You are on page 1of 10

Estrada v.

Desierto (Angara diary);


Evidentiary Issues

Petitioner devotes a large part of his arguments on the


alleged improper use by this Court of the Angara Diary. It is
urged that the use of the Angara Diary to determine the
state of mind of the petitioner on the issue of his resignation
violates the rule against the admission of hearsay
evidence.
We are unpersuaded. To begin with, the Angara
diary is not an out of court statement. The Angara Diary
is part of the pleadings in the cases at bar. Petitioner
cannot complain he was not furnished a copy of the Angara
Diary. Nor can he feign surprise on its use. To be sure, the
said Diary was frequently referred to by the parties in their
pleadings.[if !supportFootnotes][3][endif] The three parts of the Diary
published in the PDI from February 4-6, 2001 were attached
as Annexes A-C, respectively, of the Memorandum of private
respondents Romeo T. Capulong, et al., dated February 20,
2001. The second and third parts of the Diary were earlier
also attached as Annexes 12 and 13 of the Comment of
private respondents Capulong, et al., dated February 12,
2001. In fact, petitioner even cited in his Second
Supplemental Reply Memorandum both the second part of
the diary, published on February 5, 2001, [if !supportFootnotes][4][endif]
and the third part, published on February 6, 2001. [if !
supportFootnotes][5][endif]
It was also extensively used by Secretary of
Justice Hernando Perez in his oral arguments. Thus,
petitioner had all the opportunity to contest the use of the
Diary but unfortunately failed to do so.
Even assuming arguendo that the Angara Diary was
an out of court statement, still its use is not covered bythe
hearsay rule.[if !supportFootnotes][6][endif] Evidence is called hearsay
when its probative force depends, in whole or in part, on the
competency and credibility of some persons other than the
witness by whom it is sought to produce it. [if !supportFootnotes][7][endif]
There are three reasons for excluding hearsay evidence: (1)
absence of cross examination; (2) absence of demeanor
evidence, and (3) absence of the oath. [if !supportFootnotes][8][endif] Not
at all hearsay evidence, however, is inadmissible as
evidence. Over the years, a huge body of hearsay evidence
has been admitted by courts due to their relevance,
trustworthiness and necessity.[if !supportFootnotes][9][endif] The
emergence of these exceptions and their wide spread
acceptance is well-explained by Weinstein, Mansfield,
Abrams and Berger as follows:
xxx
On the other hand, we all make decisions in our everyday
lives on the basis of other persons accounts of what
happened, and verdicts are usually sustained and affirmed
even if they are based on hearsay erroneously admitted, or
admitted because no objection was made. See Shepp v.
Uehlinger, 775 F 2d 452, 454-455 (1st Cir. 1985) (hearsay
evidence alone can support a verdict). Although volumes
have been written suggesting ways to revise the hearsay
rule, no one advocates a rule that would bar all hearsay
evidence. Indeed, the decided historical trend has been
to exclude categories of highly probative statements
from the definition of hearsay (sections 2 and 3, infra),
and to develop more class exceptions to the hearsay
rule (sections 4-11, infra). Furthermore, many states
have added to their rules the residual, or catch-all,
exceptions first pioneered by the Federal Rules which

authorize the admission of hearsay that does not satisfy


a class exception, provided it is adequately trustworthy
and probative (section 12, infra).
Moreover, some commentators believe that the hearsay
rule should be abolished altogether instead of being
loosened. See, e.g., Note, The Theoretical Foundation of
the Hearsay Rules, 93 Harv.L.Rev. 1786, 1804-1805, 1815
(1980) (footnotes omitted):
The Federal Rules of Evidence provide that [a]lthough
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.
Under this structure, exclusion is justified by fears of how
the jury will be influenced by the evidence. However, it is not
traditional to think of hearsay as merely a subdivision of this
structure, and the Federal Rules do not conceive of hearsay
in that manner. Prejudice refers to the jurys use of evidence
for inferences other than those for which the evidence is
legally relevant; by contrast, the rule against hearsay
questions the jurys ability to evaluate the strength of a
legitimate inference to be drawn from the evidence. For
example, were a judge to exclude testimony because a
witness was particularly smooth or convincing, there would
be no doubt as to the usurpation of the jurys function. Thus,
unlike prejudices recognized by the evidence rules, such as
those stemming from racial or religious biases or from the
introduction of photographs of a victims final state, the
exclusion of hearsay on the basis of misperception strikes at
the root of the jurys function by usurping its power to
process quite ordinary evidence, the type of information
routinely encountered by jurors in their everyday lives.
Since virtually all criteria seeking to distinguish between
good and bad hearsay are either incoherent, inconsistent, or
indeterminate, the only altenative to a general rule of
admission would be an absolute rule of exclusion, which is
surely inferior. More important, the assumptions necessary
to justify a rule against hearsay seem insupportable and, in
any event, are inconsistent with accepted notions of the
function of the jury. Therefore, the hearsay rules should be
abolished.
Some support for this view can be found in the limited
empirical research now available which is, however, derived
from simulations that suggests that admitting hearsay has
little effect on trial outcomes because jurors discount
the value of hearsay evidence. See Rakos & Landsman,
Researching the Hearsay Rule: Emerging Findings, General
Issues, and Future Directions, 76 Minn.L.Rev. 655 (1992);
Miene, Park, & Borgidas, Jury Decision Making and the
Evaluation of Hearsay Evidence, 76 Minn.L.Rev. 683 (1992);
Kovera, Park, & Penrod, Jurors Perceptions of Eyewitness
and Hearsay Evidence, 76 Minn.L.Rev. 703 (1992);
Landsman & Rakos, Research Essay: A Preliminary
Empirical Enquiry Concerning the prohibition of Hearsay
Evidence in American Courts, 15 Law & Psychol. Rev. 65
(1991).
Others, even if they concede that restrictions on
hearsay have some utility, question whether the benefits
outweigh the cost:
The cost of maintaining the rule is not just a function of its
contribution to justice. It also includes the time spent on
litigating the rule. And of course this is not just a cost
voluntarily borne by the parties, for in our system virtually all

the cost of the court salaries, administrative costs, and


capital costs are borne by the public. As expensive as
litigation is for the parties, it is supported by an enormous
public subsidy. Each time a hearsay question is litigated,
the public pays. The rule imposes other costs as well.
Enormous time is spent teaching and writing about the
hearsay rule, which are both costly enterprises. In some law
schools, students spend over half their time in evidence
classes learning the intricacies of the hearsay rule, and
enormous academic resources are expended on the rule.
Allen, Commentary on Professor Friendmans Article: The
Evolution of the Hearsay Rule to a Rule of Admission, 76
Minn.L.Rev. 797, 800 [1992] (but would abolish rule only in
civil cases). See also Friedman, Toward a Partial Economic,
Game-Theoretic Analysis of Hearsay, 76 Minn. L. Rev. 723
(1992).[if !supportFootnotes][10][endif]
A complete analysis of any hearsay problem
requires that we further determine whether the hearsay
evidence is one exempted from the rules of exclusion. A
more circumspect examination of our rules of exclusion
will show that they do not cover admissions of a party
and the Angara Diary belongs to this class. Section 26 of
Rule 130 provides that the act, declaration or omission of a
party as to a relevant fact may be given in evidence against
him.[if !supportFootnotes][11][endif] It has long been settled that these
admissions are admissible even if they are hearsay.
Retired Justice Oscar Herrera of the Court of Appeals cites
the various authorities who explain why admissions are not
covered by the hearsay rule: [if !supportFootnotes][12][endif]
Wigmore, after pointing out that the partys declaration has
generally the probative value of any other persons
asssertion, argued that it had a special value when offered
against the party. In that circumstance, the admission
discredits the partys statement with the present claim
asserted in pleadings and testimony, much like a witness
impeached by contradictory statements. Moreover, he
continued, admissions pass the gauntlet of the hearsay
rule, which requires that extrajudicial assertions be
excluded if there was no opportunity for the opponent to
cross-examine because it is the opponents own declaration,
and he does not need to cross examine himself.
Wigmore then added that the Hearsay Rule is satisfied since
the party now as opponent has the full opportunity to put
himself on the stand and explain his former assertion.
(Wigmore on evidence, Sec. 1048 (Chadbourn Rev.
1972), cited in Sec. 154, McCormick)
According to Morgan: The admissibility of an admission
made by the party himself rests not upon any notion that the
circumstances in which it was made furnish the trier means
of evaluating it fairly, but upon the adversary theory of
litigation. A party can hardly object that he had no
opportunity to cross-examine himself or that he is
unworthy of credence save when speaking under
sanction of an oath.
A mans acts, conduct, and declaration, wherever made, if
voluntary, are admissible against him, for the reason that it
is fair to presume that they correspond with the truth, and it
is his fault if they do not. (U.S. vs. Ching Po, 23 Phil. 578,
583).
The Angara Diary contains direct statements of petitioner
which can be categorized as admissions of a party: his
proposal for a snap presidential election where he would not

be a candidate; his statement that he only wanted the fiveday period promised by Chief of Staff Angelo Reyes; his
statements that he would leave by Monday if the second
envelope would be opened by Monday and Pagod na pagod
na ako. Ayoko na, masyado nang masakit. Pagod na ako sa
red tape, bureaucracy, intriga. (I am very tired. I dont want
any more of this its too painful. Im tired of the red tape, the
bureaucracy, the intrigue). I just want to clear my name, then
I will go. We noted that days before, petitioner had
repeatedly declared that he would not resign despite the
growing clamor for his resignation. The reason for the
meltdown is obvious - - - his will not to resign has wilted.
It is, however, argued that the Angara Diary is not the
diary of the petitioner, hence, non-binding on him. The
argument overlooks the doctrine of adoptive admission.
An adoptive admission is a partys reaction to a statement or
action by another person when it is reasonable to treat the
partys reaction as an admission of something stated or
implied by the other person.[if !supportFootnotes][13][endif] Jones
explains that the basis for admissibility of admissions made
vicariously is that arising from the ratification or adoption
by the party of the statements which the other person had
made.[if !supportFootnotes][14][endif] To use the blunt language of
Mueller and Kirkpatrick, this process of attribution is not
mumbo jumbo but common sense.[if !supportFootnotes][15][endif] In
the Angara Diary, the options of the petitioner started to
dwindle when the armed forces withdrew its support from
him as President and commander-in-chief. Thus, Executive
Secretary Angara had to ask Senate President Pimentel to
advise petitioner to consider the option of dignified exit or
resignation. Petitioner did not object to the suggested
option but simply said he could never leave the country.
Petitioners silence on this and other related suggestions can
be taken as an admission by him. [if !supportFootnotes][16][endif]
Petitioner further contends that the use of the Angara
diary against him violated the rule on res inter alios acta.
The rule is expressed in section 28 of Rule 130 of the Rules
of Court, viz: The rights of a party cannot be prejudiced by
an act, declaration, or omission of another, except as
hereinafter provided.
Again, petitioner errs in his contention. The res inter
alios acta rule has several exceptions. One of them is
provided in section 29 of Rule 130 with respect to
admissions by a co-partner or agent.
Executive Secretary Angara as such was an alter ego
of the petitioner. He was the Little President. Indeed, he was
authorized by the petitioner to act for him in the critical
hours and days before he abandoned Malacaang
Palace. Thus, according to the Angara Diary, the petitioner
told Secretary Angara: Mula umpisa pa lang ng kampanya,
Ed, ikaw na lang pinakikinggan ko. At hanggang sa huli,
ikaw pa rin. (Since the start of the campaign, Ed, you have
been the only one Ive listened to. And now at the end, you
still are.) [if !supportFootnotes][17][endif] This statement of full trust was
made by the petitioner after Secretary Angara briefed
him about the progress of the first negotiation. True to
this trust, the petitioner had to ask Secretary Angara if he
would already leave Malacaang after taking their final lunch
on January 20, 2001 at about 1:00 p.m. The Angara Diary
quotes the petitioner as saying to Secretary Angara: ed,
kailangan ko na bang umalis? (Do I have to leave now?) [if !
supportFootnotes][18][endif]
Secretary Angara told him to go and he did.

Petitioner cannot deny that Secretary Angara headed his


team of negotiators that met with the team of the respondent
Arroyo to discuss the peaceful and orderly transfer of power
after his relinquishment of the powers of the presidency. The
Diary shows that petitioner was always briefed by Secretary
Angara on the progress of their negotiations. Secretary
Angara acted for and in behalf of the petitioner in the
crucial days before respondent Arroyo took her oath as
President. Consequently, petitioner is bound by the acts
and declarations of Secretary Angara.
Under our rules of evidence, admissions of an agent
(Secretary Angara) are binding on the principal
(petitioner).[if !supportFootnotes][19][endif] Jones very well explains the
reasons for the rule, viz: What is done, by agent, is done
by the principal through him, as through a mere instrument.
So, whatever is said by an agent, either in making a contract
for his principal, or at the time and accompanying the
performance of any act within the scope of his authority,
having relation to, and connected with, and in the course of
the particular contract or transaction in which he is then
engaged, or in the language of the old writers, dum fervet
opus is, in legal effect, said by his principal and admissible
in evidence against such principal. [if !supportFootnotes][20][endif]
Moreover, the ban on hearsay evidence does not
cover independently relevant statements. These are
statements which are relevant independently of whether
they are true or not. They belong to two (2) classes: (1)
those statements which are the very facts in issue, and (2)
those statements which are circumstantial evidence of the
facts in issue. The second class includes the following: [if !
supportFootnotes][21][endif]

a. Statement of a person showing his state of mind, that


is, his mental condition, knowledge, belief, intention, ill will
and other emotions;
b. Statements of a person which show his physical
condition, as illness and the like;
c. Statements of a person from which an inference may be
made as to the state of mind of another, that is, the
knowledge, belief, motive, good or bad faith, etc. of the
latter;
d. Statements which may identify the date, place and person
in question; and
e. Statements showing the lack of credibility of a witness.
Again, Jones tells us why these independently
relevant statements are not covered by the prohibition
against hearsay evidence: [if !supportFootnotes][22][endif]
1088. Mental State or Condition Proof of Knowledge.- There
are a number of comon issues, forming a general class, in
proof of which hearsay is so obviously necessary that it is
not customary to refer to its admissibility as by virtue of any
exception to the general exclusionary rule. Admissibility, in
such cases, is as of course. For example, where any
mental state or condition is in issue, such as motive,
malice, knowledge, intent, assent or dissent, unless direct
testimony of the particular person is to be taken as
conclusive of his state of mind, the only method of proof
available is testimony of others to the acts or
statements of such person. Where his acts or statements
are against his interest, they are plainly admissible within
the rules hereinabove announced as to admissions against
interest. And even where not against interest, if they are so
closely connected with the event or transaction in issue as

to constitute one of the very facts in controversy, they


become admissible of necessity.
As aforediscussed, The Angara Diary contains statements
of the petitioner which reflect his state of mind and are
circumstantial evidence of his intent to resign. It also
contains statements of Secretary Angara from which we can
reasonably deduce petitioners intent to resign. They are
admissible and they are not covered by the rule on hearsay.
This has long been a quiet area of our law on evidence and
petitioners attempt to foment a belated tempest cannot
receive our imprimatur.
Petitioner also contends that the rules on authentication
of private writings and best evidence were violated in our
Decision, viz:
The use of the Angara diary palpably breached several
hornbook rules of evidence, such as the rule on
authentication of private writings
xxx
A. Rule on Proof of Private Writings Violated
The rule governing private documents as evidence was
violated. The law provides that before any private writing
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.
xxx
B. Best Evidence Rule Infringed
Clearly, the newspaper reproduction is not the best evidence
of the Angara diary. It is secondary evidence, of dubious
authenticity. It was however used by this Honorable Court
without proof of the unavailability of the original or duplicate
original of the diary. The Best Evidence Rule should have
been applied since the contents of the diary are the subject
of inquiry.
The rule is that, except in four (4) specific instances, [w]hen
the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original
document itself. [if !supportFootnotes][23][endif]
Petitioners contention is without merit. In regard to the
Best Evidence rule, the Rules of Court provides in sections
2 to 4 of Rule 130, as follows:
Sec. 2. Documentary evidence. Documents as evidence
consist of writings or any material containing letters, words,
numbers, figures or other modes of written expressions
offered as proof of their contents.
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.

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.
It is true that the Court relied not upon the original but
only copy of the Angara Diary as published in the Philippine
Daily Inquirer on February 4-6, 2001. In doing so, the Court,
did not, however, violate the best evidence rule.
Wigmore, in his book on evidence, states that:
Production of the original may be dispensed with, in the trial
courts discretion, whenever in the case in hand the
opponent does not bona fide dispute the contents of the
document and no other useful purpose will be served by
requiring production. [if !supportFootnotes][24][endif]
xxx
In several Canadian provinces, the principle of unavailability
has been abandoned, for certain documents in which
ordinarily no real dispute arised. This measure is a sensible
and progressive one and deserves universal adoption (post,
sec. 1233). Its essential feature is that a copy may be used
unconditionally, if the opponent has been given an
opportunity to inspect it. (empahsis supplied)
Franciscos opinion is of the same tenor, viz:
Generally speaking, an objection by the party against whom
secondary evidence is sought to be introduced is essential
to bring the best evidence rule into application; and
frequently, where secondary evidence has been admitted,
the rule of exclusion might have successfully been invoked if
proper and timely objection had been taken. No general rule
as to the form or mode of objecting to the admission of
secondary evidence is set forth. Suffice it to say here that
the objection should be made in proper season that is,
whenever it appears that there is better evidence than
that which is offered and before the secondary evidence
has been admitted. The objection itself should be
sufficiently definite to present a tangible question for the
courts consideration. [if !supportFootnotes][25][endif]
He adds:
Secondary evidence of the content of the writing will be
received in evidence if no objection is made to its reception.

requisite to its admission. (Rouw v. Arts, 174 Ark. 79, 294


S.W. 993, 52 A.L.R. 1263, and others) However, a party
who does not deny the genuineness of a proffered
instrument may not object that it was not properly
identified before it was admitted in evidence. (Strand v.
Halverson, 220 Iowa 1276, 264 N.W. 266, 103 A.L.R. 835). [if !

[if !supportFootnotes][26][endif]

MEDIALDEA, J.:

In regard to the authentication of private writings, the


Rules of Court provides in section 20 of Rule 132, viz:
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.
Any other private document need only be identified as that
which it is claimed to be.
On the rule of authentication of private writings,
Francisco states that:
A proper foundation must be laid for the admission of
documentary evidence; that is, the identity and authenticity
of the document must be reasonably established as a pre-

supportFootnotes][27][endif]

Petitioner cites the case of State prosecutors v.


Muro,[if !supportFootnotes][28][endif] which frowned on reliance by
courts on newspaper accounts. In that case, Judge Muro
was dismissed from the service for relying on a newspaper
account in dismissing eleven (11) cases against Mrs. Imelda
Romualdez Marcos. There is a significant difference,
however, between the Muro case and the cases at bar. In
the Muro case, Judge Muro dismissed the cases against
Mrs. Marcos on the basis of a newspaper account without
affording the prosecution the basic opportunity to be
heard on the matter by way of a written comment or on oral
argument. . .(this is) not only a blatant denial of elementary
due process to the Government but is palpably indicative of
bad faith and partiality. In the instant cases, however, the
petitioner had an opportunity to object to the admissibility
of the Angara Diary when he filed his Memorandum dated
February 20, 2001, Reply Memorandum dated February 22,
2001, Supplemental Memorandum dated February 23,
2001, and Second Supplemental memorandum dated
February 24, 2001. He was therefore not denied due
process. In the words of Wigmore, supra, petitioner had
been given an opportunity to inspect the Angara Diary but
did not object to its admissibility. It is already too late in the
day to raise his objections in an Omnibus Motion, after the
Angara Diary has been used as evidence and a decision
rendered partly on the basis thereof.
---People v. Damaso, 212 SCRA 547 (1992);
G.R. No. 93516
August 12, 1992
THE PEOPLE OF THE PHILLIPPINES, plaintiff-appellee,
vs. BASILIO DAMASO @ Bernardo/BERNIE MENDOZA @
KA DADO, accused-appellant.
The Solicitor General for plaintiff-appellee.

The accused-appellant, Basilio Damaso, was originally


charged in an information filed before the Regional Trial
Court of Dagupan City with violation of Presidential Decree
No. 1866 in furtherance of, or incident to, or in connection
with the crime of subversion, together with Luzviminda
Morados y Galang @ Ka Mel, Teresita Calosa y
Macabangon @ Ka Tessie, Ricardo Calosa y Perez @ Ka
Ric, Marites Calosa y Evangelista @ Ka Tess, Eric
Tanciangco y Capira @ Ka Ric and Luz Tanciangco y
Pencial @ Ka Luz (Records, p. 3). Such information was
later amended to exclude all the above-enumerated persons
except the accused-appellant from the criminal charge. The
amended information reads:
That an or about the 19th day of June, 1988, in the City of

Dagupan, Philippines, and within the territorial jurisdiction of


this Honorable Court, the above-named accused, Basilio
DAMASO @ Bernardo/Bernie Mendoza @ KA DADO, did
then and there, willfully, unlawfully and criminally, have in his
possession, custody and control one (1) M14 Rifle bearing
Serial No. 1249935 with magazine and Fifty-Seven (57) live
ammunition, in furtherance of, or incident to, or in
connection with the crime of subversion, filed against said
accused in the above-entitled case for Violation of Republic
Act 1700, as amended by Executive Order No. 276.

PROSECUTION.
C.
THE LOWER COURT ERRED IN CONSIDERING
AS EVIDENCE THE FIREARMS DOCUMENTS AND ITEMS
LISTED IN EXHIBIT E AFTER THEY WERE DECLARED
INADMISSIBLE WITH FINALITY BY ANOTHER BRANCH
OF THE SAME COURT AND THE SAID EVIDENCE ARE
THE FRUITS OF AN ILLEGAL SEARCH.

D.
THE TRIAL COURT ERRED IN DENYING THE
MOTIONS TO QUASH FILED BY ACCUSED-APPELLANT
Contrary to Third Paragraph of Sec. 1, P.D. 1866. (Records, BECAUSE THE SEPARATE CHARGE FOR SUBVERSION
p. 20)
AGAINST HIM ABSORBED THE CHARGE FOR ILLEGAL
POSSESSION OF FIREARMS IN FURTHERANCE OF OR
Upon arraignment, the accused-appellant pleaded not guilty INCIDENT TO, OR IN CONNECTION WITH THE CRIME
to the crime charged (Records, p. 37). Trial on the merits OF SUBVERSION. (pp. 55-66, Rollo)
ensued. The prosecution rested its case and offered its
exhibits for admission. The counsel for accused-appellant The antecedent facts are set forth by the Solicitor General in
interposed his objections to the admissibility of the his Brief, as follows:
prosecution's evidence on grounds of its being hearsay,
immaterial or irrelevant and illegal for lack of a search On June 18, 1988, Lt. Candido Quijardo, a Philippine
warrant. On these bases, he, thereafter, manifested that he Constabulary officer connected with the 152nd PC Company
was not presenting any evidence for the accused (TSN, at Lingayen, Pangasinan, and some companions were sent
December 28, 1989, p. 139). On January 17, 1990, the trial to verify the presence of CPP/NPA members in Barangay
court rendered decision, the dispositive portion of which Catacdang, Arellano-Bani, Dagupan City. In said place, the
states:
group apprehended Gregorio Flameniano, Berlina Aritumba,
Revelina Gamboa and Deogracias Mayaoa. When
WHEREFORE, the Court finds accused Basilio Damaso interrogated, the persons apprehended revealed that there
alias Bernardo/Bernie Mendoza alias Ka Dado guilty beyond was an underground safehouse at Gracia Village in
reasonable doubt of Violation of Presidential Decree Urdaneta, Pangasinan. After coordinating with the Station
Number 1866, and considering that the Violation is in Commander of Urdaneta, the group proceeded to the house
furtherance of, or incident to, or in connection with the crime in Gracia Village. They found subversive documents, a
of subversion, pursuant to Section 1, Paragraph 3 of radio, a 1 x 7 caliber .45 firearm and other items (pp. 4, 6-7,
Presidential Decree Number 1866 hereby sentences the tsn, October 23, 1989).
accused to suffer the penalty of Reclusion Perpetua and to
pay the costs of the proceedings.
After the raid, the group proceeded to Bonuan, Dagupan
City, and put under surveillance the rented apartment of
The M14 Rifle bearing Serial Number 1249935 and live Rosemarie Aritumba, sister of Berlina Aritumba whom they
ammunition and all the articles and/or items seized on June earlier arrested. They interviewed Luzviminda Morados, a
19, 1988 in connection with this case and marked and visitor of Rosemarie Aritumba. She stated that she worked
submitted in court as evidence are ordered confiscated and with Bernie Mendoza, herein appellant. She guided the
forfeited in favor of the government, the same to be turned group to the house rented by appellant. When they reached
over to the Philippine Constabulary Command at Lingayen, the house, the group found that it had already been vacated
Pangasinan.
by the occupants. Since Morados was hesitant to give the
new address of Bernie Mendoza, the group looked for the
SO ORDERED. (Rollo, p. 31)
Barangay Captain of the place and requested him to point
out the new house rented by appellant. The group again
Thus, this present recourse with the following assignment of required Morados to go with them. When they reached the
errors:
house, the group saw Luz Tanciangco outside. They told her
that they already knew that she was a member of the NPA in
A.
THE TRIAL COURT ERRED IN FINDING the area. At first, she denied it, but when she saw Morados
ACCUSED APPELLANT GUILTY BEYOND REASONABLE she requested the group to go inside the house. Upon
DOUBT OF THE CRIME OF ILLEGAL POSSESSION OF entering the house, the group, as well as the Barangay
FIREARMS AND AMMUNITIONS IN FURTHERANCE OF, Captain, saw radio sets, pamphlets entitled "Ang Bayan,"
OR INCIDENT TO, OR IN CONNECTION WITH THE xerox copiers and a computer machine. They also found
CRIME OF SUBVERSION DESPITE THE WOEFULLY persons who were companions of Luz Tanciangco (namely,
INADEQUATE EVIDENCE PRESENTED BY THE Teresita Calosa, Ricardo Calosa, Maries Calosa, Eric
PROSECUTION.
Tanciangco and Luzviminda Morados). The group requested
the persons in the house to allow them to look around.
B.
THE COURT ERRED IN CONVICTING THE When Luz Tanciangco opened one of the rooms, they saw
ACCUSED WHEN THE QUALIFYING CIRCUMSTANCES books used for subversive orientation, one M-14 rifle, bullets
OF SUBVERSION WAS NOT PROVEN BY THE and ammunitions, Kenwood radio, artificial beard, maps of

the Philippines, Zambales, Mindoro an(d) Laguna and other


items. They confiscated the articles and brought them to
their headquarters for final inventory. They likewise brought
the persons found in the house to the headquarters for
investigation. Said persons revealed that appellant was the
lessee of the house and owned the items confiscated
therefrom (pp. 8-12, tsn, ibid; pp. 2-4, 6, 8-10, 31, tsn,
October 31, 1989). (p. 5, Brief of Plaintiff-Appellee, p. 91,
Rollo)

The Intelligence of the Pangasinan PC Command.

Can you name these officers?

A
Captain Roberto Rosales and his assistant, First Lt.
Federico Castro. (ibid, pp. 54-55)
M/Sqt. Artemio Gomez

While We encourage and support law enforcement agencies


in their drive against lawless elements in our society, We
must, however, stress that the latter's efforts to this end
must be done within the parameters of the law. In the case
at bar, not only did We find that there are serious flaws in
the method used by the law officers in obtaining evidence
against the accused-appellant but also that the evidence as
presented against him is weak to justify conviction.

Q
That underground house, do you know who was the
principal occupant of that house?

We reverse.

. . . (TSN, December 27, 1989, pp. 126-128)

The records of this case show that the accused-appellant


was singled out as the sole violator of P.D. No. 1866, in
furtherance of, or incident to, or in connection with the crime
of subversion. Yet, there is no substantial and credible
evidence to establish the fact that the appellant is allegedly
the same person as the lessee of the house where the M-14
rifle and other subversive items were found or the owner of
the said items. The prosecution presented two witnesses
who attested to this fact, thus:

Clearly, the aforequoted testimonies are hearsay because


the witnesses testified on matters not on their own personal
knowledge. The Solicitor General, however, argues that
while the testimonies may be hearsay, the same are
admissible because of the failure of counsel for appellant to
object thereto.

Lieutenant Candito Quijardo


Fiscal

xxx

xxx

xxx

A
During our conversation with the occupants, they
revealed that a certain Ka Bernie is the one occupying the
house, Bernie Mendoza alias Basilio Damaso.

It is true that the lack of objection to a hearsay testimony


results in its being admitted as evidence. But, one should
not be misled into thinking that since these testimonies are
admitted as evidence, they now have probative value.
Hearsay evidence, whether objected to or not, cannot be
given credence. In People vs. Valero, We emphatically
declared that:

Q
How about this Bernie Mendoza, who was the one
renting the house?
The failure of the defense counsel to object to the
presentation of incompetent evidence, like hearsay evidence
A
He was not around at that time, but according to Luz or evidence that violates the rule of res inter alios acta, or
(Tanciangco) who mentioned the name Bernie Mendoza (as) his failure to ask for the striking out of the same does not
the one who was renting the house and at the same time give such evidence any probative value. The lack of
claiming that it was Bernie Mendoza who owns the said objection may make any incompetent evidence admissible.
items. (TSN of October 31, 1989, p. 40)
But admissibility of evidence should not be equated with
weight of evidence. Hearsay evidence whether objected to
xxx
xxx
xxx
or not has no probative value.
(L-45283-84, March 19, 1982, 112 SCRA 675, emphasis
Q
I am showing you another picture which we request supplied)
to be marked as Exhibit "K-2," tell us if it has any connection
to the house?
It is unfortunate that the prosecution failed to present as
witnesses the persons who knew the appellant as the lessee
A
The same house, sir.
and owner of the M-14 rifle. In this way, the appellant could
have exercised his constitutional right to confront the
Q
Now, this person who according to you allegedly witnesses and to cross-examine them for their truthfulness.
occupied the house at Bonuan Gueset, by the name of Likewise, the records do not show any other evidence which
Bernie Mendoza, in your capacity as a Military officer, did could have identified the appellant as the lessee of the
you find out the identity?
house and the owner of the subversive items. To give
probative value to these hearsay statements and convict the
A
I am not the proper (person) to tell the real identity of appellant on this basis alone would be to render his
Bernie de Guzman.
constitutional rights useless and without meaning.
Q
Can you tell the Honorable Court the proper person Even assuming for the sake of argument that the appellant
who could tell the true identity of Bernie Mendoza?
is the lessee of the house, the case against him still will not

prosper, the reason being that the law enforcers failed to of the appellant at nighttime (Exh. J, p. 7, Records), does
comply with the requirements of a valid search and seizure not grant them the license to go inside his house. In Alih v.
proceedings.
Castro, We ruled that:
The right against unreasonable searches and seizures is
enshrined in the Constitution (Article III, Section 2). The
purpose of the law is to prevent violations of private security
in person and property, and unlawful invasions of the
sanctity of the home by officers of the law acting under
legislative or judicial sanction and to give remedy against
such usurpations when attempted (see Alvero v. Dizon, 76
Phil. 637, 646). However, such right is not absolute. There
are instances when a warrantless search and seizure
becomes valid, namely: (1) search incidental to an arrest;
(2) search of a moving vehicle; and (3) seizure of evidence
in plain view (Manipon, Jr. v. Sandiganbayan, L-58889, July
31, 1986, 143 SCRA 267, 276). None of these exceptions is
present in this case.
The Solicitor General argues otherwise. He claims that the
group of Lt. Quijardo entered the appellant's house upon
invitation of Luz Tanciangco and Luzviminda Morados,
helper of the appellant; that when Luz Tanciangco opened
one of the rooms, they saw a copier machine, computer, M14 rifle, bullets and ammunitions, radio set and more
subversive items; that technically speaking, there was no
search as the group was voluntarily shown the articles used
in subversion; that besides, a search may be validly
conducted without search warrant with the consent of the
person searched in this case, appellant's helper and Luz
Tanciangco allowed them to enter and to look around the
appellant's house; and that since the evidence seized was in
plain view of the authorities, the same may be seized
without a warrant.

The respondents cannot even plead the urgency of the raid


because it was in fact not urgent. They knew where the
petitioners were. They had every opportunity to get a search
warrant before making the raid. If they were worried that the
weapons inside the compound would be spirited away, they
could have surrounded the premises in the meantime, as a
preventive measure. There was absolutely no reason at all
why they should disregard the orderly processes required by
the Constitution and instead insist on arbitrarily forcing their
way into the petitioner's premises with all the menace of a
military invasion. (G.R. No. 69401, June 23, 1987, 151
SCRA 279, 286)
Another factor which illustrates the weakness of the case
against the accused-appellant is in the identification of the
gun which he was charged to have illegally possessed. In
the amended information (supra, pp. 1-2), the gun was
described as an M-14 rifle with serial no. 1249935. Yet, the
gun presented at the trial bore a different serial number
thus:
FISCAL
Q
Will you kindly restate again the items that you found
inside the house?
Lt. Quijardo:

A
When she opened the doors of the rooms that we
requested for, we immediately saw different kinds of books
of which we believed to be used for subversive orientation
We are not persuaded. The constitutional immunity from and the M-14 rifle.
unreasonable searches and seizures, being personal one,
cannot be waived by anyone except the person whose rights Q
In what portion of the house did you find this M-14
are invaded or one who is expressly authorized to do so in rifle which you mentioned?
his or her behalf (De Garcia v. Locsin, 65 Phil. 689, 695). In
the case at bar, the records show that appellant was not in A
In the same room of which the subversive
his house at that time Luz Tanciangco and Luz Morados, his documents were placed.
alleged helper, allowed the authorities to enter it (TSN,
October 31, 1989, p. 10). We Find no evidence that would Q
If this firearm would be shown to you would you be
establish the fact that Luz Morados was indeed the able to identify the same?
appellant's helper or if it was true that she was his helper,
that the appellant had given her authority to open his house A
Yes, sir.
in his absence. The prosecution likewise failed to show if
Luz Tanciangco has such an authority. Without this Q
I am showing to you a rifle bearing a serial number
evidence, the authorities' intrusion into the appellant's 1249985 which for purposes of identification, may we
dwelling cannot be given any color of legality. While the request your Honor, that this rifle be marked as Exhibit "D."
power to search and seize is necessary to the public
welfare, still it must be exercised and the law enforced COURT:
without transgressing the constitutional rights of the citizens,
for the enforcement of no statute is of sufficient importance Mark it.
to justify indifference to the basic principles of government
(Rodriguez v. Evangelista, 65 Phil. 230, 235). As a FISCAL:
consequence, the search conducted by the authorities was
illegal. It would have been different if the situation here Q
Kindly examine the said firearm and tell the
demanded urgency which could have prompted the Honorable Court the relation of that firearm to the firearm
authorities to dispense with a search warrant. But the record which according to you you found inside the room allegedly
is silent on this point. The fact that they came to the house occupied by one Bernie Mendoza?

Rising publicly and taking arms against the Government is


A
This is the same rifle which was discovered during the very element of the crime on rebellion. On the other
our raid in the same house. (TSN, October 31, 1989, pp. 36- hand, R.A. 1700 was enacted to outlaw the Communist
38, emphasis supplied).
Party of the Philippines (CPP) , other similar associations
and its successors because their existence and activities
The Solicitor General contends that the discrepancy is constitute a clear, present and grave danger to national
merely a typographical error.
security.
We do not think so. This glaring error goes into the
substance of the charge. Its correction or lack of it could
spell the difference between freedom and incarceration of
the accused-appellant.
In crimes of illegal possession of firearm as in this case, the
prosecution has the burden to prove the existence of the
firearm and that the accused who possessed or owned the
firearm does not have the corresponding license for it. Since
the gun as identified at the trial differs from the gun
described in the amended information, the corpus delicti (the
substance of the crime, the fact that a crime has actually
been committed) has not been fully established. This
circumstance coupled with dubious claims of appellant's
connection to the house (where the gun was found) have
totally emasculated the prosecution's case.

The first Whereas clause of R.A. 1700 states that the CPP is
an organized conspiracy to overthrow the Government, not
only by force and violence but also by deceit, subversion,
and other illegal means. This is a recognition that subversive
acts do not only constitute force and violence (contrary to
the arguments of private respondents), but may partake of
other forms as well. One may in fact be guilty of subversion
by authoring subversive materials, where force and violence
is neither necessary or indispensable.
Private respondents contended that the Court in Misolas v.
Panga impliedly ruled that if an accused is simultaneously
charged with violation of P.D. 1866 and subversion, the
doctrine of absorption of common crimes as applied in
rebellion would have found application therein. The
respondents relied on the opinion of this Court when it said:

But even as We find for the accused-appellant, We, take


exception to the argument raised by the defense that the
crime of subversion absorbs the crime of illegal possession
of firearm in furtherance of or incident to or in connection
with the crime of subversion. It appears that the accusedappellant is facing a separate charge of subversion. The
defense submits that the trial court should have peremptorily
dismissed this case in view of the subversion charge. In
People of the Philippines v. Asuncion, et al., We set forth in
no uncertain terms the futility of such argument. We quote:

. . . in the present case, petitioner is being charged


specifically for the qualified offense of illegal possession of
firearms and ammunition under PD 1866. HE IS NOT
BEING CHARGED WITH THE COMPLEX CRIME OF
SUBVERSION WITH ILLEGAL POSSESSION OF
FIREARMS. NEITHER IS HE BEING SEPARATELY
CHARGED FOR SUBVERSION AND FOR ILLEGAL
POSSESSION OF FIREARMS. Thus, the rulings of the
Court in Hernandez, Geronimo and Rodriguez find no
application in this case.

If We are to espouse the theory of the respondents that


force and violence are the very essence of subversion, then
it loses its distinction from rebellion. In People v. Liwanag
(G.R. No. 27683, 1976, 73 SCRA 473, 480 [1976]), the
Court categorically distinguished subversion from rebellion,
and held:

This is however a mere obiter. In the above case, the Court


upheld the validity of the charge under the third paragraph of
Section 1 of P.D. 1866. The Court opined that the dictum in
the Hernandez case is not applicable in that case,
considering that the legislature deemed it fit to provide for
two distinct offenses: (1) illegal possession of firearms
qualified by subversion (P.D. 1866) and (2) subversion
qualified by the taking up of arms against the Government
(R.A. 1700). The practical result of this may be harsh or it
may pose grave difficulty on an accused in instances similar
to those that obtain in the present case, but the wisdom of
the legislature in the lawful exercise of its power to enact
laws is something that the Court cannot inquire into . . .
(G.R. Nos. 83837-42, April 22, 1992).

Violation of Republic Act No. 1700, or subversion, as it is


more commonly called, is a crime distinct from that of actual
rebellion. The crime of rebellion is committed by rising
publicly and taking up arms against the Government for any
of the purposes specified in Article 134 of the Revised Penal
Code; while the Anti-Subversion Act (Republic Act No. 1700)
punishes affiliation or membership in a subversive
organization as defined therein. In rebellion, there must be a
public uprising and taking of arms against the Government;
whereas, in subversion, mere membership in a subversive
association is sufficient and the taking up of arms by a
member of a subversive organization against the
Government is but a circumstance which raises the penalty
to be imposed upon the offender. (Emphasis supplied)

Nonetheless, the evidence in hand is too weak to convict the


accused-appellant of the charge of illegal possession of
firearm in furtherance of, or incident to or in connection with
the crime of subversion, We are therefore, left with no
option, but to acquit the accused on reasonable doubt.

ACCORDINGLY, the decision appealed from is hereby


Furthermore, in the case of Buscayno v. Military REVERSED and the appellant is ACQUITTED with costs de
Commission (G.R. 58284, 109 289 (1981]), this Court said oficio.
that subversion, like treason, is a crime against national
security, while rebellion is a crime against public order. SO ORDERED.

the facts asserted therein. Thus, this case would have been
People v. Brioso, 37 SCRA 336 (1971);
decided in the same manner. The affidavit executed without
Doctrine: Affidavits are generally rejected in a judicial presenting the affiant for cross-examination is considered
proceeding as hearsay, unless the affiants themselves are hearsay.
placed on the witness stand to testify thereon.
FACTS: Silvino Daria and his wife Susana Tumalip were in
their house on December 23 1966. Daria was making rope
while Tumalip was applying candle wax to a flat iron. Cecilia
Bernal, their niece and neighbour, was alarmed by the
barking of dogs. When she peeped through a crack in the
wall of her house, she saw appellants Juan Brioso and
Mariano Taeza walking in the direction of the spouses
house, with Brioso carrying a long gun and Taeza, a short
weapon. She testified that she saw appellants point the gun
at the bamboo wall of the house and fired two shots.
Tumalip testified that right after Daria was shot, she rushed
to his side and he told her it was Brioso and Taeza who shot
him. He died one hour later. After a few days, Tumalip and
Bernal executed affidavits naming herein appellants as the
killers.

People v. Cusi, 14 SCRA 944 (1965);


Doctrine: The testimony of a witness regarding a statement
made by another person is hearsay and is inadmissible if
offered to prove the truth of the facts stated therein.
However, such may be admitted if intended only to establish
the fact that such statement was made or the tenor of such
statement.
FACTS: Aracadio Puesca, Walter Appa, Jose Guistilo,
Filomeno Macalinao, Ricardo Dario and Magno Montano
were charged with roberry in band with homicide. During the
trial, prosecution witness Sgt. Lucio Bano of the Police
Force of Digos, Davao, testified that Puesca, aka Big Boy,
made an extrajudicial confession to him wherein he admitted
his participation in the crime and named his coconspirators.When the prosecuting officer asked Bano to
mention the names of the alleged co-conspirator as
declared by Puesca in his extrajudicial confession, the
counsel of Macalinao, Gustilo and Dario objected on the
ground of hearsay. Respondent Judge Cusi sustained the
objection, but allowed the witness to mention the names of
those who did not object.

For their defense, Briosos alibi was that during that day, he
was with his cousin, Flores, milling sugar the entire day.
Flores was presented to corroborate Briosos alibi, but their
testimonies varied. Taezas alibi, was that he was playing his
guitar at the clinic with Antonio, son of the deceased, along
with some other companions, around the time the shooting
happened. This was corroborated by the affidavit of Antonio.
It must be noted, however, Antonios affidavit did not contain
the seal of the Fiscals office. Neither was he presented as a ISSUE:
witness during trial. The trial court convicted the appellants 1. Whether Judge Cusi erred in not allowing the witness to
for the murder of Daria.
mention all the names of those names by Puesca as his
co0conspirators on the ground of hearsay? YES.
ISSUE:
1. Whether the court was correct in relying on the RATIO: The testimony of a witness regarding a statement
testimonies of Bernal and Tumalip? YES.
made by another person is hearsay and is inadmissible if
2. Whether the court was correct in not admitting the offered to prove the truth of the facts stated therein.
affidavit of Antonio for being hearsay? YES.
However, such may be admitted if intended only to establish
the fact that the statement was made or the tenor of such
RATIO: The testimony of Bernal was corroborated by the statement.
declaration of the victim himself, who told his wife that it was
Brioso and Taeza who shot him. The declaration is In the present case, the purpose of the prosecuting officer
admissible under the rule on ante-mortem statements. as manifested by him, in nothing more than to establish the
Judging from the nature and extent of Darias wounds, he fact that the accused Puesca mentioned the names of those
must have realized the seriousness of his condition, and it who conspired with him to commit the offense charged,
can be safely inferred that he made such statements under without claiming that Puescas statement would be
the consciousness of an impending death.
competent and admissible to prove that the persons named
really and actually conspired with Puesca. For this limited
Antonios affidavit was properly rejected as hearsay purpose, the question propounded should have been
evidence. The said affidavit was never identified by the allowed.
supposed affiant and there was no opportunity for
prosecution to cross-examine him because he was not ANALYSIS
presented during trial. As stated in the case of People v. Under the proposed rules on evidence, this case would have
Mariquina, affidavits are generally rejected in a judicial been decided in the same manner. Hearsay evidence is
proceeding as hearsay, unless the affiants themselves are inadmissible to prove the truth of the facts stated therein,
placed on the witness stand to testify thereon.
however, jurisprudence allows such for the limited purpose
of showing the fact that the statements were made.
ANALYSIS
Under Rule 130, Sec 38 of the proposed rules on evidence
a statement other than one made by the declarant while
testifying at a trial or hearing, offered to prove the truth of

People v. Gaddi, 170 SCRA 649 (1989)


Doctrine: A statement is not hearsay if it is offered for the
purpose of proving that the fact or assertion was made by
the declarant, and not to prove the truth of the matter
asserted therein
FACTS: Accused Gaddi was charged with the crime of
murder. The facts show that witness Guzman saw accused
Gaddi and victim Esguerra drinking. In the morning of the
following day, the accused told Guzman that he killed his
drinking partner and dumped his body in the toilet pit.
Pursuant to the testimony of the witness Guzman, the
accused was declared guilty beyond reasonable doubt.
Gaddi appealed the decision assailing that the trial court
erred in giving weight and credence to the Guzmans
statement for the same was hearsay evidence.
ISSUE: 1. Whether the trial court erred in convicting the
accused on the basis of the statement he had made to the
witness concerning the fact that he had killed the deceased?
NO.
RATIO: The statement of Guzman relating that the accused
had told him that he had killed the deceased is not hearsay.
A confession constitutes evidence of high order if it is
supported by the strong presumption that no person in his
normal mind would knowingly confess to a crime unless he
was prompted by the truth. Proof that a person confessed to
the commission of a crime may be presented in evidence
without violating the hearsay rule. The hearsay rule merely
prohibits a person from testifying on facts that he merely
learned from others, but not from those which he derived of
his own personal knowledge.
In the case at bar, witness Guzman related the accuseds
confession for the purpose of establishing the fact that such
a statement was made, thus excluding the same from the
coverage of the hearsay rule.
ANALYSIS:
Under the current Rules of Evidence, the statement made
was not considered as hearsay. Under the
proposed rules, the statement of the witness is also
excluded from the hearsay rule because it was offered
not for the purpose of asserting the truth, but only for
proving the fact that the statement was made.