was then watching television in a store. Salison placed his arm around Valmoria's shoulder and brought him behind a neighbor's house where there was a mango tree. There, appellant Salison boxed Valmoria in the abdomen. During the fistfight between Salison and Valmoria, the three other accused Andiente, Dignaran and Fediles suddenly appeared and joined the fight and simultaneously attacked Valmoria. It was then when witness Emilia Fernandez approached them that the three co-accused disappeared, leaving Salison and Valmoria behind. Fernandez was able to separate Salison from Valmoria. However, the three co-accused returned and started to maul Valmoria again, with Salison rejoining the three in assaulting the victim. When Valmoria fought back, accused Salison, Fediles and Andiente picked up pieces of wood and started to hit Valmoria at the back on his nape, and on the rear part of his head, Valmoria fell to the ground and, upon finding a chance to do so, he stood up and ran towards his house which was a few meters away. The assailants followed Valmoria but failed to further hit the victim because Valmoria was able to hide inside his house. During this time, the victim remained seated inside the house. Shortly thereafter, Valmoria started to complain of dizziness and pain in his head which was bleeding at that time. Consequently, at the request of Valmoria, his parents accompanied him to the house of witness Patricia Alcoseba, the purok leader. The victim asked Alcoseba to write down his declaration regarding the incident explaining that if he should die and no witness would testify, his written declaration could be utilized as evidence.

After making that declaration in the house of witness Alcoseba, Valmoria and his parents proceeded to the hospital. Subsequently, the victim was allowed to go home. However, at 4:00 o'clock the following morning, he started to convulse and was rushed to the hospital. After three days there, Valmoria died. Issue: May the statement of the victim be admitted as a dying declaration? Held: What further strengthens the case of the prosecution was the declaration of Valmoria, made and signed by him right after the incident, as to who were responsible for the injuries he sustained. Appellant, however, maintains that said written statement, which was reduced into writing by witness Patricia Alcoseba and purporting to be a dying declaration, is inadmissible as evidence since it was in the Cebuano regional language and was not accompanied with a translation in English or Pilipino. The appellant further contends that the declaration was not made under the consciousness of an impending death. The records do not disclose that the defense offered any objection to the admission of the declaration. Thus, the defense waived whatever infirmity the document had at the time of its submission as evidence. The declaration can be translated into English or Pilipino as it is already admitted in evidence and forms part of the record. As earlier narrated, at the time the deceased made the declaration he was in great pain. He expressed a belief on his imminent death and the hope that his declaration could be used as evidence regarding the circumstances thereof. A person would not say so if he believes he would recover and be able to testify against his assailants. At all events, assuming that declaration is not admissible as a dying declaration, it is still admissible as part of the res gestae, since it was made shortly after the startling incident and, under the circumstances, the victim had no opportunity to contrive.
People v. Lazaro, 317 SCRA 435 (1999)

Facts: The accused is charged with Illegal Possession of Firearms and Ammunition. To prove that the accused was not a registered owner of a gun, the Prosecution introduced as evidence a certification dated August 20, 1991, issued by Supt. Antonio T. Sierra, Chief of the Firearms and Explosives Office (FEO) at Camp Crame. The certification stated that accused-appellant is not a licensed or registered firearm holder of any kind or caliber. The defense objected saying that it was hearsay because the person certifying was not presented in court. The TC however admitted the same. The accused was found guilty by the TC. Issue: Whether or not the certificate is admissible and if it is, was it sufficient. Held: On several occasions, the Court has ruled that either the testimony of a representative of, or a certification from, the PNP Firearms and Explosive Office attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of possession of illegal firearms. Moreover, the rule on hearsay evidence admits of several exceptions. One such exception is that provided for under Rule 130, Section 44, Entries in official records. Relative to this provision, Rule 132, Section 28 of the same Rules allows the admission of the said document. In the case at bench, the Certification issued by the Commanding Officer of the PNPFirearm and Explosives Office, which is the repository of all records regarding firearms in the Philippines, is competent and admissible evidence to prove that accused-appellant is not a licensed holder or possessor of a firearm of any kind or caliber. Indeed, the certificate of a custodian that he has diligently searched for a document or an entry of a specified tenor and has been unable to find it ought to be as satisfactory an evidence of its non-existence in his office as his testimony on the stand to this effect would be.
IBM Phils., Inc. v. NLRC, G.R. No. 117221, April 13, 1999

V. Offer and Objection 1. Rule 132 §34-40
Sec. 34. Offer of evidence. – The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. (35) The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. Sec. 35. When to make offer. – As regards the testimony of a witness, the offer must be made at the time the witness is called to testify. Documentary and object evidence shall be offered after the presentation of a party's testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing.(n) When to make offer a. testimony – the time the witness is called to testify b. documentary and object – after the presentation of a party's testimonial evidence Offer of evidence shall be done orally unless allowed by the court to be done in writing. Offer of evidence Identification of evidence

Sec. 36. Objection. – Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent. An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court. In any case, the grounds for the objections must be specified.(36 a) When objection to evidence offered must be made a. orally – immediately after the offer is made. b. in writing – within 3 days after notice of the offer, unless a different period is allowed by the court. c. a question propounded in the course of the oral examination – as soon as the grounds therefor shall become reasonably apparent. The grounds for the objections should always be specified. Grounds for objection a. Hearsay b. argumentative c. leading d. misleading e. incompetent f. irrelevant g. best evidence rule h. parole evidence rule i. question has no basis j.

Sec. 37. When repetition of objection unnecessary. – When it becomes reasonably apparent in the course of the examination of a witness that the questions being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class of questions. (37 a) Requisites for a proper continuing objection a. in the course of the examination of a witness b. objection has been made c. reasonably apparent that the questions being propounded are of the same class as those to which objection has been made d. adverse party records his continuing objection to such class of questions Sec. 38. Ruling. – The ruling of the court must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon. (38 a) The ruling of the court on an objection a. must be given immediately after the objection is made b. unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made i. during the trial and ii. at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. GR: The reason for sustaining or overruling an objection need not be stated. Exception: If the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon. Escolin: The parties may ask for the ground for the ruling, even if the rules does not require the judge to so state. Sec. 39. Striking out answer. – Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record. On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. (n) Requisites for Striking out an answer a. witness answers the question before the adverse party had the opportunity to voice fully its objection b. objection is found to be meritorious c. court order that the answer given to be stricken off the record. On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. Sec. 40. Tender of excluded evidence. – If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. (n)

If documents or things offered in evidence are excluded by the court, the offeror may a. have the same attached to or made part of the record, if the evidence is object or documentary b. If the evidence excluded is oral, the offeror may state for the record i. the name and other personal circumstances of the witness and ii. the substance of the proposed testimony.

2. Cases a. When evidence considered offered
People v. Franco, 269 SCRA 211 (1997)

The court shall consider no evidence, even an extra-judicial confession, which has not been formally offered. Mere fact that evidence has been identified and marked in the course of the examination of a witness, without the contents being recited in his testimony, does not mean that it has been formally offered as evidence. Identification of documentary evidence is done in the course of the trial and is accompanied by the marking of the evidence as an exhibit, while the formal offer of documentary evidence is done only when the party rests its case.
PB Com v. CA, 195 SCRA 567 (1991)

Where the genuineness and due execution of documents of an instrument attached to a complaint are deemed admitted by failure to specifically deny it under oath, such instruments are considered as evidence although they were not formally offered. Escolin: cf Rule 8, Sec. 8
Sec. 8. How to contest such documents. — When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a)

Tabuena v. CA, 196 SCRA 650 (1991)

Mere fact that a document is marked as an exhibit does not mean it has been offered as evidence. Marking at the pre-trial was only for the purpose of identifying them at that time. However, if an exhibit has been duly identified by testimony duly recorded and has itself been incorporated into the records (i.e. recital of the contents of the exhibit).

b. When objection make
People v. Java, 227 SCRA 668 (1993)

Objection to testimony on the ground of lack of a formal offer of the testimony should be done when the witness was called to testify.
Catuira v. CA, 236 SCRA 398 (1994)

Failure to object upon the time a witness is called to testify on the ground that there was no formal offer of the testimony is a waiver of the objection. Objection on such ground after the witness has testified is too late.
Interpacific Transit, Inc. v. Aviles, 186 SCRA 385 (1990)

Objection to documentary evidence must be made at the time it is formally offered (i.e. when the party rests its case) as an exhibit and not before. Objection prior to that time (e.g. identification of the evidence) is premature. Mere identification and marking is not equivalent to a formal offer of the evidence. A party may decide to not offer evidence already identified and marked. de Leon: Note that the court also said that there was no continuing objection because continuing objections are applicable when there is a single objection to a class of evidence. This ruling is no longer applicable because the new rules on evidence is now clear that continuing objections are applicable only to testimonial evidence.

de Leon: Does this mean that party may remain silent when inadmissible evidence is being identified and marked, and then object when it is formally offered? Interpacific Transit was explicit when it said “What really matters is the objection to the document at the time it is formally offered as an exhibit.” de Leon: What if after an exhibit has been identified, marked, and its contents recited, the offeror decides not to formally offer it into evidence. Is the court authorized to consider such exhibit on the strength of the ruling in Tabuena? I would say “yes” because the recital of the contents of the exhibit is now part of the testimony of the witness which has been formally offered.
People v. Cariño, 165 SCRA 664 (1988) De los Reyes v. IAC, 176 SCRA 394 (1989) People v. Yatco, 97 Phil. 940 (1955) PHILAMGEN v. Sweet Lines, Inc., 212 SCRA 194 (1992) Sheraton Palace v. Quijano, (C.A.) 64 O.G. 9116 Vda. de Oñate v. CA, 250 SCRA 283 (1995)

W.

Weight & Sufficiency of Evidence

1. Rule 133
Sec. 1. Preponderance of evidence, how determined. – In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. (1 a) MEMORIZE! In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider a. all the facts and circumstances of the case b. the witnesses' manner of testifying c. their intelligence d. their means and opportunity of knowing the facts to which they are testifying e. the nature of the facts to which they testify f. the probability or improbability of their testimony g. their interest or want of interest h. their personal credibility so far as the same may legitimately appear upon the trial. i. number of witnesses, though the preponderance is not necessarily with the greater number. An cause of action on the ground of reformation of instrument must be proven by clear and convincing evidence.

Sec. 2. Proof beyond reasonable doubt. – In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. (2 a) MEMORIZE! In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt a. does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. b. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. A defense of self-defense must be proven by clear and convincing evidence. Sec. 3. Extrajudicial confession, not sufficient ground for conviction. – An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. (3) An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. Sec. 4. Circumstantial evidence, when sufficient. – Circumstantial evidence is sufficient for conviction if; (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (5) Circumstantial evidence is sufficient for conviction if a. There is more than one circumstance b. The facts from which the inferences are derived are proven, and c. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Sec. 5. Substantial evidence. – In cases filed before administrative or quasijudicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (n) MEMORIZE! In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence Substantial evidence – that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion Sec. 6. Power of the court to stop further evidence. – The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. (6) Sec. 7. Evidence on motion. – When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (7) When a motion is based on facts not appearing of record a. the court may hear the matter on affidavits or depositions presented by the respective parties

b. but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

2. Cases
People v. Cruz, 134 SCRA 512 (1985)

Facts: In a prosecution for arson committed in Davao City, there were no eyewitnesses. However, there was evidence as to the presence of the accused at the scene of the crime before and at the time the fire started, that he moved out hurriedly and running away from the burning premises, that he had previously manifested resentment against the owner of the premises and even hinted that he would burn the owner’s house, that he abandoned his job, left Davao City without leaving a word to anyone, and went into hiding in Manila, that he concealed his identity by disguising himself with long hair, long moustache, and colored eyeglasses, that he exhibited indifference and unperturbed attitude towards the fate suffered by the victims, that he did not even condole with the bereaved family and relatives or pay them a visit, that he did not attend the wake or the funeral, and that he had a serious misunderstanding and strained relationship with the owner of the burned premises. Held: There are enough circumstantial evidence to produce a conviction beyond reasonable doubt.
U.S. v. Lasada, 18 Phil. 90 (1910)

Facts: Agapito Lasada, Santiago Lasada, Macario Lasada, and Panfilio clasa were charged with the crime of murder (of Pedro Sopriengo, a Chinaman). The 2 principal witnesses for the prosecution, Moldes and Resardo, positively identified the 4 defendants as the assailants. 3 other witnesses for the prosecution testified that they saw Agapito Lasada carrying a stick or a club and dressed in cañamo and accompanied by 3 men walking around the town. On the other hand, the defense sought to establish an alibi, and for this purpose presented witnesses testifying that Agapito Lasada was sick with beri-beri and could hardly walk, and that at the time of the incident he was at the house of Vicente Tuazon, the municipal president of the town of Abuyog. Issue: Whether or not defendants are guilty? Whether or not the testimony of the defense’s witness should be accepted? Held: To determine whose testimony is to be accepted as true, an analysis of the proofs is necessary. There are several modes of impeaching a witness. One mode is by crossexamination to involve the witness in contradiction and discrepancies as to material facts stated by him. But if the conflicts cannot be reconciled, the court must adopt that testimony which it believes to be true, and in reaching this conclusion it can take into consideration the general character of the witness, his manner and demeanor on the stand, the consistency of his statements, their probability and improbability, his ability and willingness to speak the truth, his intelligence, his motive to speak the truth or swear a falsehood. The SC believed the prosecution witnesses. (Although the dissent believed the defense witnesses.) Vicente Tuazon the principal witness for the defense was deeply interested in the case because he had been directed to confine the defendant in accordance with the decision of the court. Doctor Stallmen’s testimony provided that Agapito could hardly walk but defendant could and in fact did walk around town and never was in a condition that he could not travel. The testimony of Barbasan and Mundala wherein they stated that they, together with Moldes and Resarda were invited to the house of Julia Sopriego and that Julia offered them P200 each on condition that they would testify that the defendant and his brothers killed he father is so unreasonable that it can not be believed.
People. v. Abendan, 82 Phil. 711 (1948)

Facts: Abendan was convicted in the CFI of Pangasinan for the murder of Doria. It was alleged that, during his term as Chief of Police, the accused arrested Doria, took him to a cemetery, tried to bury him alive and then finished him off. The prosecution presented three witnesses, Samson, Delfin and Arzadon who were allegedly ith the accused when the incident happened.

Issue: Whether or not the testimonies of the three witnesses is sufficient to convict the accused of murder? Held: No. Acquitted. The truthfulness of the witnesses is doubtful since they had every reason to be hostile to the accused appellant. It is shown that the appellant had caused the arrest of Samson and Delfin because of certain criminal charges. While Aazon had been investigated by the appellant for the theft of cement. It also appears that on one occasion the appellant slapped and kicked Delfin because of the latter’s admission of illegal acts. It is improbable that the appellant would have utilized the three witnesses in perpetrating a heinous crime without a showing that they were of his confidence. Dissent, J. Tuazon – The evidence is conclusive and airtight. The witnesses were all simple folks who gave simple, flawless narration of the murder. None of them have been shown to have sufficient reason to lie.
People v. Solayao, 262 SCRA 255 (1996)

Facts: SPO3 Jose Niño narrated that at about 9:00 p.m., July 9, 1992, with CAFGU members Teofilo Llorad, Jr. and Cecilio Cenining, he went to Bgy. Caulangohan, Caibiran, Biliran. They were to conduct an intelligence patrol to verify reports on the presence of armed persons there. From there, they proceeded to Bgy. Onion where they met Nilo Solayao and four others. Niño became suspicious when they observed that the latter were drunk and that Solayo was wearing a camouflage uniform. Solayao’s companions, upon seeing the government agents, fled. Niño introduced himself as "PC," after which he seized the dried coconut leaves which the Solayao was carrying and found wrapped in it a 49-inch long homemade firearm locally know as "latong." When he asked Solayao who issued him a license to carry said firearm, Solayao answered that he had no permission to possess the same. Thereupon, SPO3 Niño confiscated the firearm and turned him over to the custody of the policemen of Caibiran who subsequently investigated him and charged him with illegal possession of firearm. Solayao, in his defense, did not contest the confiscation of the shotgun but averred that this was only given to him by one of his companions, Hermogenes Cenining, when it was still wrapped in coconut leaves. He claimed that he was not aware that there was a shotgun concealed inside the coconut leaves since they were using the coconut leaves as a torch. He further claimed that this was the third torch handed to him after the others had been used up. Solayao’s claim was corroborated by one Pedro Balano that he indeed received a torch from Hermogenes Cenining which turned out to be a shotgun wrapped in coconut leaves. On August 25, 1994, the TC found Solayao guilty of illegal possession of firearm under Sec. 1 of PD 1866. It found that Solayao did not contest the fact that Niño confiscated the firearm from him and that he had no permit or license to possess the same. It hardly found credible Solayao’s submission that he was in possession of the firearm only by accident. Issue: Whether or not the TC erred in admitting in evidence the homemade firearm? Held: In People v. Lualhati, it was ruled that in crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof,:  the existence of the subject firearm and  the fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the same. As to the argument that the subject firearm was the product of an unlawful warrantless search - In this case, Solayao and his companions' drunken actuations aroused the suspicion of Niño's group, as well as the fact that he himself was attired in a camouflage uniform and that upon espying the peace officers, his companions fled. It should be

noted that the peace officers were precisely on an intelligence mission to verify reports that armed persons were roaming around the bgys of Caibiran. This case is similar to Posadas v. CA being a "stop and frisk" situation. There was probable cause to conduct a search even before an arrest could be made. Whether or not the prosecution was able to prove the second element, that is, the absence of a license or permit to possess the subject firearm, the SC pointed out that the prosecution failed to prove that Solayao lacked the necessary permit or license to possess the subject firearm. It is the constitutional presumption of innocence that lays such burden upon the prosecution. The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm, and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. In this case, the prosecution was only able to prove by testimonial evidence that Solayao admitted before Niño that he did not have any authority or license to carry the subject firearm. In other words, the prosecution relied on Solayao’s admission to prove the second element. The SC stated that this admission is not sufficient to prove beyond reasonable doubt the second element of illegal possession of firearm. An admission by the accused, in this case Solayao, can take the place of any evidentiary means establishing beyond reasonable doubt the fact averred in the negative in the pleading and which forms an essential ingredient of the crime charged. By its very nature, an "admission is the mere acknowledgment of a fact or of circumstance from which guilt may be inferred, tending to incriminate the speaker, but not sufficient of itself to establish his guilt.” It is a "statement by defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction." Said admission is extra-judicial in nature thus not covered by Section 4 of Rule 129 of the Revised Rules of Court, “An admission, verbal or written, made by a party in the course of the trial or other proceedings in the same case does not require proof.” Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license. The SC agrees with the argument of the Sol. Gen. that "while the prosecution was able to establish the fact that the subject firearm was seized by the police from the possession of appellant, w/o the latter being able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and convincing evidence, like a certification from the government agency concerned."
People v. Lorenzo, 240 SCRA 624 (1995)

Facts: Agapito and accused Dolores Lorenzo were spouses residing in Cagayan and among their neighbors are Bgy Captain Isabelo Liban, Romeo Racheta and Robert Santos. In the evening of July 30, 1990, SPO1 Jose Eclipse responded to a report that a there was a stabbing incident in said Bgy 12. Policeman Eclipse rushed to the reported crime scene. On his way, he met PO1 Dolores, a policewoman of his own Station who immediately surrendered to him a blood-stained bolo and a fan knife and told him, "I killed my husband". The two proceeded to where the victim was and in front of the Bgy. Capt.’s store, Eclipse saw Agapito on the ground w/ blood all over his body. Eclipse called for Bgy Capt. Liban to come out of his house. In the presence and within the hearing of said barangay official, Policewoman Lorenzo again said, "I'm surrendering because I killed my husband". Eclipse ordered somebody to get a tricycle to bring the lifeless body of Agapito to a funeral parlor while he and Dolores went to the PNP Station. Policeman Eclipse turned

over Dolores together with the bolo and knife to the Desk Officer. Eclipse then orally made his report to the Desk Officer which was noted down in the Police Blotter. The defense contended that it was not Dolores but a Robert Santos who killed Agapito. In the p.m. of July 30, 1990, Agapito and his neighbor Robert were in the former's house passing the time over a bottle of beer grande. When Dolores arrived home from work, Agapito, in the presence of Robert Santos, met her with the following intemperate questions: “Your mother's cunt, why do you arrive only now? Where did you come from?” Dolores just kept quiet, and then went to the market. To buy something to cook for supper. Upon returning home, while cooking in the kitchen, she heard an argument between them pertaining to some bullets and a hand grenade w/c the latter gave Santos. Dolores tried to pacify them but Santos was running out of the house with a bolo and being chased by Agapito who was holding a knife and whose clothes were bloodied. A struggle ensued between Agapito and Robert and, while wrestling, Agapito dropped the knife which Dolores picked up and tried to stab Robert but she was so overwhelmed by nervousness, falling unconscious. When she regained consciousness, found herself beside her dying husband, Dolores picked up the knife and bolo. It was at this precise time when Eclipse arrived at the scene of the incident. Dolores gave the knife and bolo to Eclipse. Eclipse invited her to go with him to the Tuguegarao PNP Station and when they arrived there, Eclipse, in the presence of Dolores, reported that she killed her husband. Since the policewoman had not yet fully recovered her composure, she did not say anything. The TC convicted Dolores giving full faith and credit to the testimonies of the prosecution witnesses. It found nothing on record which showed that their impartiality had been vitiated or compromised or that they had any motive to falsely impute upon the appellant the commission of the crime. It further declared that when the appellant surrendered the knife and bolo to SPO1 Eclipse and volunteered the information that she killed her husband, she made an extrajudicial confession and nothing more was needed to prove her culpability. The trial court held that the confession was admissible for it was not made in violation of paragraph 1, Section 12, Article III of the Constitution. The appellant was neither under police custody nor under investigation in connection with the killing of her husband. The trial court rejected the story of the defense. First, she testified that she did not confess to Eclipse in the presence of Barangay Captain Liban. If her denial is true, why did she not correct or even protest what Eclipse did or reported? Second, she blamed Robert Santos who did her husband in. If this is true, why did she not tell it to Eclipse and Bgy. Capt. Liban at the scene of the crime? Why did she withhold such a very vital information when she was brought to the Tuguegarao PNP Station shortly after the incident? Third, the accused never filed a counter-affidavit during the PI, since, it afforded the accused the best opportunity to explain her innocence and to identify the "real killer" of her husband. Fourth, accused version is simply implausible. How can a man injured be able to chase another man and wrestle him to the ground? Fifth, the version of accused and her witness Romeo Racheta are at variance at a very vital point particularly the wrestling of the bolo. Racheta said that when the two men caught up with one another Robert could no longer run anywhere else, he turned around, faced Agapito and hacked and stabbed him many times. Such inconsistency in the version of the two defense witnesses cannot but heighten one's conviction that the defense theory is a conjured one. Issue: Whether or not the trial court erred in giving credence to the testimony of Bgy. Capt. Liban and SPO1 Eclipse? Held: SC held that the Ruling of the TC affirmed.

The TC held that prosecution witness Eclipse told the truth when he declared under oath that the appellant surrendered to him a blood-stained bolo and a fan knife and told him that she killed her husband. If there was any bias, it should have been, logically, in favor of the appellant because of esprit de corps. Eclipse did not allow that sentiment to compromise his official and public duty as a peace officer. It is settled that the absence of evidence as to an improper motive strongly tends to sustain the conclusion that none existed and that the testimony is worthy of full faith and credit, for, indeed, if an accused had nothing to do with the crime, it would be against the natural order of events and of human nature and against the presumption of good faith for a prosecution witness to falsely testify against the accused. Liban's testimony does not have to corroborate Eclipse's testimony or the confession of the Dolores. What must be corroborated is the EJ confession & not the testimony of the person to whom the confession is made, & the corroborative evidence required is not the testimony of another person who heard the confession but the evidence of corpus delicti. Except when expressly required by law, the testimony of a single person, if credible and positive & if it satisfies the court as to the guilt of the accused beyond reasonable doubt, is sufficient to convict. In determining the value & credibility of evidence, witnesses are to be weighed, not numbered. As to the corroborative evidence of corpus delicti, the appellant herself does not question its presence because she knows that it has been overwhelmingly established in this case. Corpus delicti is the body (material substance) upon which a crime has been committed, e.g., the corpse of a murdered man or the charred remains of a house burned down. In a derivative sense, it means the substantial fact that a crime was committed. It is made up of two elements: (a) that a certain result has been proved, for example a man has died or a building has been burned, and (b) that some person is criminally responsible for the act. Section 3, Rule 133 of the Rules of Court does not mean that every element of the crime charged must be clearly established by independent evidence apart from the confession. It means merely that there should be some evidence tending to show the commission of the crime apart from the confession. Otherwise, the utility of the confession as a species of proof would vanish if it were necessary, in addition to the confession, to adduce other evidence sufficient to justify conviction independently of such confession. Otherwise stated, the other evidence need not, independently of the confession, establish the corpus delicti beyond a reasonable doubt. However, the TC’s characterization of the appellant's declaration that she killed her husband as an extrajudicial confession is wrong, it is only an admission. In a confession. there is an acknowledgment of guilt. Admission is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of guilt of the accused or of the criminal intent to commit the offense with which he is charged. Underhill distinguishes a confession from an admission as follows: “A confession is defined as an acknowledgment of guilt of the crime charged or of the facts which constitute the crime; but it is an admission and not a confession if the facts acknowledged raise an inference of guilt only when considered with other facts.” Nevertheless, whether it was a confession or an admission, it was admissible against the appellant and, having been duly proved, together with the other facts and circumstances, the burden of the evidence was shifted to the appellant to disprove, by strong evidence, that she made the admission or, admitting it, to prove that she was not guilty of killing her husband. The circumstances described in the TC decision constitute an unbroken chain which leads to one fair and reasonable conclusion that points to the appellant, to the exclusion of all others, as the guilty person. The requirements then of Section 4, Rule 133 of the Rules of Court on the sufficiency of circumstantial evidence to convict the appellant are present. In appellant's favor, however, is the mitigating circumstance of voluntary surrender.

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