RES GESTAE

ABALLE v. PEOPLE FACTS: Quirino Banguis, and family went to a birthday party at 7pm, leaving at home alone their 12-y.o. daughter Jennie. When they returned 8.30pm the same night, they found Jennie in the sala, lying dead in a pool of her own blood, with several stab wounds all over her body. There were no eyewitnesses to the bizarre killing. At daybreak of the following day, acting on information furnished by the Quirino, a police team headed by Sgt. Marante sought the accused Peter Paul (Pitoy! Hehehe.) Aballe for questioning. They found him just as he was coming out of the communal bathroom in Saypon and wearing what appeared to be a bloodstained T-shirt. Upon seeing Sgt. Marante, the accused without anyone asking him, orally admitted that he killed Jennie Banguis. Sgt. Marante subsequently brought him to the Toril police station for interrogation. While under custodial investigation, Aballe, 17 years old, a school dropout and next door neighbor of the victim, brought the police to his house and pointed to them the pot at the "bangera" where he had concealed the death weapon which was a four-inch kitchen knife. Also taken from Aballe was the bloodstained red and white striped T-shirt which he claimed he wore during the commission of the crime. Aballe also made an extrajudicial confession admitting his guilt in killing Jennie while under the influence of liquor and marijuana. The sworn affidavit gave details regarding the commission of the crime. The affidavit also shows that Aballe was read his Constitutional right to remain silent and right to presence and assistance of counsel, and that Aballe waived these rights. An information charging Aballe with homicide was filed. Aballe pleaded not guilty. He also disavowed his extrajudicial confession on the ground that it was obtained through coercion and in the absence of counsel. In spite of this, Aballe was convicted. ISSUES: 1. WON Aballes extrajudicial admission is admissible. No. 2. WON Sgt. Marantes testimony regarding Aballes extrajudicial admission is admissible. Yes. Sub-issues: 1. Is the kitchen knife admissible? No. 2. Is the bloodstained shirt admissible? Yes. Aballes extrajudicial admission Should have been disregarded. At no stage of the entire proceedings was it shown that Aballe was ever represented by counsel.

after his capture and after the police had started to question him. Together with the extrajudicial confession, the fatal weapon is but a fruit of a constitutionally infirm interrogation and must consequently be disallowed. The bloodstained T-shirt

Admissible because it is in the nature of an evidence in plain view which an arresting officer may take and introduce in evidence The prevailing rule in this jurisdiction is that "an officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or escaping, or which may be used in evidence in the trial of the cause . . . But there is no escape! Marantes testimony finally leads to Aballes doom. Even with the exclusion of the extrajudicial confession and the fatal weapon the SC agrees with the trial court that Aballes guilt has been established beyond reasonable doubt. Even before the taking of the extrajudicial confession, the accused confessed to Marante that he killed Jennie. The testimony of Sgt. Marante on Aballe's oral confession is competent evidence to positively link the accused to the aforesaid killing. Sgt. Marantes testimony details how he apprehended Aballe. He said that as per info from Jennies father that he suspected Aballe, they subsequently found him at the communal bathroom. When Aballe saw Marante, he tried to hide the bloodstains on his shirt. Marante asked him what those were, then Aballe broke down and confessed. Marante was not in uniform at that time and that he thought Aballe only knew that he was a policeman when he finally took him to the station where they subsequently read him his rights and here the extrajudicial confession was taken.

Rule 130, Sec. 33. (Sec. 30 in the Old ROC): "The declaration of an accused expressly acknowledging his guilt of the offenses charged may be given in evidence against him."

The rule is that any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance. (23 C.J.S. 196)(Pp. vs. Tawat)

Since the execution of the extrajudicial statement was admittedly made in the absence of counsel, whether de oficio or de parte, and the waiver of counsel was not made with the assistance of counsel as mandated by the provisions of Section 20, Article IV of the 1973 Constitution, said confession should have been discarded by the lower court. The kitchen knife Inadmissible because it was recovered from Aballe

Compliance with the constitutional procedures on custodial investigation is not applicable to a spontaneous statement, not elicited through questioning, but given in an ordinary manner, whereby the accused orally admitted having slain the victim. SC affirmed the conviction but modified the penalty because the crime was mitigated by Aballes minority, but aggravated by dwelling. PEOPLE v. TAMPUS FACTS:

 Jose Tampus, Rodolfo Avila, and Celso Saminado were all patients in the hospital of the New Bilibid Prison in Muntinlupa, where they were all imprisoned. At 10am in Jan. 14, 1976, Celso went to the toilet. Tampus and Avila followed him there and assaulted him with bladed weapons. Celso died after an hour. After emerging from the toilet, Tampus and Avila surrendered to the prison guard and said, Surrender po kami. Gumanti lang po kami. Tampus and Avila were both members of the Oxo gang, and they were avenging the death of a gang-mate, who was stabbed by a member of the Batang Mindanao gang, of which Celso was a member. The officer of the day, Vivencio Lahoz who investigated the incident right away submitted in his report that Avila stabbed Celso in the back while Tampus on the neck and chest. Allegedly, he did not inform them of their rights to counsel and to remain silent in this custodial investigation. In Jan. 16, another prison guard investigated Tampus and Avila and obtained their extrajudicial confessions wherein they admitted that they assaulted Celso. The killers, with the assistance of counsel de oficio, pleaded guilty to the charge of murder aggravated by treachery, evident premeditation and quasi-recidivism. TC informed them that due to the gravity of the charged, they might be given the death penalty. They reiterated their plea of guilty. TC required the prosecution to present their evidence. Tampus and Avila took the witness stand; they affirmed their confessions and testified as to the manner they killed Celso. Both convicted, Avila got imprisonment, did not appeal. Tampus got the death sentence, so automatic review in SC. Tampus contends that he was denied his right to a public trial because the arraignment and hearing were held at the state penitentiary. ISSUES: 1. Was the right of Tampus to a public hearing denied? NO. 2. Was it contrary to law when Lahoz did not inform Tampus as to his rights in the investigation? NO. 3. Should the TC have advised the accused of the right to remain silent when the prosecution called upon them to testify? NO. RATIO: AS TO ISSUE 1: The arraignment and hearing were held in Bilibid, not the trial courts session hall, because the SC, in its resolution of the case where Avila was one of the accused-appellants, refused to let him be brought to Makati, so SC directed that the arraignment and trial be held in the prison. SC said that there was nothing that showed that the public was excluded from the place of the trial, nor did the holding of the trial in the prison prejudice the accused. US vs. Mercado: The fact that for the convenience of the witnesses a case is tried in Bilibid Prison without any objection on the part of the accused is not a ground for reversal of the judgment of conviction.

AS TO ISSUE 2: The other contention of counsel de oficio is that the confession of Tampus was taken in violation of Art. IV, Sec. 20 of the 1973 Consti, which provides: No person shall be compelled to be a witness at himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. The 1973 Consti applicable here. There is no doubt that the confession was voluntarily made. The investigator in taking it endeavored, according to his understanding, to comply with Sec. 20, as shown in the the confession. The investigator told Tampus his Consti rights in Tagalog. In the end: Ngayon at maulit ko saiyo ang mga karapatan mong ito, ikaw bay magpapatuloy pa sa pagbibigay ng salaysay bilang sagot sa alin mang itatanong ko saiyo Sagot: Opo, sir.

Even before Lahoz investigated the killing, Tampus and Avila had already admitted it when, after coming out of the toilet, the scene of the crime, they surrendered to Reynaldo S. Eustaquio, the first guard whom they encountered, and they revealed to him that they had committed an act of revenge. That spontaneous statement, elicited without any interrogation, was part of the res gestae and at the same time was a voluntary confession of guilt. By means of that statement given freely on the spur of the moment without any urging or suggestion, they waived their right to remain silent and to have the right to counsel. That admission was confirmed by their extrajudicial confession, plea of guilty and testimony in court. They did not appeal from the judgment of conviction.

The rulings in Escobedo vs. Illinois and Miranda vs. Arizona, cannot be relied on. Even without taking into account Tampus' admission of guilt, confession, plea of guilty and testimony, the crime was proven beyond reasonable doubt by the evidence of the prosecution. AS TO ISSUE 3: Tampus pleaded guilty and had executed an extrajudicial confession. The court during the trial is not duty-bound to apprise the accused that he has the right to remain silent. It is his counsel who should claim that right for him. If he does not claim it and he calls the accused to the witness stand, then he waives that right (US vs. Rota, US vs. Grant). The SC explained the aggravating circumstances in this case and affirmed the ruling. However, for lack of the requisite ten votes, the death penalty cannot be affirmed. Hence, commuted to reclusion perpetua. DISPOSITIVE PORTION: WHEREFORE, the lower court's judgment as to Jose Tampus is modified. He is sentenced to reclusion perpetua. The lower court's judgment as to his civil liability is affirmed. Costs de officio SO ORDERED. TEEHANKEE, J., dissenting: The extra-judicial confession of the accused having been taken after the 1973 Constitution is manifestly

The accused may waive his right to have a public trial as shown in the rule that the trial court may motu propio exclude the public from the courtroom when the evidence to be offered is offensive to decency or public morals. The court may also, upon request of the defendant, exclude from the trial every person except the officers of the court and the attorneys for the prosecution and defense. (Sec. 21, Rule 119)

barred from admission under section 20 of the Bill of Rights (Article IV) thereof. The alleged waiver of the rights must be witnessed by a responsible official of the penitentiary, if not by the municipal judge of the locality. When counsel de oficio then called upon the accused to testify, it became the trial court's duty (contrary to the majority's ruling) to apprise and admonish him of his constitutional rights to remain silent and against selfincrimination, i.e. the right not to be compelled to be a witness against himself. Under the above-cited section 20 of the Bill of Rights, any confession or incriminatory statement obtained in violation thereof is expressly declared "inadmissible in evidence." Although Tampus did plead guilty, the aggravating circumstance shouldnt have been appreciated against him, since it was Avila who stabbed Celso in the back, so equally if not more guilty, but he got the lesser penalty. For this consideration, and that the Bilibid contributed with its subhuman conditions in the overcrowded penitentiary which strangle a sense of decency and predispose the unfortunate inmates to violence and mayhem such lesser penalty should likewise be imposed on the herein accused. As a last recourse, the accused should be deemed entitled to executive clemency in the form of commutation of the supreme penalty meted to him. PEOPLE v. REYES Appeal; CFI FACTS:

said Austria made the following statements: Q. What did you do on that same night? A. While we were at the back of the "Cenaculo", Oliveros ordered Pepit and FELIPE SESE to PEPIT and FELIPE SESE did as ordered and came with the information that here are three MP soldiers in the one of the stores near the "Cenaculo". Q. What did you do when you mere informed thus? A. BASIBAS, MAGALLANES, BATUIN, OLIVEROS, and I went to the place where the MP soldiers were and I myself talked with one of the said soldiers, and I asked him to stand and come with me where we could talk together, but he refused, so I drew my pistol and forced him to come with me. OLIVEROS held one of the soldiers, Magallanes held the others and forced them to come with us. Q. Why and where were you taking the MP soldiers? A. To talk with them in front of the house of SEGUNDO GUEVARRA. Q. What happened when you took the soldiers? A. While we were walking about 10 meters from the "Cenaculo" the soldier who was with me tried to grab the pistol that I was holding with my right hand. Suddenly I heard about 4 shots from behind, so I also fired at the soldier who was with me. ISSUE on Res Gestae: WON testimony of Reyes regarding the conversation, which he overheard, between G. Due and Gatchalian is admissible. HELD: Yes PRINCIPLE ON RES GESTAE & ON ADMISSIONS & CONFESSIONS

1.

2. 3.

4. 5.

On the night of Apr 19, 1946, while attending a pabasa (reading of life story of Christ) in barrio Cacutud, Arayat, Pampanga, three MPs, Benjamin Neri, Alfredo Laguitan and Francisco Orsino, were taken by four armed individuals, brought to the road leading to Cabiao and there shot by them. As a result Neri and Laguitan died. Orsino recovered from his wounds. The accused, in the 2 separate cases of violent death (murder) and one case of physical injuries, were appellants Gatchalian and Austria, Reyes, Perez, G. Due and M. Due Dismissed as to Perez for insufficiency of evidence and Reyes was discharged and used as prosecution witness. G. Due and M. Due have not been arrested or tried. Gatchalian and Austria were found guilty beyond reasonable doubt, on the strength of the following:

Enough, however, may be gathered from his (Reyes) testimony in open court to identify Gatchalian as one of the assailants, the conversation he overhead in the rice field being admissible as an admission and as part of the res gestae. Stated otherwise, as in the syllabus: The conversation had among the accused immediately after the shooting, which was overheard in the rice field by the prosecuting witness is admissible as an admission and as part of the res gestae.

a.

Testimony of Pedro Reyes, among others: that he ran to the rice field and there he met Oliveros (Gervasio Due) and Gatchalian talking, the former declaring he was sure the MP he had shot will die and Gatchalian making the same assurance as to the MP he (Gatchalian) had shot in turn. Testimony of Orsino (victim): narrated the incident substantially as described by Reyes, but could not identify the aggressors except the defendant Severino Austria who he pointed out as his treacherous assailant. Alleged admission made by Gatchalian: Lieutenants Fidel Martinez and Secundino Quintans declared under oath that Vicente Gatchalian admitted before the latter, which under investigation , that he had shot one of the MPs who died later. Gatchalian even showed how he had fired at the MP from the back, posing for a picture (Exhibit H). Alleged confession by Austria: Lieutenant Quintans likewise asserted that Severino Austria had voluntarily signed the confession Exhibit E wherein

Conclusion of the Court: We are thus satisfied from the foregoing of the guilty participation of the appellants in this gruesome business. Their defense of alibi is weak and untenable. The Solicitor General's brief substantially proves conspiracy between them and their other co-accused who are still at large. PEOPLE v. TULAGAN ** evidence in question: Natalias testimony FACTS: 1. Freddie Tulagan (alias Eding), Vicente De Guzman (alias Satsoy), Romie Mendoza and Ramon Mendoza are charged with murder for stabbing and killing Marlon Catungal in Pangasinan. (aggaravating circumstance: Catungal being helpless and defenseless coz the accused were armed with sharp pointed instrument.) 2. Three witnesses were presented by the prosecution: Bonifacio Ulanday, Bgy. Captain Jose Macaraeg and his daughter Natalia Macaraeg. 3. Bonifacios testimony (given in a sworn statement before the provincial fiscal of Dagupan): (Ill quote the

b.

c.

d.

full text) (1) The chase began at the dance hall, at about 10 o'clock p.m., after Marion Catungal was accosted by Valentin de Guzman alias "Satsoy" and 3 other persons. (2) Marlon Catungal ran away when he saw "Satsoy" receive a "balisong" about a foot long from one of his companions. (3) In Ulanday's words: "Satsoy chased Marlon Catungal." "When Satsoy chased Marlon, his three other companions also chased Marlon." "I followed them to the direction where they proceeded." (4) Ulanday followed in such a way as to avoid being noticed by the pursuers, staying about 15 meters behind them. (5) Ulanday "only lost sight of the four persons running after Marlon Catungal when said Marlon Catungal entered a certain yard"; he "never saw (he 'did not witness') how the four allegedly overtook Marlon Catungal." he "did not see any person who stabbed or killed Marlon Catungal." (6) Ulanday "only saw four persons who lifted him and placed him in front of that big house", at which time Marlon was "motionless" and blood was oozing from the body of Marlon Catungal what Ulanday said in his statement before the Provincial Fiscal is: While I was running towards the North (following the pursuers) I saw Satsoy and his companions carrying the cadaver of Marlon Catungal from the azotea of a house located around ten meters away from the road to Bayambang." "They placed the cadaver of Marion Catungal on the left side of the road from Malasiqui 4. Natalias testimony: (The one relevant for our topic) ** note: Natalias testimony is attributed only to Vicente De Guzman Q: What happened when these three persons you mentioned arrived in your store for the second time naked waist up? A: Vicente de Guzman, alias Satsoy, told me that they ran after my neighbor Atchi Taling. Q: What else if any? A: Then I asked them, what did you do to him? Then they told me they ran after my neighbor who is working with the PNR. Q: What did they answer you? A: Vicente de Guzman told me that we killed him. Romie Mendoza was arraigned and pleaded coz he was the only one arrested. He was then found to be guilty by the RTC. But in the dispositive portion of the decision it said: Let this case be archived as against accused Freddie Tulagan, Valentin de Guzman alias Vicente alias Satsoy and Ramon Mendoza, without prejudice to its reinstatement as against said accused, upon their arrest and upon motion of the prosecution RTC appreciated Natalias testimony as RES GESTAE or an ORAL CONFESSION. RTC said: ...The statement made by accused Valentin de Guzman alias Satsoy ... is admissible against accused Romeo Mendoza as part of the res gestae. Section 36, Rule 130 provides that 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 (Revised Rules of Court). Besides, the statement of Valentin de Guzman alias Vicente de Guzman ... partakes of an oral confession or part of the res gestae. The testimony of Natalia Macaraeg on his point is competent evidence.

RATIO: 1. RULE: not every statement made on the occasion of a startling occurrence is admissible as part of the res gestae; only such are admissible as appear to have been involuntarily and spontaneously wrung from an observer by the shock or impact of the occurrence such that, as has aptly been said, it is the event speaking through the witness, not the witness speaking of the event. The startling occurrence must produce so powerful an effect or influence on the observer as to extract from his lips some description of the event practically without being conscious of his utterance. 2. APPLIED IN CASE AT BAR: There is no evidence whatsoever that the statement attributed to Valentin de Guzman was made by him "immediately subsequent" to the startling occurrence which the Trial Court obviously had in mind: the slaying of Marion Catungal. 3. On the contrary, if account be taken of the claim of another prosecution witness, Bonifacio Ulanday, that he had followed the four persons pursuing the deceased for "almost one hour it would most certainly have taken Valentin de Guzman and his companions that length of time to return from the crime scene to where the chase had started, or to Natalia's store. 4. Natalia herself testified that the three (3) accused returned to her store at "about 10:30 PM," or after "more or less 1 1/2 hours. 5. There is no indication in the record that Valentin de Guzman was so affected when he made the statement in question under the circumstances related by Natalia Macaraeg. Indeed, it may reasonably be inferred from Natalia's testimony that he was in nowise agitated, stunned or shocked but was, on the contrary, calm, imposed, in full possession of his faculties and fully aware of what he was doing and saying. His statement regarding the killing of Marlon Catungal is not admissible as part of the res gestae, contrary to the view of the court a quo. Also the Court held: Considered as an "oral confession," Valentin de Guzman's statement is, of course, admissible against him, but its use against others for any purpose is proscribed by the well known rule res inter alios acta. As to the aggravating circumstance: There is no direct evidence to establish what is alleged in the information: that "Satsoy" (Valentin de Guzman) stabbed Marlon Catungal while the latter was being held "helpless and defenseless" by the three (3) other accused. (digesters note: go back to Bonifacio Ulandays sworn statement #5. He didnt see how the four allegedly killed the victim) BORROMEO v. CA FACTS: 1. This a cross-petition for the review of the resolution of the CA in the case of Borromeo v. Aznar which held that the transactions are equitable mortgaged instead of absolute sale of real properties thereby granting the heirs of the deceased Rallos a period of one year from the finality of the resolution w/in w/c to redeem the properties w/o prejudice to the right of the opposing party to foreclose the mortgages if no such redemption takes place and the amounts are not paid. Please read the discussion on the procedural matters, as I have delved only on the evidence part. 2. The main controversy in this case centers on the true nature of the 3 documents, Exhibits A, B,C which on their faces are unquestionably deeds of absolute sale of the

5.

6.

ISSUE: WON Natalias testimony is part of RES GESTAE? NO.

3.

4. 5.

real properties executed by the deceased Simeon Rallos on various dates in favor of Emmanuel Aznar, in Exhibits A and C, and his sister, Alma Aznar, in Exhibit B. In his complaint in the court below, Juan T. Borromeo, as administrator of the estate of Simeon Rallos, alleged that these documents were in fact equitable mortgages to secure loans granted to Rallos by Matias Aznar, deceased father of Emmanuel and Alma, and prayed for their reformation. The trial court dismissed the said complaint and on appeal, said dismissal was affirmed by the Court of Appeals. According to the testimony of Crispina Rallos Alcantara, who claimed to have been present when the transactions took place, her deceased father merely borrowed money from the late Matias Aznar in the sums of P6,000.00 and P35,000.00 and to secure the repayment thereof mortgaged to the latter the properties described in Exhibits A, B and C. She testified that the transactions were disguised as absolute sales and Rallos was assured by Matias Aznar that he could exercise the right to repurchase the lots and would deliver to him the corresponding options in writing.

a party to the instruments sought to be reformed, and there is nothing in said exhibit to indicate that the contested transactions were really loans secured by mortgages.

4.

WON Exhibits Q, Q-1, Q-2, Q-3, R and R-1, which refer to the alleged indebtedness of Rallos to Aznar is admissible in evidence. NO, the said exhibits fail to show clearly and satisfactorily that the transactions mentioned therein relate to the same transactions and the same parcels of land involved in the case at bar. Borromeos contentions: The considerations paid for the lots in dispute were very inadequate or unusually low which would justify reformation under the provisions of Articles 1602, paragraph 1, and 1604, of the Civil Code. SC Ruling: This contention is untenable. From the evidence adduced, the SC is ssatisfied that after the execution of the deeds of absolute sale, Exhibits A, B and C, the defendants vendees took possession of the subject lots, and they were in possession thereof and collected the rentals due until the plaintiff's administrator was authorized by the court a quo to collect the rents and deposit them in a bank, subject to the court's disposition. Borromeos contentions: Exhibit K, shows that Matias Aznar charged Rallos with the payment of the taxes due on the contested lots. According to Crispina Rallos Alcantara, the said exhibit was prepared by an employee of Matias Aznar upon the latter's orders, when she went to see him concerning the repurchase of the lots. This, however, was denied by the defendant, Emmanuel Aznar, who claimed that after the sale, neither Rallos nor his daughter Crispina went to see any of the Aznars in their office for the redemption of the lots.

ISSUES/RATIO:

1.

WON the testimony of Alcantara is reliable and sufficient to justify the reformation of the instrument. NO. Borromeos contentions: Exhibits A-2, A-3, B-3 and C-5, which, according to Crispina Rallos Alcantara, were her notations allegedly representing the deductions made by Matias Aznar for advance interest, attorney's fees and miscellaneous expenses, are corroborative of her testimony that the transactions in controversy were really loans with mortgages. SC Ruling: While it is true that relationship does not disqualify a witness, it calls for a close scrutiny of his testimony. For obvious reasons, the testimony of close relatives by affinity or consanguinity to corroborate a claim is not given much credence. Exhibits A, B and C were signed by Rallos himself as a party thereto. His successors-in-interest cannot now be heard to complain that the parties to said exhibits intended the same to be loans with mortgages contrary to what are clearly expressed therein. The natural presumption is that one does not sign a document without first informing himself of its contents, and that presumption acquires greater force where, as in the case at bar, not only one but several documents, executed at different times, were signed by Rallos.

5.

Whether exhibit K has evidentiary value? NO. It is neither dated nor signed, much less by the party sought to be charged. The alleged writer thereof was not presented at the trial of the case, and we have only the biased testimony of Crispina as to its authenticity or preparation. Even if it were true, however, that the writing was made, as alleged by Crispina, we cannot consider the name as proof of what was said or transacted then. The mere making of written memorandum immediately after the interview does not make the memorandum affirmative intrinsic proof of the things said or transacted. Knowledge on the part of the person who made the memorandum, at the time it was made, that the statements or entries therein were correct must be shown and this the Borromeo failed to do. On the other hand, the record indubitably shows that after the execution of the questioned instruments, the taxes on the lots subject matter thereof were paid by the defendants vendees. However, in its per curiam resolution of November 19, 1969, wherein Presiding Justice Capistrano who had by then been elevated to this Court was substituted by his successor Presiding Justice Julio Villamor, this rather strong disposition taken by the appellate court was completely reversed by itself as follows:

2.

WON these exhibits are admissible as evidence. NO. Said exhibits are weak and unsatisfactory as evidence of the facts asserted. They are clearly self-serving, as they were admittedly prepared by the declarant herself who was a daughter of the deceased Rallos and who cannot, therefore, be said to be disinterested witness.

3.

WON the copy of a draft of deed of absolute sale (Exhibit L) presented by Borromeo allegedly showing thay Aznar agreed to repurchase the lots from Rallos, is admissible in evidence. NO.

6.

This exhibit deserves but the scantest consideration, it being undated, unsigned and unsubscribed by any purported party thereto. Besides, even granting arguendo that the same was prepared by a lawyer of the Aznars, as alleged by Crispina Rallos Alcantara, we fail to see its materiality to the resolution of the main issue involved in this case of whether or not reformation is proper or justified, as the draft appears to have been drawn in favor of Crispina Rallos Alcantara who was not

MAIN ISSUE: Can the notations and memoranda of Alcantara, although considered as self-serving and unsatisfactory, still be considered as constituting part of the res gestea and such are admissible in evidence to show the nature of the contract in question and the relation of the parties involved? NO. It must be borne in mind, in this connection, that Crispina was not a party to the transaction in question. Only Simeon Rallos, on the one hand, and Matias Aznar, or Emmanuel and Alma Aznar, as the documents show, on the other, were the

parties thereto. The record does not reveal why Crispina was with her father at the time, hence, there can be no basis for holding that she actually took part in the transaction. That she allegedly took notes thereof while there present made her at best only a witness not a party. It cannot be said, therefore, that her taking down of her alleged notes, absent any showing that she was requested or directed by the parties to do so or that the parties, more particularly the Aznars, who are being sought to be bound by them, knew what she was doing, constitute part of the transaction, the res gestae itself. If such alleged taking of notes by Crispina has to be given any legal significance at all, the most that it can be is that it is one circumstance relevant to the main fact in dispute. It other words it could be at the most be only circumstantial evidence. The notes supposedly prepared by witness Alcantara during the transaction between her father and the Aznars do not partake at all of the nature of hearsay evidence. If anything they constitute memoranda contemplated in Section 10 of Rule 132 which provides: "SEC. 10.When witness may refer to memorandum. A witness may be allowed to refresh his memory respecting a fact, by anything written 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 stated in the writing; but in such case the writing 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, though he retain no recollection of the particular facts, if he is able to swear that the writing correctly stated the transaction when made; but such evidence must be received with caution." As may be observed, this provision applies only when it is shown beforehand that there is need to refresh the memory of the witness, which is not the case here. Nowhere in the record is there any indication that Alcantara needed during her testimony the aid of any memorandum in respect to the matters contained in the notes in dispute. Besides, under the above provision, the memorandum used to refresh the memory of the witness does not constitute evidence, and may not be admitted as such, for the simple reason that the witness has just the same to testify on the basis of refreshed memory. In other words, where the witness has testified independently of or after his testimony has been refreshed by a memorandum of the events in dispute, such memorandum is not admissible as corroborative evidence. It is self-evident that a witness may not be corroborated by any written statement prepared wholly by him. He cannot be more credible just because he supports his open-court declaration with written statements of the same facts even if he did prepare them during the occasion in dispute, unless the proper predicate of his failing memory is priorly laid down. What is more, even where this requirement has been satisfied, the express injunction of the rule itself is that such evidence must be received with caution, if only because it is not very difficult to conceive and fabricate evidence of this nature. This is doubly true when the witness stands to gain materially or otherwise from the admission of such evidence, which is exactly the case of Crispina Alcantara. Indeed, under the circumstances, with the notes of Crispina being inadmissible, and absent any other pertinent document to back up her words, the inference drawn by the Court of Appeals regarding options to repurchase the properties covered by Exhibits B and C appear hollow and baseless. The appealed resolution also reversed the Appellate Court's

original pose anent the admissibility of Exhibits X and Y by attributing to it corroborative evidentiary value of the testimony of Crispina, although it did not even mention said exhibits in its earlier decision. As in the case of exhibits previously discussed, thus that it was legal error for the Court of Appeals to have thus ruled in favor of the admission of these exhibits, X and Y merely be implication. It is true that their contents were discussed in the resolution, but no reason is given therein why they have suddenly become admissible. DBP POOL OF ACCREDITED INSURANCE COMPANIES v. RADIO MINDANAO NETWORK, INC. FACTS: RMNIs properties were covered by fire insurance policies. On July 27, 1988, its radio station, located in SSS Bldg., Bacolod City, was razed by fire. RMNI sought to collect the insurance proceeds from DBP. DBP denied liability on the ground that the cause of the loss was an excepted risk excluded under the insurance policy. The exclusion is brought by DBPs allegation that the fire was caused by members of the CPP-NPA. Hence, RMNI filed a complaint to claim the insurance proceeds due it. TC & CA: The insurance companies are liable for the loss. The evidence failed to support DBPs allegation that the loss was caused by an excepted risk, i.e. members of the CPP-NPA caused the fire. SC: Affirmed the TC and CA. The insurance company is liable for the loss. RATIO: Ill discuss the different topics for this case based on each piece of evidence presented by DBP. - rom On admissions and confessions: Evidence: a letter of one Celso Magilang who claims to be a member of the NPA and to be responsible for the fire This is an admission of a person who is not a party to the present action. It is inadmissible under Rule 130.26. WHY? An admission is competent only when the declarant or someone identified in legal interest with him is a party to the action. On Burden of Proof v. Burden of Evidence: Burden of Proof: the duty of ANY party to present evidence to establish his claim or defense by the amount of evidence required by law the party who asserts the affirmative of the issue has the burden of proof to obtain a favorable judgment e.g. when the defendant asserts an affirmative defense, as in this case, avoidance of the claim Evidence: Stipulation in the insurance policy, to wit: In any action, suit or other preceding where the Companies allege that by reason of the provisions condition any loss or damage is not covered by this insurance, the burden of proving that such loss or damage is covered shall be upon the Insured. The burden of proof contemplated by this provision actually refers to the burden of evidence (burden of going forward). It refers to the insureds duty to show that the loss or damage is covered by the policy. Still, the burden of proof rests on DBP to prove that the damage or loss was caused by an excepted risk in order to escape liability. On Res Gestae as Exception to the Hearsay Rule: Hearsay Rule: based upon serious concerns about the

trustworthiness and reliability of hearsay evidence 1. such evidence are not given under oath or solemn affirmation 2. such evidence have not been subjected to crossexamination by opposing counsel to test the perception, memory, veracity and articulateness of the out-of-court declarant or actor upon whose reliability on which the worth of the out-of-court statement depends Res Gestae: those exclamations or statements made by either the participants, victims or spectators to a crime immediately before, during or after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement applies only when the declarant himself did not testify and the testimony of the witness who heard the declarant complies with these requirements: 1. that the principal act, the res gestae, be a startling occurrence 2. the statements were made before the declarant had the time to contrive or devise a falsehood 3. the statements must concern the occurrence in question and its immediate attending circumstances Evidence: Testimony of the police (Lt. Col. Torres, SFO II Rochar) that the bystanders they interviewed claimed that the perpetrators were members of the CPP-NPA. These declarations are not part of res gestae. WHY? It cannot be said that these utterances were made spontaneously by the bystanders and before they had the time to contrive or devise a falsehood. These statements were taken by the police while they were making investigations during and after the fire. It is reasonable to assume that when these statements were noted, the bystanders already had enough time and opportunity to mill around, talk to one another and exchange information, not to mention theories and speculations. Thus, it cannot be ascertained whether these utterances were the products of truth. That they were mere idle talk is not remote. On Admissibility of Evidence v. Weight and Sufficiency: Admissibility: depends on its relevance and competence Weight: pertains to evidence already admitted and the tendency to convince and persuade Evidence: declaration of bystanders Assuming this is admissible (it is inadmissible), these declarations should be calibrated vis--vis the other evidence on record. Res Gestae and Entries in Official Records: Evidence: police blotter, certifications from the Bacolod Police Station, Fire Investigation Report These may be considered exceptions to the hearsay rule, being entries in official records. BUT: None of these documents categorically stated that the perpetrators were members of the CPP-NPA. It only stated in these documents that it was believed or suspected that members of the CPP-NPA were the perpetrators. Suspicion alone is not sufficient, preponderance of evidence being the quantum of proof.