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INDEPENDENT RELEVANT STATEMENT

G.R. No. 74065 February 27, 1989


PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NERIO GADDI y CATUBAY, defendant-appellant.

CORTES, J.:

Nerio Gaddi y Catubay was charged with murder for the death of one Augusto Esguerra y
Navarro in an information which reads as follows:

xxx xxx xxx

That on or about the 11th day of December, 1981, in Quezon City, Metro Manila,
Philippines, the above-named accused, with intent to kill, without any justifiable
cause, qualified with treachery and with evident pre-meditation (sic), did then and
there, wilfully, unlawfully and feloniously attack, assault and employ personal
violence upon the person of one AUGUSTO ESGUERRA y NAVARRO, by then
and there stabbing him several times with a knife, hitting him on the different
parts of his body, thereby inflicting upon him serious and mortal wounds which
were the direct and immediate cause of his death, to the damage and prejudice of
the heirs of the offended party in such amount as maybe awarded under the
provision of the Civil Code.

CONTRARY TO LAW. [Rollo, p. 15.]

After arraignment, wherein Gaddi pleaded not guilty, and trial Judge Maximiano C. Asuncion of
Branch 104 of the Regional Trial Court of Quezon City handed down a verdict of guilt for the
crime charged, the decretal portion of which reads:

xxx xxx xxx

WHEREFORE, the Court finds the accused NERIO GADDI y CATUBAY guilty
beyond reasonable doubt of the crime of murder, as charged in the information,
and hereby sentences him to suffer the penalty of RECLUSION PERPETUA or
LIFE IMPRISONMENT and to pay his heirs of Augusta Esguerra the sum of
P50,000.00 without subsidiary imprisonment in case of insolvency, with all the
accessory penalties provided for by law, and to pay the costs.

SO ORDERED. [Rollo, p. 31.]

On appeal to this Court, Gaddi assigns as errors of the trial court the following:

I
THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO
THE TESTIMONY OF ERNESTO GUZMAN AND IN TOTALLY
DISREGARDING THE EVIDENCE ADDUCED BY THE DEFENSE.

II

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-


APPELLANT BASED ON HIS WRITTEN STATEMENT (EXH. "F") WHICH
IS INADMISSIBLE IN EVIDENCE.

III

THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING


CIRCUMSTANCES OF TREACHERY AND EVIDENT PRE-MEDITATION
[Rollo, p. 38.]

The prosecution presented five (5) witnesses before the court a quo, namely: Ernesto Guzman,
Pat, Arturo Angeles, Cpl. Rogello Castillo, Pat. Jesus Patriarca and Dr. Gregorio C. Blanco. On
the other hand, the accused Gaddi was the sole witness presented for the defense. The
prosecution's version of the facts are as follows:

xxx xxx xxx

At about 5:00 o'clock in the afternoon of December 11, 1981, at San Bartolome,
Novaliches, Quezon City, Ernesto Guzman saw appellant Nerio Gaddi and the
victim Augusto Esguerra drinking gin. In the morning of the following day,
December 12, 1981, appellant told Ernesto Guzman that he killed his drinking
partner Augusto Esguerra and dumped his body in a toilet pit. Guzman advised
appellant to surrender to the police. After work, Guzman went to the police and
reported what appellant told him (pp. 2-3. tsn, September 2, 1982; pp. 2-8. tsn,
August 9, 1983).

At around 2:00 o'clock in the afternoon of the same day, December 12, 1981,
Corporal Rogelio Castillo and Detective Rodrigo Salamat arrested appellant at
Manrey Subdivision, Novaliches, Quezon City. Appellant told Corporal Castillo
that he killed the victim and where he buried the body. Later, Pat. Jesus Patriarca
arrived. Appellant himself led the policeman and Barangay residents to where the
body was in a toilet pit in the backyard of Ernesto Guzman. The policeman, with
the help of the Barangay residents, dug out the body. The body of the victim was
Identified by Ernesto Guzman, his wife, and Jose Esguerra, victim's brother. Pat.
Patriarca took pictures of the body (Exhibits C to C-5), noted the statements of
Ernesto Guzman and Jose Esguerra, (Exhibit D), and took down the confession of
appellant (Exhibit F). Later, the cadaver was subjected to autopsy (pp. 3-13, tsn,
August 24, 1983; pp. 3-22, tsn, January 3, 1984).
A man's T-shirt with collar, colored yellow, red and blue, and red shorts, were
recovered from the pit where the body of the victim was dug out. The T-shirt and
shorts were Identified by Ernesto Guzman as those worn by appellant while he
was drinking with the victim on December 11, 1981 (pp. 2-3, tsn, September 2,
1982). A small table, rubber slipper, bottle of wine and glass were likewise
recovered from the same pit. (p. 6, tsn, July 14, 1983). [Brief for the Appellee, pp.
35; Rollo, p. 52.1

On the other hand, the defense's version of the facts are as follows:

Accused Nerio Gaddi a resident of Novaliches, Quezon City, testified that on


December 11, 1981, at around 2:00 to 5:00 p.m., he was drinking with Augusta
Esguerra (Bong Kuleleng) near the house of Ernesto Guzman. At about 5:00 p.m.,
be was requested by Ernesto Guzman to buy gin. He left Ernesto Guzman and
Augusta Esguerra (who were allegedly drinking) in order to buy a bottle of gin in
a nearby store, about 200 meters away. At the store, he met an acquaintance and
they talked for a while before returning. Upon his arrival at the place (where they
had a drinking spree) he noticed stain of blood in the place where they had been
drinking and Augusta Esguerra, alias Bong Kuleleng was not there anymore. He
inquired from Ernesto Guzman the whereabouts of Augusta Esguerra and was told
that the latter "went home already". He then asked Guzman about the blood and
was told that it was the blood stain of a "butchered chicken." At about 12:00
o'clock midnight, Ernesto Guzman informed him about the killing of Augusta
Esguerra. Guzman narrated to him that Bong Kuleleng (Augusta Esguerra) held
his rooster by the neck and that his tattoo mark BCJ (Batang City Jail) will be
erased by him. He did not report the killing to the authorities. Guzman likewise
requested ban to admit the killing but he refused. While in the house, Guzman
filed the case ahead. He was later arrested and investigated while looking for the
corpse. When brought to the police station, he was forced to admit the killing of
Augusto Esguerra (TSN, pp. 3-14 August 20, 1984). [Appellant's Brief, p. 4-5;
Rollo, p. 38.]

The Court finds the instant appeal unmeritorious.

Where the conviction of an accused is based merely on circumstantial evidence, as in this case, it
is essential for the validity of such conviction that: 1) there be more than one circumstance; 2)
the facts from which the inferences are derived are proven; and 3) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt [Section 5, Rule 133
of the Revised Rules of Court, People v. Modesto, G.R. No. L-25484, September 21, 1968, 25
SCRA 36; People v. Pajanustan, G.R. No. L-38162, May 17, 1980, 97 SCRA 699.] Although no
general rule has been formulated as to the quantity of circumstantial evidence which will suffice
for any case, yet all that is required is that the circumstances proved must be consistent with each
other, consistent with the hypothesis that the accused is guilty and at the same time inconsistent
with any other hypothesis except that of guilty [People v. Constante, G.R. No. L-14639,
December 28, 1964, 12 SCRA 653; People v. Caneda, G.R. No. L-19132, September 26, 1964,
12 SCRA 9.]
In the case at bar, the circumstantial evidence adduced by the prosecution sufficiently satisfies
the quantum of proof necessary to uphold a judgment of conviction. The following
circumstances proven by the prosecution indubitably point to the accused as the perpetrator of
the crime committed against Augusto Esguerra.

1. The fact that said victim was last seen on the day he was killed in the company
of the accused, drinking gin at the back of the house of Ernesto Guzman [TSN,
August 9,1983, p. 1.]

2. The fact that on the day after the drinking spree, December 12, 1981, the
accused himself admitted to Ernesto Guzman that he stabbed his drinking
companion and that the latter was 'nadisgrasya niya" so he dumped the body of
the victim in a hole being dug out for a toilet, located at the yard of Ernesto
Guzman [TSN, August 9,1983, p. 7.]

3. The fact that when he was turned over to Pat. Arturo Angeles and Pat. Rogelio
Castillo of the Northern Police District by the barangay people who apprehended
him, be admitted the truth of the charge of the barangay residents that he killed
someone and that he dumped the body of the victim in a place being dug out as an
improvised toilet [TSN, July 14, 1983, p. 5; TSN, August 24, 1983, p. 8.] At the
time the barangay people started digging for the body of the victim, the appellant
was even instructing them as to the exact location where the body was buried
[TSN, August 24, 1983, p. 6.]

4. The fact that the place where be led the police officers and the barangay
residents, i.e. the toilet pit in the backyard of Ernesto Guzman, was indeed the site
where he buried the victim as the body of the victim was found there after the
digging [TSN, January 3, 1984, p. 5.]

5. The fact that the T-shirt and shorts which the accused was wearing during the
drinking spree were later recovered from the place where the victim was buried
[TSN, September 2, 1982, p. 3.]

Appellant however disputes the trial court's reliance on the testimonies of the prosecution
witnesses as a basis for his conviction. As a rule, the trial court's assessment of the credibility of
the prosecution witnesses is entitled to great weight and respect [People v. Valentino, G.R. Nos.
L-49859- 60, February 20, 1986, 141 SCRA 397; People v. Dagangon, G.R. Nos. L-62654-58,
November 13, 1986, 145 SCRA 464] since it has the advantage of observing the demeanor of a
witness while on the witness stand and therefore can discern if such witness is telling the truth or
not [People v. Ornoza, G.R. No. 56283, June 30, 1987, 151 SCRA 495.]

Moreover, appellant's claim that Ernesto Guzman's testimony on Gaddi's confession of the crime
to him cannot be given credence for being hearsay is unavailing. This Tribunal bad previously
declared that a confession constitutes evidence of high order since it is supported by the strong
presumption that no person of normal mind would deliberately and knowingly confess to a crime
unless prompted by truth and his conscience [People v. Salvador, G.R. No. L-77964, July 26,
1988 citing People v. Castaneda; G.R. No. L-32625, August 31, 1979, 93 SCRA 59.] Proof that a
person confessed to the commission of a crime can be presented in evidence without violating
the hearsay rule [Section 30, Rule 130 of the Revised Rules of Court] which only prohibits a
witness from testifying as to those facts which he merely learned from other persons but not as to
those facts which he "knows of his own knowledge: that is, which are derived from his own
perception." Hence, while the testimony of a witness regarding the statement made by another
person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay
evidence, it is otherwise if the purpose of placing the statement in the record is merely to
establish the fact that the statement was made or the tenor of such statement [People v. Cusi Jr.,
G.R. No. L-20986, August 14, 1965, 14 SCRA 944.]Here, when Guzman testified that the
appellant, who probably was bothered by his conscience, admitted the killing to him, there was
no violation of the hearsay rule as Guzman was testifying to a fact which he knows of his own
personal knowledge; that is, be was testifying to the fact that the appellant told him that he
stabbed Augusta Esguerra and not to the truth of the appellant's statement.

That the testimony of Guzman on appellant's oral confession is competent evidence finds support
in People v. Tawat [G.R. No. L-62871, May 25, 1984, 129 SCRA 4311 which upheld the trial
court's reliance on an extrajudicial confession given, not to a police officer during custodial
interrogation, but to an ordinary farmer as the basis for conviction. The Court's pronouncements
in the aforesaid case find relevance in the instant case:

The declaration of an accused expressly acknowledging his guilt of the offense


charged, may be given in evidence against him' (Sec. 29 Rule 130, Rules of
Court). What Felicito told Ogalesco may in a sense be also regarded as part of the
res gestae.

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.)

Proof of the contents of an oral extrajudicial confession may be made by the


testimony of a person who testifies that he was present, heard, understood, and
remembers the substance of the conversation or statement made by the accused
[citing Underhill's Criminal Evidence, 4th Ed., Niblack, Sec. 278, p. 551.) [at pp.
436-437; Emphasis supplied.]

The trial court found no reason to doubt Guzman's credibility as a witness considering his stature
in the community as a member of a religious movement participating in such activities as
"maanita" and procession of the Fatima and Black Rosary [Rollo, p. 30.] In fact, on the day the
killing took place, he left his house where appellant and his companion, Esguerra were still
drinking and went to the house of Junior Isla to attend a "maanita" and participate in the weekly
activity of bringing down the crucifix and the image of the Fatima [TSN, September 2, 1982. p.
2] Besides, there was no showing at all that he was actuated by improper motives in testifying
against appellant so as to warrant disregard of his testimony [People v. Magdueno, G.R. No. L-
68699, September 22, 1986, 144 SCRA 210.] On the contrary, the evidence shows that even
though the appellant is not related at all to Guzman, the latter, as an act of generosity, allowed the
former to sleep in the porch of his house as the former had no immediate relatives in Quezon
City [TSN, August 9, 1983, p. 14.]

As to the testimony of Pat. Angeles and Pat. Castillo, the police officers who apprehended the
appellant, credence should be given to their narration of how the appellant was apprehended and
how he led the police and the barangay residents to the place where he dumped the body of his
victim since those police officers are presumed to have performed their duties in a regular
manner in the absence of evidence to the contrary [People v. Boholst, G.R. No. L-73008, July 23,
1987, 152 SCRA 263 citing People v. Gamayon, G.R. No. L-25486, April 28, 1983, 121 SCRA
642; People v. Campana, G.R. No. L-37325, August 30, 1983, 124 SCRA 271; People v. Rosas,
G.R. No. L-72782, April 30 1987, 149 SCRA 464.]

Appellant's defense to the prosecution's charge rests on an uncorroborated and purely oral
evidence of alibi. It has been ruled time and again that courts look upon the evidence of alibi
with suspicion [People v. Bondoc, 85 Phil. 545 (1950)] and always receive it with caution
[People v. Cinco, 67 Phil. 196 (1939); People v. de Guzman, 70 Phil. 23 (1940)] not only
because it is inherently weak and unreliable but also because of its easy fabrication [People v.
Rafallo, 86 Phil. 22 (1950).] To overcome the evidence of the prosecution, an alibi must satisfy
the test of "full, clear and satisfactory evidence" [U.S. v. Pascua, 1 Phil. 631 (1903); U.S. v.
Oxiles, 29 Phil, 587 (1915); U.S. v. Olais, 36 Phil 828 (1917).] This test requires not only proof
that the accused was somewhere else other than the scene of the crime but clear and convincing
proof of physical impossibility for the accused to have been at the place of the commission of the
crime [People v. Pacis, G.R. Nos. L-32957- 58, July 25, 1984. 130 SCRA 540; People v.
Coronado, G.R. No. 68932, October 28, 1986, 145 SCRA 250; People v. Ferrera, G.R. No.
66965, June 18, 1987, 151 SCRA 113.]

The testimony of the accused himself believes any claim of physical impossibility for him to be
at the scene of the crime since according to him, the store where he allegedly bought another
bottle of gin was only 200 meters away. He was able to return to Guzman's house only after half
an hour since he still had a chat with an acquaintance at the store. Even granting the truth of
appellant's story that he was ordered by Guzman to buy a bottle of gin at about 5:00 o'clock in
the afternoon and that he was back after thirty minutes, it was not impossible for him to have
committed the crime since Guzman and his wife left appellant alone with the victim at around
6:00 o'clock in the evening to attend the mananita at the house of Junior Isla. Thus, his
statements on the witness stand, far from demonstrating physical impossibility of being at the
scene of the crime, cast serious doubt on the veracity of his alibi.

As the culpability of the accused has been established beyond reasonable doubt by the evidence
of the prosecution, there is no need to dwell on the admissibility of appellant's extra-judicial
confession [Exh. F to F-9; Rollo, p. 20, et seq.] His conviction can be sustained independently of
said confession.

However, in the absence of proof as to how the victim was killed, the aggravating circumstances
of treachery and evident premeditation cannot be properly appreciated. The killing must be
considered as homicide only and not murder since the circumstance qualifying the killing must
be proven as indubitably as the killing itself [People v. Vicente, G.R. No. L-31725, February 18,
1986, 141 SCRA 347.] This Tribunal clearly pointed out in a previous case that

As heretofore stated, not a single eyewitness to the stabbing incident had been
presented by the prosecution. Thus, the record is totally bereft of any evidence as
to the means or method resorted to by appellant in attacking the victim. It is
needless to add that treachery cannot be deduced from mere presumption, much
less from sheer speculation. The same degree of proof to dispel reasonable doubt
is required before any conclusion may be reached respecting the attendance of
alevosia [People v. Duero, G.R No. 65555, May 22, 1985, 136 SCRA 515, 519-
520; Emphasis supplied. ]

Neither can the aggravating circumstance of evident premeditation be considered, absent a clear
showing of

1. the time when the of tender determined to commit the crime;

2. an act manifestly indicating that the culprit clung to his dead termination; and

3. a sufficient laspe of time between the determination and the execution to allow
him to reflect upon the consequences of his act [People v. Diva, G.R. No. L-
22946, October 11, 1968, 25 SCRA 468; People v. Pacada, Jr., G.R. Nos. L-
44444-45, July 7, 1986, 142 SCRA 427.]

As the evidence on record does not disclose the existence of treachery and evident premeditation
in the stabbing of the victim, the crime committed is only HOMICIDE and not murder, Since
there are neither mitigating nor aggravating circumstances, the penalty for homicide which
is reclusion temporal should be imposed in its medium period. Applying the Indeterminate
Sentence Law, the range of the imposable penalty is from eight (8) years and one (1) day
of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion
temporal, as maximum.

Absent any proof of actual damages, the heirs of Augusta Esguerra are entitled only to the
indemnity of P 30,000.00. Hence, the amount of P50,000.00 awarded by the trial court should be
reduced accordingly.

WHEREFORE, the appealed decision is MODIFIED and the accused-appellant is hereby found
guilty beyond reasonable doubt of the crime of HOMICIDE, sentenced to suffer the
indeterminate penalty of eight (8) years and one (1) day of prision mayor as minimum, to
seventeen (17) years and four (4) months of reclusion temporal as maximum, and to indemnify
the heirs of Augusto Esguerra in the amount of P 30,000.00.

ENTRIES IN THE REGULAR COURSE OF BUSINESS

G.R. No. 150464 June 27, 2006


SECURITY BANK AND TRUST COMPANY, Petitioner,
vs.
ERIC GAN, Respondent.

CORONA, J.:

This petition for review on certiorari1 seeks the reversal of the decision2 of the Court of Appeals
(CA) dated October 18, 2001 in CA-G.R. CV No. 45701, the dispositive portion of which read:

WHEREFORE, finding no reversible error therefrom, the Decision now on appeal is hereby
AFFIRMED in toto.

SO ORDERED.3

The factual antecedents follow.

Petitioner Security Bank and Trust Company is a banking institution duly organized and existing
under the laws of the Philippines. In 1981, respondent Eric Gan opened a current account with
petitioner at its Soler Branch in Santa Cruz, Manila. Petitioner alleged that it had an agreement
with respondent wherein the latter would deposit an initial amount in his current account and he
could draw checks on said account provided there were sufficient funds to cover them.
Furthermore, under a special arrangement with petitioners branch manager then, Mr.
Qui,4respondent was allowed to transfer funds from his account to another persons account also
within the same branch.5 Respondent availed of such arrangement several times by depositing
checks in his account and even before they cleared, he withdrew the proceeds thereof and
transferred them to the other account. These transactions were covered by what were known as
"debit memos" since respondent had no sufficient funds to cover the amounts he transferred.6

Later on, respondent purportedly incurred an overdraft or negative balance in his account. As of
December 14, 1982, the overdraft balance came up to P153,757.78. According to petitioner,
respondent refused to heed petitioners repeated demands for payment. For the period December
14, 1982 to September 15, 1990, the total obligation of respondent reached P297,060.01,
inclusive of interest.7

Thus, in 1991, petitioner filed a complaint for sum of money against respondent to recover
the P297,060.01 with 12% interest per annum from September 16, 1990 until fully paid,
attorneys fees, litigation expenses and costs of suit. The case was docketed as Civil Case No. 91-
55605 with the Regional Trial Court of Manila, Branch 13.8

Respondent denied liability to petitioner for the said amount. He contended that the alleged
overdraft resulted from transactions done without his knowledge and consent.

In a decision dated March 31, 1993, the trial court dismissed the complaint. It held that petitioner
was not able to prove that respondent owed it the amount claimed considering that the ledger
cards it presented were merely hearsay evidence. On petitioners appeal, the CA affirmed the trial
courts decision.
Hence, this petition anchored on the following grounds:

I. The honorable Court of Appeals erred in not ruling that petitioner has sufficiently
proved its cause of action against respondent; and that the ledger cards and the testimony
of Mr. Patricio Mercado constituted the best evidence of the transactions made by the
respondent relative to his account.

II. The honorable Court of Appeals erred in not applying the principle of estoppel against
respondent who has benefited from the special arrangement accorded to him by petitioner
which resulted in an overdraft / negative balance.

III. The honorable Court of Appeals erred in affirming the decision of the trial court.9

We deny the petition for lack of merit.

It is well established that under Rule 45 of the Rules of Court, only questions of law, not of fact,
may be raised before the Supreme Court. It must be stressed that this Court is not a trier of facts
and it is not its function to re-examine and weigh anew the respective evidence of the parties.
Factual findings of the trial court, especially those affirmed by the CA, are conclusive on this
Court when supported by the evidence on record.10

Here, both the trial court and the CA found that petitioner failed to substantiate its claim that
respondent knowingly incurred an overdraft against his account. We see no reason to disturb this
finding.

To prove its claim, petitioner presented Patricio Mercado who was the bookkeeper who handled
the account of respondent and recorded his transactions in a ledger. Based on this ledger,
respondent allegedly had a negative balance of P153,757.78. This resulted from transfers of
funds from respondents current account to another persons account. These transfers were made
under the authority of Qui.11 Respondent categorically denied that he ever authorized these
"funds transfers."12

The entries in the ledger, as testified to by Mercado, were not competent evidence to prove that
respondent consented to the transfers of funds. These entries merely showed that the transfers
were indeed made and that Qui approved them. Petitioners claim that respondent availed of a
special arrangement to transfer funds from his account to another persons account was a bare
allegation that was never substantiated. Admittedly, Mercado had no personal knowledge of this
arrangement.13 In fact, when asked about the details of the alleged consent given by respondent
to the transfers, he stated that he could not remember because respondent talked to Qui and not to
him.14 Petitioner could have presented Qui whom they alleged allowed the special arrangement
with respondent. But it did not.

Neither can we accept petitioners argument that the entries made by Mercado in the ledger were
competent evidence to prove how and when the negative balance was incurred. Petitioner
invokes Section 43 of Rule 130:
Entries in the course of business. Entries made at, or near the time of the transactions to which
they refer, by a person deceased, or unable to testify, who was in a position to know the facts
therein stated, may be received as prima facie evidence, if such person made the entries in his
professional capacity or in the performance of duty and in the ordinary or regular course of
business or duty.

Under this exception to the hearsay rule, the admission in evidence of entries in corporate books
required the satisfaction of the following conditions:

1. the person who made the entry must be dead, or unable to testify;

2. the entries were made at or near the time of the transactions to which they refer;

3. the entrant was in a position to know the facts stated in the entries;

4. the entries were made in his professional capacity or in the performance of a duty,
whether legal, contractual, moral or religious; and

5. the entries were made in the ordinary or regular course of business or duty.15

The ledger entries did not meet the first and third requisites.

Mercado, petitioners bookkeeper who prepared the entries, was presented to testify on the
transactions pertaining to the account of respondent. It was in the course of his testimony that the
ledger entries were presented. There was, therefore, neither justification nor necessity for the
presentation of the entries as the person who made them was available to testify in court.16

Moreover, Mercado had no personal knowledge of the facts constituting the entries, particularly
those entries which resulted in the negative balance. He had no knowledge of the truth or falsity
of these entries. We agree entirely with the following discussion of the trial court which was
affirmed by the CA:

The plaintiff submits that the ledger cards constituted the best evidence of the transactions made
by the defendant with the bank relative to his account, pursuant to Section 43 of Rule 130 of the
Revised Rules on Evidence. There is no question that the entries in the ledgers were made by one
whose duty it was to record transactions in the ordinary or regular course of the business. But for
the entries to be prima facie evidence of the facts recorded, the Rule interpose[s] a very
important condition, one which we think is truly indispensable to the probative worth of the
entries as an exception to the hearsay rule, and that is that the entrant must be "in a position to
know the facts therein stated." Undeniably, Mr. Mercado was in a position to know the facts of
the check deposits and withdrawals. But the transfers of funds through the debit memos in
question?

Let us be clear, at the outset, what the transactions covered by the debit memos are. They are, at
bottom, credit accommodations said to have been granted by the banks branch manager Mr.
[Q]ui to the defendant, and they are, therefore loans, to prove which competent testimonial or
documentary evidence must be presented. In the fac[e] of the denial by the defendant of the
existence of any such agreement, and the absence of any document reflecting it, the testimony of
a party to the transaction, i.e., Mr. [Q]ui, or of any witness to the same, would be necessary. The
plaintiff failed to explain why it did not or could not present any party or witness to the
transactions, but even if it had a reason why it could not, it is clear that the existence of the
agreements cannot be established through the testimony of Mr. Mercado, for he was [not in] a
position to [know] those facts. As a subordinate, he could not have done more than record what
was reported to him by his superior the branch manager, and unless he was allowed to be privy to
the latters dealings with the defendant, the information that he received and entered in the
ledgers was incapable of being confirmed by him.

There is good reason why evidence of this nature is incorrigibly hearsay. Entries in business
records which spring from the duty of other employees to communicate facts occurring in the
ordinary course of business are prima facie admissible, the duty to communicate being itself a
badge of trustworthiness of the entries, but not when they purport to record what were
independent agreements arrived at by some bank officials and a client. In this case, the entries
become mere casual or voluntary reports of the official concerned. To permit the ledgers,
prepared by the bank at its own instance, to substitute the contract as proof of the agreements
with third parties, is to set a dangerous precedent. Business entries are allowed as an exception to
the hearsay rule only under certain conditions specified in Section 43, which must be
scrupulously observed to prevent them from being used as a source of undue advantage for the
party preparing them.17 (citations omitted)

Thus, petitioner did not prove that respondent had incurred a negative balance in his account.
Consequently, there was nothing to show that respondent was indebted to it in the amount
claimed.lavvphil.net

Petitioners next argument is that respondent was estopped from denying the claim of petitioner
since he benefited from the special arrangement accorded to him resulting in the negative
balance. This must likewise fail. The so-called special arrangement was never established. In
addition, there was no evidence that respondent benefited from it. As held by the CA:

The trial court satisfactorily explained the reason for not applying the principle of estoppel
against defendant-appellee. As held by the trial court:

"There is no scope here for the application of estoppel against the defendant-appellee, since it
was not established that he had ever received copies of the ledgers, and therefore given the
opportunity to review the correctness of the entries. As we see it, the case of the [plaintiff suffers
from its failure to document its] transactions with its clients, and it is hardly right to close our
eyes to that infirmity at the expense of the defendant-appellee."

The temporary overdraft allegedly accorded by plaintiff-appellant to defendant-appellee has not


benefited the defendant-appellee in any manner. The 3 debit memos amounting to P150,000.00
appearing on defendant-appellees ledger consisted of fund transfers from and not to defendant-
appellees account. The transfers resulted [in] the benefit of other accounts, not that of defendant-
appellee.18
In view of the foregoing, the CA did not err in affirming the decision of the trial court.

WHEREFORE, the petition is hereby DENIED. The assailed decision of the Court of Appeals
dated October 18, 2001 in CA-G.R. CV No. 45701 is AFFIRMED in toto.

ANNA LERIMA PATULA, G.R. No. 164457


Petitioner,
Present:

CORONA,C.J.,Chairperson,
-versus- LEONARDO-DE CASTRO,
BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR.,JJ.
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. April 11, 2012
x-----------------------------------------------------------------------------------------x
DECISION

BERSAMIN, J.:

In the trial of everycriminal case, a judge must rigidlytest the States evidence of guilt in
order to ensure that such evidenceadheres to the basic rules of admissibility before pronouncing
an accused guilty of the crime charged upon such evidence. Nothing less is demanded of the
judge; otherwise, the guarantee of due process of law is nullified.The accused need
notadduceanythingto rebut evidence that is discredited for failing the test.Acquittal should then
follow.

Antecedents

Petitioner was charged withestafaunder an informationfiled in the Regional Trial Court (RTC)
in DumagueteCitythat averred:

That on or about and during the period from March 16 to 20, 1997 and for
sometime prior thereto, in the City of Dumaguete, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, being then a saleswoman of
Footluckers Chain of Stores, Inc., Dumaguete City, having collected and received
the total sum of P131,286.97 from several customers of said company under the
express obligation to account for the proceeds of the sales and deliver the
collection to the said company, but far from complying with her obligation and
after a reasonable period of time despite repeated demands therefore, and with
intent to defraud the said company, did, then and there willfully, unlawfully and
feloniously fail to deliver the said collection to the said company but instead, did,
then and there willfully unlawfully and feloniously misappropriate, misapply and
convert the proceeds of the sale to her own use and benefit, to the damage and
prejudice of the said company in the aforesaid amount of P131,286.97.

Contrary to Art. 315, par 1 (b) of the Revised Penal Code.[1]

Petitioner pled not guiltyto the offense charged in the information. At pre-trial, no
stipulation of factswas had, and petitioner did not avail herself of plea bargaining.Thereafter, trial
on the merits ensued.

The Prosecutions first witness was Lamberto Go, who testified that he was the branch
manager of Footluckers Chain of Stores, Inc. (Footluckers) in Dumaguete City since October 8,
1994; that petitioner was an employee of Footluckers, starting as a saleslady in 1996 until she
became a sales representative; that as a sales representative she was authorized to take orders
from wholesale customers coming from different towns (like Bacong, Zamboanguita, Valencia,
Lumbangan and Mabinay in Negros Oriental, and Siquijor), and to collect payments from them;
that she could issue and sign official receipts of Footluckers for the payments, which she would
then remit; that she would then submit the receipts for the payments for tallying and
reconciliation; that at first her volume of sales was quite high, but later on dropped, leading him
to confront her; that she responded that business was slow; that he summoned the accounting
clerk to verify; that the accounting clerk discovered erasures on some collection receipts; that he
decided to subject her to an audit by company auditor Karen Guivencan; that he learned from a
customer of petitioners that the customers outstanding balance had already been fully paid
although that balance appeared unpaid in Footluckers records; and that one night later on,
petitioner and her parents went to his house to deny having misappropriated any money of
Footluckers and to plead for him not to push through with a case against her, promising to settle
her account on a monthly basis; and that she did not settle after that, but stopped reporting to
work.[2]

On March 7, 2002, Gos cross examination, re-direct examination and re-


crossexamination were completed.

The only other witness for the Prosecution was Karen Guivencan, whomFootluckers
employed as its store auditor since November 16, 1995 until her resignation on March 31, 2001.
She declared that Go had requested her to audit petitioner after some customers had told him that
they had already paid their accounts but the office ledger had still reflected outstandingbalances
for them; that she first conducted her audit by going to the customers in places from Mabinay to
Zamboanguitain Negros Oriental, and then in Siquijor; thatshe discovered in the course of her
audit that the amounts appearing on the original copies of receipts in the possession of around 50
customers varied from the amounts written on the duplicate copies of the receipts petitioner
submitted to the office; that upon completing her audit, she submittedto Go a written report
denominated as List of Customers Covered by Saleswoman LERIMA PATULA w/ Differences in
Records as per Audit Duly Verified March 16-20, 1997 marked as Exhibit A; and that based on
the report, petitioner had misappropriated the total amount ofP131,286.92.[3]

During Guivencans stint as a witness, the Prosecution marked the ledgers of petitioners
various customers allegedly with discrepancies as Exhibits B to YYand their derivatives,
inclusive. Each of the ledgers had a first column that contained the dates of the entries, a second
that identified the invoices by the number, a third that statedthe debit, a fourth that noted the
credit (or the amounts paid), and a fifth that summed the balances (debit minus credit).Only 49 of
theledgerswere formally offered and admitted by the RTC because the 50thledger could no longer
be found.

In the course of Guivencansdirect-examination,petitioners counsel interposed a


continuing objection on the ground that the figuresentered in Exhibits B to YYand their
derivatives, inclusive, were hearsay because the persons who had made the entries were not
themselves presented in court.[4]With that, petitioners counsel did not anymore cross-examine
Guivencan, apparently regarding her testimony to be irrelevant because she thereby tended to
prove falsification, an offense not alleged in the information.

TheProsecution thenformally offered its documentary exhibits, including Exhibits B to


YYand their derivatives (like the originals and duplicates of the receipts supposedly executed and
issued by petitioner), inclusive, the confirmation sheets used by Guivencan in auditing the
accounts served by petitioner, and Guivencans so-called Summary (Final Report) of
Discrepancies.[5]

After the Prosecution rested its case, the Defense decided not to file a demurrer to
evidence although it had manifested the intention to do so, and instead rested itscase.The
Prosecution and Defense submitted their respective memoranda, and submitted the case for
decision.[6]
On January 28, 2004, the RTC, stating that inasmuch as petitioner had opted not to
present evidence for her defense the Prosecutions evidence remained unrefuted and
uncontroverted,[7]rendered its decision finding petitioner guilty of estafa, to wit:

Wherefore, in the light of the foregoing facts and circumstances, the Court
finds ANNA LERIMA PATULA guilty beyond reasonable doubt of the crime of
Estafa under Art. 315 par (1b) of the Revised Penal Code and accordingly, she is
hereby sentenced to suffer an INDETERMINATE PENALTY of imprisonment of
8 years and 1 day of prision mayor as minimum to 18 years and 4 months of
reclusion temporal as maximum with all the accessory penalties provided by law
and to indemnify private complainant the amount of P131,286.92 with interest at
12% per annum until fully paid and to pay the costs.

Pursuant to Sec. 2, Rule 114 of the Revised Rules of Criminal Procedure,


the cash bail put up by the accused shall be effective only until the promulgation
of this judgment.

SO ORDERED.[8]

Petitioner filed a motion for reconsideration, butthe RTC denied the motion on May 7,
[9]
2004.

Issues

Insisting that the RTCs judgment grossly violated [her] Constitutional and statutory right
to be informed of the nature and cause of the accusation against her because, while the charge
against her is estafa under Art. 315, par. 1 (b) of the Revised Penal Code, the evidence presented
against her and upon which her conviction was based, was falsification, an offense not alleged or
included in the Information under which she was arraigned and pleaded not guilty, and that said
judgment likewise blatantly ignored and manifestly disregarded the rules on admission of
evidence in that the documentary evidence admitted by the trial court were all private
documents, the due execution and authenticity of which were not proved in accordance with Sec.
20 of Rule 132 of the Revised Rules on Evidence, petitioner has directly appealed to the
Court via petition for review on certiorari, positing the following issues, to wit:

1. WHETHER THE ACCUSED OR ANY ACCUSED FOR THAT


MATTER , CHARGED OF ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE
REVISED PENAL CODE CAN BE CONVICTED UPON OR BY EVIDENCE
OF FALSIFICATION WHICH IS EVEN (SIC) NOT ALLEGED IN THE
INFORMATION.
2. WHETHER THE ACCUSEDS CONSTITUTIONAL AND
STATUTORY RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF
THE ACCUSATION AGAINST HER WAS VIOLATED WHEN SHE WAS
CONVICTED UPON OR BY EVIDENCE OF FALSIFICATION
CONSIDERING THAT THE CHARGE AGAINST HER IS ESTAFA THROUGH
MISAPPROPRIATION UNDER ART. 315, PAR. 1 (B) OF THE REVISED
PENAL CODE.

3. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING


IN EVIDENCE, EXHIBITS B TO YY-YY-2, ALL PRIVATE DOCUMENTS,
THE DUE EXECUTION AND AUTHENTICITY OF WHICH WERE NOT
PROVED IN ACCORDANCE WITH SEC. 20, RULE 132 OF THE SAID
REVISED RULES ON EVIDENCE ASIDE FROM THE FACT THAT SAID
EXHIBITS TEND TO PROVE FALSIFICATION BY THE ACCUSED, A
CRIME NEITHER CHARGED NOR ALLEGED IN THE INFORMATION.

4. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING


THE TESTIMONY OF KAREN GUIVENCAN DESPITE THE OBJECTION
THAT SAID TESTIMONY WHICH TRIED TO PROVE THAT THE ACCUSED
FALSIFIED EXHIBITS B TO YY-YY-2INCLUSIVE VIOLATED THE
ACCUSEDS CONSTITUTIONAL RIGHT TO BE INFORMED OF THE
NATURE AND CAUSE OF THE ACCUSATION AGAINST HER, FOR BEING
IRRELEVANT AND IMMATERIAL SINCE THE CHARGE AGAINST THE
ACCUSED IS ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE REVISED
PENAL CODE.

5. WHETHER OR NOT THE TRIAL COURT ERRED IN


CONCLUDING THAT THE EVIDENCE OF THE PROSECUTION REMAINS
UNREFUTED AND UNCONTROVERTED DESPITE ACCUSEDS
OBJECTION THAT SAID EVIDENCE IS IMMATERIAL AND IRRELEVANT
TO THE CRIME CHARGED.

6. WHETHER OR NOT THE DEFENSES NOT CROSS-EXAMINING


KAREN GUIVENCAN FOR THE REASON THAT HER TESTIMONY IS
IMMATERIAL AND IRRELEVANT AS IT TENDED TO PROVE AN
OFFENSE NOT CHARGED IN INFORMATION RESULTED IN THE
ADMISSION OF SAID TESTIMONY AS BEING UNREFUTED AND
UNCONTROVERTED, AND WHETHER OR NOT THE DEFENSES
OBJECTION WOULD NOT BE CONSIDERED WAIVED IF THE DEFENSE
CROSS-EXAMINED SAID WITNESS.
7. WHETHER OR NOT THE TRIAL COURT ERRED IN RULING
THAT EXHIBIT A, WHICH IS THE LIST OF CUSTOMERS COVERED BY
SALESWOMAN LERIMA PATULA WITH DIFFERENCE IN RECORD IS
NOT HEARSAY AND SELF-SERVING.[10]
The foregoing issues are now restatedas follows:

1. Whether or not the failure of the information for estafa to allege the
falsification of the duplicate receipts issued by petitioner to her
customersviolated petitioners right to be informed of the nature and cause of
the accusation;

2. Whether or not the RTC gravely erred in admitting evidence of the


falsification of the duplicate receiptsdespite the information not alleging the
falsification;

3. Whether or not the ledgers and receipts (Exhibits B to YY, and their
derivatives, inclusive) were admissible as evidence of petitioners guilt
for estafaas chargeddespite their not being duly authenticated;and
4. Whether or not Guivencanstestimony onthe ledgers and receipts (Exhibits B
to YY, and their derivatives, inclusive) to prove petitioners misappropriation
or conversion wasinadmissible for being hearsay.

Ruling

The petition is meritorious.

I
Failure of information to allege falsification
did not violate petitioners right to be informed
of thenatureand cause of the accusation

Petitioner contends that the RTC grossly violated her Constitutional right to be informed
of the nature and cause of the accusation when: (a) it held that the information did not have to
allege her falsification of the duplicate receipts, and (b) when it convicted her of estafa under
Article 315, paragraph 1(b) of the Revised Penal Codeby relying on the evidence on falsification.

The contentionof petitioner cannot be sustained.

The Bill of Rights guaranteessome rightsto every person accused of a crime, among them
the right to be informed of the nature and cause of the accusation, viz:

Section 14. (1) No person shall be held to answer for a criminal offense
without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved, and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against him,
to have a speedy, impartial, and public trial, to meet the witnesses face to face,
and to have compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he has been
duly notified and his failure to appear is unjustifiable.

Rule 110 of the Revised Rules of Court, the rule then in effect when the information was
filed in the RTC, contained the following provisions on the proper manner of alleging the nature
and cause of the accusation in the information, to wit:

Section 8.Designation of the offense. Whenever possible, a complaint or


information should state the designation given to the offense by the statute,
besides the statement of the acts or omissions constituting the same, and if there is
no such designation, reference should be made to the section or subsection of the
statute punishing it. (7)

Section 9.Cause of accusation. The acts or omissions complained of as


constituting the offense must be stated in ordinary and concise language without
repetition, not necessarily in the terms of the statute defining the offense, but in
such form as is sufficient to enable a person of common understanding to know
what offense is intended to be charged, and enable the court to pronounce proper
judgment. (8)
The importance of the proper manner of alleging the nature and cause of the accusation
in the informationshould never be taken for granted by the State. An accused cannot be
convicted of an offense that is not clearly charged in the complaint or information. To convict
him of an offense other than that charged in the complaint or information would be violative of
the Constitutional right to be informed of the nature and cause of the accusation. [11] Indeed, the
accused cannot be convicted of a crime, even if duly proven, unless the crime is alleged or
necessarily included in the information filed against him.

The crime of estafacharged against petitioner was defined and penalized by Article 315,
paragraph 1 (b), Revised Penal Code, viz:

Article 315. Swindling (estafa). Any person who shall defraud another by
any of the means mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision


mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but
does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the
penalty provided in this paragraph shall be imposed in its maximum period,
adding one year for each additional 10,000 pesos; but the total penalty which may
be imposed shall not exceed twenty years. In such cases, and in connection with
the accessory penalties which may be imposed under the provisions of this Code,
the penalty shall be termed prision mayor or reclusion temporal, as the case may
be.

2nd. The penalty of prision correccional in its minimum and medium


periods, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000
pesos;

3rd. The penalty of arresto mayor in its maximum period to prision


correccional in its minimum period if such amount is over 200 pesos but does not
exceed 6,000 pesos; and

4th. By arresto mayor in its maximum period, if such amount does not
exceed 200 pesos, provided that in the four cases mentioned, the fraud be
committed by any of the following means:

xxx

1. With unfaithfulness or abuse of confidence, namely:

xxx

(b) By misappropriating or converting, to the prejudice of another,


money, goods, or any other personal property received by the offender in
trust or on commission, or for administration, or under any other obligation
involving the duty to make delivery of or to return the same, even though
such obligation be totally or partially guaranteed by a bond; or by denying
having received such money, goods, or other property.

xxx

The elements of the offense charged were as follows:

(a) That the offender received money, goods or other personal property in trust, or
on commission, or for administration, or under any other obligation involving
the duty to make delivery of, or to return, the same;

(b) That the offender misappropriated or converted such money, goods or other
personal property, or denied his part in its receipt;

(c) That the misappropriation or conversion or denial was to the prejudice of


another; and
(d) That the offended party made a demand on the offender for the delivery or
return of such money, goods or other personal property.[12]

According to the theory and proof of the Prosecution, petitioner misappropriated or converted the
sums paid by her customers, and later falsified the duplicates of the receipts before turning such
duplicates to her employer to show that the customers had paid less than the amounts actually
reflected on the original receipts. Obviously, she committed the falsification in order to conceal
her misappropriation or conversion. Considering that the falsificationwas not an offense separate
and distinct from the estafacharged against her, the Prosecution could legitimately prove her acts
of falsification as its means of establishing her misappropriation or conversion as an essential
ingredient of the crime duly alleged in the information. In that manner, her right to be informed
of the nature and cause of the accusation against her was not infringed or denied to her.

We consider it inevitable to conclude that the information herein completely pleaded


the estafa defined and penalized under Article 315, paragraph 1 (b), Revised Penal Codewithin
the context of the substantive lawand the rules. Verily, there was no necessity for the information
to allege the acts of falsification by petitioner because falsification was not an element of
the estafacharged.

Not surprisingly,the RTC correctly dealt in its decision with petitioners concern thuswise:

In her Memorandum, it is the contention of [the] accused that [the]


prosecutions evidence utterly fails to prove the crime charged. According to the
defense, the essence of Karen Guivencans testimony is that the accused falsified
the receipts issued to the customers served by her by changing or altering the
amounts in the duplicates of the receipts and therefore, her testimony is
immaterial and irrelevant as the charge is misappropriation under Art. 315,
paragraph (1b) of the Revised Penal Code and there is no allegation whatsoever of
any falsification or alteration of amounts in the [i]nformation under which the
accused was arraigned and pleaded NOT GUILTY. Accused, thus, maintains that
the testimony of Karen Guivencan should therefore not be considered at all as it
tended to prove an offense not charged or included in the [i]nformation and would
violate [the] accuseds constitutional and statutory right to be informed of the
nature and cause of the accusation against her. The Court is not in accord with
such posture of the accused.

It would seem that the accused is of the idea that because the crime
charged in the [i]nformation is merely [e]stafa and not [e]stafa [t]hru
[f]alsification of documents, the prosecution could not prove falsification.
Such argumentation is not correct. Since the information charges accused
only of misappropriation pursuant to Art. 315, par. (1b) of the Revised
[P]enal Code, the Court holds that there is no necessity of alleging the
falsification in the Information as it is not an element of the crime charged.

Distinction should be made as to when the crimes of Estafa and


Falsification will constitute as one complex crime and when they are
considered as two separate offenses. The complex crime of Estafa Through
Falsification of Documents is committed when one has to falsify certain
documents to be able to obtain money or goods from another person. In other
words, the falsification is a necessary means of committing estafa. However,
if the falsification is committed to conceal the misappropriation, two separate
offenses of estafa and falsification are committed. In the instant case, when
accused collected payments from the customers, said collection which was in
her possession was at her disposal. The falsified or erroneous entries which
she made on the duplicate copies of the receipts were contrived to conceal
some amount of her collection which she did not remit to the company xxx.[13]

II
Testimonial and documentary evidence,being hearsay,
did not prove petitioners guilt beyond reasonable doubt

Nonetheless, in all criminal prosecutions, the Prosecution bears the burden to establish
the guilt of the accused beyond reasonable doubt. In discharging this burden, the Prosecutions
duty is to prove each and every element of the crime charged in the information to warrant a
finding of guilt for that crime or for any other crime necessarily included therein. [14] The
Prosecution must further prove the participation of the accused in the commission of the offense.
[15]
In doing all these, the Prosecution must rely on the strength of its own evidence, and not
anchor its success upon the weakness of the evidence of the accused. The burden of proof placed
on the Prosecution arises from the presumption of innocence in favor of the accused that no less
than the Constitution has guaranteed.[16]Conversely, as to his innocence, the accused has no
burden of proof,[17]that he must then be acquitted and set free should the Prosecution not
overcome the presumption of innocence in his favor.In other words, the weakness of the defense
put up by the accused is inconsequential in the proceedings for as long as the Prosecution has not
discharged its burden of proof in establishing the commission of the crime charged and in
identifying the accused as the malefactor responsible for it.
Did the Prosecution adduce evidence that proved beyond reasonable doubt the guilt of
petitioner for the estafa charged in the information?

To establish the elements of estafaearlier mentioned, the Prosecution presented the


testimonies of Go and Guivencan, and various documentsconsisting of: (a) the receipts allegedly
issued by petitioner to each of her customers upon their payment, (b) the ledgers listing the
accounts pertaining to each customer with the corresponding notations of the receipt numbers for
each of the payments, and (c) the confirmation sheets accomplished by Guivencan herself. [18]The
ledgers and receipts were marked and formally offered as Exhibits B to YY, and their derivatives,
inclusive.

On his part, Go essentially described for the trial court the various duties of petitioner as
Footluckers sales representative. On her part, Guivencan conceded having no personal
knowledge of the amounts actually received by petitioner from the customersor remitted by
petitioner to Footluckers.This means that persons other than Guivencan prepared Exhibits B to
YY and their derivatives, inclusive,and that Guivencan based her testimony on the entries found
in the receipts supposedly issued by petitioner and in the ledgers held by Footluckers
corresponding to each customer, as well as on the unsworn statements of some of the customers.
Accordingly, her being the only witness who testified on the entries effectively deprived the RTC
of the reasonable opportunity to validate and test the veracity and reliability of the entries as
evidence of petitioners misappropriation or conversion through cross-examination by petitioner.
The denial of that opportunity rendered theentire proof of misappropriation or conversion
hearsay, and thus unreliable and untrustworthy for purposes of determining the guilt or innocence
of the accused.

To elucidate why the Prosecutions hearsay evidence was unreliable and untrustworthy,
and thus devoid of probative value, reference is made toSection 36 of Rule 130, Rules of Court, a
rule that states that a witness can testify only to those facts that she knows of her personal
knowledge; that is, which are derived from her own perception, except as otherwise provided in
the Rules of Court. The personal knowledge of a witness is a substantive prerequisite for
accepting testimonial evidence that establishes the truth of a disputed fact. A witness bereft
ofpersonal knowledge of the disputed fact cannot be called upon for that purpose because her
testimony derives its value not from the credit accorded to her as a witness presently testifying
but from the veracity and competency of the extrajudicial source of her information.
In case a witness is permitted to testify based on what she has heard another person say
about the facts in dispute, the person from whom the witness derived the information on the facts
in dispute is not in court and under oath to be examined and cross-examined. The weight of such
testimony thendepends not upon theveracity of the witness but upon the veracity of the other
person giving the information to the witness without oath. The information cannot be tested
because the declarant is not standing in court as a witness andcannot, therefore, be cross-
examined.

It is apparent, too, that a person who relates a hearsay is not obliged to enter into any
particular, to answer any question, to solve any difficulties, to reconcile any contradictions, to
explain any obscurities, to remove any ambiguities; and that she entrenches herself in the simple
assertion that she was told so, and leaves the burden entirely upon the dead or absent author.
[19]
Thus, the rule against hearsay testimony rests mainly on the ground that there was no
opportunity to cross-examine the declarant.[20] The testimony may have been given under oath
and before a court of justice, but if it is offered against a party who is afforded no opportunity to
cross-examine the witness, it is hearsay just the same.[21]

Moreover, the theory of the hearsay rule is that when a human utterance is offered as
evidence of the truth of the fact asserted, the credit of the assertor becomes the basis of inference,
and, therefore, the assertion can be received as evidence only when made on the witness stand,
subject to the test of cross-examination. However, if an extrajudicial utterance is offered, not as
an assertion to prove the matter asserted but without reference to the truth of the matter asserted,
the hearsay rule does not apply. For example, in a slander case, if a prosecution witness testifies
that he heard the accused say that the complainant was a thief, this testimony is admissible not to
prove that the complainant was really a thief, but merely to show that the accused uttered those
words.[22] This kind of utterance ishearsay in character but is not legal hearsay. [23]The distinction
is, therefore, between (a) the fact that the statement was made, to which the hearsay rule does not
apply, and (b) the truth of the facts asserted in the statement, to which the hearsay rule applies.[24]

Section 36, Rule 130 of the Rules of Court is understandably not the only rule that
explains why testimony that is hearsay should be excluded from consideration. Excluding
hearsay also aims to preserve the right of the opposing party to cross-examine
the originaldeclarant claiming to have a direct knowledge of the transaction or occurrence. [25]If
hearsay is allowed, the right stands to be denied because the declarant is not in court. [26]It is then
to be stressed that the right to cross-examine the adverse partys witness,
being the only means of testing the credibility of witnesses and their testimonies, is essential to
the administration of justice.

To address the problem of controlling inadmissible hearsay as evidence to establish the


truth in a dispute while also safeguardinga partys right to cross-examine her adversarys
witness,the Rules of Court offers two solutions. The firstsolution is to require that allthe
witnesses in a judicial trial or hearing be examined only in courtunder oath or affirmation.
Section 1, Rule 132 of the Rules of Court formalizes this solution,viz:

Section 1. Examination to be done in open court. - The examination of


witnesses presented in a trial or hearing shall be done in open court, and under
oath or affirmation. Unless the witness is incapacitated to speak, or the question
calls for a different mode of answer, the answers of the witness shall be given
orally. (1a)

The secondsolution is to require that all witnesses besubject to the cross-examination by the
adverse party. Section 6, Rule 132 of the Rules of Courtensuresthis solutionthusly:

Section 6. Cross-examination; its purpose and extent. Upon the termination


of the direct examination, the witness may be cross-examined by the adverse
party as to any matters stated in the direct examination, or connected therewith,
with sufficient fullness and freedom to test his accuracy and truthfulness and
freedom from interest or bias, or the reverse, and to elicit all important facts
bearing upon the issue. (8a)

Although the second solution traces its existence to a Constitutional precept relevant to criminal
cases, i.e., Section 14, (2), Article III, of the 1987 Constitution,which guarantees that: In all
criminal prosecutions, the accused shall xxx enjoy the right xxx to meet the witnesses face to face
xxx, the rule requiring the cross-examination by the adverse party equally applies to non-criminal
proceedings.

We thus stress that the rule excluding hearsay as evidence is based upon serious concerns

about the trustworthiness and reliability of hearsay evidence due to its not being given under oath

or solemn affirmation and due to its not being subjected to cross-examination by the opposing

counsel to test the perception, memory, veracity and articulateness of the out-of-court declarant

or actor upon whose reliability the worth of the out-of-court statement depends.[27]
Based on the foregoing considerations, Guivencans testimony as well as Exhibits B to
YY, and their derivatives, inclusive, must be entirely rejected as proof of petitioners
misappropriation or conversion.

III
Lack of their proper authentication rendered
Exhibits B to YY and their derivatives
inadmissible as judicial evidence

Petitioner also contends that the RTC grossly erred in admitting as evidence Exhibits B to
YY, and their derivatives, inclusive, despite their being private documents that were not duly
authenticated as required by Section 20, Rule 132 of the Rules of Court.

Section 19, Rule 132 of the Rules of Courtdistinguishes between a public document and a
private document for the purpose of their presentation in evidence, viz:

Section 19. Classes of documents. For the purpose of their presentation in


evidence, documents are either public or private.

Public documents are:

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

(b) Documents acknowledged before a notary public except last wills and
testaments, and

(c) Public records, kept in the Philippines, of private documents required


by law to be entered therein.

All other writings are private.

The nature of documents as either public or private determines how the documents may
be presented as evidence in court. A public document, by virtue of its official or sovereign
character, or because it has been acknowledged before a notary public (except a notarial will) or
a competent public official with the formalities required by law, or because it is a public record
of a private writing authorized by law, is self-authenticating and requires no further
authentication in order to be presented as evidence in court.In contrast, a private document is any
other writing, deed, or instrument executed by a private person without the intervention of a
notary or other person legally authorized by which some disposition or agreement is proved or
set forth. Lacking the official or sovereign character of a public document, or the solemnities
prescribed by law, a private document requires authentication in the manner allowed by law or
the Rules of Court before its acceptance as evidence in court. The requirement of authentication
of a private document is excused only in four instances, specifically: (a) when the document is
an ancient one within the context of Section 21, [28] Rule 132 of the Rules of Court; (b) when the
genuineness and authenticity of an actionable document have not been specifically denied under
oath by the adverse party;[29](c) when thegenuineness and authenticity of the document

have been admitted;[30] or (d) when the document is not being offered as genuine.[31]

There is no question that Exhibits B to YY and their derivatives were private documents
because private individuals executed or generated them for private or business purposes or uses.
Considering that none of the exhibits came under any of the four exceptions, they could not be
presented and admitted as evidence against petitioner without the Prosecution dutifully seeing to
their authentication in the manner provided in Section20 of Rule 132 of the Rules of Court,viz:

Section 20. Proof of private documents. 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.

The Prosecutionattempted to have Go authenticate the signature of petitioner in various


receipts, to wit:

ATTY. ABIERA:
Q. Now, these receipts which you mentioned which do not tally with the original
receipts, do you have copies of these receipts?
A. Yes, I have a copy of these receipts, but its not now in my possession.
Q. But when asked to present those receipts before this Honorable Court, can you
assure this
(Next Page)

ATTY ABIERA (continuing):


Honorable Court that you will be able to present those receipts?
A. Yes.
Q. You are also familiar with the signature of the accused in this case, Anna
Lerima Patula?
A. Yes.
Q. Why are you familiar with the signature of the accused in this case?
A. I used to see her signatures in the payroll and in the receipts also.
Q. Okay, I have here a machine copy of a receipt which we would present
this,or offer the same as soon as the original receipts can be
presented, but for purposes only of your testimony, Im going to
point to you a certain signature over this receipt number FLDT96
20441, a receipt from Cirila Askin, kindly go over the signature and
tell the Honorable Court whether you are familiar with the
signature?
A. Yes, that is her signature.
INTERPRETER:
Witness is pointing to a signature above the printed word collector.

(Next Page)

ATTY. ABIERA:
Q. Is this the only receipt wherein the name, the signature rather, of the
accused in this case appears?
A. That is not the only one, there are many receipts.
ATTY. ABIERA:
In order to save time, Your Honor, we will just be presenting the original
receipts Your Honor, because its quite voluminous, so we will just
forego with the testimony of the witness but we will just present the
same using the testimony of another witness, for purposes of
identifying the signature of the accused. We will request that this
signature which has been identified to by the witness in this case be
marked, Your Honor, with the reservation to present the original copy
and present the same to offer as our exhibits but for the meantime, this
is only for the purposes of recording, Your Honor, which we request
the same, the receipt which has just been identified awhile ago be
marked as our Exhibit A You Honor.
COURT:
Mark the receipt as Exhibit A.
ATTY. ABIERA:
And the signature be bracketed and be marked as Exhibit A-1.

(Next Page)
COURT:
Bracket the signature &mark it as Exh. A-1. What is the number of that receipt?

ATTY. ABIERA:
Receipt No. 20441 dated August 4, 1996 the statement that: received from Cirila
Askin.[32]
xxx

As the excerpts indicate, Gos attempt at authentication of the signature of petitioner on the
receipt with serial number FLDT96 No. 20441 (a document that was marked as Exhibit A, while
the purported signature of petitioner thereon was marked as Exhibit A-1) immediately fizzled out
after the Prosecution admitted that the document was a meremachinecopy, not the original.
Thereafter, as if to soften its failed attempt, the Prosecution expressly promised to produce at a
later date the originalsof the receipt with serial number FLDT96 No. 20441 and other receipts.
But that promise was not even true, because almost in the same breath the Prosecution offered to
authenticate the signature of petitioner on the receiptsthrougha different witness (though then still
unnamed). As matters turned out in the end, the effort to have Go authenticate both
themachinecopy of the receiptwith serial number FLDT96 No. 20441 and the signature of
petitioner on that receipt was wasteful because the machine copy was inexplicablyforgotten and
was no longer evenincluded in the Prosecutions Offer of Documentary Evidence.

It is true that the original of the receipt bearing serial number FLDT96 No. 20441was
subsequentlypresented as Exhibit Bthrough Guivencan. However,the Prosecution did not
establishthat the signature appearing on Exhibit B was the same signature that Go had
earliersought to identify to be the signature of petitioner (Exhibit A-1) on the machine copy
(Exhibit A). This is borne out by the fact that the Prosecution abandoned Exhibit A as the
marking nomenclature for the machine copyof the receipt bearing serial number FLDT96 No.
20441 for all intents and purposes of this case, and used the same nomenclature to referinstead
toan entirely differentdocument entitled List of Customers covered by ANA LERIMA PATULA
w/difference in Records as per Audit duly verified March 16-20, 1997.

In her case, Guivencans identification of petitioners signature on two receipts based alone
on the fact that the signatures contained the legible family name of Patula was ineffectual, and
exposed yet another deep flaw infecting the documentary evidence against petitioner. Apparently,
Guivencan could not honestly identify petitioners signature on the receipts either because she
lacked familiarity with such signature, or because she had not seen petitioner affix her signature
on the receipts, as the following excerpts from her testimony bear out:

ATTY. ZERNA to witness:


Q. There are two (2) receipts attached here in the confirmation sheet,
will you go over these Miss witness?
A. This was the last payment which is fully paid by the customer. The other
receipt is the one showing her payment prior to the last payment.
COURT:
Q. Where did you get those two (2) receipts?
A. From the customer.
Q. And who issued those receipts?
A. The saleswoman, Miss Patula.
ATTY. ZERNA:
We pray, Your Honor, that this receipt identified be marked as Exhibit B-3, receipt
number 20441.

(Next Page)

COURT:
Mark it.
ATTY. ZERNA:
The signature of the collector be marked as
Q. By the way, there is a signature above the name of the collector, are your
familiar with that signature? (shown to witness)
A. Yes.
Q. Whose signature is that?
A. Miss Patula.
Q. How do you know?
A. It can be recognized because of the word Patula.
Q. Are you familiar with her signature?
A. Yes.
ATTY. ZERNA:
We pray that the signature be bracketed and marked as Exhibit B-3-a
COURT:
Mark it.
ATTY. ZERNA:
The other receipt number 20045 be marked as Exhibit B-4 and the signature as
Exhibit B-4-a.
COURT:
Mark it.[33]

xxx
ATTY. ZERNA:
Q. Ms. Witness, here is a receipt colored white, number 26603 issued to one
Divina Cadilig. Will you please identify this receipt if this is the
receipt of your office?
A.Yes.
Q.There is a signature over the portion for the collector. Whose signature is this?
A.Ms. Patula.
Q.How do you know that this is her signature?
A.Because we can read the Patula.[34]

We also have similar impressions of lack of proper authentication as to the ledgers the
Prosecution presented to prove the discrepancies between the amountspetitioner hadallegedly
received from the customers and the amounts she had actually remitted to Footluckers.
Guivencanexclusively relied on the entries of the unauthenticated ledgersto support her audit
report on petitioners supposed misappropriation or conversion, revealing her lack of independent
knowledge of the veracity of the entries, as the following excerpts of her testimony show:
ATTY. ZERNA to witness:
Q. What is your basis of saying that your office records showed that this
Cecilia Askin has an account of P10,791.75?
ATTY. DIEZ:
The question answers itself, You Honor, what is the basis, office record.
COURT:
Let the witness answer.
WITNESS:
A. I made the basis on our ledger in the office. I just copied that and showed it
to the customers for confirmation.

ATTY. ZERNA to witness:


Q. What about the receipts?
COURT:
Make a follow-up question and what was the result when you copied that amount
in the ledger and you had it confirmed by the customers, what was the
result when you had it confirmed by the customers?
WITNESS:
A. She has no more balance but in our office she has still a balance of P10,971.75.
ATTY. ZERNA to witness:
Q. Do you have a-whats the basis of saying that the balance of this customer is
still P10,971.75

(Next Page)

ATTY. ZERNA (continuing):


[i]n your office?
COURT:
That was already answered paero, the office has a ledger.
Q. Now, did you bring the ledger with you?
A. No, Maam.[35]

(Continuation of the Direct Examination of


Karen Guivencan on August 13, 2002)

ATTY. ZERNA to witness:


Q. Okay, You said there are discrepancies between the original and the
duplicate, will you please enlighten the Honorable Court on that
discrepancy which you said?
A. Like in this case of Cirila Askin, she has already fully paid. Her ledger
shows a zero balance she has fully paid while in the original

(Next page)

WITNESS (continuing):
[r]eceipt she has a balance of Ten Thousand Seven hundred Ninety-one Pesos
and Seventy-five Centavos (10,791.75).
COURT:
Q. What about the duplicate receipt, how much is indicated there?
A. The customer has no duplicate copy because it was already forwarded to the
Manila Office.
Q. What then is your basis in the entries in the ledger showing that it has already a
zero balance?
A. This is the copy of the customer while in the office, in the original receipt she
has still a balance.
xxx
ATTY. ZERNA:
The confirmation sheet ---

COURT:
The confirmation sheet was the one you referred to as the receipt in your earlier
testimony? Is that what you referred to as the receipts, the original
receipts?
A. This is what I copied from the ledger.
Q. So where was that(sic) original receipt which you said showed that that
particular customer still has a balance of Ten Thousand something?
A. The receipt is no longer here.
Q. You mean the entry of that receipt was already entered in the ledger?

A. Yes.[36]
In the face of the palpable flaws infecting the Prosecutions evidence, it should come as no
surprise that petitioners counsel interposed timely objections. Yet, the RTC mysteriously
overruled the objections and allowedthe Prosecutionto present the unauthenticated ledgers, as
follows:

(Continuation of the Direct Examination of


Witness Karen Guivencan on September 11, 2002)

ATTY. ZERNA:

CONTINUATION OF DIRECT-EXAMINATION

Q Ms. Witness, last time around you were showing us several ledgers. Where is it
now?
A It is here.
Q Here is a ledger of one Divina Cadilig. This Divina Cadilig, how much is her
account in your office?
ATTY. DIEZ:
Your Honor please before the witness will proceed to answer the question, let
me interpose our objection on the ground that this ledger has not
been duly identified to by the person who made the same. This
witness will be testifying on hearsay matters because the supposed
ledger was not identified to by the person who made the same.
COURT:
Those ledgers were already presented in the last hearing. I think they were already
duly identified by this witness. As a matter of fact, it was she who
brought them to court

(Next Page)

COURT (cont.):
because these were the ledgers on file in their office.
ATTY. DIEZ
That is correct, Your Honor, but the person who made the entries is not this
witness, Your Honor. How do we know that the entries there is (sic)
correct on the receipts submitted to their office.
COURT:
Precisely, she brought along the receipts also to support that. Let the witness
answer.
WITNESS:
A Its the office clerk in-charge.
COURT:
The one who prepared the ledger is the office clerk.
ATTY. ZERNA:
She is an auditor, Your Honor. She has been qualified and she is the auditor of
Footluckers.
COURT:
I think, I remember in the last setting also, she testified where those entries were
taken. So, you answer the query of counsel.
xxx

ATTY. DIEZ:
Your Honor please, to avoid delay, may I interpose a continuing objection to
the questions profounded(sic) on those ledgers on the ground that,
as I have said, it is hearsay.

COURT:
Okey(sic). Let the continuing objection be noted.

Q (To Witness) The clerk who allegedly was the one who prepared the entries
on those ledgers, is she still connected with Footluckers?

A She is no longer connected now, Your Honor,

COURT:
Alright proceed.

(Next Page)

ATTY. ZERNA:
Your Honor, these are entries in the normal course of business. So, exempt
from the hearsay rule.
COURT:
Okey(sic), proceed.[37]

The mystery shrouding the RTCs soft treatment of the Prosecutions flawed presentation
was avoidable simply by the RTC adhering to the instructions of the rules earlier quoted, as well
as withSection 22 of Rule 132 of the Rules of Court,which contains instructions on how to prove
the genuineness of a handwriting in a judicial proceeding, as follows:

Section 22. How genuineness of handwriting proved. The handwriting of a


person may be proved by any witness who believes it to be the handwriting of
such person because he has seen the person write, or has seen writing
purporting to be his upon which the witness has acted or been charged, and
has thus acquired knowledge of the handwriting of such person. Evidence
respecting the handwriting may also be given by a comparison, made by the
witness or the court, with writings admitted or treated as genuine by the party
against whom the evidence is offered, or proved to be genuine to the satisfaction
of the judge. (Emphases supplied)
If it is already clear that Go and Guivencan had not themselves seen the execution or
signing of the documents,the Prosecution surely did not authenticate Exhibits B to YY and their
derivatives conformably with the aforequoted rules. Hence, Exhibits B to YY, and their
derivatives, inclusive, were inescapably bereft of probative value as evidence. That was the
onlyfair and just result, as the Court held in Malayan Insurance Co., Inc. v. Philippine Nails and
Wires Corporation:[38]

On the first issue, petitioner Malayan Insurance Co., Inc., contends that
Jeanne Kings testimony was hearsay because she had no personal knowledge
of the execution of the documents supporting respondents cause of
action, such as the sales contract, invoice, packing list, bill of lading, SGS Report,
and the Marine Cargo Policy. Petitioner avers that even though King was
personally assigned to handle and monitor the importation of Philippine Nails and
Wires Corporation, herein respondent, this cannot be equated with personal
knowledge of the facts which gave rise to respondents cause of action. Further,
petitioner asserts, even though she personally prepared the summary of weight of
steel billets received by respondent, she did not have personal knowledge of the
weight of steel billets actually shipped and delivered.

At the outset, we must stress that respondents cause of action is founded on


breach of insurance contract covering cargo consisting of imported steel billets.
To hold petitioner liable, respondent has to prove, first, its importation of
10,053.400 metric tons of steel billets valued at P67,156,300.00, and second, the
actual steel billets delivered to and received by the importer, namely the
respondent. Witness Jeanne King, who was assigned to handle respondents
importations, including their insurance coverage, has personal knowledge of the
volume of steel billets being imported, and therefore competent to testify
thereon. Her testimony is not hearsay, as this doctrine is defined in Section 36,
Rule 130 of the Rules of Court.However, she is not qualified to testify on the
shortage in the delivery of the imported steel billets. She did not have
personal knowledge of the actual steel billets received. Even though she
prepared the summary of the received steel billets, she based the summary
only on the receipts prepared by other persons. Her testimony on steel billets
received was hearsay. It has no probative value even if not objected to at the
trial.

On the second issue, petitioner avers that King failed to properly


authenticate respondents documentary evidence. Under Section 20, Rule 132,
Rules of Court, before a private document is admitted in evidence, it must be
authenticated either by the person who executed it, the person before whom
its execution was acknowledged, any person who was present and saw it
executed, or who after its execution, saw it and recognized the signatures, or
the person to whom the parties to the instruments had previously confessed
execution thereof. In this case, respondent admits that King was none of the
aforementioned persons. She merely made the summary of the weight of steel
billets based on the unauthenticated bill of lading and the SGS report. Thus,
the summary of steel billets actually received had no proven real basis, and
Kings testimony on this point could not be taken at face value.

xxx Under the rules on evidence, documents are either public or private.
Private documents are those that do not fall under any of the enumerations in
Section 19, Rule 132 of the Rules of Court.Section 20of the same law, in turn,
provides that before any private document is received in evidence, its due
execution and authenticity must be proved either by anyone who saw the
document executed or written, or by evidence of the genuineness of the signature
or handwriting of the maker. Here, respondents documentary exhibits are
private documents. They are not among those enumerated in Section 19,
thus, their due execution and authenticity need to be proved before they can
be admitted in evidence.With the exception concerning the summary of the
weight of the steel billets imported, respondent presented no
supporting evidence concerning their authenticity. Consequently, they cannot
be utilized to prove less of the insured cargo and/or the short delivery of the
imported steel billets. In sum, we find no sufficient competent evidence to
prove petitioners liability.

That the Prosecutions evidence was left uncontested because petitioner decided not to
subject Guivencan to cross-examination, and did not tender her contrary evidencewas
inconsequential. Although the trial court had overruled the seasonable objections to Guivencans
testimony bypetitioners counsel due to the hearsay character, it could not be denied thathearsay
evidence, whether objected to or not, had no probative value. [39]Verily, the flaws of the
Prosecutions evidence were fundamental and substantive, not merely technical and procedural,
and were defects that the adverse partys waiver of her cross-examination or failure to rebutcould
not set right or cure. Nor did the trial courts overruling of petitioners objections imbue the flawed
evidence with any virtue and value.

Curiously, the RTC excepted the entries in the ledgers from the application of the hearsay
rule by also terselystating that the ledgers were prepared in the regular course of business.
[40]
Seemingly, the RTC applied Section 43, Rule 130 of the Rules of Court, to wit:

Section 43. Entries in the course of business. Entries made at, or near the
time of the transactions to which they refer, by a person deceased, or unable to
testify, who was in a position to know the facts therein stated, may be received
as prima facie evidence, if such person made the entries in his professional
capacity or in the performance of duty and in the ordinary or regular course of
business or duty.

This was another grave error of the RTC.The terse yet sweeping mannerof justifying the
application of Section 43 was unacceptable due to the need to show the concurrence of
the several requisites before entries in the course of business could be excepted from the hearsay
rule. The requisites are as follows:

(a) The person who made the entry must be dead or unable to testify;

(b) The entries were made at or near the time of the transactions to which they
refer;

(c) The entrant was in a position to know the facts stated in the entries;

(d) The entries were made in his professional capacity or in the performance of a
duty, whether legal, contractual, moral, or religious;

(e) The entries were made in the ordinary or regular course of business or duty.[41]

The Court has to acquit petitioner for failure of the State to establish her guilt beyond
reasonable doubt. The Court reiterates that in the trial of every criminal case, a judge must
rigidly test the States evidence of guilt in order to ensure that such evidence adhered to the basic
rules of admissibility before pronouncing an accused guilty of the crime charged upon such
evidence. The failure of the judge to do so herein nullified the guarantee of due of process of law
in favor of the accused, who had no obligation to prove her innocence. Heracquittal should
follow.

IV
No reliable evidence on damage

Conformably with finding the evidence of guilt unreliable, the Court declares that the
disposition by the RTC ordering petitioner to indemnify Footluckers in the amount
of P131,286.92 with interest of 12% per annum until fully paid was not yet shown to be factually
founded. Yet, she cannot now be absolved of civil liability on that basis. Heracquittal has to
bedeclared as without prejudice to the filing of a civil action against her for the recovery of any
amount that she may still owe to Footluckers.
WHEREFORE, the Court SETS ASIDE ANDREVERSESthe decision
convicting ANNA LERIMA PATULAof estafa as charged, and ACQUITS her for failure of the
Prosecution to prove her guilt beyond reasonable doubt, without prejudice to a civil action
brought against her for the recoveryof any amount still owing in favor of Footluckers Chain of
Stores, Inc.

DECLARATION AGAINST INTEREST

G.R. No. L-28655 August 6, 1928


THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
EUGENIO TOLEDO and SISENANDO HOLGADO, defendants.
EUGENIO TOLEDO, appellant.

MALCOLM, J.:

This is an appeal taken by Eugenio Toledo from a judgment of the Court of First Instance of
Mindoro, finding him guilty of the crime of homicide, and sentencing him therefor to
imprisonment for fourteen years, eight months, and one day, reclusion temporal, with the
corresponding accessory penalties, indemnity, and costs.

Sisenando Holgado and Filomeno Morales had disputes about the occupation of certain land
situated in the municipality of Pinamalayan, Province of Mindoro. On the morning of June 15,
1927, the two men happened to meet. The argument was renewed, and they agreed to fight. They
did engage in a bolo duel with a fatal result for Filomeno Morales, who was killed almost
instantly. Sisenando Holgado was also seriously wounded but was able to proceed to a
neighboring house. From there Sisenando Holgado was taken to the municipal building where he
made a sworn statement before the municipal president, in which he declared that only he and
Filomeno Morales fought. About one month later, Sisenando Holgado died from the wounds
received in the fight.

The prosecution and the defense alike agree on the facts above outlined. The disputable point is
whether the accused Eugenio Toledo intervened in the quarrel and dealt a mortal blow to
Filomeno Morales. For the prosecution, there was presented the witness Justina Villanueva, the
querida of Filomeno Morales, who testified to the presence and participation of Eugenio Toledo.
Her testimony was partially corroborated by that of the witness Justina Llave. On the other hand,
the theory for the defense was that Toledo was in another place when the fight between Morales
and Holgado occurred and that his only participation was on meeting Holgado, who was his
landlord or master, in helping him to a nearby house. To this effect is the testimony of the
accused and of Conrado Holgado, the son of Sisenando Holgado. The defense also relied upon
the affidavit of Sisenando Holgado, Exhibit 1, which was identified by the municipal president of
Pinamalayan.

Counsel de oficio in this court makes the following assignment of errors:


I. The lower court erred in not admitting in evidence Exhibit 1.

II. The lower court erred in not finding that accused-appellant Eugenio Toledo did not
take part in the fight between accused Sisenando Holgado and deceased Filomeno
Morales, resulting in the death of the latter.

III. The lower court erred in not giving accused-appellant Eugenio Toledo the benefit of a
reasonable doubt." Exhibit 1 above-mentioned in assignment of error No. 1, made
originally in Tagalog, in translation reads as follows:

AFFIDAVIT

I. Sisenando Holgado, married, of legal age, and resident of this


municipality of Pinamalayan, Province of Mindoro, P. I., after being sworn
in accordance with law, state the following:

My additional homestead situated in Calingag was cleaned by me and is at


present planted with palay (rice), on which I also plant hemp, but the
hemp planted by my workers is frequently uprooted by Filomeno Morales
who claims that said land is his, whereas when I was cleaning said land
nobody objected to it, but now that it is already cleaned, Filomeno
Morales says that one-half of the land occupied by me is his; for this
reason I decided to see Filomeno Morales about this matter and when I
talked to him this morning (Wednesday) at about nine o'clock, at the hemp
plantation of Victorio Saudan situated in Calingag, he told me that if I
should plant there anything he would cut my neck, and to this I answered
that if he was going to cut my neck we would fight and thereupon he
stabbed me with a penknife and then I slashed at him; after this we
separated, and went to Dalmacio Manlisic's house. When we fought, there
was nobody present.

Question by president: When you went to the house of Dalmacio Manlisic,


did you not meet anybody before reaching said house?

Answer: I met one of my workers named Eugenio Toledo, who


accompanied me to the house of Dalmacio Manlisic.

Question by president: How do you know that the hemp you planted on
your land above-mentioned was frequently uprooted by Filomeno
Morales?

Answer: Because he said as to my worker named Eulogio Supleo.

Question by president: Do you have anything more to say about the


incident?
Answer: No more.

In testimony of all that I stated above, I signed this document in the


presence of two witnesses and then swore to it in the presence of the
municipal president here at Pinamalayan, Mindoro, this June fifteenth,
nineteen hundred twenty-seven.
His
In the presence of: SISENANDO HOLGADO
Mark
(Sgd.) ILLEGIBLE
HILARION NIEVA

Signed and sworn to before me, this June fifteenth, 1927.

(Sgd.) ILLEGIBLE
Municipal President

The discussion of the case in court has revealed three different points of view among the
members participating, all leading to the same result of acquittal. Under such circumstances, it is,
course, difficult for the writer of the opinion to do entire justice to those theories which do not
conform to his own. However, an effort will be made to present the various opinions, leaving it
for any individual member to enlarge upon the same, if he so desires.

The Chief and Mr. Justice Villamor would disregard entirely the first assignment of error and
would, therefore, refrain from all discussion relative to the admissibility of Exhibit 1. Confining
themselves exclusively to an analysis of the evidence other than Exhibit 1, they find that Eugenio
Toledo has not been proved guilty beyond a reasonable doubt. The contradictions in the
testimony for the prosecution pointed out by the trial judge do not impress these members of the
court so seriously. In reality, there being but one witness for the prosecution who, on account of
her relations with Filomeno Morales, and the land troubles, might be expected to exaggerate, and
there being on the contrary exculpatory evidence for the defense, even without Exhibit 1, the
Government has not made out its case. Consequently, on the testimonial facts, these members
vote for acquittal.

II

The second view is that for which Messrs. Justices Romualdez and Villa-Real are responsible,
and is that Exhibit 1 should have been admitted in evidence as part of the res gestae, and that
giving it effect, in relation with the other evidence, the accused has not been proved guilty. What
has heretofore been said with reference to the state of the record need not here be repeated. It
only remains to be stated that Exhibit 1 was made by Sisenando Holgado on the same morning
that the fight occurred and without the interval of sufficient time for reflection. The declaration
of Sisenando Holgado fulfilled the test of the facts talking through the party and not the party
talking about the facts. There was such a correlation between the statement and the fact of which
it forms part as strongly tends to negative the suggestion of fabrication or a suspicion of
afterthought. The nature and circumstances of the statement do not disclose intrinsic evidence of
premeditation as revealed in a long, coherent, closely connected story. The modern tendency is
toward the extension of the rule admitting spontaneous declarations to meet the needs of justice
when other evidence of the same fact cannot be procured. (22 C. J., pp. 461 et seq.; U. S. vs.
David [1903], 3 Phil., 128.)

III

The third opinion in court is that held by Messrs. Justices Street, Malcolm, and Ostrand, who
would resolve the first assignment of error by holding that the court erred in not admitting
Exhibit 1 as the statement of a fact against penal interest. Had Exhibit 1 been received, it is
believed that its influence would have been felt by the trial court. Without Exhibit 1, the
appellate court is bound by the appreciation of the evidence made in the trial court, and could,
with little propriety, set aside the findings made by a learned trial judge. The case calls for an
examination of the right of the courts to receive in evidence documents of the character of
Exhibit 1.

Hearsay evidence, with a few well recognized exceptions, it has been said on high authority, is
excluded by courts in the United States that adhere to the principles of the common law. One
universally recognized exception concerns the admission of dying declarations. Another
exception permits the reception, under certain circumstances, of declarations of third parties
made contrary to their own pecuniary or proprietary interest. But the general rule is stated to be
that the declarations of a person other than accused confessing or tending to show that he
committed the crime are not competent for accused on account of the hearsay doctrine.

Professor Wigmore, one of the greatest living authorities on the law of evidence, has attempted
to demonstrate the false premises on which the arbitrary limitation to the hearsay rule rests. He
shows that the limitation is inconsistent with the language originally employed in stating the
principle and is unjustified on grounds of policy. Professor Wigmore in turn has been answered
by no less a body than the Supreme Court of Mississippi in the case of Brown vs. State of
Mississippi ([1910], 37 L. R. A., New Series, 345). The editor of the Mississippi case in L. R. A.,
however, comes to the support of Professor Wigmore saying the unanimity of the decisions "is as
complete as the shock which they give the general sense of justice." The question has likewise in
recent years gained attention by the Supreme Court of the United States in the case of Donnelly
vs. United States ([1913], 228 U. S., 243). There it was held that the court below properly
excluded hearsay evidence relating to the confession of a third party, then deceased, of guilt of
the crime with which defendant was charged. Mr. Justice Pitney, delivering the opinion of the
court, said: "In this country there is a great and practically unanimous weight of authority in the
estate courts against admitting evidence of confessions of third parties, made out of court, and
tending to exonerate the accused." Mr. Justice Van Devanter concurred in the result while Mr.
Justice Holmes, with whom concurred Mr. Justice Lurton and Mr. Justice Hughes, dissented. Mr.
Justice Holmes said:

. . . The rues of evidence in the main are based on experience, logic, and common sense,
less hampered by history than some parts of the substantive law. There is no decision by
this court against the admissibility of such a confession; the English cases since the
separation of the two countries do not bind us; the exception to the hearsay rule in the
case of declarations against interest is well known; no other statement is so much against
interest as a confession of murder; it is far more calculated to convince than dying
declarations, which would be let in to hang a man (Mattox vs. United States, 146 U. S.,
140; 36 Law. ed., 917; 13 Sup. Ct. Rep., 50); and when we surround the accused with so
many safeguards, some of which seem to me excessive; I think we ought to give him the
benefit of a fact that, if proved, commonly would have such weight. The history of the
law and the arguments against the English doctrine are so well and fully stated by Mr.
Wigmore that there is no need to set them forth at greater length. (2 Wigmore, Evidence,
pars. 1476, 1477.)

In the Philippine jurisdiction, we have never felt bound to follow blindly the principles of the
common law. A reexamination of some of those principles discloses anomalies.

A dying declaration is admitted of necessity in order, as the Supreme Court of Mississippi states,
"to reach those man slayers who perpetrate their crimes when there are no other eyewitnesses."
But the person accused of a crime, under the same principle of necessity, is not permitted to free
himself by offering in evidence the admission of another under oath that this other committed the
crime. Again admissions are receivable against either a pecuniary or a proprietary interest, but
not against a penal interest. We fail to see why it can be believed that a man will be presumed to
tell the truth in the one instance but will not be presumed to tell the truth in the other instance.
Again the exhibit would have been admitted against its maker at his trial, if he had not died. But
the document is held inadmissible to exonerate another. Yet the truth of the exhibit is not
different in the first case that in the second.

A study of the authorities discloses that even if given application they are not here controlling.
Most of them do not concern the confessions of declarants shown to be deceased. Practically all
of them give as the principal reason for denying the admission of a confession of a third person
that he committed the crime with which the accused is charged, that it was not made under oath.
Here the declarant is deceased and his statements were made under oath. They also read in such a
way as to ring with the truth. When Sisenando Holgado declared "When we fought, there was
nobody present," it was at the end of just such a rambling statement as a wounded man would be
expected to make. When Sisenando Holgado declared "I met one of my workers named Eugenio
Toledo, who accompanied me to the house of Dalmacio Manlisic," he did so in response to a
question by the municipal president. Exhibit 1 should have been received not as conclusive
evidence of innocence, but as evidence to be taken into consideration in connection with the
other proven facts.

We cannot bring this decision to a conclusion without quoting the well considered language of
Professor Wigmore on the subject, the pertinent part of a decision coming from a court which has
gained respect particularly in criminal cases, and an editorial note. Professor Wigmore has said:

PAR. 1476. History of the Exception; Statement of Fact against Penal Interest, excluded;
Confessions of Crime by a Third Person. It is today commonly said, and has been
expressly laid down by many judges, that the interest prejudiced by the facts stated must
be either a pecuniary or a proprietary interest, and not a penal interest. What ground in
authority there is for this limitation may be found by examining the history of the
execution at large.

The exception appears to have taken its rise chiefly in two separate rivulets of rulings,
starting independently as a matter of practice, but afterwards united as parts of a general
principle. . . .

These lines of precedent proceeded independently till about the beginning of the 1800s,
when a unity of principle for some of them came gradually to be perceived and argued
for. This unity lay in the circumstance that all such statements, in that they concerned
matters prejudicial to the declarant's self-interest, were fairly trustworthy and might
therefore (if he were deceased) be treated as forming an exception to the hearsay rule.

This broad principle made its way slowly. There was some uncertainty about its scope;
but it was an uncertainty in the direction of breadth; for it was sometimes put in the broad
form that any statement by a person "having no interest to deceive" would be admissible.
This broad form never came to prevail (post, par. 1576). But acceptance was gained, after
two decades, for the principle that all declarations of facts against interest (by deceased
persons) were to be received. What is to be noted, then, is that from 1800 to about 1830
this was fully understood as the broad scope of the principle. It was thus stated without
other qualifications; and frequent passages show the development of the principle to this
point.

But in 1884, in a case in the House of Lords, not strongly argued and not considered by the
judges in the light of the precedents, a backward step was taken and an arbitrary limit put upon
the rule. It was held to exclude the statement of a fact subjecting the declarant to a criminal
liability, and to confined to statements of facts against either pecuniary or proprietary interest.
Thenceforward this rule was accepted in England; although it was plainly a novelty at the time of
its inception; for in several rulings up to that time such statement had been received.

The same attitude has been taken by most American courts, excluding confessions of a
crime, or other statements of facts against penal interest, made by third persons; although
there is not wanting authority in favor of admitting such statements.

PAR. 1477. Same: Policy of this Limitation. It is plain enough that this limitation,
besides being a fairly modern novelty, is inconsistent with the broad language originally
employed in stating the reason and principle of the present exception (ante, pars. 1457,
1476) as well as with the settled principle upon which confessions are received (ante, par.
1475).

But, furthermore, it cannot be justified on grounds of policy. The only plausible reason of
policy that has ever been advanced for such a limitation is the possibility of procuring
fabricated testimony to such a admission if oral. This is the ancient rusty weapon that has
always been drawn to oppose any reform in the rules of evidence, viz., the argument of
danger of abuse. This would be a good argument against admitting any witnesses at all,
for it is notorious that some witnesses will lie and that it is difficult to avoid being
deceived by their lies. The truth is that any rule which hampers an honest man in
exonerating himself is a bad rule, even if it also hampers a villain in falsely passing for an
innocent.

The only practical consequences of this unreasoning limitation are shocking to the sense
of justice; for, in its commonest application, it requires, in a criminal trial, the rejection of
a confession, however well authenticated, of a person deceased or insane or fled from the
jurisdiction (and therefore quite unavailable) who has avowed himself to be true culprit.
The absurdity and wrong of rejecting indiscriminately all such evidence is patent.

The rulings already in our books cannot be thought to involve a settled and universal
acceptance of this limitation. In the first place, in almost all of the rulings the declarant
was not shown to be deceased or otherwise unavailable as a witness, and therefore the
declaration would have been inadmissible in any view of the present exception (ante, par.
1456). Secondly, in some of the rulings (for example, in North Carolina) the independent
doctrine (ante, pars. 139-141) was applicable that, in order to prove the accused's non-
commission of the offense by showing commission by another person, not merely one
casual piece of evidence suffices but a "prima facie" case resting on several concurring
pieces of evidence must be made out. Finally, most of the early rulings had in view, not
the present exception to the hearsay rule, but the doctrine of admissions (ante, pars. 1076,
1079) that the admissions of one who is not a co-conspirator cannot affect others jointly
charged.

It is therefore not too late to retrace our steps, and to discard this barbarous doctrine,
which would refuse to let an innocent accused vindicate himself even by producing to the
tribunal a perfectly authenticated written confession, made on the very gallows, by the
rule culprit now beyond the reach of justice. Those who watched (in 1899) with self-
righteous indignation the course of proceedings in Captain Dreyfus' trial should
remember that, if that trial had occurred in our own courts, the spectacle would have been
no less shameful if we, following our own supposed precedents, had refused to admit
what the French court never for a moment hesitated to admit, the authenticated
confession of the escaped Major Esterhazy, avowing himself the guilty author of the
treason there charged. (3 Wigmore on Evidence, 2d ed., secs. 1476, 1477.)

In the case of Pace vs. State ([1911], Court of Criminal Appeals of Texas, 135 Southwestern,
379), the appellant offered to prove in the trial court by the witness Byron Kyle that on Saturday
morning following the killing of the deceased on the previous Sunday he had a conversation with
Dick Cain, one of the parties to the homicide, in which Dick Cain admitted the he killed the
deceased. The court ruled:

. . . Wherever the state seeks to fasten criminality upon the party on trial, the accused had
a right to meet and rebut any testimony which may be offered against him in any
legitimate way. If Cain had been upon trial, his confession to the witness Kyle would
have been admissible beyond any shadow of doubt, and would have been upon trial, his
confession to the witness Kyle would have been admissible beyond any shadow of doubt,
and would have been strong evidence to go before the jury. The estate would have been
seeking to introduce this and with great earnestness, and correctly so. If appellant could
prove that another party or others committed the homicide, it might prove his innocence,
and would be strong evidence to go before the jury in his favor. Any legitimate fact or
circumstance which would meet or tend to meet the state's case and break the force of
criminative facts introduced against the accused is always admissible. Appellant's
contention was that he did not kill the deceased, but that Cain did. The state's theory was
the appellant shot the deceased, and Cain did not shoot him. Under the rules of evidence
this testimony was clearly inadmissible.

We would like finally to turn attention to what was said by the editor of L. R. A. in his note in
volume 37 hereinbefore referred to, viz:

The purpose of all evidence is to get at the truth. The reason for the hearsay rule is that
the extrajudicial and unsworn statement of another is not the best method of serving this
purpose. In other words, the great possibility of the fabrication of falsehoods, and the
inability to prove their untruth, requires that the doors be closed to such evidence. So
long therefore as a declarant is available as a witness, his extrajudicial statement should
not be heard. Where, however, the declarant is dead or has disappeared, his previous
statements, out of court, if not inadmissible on other grounds, are the best evidence. But
they are not rendered inadmissible by the mere fact that the declarant is unavailable,
something else is necessary. One fact which will satisfy this necessity is that the
declaration is or was against the declarant's interest, and this is because no sane person
will be presumed to tell a falsehood to his own detriment.

xxx xxx xxx

Again, if, seems indisputable, the desire to close the door to falsehood which cannot be
detected dictates the exclusion of such testimony, the question as to the effect to be given
to such a confession is solely one of weight and credibility. . . .

Any man outside of a court and unhampered by the pressure of technical procedure, unreasoned
rules of evidence, and cumulative authority, would say that if a man deliberately acknowledged
himself to be the perpetrator of a crime and exonerated the person charged with the crime, and
there was other evidence indicative of the truthfulness of the statement, the accused man should
not be permitted to go to prison or to the electric chair to expiate a crime he never committed.
Shall Judges trained and experienced in the law display less discerning common sense that the
layman and allow precedent to overcome truth?

JUDGMENT

For three somewhat divergent reasons, we are all of the opinion that the defendant-appellant
Eugenio Toledo should be given the benefit of the reasonable doubt which prevails in our minds.
Accordingly, the judgment appealed from will be reversed and the defendant and appellant
acquitted, and as it appears that he is now confined in Bilibid Prison, an order will immediately
issue directing his release, with costs de oficio.
DECLARATION AGAINST PEDIGREE

G.R. No. L-43955-56 July 30, 1979


RENATO LAZATIN alias RENATO STA. CLARA, petitioner,
vs.
HONORABLE JUDGE JOSE C. CAMPOS, JR., NORA L. DE LEON, BERNARDO DE
LEON, ARLENE DE LEON and IRMA L. VELOSO, respondents.

TEEHANKEE, J.:

The Court dismisses the petition which seeks to overrule respondent judge's orders declaring that
petitioner has failed to establish by competent evidence his alleged status as an adopted child of
the deceased Lazatin spouses and prays for judgment of this Court "declaring as established the
fact of (his) adoption as a son of the deceased spouses entitling him to succeed in their estates as
such." Respondent judge correctly ruled that he could not allow petitioner (who had filed a
motion to intervene in the proceedings to probate the will of the late Margarita de Asis Vda. de
Lazatin and to settle her estate as her adopted son, after having earlier filed a motion to intervene
in the intestate proceedings of her pre-deceased husband as his admitted illegitimate [not natural]
son), over the opposition of private respondents, to introduce evidence that he had "enjoyed ...
the status of an adopted child of the without his first producing competent and documentary that
there had been judicial proceedings for his by the said spouses which resulted in the final
judgment of a competent court decreeing his adoption.

On January 13, 1974, Dr. Mariano M. Lazatin diamond intestate in Pasay City, survived by his
wife, Margarita de Asis, and his adopted twin daughters, respondent Nora L. de Leon, married to
respondent Bernardo de Leon, and respondent Irma Lazatin, married to Francisco Veloso.

One month after Mariano's death, his widow, Margarita de Asis, commenced an intestate
proceeding before the Court of First Instance of Pasay, docketed as Sp. Proc. No. 2326-P.
Mariano, Oscar, Virgilio and Yvonne, claiming to be admitted illegitimate (not natural) children
of Dr. Lazatin with one Helen Munoz, intervened. Subsequently, one Lily Lazatin also
intervened, claiming to be another admitted illegitimate (not natural) child.

Two months after or on April 11, 1974, the widow, Margarita de Asis, also died, leaving a &
holographic will executed on May 29, 1970, providing, among others, for a legacy of cash,
jewelry, and stocks to respondent Arlene de Leon, a granddaughter; a legacy of support to
Rodolfo Gallardo, a son of her late sister; and a legacy of education to Ramon Sta. Clara, son of
petitioner Renato Lazatin alias Renato Sta. Clara.

During her lifetime, Margarita de Asis kept a safety deposit box at the People's Bank and Trust
Company, Roxas Boulevard branch, which either she or respondent Nora L. de Leon could open.
Five days after Margarita's death, respondent Nora L. de Leon, accompanied by her husband,
respondent Bernardo de Leon, opened the safety deposit box and removed its contents: (a) shares
of stock; (b) her adoption papers and those of her sister, respondent Irma L. Veloso; and (c)
jewelry belonging to her and to her mother. Respondent Nora L. de Leon claims that she opened
the safety deposit box in good faith, believing that it was held jointly by her and her deceased
mother. Her sole reason for opening the box was to get her stock certificates and other small
items deposited therein. When she was to close the deposit box, the bank personnel informed her
that she needed an authority from the court to do so, in view of her mother's death and so, she
removed everything from the box.

On June 3, 1974, private respondents filed a petition to probate the will of the late Margarita de
Asis, before docketed as Sp. Proc. No. 2341-P of respondent Court, Days after having learned
that respondent Nora L. de Leon had opened this safety deposit box, petitioner's son, Ramon Sta.
Clara, filed a motion in the probate court, claiming that the deceased had executed a will
subsequent to that submitted for probate and demanding its production. He likewise prayed for
the opening of the safety deposit box. Respondent Nora L. de Leon admitted that she opened the
box but there was no will or any document resembling a will therein.

Upon the order of the probate court, presided over by Judge Arsenio B. Alcantara, the safety
deposit box was opened on November 6, 1974, at which time it was found to be empty, because
prior thereto respondent Nora L. de Leon had already removed its contents.

On November 22, 1974, or seven months after, the death of Margarita de Asis, petitioner
intervened for the first time in the proceedings to settle the estate of the late Dr. Mariano M.
Lazatin (Sp. Proc. No. 2326- P), as an admitted illegitimate (not natural) child.

Under the same date of November 22, 1974, petitioner's son, Ramon, filed a petition in the estate
proceedings of Margarita de Asis to examine private respondents on the contents of the safety
deposit box, Whereupon, on January 31, 1975, the probate court ordered respondent Nora L. de
Leon to deliver the properties taken from the safety deposit box to the Clerk of Court.
Subsequently, however, the two cases (Sp. Proc. No. 2326-P, Mariano Lazatin, and 2341-P,
Margarita de Asis) were transferred to the sala of respondent Judge Jose C. Campos, Jr.

On May 29, 1975, Judge Campos issued an order requiring counsel for respondents Nora L. de
Leon and Bernardo de Leon to produce all those papers and items removed from the safety
deposit box and to deliver the same to the custody of the court within one week. Within the
period ordered, respondent Nora L. de Leon deposited with the Clerk of Court, not the items
themselves, but two keys to a new safety deposit box which could only be opened upon order of
the court.

On August 20, 1975, petitioner Renato to Lazatin alias Renato Sta. Clara filed a motion to
intervene in the estate of Margarita de Asis, Sp. Proc. No. 2341-P, as an adopted child, on the
basis of an affidavit executed by Benjamin Lazatin, brother of the deceased Dr. Mariano M.
Lazatin, the petitioner was an "illegitimate son" of Dr. Lazatin and was later adopted by him.
This affidavit was later modified on August 19, 1975 to state that petitioner was adopted by both
Mariano M. Lazatin and his wife Margarita de Asis.

On September 29, 1975, Judge Campos found respondent' Nora L. de Leon guilty of contempt of
court for not complying with the orders of January 31, 1975 and May 29, 1975, requiring her to
produce and deliver to the court an the papers and items removed from the safety deposit box.
Her former counsel was also found guilty of contempt, sentenced to pay a fine of P00.00 and
suspended from appearing in the two cases (Sp. Proc. No. 2326-P, Mariano M. Lazatin, and Sp.
Proc. No. 2341-P, Margarita de Asis), on her testimony that she, Nora L. de Leon, acted upon his
advice.

Respondent court heard petitioner's motion to intervene as an adopted son in the estate of
Margarita de Asis, Sp. Proc. No. 2341-P, at which hearings petitioner presented no decree of
adoption in his, favor. Instead, petitioner attempted to prove, over private respondents'
objections, that he had recognized the deceased spouses as his parents; he had been supported by
them until their death; formerly he was known as "Renato Lazatin" but was compelled to change
his surname to "Sta. Clara" when the deceased spouses refused to give consent to his marriage to
his present wife; that at first, he and his wife stayed at the residence of Engracio de Asis, father
of Margarita, but a few months later, they transferred to the Mercy Hospital at Taft Avenue,
Manila, owned by the deceased spouses, where they continuously resided up to the present.
Photographs were also intended to be presented by petitioner, e.g., photograph of Irma Veloso
where she addressed herself as sister of petitioner; photograph of deceased Margarita de Asis and
petitioner when he was a boy; document showing that petitioners real name is "Renato
Lazatin." 1

Respondent court first reserved its ruling on private respondents' objections to the admission of
petitioner's evidence, but on November 14, 1975, when petitioner could not present evidence on
the issue of his alleged legal adoption, respondent court discontinued the hearing and gave the
parties time to file memoranda on the question of the admissibility of the evidence sought to be
introduced by petitioner.

On March 4, 1976, respondent court barred the introduction of petitioner's evidence because: t.
hqw

All the evidence submitted by Renato and Ramon Sta. Clara through their
counsel do not prove or have no tendency to prove the existence of any judicial
proceeding where the adoption of the parties above named were taken up by any
court. Neither do the evidence tend to establish the presence of any record of a
proceeding in court where the adoption of the above named persons was held. The
evidence, however, tends to prove a status of a recognized natural child which,
however, is not the legal basis for which Renato and Ramon seek to intervene in
this proceedings. In view thereof, and taking into consideration the evidence
heretofore presented by the petitioners, any further introduction of similar
evidence, documentary or oral, would not prove or tend to prove the fact of their
adoption but rather of a recognized natural child.

Petitioner then filed on March 16, 1976, in both cases, a motion to declare as established the fact
of adoption in view of respondent Nora L. de Leon's refusal to comply with the orders of
respondent court to deposit the items she had removed from the safety deposit box of Margarita
de Asis. As authority therefor, petitioner invokes the sanction of Rule 29, Section 3 of the Rules
of Court, since according to him, the order of the court for the production of the items in the
safety deposit box can be considered as an order for production and inspection of documents
under Rule 27.
Private respondents opposed the motion, and on March 26, 1976, respondent court denied
petitioner's motion. On April 26, 1976, respondent Nora L. de Leon deposited with respondent
court the items she had removed from the safety deposit box. An inventory was conducted by
respondent court, with notice to the parties, and the items surrendered consisted only of pieces of
jewelry and stock certificates.

On June 3,1976, respondent court, ruling on petitioners motion for definite resolution on his
previous n declare as established the fact of adoption, issued the f order: t.hqw

As far as the case of Renato Sta. Clara is his Petition to establish his status as an
adopted child, The Court has ruled that he has failed to establish such status. The
any motion for reconsideration unless based on some documentary proof.

Hence, the petition at bar.

We find the ruling of the respondent court to be in conformity with law and jurisprudence.

1. Adoption is a juridical act, a proceeding in rem 2 which creates between two persons a
relationship similar to that which results from legitimate paternity and filiation. 3 Only an
adoption made through the court, or in pursuance with the procedure laid down under Rule 99 of
the Rules of Court is valid in this jurisdiction. 4 It is not of natural law at all, but is wholly and
entirely artificial. 5 To establish the relation, the statutory requirements must be strictly carried
out, otherwise, the adoption is an absolute nullity. 6 The fact of adoption is never presumed, but
must be affirmatively proved by the person claiming its existence. The destruction by fire of a
public building in which the adoption papers would have been filed if existent does not give rise
to a presumption of adoption nor is the destruction of the records of an adoption proceeding to be
presumed. On the contrary, the absence of a record of adoption has been said to evolve a
presumption of its non-existence. 7 Where, under the provisions of the statute, an adoption is
effected by a court order, the records of such court constitute the evidence by which such
adoption may be established. 8

2. Petitioner's flow of evidence in the case below does not lead us to any proof of judicial
adoption. We can not pluck from his chain of evidence any link to the real existence of a court
decree of adoption in his favor. Petitioner's proofs do not show or tend to show that at one time
or another a specific court of competent jurisdiction rendered in an adoption proceeding initiated
by the late spouses an order approving his adoption as a child of the latter. No judicial records of
such adoption or copies thereof are presented or attempted to be presented. Petitioner merely
proceeds from a nebulous assumption that he was judicially adopted between the years 1928 and
1932. By what particular court was the adoption decreed or by whom was the petition heard,
petitioner does not even manifest, much less show. There are no witnesses cited to that adoption
proceeding or to the adoption decree. Apparently on the assumption that the adoption was
commenced in Manila, petitioner's counsel secured a certification from the Court of first Instance
of Manila which, however, negatively reported "(T)hat among the salvaged records now
available in this Office, there has not been found, after a diligent search, any record regarding the
adoption of Mr. Renato Lazatin alias Renato Sta. Clara allegedly filed sometime in the years
1928 to 1931 by the spouses Dr. Mariano M. Lazatin and Margarita de Asis Lazatin." The
certification of the Local Civil Registrar of Manila "(T)hat our pre-war records relative to
decisions of the Court of First Instance were either destroyed or burned during the Liberation of
the City of Manila," does not furnish any legal basis for a presumption of adoption in favor of
petitioner. This is because there was no proof that petitioner was really adopted in Manila or that
an adoption petition was filed in the Court of first Instance of Manila by the deceased spouses,
where, after hearing, a judgment of approval was rendered by said court. Moreover, if there was
really such adoption, petitioner could have conveniently secured a copy of the newpaper
publication of the adoption as required under Section 4, Rule 99 of the Rules of Court (formerly
Section 4, Rule 100) or a certification of the publishing house to that effect. Petitioner's failure
on this point is anotherer strong indication of the non-existence of the one who gave the written
consent of the non-existence of the adoption paper. We also observed to the adoption (Section 3,
Rule 99, Rules of Court), whether the parents or orphanage, does not appear on this point is not
so difficult and such proof must be presented if only to prove the real existence of the adoption.
And of course, if the war, the clear right and duty of petitioner was to duly reconstitute the
records as provided by law.

3. The absence of proof of such order of adoption by the court, as provided by the statute, cannot
be substituted by parol evidence that a child has lived with a person, not his parent, and has been
treated as a child to establish such adoption. 9 Even evidence of declaration of the deceased,
made in his lifetime, that he intended to adopt a child as his heir, and that he had adopted him,
and of the fact that the child resided with the deceased, as a member of his family, from infancy
until he attained his majority, is not sufficient to establish the fact of adoption. 10 Nor does the
fact that the deceased spouses fed, clothed, educated, recognized and referred to one like
petitioner as an adopted child, recognized and referred to one like petitioner as an adopted child,
necessarily establish adoption of the child. 11 Withal, the attempts of petitioner to prove his
adoption by acts and declarations of the deceased do not discharge the mandatory presentation of
the judicial decree of adoption. The thrust of petitioner's evidence is rather to establish his status
as an admitted illegitimate child, not an adopted child which status of an admitted illegitimate
child was the very basis of his petitioner for intervention in the estate proceedings of the late
Dr. Lazatin, as above stated. (Supra, at page 3 hereof)

We do not discount though that declarations in regard to pedigree, although hearsay, are admitted
on the principle that they are natural expressions of persons who must know the truth. 12 Pedigree
testimony is admitted because it is the best that the nature of the case admits and because greater
evil might arise from the rejection of such proof than from its admission. 13 But, in proving an
adoption, there is a better proof available and it should be produced. The whereabouts of the
child's family and circulation of the jurisdiction in which they resided and investigation in those
courts where adoption are usually granted would surely produce an adoption order, if indeed
there was an order. 14 Besides, since the point in favor of receiving hearsay evidence upon
matters of family history or pedigree is its reliability, it has been set forth as a condition upon
which such evidence is received that it emanate from a source within the family. Pursuant to this
view, before a declaration of a deceased person can be admitted to prove pedigree, or ancestry,
the relationship of the declarant, by either of blood or affinity to the family in question, or a
branch thereof, must ordinarily be established by competent evidence. 15 Section 33 of Rule 130
states: "The act or declaration of a person deceased, or outside of the Philippines, or unable to
testify, in respect to the pedigree of another person related to him by birth or marriage, may be
received in evidence where it occurred before the controversy, and the relationship between the
two persons is shown by evidence other than such actor declaration ..."

4. Secondary evidence is nonetheless admissible where the records of adoption proceedings were
actually lost or destroyed. But, prior to the introduction of such secondary evidence, the
proponent must establish the former existence of the instrument. The correct order of proof is as
follows: Existence; execution; loss; contents; although this order may be changed if necessary in
the discretion of the court. 16 The sufficiency of the proof offered as a predicate for the admission
of an alleged lost deed lies within the judicial discretion of the trial court under all the
circumstances of the particular case. 17 As earlier pointed out, petitioner failed to establish the
former existence of the adoption paper and its subsequent loss or destruction. Secondary proof
may only be introduced if it has first beer. established that such adoption paper really existed and
was lost. This is indispensable. 18 Petitioner's supposed adoption was only testified to by him and
is allegedly to be testified to a brother of the deceased Mariano M. Lazatin or others who have
witnessed that the deceased spouses treated petitioner as their child. If adoption was really made,
the records thereof should have existed and the same presented at the hearing or subsequent
thereto or a reasonable explanation of loss or destruction thereof, if that be the case, adduced. 19

Assuming the mere fact that the deceased spouses treated petitioner as their child does not justify
the conclusion that petitioner had been in fact judicially adopted by the spouses nor does it
constitute admissible proof of adoption.

We cannot entertain the plea of petitioner that the sanction of Rule 29 should be applied to
consider as established the fact of his adoption due to the refusal of respondent Nora L. de Leon
to produce the document of adoption, because first, the fact or real existence of petitioner's
adoption had not been established; second, there is no proof that such document of adoption is in
the possession of respondent Nora L. de Leon; third, the motu proprio order of the court for Nora
de Leon to produce the items retrieved from the safety deposit box cannot be treated as a mode
of discovery of production and inspection of documents under Rule 27; and fourth, the items
deposited in the safety deposit box have already been surrendered by respondent Nora L. de
Leon on April 26; 1976 and no document of adoption in favor of petitioner was listed as found in
the safety deposit box.

5. As a necessary consequence, petitioner Renato Lazatin alias Renato Sta. Clara cannot properly
intervene in the settlement of the estate of Margarita de Asis, Sp. Proc. No. 2341-P as an adopted
child because of lack of proof thereof. For one to intervene in an estate proceeding, it is a
requisite that he has an interest in the estate, either as one who would be benefited as an heir or
one who has a claim against the estate like a creditor. 20 A child by adoption cannot inherit from
the parent creditor. by adoption unless the act of adoption has been done in strict accord with the
statue. Until this is done, no rights are acquired by the child and neither the supposed adopting
parent or adopted child could be bound thereby. 21 The burden of proof in establishing adoption is
upon the person claiming such relationship. He must prove compliance with the statutes relating
to adoption in the jurisdiction where the adoption occurred. 22 A fortiori if no hereditary interest
in the estate can be gained by a claimant who failed to submit proof thereof, whether the will is
probated or not, intervention should be denied as it would merely result in unnecessary
complication. 23 To succeed, a child must be ligitimate, legitimated, adopted, acknowledged
illegitimate natural child or natural child by legal fiction or recognized spurious child. 24

In the face of the verified pleadings of record (constituting judicial admissions) which show that
petitioner sought to intervene on November 22, 1974 in the estate proceedings of his alleged
adoptive father Dr. Mariano M. Lazatin (Sp. Proc. No. 2326-P) as an admitted illegitimate (not
natural) child, 25 while his intervention on August 20, 1975 in the estate of Margarita de Asis,
widow of the deceased Dr. Lazatin (Sp. Proc. No. 2341-P) was as her adopted child on the basis
of the affidavit of a brother of the deceased Dr. Lazatin, Benjamin Lazatin, executed August 19,
1975 (which affidavit modified a first affidavit executed on May 31, 1975, which failed to estate
by "oversight" petitioner, but stated that affiant knew petitioner to be "an illegitimate son" of Dr.
Lazatin who later "legally adopted (him) as a son before the Court of First Instance of Manila
sometime between the years 1928 and 1921") and prescinding from the question of whether a
natural or spurious child may be legally adopted by the putative father, we hold that no grave
abuse of discretion nor error of law as committed by respondent judge in issuing the questioned
orders of March 4, 1976, March 26, 1976 and June 3, 1976 denying petitioner's petition "to
declare as established in this proceeding the fact of adoption" and denying "any motion for
reconsideration unless based on some documentary proof." The Court finds no basis to grant the
affirmative relief sought in this proceeding by petitioner for a rendition of judgment "declaring as
established the fact of your petitioner's adoption as a son of the deceased spouses entitling him to
succeed in their estates as such in accordance with the applicable law on succession as to his
inheritance."

Upon the filing of the petition, the Court issued on June 16, 1976 a temporary restraining order;
which as amended on July 21, 1976, restrained respondent judge "from proceeding with the
hearing scheduled on June 17, 1976 at 8:30 a.m., requiring the submission of evidence to
establish heirship in Special Proceedings No. 2326-P entitled 'Intestate Estate of the Late
Mariano M. Lazatin' and Special Proceedings No. 2341-P, entitled 'Testate Estate of the late
Margarita de Asis Vda. de Lazatin,' and from proceeding with the probate of the alleged
holographic will of the deceased Do;a Margarita de Asis Vda. de Lazatin scheduled on June 29,
1976, August 10 and 12, 1976 and on any other dates." With the Court's determination of the
issues as herein set forth, there is no longer any need for restraining the proceedings below and
the said restraining order shall be immediately lifted.

On January 24, 1977, the Court upon petitioner's motion resolved to conditionally allow
respondent judge "to take the deposition of petitioner's witnesses to perpetuate their testimonies
pursuant to Rule 134, Section 7 of the Rules of Court, subject to the Court's ruling in due course
on the admissibility of such testimonies." The Court thereby permitted in effect the advance
testimonies of petitioner's witnesses, principally among them Rafael Lazatin and Esteban L.
Lazatin, both brothers of the deceased Dr. Mariano L. Lazatin and as stated in petitioner's motion
of January 11, 1977: t.hqw

Substantially, the testimony of the above-named witnesses will be on the fact that
they had been informed by the deceased spouses, Mariano and Margarita Lazatin
that your petitioner was their [Mariano's and Margarita's] judicially adopted son
and to elicit further from them the fact that your petitioner enjoys the reputation of
being their judicially adopted son in the Lazatin family.

The Court's resolution allowing the advance testimonies of petitioner's witnesses was but in
application of the Court's long standing admonition to trial courts is reaffirmed in Lamagan vs.
De la Cruz, 26, "to be liberal in accepting proferred evidence since even if they were to refuse to
accept the evidence, the affected party will nevertheless be allowed to spread the excluded
evidence on the record, for review on appeal." The Court therein once again stressed the
established rule that "it is beyond question that rulings of the trial court on procedural questions
and on admissibility of evidence during the course of the trial are interlocutory in nature and may
not be the subject of separate appeal or review on certiorari, but are to be assigned as errors and
reviewed in the appeal properly taken from the decision rendered by the trial court on the merits
of the case," 27 and that a party's recourse when proferred evidence is rejected by the trial court is
to make a offer stating on the record what a party or witness would have testified to were his
testimony not excluded, as well as to attach to the record any rejected exhibits.

At the continuation of the proceedings below for declaration of heirship and for probate of the
alleged holographic the deceased Margarita de Asis Vda. de Lazatin, pet who has failed to
establish his status as an alleged ;m child of Margarita de Asis (unless, as reserved to him by the
court below, he can show some documentary proof),and whose intervention in the estate of the
deceased Dr. Mariano Lazatin is as an admitted illegitimate child, win have to decide whether he
will pursue his first theory of having the of such admitted illegitimate child of said deceased.
Whatever be his theory and his course of action and whether or not he may be duly snowed to
intervene in the proceedings below as such alleged admitted illegitimate child, his recourse in the
event of an adverse ruling against him is to make a formal offer of proof and of his excluded
evidence, oral and documentary, and seek a reversal on an appeal in due course.

ACCORDINGLY, the petition is dismissed and the questioned orders denying petitioner's
petition below "to declare as established in this proceeding the fact of [his] adoption" are hereby
affirmed. The temporary restraining order issued on June 16, 1976 and amended on July 21,
1976 is ordered lifted, effective immediately. Without costs.

FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE

G.R. No. L-24989 July 21, 1967


PEDRO GRAVADOR, petitioner-appellee,
vs.
EUTIQUIO MAMIGO, THE DISTRICT SUPERVISOR OF BAYAWAN-STA. CATALINA
SCHOOL DISTRICT,
THE DIVISION SUPERINTENDENT OF SCHOOLS OF NEGROS ORIENTAL, THE
DIRECTOR OF PUBLIC SCHOOLS and THE SECRETARY OF EDUCATION, (all sued
in their official and personal capacities), respondents-appellants.

CASTRO, J.:
The petitioner Pedro Gravador was the principal of the Sta. Catalina Elementary School in Sta.
Catalina, Negros Oriental on August 15, 1964 when he was advised by the then, Superintendent
of Schools Angel Salazar, Jr., through the respondent Supervisor Teodulfo E. Dayao, of his
separation from the service on the ground that he had reached the compulsory retirement age of
65. The advice reads:

According to your pre-war records as a teacher in the public schools, including your
Employee's Record Card, which has just been found in connection with the verification
of the services of all school officials including elementary school principals in this
division, you were born on November 26, 1897. As of this date, therefore, you are now
66 years, 8 months, and 22 days old.

In view of the above, you are hereby advised of your separation from the service effective
immediately unless you can show valid proof in the form of a baptismal or birth
certificate that you are below sixty-five years of age today.

A few days later the respondent Eutiquio Mamigo was designated teacher-in-charge of the said
elementary school.

On August 31, 1964 the petitioner wrote the Director of Public Schools, protesting his forced
retirement on the ground that the date of his birth is not November 26, 1897 but December 11,
1901. Attached to his letter was the affidavit, executed on July 26, 1962, of Lazaro Bandoquillo
and Pedro A. Sienes both of Amlan Negros Oriental, in which these two affiants declared that
they knew that the petitioner "was born on December 11, 1901, in the Municipality of Amlan
formerly known as New Ayuquitan Province of Negros Oriental, Philippines" because, "we were
the neighbors of the late spouses, NEPOMUCENO GRAVADOR and AGUEDA REGOROSA
[petitioner's parents], and we were present when said PEDRO GRAVADOR was born;
furthermore,we were also invited during the baptismal party a few weeks after the birth of said
PEDRO GRAVADOR."

On October 19, 1964 the petitioner wrote to the Division Superintendents of Schools, reiterating
his claim that he had not reached the age of 65 and enclosing some papers in support thereof.

On April 13, 1965 he filed this suit for quo warranto, mandamus and damages in the Court of
First Instance of Negros Oriental. He asked the court to adjudge him entitled to the office of
principal of the Sta. Catalina Elementary School and to order payment to him of not only his
back salaries but also damages in the total amount of P52,400. Named as respondents were
Eutiquio Mamigo, the District Supervisor, the Superintendent of Schools, the Director of Public
Schools and the Secretary of Education.

The respondents filed their answer, entered into a stipulation of facts with the petitioner, and
thereafter the case was submitted for decision. The trial court concluded that the petitioner was
born on December 11, 1901 accordingly granted his petition. Immediate execution was ordered,
as a result of which the petitioner was reinstated.

The respondents appealed directly to this Court.


On July 6, 1967 the petitioner asked for the dismissal of the appeal on the ground that the issues
posed thereby had become moot with his retirement from the service on December 11, 1966 and
the payment to him of the corresponding retirement benefits. We deem it necessary, however, to
review the trial court's decision on the merits, considering that the computation of retirement
annuities is based among other things, on the number of years of service of a retiree, 1 and that
payment of benefits already made to the petitioner on the basis of December 11, 1901 as the date
of his birth would not exempt him from the obligation to make a refund should this Court
ultimately rule that he was actually born November 26, 1897, as the respondents claim.

The controversy on the petitioner's date of birth arose as a result of the conflicting records of the
Division of Schools of Negros Oriental. On the one hand the pre-war records show his date of
birth to be November 26, 1897. These records consist of two Insular Teachers Cards 2 and one
Employee's Record Card.3 It is on the basis of these records that the Superintendent of Schools
determined the petitioner's age to be 66 years, 8 months and 22 days on August 15, 1964.

On the other hand, the post-war records, consisting of an Elementary Teacher's Report Card, 4 an
Employee's Record Card,5 and an Employee's Record of Qualifications,6 state that the petitioner
was born on Dec. 11, 1901. These are the records on which the petitioner bases his claim.

The problem is aggravated by two uncontroverted facts, namely, that the records of the church
where the petitioner was baptized were destroyed by fire, and that the municipal civil register
contains no record. of the petitioner's birth.

According to the trial court, the post-war records were intended to replace the pre-war records
and therefore the correct date of birth of the petitioner is December 11, 1901. The court also took
into account the verified answer in a cadastral proceeding in the Court of First Instance of
Negros Oriental, dated March 15, 1924, filed by the petitioner's brother, Romulo Gravador, now
deceased. It is therein stated that the petitioner, said to be one of the co-owners of a piece of land,
was at the time 23 years old.

The respondents now contend that the trial court erred in placing full reliance on the post-war
records to establish the date of birth (December 11, 1901) of the petitioner. They argue that these
records were made only because it was thought that the pre-war records had been lost or
destroyed, but as some pre-war records had since been located, the date contained in the pre-war
records should be regarded as controlling and that the finding of the Superintendent of Schools
that the petitioner was born on November 26, 1897 is an administrative finding that should not
be disturbed by the court.

That the findings of fact of administrative officials are binding on the courts if supported by
substantial evidence, is a settled rule of administrative law, But whether there is substantial
evidence supporting the finding of the Superintendent of Schools is precisely the issue in this
case. The school official based his determination of the petitioner's age on the pre-war records in
the preparation of which the petitioner does not appear to have taken a part. 7 On the other hand,
the petitioner post-war records which he personally accomplished to prove the date of his birth.8
It is our considered view that the lower court correctly relied upon the post-war records, for three
cogent reasons.

In the first place, as Moran states, although a person can have no personal knowledge of the date
of his birth, he may testify as to his age as he had learned it from his parents and relatives and his
testimony in such case is an assertion of a family tradition. 9 Indeed, even in is application for
back pay which he filed with the Department of Finance, through the Office of the
Superintendent of Schools, on October 7, 1948, the petitioner stated that the date of his birth is
December 11, 1901. He repeated the same assertion in 1956 and again in 1960 when he asked the
Government Service Insurance System and the Civil Service Commission to correct the date of
his birth to December 11, 1901.

In the second place, the import of the declaration of the petitioner's brother, contained in a
verified pleading in a cadastral case way back in 1924, to the effect that the petitioner was then
23 years old, can not be ignored. Made ante litem motam by a deceased relative, this statement is
at once a declaration regarding pedigree within the intendment and meaning of section 33 of
Rule 130 of the Rules of Court.

Thus, December 11, 1901 is established as the date of birth of the petitioner not only by evidence
of family tradition but also by the declaration ante litem motam of a deceased
relative.1wph1.t

Finally, the patties are agreed that the petitioner has a brother, Constantino, who was born on
June 10, 1898 and who retired on June 10, 1963 with full retirement pay. The petitioner then
could not have been born earlier than Constantino, say in 1897 as pre-war records indicate,
because Constantino is admittedly older than he.10

Still it is argued that the petitioner's action was prematurely brought because he had not availed
of all administrative remedies. This argument is without merit. Suit for quo warranto to recover a
public office must be brought within one year. 11 Before filing this case the petitioner waited for
eight months for the school officials to act on his protest. To require him to tarry a little more
would obviously be unfair to him since on April 13, 1965, when this case was filed, he had only
four months left within which to bring the case to court. There was neither manner nor form of
assurance that the decision of the Director of Public Schools would be forthcoming. The rule on
exhaustion of administrative remedies does not apply where insistence on its observance would
result in the nullification of the claim being asserted.12

Accordingly, the judgment a quo is affirmed. No pronouncement as to costs.

COMMON REPURATION

A.M. No. 533 September 12, 1974


IN RE: FLORENCIO MALLARE, respondent,
RE S O LUTI ON

FERNANDEZ, J.:p
On complaint of then Acting Immigration Commissioner, Martiniano P. Vivo, this Court ordered
the investigation of the matter of citizenship of Florencio Mallare, who was admitted to the
Philippine Bar on March 5, 1962, for the purpose of determining whether his name should be
stricken from the roll of persons authorized to practice law in the Philippines.

After an investigation conducted by this Court's Legal Officer Investigator, a decision was
rendered by this Court on April 29, 1968, holding that by preponderance of evidence, it appeared
that respondent Mallare's father, Esteban Mallare, was a Chinese up to his death; and his mother
admittedly being a Chinese, respondent is likewise a Chinese national. Consequently respondent
Florencio Mallare was declared excluded from the practice of law; his admission to the bar was
revoked, and he was ordered to return to this Court, the lawyer's diploma previously issued to
him.

Respondent moved for reconsideration of the decision, which was denied by the Court in its
resolution of January 10, 1969. On February 4, 1969, respondent petitioned the Court for the
reopening of the case and for new trial on the ground, inter alia, of newly discovered evidence,
the introduction of which could alter the decision previously promulgated. The evidence
proposed to be presented consisted of (1) an entry in the registry of baptism of the Immaculate
Concepcion Church at Macalelon, Quezon, purporting to show that Estaben Mallare
(respondent's father) is the natural son of Ana Mallare, a Filipino; and (2) testimonies of certain
persons who had a known Esteban Mallare and his mother during their lifetime.

By resolution of July 31, 1969, this Court ruled:

Considering that the respondent, as a duly admitted member of the bar, should be
given ample opportunity to establish the true facts about his citizenship and that
no effort should be spared to ascertain the truth before strippling him of the
privilege granted to him by this Court since 1962, and denying him the practice
of his chosen profession which he has honorably discharged as far as the records
show:

The Court Resolved to set aside the decision of April 29, 1968 and to grant the re-
opening and new trial prayed for, which shall take place before the Court's
Investigating Officer on the days specified by him upon notice to respondent
Mallare, the Commissioner of Immigration and the Solicitor General, wherein
said parties may adduce all proper additional evidence that they may desire to
present. The proofs taken at the original investigation shall not be retaken, but
considered as part of the evidence in the new trial. Thereafter, the Court
Investigator shall submit his report on this Tribunal. (Emphasis supplied)

Accordingly, the parties submitted their respective additional evidences before the Court's
investigator.

Respondent's petition to set aside the decision of this Court of April 29, 1968, as well as the
resolution of January 10, 1969, is premised upon three basic arguments, to wit: (a) Respondent's
father, Esteban Mallare, being the natural son of Ana Mallare, a Filipino, was a Filipino citizen;
(b) Esteben Mallare, the son of a Filipino mother, by his own overt acts, had chosen Philippine
citizenship; and (c) respondent, a legitimate son of Esteban Mallare, is a Filipino citizen.

The determinative issue in this controversy, therefore, revolves around the citizenship of
respondent's father, Esteban Mallare, for if Esteban were a Filipino as respondent claims, the
latter axiomatically would also be a Filipino and the objection against his inclusion in the Roll of
Attorneys in the Philippines would lose legal basis.

After a painstaking study of the original and additional evidences herein presented, the Court
finds sufficient grounds to warrant a definite setting aside of Our decision of April 29, 1968, and
a definitive declaration that respondent Florencio Mallare is a Filipino citizen and therefore with
qualification and right to continue the practice of law in the Philippines.

To support his contention that respondent Florencio Mallare is not a Filipino, the Commissioner
of Immigration presented:

Exhibits "A" and "B", Opinions Nos. 90 and 166 of the Secretary of Justice dated March 31,
1955 and July 10, 1959, respectively, to the effect that respondent and his brothers and sisters
had failed to establish their claim to Philippine citizenship;

Exhibit "C", the death certificate of Esteban Mallare dated June 7, 1945, wherein he was reported
to be of Chinese nationality;

Exhibits "D", "E", "F" and "G", the birth certificates of respondent, his brothers and sisters, dated
October 23, 1929, November 8, 1932, October 26, 1939, and February 10, 1943, respectively,
stating that their father was a Chinese citizen, born in Amoy, China, and wherein respondent was
reported to be a Chinese, born in Macalelon, Quezon;

Exhibits "H" to "M" the records of Civil Case No. 329-G and Special Proceeding No. 3925,
both of the Court of First Instance of Quezon; and

Exhibit "N", respondent's alien certificate of registration, dated August 25, 1950.

Upon the other hand, respondent submitted

Exhibit "1", the decision of the Court of First Instance of Quezon in Civil Case No. 329-G, dated
November 18, 1959, upholding the validity of a contract of sale, the vendees therein (including
respondent) being citizens of the Philippines;

Exhibit "2", an order by the Acting Commissioner of Immigration, canceling respondent's alien
certificate of registration on the strength of the court's decision in Civil Case No. 329-G; Exhibit
"3", identification certificate No. 11712 issued by the Bureau of Immigration, declaring
respondent "as a citizen of the Philippines by birth being the legitimate son of Esteban Mallare, a
Filipino citizen as 'per order of this office dated 8 June 1960 CEBNO 4223-R'";
Exhibit "4", final order of the Court of First Instance of Quezon, dated November 28, 1960, in
Special Proceedings No. 3925, ordering the Municipal Treasurer of Macalelon, Quezon, to
correct the entry in the Registry of Birth book of the municipality by changing respondent's
nationality from "Chinese" to "Filipino";

Exhibit "5", respondent's affidavit dated October 7, 1961 showing him to be a registered voter of
Macalelon, Quezon;

Exhibit "6", respondent's passport issued on March 5, 1962, showing that he is a citizen of the
Philippines;

Exhibit "7", opinion of the Solicitor General, dated July 25, 1962, recognizing respondent
Florencio Mallare as a Filipino citizen;

Exhibit "L", landing certificate of Te Na (respondent's mother), dated July 7, 1926, wherein she
was certified as "wife of P.I. citizen";

Exhibit "K-9", certification by the municipal treasurer of Macalelon, Quezon that Esteban
Mallare was registered in the Registry List of Voters on April 14, 1928; and

The entry in the baptismal registry of the Immaculate Concepcion Church at Macalelon, Quezon,
purporting to show that Esteban Mallare was the natural child of Ana Mallare, a Filipina.

Respondent also presented the following residents of Macalelon, Quezon:

(a) Damiana Cabangon, 80 years old who declared that she was with her mother, the "hilot"
who attended to Ana Mallare during her delivery, when Esteban Mallare was born; 1 that she was
present when Esteban was baptized;2 that Ana Mallare had lived continuously in Macalelon and
was reputed to be unmarried; 3 that she had never met (seen) Esteban's father, a certain Mr. Dy. 4

(b) Rafael Catarroja 77 years old and former mayor of Macalelon who declared that he knew
Esteban Mallare even as a child; 5 that Esteban was then living with his mother, Ana Mallare, a
Tagala, who was cohabiting with a Chinese;6 that Esteban started voting in 1934, and became
one of his (the witness') campaign leaders when he ran for the mayor ship in 1934. 7

(c) Salomon Gimenez, 75 years old and former mayor of Macalelon, who declared having known
Esteban Mallare; that in the elections of l925, when Esteban campaigned for a rival candidate
against him, he (the witness) wanted to seek for Esteban's disqualification; that he sought the
counsel of Judge Gaudencio Eleazar (a relative of the witness), who advised him that a
disqualification move would not prosper because Esteban's mother was not married to Esteban's
Chinese father; 8 that as of 1940, when witness was municipal mayor, there were only about
3,000 residents in Macalelon. 9

(d) Joaquin Enobal, 69 years old, who declared that he was a classmate and playmate of Esteban
Mallare, whose house was only about five houses away from theirs; 10 that he had not seen the
husband of Ana Mallare; 11 that Ana was a Tagalog who had lived in Macalelon. 12
In Our decision of April 29, 1968, respondent's claim that he is a Filipino was denied for lack of
evidence proving the Philippine citizenship of his father, Esteban Mallare. It was ruled that Ana
Mallare (Esteban's mother) can not be considered a Filipino, there being no proof that she was
"an inhabitant of the Philippines continuing to reside therein who was a Spanish subject on the
eleventh day of April, eighteen hundred and ninety-nine"; that the landing certificate issued by
the Bureau of Immigration which referred to respondent's mother, Te Na, as "wife of Dy Esteban,
P.I. citizen", was based upon an ex parte determination of the evidence presented by therein
applicant and consequently carries little evidentiary weight as to the citizenship of her said
husband; and that the affidavit of Esteban Mallare, executed on February 20, 1939, to the effect
that he had chosen to follow the citizenship of his Filipino mother was not only self-serving, but
also it can not be considered a re-affirmation of the alleged election of citizenship since no
previous election of such citizenship has been proved to exist.

With the additional evidence submitted by respondent pursuant to the authority granted by this
Court, the aforementioned void in the proof of respondent's citizenship has been duly filled.

The witnesses, all natives of Macalelon, who had personal knowledge of the person, birth and
residency of both Ana Mallare and her son Esteban, were one in their declaration that Ana
Mallare is a Tagalog who had continuously resided in the place, and that Esteban, her son, was
reputedly born out of wedlock. Such declarations constitute admissible evidence of the birth and
illegitimacy of Esteban Mallare. Reputation has been held admissible as evidence of age, birth,
race, or race-ancestry, and on the question of whether a child was born alive. Unlike that of
matters of pedigree, general reputation of marriage may proceed from persons who are not
members of the family the reason for the distinction is the public interest that is taken in the
question of the existence of marital relations. 13

The principle could not have been more true than in a Philippine rural community where
relationships not in conformity with established contentions become the subject of criticisms and
public cynosure. Thus, the public reputation in Macalelon that Esteban was Ana's natural child,
testified to by the witness, would constitute proof of the illegitimacy of the former. Besides, if
Estaban were really born out of legal union, it is highly improbable that he would be keeping the
surname "Mallare" after his mother, instead of adopting that of his father. And it would be
straining the imagination to perceive that this situation was purposedly sought by Esteban's
parents to suit some ulterior motives. In 1903, we can not concede that alien inhabitants of his
country were that sophisticated or legally-oriented.

The assertion of the witnesses, which have not been controverted, that Ana Mallare is a Tagalog
(and, therefore, a Filipino citizen), cannot be assailed as being mere conclusions devoid of
evidentiary value. The declarations were not only based on the reputation in the community
regarding her race or race-ancestry, which is admissible in evidence, but they must have certain
factual basis. For it must be realized that in this Philippine society, every region possesses certain
characteristics all its own. Thus, a Tagalog would normally detect if a person hails from the same
region even from the way the latter speaks. Considering that the witnesses testified having
known, and lived with, Ana Mallare in Macalelon, their declaration that she is a Tagalog should
receive a high degree of credibility.
Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a Filipino, and no
other act would be necessary to confer on him all the rights and privileges attached to Philippine
citizenship (U.S. vs. Ong Tianse, 29 Phil. 332; Santos Co vs. Government of the Philippine
Islands, 42 Phil. 543; Serra vs. Republic, L-4223, May 12, 1952; Sy Quimsuan vs. Republic, L-
4693, Feb. 16, 1953; Pitallano vs. Republic, L-5111, June 28, 1954). Neither could any act taken
on the erroneous belief that he is a non-Filipino divest him of the citizenship privileges to which
he is rightfully entitled. 14

And even assuming arguendo that Ana Mallare were legally married to an alien, Esteban's
exercise of the right of suffrage when he came of age, constitutes a positive act of election of
Philippine citizenship. It has been established that Esteban Mallare was a registered voter as of
April 14, 1928 (Exh. "K-9"), and that as early as 1925 (when he was about 22 years old), Esteban
was already participating in the elections and campaigning for certain candidate. These acts are
sufficient to show his preference for Philippine citizenship. 15 Indeed, it would be unfair to expect
the presentation of a formal deed to that effect considering that prior to the enactment of
Commonwealth Act 625 on June 7, 1941, no particular proceeding was required to exercise the
option to elect Philippine citizenship, granted to the proper party by Section 1, subsection 4,
Article IV of the 1935 Philippine Constitution.

It is true that in the death certificate of Esteban Mallare (Exh. "C"), he was referred to as a
Chinese national, and in the birth certificates of respondent and his brothers and sister (Exhs.
"D", "E", "F" and "G"), they were declared to be of Chinese nationality. Respondent likewise
appeared to have applied for alien registration on August 25, 1950 (Exh. "N"). While said
documents are public and the entries therein are, consequently, presumed to be correct, such
presumption is merely disputable and will have to yield to more positive evidence establishing
their inaccuracy.

Artemio Mallare, Esteban's eldest son and who supposedly supplied the data appearing in
Exhibit "C", denied having any hand in the funeral arrangements and the preparation of the said
death certification of his father. He declared that he was merely 16 years old when his father met
his death in an accident in 1945, and he came to know of it only when he was brought to the
funeral parlor on the following day. 16 The entries in the birth certificates (Exhs. "D", "E", and
"G"), on the other hand, appeared to have been prepared upon information given by the nurse or
midwife who attended to respondent's mother during her deliveries and who would have no
knowledge of the actual fact of the place of birth and the citizenship of Esteban, the father; and
in the case of respondent Florencio Mallare, the informant was neither his father or mother; it
was Maria Arana a "hilot". In the case of the birth certificate of Esperanza Mallare (Exh. "F"),
the informant appeared to be Esteban Mallare himself. It is noted, however, that no proof has
been presented to show that it was Esteban Mallare who personally gave the information that the
child's and parents' nationality is Chinese. And any error on his part can not affect respondent
Florencio Mallare. With respect to the registration of respondent as a citizen of China in 1950
(Exh. "N"), it was explained that this was secured by respondent's mother, on the belief that upon
the death of her husband, Esteban Mallare, she and her children reverted to Chinese citizenship.
At any rate, even assuming that said documents were prepared with actual knowledge and
consent by respondent or by his parents, on the erroneous belief that Esteban was a non-Filipino,
such acts would not cause the loss or forfeiture of Philippine citizenship 17 which Esteban
acquired from his Filipino mother.

Complainant places much emphasis on the convicting testimonies of the expert witnesses on the
entry in the baptismal registry of the Immaculate Concepcion church. The discrepancy in the
testimonies of said witnesses, however, loses significance in the face of the finding, based on
other evidence that Esteban Mallare is the natural child of Ana Mallare, born to her in 1903 at
Macalelon, Quezon.

Upon the foregoing considerations, and on the basis of the original and additional evidence
herein adduced the decision of this Court dated April 29, 1968, is hereby definitely set aside, and
the complaint in this case is DISMISSED, without pronouncement as to costs.

ENTRIES IN OFFICIAL RECORDS

G.R. No. L-65442 April 5, 1985


HAVERTON SHIPPING LTD. and OFSI SERVICES, INC., petitioners,
vs.
THE NATIONAL LABOR RELATIONS COMMISSION, THE HON. CRESENCIO M.
SIDDAYAO, in his capacity as Officer-in-Charge of the NATIONAL SEAMEN BOARD
and ALFREDO BENITEZ, respondents.

MELENCIO-HERRERA, J.:

This Petition for certiorari seeks to annul and set aside the Decision of the National Labor
Relations Commission (First Division), dated August 17, 1983, affirming on appeal the Decision
of the National Seamen's Board (NSB) in NSB Case No. 3716-82 entitled "Alfredo Benitez,
complainant, vs. Haverton Shipping Ltd. and OFSI Services, Inc., respondents." The decretal
portion of the NLRC Decision reads:

WHEREFORE, all the foregoing premises considered, a decision is hereby


rendered ordering the respondents, jointly and severally to pay to complainant the
sum of US DOLLARS FOUR THOUSAND SIX HUNDRED SEVEN
(US$4,607.00) or its equivalent in the Philippine Currency, as salary for the
unexpired portion of the employment contract.

Counter-claim dismissed. 1

On November 4, 1983, we issued a Temporary Restraining Order enjoining respondents from


enforcing said Decision.

For resolution is the question of whether or not private respondent BENITEZ was terminated for
just cause even before the expiration of his employment contract

The records show that on March 12, 1982, Alfredo BENITEZ was hired by OFSI Services, the
local manning agent of Haverton Shipping, as a boatswain on the M.V. Gold
Alisa, owned and operated by the latter, for a period of one year with a monthly salary of US
$485.00. On May 24, 1982, while the vessel was berthed at the port of Durban, South Africa, a
fight occurred between BENITEZ and his shipmates, Arnel Candelaria and Maximo Espiritu, as
a result of which the latter suffered injury on the fingers of his left hand. An investigation of the
incident was conducted by the Master who made a written report of his findings and decision in
the ship's "log book". BENITEZ was found to have breached the disciplinary code of merchant
service on several counts among which was "assault with a knife on a member of the ship's
crews," which behavior "seriously detract(ed) from the safe and efficient working of the ship."
He was then repatriated to the Philippines after serving only two and a half months of his
contract.

BENITEZ's version of the incident, as set forth in his Affidavit submitted to the NSB, follows:

On May 24, 1982, or thereabout, the ship M.V. Gold Alisa was in port at Durban,
South Africa, I asked permission from my officer for shore leave and was granted.
Espiritu and Candelaria went also on shore leave but they arrived ahead of me. At
that time I arrived late for my duty and upon arrival I changed on my working
clothes to assume my work. I saw Espiritu in the mess hall with Candelaria and I
noticed they were drunk. Espiritu asked me why I did not work on my duty,
though he has no business to question me he being my immediate subordinate, but
I answered him that he better go to sleep because he was drunk. Espiritu did not
like my comment that he was drunk, he even called me some nasty words, then he
went to the pantry, got a knife and attacked me. Candelaria tried to pacify him and
separate us, in the process he was able to hit me at the right eyelid and on my
right hand, these (2) injuries leaving scars on my hand and right eyelid. When
Espiritu saw I was bleeding he ran away and locked himself in his cabin. After the
incident the 1st officer and 2nd officer came and asked me about the incident and
I told them everything what had happened. The following morning I told the
Captain of the ship of the incident. I told the Captain that Espiritu and Candelaria
were drunk, it was Espiritu who provoked me to a fight, it was Espiritu who got a
knife and attacked me, I told him I did not have any knife with me during the
incident and I was not able to inflict any injury on Espiritu as he was the one with
a knife, and he and Candelaria were grappling with the knife as Candelaria was
trying to get the knife from him. If ever Espiritu was injured, the same must have
been caused by the knife he was holding when Candelaria tried to get it from
him. 2

On the other hand, petitioners presented before the NSB a copy of the Official Entry in the Ship's
Log Book, dated May 25, 1982, to wit:

Place of Occurence: Durban

Date of Occurence: 24th and 25th May 1982

"24th May 1982


1800 Bosun Alfredo Benitez did not report for duty when his watch commenced
at 1800.

125th May 1982

0200 It was reported to the Duty Officer, Mr. T.A. Andrews, that the bosun had
returned and that there were problems'. Mr. Andrews proceeded to the crew
messroom where he heard the bosun shouting loudly, and in an obviously highly
excitable state, at A/B's Maximo Espiritu and Arnel Candelaria. The second
officer noticed blood on the bosun's shirt. The bosun was quietened and led to his
cabin. The second officer applied first aid to two cuts on the fingers of Maximo
Espiritu's left hand. (Later required two stitches each.) It was stated by Espiritu
that the bosun had attacked him with a knife and that he had grabbed the knife,
causing the cuts on his fingers. Candelaria had then pulled the bosun away from
Espiritu. The master found the injuries consistent with this allegation.

1100 The master received evidence from second officer T. A. Andrews.

1215 Hearing in the master's cabin. Present: The master, the chief officer, Bosun
Alfredo Benitez and A/B's Maximo Espiritu and Arnel Candelaria.

Statements were received from the two A/B's, who were then asked to leave.

After a thorough and careful investigation of all the events, the master found that
the Disciplinary Code of the British Merchant Service, and of the Filipino
National Seaman's Board, to which Alfredo Benitez had agreed when he signed
the Crew Agreement and his Company Contract, had been breached on the
following counts:

i) Absent from duty.

ii) Assault with an offensive weapon (knife) on a member of the ships crew.

iii) Intimidation, and interference with the work of a member of the ship's crew.

iv) Behaviour which seriously detracts from the safe and efficient working of the
ship.

v) Behaviour which seriously detracts from the social well-being of any other
person on board. (Maximo Espiritu. The bosun had threatened 'to kill him'.
Afterwards, Espiritu was too frightened to sleep in his own cabin and had spent
the night in the cabin of a shipmate.)

The master then asked Alfredo Benitez if he had anything to say.


Benitez replied that he admitted all the charges and that he was guilty of wielding
a knife towards Espiritu and that the attack had been thwarted by Candelaria
pulling him away. In mitigation he stated that he had on the previous day received
a letter from home which had contained bad news; and this had placed him in a
depressed state of mind. Benitez stated that he regreted the incident.

The master said that, while he was aware that the initial argument was not solely
caused by the bosun, Ws assault on Espiritu had nevertheless been no way to
settle the dispute. The master found the bosun guilty of all the charges and bearing
in mind possible problems between Benitez and the crew, especially during the
long sea voyage to Singapore, the master had no alternative but to dismiss Benitez
immediately from his service with the ship.

Benitez' Account of Wages was drawn up and the sum of United States Dollars
719.60 (Seven Hundred and Nineteen Dollars 60 cents,) the total payable under
the account was paid to Benitez in cash. Arrangements were made with the
company's agents, Polaris Shipping, to receive Benitez and arrange for his
repatriation to Manila. Benitez was then signed off the Crew Agreement. 3

On June 7, 1982, BENITEZ filed with the NSB a complaint for illegal dismissal and unlawful
termination of contract. On the basis of the parties' position papers, decision was rendered
adopting BENITEZ's version and ruling that the copy of the Official Entry in the Ship's Log
Book was "purely hearsay and could not legally be binding." 4 The NLRC also rejected the
Affidavits of able seamen Candelaria and Espiritu for the reason that they were presented only
when the case was already on appeal before it.

Generally, the rule is that findings of fact of the NLRC are entitled to great respect. 5 But the
judgment below can be reversed when public respondents have overlooked certain significant
facts, which are sufficient to alter the questioned decision. 6 That situation confronts us now.

In declaring that copy of the Official Entry in the Ship's Log Book was not legally binding for
being hearsay, public respondents overlooked the fact that under our laws the ship's captain is
obligated to keep a "log book" where, among others, he records the decisions he has
adopted. 7 Even according to the law of the vessel's registry, that book is also "required by law"
as disclosed by the entry itself. 8 There is no controversy as to the genuineness of the said entry.
The vessel's log book is an official record and entries made by a person in the performance of a
duty required by law are prima facie evidence of the facts stated therein. 9

That an investigation was conducted on the incident is admitted by BENITEZ. 10 The reason, as
stated in the entry, as to why BENITEZ was not given a copy before he disembarked from the
vessel was that the vessel had sailed for Singapore on the same day and it was not possible in the
short time available to provide BENITEZ with a copy of the entry. 11

The two cut wounds sustained by Espiritu in his fingers, which required two stitches each,
conforms to his narration that BENITEZ lunged at him and tried to stab him with the knife and
that in protecting himself he held the blade of the knife with his left hand and injured
himself. 12 As stated in the entry, "(T)he master found the injuries consistent with this
allegation". 13 Candelaria's Affidavit 14 corroborates Espiritu's narrative of the incident.

It is true that the Affidavits of Candelaria and Espiritu, dated April 4 & 11, 1983, were submitted
only when the case was on appeal to the NLRC. Still, that should not have precluded the NLRC
from taking them into account. There was plausible reason for the delay in the submittal of their
Affidavits in that the affiants were out of the country plying back and forth between the ports of
the Far East and South and West Africa during the period from March 12, 1982 to March 16,
1983. It was only after the expiration of their contract of employment that they returned to the
Philippines and executed their sworn statements before the Labor Arbiter. 15 As the Labor Code
specifically provides, rules of evidence prevailing in Courts of law shall not be controlling and
every and all reasonable means to ascertain the facts in each case shall be used without regard to
technicalities. 16

On the other hand, BENITEZ's claim that "(I)f ever Espiritu was injured, the same must have
been caused by the knife he was holding when Candelaria tried to get it from him," stands
uncorroborated.

Reliance was placed by the NSB on the Master's rating of BENITEZ upon his discharge that his
ability and conduct was "very good," and that he was a good professional man. 17 This rating was
considered as offsetting the Master's entries in the log book. The Master, J.B. Cullen of M.V.
Gold Alisa, explained this, however, in a transmittal letter dated June 10,1982 to OFSI Services,
thus: "Benitez in himself was not all that bad a person. But he had had a few drinks ashore, and
chose to settle his differences with a knife, which action is absolutely unacceptable aboard. ...
Because I did not want to make Benitez bear the consequences of this incident for the rest of Ms
sea career, I did not make any specific remark in his Seaman's Book however, it goes without
saying that he should not under any circumstances be appointed to a Haverton vessel again." 18

In the light of all the foregoing, the inevitable conclusion is that public respondents had
misappreciated the significance of the entry in the vessel's official log book regarding the
incident. The probative value of the facts stated therein has not been overcome by BENITEZ's
submittals.

We are constrained to hold, therefore, that BENITEZ's actuations were tantamount to serious
misconduct in connection with his work and is a just cause for termination of employment. 19 As
a consequence, he is not entitled to any salary for the unexpired portion of his employment
contract.

WHEREFORE, the Petition for certiorari is granted, the questioned Decisions are REVERSED,
and the complaint dismissed. The Temporary Restraining Order heretofore issued is made
permanent. No costs.

COMMERCIAL LIST

[G.R. No. 127598. February 22, 2000]


MANILA ELECTRIC COMPANY, petitioner, vs. Hon. Secretary of Labor Leonardo
Quisumbing and Meralco Employees and Workers Association (MEWA), respondents.

YNARES_SANTIAGO, J.:

In the Decision promulgated on January 27, 1999, the Court disposed of the case as follows:

"WHEREFORE, the petition is granted and the orders of public respondent


Secretary of Labor dated August 19, 1996 and December 28, 1996 are set aside to
the extent set forth above. The parties are directed to execute a Collective
Bargaining Agreement incorporating the terms and conditions contained in the
unaffected portions of the Secretary of Labors orders of August 19, 1996 and
December 28, 1996, and the modifications set forth above. The retirement fund
issue is remanded to the Secretary of Labor for reception of evidence and
determination of the legal personality of the Meralco retirement fund."[1]

The modifications of the public respondents resolutions include the following:

January 27, 1999 decision Secretarys resolution

Wages -P1,900.00 for 1995-96 P2,200.00

Xmas bonus -modified to one month 2 months

Retirees -remanded to the Secretary granted

Loan to coops -denied granted

GHSIP, HMP

and Housing loans -granted up to P60,000.00 granted

Signing bonus -denied granted

Union leave -40 days (typo error) 30 days

High voltage/pole -not apply to those who are members of a team

not exposed to the risk

Collectors -no need for cash bond, no

need to reduce quota and MAPL

CBU -exclude confidential employees include


Union security -maintenance of membership closed shop

Contracting out -no need to consult union consult first

All benefits -existing terms and conditions all terms

Retroactivity -Dec 28, 1996-Dec 27, 199(9) from Dec 1, 1995

Dissatisfied with the Decision, some alleged members of private respondent union (Union for
brevity) filed a motion for intervention and a motion for reconsideration of the said Decision. A
separate intervention was likewise made by the supervisors union (FLAMES [2]) of petitioner
corporation alleging that it has bona fide legal interest in the outcome of the case.[3] The Court
required the "proper parties" to file a comment to the three motions for reconsideration but the
Solicitor-General asked that he be excused from filing the comment because the "petition filed in
the instant case was granted" by the Court. [4] Consequently, petitioner filed its own consolidated
comment. An "Appeal Seeking Immediate Reconsideration" was also filed by the alleged newly
elected president of the Union.[5] Other subsequent pleadings were filed by the parties and
intervenors.

The issues raised in the motions for reconsideration had already been passed upon by the Court
in the January 27, 1999 decision. No new arguments were presented for consideration of the
Court. Nonetheless, certain matters will be considered herein, particularly those involving the
amount of wages and the retroactivity of the Collective Bargaining Agreement (CBA) arbitral
awards.

Petitioner warns that if the wage increase of P2,200.00 per month as ordered by the Secretary is
allowed, it would simply pass the cost covering such increase to the consumers through an
increase in the rate of electricity. This is a non sequitur. The Court cannot be threatened with
such a misleading argument. An increase in the prices of electric current needs the approval of
the appropriate regulatory government agency and does not automatically result from a mere
increase in the wages of petitioners employees. Besides, this argument presupposes that
petitioner is capable of meeting a wage increase. The All Asia Capital report upon which the
Union relies to support its position regarding the wage issue can not be an accurate basis and
conclusive determinant of the rate of wage increase. Section 45 of Rule 130 Rules of Evidence
provides:

"Commercial lists and the like. - Evidence of statements of matters of interest to


persons engaged in an occupation contained in a list, register, periodical, or other
published compilation is admissible as tending to prove the truth of any relevant
matter so stated if that compilation is published for use by persons engaged in that
occupation and is generally used and relied upon by them therein."

Under the afore-quoted rule, statement of matters contained in a periodical may be admitted only
"if that compilation is published for use by persons engaged in that occupation and is generally
used and relied upon by them therein." As correctly held in our Decision dated January 27, 1999,
the cited report is a mere newspaper account and not even a commercial list. At most, it is but an
analysis or opinion which carries no persuasive weight for purposes of this case as no sufficient
figures to support it were presented. Neither did anybody testify to its accuracy. It cannot be said
that businessmen generally rely on news items such as this in their occupation. Besides, no
evidence was presented that the publication was regularly prepared by a person in touch with the
market and that it is generally regarded as trustworthy and reliable. Absent extrinsic proof of
their accuracy, these reports are not admissible.[6] In the same manner, newspapers containing
stock quotations are not admissible in evidence when the source of the reports is available.
[7]
With more reason, mere analyses or projections of such reports cannot be admitted. In
particular, the source of the report in this case can be easily made available considering that the
same is necessary for compliance with certain governmental requirements.

Nonetheless, by petitioners own allegations, its actual total net income for 1996 was P5.1 billion.
[8]
An estimate by the All Asia financial analyst stated that petitioners net operating income for
the same year was about P5.7 billion, a figure which the Union relies on to support its claim.
Assuming without admitting the truth thereof, the figure is higher than the P4.171 billion
allegedly suggested by petitioner as its projected net operating income. The P5.7 billion which
was the Secretarys basis for granting the P2,200.00 is higher than the actual net income of P5.1
billion admitted by petitioner. It would be proper then to increase this Courts award of P1,900.00
to P2,000.00 for the two years of the CBA award. For 1992, the agreed CBA wage increase for
rank-and-file was P1,400.00 and was reduced to P1,350.00, for 1993; further reduced to
P1,150.00 for 1994. For supervisory employees, the agreed wage increase for the years 1992-
1994 are P1,742.50, P1,682.50 and P1,442.50, respectively. Based on the foregoing figures, the
P2,000.00 increase for the two-year period awarded to the rank-and-file is much higher than the
highest increase granted to supervisory employees.[9] As mentioned in the January 27, 1999
Decision, the Court does "not seek to enumerate in this decision the factors that should affect
wage determination" because collective bargaining disputes particularly those affecting the
national interest and public service "requires due consideration and proper balancing of the
interests of the parties to the dispute and of those who might be affected by the dispute."[10] The
Court takes judicial notice that the new amounts granted herein are significantly higher than the
weighted average salary currently enjoyed by other rank-and-file employees within the
community. It should be noted that the relations between labor and capital is impressed with
public interest which must yield to the common good. [11] Neither party should act oppressively
against the other or impair the interest or convenience of the public.[12] Besides, matters of salary
increases are part of management prerogative.[13]

On the retroactivity of the CBA arbitral award, it is well to recall that this petition had its origin
in the renegotiation of the parties 1992-1997 CBA insofar as the last two-year period thereof is
concerned. When the Secretary of Labor assumed jurisdiction and granted the arbitral awards,
there was no question that these arbitral awards were to be given retroactive effect. However, the
parties dispute the reckoning period when retroaction shall commence. Petitioner claims that the
award should retroact only from such time that the Secretary of Labor rendered the award,
invoking the 1995 decision in Pier 8 case[14] where the Court, citing Union of Filipino Employees
v. NLRC,[15] said:

"The assailed resolution which incorporated the CBA to be signed by the parties
was promulgated on June 5, 1989, the expiry date of the past CBA. Based on the
provision of Section 253-A, its retroactivity should be agreed upon by the parties.
But since no agreement to that effect was made, public respondent did not abuse
its discretion in giving the said CBA a prospective effect. The action of the public
respondent is within the ambit of its authority vested by existing law."

On the other hand, the Union argues that the award should retroact to such time granted by the
Secretary, citing the 1993 decision of St Lukes.[16]

"Finally, the effectivity of the Order of January 28, 1991, must retroact to the date
of the expiration of the previous CBA, contrary to the position of petitioner.
Under the circumstances of the case, Article 253-A cannot be properly applied to
herein case. As correctly stated by public respondent in his assailed Order of April
12, 1991 dismissing petitioners Motion for Reconsideration---

Anent the alleged lack of basis for the retroactivity provisions


awarded, we would stress that the provision of law invoked by the
Hospital, Article 253-A of the Labor Code, speaks of agreements
by and between the parties, and not arbitral awards . . .

"Therefore, in the absence of a specific provision of law prohibiting retroactivity


of the effectivity of arbitral awards issued by the Secretary of Labor pursuant to
Article 263(g) of the Labor Code, such as herein involved, public respondent is
deemed vested with plenary and discretionary powers to determine the effectivity
thereof."

In the 1997 case of Mindanao Terminal,[17] the Court applied the St. Lukes doctrine and ruled
that:

"In St. Lukes Medical Center v. Torres, a deadlock also developed during the CBA
negotiations between management and the union. The Secretary of Labor assumed
jurisdiction and ordered the retroaction of the CBA to the date of expiration of the
previous CBA. As in this case, it was alleged that the Secretary of Labor gravely
abused its discretion in making his award retroactive. In dismissing this
contention this Court held:

"Therefore, in the absence of a specific provision of law


prohibiting retroactive of the effectivity of arbitral awards issued
by the Secretary of Labor pursuant to Article 263(g) of the Labor
Code, such as herein involved, public respondent is deemed vested
with plenary and discretionary powers to determine the effectivity
thereof."

The Court in the January 27, 1999 Decision, stated that the CBA shall be "effective for a period
of 2 years counted from December 28, 1996 up to December 27, 1999." Parenthetically, this
actually covers a three-year period. Labor laws are silent as to when an arbitral award in a labor
dispute where the Secretary had assumed jurisdiction by virtue of Article 263 (g) of the Labor
Code shall retroact. In general, a CBA negotiated within six months after the expiration of the
existing CBA retroacts to the day immediately following such date and if agreed thereafter, the
effectivity depends on the agreement of the parties.[18] On the other hand, the law is silent as to
the retroactivity of a CBA arbitral award or that granted not by virtue of the mutual agreement of
the parties but by intervention of the government. Despite the silence of the law, the Court rules
herein that CBA arbitral awards granted after six months from the expiration of the last CBA
shall retroact to such time agreed upon by both employer and the employees or their union.
Absent such an agreement as to retroactivity, the award shall retroact to the first day after the six-
month period following the expiration of the last day of the CBA should there be one. In the
absence of a CBA, the Secretarys determination of the date of retroactivity as part of his
discretionary powers over arbitral awards shall control.

It is true that an arbitral award cannot per se be categorized as an agreement voluntarily entered
into by the parties because it requires the interference and imposing power of the State thru the
Secretary of Labor when he assumes jurisdiction. However, the arbitral award can be considered
as an approximation of a collective bargaining agreement which would otherwise have been
entered into by the parties.[19] The terms or periods set forth in Article 253-A pertains explicitly to
a CBA. But there is nothing that would prevent its application by analogy to an arbitral award by
the Secretary considering the absence of an applicable law. Under Article 253-A: "(I)f any such
agreement is entered into beyond six months, the parties shal! agree on the duration of
retroactivity thereof." In other words, the law contemplates retroactivity whether the agreement
be entered into before or after the said six-month period. The agreement of the parties need not
be categorically stated for their acts may be considered in determining the duration of
retroactivity. In this connection, the Court considers the letter of petitioners Chairman of the
Board and its President addressed to their stockholders, which states that the CBA "for the rank-
and-file employees covering the period December 1, 1995 to November 30, 1997 is still with the
Supreme Court,"[20] as indicative of petitioners recognition that the CBA award covers the said
period. Earlier, petitioners negotiating panel transmitted to the Union a copy of its proposed CBA
covering the same period inclusive.[21] In addition, petitioner does not dispute the allegation that
in the past CBA arbitral awards, the Secretary granted retroactivity commencing from the period
immediately following the last day of the expired CBA. Thus, by petitioners own actions, the
Court sees no reason to retroact the subject CBA awards to a different date. The period is herein
set at two (2) years from December 1, 1995 to November 30, 1997.

On the allegation concerning the grant of loan to a cooperative, there is no merit in the unions
claim that it is no different from housing loans granted by the employer. The award of loans for
housing is justified because it pertains to a basic necessity of life. It is part of a privilege
recognized by the employer and allowed by law. In contrast, providing seed money for the
establishment of the employees cooperative is a matter in which the employer has no business
interest or legal obligation. Courts should not be utilized as a tool to compel any person to grant
loans to another nor to force parties to undertake an obligation without justification. On the
contrary, it is the government that has the obligation to render financial assistance to
cooperatives and the Cooperative Code does not make it an obligation of the employer or any
private individual.[22]
Anent the 40-day union leave, the Court finds that the same is a typographical error. In order to
avoid any confusion, it is herein declared that the union leave is only thirty (30) days as granted
by the Secretary of Labor and affirmed in the Decision of this Court.

The added requirement of consultation imposed by the Secretary in cases of contracting out for
six (6) months or more has been rejected by the Court. Suffice it to say that the employer is
allowed to contract out services for six months or more. However, a line must be drawn between
management prerogatives regarding business operations per se and those which affect the rights
of employees, and in treating the latter, the employer should see to it that its employees are at
least properly informed of its decision or modes of action in order to attain a harmonious labor-
management relationship and enlighten the workers concerning their rights.[23] Hiring of workers
is within the employers inherent freedom to regulate and is a valid exercise of its management
prerogative subject only to special laws and agreements on the matter and the fair standards of
justice.[24] The management cannot be denied the faculty of promoting efficiency and attaining
economy by a study of what units are essential for its operation. It has the ultimate determination
of whether services should be performed by its personnel or contracted to outside agencies.
While there should be mutual consultation, eventually deference is to be paid to what
management decides.[25] Contracting out of services is an exercise of business judgment or
management prerogative.[26] Absent proof that management acted in a malicious or arbitrary
manner, the Court will not interfere with the exercise of judgment by an employer. [27] As
mentioned in the January 27, 1999 Decision, the law already sufficiently regulates this matter.
[28]
Jurisprudence also provides adequate limitations, such that the employer must be motivated
by good faith and the contracting out should not be resorted to circumvent the law or must not
have been the result of malicious or arbitrary actions.[29]These are matters that may be
categorically determined only when an actual suit on the matter arises.

WHEREFORE, the motion for reconsideration is partially granted and the assailed Decision is
modified as follows: (1) the arbitral award shall retroact from December 1, 1995 to November
30, 1997; and (2) the award of wage is increased from the original amount of One Thousand
Nine Hundred Pesos (P1,900.00) to Two Thousand Pesos (P2,000.00) for the years 1995 and
1996. This Resolution is subject to the monetary advances granted by petitioner to its rank-and-
file employees during the pendency of this case assuming such advances had actually been
distributed to them. The assailed Decision is AFFIRMED in all other respects.

TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING

G.R. No. 150157 January 25, 2007


MAURICIO MANLICLIC and PHILIPPINE RABBIT BUS LINES, INC., Petitioners,
vs.
MODESTO CALAUNAN, Respondent.
CHICO-NAZARIO, J.:

Assailed before Us is the decision1 of the Court of Appeals in CA-G.R. CV No. 55909 which
affirmed in toto the decision2 of the Regional Trial Court (RTC) of Dagupan City, Branch 42, in
Civil Case No. D-10086, finding petitioners Mauricio Manliclic and Philippine Rabbit Bus
Lines, Inc. (PRBLI) solidarily liable to pay damages and attorneys fees to respondent Modesto
Calaunan.

The factual antecedents are as follows:

The vehicles involved in this case are: (1) Philippine Rabbit Bus No. 353 with plate number
CVD-478, owned by petitioner PRBLI and driven by petitioner Mauricio Manliclic; and (2)
owner-type jeep with plate number PER-290, owned by respondent Modesto Calaunan and
driven by Marcelo Mendoza.

At around 6:00 to 7:00 oclock in the morning of 12 July 1988, respondent Calaunan, together
with Marcelo Mendoza, was on his way to Manila from Pangasinan on board his owner-type
jeep. The Philippine Rabbit Bus was likewise bound for Manila from Concepcion, Tarlac. At
approximately Kilometer 40 of the North Luzon Expressway in Barangay Lalangan, Plaridel,
Bulacan, the two vehicles collided. The front right side of the Philippine Rabbit Bus hit the rear
left side of the jeep causing the latter to move to the shoulder on the right and then fall on a ditch
with water resulting to further extensive damage. The bus veered to the left and stopped 7 to 8
meters from point of collision.

Respondent suffered minor injuries while his driver was unhurt. He was first brought for
treatment to the Manila Central University Hospital in Kalookan City by Oscar Buan, the
conductor of the Philippine Rabbit Bus, and was later transferred to the Veterans Memorial
Medical Center.

By reason of such collision, a criminal case was filed before the RTC of Malolos, Bulacan,
charging petitioner Manliclic with Reckless Imprudence Resulting in Damage to Property with
Physical Injuries, docketed as Crim. Case No. 684-M-89. Subsequently on 2 December 1991,
respondent filed a complaint for damages against petitioners Manliclic and PRBLI before the
RTC of Dagupan City, docketed as Civil Case No. D-10086. The criminal case was tried ahead
of the civil case. Among those who testified in the criminal case were respondent Calaunan,
Marcelo Mendoza and Fernando Ramos.

In the civil case (now before this Court), the parties admitted the following:

1. The parties agreed on the capacity of the parties to sue and be sued as well as the venue
and the identities of the vehicles involved;

2. The identity of the drivers and the fact that they are duly licensed;

3. The date and place of the vehicular collision;

4. The extent of the injuries suffered by plaintiff Modesto Calaunan and the existence of
the medical certificate;

5. That both vehicles were going towards the south; the private jeep being ahead of the
bus;
6. That the weather was fair and the road was well paved and straight, although there was
a ditch on the right side where the jeep fell into.3

When the civil case was heard, counsel for respondent prayed that the transcripts of stenographic
notes (TSNs)4of the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando
Ramos in the criminal case be received in evidence in the civil case in as much as these
witnesses are not available to testify in the civil case.

Francisco Tuliao testified that his brother-in-law, respondent Calaunan, left for abroad sometime
in November, 1989 and has not returned since then. Rogelio Ramos took the stand and said that
his brother, Fernando Ramos, left for Amman, Jordan, to work. Rosalia Mendoza testified that
her husband, Marcelo Mendoza, left their residence to look for a job. She narrated that she
thought her husband went to his hometown in Panique, Tarlac, when he did not return after one
month. She went to her husbands hometown to look for him but she was informed that he did
not go there.1awphil.net

The trial court subpoenaed the Clerk of Court of Branch 8, RTC, Malolos, Bulacan, the court
where Criminal Case No. 684-M-89 was tried, to bring the TSNs of the testimonies of
respondent Calaunan,5 Marcelo Mendoza6 and Fernando Ramos7 in said case, together with other
documentary evidence marked therein. Instead of the Branch Clerk of Court, it was Enrique
Santos Guevara, Court Interpreter, who appeared before the court and identified the TSNs of the
three afore-named witnesses and other pertinent documents he had brought.8 Counsel for
respondent wanted to mark other TSNs and documents from the said criminal case to be adopted
in the instant case, but since the same were not brought to the trial court, counsel for petitioners
compromised that said TSNs and documents could be offered by counsel for respondent as
rebuttal evidence.

For the defendants, petitioner Manliclic and bus conductor Oscar Buan testified. The TSN 9 of the
testimony of Donato Ganiban, investigator of the PRBLI, in Criminal Case No. 684-M-89 was
marked and allowed to be adopted in the civil case on the ground that he was already dead.

Respondent further marked, among other documents, as rebuttal evidence, the TSNs 10 of the
testimonies of Donato Ganiban, Oscar Buan and petitioner Manliclic in Criminal Case No. 684-
M-89.

The disagreement arises from the question: Who is to be held liable for the collision?

Respondent insists it was petitioner Manliclic who should be liable while the latter is resolute in
saying it was the former who caused the smash up.

The versions of the parties are summarized by the trial court as follows:

The parties differed only on the manner the collision between the two (2) vehicles took place.
According to the plaintiff and his driver, the jeep was cruising at the speed of 60 to 70 kilometers
per hour on the slow lane of the expressway when the Philippine Rabbit Bus overtook the jeep
and in the process of overtaking the jeep, the Philippine Rabbit Bus hit the rear of the jeep on the
left side. At the time the Philippine Rabbit Bus hit the jeep, it was about to overtake the jeep. In
other words, the Philippine Rabbit Bus was still at the back of the jeep when the jeep was hit.
Fernando Ramos corroborated the testimony of the plaintiff and Marcelo Mendoza. He said that
he was on another jeep following the Philippine Rabbit Bus and the jeep of plaintiff when the
incident took place. He said, the jeep of the plaintiff overtook them and the said jeep of the
plaintiff was followed by the Philippine Rabbit Bus which was running very fast. The bus also
overtook the jeep in which he was riding. After that, he heard a loud sound. He saw the jeep of
the plaintiff swerved to the right on a grassy portion of the road. The Philippine Rabbit Bus
stopped and they overtook the Philippine Rabbit Bus so that it could not moved (sic), meaning
they stopped in front of the Philippine Rabbit Bus. He testified that the jeep of plaintiff swerved
to the right because it was bumped by the Philippine Rabbit bus from behind.

Both Mauricio Manliclic and his driver, Oscar Buan admitted that the Philippine Rabbit Bus
bumped the jeep in question. However, they explained that when the Philippine Rabbit bus was
about to go to the left lane to overtake the jeep, the latter jeep swerved to the left because it was
to overtake another jeep in front of it. Such was their testimony before the RTC in Malolos in the
criminal case and before this Court in the instant case. [Thus, which of the two versions of the
manner how the collision took place was correct, would be determinative of who between the
two drivers was negligent in the operation of their respective vehicles.]11

Petitioner PRBLI maintained that it observed and exercised the diligence of a good father of a
family in the selection and supervision of its employee, specifically petitioner Manliclic.

On 22 July 1996, the trial court rendered its decision in favor of respondent Calaunan and against
petitioners Manliclic and PRBLI. The dispositive portion of its decision reads:

WHEREFORE, judgment is rendered in favor of the plaintiff and against the defendants ordering
the said defendants to pay plaintiff jointly and solidarily the amount of P40,838.00 as actual
damages for the towing as well as the repair and the materials used for the repair of the jeep in
question; P100,000.00 as moral damages and another P100,000.00 as exemplary damages
and P15,000.00 as attorneys fees, including appearance fees of the lawyer. In addition, the
defendants are also to pay costs.12

Petitioners appealed the decision via Notice of Appeal to the Court of Appeals.13

In a decision dated 28 September 2001, the Court of Appeals, finding no reversible error in the
decision of the trial court, affirmed it in all respects.14

Petitioners are now before us by way of petition for review assailing the decision of the Court of
Appeals. They assign as errors the following:

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE


TRIAL COURTS QUESTIONABLE ADMISSION IN EVIDENCE OF THE TSNs AND
OTHER DOCUMENTS PRESENTED IN THE CRIMINAL CASE.
II

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE


TRIAL COURTS RELIANCE ON THE VERSION OF THE RESPONDENT ON HOW THE
ACCIDENT SUPPOSEDLY OCCURRED.

III

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE


TRIAL COURTS UNFAIR DISREGARD OF HEREIN PETITIONER PRBLs DEFENSE OF
EXERCISE OF DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF ITS
EMPLOYEES.

IV

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE


TRIAL COURTS QUESTIONABLE AWARD OF DAMAGES AND ATTORNEYS FEE.

With the passing away of respondent Calaunan during the pendency of this appeal with this
Court, we granted the Motion for the Substitution of Respondent filed by his wife, Mrs. Precila
Zarate Vda. De Calaunan, and children, Virgilio Calaunan, Carmelita Honeycomb, Evelyn
Calaunan, Marko Calaunan and Liwayway Calaunan.15

In their Reply to respondents Comment, petitioners informed this Court of a Decision 16 of the
Court of Appeals acquitting petitioner Manliclic of the charge 17 of Reckless Imprudence
Resulting in Damage to Property with Physical Injuries attaching thereto a photocopy thereof.

On the first assigned error, petitioners argue that the TSNs containing the testimonies of
respondent Calaunan,18Marcelo Mendoza19 and Fernando Ramos20 should not be admitted in
evidence for failure of respondent to comply with the requisites of Section 47, Rule 130 of the
Rules of Court.

For Section 47, Rule 13021 to apply, the following requisites must be satisfied: (a) the witness is
dead or unable to testify; (b) his testimony or deposition was given in a former case or
proceeding, judicial or administrative, between the same parties or those representing the same
interests; (c) the former case involved the same subject as that in the present case, although on
different causes of action; (d) the issue testified to by the witness in the former trial is the same
issue involved in the present case; and (e) the adverse party had an opportunity to cross-examine
the witness in the former case.22

Admittedly, respondent failed to show the concurrence of all the requisites set forth by the Rules
for a testimony given in a former case or proceeding to be admissible as an exception to the
hearsay rule. Petitioner PRBLI, not being a party in Criminal Case No. 684-M-89, had no
opportunity to cross-examine the three witnesses in said case. The criminal case was filed
exclusively against petitioner Manliclic, petitioner PRBLIs employee. The cases dealing with
the subsidiary liability of employers uniformly declare that, strictly speaking, they are not parties
to the criminal cases instituted against their employees.23

Notwithstanding the fact that petitioner PRBLI was not a party in said criminal case, the
testimonies of the three witnesses are still admissible on the ground that petitioner PRBLI failed
to object on their admissibility.

It is elementary that an objection shall be made at the time when an alleged inadmissible
document is offered in evidence; otherwise, the objection shall be treated as waived, since the
right to object is merely a privilege which the party may waive. Thus, a failure to except to the
evidence because it does not conform to the statute is a waiver of the provisions of the law. Even
assuming ex gratia argumenti that these documents are inadmissible for being hearsay, but on
account of failure to object thereto, the same may be admitted and considered as sufficient to
prove the facts therein asserted.24 Hearsay evidence alone may be insufficient to establish a fact
in a suit but, when no objection is made thereto, it is, like any other evidence, to be considered
and given the importance it deserves.25

In the case at bar, petitioner PRBLI did not object to the TSNs containing the testimonies of
respondent Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case when the
same were offered in evidence in the trial court. In fact, the TSNs of the testimonies of Calaunan
and Mendoza were admitted by both petitioners.26Moreover, petitioner PRBLI even offered in
evidence the TSN containing the testimony of Donato Ganiban in the criminal case. If petitioner
PRBLI argues that the TSNs of the testimonies of plaintiffs witnesses in the criminal case
should not be admitted in the instant case, why then did it offer the TSN of the testimony of
Ganiban which was given in the criminal case? It appears that petitioner PRBLI wants to have its
cake and eat it too. It cannot argue that the TSNs of the testimonies of the witnesses of the
adverse party in the criminal case should not be admitted and at the same time insist that the TSN
of the testimony of the witness for the accused be admitted in its favor. To disallow admission in
evidence of the TSNs of the testimonies of Calaunan, Marcelo Mendoza and Fernando Ramos in
the criminal case and to admit the TSN of the testimony of Ganiban would be unfair.

We do not subscribe to petitioner PRBLIs argument that it will be denied due process when the
TSNs of the testimonies of Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal
case are to be admitted in the civil case. It is too late for petitioner PRBLI to raise denial of due
process in relation to Section 47, Rule 130 of the Rules of Court, as a ground for objecting to the
admissibility of the TSNs. For failure to object at the proper time, it waived its right to object
that the TSNs did not comply with Section 47.

In Mangio v. Court of Appeals,27 this Court, through Associate Justice Reynato S.


Puno,28 admitted in evidence a TSN of the testimony of a witness in another case despite therein
petitioners assertion that he would be denied due process. In admitting the TSN, the Court ruled
that the raising of denial of due process in relation to Section 47, Rule 130 of the Rules of Court,
as a ground for objecting to the admissibility of the TSN was belatedly done. In so doing, therein
petitioner waived his right to object based on said ground.
Petitioners contend that the documents in the criminal case should not have been admitted in the
instant civil case because Section 47 of Rule 130 refers only to "testimony or deposition." We
find such contention to be untenable. Though said section speaks only of testimony and
deposition, it does not mean that documents from a former case or proceeding cannot be
admitted. Said documents can be admitted they being part of the testimonies of witnesses that
have been admitted. Accordingly, they shall be given the same weight as that to which the
testimony may be entitled.29

On the second assigned error, petitioners contend that the version of petitioner Manliclic as to
how the accident occurred is more credible than respondents version. They anchor their
contention on the fact that petitioner Manliclic was acquitted by the Court of Appeals of the
charge of Reckless Imprudence Resulting in Damage to Property with Physical Injuries.

To be resolved by the Court is the effect of petitioner Manliclics acquittal in the civil case.

From the complaint, it can be gathered that the civil case for damages was one arising from, or
based on, quasi-delict.30 Petitioner Manliclic was sued for his negligence or reckless imprudence
in causing the collision, while petitioner PRBLI was sued for its failure to exercise the diligence
of a good father in the selection and supervision of its employees, particularly petitioner
Manliclic. The allegations read:

"4. That sometime on July 12, 1988 at around 6:20 A.M. plaintiff was on board the
above-described motor vehicle travelling at a moderate speed along the North Luzon
Expressway heading South towards Manila together with MARCELO MENDOZA, who
was then driving the same;

"5. That approximately at kilometer 40 of the North Luzon Express Way, the above-
described motor vehicle was suddenly bumped from behind by a Philippine Rabbit Bus
with Body No. 353 and with plate No. CVD 478 then being driven by one Mauricio
Manliclic of San Jose, Concepcion, Tarlac, who was then travelling recklessly at a very
fast speed and had apparently lost control of his vehicle;

"6. That as a result of the impact of the collision the above-described motor vehicle was
forced off the North Luzon Express Way towards the rightside where it fell on its drivers
side on a ditch, and that as a consequence, the above-described motor vehicle which
maybe valued at EIGHTY THOUSAND PESOS (P80,000) was rendered a total wreck as
shown by pictures to be presented during the pre-trial and trial of this case;

"7. That also as a result of said incident, plaintiff sustained bodily injuries which
compounded plaintiffs frail physical condition and required his hospitalization from July
12, 1988 up to and until July 22, 1988, copy of the medical certificate is hereto attached
as Annex "A" and made an integral part hereof;

"8. That the vehicular collision resulting in the total wreckage of the above-described
motor vehicle as well as bodily (sic) sustained by plaintiff, was solely due to the reckless
imprudence of the defendant driver Mauricio Manliclic who drove his Philippine Rabbit
Bus No. 353 at a fast speed without due regard or observance of existing traffic rules and
regulations;

"9. That defendant Philippine Rabbit Bus Line Corporation failed to exercise the
diligence of a good father of (sic) family in the selection and supervision of its drivers; x
x x"31

Can Manliclic still be held liable for the collision and be found negligent notwithstanding the
declaration of the Court of Appeals that there was an absence of negligence on his part?

In exonerating petitioner Manliclic in the criminal case, the Court of Appeals said:

To the following findings of the court a quo, to wit: that accused-appellant was negligent "when
the bus he was driving bumped the jeep from behind"; that "the proximate cause of the accident
was his having driven the bus at a great speed while closely following the jeep"; x x x

We do not agree.

The swerving of Calaunans jeep when it tried to overtake the vehicle in front of it was beyond
the control of accused-appellant.

xxxx

Absent evidence of negligence, therefore, accused-appellant cannot be held liable for Reckless
Imprudence Resulting in Damage to Property with Physical Injuries as defined in Article 365 of
the Revised Penal Code.32

From the foregoing declaration of the Court of Appeals, it appears that petitioner Manliclic was
acquitted not on reasonable doubt, but on the ground that he is not the author of the act
complained of which is based on Section 2(b) of Rule 111 of the Rules of Criminal Procedure
which reads:

(b) Extinction of the penal action does not carry with it extinction of the civil, unless the
extinction proceeds from a declaration in a final judgment that the fact from which the civil
might arise did not exist.

In spite of said ruling, petitioner Manliclic can still be held liable for the mishap. The afore-
quoted section applies only to a civil action arising from crime or ex delicto and not to a civil
action arising from quasi-delict or culpa aquiliana. The extinction of civil liability referred to in
Par. (e) of Section 3, Rule 111 [now Section 2 (b) of Rule 111], refers exclusively to civil liability
founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act
considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in
the criminal case that the criminal act charged has not happened or has not been committed by
the accused.33
A quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code with a
substantivity all its own, and individuality that is entirely apart and independent from a delict or
crime a distinction exists between the civil liability arising from a crime and the responsibility
for quasi-delicts or culpa extra-contractual. The same negligence causing damages may produce
civil liability arising from a crime under the Penal Code, or create an action for quasi-delicts or
culpa extra-contractual under the Civil Code. 34 It is now settled that acquittal of the accused,
even if based on a finding that he is not guilty, does not carry with it the extinction of the civil
liability based on quasi delict.35

In other words, if an accused is acquitted based on reasonable doubt on his guilt, his civil
liability arising from the crime may be proved by preponderance of evidence only. However, if
an accused is acquitted on the basis that he was not the author of the act or omission complained
of (or that there is declaration in a final judgment that the fact from which the civil might arise
did not exist), said acquittal closes the door to civil liability based on the crime or ex delicto. In
this second instance, there being no crime or delict to speak of, civil liability based thereon or ex
delicto is not possible. In this case, a civil action, if any, may be instituted on grounds other than
the delict complained of.

As regards civil liability arising from quasi-delict or culpa aquiliana, same will not be
extinguished by an acquittal, whether it be on ground of reasonable doubt or that accused was
not the author of the act or omission complained of (or that there is declaration in a final
judgment that the fact from which the civil liability might arise did not exist). The responsibility
arising from fault or negligence in a quasi-delict is entirely separate and distinct from the civil
liability arising from negligence under the Penal Code.36 An acquittal or conviction in the
criminal case is entirely irrelevant in the civil case37 based on quasi-delict or culpa aquiliana.

Petitioners ask us to give credence to their version of how the collision occurred and to disregard
that of respondents. Petitioners insist that while the PRBLI bus was in the process of overtaking
respondents jeep, the latter, without warning, suddenly swerved to the left (fast) lane in order to
overtake another jeep ahead of it, thus causing the collision.

As a general rule, questions of fact may not be raised in a petition for review. The factual
findings of the trial court, especially when affirmed by the appellate court, are binding and
conclusive on the Supreme Court.38 Not being a trier of facts, this Court will not allow a review
thereof unless:

(1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture; (2) the
inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is
based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the Court of
Appeals went beyond the issues of the case and its findings are contrary to the admissions of
both appellant and appellees; (7) the findings of fact of the Court of Appeals are contrary to those
of the trial court; (8) said findings of fact are conclusions without citation of specific evidence on
which they are based; (9) the facts set forth in the petition as well as in the petitioner's main and
reply briefs are not disputed by the respondents; and (10) the findings of fact of the Court of
Appeals are premised on the supposed absence of evidence and contradicted by the evidence on
record.39
After going over the evidence on record, we do not find any of the exceptions that would warrant
our departure from the general rule. We fully agree in the finding of the trial court, as affirmed by
the Court of Appeals, that it was petitioner Manliclic who was negligent in driving the PRBLI
bus which was the cause of the collision. In giving credence to the version of the respondent, the
trial court has this say:

x x x Thus, which of the two versions of the manner how the collision took place was correct,
would be determinative of who between the two drivers was negligent in the operation of their
respective vehicle.

In this regard, it should be noted that in the statement of Mauricio Manliclic (Exh. 15) given to
the Philippine Rabbit Investigator CV Cabading no mention was made by him about the fact that
the driver of the jeep was overtaking another jeep when the collision took place. The allegation
that another jeep was being overtaken by the jeep of Calaunan was testified to by him only in
Crim. Case No. 684-M-89 before the Regional Trial Court in Malolos, Bulacan and before this
Court. Evidently, it was a product of an afterthought on the part of Mauricio Manliclic so that he
could explain why he should not be held responsible for the incident. His attempt to veer away
from the truth was also apparent when it would be considered that in his statement given to the
Philippine Rabbit Investigator CV Cabading (Exh. 15), he alleged that the Philippine Rabbit Bus
bumped the jeep of Calaunan while the Philippine Rabbit Bus was behind the said jeep. In his
testimony before the Regional Trial Court in Malolos, Bulacan as well as in this Court, he
alleged that the Philippine Rabbit Bus was already on the left side of the jeep when the collision
took place. For this inconsistency between his statement and testimony, his explanation regarding
the manner of how the collision between the jeep and the bus took place should be taken with
caution. It might be true that in the statement of Oscar Buan given to the Philippine Rabbit
Investigator CV Cabading, it was mentioned by the former that the jeep of plaintiff was in the act
of overtaking another jeep when the collision between the latter jeep and the Philippine Rabbit
Bus took place. But the fact, however, that his statement was given on July 15, 1988, one day
after Mauricio Manliclic gave his statement should not escape attention. The one-day difference
between the giving of the two statements would be significant enough to entertain the possibility
of Oscar Buan having received legal advise before giving his statement. Apart from that, as
between his statement and the statement of Manliclic himself, the statement of the latter should
prevail. Besides, in his Affidavit of March 10, 1989, (Exh. 14), the unreliability of the statement
of Oscar Buan (Exh. 13) given to CV Cabading rear its "ugly head" when he did not mention in
said affidavit that the jeep of Calaunan was trying to overtake another jeep when the collision
between the jeep in question and the Philippine Rabbit bus took place.

xxxx

If one would believe the testimony of the defendant, Mauricio Manliclic, and his conductor,
Oscar Buan, that the Philippine Rabbit Bus was already somewhat parallel to the jeep when the
collision took place, the point of collision on the jeep should have been somewhat on the left side
thereof rather than on its rear. Furthermore, the jeep should have fallen on the road itself rather
than having been forced off the road. Useless, likewise to emphasize that the Philippine Rabbit
was running very fast as testified to by Ramos which was not controverted by the defendants.40
Having ruled that it was petitioner Manliclics negligence that caused the smash up, there arises
the juris tantum presumption that the employer is negligent, rebuttable only by proof of
observance of the diligence of a good father of a family. 41 Under Article 218042 of the New Civil
Code, when an injury is caused by the negligence of the employee, there instantly arises a
presumption of law that there was negligence on the part of the master or employer either in the
selection of the servant or employee, or in supervision over him after selection or both. The
liability of the employer under Article 2180 is direct and immediate; it is not conditioned upon
prior recourse against the negligent employee and a prior showing of the insolvency of such
employee. Therefore, it is incumbent upon the private respondents to prove that they exercised
the diligence of a good father of a family in the selection and supervision of their employee.43

In the case at bar, petitioner PRBLI maintains that it had shown that it exercised the required
diligence in the selection and supervision of its employees, particularly petitioner Manliclic. In
the matter of selection, it showed the screening process that petitioner Manliclic underwent
before he became a regular driver. As to the exercise of due diligence in the supervision of its
employees, it argues that presence of ready investigators (Ganiban and Cabading) is sufficient
proof that it exercised the required due diligence in the supervision of its employees.

In the selection of prospective employees, employers are required to examine them as to their
qualifications, experience and service records. In the supervision of employees, the employer
must formulate standard operating procedures, monitor their implementation and impose
disciplinary measures for the breach thereof. To fend off vicarious liability, employers must
submit concrete proof, including documentary evidence, that they complied with everything that
was incumbent on them.44

In Metro Manila Transit Corporation v. Court of Appeals,45 it was explained that:

Due diligence in the supervision of employees on the other hand, includes the formulation of
suitable rules and regulations for the guidance of employees and the issuance of proper
instructions intended for the protection of the public and persons with whom the employer has
relations through his or its employees and the imposition of necessary disciplinary measures
upon employees in case of breach or as may be warranted to ensure the performance of acts
indispensable to the business of and beneficial to their employer. To this, we add that actual
implementation and monitoring of consistent compliance with said rules should be the constant
concern of the employer, acting through dependable supervisors who should regularly report on
their supervisory functions.

In order that the defense of due diligence in the selection and supervision of employees may be
deemed sufficient and plausible, it is not enough to emptily invoke the existence of said company
guidelines and policies on hiring and supervision. As the negligence of the employee gives rise to
the presumption of negligence on the part of the employer, the latter has the burden of proving
that it has been diligent not only in the selection of employees but also in the actual supervision
of their work. The mere allegation of the existence of hiring procedures and supervisory policies,
without anything more, is decidedly not sufficient to overcome such presumption.
We emphatically reiterate our holding, as a warning to all employers, that "the formulation of
various company policies on safety without showing that they were being complied with is not
sufficient to exempt petitioner from liability arising from negligence of its employees. It is
incumbent upon petitioner to show that in recruiting and employing the erring driver the
recruitment procedures and company policies on efficiency and safety were followed." x x x.

The trial court found that petitioner PRBLI exercised the diligence of a good father of a family in
the selection but not in the supervision of its employees. It expounded as follows:

From the evidence of the defendants, it seems that the Philippine Rabbit Bus Lines has a very
good procedure of recruiting its driver as well as in the maintenance of its vehicles. There is no
evidence though that it is as good in the supervision of its personnel. There has been no iota of
evidence introduced by it that there are rules promulgated by the bus company regarding the safe
operation of its vehicle and in the way its driver should manage and operate the vehicles assigned
to them. There is no showing that somebody in the bus company has been employed to oversee
how its driver should behave while operating their vehicles without courting incidents similar to
the herein case. In regard to supervision, it is not difficult to observe that the Philippine Rabbit
Bus Lines, Inc. has been negligent as an employer and it should be made responsible for the acts
of its employees, particularly the driver involved in this case.

We agree. The presence of ready investigators after the occurrence of the accident is not enough
to exempt petitioner PRBLI from liability arising from the negligence of petitioner Manliclic.
Same does not comply with the guidelines set forth in the cases above-mentioned. The presence
of the investigators after the accident is not enough supervision. Regular supervision of
employees, that is, prior to any accident, should have been shown and established. This,
petitioner failed to do. The lack of supervision can further be seen by the fact that there is only
one set of manual containing the rules and regulations for all the drivers of PRBLI. 46 How then
can all the drivers of petitioner PRBLI know and be continually informed of the rules and
regulations when only one manual is being lent to all the drivers?

For failure to adduce proof that it exercised the diligence of a good father of a family in the
selection and supervision of its employees, petitioner PRBLI is held solidarily responsible for the
damages caused by petitioner Manliclics negligence.

We now go to the award of damages. The trial court correctly awarded the amount of P40,838.00
as actual damages representing the amount paid by respondent for the towing and repair of his
jeep.47 As regards the awards for moral and exemplary damages, same, under the circumstances,
must be modified. The P100,000.00 awarded by the trial court as moral damages must be
reduced to P50,000.00.48 Exemplary damages are imposed by way of example or correction for
the public good.49 The amount awarded by the trial court must, likewise, be lowered
to P50,000.00.50 The award of P15,000.00 for attorneys fees and expenses of litigation is in
order and authorized by law.51

WHEREFORE, premises considered, the instant petition for review is DENIED. The decision of
the Court of Appeals in CA-G.R. CV No. 55909 is AFFIRMED with the MODIFICATION that
(1) the award of moral damages shall be reduced to P50,000.00; and (2) the award of exemplary
damages shall be lowered to P50,000.00. Costs against petitioners.

OPINION RULE

[G.R. No. 150897. April 11, 2005]


TURADIO C. DOMINGO, petitioner, vs. JOSE C. DOMINGO, LEONORA DOMINGO-
CASTRO and her spouse JUANITO CASTRO, NUNCIA DOMINGO-BALABIS, ABELLA
DOMINGO VALENCERINA and the REGISTER OF DEEDS, QUEZON
CITY, respondents.

DECISION
QUISUMBING, J.:

This is a petition for review under Rule 45 of the Rules of Court of the Decision[1] dated
November 26, 2001 in CA-G.R. CV No. 59331, of the Court of Appeals, which affirmed the
Judgment dated January 6, 1998 of the Regional Trial Court (RTC) of Quezon City, Branch 90,
in Civil Case No. Q-89-3820. The trial court dismissed herein petitioners complaint in Civil Case
No. Q-89-3820 for declaration of the nullity of a deed of absolute sale over a house and lot
located at Project 4, Quezon City.[2]
Petitioner is the oldest of the five children of the late Bruno B. Domingo, formerly the
registered owner of the properties subject of this dispute. Private respondents Leonora Domingo-
Castro, Nuncia Domingo-Balabis, Abella Domingo, and Jose Domingo are petitioners siblings. A
family quarrel arose over the validity of the purported sale of the house and lot in Project 4 by
their father to private respondents.
The facts of this case, as synthesized from the findings of the trial court and affirmed by the
court a quo, are as follows:
Bruno B. Domingo, a widower and retired military man, was the registered owner, as shown
by Transfer Certificate of Title (TCT) No. 128297, issued by the Register of Deeds of Quezon
City, of a house and lot with an area of 269.50 square meters, located at 34 H. Honrubia St.,
Project 4, Quezon City.
In December 1970, Bruno needed money for his medical expenses, so he sold said
properties. On December 28, 1970, he signed a Deed of Absolute Sale conveying the
abovementioned properties to his children Leonora, Nuncia, Abella, and Jose for a consideration
of P10,000. The deed was witnessed by Concesa Ibaez and Linda Noroa and notarized by Atty.
Rosauro V. Noroa.[3]
Jose then brought the deed to the Register of Deeds of Quezon City, as a result of which
TCT No. 128297 was cancelled and a new title, TCT No. 247069 was issued in the names of the
vendees.
Bruno Domingo died on April 6, 1975.[4]
Sometime in 1981 petitioner, who by then was residing on the disputed property, received a
notice from the Quezon City Hall declaring him a squatter and directing him to demolish his
shanty on the lot. Petitioner found out that the planned demolition was at the instance of his
brother, Jose and sister, Leonora.
Sometime in 1986, petitioner learned of the existence of the assailed Deed of Absolute Sale
when an ejectment suit was filed against him. Upon advice of his counsel, he had the then
Philippine Constabulary-Integrated National Police (PC-INP, now Philippine National Police or
PNP) Crime Laboratory in Camp Crame, Quezon City compare the signature of Bruno on the
said deed against specimen signatures of his father. As a result, the police issued him Questioned
Document Report No. 192-86 to the effect that the questioned signature and the standard
signatures were written by two different persons. Another Questioned Document Report, No.
007-89, subsequently issued by the police came up with the same conclusion.
Petitioner filed a complaint for forgery, falsification by notary public, and falsification by
private individuals against his siblings and Atty. Noroa before the public prosecutor of Quezon
City. But after it conducted an examination of the questioned documents, the National Bureau of
Investigation (NBI) came up with the conclusion that the questioned signature and the specimen
signatures were written by one and the same person, Bruno B. Domingo. The public prosecutor
dismissed the criminal complaint on June 22, 1989. Petitioner appealed the order of dismissal to
the Department of Justice (DOJ) but the latter affirmed the prosecutors action. A similar criminal
complaint filed by petitioner before the public prosecutor of Manila was likewise dismissed.
On October 23, 1989, petitioner instituted Civil Case No. Q-89-3820 before the RTC of
Quezon City for the declaration of the nullity of the Deed of Sale, reconveyance of the disputed
property, and cancellation of TCT No. 247069. Petitioner alleged that Bruno B. Domingos
signature on the deed in question was forged. He likewise averred that the sale was done in
violation of the restriction annotated at the back of Brunos title, to the effect that prior approval
of the Peoples Homesite and Housing Corporation (PHHC)[5] was needed to effect any sale.
In their answer, private respondents relied heavily on the findings of the NBI that Bruno B.
Domingos signature on the deed was genuine, and hence, the Deed of Absolute Sale was not a
forgery.
On January 6, 1998, the trial court disposed of Civil Case No. Q-89-3820 in this wise:

IN VIEW OF THE FOREGOING, judgment is rendered DISMISSING the complaint in this


case.

All other claim/s including counterclaim/s are dismissed for lack of legal and/or factual basis.

SO ORDERED.[6]

In dismissing the complaint, the trial court disregarded the conflicting reports of the police
crime laboratory and the NBI for failure of the offering party or parties to show that the standard
or specimen signatures were indeed those of Bruno B. Domingo. [7] The trial court likewise found
that petitioner failed to substantiate his claim that prior PHHC approval was needed before a
valid sale of the properties in dispute could be made.
Dissatisfied, petitioner elevated the case to the Court of Appeals, which docketed his appeal
as CA-G.R. CV No. 59331. He contended that the lower court erred in ruling that the vendors
signature on the Deed of Absolute Sale of December 28, 1970 was not a forgery.
On January 11, 2000, petitioner filed a motion for new trial with the appellate court on the
ground of newly discovered evidence consisting of a letter of Bruno B. Domingo dated February
1, 1972 purportedly requesting from PHHC permission to mortgage the house and lot in Project
4, Quezon City. Also on March 22, 2000, petitioner filed a supplemental motion for new trial
with the Court of Appeals, attaching the letter dated February 2, 1972, of PHHC to Bruno B.
Domingo, granting the latters request on July 6, 2000. Petitioner moved that the appellate court
grant him authority to put up a sari-sari store on a portion of the disputed lot, allegedly to
augment his meager pension.
In its resolution dated December 29, 2000, the appellate court denied all foregoing motions.
[8]
In denying the motions for new trial, the appellate court noted that there was no showing
whatsoever that the letter-request could not have been discovered and produced prior to the trial
below by the exercise of reasonable diligence andis of such a character as would probably
change the result.[9] It likewise pointed out that both the motion for new trial and the
supplemental motion for new trial were not accompanied by affidavits showing the facts
constituting the grounds therefor and the newly discovered evidence.[10]
On November 26, 2001, the appellate court decided CA-G.R. CV No. 59331 as follows:

WHEREFORE, the appeal is DISMISSED and the appealed decision is AFFIRMED en toto.

SO ORDERED.[11]

Hence, the instant petition for review interposed by petitioner grounded on the following
reasons for allowance of writ:

The declaration that the Deed of Absolute Sale dated December 28, 1970 was executed by Bruno
B. Domingo over the properties covered by TCT No. 128297, is not valid, proper and legal,
because said Deed of Absolute Sale was not executed by said Bruno B. Domingo, as per findings
of the [PC-INP] in its laboratory examination, and that the said Deed of Absolute Sale was in
violation of the prohibition annotated at the back of said title, and that the sale was done within
the prohibited period of five (5) years. Moreover, said Bruno B. Domingo should [not have]
requested for authority to mortgage the property in question from the Peoples Homesite [and]
Housing Authority on February 1, 1972, if he really sold the same in 1970.[12]

The crucial issue for our resolution is: Did the court a quo err when it held that the trial court
correctly applied the rules of evidence in disregarding the conflicting PC-INP and NBI
questioned document reports?
Before this Court, petitioner insists that both the trial court and the appellate court should
have considered the PC-INP questioned document report as reliable, without showing any cogent
reason or sufficient arguments why said report should be deemed reliable.
Under the Rules of Court, the genuineness of a handwriting may be proved by the following:
(1) A witness who actually saw the person writing the instrument;[13]
(2) A witness familiar with such handwriting and who can give his opinion thereon,
[14]
such opinion being an exception to the opinion rule;[15]
(3) A comparison by the court of the questioned handwriting and admitted genuine
specimen thereof;[16] and
(4) Expert evidence.[17]
The law makes no preference, much less distinction among and between the different means
stated above in proving the handwriting of a person.[18] It is likewise clear from the foregoing that
courts are not bound to give probative value or evidentiary value to the opinions of handwriting
experts, as resort to handwriting experts is not mandatory.[19]
In finding that the trial court correctly disregarded the PC-INP Crime Laboratory questioned
document report, the appellate court observed:

The PC-INP used as standards of comparison the alleged signatures of Bruno in two documents,
namely: letter to the Bureau of Treasury dated April 1, 1958 and Republic Bank Check No.
414356 dated November 2, 1962. These documents precede by more than eight years the
questioned Deed which was executed on December 30, 1970. This circumstance makes the PC-
INPs finding questionable.[20]

We find no reason to disagree with the Court of Appeals. The passage of time and a persons
increase in age may have decisive influence in his handwriting characteristics. Thus, in order to
bring about an accurate comparison and analysis, the standards of comparison must be as close
as possible in point of time to the suspected signature. [21] As correctly found by the appellate
court, the examination conducted by the PC-INP Crime Laboratory did not conform to the
foregoing standard. Recall that in the case, the signatures analyzed by the police experts were on
documents executed several years apart. A signature affixed in 1958 or in 1962 may involve
characteristics different from those borne by a signature affixed in 1970. Hence, neither the trial
court nor the appellate court may be faulted for refusing to place any weight whatsoever on the
PC-INP questioned document report.
We likewise sustain the trial court and the Court of Appeals concerning the testimonies of
Clerma Domingo, Leonora, and Jose to the effect that they saw Bruno affixing his signature to
the questioned deed.[22] They were unrebutted. Genuineness of a handwriting may be proven,
under Rule 132, Section 22, by anyone who actually saw the person write or affix his signature
on a document. Petitioner has shown no reason why the ruling made by the trial court on the
credibility of the respondents witnesses below should be disturbed by us. Findings by the trial
court as to the credibility of witnesses are accorded the greatest respect, and even finality by
appellate courts, since the former is in a better position to observe their demeanor as well as their
deportment and manner of testifying during the trial.[23]
Finally, the questioned Deed of Absolute Sale in the present case is a notarized document.
Being a public document, it is prima facie evidence of the facts therein expressed.[24] It has the
presumption of regularity in its favor and to contradict all these, evidence must be clear,
convincing, and more than merely preponderant.[25] Petitioner has failed to show that such
contradictory evidence exists in this case.
WHEREFORE, the instant petition is DENIED. The Decision of the Court of Appeals
dated November 26, 2001 in CA-G.R. CV No. 59331 is AFFIRMED. Costs against petitioner.

CHARACTER EVIDENCE

[G.R. No. 139070. May 29, 2002]


PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOEL LEE, accused-appellant.
PUNO, J.:
On automatic review is the decision of the Regional Trial Court, Caloocan City, Branch 127
in Criminal Case No. C-54012 (98), which sentenced accused-appellant Noel Lee to death for the
murder of Joseph Marquez.
On May 27, 1998, an Information was filed against accused-appellant charging him with the
crime of murder committed as follows:

That on or about the 29th day of September 1996, in Kalookan City, Metro Manila, and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery
and evident premeditation did then and there willfully, unlawfully and feloniously attack and
shoot one JOSEPH MARQUEZ y LAGANDI, with the use of a handgun, thereby inflicting upon
the latter serious physical injuries, which ultimately caused the victims death.

CONTRARY TO LAW.[1]

Accused-appellant pleaded not guilty to the charge. At the trial, the prosecution presented
the following witnesses: (a) Herminia Marquez, the mother of the victim; (b) Dr. Darwin Corpuz,
a resident doctor at the Manila Caloocan University (MCU) Hospital; (c) PO2 Rodelio Ortiz, a
police officer who examined the crime scene; and (d) Dr. Rosaline Cosidon, a medico-legal
officer of the Philippine National Police (PNP) Crime Laboratory.
The prosecution established the following facts: At 9:00 in the evening of September 29,
1996, Herminia Marquez, 46 years of age and her son, Joseph, 26 years of age, were in the living
room of their house located at No. 173 General Evangelista St., Bagong Barrio, Caloocan City.
The living room was brightly lit by a circular fluorescent lamp in the ceiling. Outside their house
was an alley leading to General Evangelista Street. The alley was bright and bustling with people
and activity. There were women sewing garments on one side and on the other was a store
catering to customers. In their living room, mother and son were watching a basketball game on
television. Herminia was seated on an armchair and the television set was to her left. Across her,
Joseph sat on a sofa against the wall and window of their house and the television was to his
right. Herminia looked away from the game and casually glanced at her son. To her complete
surprise, she saw a hand holding a gun coming out of the open window behind Joseph. She
looked up and saw accused-appellant Noel Lee peering through the window and holding the gun
aimed at Joseph. Before she could warn him, Joseph turned his body towards the window, and
simultaneously, appellant fired his gun hitting Josephs head. Joseph slumped on the sofa.
Herminia stood up but could not move as accused-appellant fired a second shot at Joseph and
three (3) shots more two hit the sofa and one hit the cement floor. When no more shots were
fired, Herminia ran to the window and saw accused-appellant, in a blue sando, flee towards the
direction of his house. Herminia turned to her son, dragged his body to the door and shouted for
help. With the aid of her neighbor and kumpare, Herminia brought Joseph to the MCU Hospital
where he later died.
Police investigators arrived at the hospital and inquired about the shooting incident.
Herminia told them that her son was shot by Noel Lee. From the hospital, Herminia went to the
St. Martin Funeral Homes where Josephs body was brought. Thereafter, she proceeded to the
Caloocan City Police Headquarters where she gave her sworn statement about the shooting.[2]
Upon request of the Caloocan City police, a post-mortem examination was made on Josephs
body. Dr. Rosaline O. Cosidon, a medico-legal officer of the PNP Crime Laboratory Service
made the following findings:

FINDINGS:

Fairly developed, fairly nourished male cadaver in rigor mortis with postmortem lividity at the
dependent portions of the body. Conjunctiva are pale, Lips and nailbeds are cyanotic. A needle
puncture mark was noted at the dorsum of the right hand.

HEAD:

(1) Gunshot wound, frontal region, measuring 0.5 x 0.5 cm, just right of the anterior midline, 161
cm from heel, with an upbraded collar, measuring 0.2 cm superiorly and laterally, 0.1 cm
medially and inferiorly directed posteriorwards, downwards and to the left fracturing the frontal
bone, lacerating the brain. A deformed slug was recovered embedded at the left cerebral
hemisphere of the brain.

(2) Gunshot wound, occipital region, measuring 0.5 x 0.5 cm, 2 cm left of the posterior midline,
162 cm from heel, with a uniform 0.2 cm upbraded collar, directed slightly anteriorwards,
downwards and lateralwards, fracturing the occipital bone and lacerating the brain. A deformed
slug was recovered at the left auricular region.

(3) Contusion, right eyebrow, measuring 3 x 2 cm, 3 cm from the anterior midline.

There are subdural and subarachnoidal hemorrhages.

Stomach is full of partially digested food particles and positive for alcoholic odor.

CONCLUSION:

Cause of death is intracranial hemorrhage as a result of gunshot wounds. Head.[3]

At the time of his death, Joseph was employed as driver by the Santos Enterprises Freight
Services earning P250.00 a day.[4] He left behind two children by his live-in partner who are now
under his mothers care and support. Herminia spent approximately P90,000.00 for the funeral
and burial expenses of her deceased son. The expenses were supported by receipts [5] and
admitted by the defense.[6]
Herminia filed a complaint for murder against accused-appellant. The complaint, docketed
as I.S. No. 96-3246, was however dismissed for insufficiency of evidence in a Resolution dated
December 4, 1996 by Prosecutor Dionisio C. Sison with the approval of Caloocan City
Prosecutor Rosauro J. Silverio.[7] Herminia appealed the order of dismissal to the Secretary of
Justice. In a letter dated March 16, 1998, Secretary of Justice Silvestre Bello III reversed and set
aside the appealed Resolution and ordered the City Prosecutor of Caloocan City to file an
information for murder against the accused-appellant.[8]Accordingly, the Information was filed
and a warrant of arrest issued against accused-appellant on June 8, 1998. On October 16, 1998,
appellant was arrested by agents of the National Bureau of Investigation (NBI).
Appellant is a well-known figure in their neighborhood and has several criminal cases
pending against him in Caloocan City. He was charged with frustrated homicide in 1984 and
attempted murder in 1989.[9]
For his defense, accused-appellant presented two witnesses: (a) Orlando Bermudez, a
neighbor; and (b) himself. He denies the killing of Joseph Marquez. He claims that from 8:00 to
10:00 in the evening of September 29, 1996, he was in his house located at 317 M. de Castro St.,
Bagong Barrio, Caloocan City. He was having some drinks with his neighbor, Orlando
Bermudez, and his driver, Nelson Columba. They were enjoying themselves, drinking and
singing with the videoke. Also in the house were his wife, children and household help. At 10:00
P.M., Orlando and Nelson went home and accused-appellant went to sleep. He woke up at 5:30
in the morning of the following day and learned that Joseph Marquez, a neighbor, was shot to
death. To appellants surprise, he was tagged as Josephs killer.[10]
Accused-appellant had known the victim since childhood and their houses are only two
blocks apart. Joseph had a bad reputation in their neighborhood as a thief and drug addict. Six
days before his death, on September 23, 1996, accused-appellant caught Joseph inside his car
trying to steal his car stereo. Joseph scampered away. As proof of the victims bad reputation,
appellant presented a letter handwritten by his mother, Herminia, addressed to Mayor Reynaldo
Malonzo of Caloocan City, and sent through PO3 Willy Tuazon and his wife, Baby Ruth. In the
letter, Herminia was surrendering her son to the Mayor for rehabilitation because he was hooked
on shabu, a prohibited drug, and was a thief. Herminia was scared that eventually Joseph might
not just steal but kill her and everyone in their household because of his drug habit.[11]
The accused-appellant likewise explained the two criminal cases filed against him in 1984
and 1989. The information for attempted murder was dismissed as a result of the victims
desistance while in the frustrated homicide case, the real assailant appeared and admitted his
crime.[12]
In a decision dated June 22, 1999, the trial court found accused-appellant guilty and
sentenced him to the penalty of death. The court also ordered appellant to pay the heirs of the
victim civil indemnity of P50,000.00, actual damages of P90,000.00, moral damages
of P60,000.00 and exemplary damages of P50,000.00 and the costs of the suit. Thus:

WHEREFORE, foregoing premises considered and the prosecution having established beyond
an iota of doubt the guilt of accused NOEL LEE of the crime of Murder as defined and penalized
under Article 248 of the Revised Penal Code as amended by R.A. 7659, this court, in view of the
presence of the generic aggravating circumstance of dwelling and without any mitigating
circumstance to offset it, hereby sentences the said accused to suffer the extreme penalty of
DEATH; to indemnify the legal heirs of the deceased civil indemnity of P50,000.00; to pay the
private complainant actual damages of P90,000.00 plus moral and exemplary damages
of P60,000.00 and P50,000.00, respectively; and to pay the costs.

Consistent with the provisions of Section 10, Rule 122 of the 1985 Rules on Criminal Procedure,
as amended, let the entire records hereof including the complete transcripts of stenographic notes
be forwarded to the Supreme Court for automatic review and judgment, within the reglementary
period set forth in said section.

SO ORDERED.[13]

Hence, this appeal. Before us, accused-appellant assigns the following errors:
I

THE COURT A QUO GRAVELY ERRED IN RELYING HEAVILY ON THE SELF-


SERVING AND CONTRADICTORY TESTIMONY OF THE MOTHER OF THE
VICTIM, HERMINIA MARQUEZ, WHOSE NARRATION OF THE CHAIN OF
OCCURRENCE THAT LED TO THE DEATH OF JOSEPH MARQUEZ WAS
BEYOND BELIEF.

II

THE TRIAL COURT GRAVELY ERRED IN HASTILY TAGGING THE ACCUSED-


APPELLANT, NOEL LEE, AS THE ASSAILANT BASED MERELY ON THE
BIASED DECLARATION OF THE MOTHER WITHOUT CONSIDERING THE
SHADY CHARACTER OF THE VICTIM AGAINST WHOM OTHERS MIGHT
HAVE AN AXE TO GRIND.

III

THE TRIAL COURT GRAVELY ERRED IN ITS DECISION OF FINDING GUILT


ON THE ACCUSED-APPELLANT WITHOUT EVEN RAISING A FINGER IN
SATISFYING ITSELF THAT THE PHYSICAL EVIDENCE OBTAINING IN 1996
ARE STILL PREVAILING IN 1999 WHEN THE CASE WAS TRIED ON THE
MERITS SO AS TO ESTABLISH THE IDENTITY OF THE ASSAILANT BEYOND
DOUBT.

IV

THE COURT A QUO GRIEVOUSLY ERRED IN TREATING WITH LENIENCY


HERMINIA MARQUEZS VACILLATION WITH RESPECT TO THE BUTAS NG
BINTANA AS CONTAINED IN HER SWORN STATEMENT AND THE BUKAS NA
BINTANA AS PER HER REPAIRED TESTIMONYA SERIOUS PROCEDURAL
ANOMALY THAT ASSAULTED THE SUBSTANTIAL RIGHT OF THE ACCUSED-
APPELLANT.
V

THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE EXTREME PENALTY


OF DEATH UPON ACCUSED-APPELLANT DESPITE OBVIOUS REASONABLE
DOUBT.[14]

The assigned errors principally involve the issue of the credibility of Herminia Marquez, the
lone prosecution eyewitness. Accused-appellant claims that the trial court should not have
accepted Herminias testimony because it is biased, incredible and inconsistent.
Herminias testimony on direct examination is as follows:
xxx
ATTY. OPENA: Now who was your companion, if any, at that time?
WITNESS: Me and my son, Joseph Marquez, and the wife upstairs putting the baby to sleep.
Q: What were you and your son, Joseph, doing then?
A: Watching TV.
Q: Will you please tell us your position, I am referring to you and your son in relation to the
television set where you are watching the show.
A: We were facing each other while watching television which is on the left side.
Q: Will you please tell us where exactly was your son, Joseph, seated while watching
television?
A: At the end most of the sofa.
Q: The sofa you are referring to is the one near the window.
A: Yes, sir. Dikit lang po.
Q: Will you give us an idea or describe to us that window which you mentioned awhile ago?
A: Transparent glass.
Q: How high is it from the ground?
COURT: Which one?
ATTY. OPENA: The window glass?
WITNESS: About three feet from the ground.
ATTY. OPENA TO WITNESS:
Q: You said three feet. What do you mean by that? Is that window elevated from the ground?
A: The same height as this court window which is about three feet from the ground, and from
one another about four by four window [sic], three feet by the ground.
Q: Now, you demonstrated by showing a portion, you mean to tell us that window was
mounted on a concrete or hollow block?
A: Hollow block, po.
Q: How high is that hollow block that you were referring to?
COURT: She said three feet.
ATTY. OPENA TO WITNESS:
Q: Which is higher, that sofa which is posted near the window or the hollow block?
A: Hollow block.
Q: By how many inches or feet?
A: About half a foot.
Q: You said the sofa was long. Will you please tell us in what portion of your sofa your son
Joseph was seated?
ATTY. VARGAS: Already answered, your Honor. She said dulo, end of the sofa.
COURT: Sustained.
ATTY. OPENA TO WITNESS:
Q: When you said end of sofa which portion, the left side or the right side?
A: The right.
Q: Now, while you and your son were watching television, was there anything unusual that
transpired?
A: Yes, sir.
Q: Tell us what was that all about.
A: Mayroon po akong napansin na kamay na nakatutok sa anak ko. Nakita ko po si Noel Lee
na nakatayo sa may bintana.
Q: What do you mean by the word kamay?
A: Hawak hawak po niya iyong baril, nakatutok po sa anak ko.
Q: What did you do with what you saw?
A: Nakita ko pong gumanoon siya, sumilip na ganoon, sabay putok ng baril. Tumingin po siya
sa may bintana, ganoon po, sabay putok ng baril.
COURT: You said he turned the head. Who turned the head? Sino ang gumanyan sa sinabi
mo?
A: (Witness demonstrating that the victim peeped through the window).
Q: And then?
A: At the same time the firing of the gun [sic] and I saw my son slumped.
ATTY. OPENA TO THE WITNESS:
Q: And after your son was slumped, what did you do?
A: I went to my son and carried him to take him to the hospital.
Q: How many shots did you hear?
A: Five shots.
Q: That was prior to helping your son?
A: Yes, sir.
Q: And how many times was your son hit?
ATTY. VARGAS:
Q: Objection, your honor. It was already answered. Because according to her it was five shots.
COURT: It does not follow that the victim was hit. So, the witness may answer.
WITNESS: Twice, Two shots hit my son, two shots on the sofa and one shot on the cement.
COURT: How about the other one?
A: Doon po sa semento.
ATTY. OPENA TO WITNESS:
Q: And who fired these shots?
A: Noel Lee.
Q: That Noel Lee that you are referring to, will you please point at him if he is around?
A: (Witness going down the witness stand and pointing to accused Noel Lee).
Q: How do you know that it was Noel Lee who shot your son?
A: Kitang kita ko po. Magkatapat po kami.
Q: Will you please describe to us?
A: Maliwanag po kasi ang ilaw. Maliwanag din po sa labas, may nananahi doon. Nandoon po
kaming dalawa ng anak ko nanonood ng television. (Witness sobbing in tears).
Napakasakit sa akin. Hindi ko man lang naipagtanggol and anak ko.
COURT: She was emotionally upset.
ATTY. OPENA: Ill just make it on record that the witness was emotionally upset. May I ask if
she can still testify?
xxxxxxxxx
WITNESS: Masakit lang po sa loob ko ang pagkawala ng anak ko.
ATTY. OPENA TO WITNESS:
Q: You saw that the light was bright. Where were those lights coming from?
A: Maliwanag po sa loob ng bahay namin dahil may fluorescent na bilog. Saka sa labas may
nananahi po doon sa alley katapat ng bahay namin. At saka po doon sa kabila, tindahan
po tapat po namin, kaya maliwanag ang ilaw.
Q: After trying to help your son, what happened?
A: I was able to hold on to my son up to the door. Upon reaching the door, I asked the help of
my kumpare.
Q: Meanwhile, what did the accused do after shooting five times?
A: He ran to the alley to go home.
Q: Now you said he ran to an alley towards the direction of their house. Do you know where
his house is located?
A: Yes, sir. 142 M. de Castro Street, Bagong Barrio, Caloocan City.
Q: How far is that from your residence?
A: More or less 150 to 200 meters.
Q: Where did you finally bring your son?
A: MCU.
Q: When you say MCU, are you referring to MCU Hospital?
A: Yes, sir. MCU Hospital.
Q: At MCU, life-saving devices were attached to my son. Later, after reaching 11:00, he died.
COURT: 11:00 P.M.?
A: Yes, maam.
Q: Same day?
A: Yes, maam.
x x x x x x x x x.[15]
Herminias testimony is positive, clear and straightforward. She did not waver in her
narration of the shooting incident, neither did she waffle in recounting her sons death. She was
subjected by defense counsel to rigorous cross and re-cross examinations and yet she stuck to her
testimony given in the direct examination. She readily gave specific details of the crime
scene, e.g., the physical arrangement of the sofa and the television set, the height of the sofa, the
wall and the window, because the crime happened right in her own living room. She explained
that she was unable to warn Joseph because she was shocked by the sight of accused-appellant
aiming a gun at her son. The tragic events unfolded so fast and by the time she took hold of
herself, her son had been shot dead.
A sons death in his mothers house and in her presence is a painful and agonizing experience
that is not easy for a mother to forget, even with the passing of time. Herminias testimony shows
that she was living with a conscience that haunted and blamed her own self for failing to protect
her son or, at least, save him from death.
Nonetheless, accused-appellant points out inconsistencies in the eyewitness testimony. In her
affidavit of September 30, 1996 given before PO2 Rodelio Ortiz, Herminia declared that while
she and Joseph were watching television, she saw a hand holding a gun pointed at her son. The
hand and the gun came out of a hole in the window, i.e., butas ng bintana. On cross-examination,
Herminia stated that she saw a hand holding a gun in the open window, i.e., bukas na bintana.
According to accused-appellant, this inconsistency is a serious flaw which cannot be repaired by
her statement on the witness stand.
The inconsistency between her affidavit and her testimony was satisfactorily explained by
Herminia on cross-examination:
xxxxxxxxx
ATTY. VARGAS
Q: You said that you saw a hand from a hole in the window with a gun, is that correct?
A: Bukas na bintana. Not from a hole but from an open window.
Q: Madam witness, do you recall having executed a sworn statement before the police, right
after the shooting of your son?
A: Yes, sir.
Q: I will read to you paragraph 8 of your statement which is already marked as your Exhibit A
in which is stated as follows: Isalaysay mo nga sa akin ang buong pangyayari? Answer:
Sa mga oras ng alas 9:00 ng gabi petsa 29 ng Setyembre 1996 habang ang aking anak ay
nanonood ng palabas sa TV ng basketball malapit sa kanyang bintana sa labas at ako
naman ay nakaupo sa sopa katapat ko siya subalit medyo malayo ng konti sa kanya,
mayroon akong napansin na kamay na may hawak ng baril at nakaumang sa aking anak
sa may butas ng bintana, do you recall that?
A: Opo.
Q: What you saw from that butas is a hand with a gun, is that correct?
A: Opo.
Q: Madam witness, your window is just like the window of this courtroom?
A: Yes, sir.
Q: In your testimony, you did not mention what part of the window was that hand holding a
gun that you saw? Is that correct?
A: Hindi naman po butas, kundi bukas na bintana. Nakabukas iyong bintana namin.
Q: So in your sinumpaang salaysay in the statement that you said butas na bintana is not
correct?
A: Mali ho kasi, hindi ko na napansin iyan, kasi ito napansin ko, kinorect ko.
COURT: You show to the witness. There, butas na bintana.
WITNESS: Mali po ang letra, Bukas hindi butas.
x x x x x x x x x.[16]
Herminia corrected her affidavit by saying in open court that she saw the hand and the gun
coming out of the open window, not from a hole in the window. In her direct testimony,
Herminia presented a photograph of her living room just the way it looked from her side on the
night of the shooting.[17] The sofa on which Joseph was seated is against the wall, with the
window a few inches above the wall. The window is made of transparent glass with six (6)
vertical glass panes pushing outwards. The entire window is enclosed by iron grills with big
spaces in between the grills. The living room is well-lit and the area outside the house is also lit
by a fluorescent lamp.
Between Herminias testimony in open court and her sworn statement, any inconsistency
therein does not necessarily discredit the witness. [18] Affidavits are generally considered inferior
to open court declarations because affidavits are taken ex-parte and are almost always incomplete
and inaccurate.[19] Oftentimes, they are executed when the affiants mental faculties are not in
such a state as to afford him a fair opportunity of narrating in full the incident that transpired.
[20]
They are usually not prepared by the affiant himself but by another who suggests words to the
affiant, or worse, uses his own language in taking the affiants statements.[21]
Accused-appellant argues that since Herminia declared in her affidavit that she saw a hand
coming from the window, she did not see the person holding the gun, let alone who fired it. [22] A
complete reading of the pertinent portion of Herminias affidavit will refute appellants
arguments, viz:

xxxxxxxxx

T- Isalaysay mo nga sa akin and buong pangyayari?

S Sa mga oras ng alas 9:00 ng gabi, petsa 29 ng Setyembre 1996, habang ang aking anak ay
nanonood ng palabas sa T.V. ng basketball malapit sa aming bintanan [sic] sa labas, at ako naman
ay nakaupo sa sopa katapat ko siya subalit medyo malayo ng kaunti sa kanya, mayroon akong
napansin akong [sic] kamay na hawak-hawak na baril na nakaumang sa aking anak sa butas na
bintana na nakaawang, maya-maya ng kaunti ay nakarinig na ako ng putok at ang unang putok
ay tumama sa ulo ng aking anak kaya napayuko siya, pagkatapos noon ay sunod-sunod na ang
putok na narinig ko, mga limang beses, kaya kitang kita ko siya ng lapitan ko ang aking anak
at nakita ko itong si NOEL LEE, pagkatapos noon ay tumakbo na ito papalabas ng iskinita
papunta sa kanila.

x x x x x x x x x.[23]

It is thus clear that when Herminia approached her son, she saw that the person firing the
gun was accused-appellant. Appellant continued firing and then ran away towards the direction
of his house. This account is not inconsistent with the witness testimony in open court.
Herminias declarations are based on her actual account of the commission of the crime. She
had no ill motive to accuse appellant of killing her son, or at least, testify falsely against
appellant. Accused-appellant himself admitted that he and Herminia have been neighbors for
years and have known each other for a long time. Appellant is engaged in the business of buying
and selling scrap plastic and Herminia used to work for him as an agent. [24] She would not have
pointed to appellant if not for the fact that it was him whom she saw shoot her son.
Indeed, the Solicitor General points out that it was appellant himself who had strong motive
to harm or kill Joseph.[25] Appellant revealed that six days before the shooting, he caught Joseph
inside his car attempting to steal the stereo. The alibi that appellant was drinking with his friends
that fateful night of September 29, 1996 does not rule out the possibility that he could have been
at the scene of the crime at the time of its commission. The victims house is merely two blocks
away from appellants house and could be reached in several minutes.[26]
The lone eyewitness account of the killing finds support in the medico-legal report. Dr.
Rosalie Cosidon found that the deceased sustained two gunshot woundsone to the right of the
forehead, and the other, to the left side of the back of the victims head. [27] Two slugs were
recovered from the victims head. Judging from the location and number of wounds sustained, Dr.
Cosidon theorized that the assailant could have been more than two feet away from the victim.
[28]
Both gunshot wounds were serious and fatal.[29]
Accused-appellant makes capital of Josephs bad reputation in their community. He alleges
that the victims drug habit led him to commit other crimes and he may have been shot by any of
the persons from whom he had stolen. [30] As proof of Josephs bad character, appellant presented
Herminias letter to Mayor Malonzo seeking his assistance for Josephs rehabilitation from drugs.
On rebuttal, Herminia admitted that she wrote such letter to Mayor Malonzo but denied anything
about her sons thievery.[31]
Character evidence is governed by Section 51, Rule 130 of the Revised Rules on
Evidence, viz:

Section 51. Character evidence not generally admissible; exceptions:--

(a) In Criminal Cases:

(1) The accused may prove his good moral character which is pertinent to the
moral trait involved in the offense charged.

(2) Unless in rebuttal, the prosecution may not prove his bad moral character
which is pertinent to the moral trait involved in the offense charged.

(3) The good or bad moral character of the offended party may be proved if it
tends to establish in any reasonable degree the probability or improbability
of the offense charged.

x x x x x x x x x.

Character is defined to be the possession by a person of certain qualities of mind and morals,
distinguishing him from others. It is the opinion generally entertained of a person derived from
the common report of the people who are acquainted with him; his reputation. [32] Good moral
character includes all the elements essential to make up such a character; among these are
common honesty and veracity, especially in all professional intercourse; a character that
measures up as good among people of the community in which the person lives, or that is up to
the standard of the average citizen; that status which attaches to a man of good behavior and
upright conduct.[33]
The rule is that the character or reputation of a party is regarded as legally irrelevant in
determining a controversy, so that evidence relating thereto is not admissible. Ordinarily, if the
issues in the case were allowed to be influenced by evidence of the character or reputation of the
parties, the trial would be apt to have the aspects of a popularity contest rather than a factual
inquiry into the merits of the case. After all, the business of the court is to try the case, and not
the man; and a very bad man may have a righteous cause. [34] There are exceptions to this rule
however and Section 51, Rule 130 gives the exceptions in both criminal and civil cases.
In criminal cases, sub-paragraph 1 of Section 51 of Rule 130 provides that the accused may
prove his good moral character which is pertinent to the moral trait involved in the offense
charged. When the accused presents proof of his good moral character, this strengthens the
presumption of innocence, and where good character and reputation are established, an inference
arises that the accused did not commit the crime charged. This view proceeds from the theory
that a person of good character and high reputation is not likely to have committed the act
charged against him.[35] Sub-paragraph 2 provides that the prosecution may not prove the bad
moral character of the accused except only in rebuttal and when such evidence is pertinent to the
moral trait involved in the offense charged. This is intended to avoid unfair prejudice to the
accused who might otherwise be convicted not because he is guilty but because he is a person of
bad character.[36] The offering of character evidence on his behalf is a privilege of the defendant,
and the prosecution cannot comment on the failure of the defendant to produce such evidence.
[37]
Once the defendant raises the issue of his good character, the prosecution may, in rebuttal,
offer evidence of the defendants bad character. Otherwise, a defendant, secure from refutation,
would have a license to unscrupulously impose a false character upon the tribunal.[38]
Both sub-paragraphs (1) and (2) of Section 51 of Rule 130 refer to character evidence of
the accused.[39] And this evidence must be pertinent to the moral trait involved in the offense
charged, meaning, that the character evidence must be relevant and germane to the kind of the
act charged,[40] e.g., on a charge of rape, character for chastity; on a charge of assault, character
for peacefulness or violence; on a charge for embezzlement, character for honesty and integrity.
[41]
Sub-paragraph (3) of Section 51 of the said Rule refers to the character of the offended party.
[42]
Character evidence, whether good or bad, of the offended party may be proved if it tends to
establish in any reasonable degree the probability or improbability of the offense charged. Such
evidence is most commonly offered to support a claim of self-defense in an assault or homicide
case or a claim of consent in a rape case.[43]
In the Philippine setting, proof of the moral character of the offended party is applied with
frequency in sex offenses and homicide.[44] In rape and acts of lasciviousness or in any
prosecution involving an unchaste act perpetrated by a man against a woman where the
willingness of a woman is material, the womans character as to her chastity is admissible to
show whether or not she consented to the mans act. [45] The exception to this is when the womans
consent is immaterial such as in statutory rape [46] or rape with violence or intimidation. [47] In the
crimes of qualified seduction[48] or consented abduction,[49]the offended party must be a virgin,
which is presumed if she is unmarried and of good reputation, [50] or a virtuous woman of good
reputation.[51] The crime of simple seduction involves the seduction of a woman who is single or
a widow of good reputation, over twelve but under eighteen years of age x x x. [52] The burden of
proof that the complainant is a woman of good reputation lies in the prosecution, and the accused
may introduce evidence that the complainant is a woman of bad reputation.[53]
In homicide cases, a pertinent character trait of the victim is admissible in two situations: (1)
as evidence of the deceaseds aggression; and (2) as evidence of the state of mind of the accused.
[54]
The pugnacious, quarrelsome or trouble-seeking character of the deceased or his calmness,
gentleness and peaceful nature, as the case may be, is relevant in determining whether the
deceased or the accused was the aggressor.[55] When the evidence tends to prove self-defense, the
known violent character of the deceased is also admissible to show that it produced a reasonable
belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt
defensive action was necessary.[56]
In the instant case, proof of the bad moral character of the victim is irrelevant to determine
the probability or improbability of his killing. Accused-appellant has not alleged that the victim
was the aggressor or that the killing was made in self-defense. There is no connection between
the deceaseds drug addiction and thievery with his violent death in the hands of accused-
appellant. In light of the positive eyewitness testimony, the claim that because of the victims bad
character he could have been killed by any one of those from whom he had stolen, is pure and
simple speculation.
Moreover, proof of the victims bad moral character is not necessary in cases of murder
committed with treachery and premeditation. In People v. Soliman, [57] a murder case, the defense
tried to prove the violent, quarrelsome or provocative character of the deceased. Upon objection
of the prosecution, the trial court disallowed the same. The Supreme Court held:

x x x While good or bad moral character may be availed of as an aid to determine the
probability or improbability of the commission of an offense (Section 15, Rule 123), [58] such
is not necessary in the crime of murder where the killing is committed through treachery or
premeditation. The proof of such character may only be allowed in homicide cases to show
that it has produced a reasonable belief of imminent danger in the mind of the accused and
a justifiable conviction that a prompt defensive action was necessary (Moran, Comments
on the Rules of Court, 1952 ed., Vol. 3, p. 126). This rule does not apply to cases of murder.
[59]

In the case at bar, accused-appellant is charged with murder committed through treachery
and evident premeditation. The evidence shows that there was treachery. Joseph was sitting in his
living room watching television when accused-appellant peeped through the window and,
without any warning, shot him twice in the head. There was no opportunity at all for the victim
to defend himself or retaliate against his attacker. The suddenness and unexpectedness of the
attack ensured his death without risk to the assailant. Following the ruling in People v. Soliman,
where the killing of the victim was attended by treachery, proof of the victims bad character is
not necessary. The presence of this aggravating circumstance negates the necessity of proving the
victims bad character to establish the probability or improbability of the offense charged and, at
the same time, qualifies the killing of Joseph Marquez to murder.
As to the aggravating circumstance of evident premeditation, this cannot be appreciated to
increase the penalty in the absence of direct evidence showing that accused-appellant
deliberately planned and prepared the killing of the victim.[60]
Neither can the aggravating circumstance of dwelling found by the trial court be applied in
the instant case. The Information alleges only treachery and evident premeditation, not dwelling.
Under Sections 8 and 9, Rule 110 of the Revised Rules of Criminal Procedure, a complaint or
Information must specify the qualifying and aggravating circumstances in the commission of the
offense.[61] The Revised Rules of Criminal Procedure took effect on December 1, 2000, and
Section 8, Rule 110 is favorable to the accused. It may be applied retroactively to the instant
case.
Accordingly, without the aggravating circumstance of dwelling, the penalty of death was
erroneously imposed by the trial court. There being no aggravating circumstance, there is no
basis for the award of exemplary damages.[62]
IN VIEW WHEREOF, the decision dated June 22, 1999 of the Regional Trial Court,
Caloocan City, Branch 127 in Criminal Case No. C-54012 (98) is affirmed insofar as accused-
appellant Noel Lee is found guilty of murder for the death of Joseph Marquez. The death
sentence imposed by the trial court is however reduced to reclusion perpetua, there having been
no aggravating circumstance in the commission of said crime. Except for the award of exemplary
damages, the award of civil indemnity, other damages and costs are likewise affirmed.
CHARACTER OF ACCUSED AND VICTIM
335 U.S. 469 (69 S.Ct. 213, 93 L.Ed. 168)
MICHELSON v. UNITED STATES.

Mr. Justice JACKSON delivered the opinion of the Court.


In 1947 petitioner Michelson was convicted of bribing a federal revenue agent. 1 The
Government proved a large payment by accused to the agent for the purpose of influencing his
official action. The defendant, as a witness on his own behalf, admitted passing the money but
claimed it was done in response to the agent's demands, threats, solicitations, and inducements
that amounted to entrapment. It is enough for our purposes to say that determination of the issue
turned on whether the jury should believe the agent or the accused. 2
On direct examination of defendant, his own counsel brought out that, in 1927, he had been
convicted of a misdemeanor having to do with trading in counterfeit watch dials. On cross-
examination it appeared that in 1930, in executing an application for a license to deal in second-
hand jewelry, he answered 'No' to the question whether he had theretofore been arrested or
summoned for any offense.
Defendant called five witnesses to prove that he enjoyed a good reputation. Two of them testified
that their acquaintance with him extended over a period of about thirty years and the others said
they had known him at least half that long. A typical examination in chief was as follows:
'Q. Do you know the defendant Michelson? A. Yes.
'Q. How long do you know Mr. Michelson? A. About 30 years.
'Q. Do you know other people who know him? A. Yes.
'Q. Have you have occasion to discuss his reputation for honesty 'Q. You have talked to others?
A. Yes.
'Q. And what is his reputation? A. Very good.'
These are representative of answers by three witnesses; two others replied, in substance, that they
never had heard anything against Michelson.
On cross-examination, four of the witnesses were asked, in substance, this question: 'Did you
ever hear that Mr. Michelson on March 4, 1927, was convicted of a violation of the trademark
law in New York City in regard to watches?' This referred to the twenty-year-old conviction
about which defendant himself had testified on direct examination. Two of them had heard of it
and two had not.
To four of these witnesses the prosecution also addressed the question the allowance of which,
over defendant's objection, is claimed to be reversible error:
'Did you ever hear that on October 11th, 1920, the defendant, Solomon Michelson, was arrested
for receiving stolen goods?'
None of the witnesses appears to have heard of this.
The trial court asked counsel for the prosecution, out of presence of the jury, 'Is it a fact
according to the best information in your possession that Michelson was arrested for receiving
stolen goods?' Counsel replied that it was, and to support his good faith exhibited a paper record
which defendant's counsel did not challenge.
The judge also on three occasions warned the jury, in terms that are not criticized, of the limited
purpose for which this evidence was received. 3
Defendant-petitioner challenges the right of the prosecution so to cross-examine his character
witnesses. The Court of Appeals held that it was permissible. The opinion, however, points out
that the practice has been severely criticized and invites us, in one respect, to change the
rule. 4 Serious and responsible criticism has been aimed, however, not alone at the detail now
questioned by the Court of Appeals but at common-law doctrine on the whole subject of proof of
reputation or character. 5 It would not be possible to appraise the usefulness and propriety of this
cross-examination without consideration of the unique practice concerning character testimony,
of which such cross-examination is a minor part.6
Courts that follow the common-law tradition almost unanimously have come to disallow resort
by the prosecution to any kind of evidence of a defendant's evil character to establish a
probability of his guilt.7 Not that the law invests the defendant with a presumption of good
character, Greer v. United States,245 U.S. 559, 38 S.Ct. 209, 62 L.Ed. 469, but it simply closes
the whole matter of character, disp sition and reputation on the prosecution's case-in-chief. The
State may not show defendant's prior trouble with the law, specific criminal acts, or ill name
among his neighbors, even though such facts might logically be persuasive that he is by
propensity a probable perpetrator of the crime. 8 The inquiry is not rejected because character is
irrelevant; 9 on the contrary, it is said to weigh too much with the jury and to so overpersuade
them as to prejudge one with a bad general record and deny him a fair opportunity to defend
against a particular charge. The overriding policy of excluding such evidence, despite its
admitted probative value, is the practical experience that its disallowance tends to prevent
confusion of issues, unfair surprise and undue prejudice. 10
But this line of inquiry firmly denied to the State is opened to the defendant because character is
relevant in resolving probabilities of guilt. 11 He may introduce affirmative testimony that the
general estimate of his character is so favorable that the jury may infer that he would not be
likely to commit the offense charged. This privilege is sometimes valuable to a defendant for this
Court has held that such testimony alone, in some circumstances, may be enough to raise a
reasonable doubt of guilt and that in the federal courts a jury in a proper case should be so
instructed. Edgington v. United States, 164 U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467.
When the defendant elects to initiate a character inquiry, another anomalous rule comes into play.
Not only is he permitted to call witnesses to testify from hearsay, but indeed such a witness is not
allowed to base his testimony on anything but hearsay. 12 What commonly is called 'character
evidence' is only such when 'character' is employed as a synonym for 'reputation.' The witness
may not testify about defendant's specific acts or courses of conduct or his possession of a
particular disposition or of benign mental and moral traits; nor can he testify that his own
acquaintance, observation, and knowledge of defendant leads to his own independent opinion
that defendant possesses a good general or specific character, inconsistent with commission f acts
charged. The witness is, however, allowed to summarize what he has heard in the community,
although much of it may have been said by persons less qualified to judge than himself. The
evidence which the law permits is not as to the personality of defendant but only as to the
shadow his daily life has cast in his neighborhood. This has been well described in a different
connection as 'the slow growth of months and years, the resultant picture of forgotten incidents,
passing events, habitual and daily conduct, presumably honest because disinterested, and safer to
be trusted because prone to suspect. * * * It is for that reason that such general repute is
permitted to be proven. It sums up a multitude of trivial details. It compacts into the brief phrase
of a verdict the teaching of many incidents and the conduct of years. It is the average intelligence
drawing its conclusion.' Finch J., in Badger v. Badger, 88 N.Y. 546, 552, 42 Am.Rep. 263.
While courts have recognized logical grounds for criticism of this type of opinion-based-on-
hearsay testimony, it is said to be justified by 'overwhelming considerations of practical
convenience' in avoiding innumerable collateral issues which, if it were attempted to prove
character by direct testimony, would complicate and confuse the trial, distract the minds of
jurymen and befog the chief issues in the litigation. People v. Van Gaasbeck, 189 N.Y. 408, 418,
82 N.E. 718, 22 L.R.A.,N.S., 650, 12 Ann.Cas. 745.
Another paradox in this branch of the law of evidence is that the delicate and responsible task of
compacting reputation hearsay into the 'brief phrase of a verdict' is one of the few instances in
which conclusions are accepted from a witness on a subject in which he is not an expert.
However, the witness must qualify to give an opinion by showing such acquaintance with the
defendant, the community in which he has lived and the circles in which he has moved, as to
speak with authority of the terms in which generally he is regarded. To require affirmative
knowledge of the reputation may seem inconsistent with the latitude given to the witness to
testify when all he can say of the reputation is that he has 'heard nothing against defendant.' This
is permitted upon assumption that, if no ill is reported of one, his reputation must be good. 13 But
this answer is accepted only from a witness whose knowledge of defendant's habitat and
surroundings is intimate enough so that his failure to hear of any relevant ill repute is an
assurance that no ugly rumors were about. 14
Thus the law extends helpful but illogical options to a defendant. Experience taught a necessity
that they be counterweighted with equally illogical conditions to keep the advantage from
becoming an unfair and unreasonable one. The price a defendant must pay for attempting to
prove his good name is to throw open the entire subject which the law has kept closed for his
benefit and to make himself vulnerable where the law otherwise shields him. The prosecution
may pursue the inquiry with contradictory witnesses 15 to show that damaging rumors, whether or
not well-grounded, were afloatfor it is not the man that he is, but the name that he has which is
put in issue. Another hazard is that his own witness is subject to cross-examination as to the
contents and extent of the hears y on which he bases his conclusions, and he may be required to
disclose rumors and reports that are current even if they do not affect his own conclusion. 16 It
may test the sufficiency of his knowledge by asking what stories were circulating concerning
events, such as one's arrest, about which people normally comment and speculate. Thus, while
the law gives defendant the option to show as a fact that his reputation reflects a life and habit
incompatible with commission of the offense charged, it subjects his proof to tests of credibility
designed to prevent him from profiting by a mere parade of partisans.
To thus digress from evidence as to the offense to hear a contest as to the standing of the
accused, at its best oopens a tricky line of inquiry as to a shapeless and elusive subject matter. At
its worst it opens a veritable Pandora's box of irresponsible gossip, innuendo and smear. In the
frontier phase of our law's development, calling friends to vouch for defendant's good character,
and its counterpartcalling the rivals and enemies of a witness to impeach him by testifying that
his reputation for veracity was so bad that he was unworthy of belief on his oath were favorite
and frequent ways of converting an individual litigation into a community contest and a trial into
a spectacle. Growth of urban conditions, where one may never know or hear the name of his
next-door neighbor, have tended to limit the use of these techniques and to deprive them of
weight with juries. The popularity of both procedures has subsided, but courts of last resort have
sought to overcome danger that the true issues will be obscured and confused by investing the
trial court with discretion to limit the number of such witnesses and to control cross-examination.
Both propriety and abuse of hearsay reputation testimony, on both sides, depend on numerous
and subtle considerations, difficult to detect or appraise from a cold record, and therefore rarely
and only on clear showing of prejudicial abuse of discretion will Courts of Appeals disturb
rulings of trial courts on this subject. 17
Wide discretion is accompanied by heavy responsibility on trial courts to protect the practice
from any misuse. The trial judge was scrupulous to so guard it in the case be ore us. He took
pains to ascertain, out of presence of the jury, that the target of the question was an actual event,
which would probably result in some comment among acquaintances if not injury to defendant's
reputation. He satisfied himself that counsel was not merely taking a random shot at a reputation
imprudently exposed or asking a groundless question to waft an unwarranted innuendo into the
jury box. 18
The question permitted by the trial court, however, involves several features that may be worthy
of comment. Its form invited hearsay; it asked about an arrest, not a conviction, and for an
offense not closely similar to the one on trial; and it concerned an occurrence many years past.
Since the whole inquiry, as we have pointed out, is calculated to ascertain the general talk of
people about defendant, rather than the witness' own knowledge of him, the form of inquiry,
'Have you heard?' has general approval, and 'Do you know?' is not allowed. 19
A character witness may be cross-examined as to an arrest whether or not it culminated in a
conviction, according to the overwhelming weight of authority. 20 This rule is sometimes
confused with that which prohibits cross-examination to credibility by asking a witness whether
he himself has been arrested.
Arrest without more does not, in law any more than in reason, impeach the integrity or impair the
credibility of a witness. It happens to the innocent as well as the guilty. Only a conviction,
therefore, may be inquired about to undermine the trustworthiness of a witness.
Arrest without more may nevertheless impair or cloud one's reputation. False arrest may do that.
Even to be acquitted may damage one's good name if the community receives the verdict with a
wink and chooses to remember defendant as one who ought to have been convicted. A
conviction, on the other hand, may be accepted as a misfortune or an injustice, and even enhance
the standing of one who mends his ways and lives it down. Reputation is the net balance of so
many debits and credits that the law does not attach the finality to a conviction when the issue is
reputation, that is given to it when the issue is the credibility of the convict.
The inquiry as to an arrest is permissible also because the prosecution has a right to test the
qualifications of the witness to bespeak the community opinion. If one never heard the
speculations and rumors in which even one's friends indulge upon his arrest, the jury may doubt
whether he is capable of giving any very reliable conclusions as to his reputation.
In this case the crime inquired about was receiving stolen goods; the trial was for bribery. The
Court of Appeals thought this dissimilarity of offenses too great to sustain the inquiry in logic,
though conceding that it is authorized by preponderance of authority. It asks us to substitute the
Illinois rule which allows inquiry about arrest, but only for very closely similar if not identifical
charges, in place of the rule more generally adhered to in this country and in England. 21 We think
the facts of this case show the proposal to be inexpedient.
The good charcter which the defendant had sought to establish was broader than the crime
charged and included the traits of 'honesty and truthfulness' and 'being a law-abiding citizen.'
Possession of these characteristics would seem as incompatible with offering a bribe to a revenue
agent as with receiving stolen goods. The crimes may be unlike, but both alike proceed from the
same defects of character which the witnesses said this defendant was reputed not to exhibit. It is
not only by comparison with the crime on trial but by comparison with the reputation asserted
that a court may judge whether the prior arrest should be made subject of inquiry. By this test the
inquiry was permissible. It was proper cross-examination because reports of his arrest for
receiving stolen goods, if admitted, would tend to weaken the assertion that he was known as an
honest and law-abiding citizen. The cross-examination may take in as much ground as the
testimony it is designed to verify. To hold otherwise would give defendant the benefit of
testimony that he was honest and law-abiding in reputation when such might not be the fact; the
refutation was founded on voncictions equally persuasive though not for crimes exactly repeated
in the present charge.
The inquiry here concerned an arrest twenty-seven years before the trial. Events a generation old
are likely to be lived down and dropped from the present thought and talk of the community and
to be absent from the knowledge of younger or more recent acquaintances. The court in its
discretion may well exclude inquiry about rumors of an event so remote, unless recent
misconduct revived them. But two of these witnesses dated their acquaintance with defendant as
commencing thirty years before the trial. Defendant, on direct examination, voluntarily called
attention to his conviction twenty years before. While the jury might conclude that a matter so
old and indecesive as a 1920 arrest would shed little light on the present reputation and hence
propensities of the defendant, we cannot say that, in the context of this evidence and in the
absence of objection on this specific ground, its admission was an abuse of discretion.
We do not overlook or minimize the consideration that 'the jury almost surely cannot
comprehend the Judge's limiting instructions,' which disturbed the Court of Appeals. The
refinements of the evidentiary rules on this subject are such that even lawyers and judges, after
study and reflection, often are confused, and surely jurors in the hurried and unfamiliar
movement of a trial must find them almost unintelligible. However, limiting instructions on this
subject are no more difficult to comprehend or apply than those upon va ious other subjects; for
example, instructions that admissions of a co-defendant are to be limited to the question of his
guilt and are not to be considered as evidence against other defendants, and instructions as to
other problems in the trial of conspiracy charges. A defendant in such a case is powerless to
prevent his cause from being irretrievably obscured and confused; but, in cases such as the one
before us, the law foreclosed this whole confounding line of inquiry, unless defendant thought
the net advantage from opening it up would be with him. Given this option, we think defendants
in general and this defendant in particular have no valid complaint at the latitude which existing
law allows to the prosecution to meet by cross-examination an issue voluntarily tendered by the
defense. See Greer v. United States, 245 U.S. 559, 38 S.Ct. 209, 62 L.Ed. 469.
We end, as we began, with the observation that the law regulating the offering and testing of
character testimony may merit many criticisms. England, and some states have overhauled the
practice by statute. 22 But the task of modernizing the longstanding rules on the subject is one of
magnitude and difficulty which even those dedicated to law reform do not lightly undertake. 23
The law of evidence of evidence relating to proof of reputation in criminal cases has developed
almost entirely at the hands of state courts of last resort, which have such questions frequently
before them. This Court, on the other hand, has contributed little to this or to any phase of the
law of evidence, for the reason, among others, that it has had extremely rare occasion to decide
such issues, as the paucity of citations in this opinion to our own writings attests. It is obvious
that a court which can make only infrequent sallies into the field cannot recast the body of case
law on this subject in many, many years, even if it were clear what the rules should be.
We concur in the general opinion of courts, textwriters and the profession that much of this law
is archaic, paradoxical and full of compromises and compensations by which an irrational
advantage to one side is offset by a poorly reasoned counter-privilege to the other. But somehow
it has proved a workable even if clumsy system when moderated by discretionary controls in the
hands of a wise and strong trial court. To pull one misshapen stone out of the grotesque structure
is more likely simply to upset its present balance between adverse interests than to establish a
rational edifice.
The present suggestion is that we adopt for all federal courts a new rule as to cross-examination
about prior arrest, adhered to by the courts of only one state and rejected elsewhere. 24 The
confusion and error it would engender would seem too heavy a price to pay for an almost
imperceptible logical improvement, if any, in a system which is justified, if at all, by
accumulated judicial exp rience rather than abstract logic. 25
The judgment is affirmed.

777 F.2d 958


19 Fed. R. Evid. Serv. 932
UNITED STATES of America, Plaintiff-Appellee,
v.
Arthur Thomas NIXON, David L. Snoddy and Donald E. Gilbreth,
Defendant- Appellants.
No. 84-3721.
United States Court of Appeals,
Fifth Circuit.
Dec. 2, 1985.

1
Defendants were convicted of various counts involving the attempted purchase, possession,
and distribution of over 40,000 pounds of marijuana. They appeal their convictions on several
grounds, namely:

2
(1) that the government's conduct leading to the attempted purchase of marijuana was
sufficiently outrageous to warrant dismissal of the indictment as a matter of law;

3
(2) that the district court erred in admitting certain hearsay testimony relating to defendants'
predisposition to criminal conduct;

4
(3) that the district court's defective jury instruction on the issue of entrapment requires
reversal as a matter of law;

5
(4) that the district court erred in denying defendants pretrial access to the government's
confidential informants and certain other records;

6
(5) that several instances of prosecutorial misconduct invalidated the legality of the
proceedings and denied defendants a fair trial, and

7
(6) that the district court erred in permitting the jury to view an allegedly inaudible
audiovisual tape.
8
For the reasons which follow, we affirm the conviction.

FACTS

9
This case began as a reverse sting operation whereby Drug Enforcement Agency ("DEA")
agents posed as sellers, rather than as buyers, of a controlled substance. Although the
defendant-appellants' version of the facts differs markedly from that of the government, we
will set out the facts as objectively as possible.

10
David Paige (alias David Cohen), a DEA agent posing as a drug dealer, used three
confidential informants; James McMillan, Donald Smith, and James Marshall, to garner
information about illicit drug dealing activity by the three defendants; Donald Gilbreth, David
Snoddy, and Arthur Tommy Nixon.1 Although the confidential informants ("CIs") apparently
thought of themselves as "special federal agents", it seems that these three men were more at
home with other criminals than with drug enforcement personnel. Their need for money is
what motivated them to help "make cases" for the government. In other respects, the three CIs
appeared to be as lawless as any con man or drug dealer.
11
Defendants Gilbreth and Snoddy were introduced to Donald Smith and James McMillan, two
of the CIs, in the late summer of 1983 in Meridian, Mississippi. Without the government's
knowledge, Smith and McMillan originally intended to con Gilbreth and Snoddy, but decided
that this would be too dangerous. Instead, the CIs led the defendants to DEA agents posing as
big-time drug smugglers.

12
The initial meeting between the defendants and the undercover agents occurred on October
26, 1983, in New Orleans, Louisiana. According to the defendants, the purpose of this
meeting was merely to try to sell the agents some real estate in Florida. Instead, the agents
offered to sell the defendants a large quantity of marijuana and tried to close a deal. The
defendants say they merely listened to the sales pitch but did not show any interest in the deal.
The government claims that the defendants were very interested in making a drug deal and
that they offered several of their real estate holdings as consideration for the transaction. No
final agreement was reached at this time and the men each went their separate ways.

13
The next meeting between the defendants and the agents took place on November 12, 1983, in
Jackson, Mississippi.2 It is not clear whether this meeting was contemplated at the October
26th meeting in New Orleans or whether it was set up subsequently by either side. In any
event, one of the CIs had informed Agent Paige that the defendants were interested in making
a deal for only 20,000 pounds of marijuana rather than the 140,000 pounds originally offered
to them at the October 26th meeting in New Orleans. When defendant Nixon counterproposed
a smaller deal, Agent Paige acted surprised and upset. The men happened to be riding in a car
at the time, and Paige demanded that the car be stopped in a nearby parking lot. Paige
heatedly told defendant Snoddy that he had expected to go through with a deal for 140,000
pounds of marijuana. Now he would be left holding 120,000 pounds of weed, risking
exposure to law enforcement officials, and the displeasure of his boss, George. The
defendants contend that Paige's temper tantrum, coupled with insinuations of possible
violence to the defendants by George and his cohorts, was a central factor in motivating them
to negotiate with Paige. Paige, however, contends that his temper tantrum in the parking lot
was simply an exhibition consistent with his undercover role as a big-time drug smuggler.
Paige testified that any mention of possible violence because of this new development was
strictly in regard to violence to himself by George, his boss. The defendants were not
threatened or intimidated.
14
On November 16, 1983, defendant Snoddy and Agent Paige again discussed the marijuana
deal. The defendants were apparently having difficulty obtaining cash with which to buy the
140,000 pounds of marijuana but they remained interested in buying a smaller amount. Paige
informed Snoddy that 100,000 pounds of the marijuana had been sold to someone else and
that 42,000 pounds remained.

15
Paige and another agent, posing as a lieutenant of George, met with defendants Snoddy,
Gilbreth, and Nixon on November 21, 1983, in Hammond, Louisiana, to further discuss the
transaction. Several arrangements were made that day. The down payment for the 42,000
pounds of marijuana was set at $200,000 but the condominiums in Destin, Florida would be
part of the deal. The five men flew to Destin, Florida in Snoddy's airplane to inspect the
properties.

16
Defendants Snoddy, Gilbreth, and Nixon had also indicated that they wanted to see the
marijuana before buying it. The DEA had recently seized a boatload of Colombian marijuana
and the appropriate quantity was placed on a farm outside of Hammond, Louisiana for display
to the defendants. After inspecting the weed, defendants Snoddy and Gilbreth signed a
document transferring ownership of the condominiums in Destin, Florida to Agent Paige.
Defendant Nixon was responsible for sending an eighteen-wheel tractor trailer to pick up the
marijuana and transport it to a farm in Corinth, Mississippi for safekeeping. The parties
agreed that one of Paige's associates would stay at the farm in Corinth to protect Paige's
investment.

17
On November 27, 1983, defendant Nixon called Paige to inform him that he was only able to
obtain $100,000 rather than $200,000 cash to pay for the marijuana. Paige acted disappointed
but told Nixon to come to the farm in Hammond, Louisiana, anyway and that possibly
something could be worked out. Upon his arrival at Hammond, Louisiana, Nixon told Agents
Paige and Ruggerio that two truck drivers and a truck were waiting nearby at the Hammond
Holiday Inn to load the marijuana. The number of the room the drivers were in would be
etched in the dirt on the truck door. When he was arrested, Nixon was carrying $50,000 cash
and the deeds to two farms he owned in Alabama and Tennessee. Agent Ruggerio proceeded
to the Holiday Inn where he found the truck described by Nixon. The truck drivers were
arrested as they left their hotel room to go to the farm. Defendants Snoddy and Gilbreth, who
were not present in Hammond, Louisiana, at the time, were arrested later.

18
On January 27, 1984, a sixteen-count superseding indictment was returned against defendants
Snoddy, Gilbreth, Nixon, Burchard, and Rhodes. The defendants were charged with
conspiring to commit an offense against the United States, 18 U.S.C. Sec. 371; traveling in
interstate commerce in aid of an unlawful enterprise, 18 U.S.C. Sec. 1952; aiding a principal
in the commission of an offense, 18 U.S.C. Sec. 2; attempted possession of a controlled
substance, 21 U.S.C. Sec. 846; And using a communication facility in the commission of a
felony, 21 U.S.C. Sec. 843(b).3
19
Defendants filed a pretrial motion to dismiss the indictment on grounds of governmental
overreaching. A pretrial hearing on the motion was held but the district judge opted to reserve
her ruling until after hearing further evidence during the course of the trial. On the 13th day of
trial, after all except the rebuttal evidence was in, the district court ruled against defendants on
their motion to dismiss because of government overreaching. The court found that neither the
conduct of the government agents nor that of the confidential informants was sufficiently
outrageous to have violated defendants' due process rights. The defendants contend that this
was error and point to the lawless character of the confidential informants as well as the
coercive tactics of the government agents in prodding the defendants into a drug deal that they
supposedly wanted no part of. Distasteful as the tactics of the DEA agents may seem, our
decision is governed by certain legal standards peculiar to appellate review.

20
I. Government Overreaching or Entrapment?

21
A. Government Overreaching.

22
Among their numerous contentions, the defendants urge two related but distinct defenses.
These are based on the concept of entrapment which has been fleshed out in several United
States Supreme Court and federal circuit court cases. Hampton v. United States, 425 U.S. 484,
96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637,
36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848
(1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); United
States v. Gray, 626 F.2d 494 (5th Cir.1980), cert. denied, 449 U.S. 1091, 101 S.Ct. 887, 66
L.Ed.2d 820 (1981); United States v. Graves, 556 F.2d 1319 (5th Cir.1977), cert. denied, 435
U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516 (1978). In his pretrial motion to dismiss, defense
counsel advanced the argument that outrageous governmental misconduct in the enforcement
of the criminal laws invalidated an indictment that results from such an investigation
regardless of the defendant's predisposition to commit the crime. The district court reserved
its ruling on this motion until hearing further evidence during the trial itself that might be
probative on the issue of government overreaching. On the thirteenth day of trial, the district
court denied defendant's motion to dismiss for government overreaching.
23
Although a ruling of this type is a matter of law to be decided by the district court, it must
necessarily be based on factual findings made by the judge trying the case. This presents a
question of mixed law and fact. After reviewing the record evidence we cannot say that the
factual basis of the district court's ruling was clearly erroneous nor do we find government
overreaching as a matter of law.4 While the government's conduct might shock some
sensibilities, we must evaluate it in light of the undercover activity necessary to the
enforcement of the criminal laws. Under these circumstances, we do not find the
government's conduct sufficiently outrageous to warrant dismissal of the indictment as a
matter of law.5
24
B. Entrapment.

25
Although defendants contend that the jury charge on entrapment was defective, we note that
the jury did not find for defendants on the issue of entrapment.

26
Defendants level two arguments against the jury finding of no entrapment. First, defendants
contend that the district court erroneously allowed hearsay statements relating to the
defendants' predisposition to criminal activity into evidence. The second, briefly mentioned
previously, concerns a defective jury instruction on entrapment. We will address the hearsay
complaint first.

27
1. Hearsay Regarding Predisposition.

28
During his examination, Agent Paige made several non-elicited responses regarding prior
unlawful acts of one or more of the defendants. Once, Paige testified that he had viewed a
photograph of defendant Nixon in a DEA file, and he alluded to other investigations by the
DEA concerning defendant Burchard. The district judge instructed the witness to limit his
answers to the questions asked. But Paige also testified about statements by defendant Nixon
that elaborated on prior drug smuggling and drug transporting ventures of the defendants. The
district court overruled the objections to this testimony.

29
Defendants rely on United States v. Webster, 649 F.2d 346 (5th Cir.1981) (en banc), which
prohibited the practice of allowing gross hearsay statements into evidence to prove
defendants' predisposition because this practice resulted, "in the very evils that the rule
against hearsay was designed to prevent" and that it was difficult to envision, "a situation
where the disparity between the probative value and prejudicial effect of evidence is greater."
649 F.2d at 350 (footnotes omitted).
30
However, Webster should not be read as broadly as defendants would like. Webster does not
prohibit the use of hearsay evidence per se. It held that, "hearsay evidence is only admissible
in an entrapment case under the usual rules relating to hearsay, so that hearsay may not be
introduced as evidence of predisposition." 649 F.2d at 347 (emphasis added). Defendant
Nixon's statements to Agent Paige about prior drug smuggling activities fall under the rule of
admissions by a party opponent, which are deemed non-hearsay. Fed.R.Evid. 801(d)(2).
Moreover, even though Webster placed limits on the type of evidence that can be used to
prove predisposition, a defendant who asserts entrapment as a defense exposes himself to a
"searching inquiry into his own conduct and predisposition.... Sorrells, 287 U.S. at 451, 53
S.Ct. at 216; United States v. Dickens, 524 F.2d 441, 444 (5th Cir.1975), cert. denied, 425
U.S. 994, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976). It may have been error for Agent Paige to
make references about his familiarity with some of the defendants through other DEA files
and investigations, but we find that the trial judge, upon objection by defense counsel,
adequately cautioned the witness. The prejudicial effect, if any, would not have justified a
mistrial and does not, on appeal, amount to reversible error.
31
2. The Jury Charge.

32
When a defendant raises the defense of entrapment, he must present a prima facie case "that
the government's conduct created a substantial risk that the offense would be committed by a
person other than one ready to commit it." Pierce v. United States, 414 F.2d 163, 168 (5th
Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969). It then becomes the
government's burden to prove beyond a reasonable doubt that the defendant was predisposed
to commit the charged offense. Id. The defendants were allowed to submit to the jury the
issue of entrapment. They claim, however, that the charge was fatally defective.
33
Defendants contend that case law requires a charge to tell the jury two things: what the
quantum of proof required is and that the government bears the burden of proof. 6 Further, they
argue that this Circuit follows a per se rule of reversible error if one or both of these elements
is missing from the jury charge. We disagree.
34
Although defendants correctly note that the charge on entrapment does not specifically tell the
jury that the burden of proof falls on the government, it avoids the error that was at issue in
Notaro v. United States, 363 F.2d 169 (9th Cir.1966) and United States v. Wolffs, 594 F.2d
77 (5th Cir.1979), on which defendants rely.
35
In Notaro, the Ninth Circuit approved the first paragraph of the charge on entrapment, which
is almost identical to the first paragraph in this case, but disapproved of the second paragraph
for several reasons.7 The court found it reasonably probable that the wording of the charge
confused the jurors about which party carried the burden of proof on this defensive issue. It
also found that by the wording of the instruction the jury was not permitted to acquit the
accused unless it "should find from the evidence" that the necessary elements of the defense
existed. 363 F.2d at 176. This imposed a heavier burden on the accused than was allowable
because he was entitled to be acquitted if from the evidence the jury retained a reasonable
doubt that the elements of the defense of entrapment had been excluded. Id. Thus, despite the
court's obligation to evaluate the instructions in their entirety, it was compelled to hold that
charge fatally defective, notwithstanding that the general instructions properly placed the
burden of proof on the government. Notaro, 363 F.2d at 175-76.
36
Wolffs adopted the rule of Notaro on this issue, 594 F.2d at 82, and found the instruction in
Wolffs, which was even more egregious than the one in Notaro, fatally defective also. 8 The
instruction in Wolffs made absolutely no mention of the quantum of proof required (beyond a
reasonable doubt) or upon which party the burden of proof fell. Yet the court in Wolffs did not
stop after finding the instruction defective; it went on to make the statement that the
instruction must apprise the jury that the burden is on the government, 9 even though the
Notaro instruction did not contain such a statement. 10 This statement occurs after the court
finds the instruction defective based on Notaro; therefore, the statement is dicta because it
was not necessary to the decision. While the instruction given in this case does not comply
with the dicta in Wolffs, the instruction does cure the defect that concerned the court in
Notaro.
37
Moreover, the general rule in this Circuit regarding the adequacy of jury instructions requires
us to view the court's charge as a whole and determine whether it clearly instructs the jurors
as to the principles of laws which they are to apply in deciding the factual issues before them.
United States v. Cronin, 717 F.2d 164, 170 (5th Cir.1983), cert denied, --- U.S. ----, 104 S.Ct.
3586, 82 L.Ed.2d 884 (1984). We find that the charge as given, unmistakingly apprises the
jury of both the quantum of proof and upon whom the burden falls. The charge does not
ramble or appear confused, and references to the reasonable doubt standard in the entrapment
portion of the charge make it obvious who had the burden of proof. 11 Also, the court's general
charge, which admonishes the jury several times that the government has the burden to prove
guilt beyond a reasonable doubt, cures any deficiency that the instruction on entrapment may
contain.
38
II. Pretrial Access to Government Information

A. The Confidential Informants

39
Defendants also complain about the district court's failure to grant them pretrial access to the
CIs involved in making this arrest. Defendants claim that a pretrial interview with the CIs
would have helped them prove their defenses of government overreaching and entrapment.
We have no problem in dismissing this complaint.

40
The United States Supreme Court addressed the government's obligation to disclose the
identity and whereabouts of government informers in Roviaro v. United States, 353 U.S. 53,
77 S.Ct. 623, 1 L.Ed.2d (1957). Roviaro recognized that "no fixed rule with respect to
disclosure is justifiable" and that "[t]he problem is one that calls for balancing the public
interest in protecting the flow of information against the individual's right to prepare his
defenses." 353 U.S. at 62, 77 S.Ct. 628. Two principal factors in striking the balance are the
degree of participation exercised by the informant, United States v. Alonzo, 571 F.2d
1384 (5th Cir.1978), cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978); Alvarez
v. United States, 525 F.2d 980 (5th Cir.), cert. denied, 425 U.S. 995, 96 S.Ct. 2209, 48
L.Ed.2d 820 (1976), and the probative value of the informant's probable testimony in relation
to the defendant's defense. United States v. Davis, 487 F.2d 1249, 1251 (5th Cir.1973); United
States v. Acosta, 411 F.2d 627, 630 (5th Cir.1969). At an ancillary hearing before a
magistrate, the court found that the informants were not active participants in the transactions
in question and denied defendants' motion for disclosure of the informants' identities and
whereabouts.
41
Nonetheless, after much prodding by defense counsel, the government disclosed the identities
of the informants and produced the two principal informants at trial, where they testified as
defense witnesses. The record does not reveal whether the whereabouts of the informants had
been disclosed before trial. In its appellate brief, the government asserts that the informants
were made available to defense counsel for a pretrial interview but that the informants chose
not to speak with counsel for defendants.12
42
In United States v. Fischel, 686 F.2d 1082 (5th Cir.1982) we held that the government must
have some valid reason for withholding an informant's address when the informant may have
information pertinent to the defendant's theory of defense. Id. at 1092-93. The government in
this action opposed such disclosure on the ground that the informants were not "actively
involved" in the transactions in question.13 While the accuracy of this finding is dubious in
light of the consistent presence of the informants at all the significant meetings between the
DEA agents and the defendants, we do not find any prejudicial error in the defendants' failure
to get a pretrial interview with the informants.14 The defendants placed not only the two
principal informants on the witness stand but the ex-girlfriend of one of the informants and
her roommate as well, who were both privy to much of the informants' activities. Even
assuming, however, that the defendants were wrongfully denied pretrial access to the
informants, our review of their testimony convinces us that there was no information that the
CI's could have revealed to the defendants that would have helped them make a showing of
government overreaching or entrapment.
B. The DEA Files on the Informants

43
Along with their request for access to the confidential informants, the defendants also
requested to inspect certain files maintained by the DEA on its confidential informants. We
agree with the government's contention that defendants were attempting to use the subpoena
duces tecum as a discovery device, which it is not. Bowman Dairy Co. v. United States, 341
U.S. 214, 220, 71 S.Ct. 675, 95 L.Ed. 879 (1951); Fed.R.Crim.P. 17(c). Under the plain
language of Rule 16(a) the defendants were not entitled to:
44
[T]he discovery or inspection of reports, memoranda, or other internal government documents
made by the attorney for the government or other government agents in connection with the
investigation or prosecution of the case, or of statements made by government witnesses or
prospective government witnesses except as provided in 18 U.S.C. Sec. 3500.

45
Fed.R.Crim.P. 16(a)(2). Although the relevancy, much less the probativeness of the DEA files
on the informants was at best attenuated, the court agreed to an in camera inspection of these
files.15 Nothing helpful to the defendants turned up.
III. Prosecutorial Misconduct

46
Defendants attack next three alleged instances of prosecutorial misconduct that prejudiced
their defense. First, defendants maintain that the prosecutor lacked a good faith basis for
asking three defense character witnesses whether they knew that defendants Snoddy and
Gilbreth transported cocaine on a bus owned by them. Second, defendants claim that the
prosecution intimidated a witness and pressured him to testify on the government's behalf.
Third, defendants contend that the prosecutor made an improper closing argument. We will
examine each contention in turn.

A. Good Faith Basis

47
On the ninth day of trial defendants Gilbreth and Snoddy put on three character witnesses
who had business dealings with these two defendants. Two of the witnesses, Scott Ray and
William Phipps, bank officers at the Bank of Lexington and the Southern Bank of Lauderdale
County respectively, knew defendants Snoddy and Gilbreth because of certain loans taken out
by them through each of the banks.16 The third witness, Roger Pettus, was in the automobile
business but also had overlapping business interests with defendants Snoddy and Gilbreth.
One of defendant Gilbreth's businesses was the leasing of a customized bus to traveling music
stars.17 The purchase of one particular bus was financed by a purchase money loan from the
Bank of Lexington. Scott Ray, an officer of the bank, knew that the bus served as collateral
for the loan but he did not know any specifics about the bus. William Phipps and Roger Pettus
knew that one of Gilbreth's businesses was the leasing of this bus to music stars but knew
little else about it.
48
On cross-examination of Scott Ray, the prosecuting attorney asked the witness whether he
knew if the bus was "used to transport large quantities of cocaine." Defense counsel reacted
by questioning the government's good faith basis for suggesting that fact to the jury. The
government intimated that it had a basis in fact for asking the question and that it would
provide it to the court. Defense counsel did not object when the government asked
substantially the same question of Roger Pettus and William Phipps.

49
At a post-verdict bond hearing for the defendants, the government produced two pictures that
had been seized by Alabama law enforcement officers at the home of defendant Snoddy's
brother pursuant to a search warrant for marijuana unrelated to the charges made in this case.
The pictures depicted several persons inside some kind of vehicle handling what appeared to
be cocaine. The court did not rule on this issue at the bond hearing.

50
This issue was taken up again several months later at a hearing on defendants' motion for new
trial. Defense counsel placed the U.S. Attorney on the stand to elicit testimony about her good
faith basis for having asked questions about the transportation of cocaine on a bus owned by
defendant Gilbreth. At this hearing it developed that the pictures the prosecuting attorney
relied on as a good faith basis had apparently been taken before Gilbreth had ever owned the
bus. It turned out that the pictures had not been taken inside a bus, rather they apparently had
been taken inside a converted railway car located outside the Chattanooga Choo Choo Hilton
in Chattanooga, Tennessee and rented out as lodging by the hotel. The U.S. Attorney also
testified, however, that she had relied on hearsay statements by certain Alabama police
officers familiar with the defendants to the effect that defendant Snoddy had transported
cocaine on busses that were leased out to music celebrities.

51
We will not launch into a discourse on the practical and theoretical underpinnings of the law
of evidence that allows a prosecuting attorney to probe a defense character witness's
familiarity with the defendant by asking questions about purported prior bad acts of the
defendant. We note only that the potential for abuse here, by wafting before the jury "did you
know?" type questions that have no basis in fact but which can be fatal to the defendant, has
led to the imposition of two safeguards that should be complied with before such questions
may be asked in the presence of a jury. First, the alleged bad act must have a basis in fact and
second, the incidents inquired about must be relevant to the character traits at issue in the
trial. Michelson v. United States, 335 U.S. 469, 481 n. 18, 69 S.Ct. 213, 221, 93 L.Ed. 168
(1948); United States v. Crippen, 570 F.2d 535, 538-39 (5th Cir.1978), cert. denied, 439 U.S.
1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979). That does not mean that the basis in fact must be
proved as a fact before a good faith inquiry can be made. See United States v. Bright, 588
F.2d 504, 512 (5th Cir.), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979)
(government's proffer of a letter of reprimand for stipulation and its willingness to reopen the
case in an attempt to prove fact of defendants' (an attorney) reprimand by a judge and the bar
association demonstrated the necessary good faith factual basis for cross-examination of
defense character witness, an attorney, regarding defendant's reprimand).
52
The government should have laid a foundation out of the presence of the jury before asking
these questions, to give the judge an opportunity to rule on the propriety of asking them.
Defense counsel attempts to make much of the fact that the prosecuting attorney erred in her
evaluation of the pictures. Nonetheless, after hearing argument and evidence from both parties
the district court found that the government had a good faith basis for asking the
questions.18 The court further found that even if the questions based on the photographs
should not have been asked, there was sufficient independent evidence of guilt to support the
jury verdict and the error, if any, did not have a substantial adverse impact on the jury's
verdict.19 United States v. Rodriguez, 524 F.2d 485, 487 (5th Cir.1975), cert. denied, 424 U.S.
972, 96 S.Ct. 1474, 47 L.Ed.2d 741 (1976). We see no reason to disturb this finding.
53
B. Government Interference with a Defense Witness

54
The second instance of prosecutorial misconduct raised by the defendants involves the alleged
intimidation of a defense witness by the government attorney. Albert Neal Aycock was called
at the instance of defendant Rhodes. He was a farmer and had a business interest in a
company that sold farm equipment. He knew defendants Rhodes and Nixon through his
business dealings with them. Aycock testified that at a chance meeting with defendant Nixon,
Nixon had asked him if he knew of anyone that could haul some farm equipment he had just
bought. Aycock referred Nixon to defendant Rhodes, who lived near where the purported
farm equipment was located, and made arrangements for Nixon to meet with Rhodes.

55
It developed at trial that the government had subpoenaed Aycock in an attempt to have him
testify against defendants Rhodes and Nixon.20 The court conducted a hearing outside the
presence of the jury on the government's purported intimidation of Aycock. Counsel for
defendants Gilbreth and Snoddy attempted to persuade the court that the government's
treatment of Aycock was relevant to and probative of the issues of entrapment and
government overreaching. The district court ruled to the contrary and refused to let Aycock's
testimony regarding his treatment at the hands of the government to go before the jury. 21We
do not see how the government's purported intimidation of Aycock, a witness called by a
defendant who was acquitted, could prejudice the trial of defendants Gilbreth and Snoddy.
Defendant Nixon, who stood more to gain by a showing of intimidation of a witness by the
government did not even address this issue in his appellate brief.
56
Defendants Gilbreth and Snoddy urge that in United States v. Hammond, 598 F.2d 1008 (5th
Cir.1979) this circuit adopted a per se rule of reversal for substantial government interference
with a defense witness's free and unhampered choice to testify. Id. at 1012-13. We have
reviewed the record regarding the treatment of Aycock by the U.S. Attorney's Office and do
not find that it constituted a substantial interference with his willingness to testify for the
defense.22 We note, too, that Aycock testified that his treatment by the government had not
altered his substantive testimony as a witness for the defense. 23 Consequently, none of the
defendants can complain that he was deprived of his Due Process or Sixth Amendment right
to present witnesses to establish a defense. Hammond, 598 F.2d at 1012 n. 3.
C. Improper Closing Argument

57
On the last day of trial, government counsel made the following argument to the jury:

58
Now, according to Mr. Snoddy and Mr. Gilbreth no one at that meeting [of November 21st in
Hammond, Louisiana] discussed their desire to see the marijuana. They didn't want to see the
marijuana. Why should they want to see the marijuana, they weren't going to buy it anyway.

59
Now, [according to the defendants] Mr. Gorman lied to you from the witness stand, that's one
DEA agent, he lied to you because he said that they talked about seeing a sample. Mr. Paige
lied again and their supervisor, Mr. Cazenavette lied, because he said he agreed to let them see
the sample.
60
Now, of course, in order to see the sample, they had to get permission from the United States
Attorney's Office and I don't know what that makes us.

61
14 Record at 198. At the close of the government's argument, counsel for defendants Gilbreth
and Snoddy objected to this portion of the argument on the ground that the prosecution was
using the credibility of the United States Attorney's Office to buttress the credibility of the
government's witnesses. The district court overruled defense counsel's objection on this point,
holding that there was evidence from the witness stand to support the argument.

62
We find that the prosecutor did not go outside of the evidence presented in this case in making
her closing argument on rebuttal and that these comments were a fair reply to defense
counsel's closing arguments. Assuming, arguendo, that this statement was unwarranted, such
prosecutorial misconduct constitutes a ground for reversal only if the "prosecutor's argument
taken as a whole in the context of the entire case, prejudicially affected substantial rights of
the defendant." United States v. Corona, 551 F.2d 1386, 1388 (5th Cir.1977). This test was
not met here.
IV. Inaudible Videotapes

63
Defendants' final attack on their conviction is aimed at the use of an audiovisual tape that they
contend was erroneously admitted into evidence. This tape was secretly recorded in the hotel
room in New Orleans, Louisiana at the October 26, 1983, meeting of the defendants with the
undercover DEA agents. Although the probative value of this tape is beyond question,
portions of it were unintelligible. The district court listened to portions of the tape to go to the
jury. In this circuit, "[t]ape recordings which are only partially intelligible are admissible
unless these portions are so substantial as to render the recording as a whole untrustworthy."
United States v. Ruppel, 666 F.2d 261, 272 (5th Cir.), cert. denied, 458 U.S. 1107, 102 S.Ct.
3487, 73 L.Ed.2d 1369 (1982). We review the district court's decision to admit the recording
under an abuse of discretion standard. United States v. Clements, 484 F.2d 928, 930 (5th
Cir.1973), cert. denied, 415 U.S. 991, 94 S.Ct. 1591, 39 L.Ed.2d 888 (1974). We have viewed
the tape and find that the district court did not abuse its discretion in allowing the jury to view
the tape.24
CONCLUSION

64
Even from a cold (albeit voluminous) record, we can appreciate the grueling nature of this
long, arduous trial on all of the participants. It does not surprise us that at times patience was
short, tempers flared, and counsel for both sides made comments or engaged in behavior short
of the professional ideal we, as attorneys, are constantly reminded to attain. We have studied
the appellants' points of error closely and reviewed the record carefully, and find no reversible
error. The convictions of the defendants are affirmed.

65
AFFIRMED.

1
Two other defendants; William Max Rhodes and Samuel Burchard, were also indicted. These
two men played lesser roles in this drama and both were acquitted

2
Gilbreth was not at this meeting

3
The original indictment contained only eleven counts. The superceding indictment added charges
against Snoddy and Nixon for use of the telephone in the attempted possession of marijuana. 21
U.S.C. Sec. 843(b)

4
In Hampton v. United States, supra, the plurality held that the defense of government
overreaching as a matter of law was precluded if the predisposition of the defendant to commit
the crime was established. Justice Rehnquist stated for the plurality, "[t]he limitations of the Due
Process Clause of the Fifth Amendment come into play only when the government activity in
question violates some protected right of the defendant." 425 U.S. at 490, 96 S.Ct. at 1650
(emphasis in original). In a concurring opinion, however, Justice Powell disagreed with the
plurality's reliance on language from Russell, supra, to foreclose the court's supervisory power to
bar conviction of a predisposed defendant because of outrageous police conduct. Id. at 493, 96
S.Ct. at 1651. Under our facts, we need not address this issue

5
Throughout the trial defense counsel persistently placed into evidence both the illegal and
immoral misdeeds of the government agents and the informants. The confusion attendant to the
distinction between the related but distinct concepts of government overreaching and entrapment
probably contributed to the length of this trial, as the following colloquy between the court and
the parties shows:

COURT: What we are interested in here, on this trial, is not Government overreaching. We, here,
during the course of the trial, will be hearing any type of evidence that you can present as to
entrapment, which is an entirely different ball game.

DEFENSE: It's not entirely different.

COURT: Oh, yes, it is. And this is something that I can see we are going to have a lot of fun
tomorrow in this case.

DEFENSE: The only difference between--the only basic difference between the two, it was a
situation that the predisposition of a defendant makes not one bit of difference in an overreaching
situation, and the test I have, that's the only real difference, is to look at it and analyze it through.
I can have on my hands Hitler and if the Government overreached, the case gets thrown out.
COURT: Let me just--

DEFENSE: But the point is an entrapment case, they can come back with predisposition.

COURT: As a matter of fact, isn't that what the whole thing is all about.

DEFENSE: What?

COURT: In entrapment.

DEFENSE: I'm sorry, what--

COURT: Is predisposition.

DEFENSE: Well, first, we got entrapment, then comes predisposition. You can't have--

GOVERNMENT: No, no, no. As long as we're going to discuss this--

18
Record at 171-72

6
The jury charge read:

If, then, the jury should find beyond a reasonable doubt from the evidence in the case that, before
anything at all occurred respecting the alleged offense involved in this case, a defendant was
ready and willing to commit a crime such as charged in the indictment, whenever opportunity
was afforded, and that Government officers or their agents did no more than offer the
opportunity, then the jury should find that the Defendant is not a victim of entrapment.

On the other hand, if the evidence in the case should leave you with a reasonable doubt whether
the Defendant had the previous intent or purpose to commit an offense of the character charged,
apart from the inducement or persuasion of some officer or agent of the Government, then it is
your duty to find him not guilty. (emphasis added).

7
The challenged instructions in Notaro read, in pertinent part:

"If, then, the jury should find beyond a reasonable doubt from the evidence in the case that
before anything at all occurred respecting the alleged offense involved in this case, the accused
was ready and willing to commit crimes such as charged in the indictment, whenever opportunity
was offered and that the Government agents did no more than offer the opportunity, the accused
is not entitled to the defense of unlawful entrapment.
"On the other hand, if the jury should find from the evidence in the case that the accused had no
previous intent or purpose to commit any offense of the character here charged, and did so only
because he was induced or persuaded by some agent of the Government, then the defense of
unlawful entrapment is a good defense and a jury should acquit the defendant."

Notaro, 363 F.2d at 173 (emphasis added by the Notaro court, footnote omitted).

8
The challenged instructions in Wolffs read, in pertinent part:

So, if you as the Jurors, having heard the evidence in the case, conclude that before anything at
all occurred respecting the alleged offense involved in this case, the defendant was ready and
willing to commit crimes such as those charged in the indictment when a favorable opportunity
was offered and the Government merely offered him the opportunity, then the defendant is not
entitled to the defense of unlawful entrapment. If, on the other hand, you find that the defendant
had no previous intent or purpose to commit any offense of the character charged and did so only
because he was induced, or persuaded by some Agent of the Government, then the prosecution
would have seduced an innocent person and the defense of entrapment would be a good defense,
and of course, in that event the defendant should be acquitted.

9
Defendants rely on language from Wolffs, which reads:

The language of an entrapment instruction must unmistakably apprise the jury that the burden is
upon the government to prove beyond a reasonable doubt that, before anything at all occurred
respecting the alleged offense for which the defendant is being prosecuted, the defendant was
ready and willing to commit such crimes whenever an opportunity was afforded, and that
government agents did no more than offer the opportunity. The instruction also must be
unmistakably clear in informing the jury that if the evidence in the case leaves a reasonable
doubt as to whether defendant had the predisposition to commit an offense of the character
charged, apart from the government inducement or persuasion, the defendant must be found not
guilty.

594 F.2d at 83 (emphasis supplied in defendants' brief).

10
See supra note 8

11
The court's charge on entrapment provided in its entirety:

These three defendants, Mr. Snoddy, Gilbreth, and Nixon assert that they were victims of
entrapment as to the offenses charged in the indictment.
Where a person has no previous intent or purpose to violate the law, but is induced or persuaded
or pressured by law enforcement officers or their agents to commit a crime, he is a victim of
entrapment, and the law as a matter of policy forbids his conviction in such a case.

On the other hand, where a person already has the readiness and willingness to break the law, the
mere fact that Government agents provide what appears to be a favorable opportunity is not
entrapment. For example, it is not entrapment for a Government agent to pretend to be someone
else and to offer, either directly or through an informer or other decoy, to engage in an unlawful
transaction.

Therefore, entrapment is shown where it appears that a law enforcement officer or someone
acting under his control or direction instigates the defendant to commit an offense, or reinitiates
an offer to participate in a crime which the defendant previously turned down, and which the
defendant otherwise would not have committed and had no intention of committing. It is not
entrapment, however, if the defendant already had the requisite criminal intent, and the officer, or
someone acting for him, merely furnished the defendant with the opportunity to commit the
offense.

If then, the jury should find beyond a reasonable doubt from the evidence in the case that, before
anything at all occurred respecting the alleged offenses involved in this case, a defendant was
ready and willing to commit a crime such as charged in the indictment, whenever opportunity
was afforded, and that Government officers or their agents did no more than offer the
opportunity, then the jury should find that the defendant is not a victim of entrapment.

On the other hand, if the evidence in the case should leave you with a reasonable doubt whether
a defendant had the previous intent or purpose to commit an offense of the character charged,
apart from the inducement or persuasion of some officer or agent of the Government, then it is
your duty to find him not guilty.

14
Record at 245-46 (emphasis added)

12
We note that the informants cannot be compelled to a pretrial interview with defense counsel.
United States v. Opager, 589 F.2d 799, 804 n. 11 (5th Cir.1979)
13
In fairness to the defendants, the government was unable to give a good reason why the
confidential informants should not be produced. The following exchange took place during the
hearing on defendants' motion to dismiss because of government overreaching:

DEFENSE: I would like to see them [the informants] here for the purposes of this hearing
because we've raised a very substantial overreaching case, and why I say that, Judge, look at the
case, one of the things that's germane, if you hold out a pot that the inducement is so great, in
effect, what the law is, that even Christ, will all due respect, would succumb to a certain amount
of money, and that it's part of human frailty to give in to that. They're holding out a potential of
millions to the defendant....
***

COURT: I think you've made your point here. Does anybody wish to respond?

GOVERNMENT: No, ma'am.

COURT: Well, let me say this, I will agree with [defense counsel] that there has been nothing
said by the Government as to why these informants should not appear at the trial.

GOVERNMENT: Your Honor, it's the Government's position that these informants are very
much afraid of those defendants and that we don't want them here because those defendants are
on bond right now. We have them here in the Courthouse, then the informants are placed in
jeopardy. That's the Government's position.

***

COURT: Well, who is to say that--well, that sounds weak to me, Ms. Homberg. I need something
more than that.

9
Record at 311-13

14
It also appears from the record that defense counsel was satisfied with calling the informants to
the stand and foregoing a pretrial interview. At the hearing on the motion to dismiss defense
counsel stated:

And the final thing, Your Honor, just so we understand the parameters of what I'm asking for, I
would, once again, based on this entire record as we have it at this point, ask that these
confidential informants, whose names we have, that we be given access to them so that we can
serve them with subpoenas. I'm not interested in interviewing them. I want to put them right on
the stand. I want to put them on the stand for the purpose of the overreaching motion and I want
to use the power of compulsory process available to the defendant to put them on the stand in the
course of the trial itself.

9
Record at 302-93 (emphasis added)

***

We're really here in an overreaching case and in the course of doing so have concomitantly raised
the defense of--raised the fact that they clearly have a legitimate entrapment defense and I want
to prove it from the lips of the people who did the entrapping, and he's telling me I can't put on
the witnesses that I say did it.
I have the right. I always thought in this Court I have the right to subpoena who I say is relevant,
and I say those three witnesses, those three informants whose names I know--and by the way,
Judge, no one has yet given me one centilla [sic] of reason of why they should not be brought in.
There's no jeopardy issue because we know their names. I'll never ask where they live because I
don't care where they live. I just want to see them sitting behind that microphone and want the
process of the United States to get them here and I want the Court to insist, with all due respect,
that they be made available for the defense of criminal--for the criminal defendants in this
Courtroom, and that's all I want.

9
Record at 311 (emphasis added)

15
18 U.S.C. Sec. 3500(c) provides, in pertinent part:

(c) If the United States claims that any statement ordered to be produced under this section
contains matter which does not relate to the subject matter of the testimony of the witness, the
court shall order the United States to deliver such statement for the inspection of the court in
camera.

16
At the time of trial, William Phipps was no longer a bank officer. He was an officer of a real
estate development company. He was also associated with defendant Gilbreth in the development
of a bowling center

17
Defendants Snoddy and Gilbreth appear to have had a variety of business interests. These ranged
from real estate development and townhouse construction to an interest in a bowling center and
to the leasing of these "celebrity" busses

18
We quote from the record verbatim:

COURT: Now, as far as the good faith basis, I feel that based upon what Ms. Homberg has
testified to and my recollection of what the testimony was that she had, that it was reasonable for
her to find or to believe that these were pictures taken of a bus. They certainly look like a bus.
The fact that it was some lounge somewhere, nobody brought that out, we didn't know about it
until after trial. Based upon what Mr. Brown had told her, certainly--it certainly tied Mr. Snoddy
in with that, and based upon what McMillon and some of the other confidential informants
testified to, there was every reason for her to believe that the bus in question was Mr.--the
pictures in question involved Mr. Gilbreth's bus, or the fact that she may have asked those
questions.

But, assuming, however, this case here went on a long time, there was a lot of hot tempers
involved and a lot of problems that arose during the course of the trial. I feel that with viewing it,
an overall view of all of the testimony presented, I find that there was sufficient evidence for the
Jury to conclude as to what they did come up with, and that if these photographs in question
should not have been asked, that the error that was made was not so overwhelming as to grant a
new trial, did not prejudice the defendants because of the other sufficient evidence that was
offered.

17
Record at 65-66 (emphasis added)

19
Defense counsel's conspicuous failure to object in no uncertain terms to these questions at the
time they were asked, and his vehement argumentation on this point after the verdict came in
leads us to conclude that defense counsel either did not believe, at the time the questions were
asked, that they were prejudicial or chose to minimize their impact by simply remaining silent. If
the former, then we are correct in our view that the defendants were not prejudiced by these
questions. If the latter, then defense counsel's tactical decision carried the risk of an adverse jury
verdict and a waiver on this point of error. We have reviewed the record closely on this point and
are convinced that defense counsel's heavy reliance on this point after receiving an unfavorable
verdict was an attempt to "have his cake and eat it too."

20
It appears that at one point the government even contemplated arresting Aycock. On the seventh
day of trial the following exchange took place between the court and the prosecutor:

COURT: Be seated. Court is now in session. I want to see Ms. Homberg alone.

(Whereupon, the following proceedings were had at the Bench between the Court and Ms.
Homberg.)

COURT: I want the record to reflect that my secretary told me that Ms. Homberg is thinking
about arresting a witness in this case outside of the Courtroom.

I am putting you on notice that if you cause anything to jeopardize this trial I will hold you in
contempt of Court and put you in jail.

GOVERNMENT: No, that's why I wanted to inform you of the problem, because I don't want
anything to happen.

COURT: There are other ways and means. The only thing I am telling you is that you are not to
jeopardize this trial. We have been in trial a considerable length of time and I want to conclude it
and I want that on the record, and you will do whatever you have to do, but you are not an
arresting officer.

GOVERNMENT: I know it, that's why I didn't want any arresting officers out there. I wanted to
tell you what the problem is.

COURT: All right. That is all I want to put on the record.


GOVERNMENT: I don't know what the--I don't know--I mean, I can't--

COURT: All I am saying, I don't want you to do anything that will jeopardize this trial, period,
okay?

GOVERNMENT: I don't know what I'm supposed to do, but, okay.

22
Record at 160-61

21
The court ruled only that it would not allow testimony of Aycock's purported mistreatment by the
government to go before the jury on the issue of entrapment. The court did not rule whether the
treatment of Aycock was a substantial interference with his decision to testify

22
Direct evidence on the issue of government intimidation of a defense witness was taken during
trial, out of the presence of the jury. The government's cross-examination of this witness was
concluded several days later at an ancillary hearing before a magistrate. Consequently, we had
the benefit of substantial testimony to rule on this issue

23
COURT: Let me ask you this. The testimony that you gave this morning when you were
questioned by Mr. Warshauer [counsel for defendant Rhodes], did anything that the Government
ever say to you make you change your testimony? I mean, is this the way that you would have
testified had they not spoken to you?

WITNESS: Yes, ma'am, I'm telling you the truth about the questions they asked me this morning.

COURT: All right. So, whatever they said to you has not changed your testimony in this
courtroom today, has it?

WITNESS: No ma'am. I'm here to tell the truth about it.

23
Record at 138

24
The jury did not view the tape in its entirety. Only certain portions of it were shown to the jury at
trial. During its deliberations, the jury requested to see the videotape again. The court had a
second copy of the tape made, which included only those splices that the jury had been shown
during trial, and the jury was allowed to view this edited version of the tape during its
deliberations

549 F. 3d 963, 17 November 2008


UNITED STATES VS JACKSON

JERRY E. SMITH, Circuit Judge:


David Jackson was sentenced to death for murder. He appeals, arguing that (1) the district court
refused to conduct a hearing to determine whether his due process rights were violated by
prosecutorial delay; (2) the Federal Death Penalty Act ("FDPA") is unconstitutional; (3) the
district court improperly dismissed two jurors during voir dire; (4) the court allowed improper
testimony; (5) the court incorrectly excluded certain pieces of evidence; (6) the court
unconstitutionally restricted counsel's ability to object; (7) the court erred by not allowing
Jackson to impeach a government witness with evidence of a prior conviction for sexual assault;
(8) the court incorrectly allowed the government to impeach one of Jackson's witnesses with a
non-final conviction; (9) Jackson should have been allowed to allocute; (10) the jury should have
been instructed at sentencing that it could consider "residual doubts" about Jackson's guilt; (11)
the verdict is inconsistent; and (12) the district court incorrectly denied a motion for new trial.
Finding no reversible error, we affirm.

I.
Jackson, a federal prisoner, began arguing with another inmate, Daryl Brown, while a third
inmate, Arzell Gulley, watched. A fight broke out, the details of which are disputed: Jackson
claims that Brown pulled out a shank, but the government contends that Brown was unarmed
and only attempted to begin a fistfight. In any case, the confrontation culminated with all three
running from the yard where the argument started and through one of the prison units into a cell,
where Jackson or Gulley allegedly held Brown as the other attacked him with a shank. After
approximately thirty seconds, Jackson and Gulley left the cell walking in opposite directions.
Brown, bleeding profusely, collapsed and was soon pronounced dead.
A shank is a homemade knife.
Jackson was apprehended with Brown's blood on his clothes and an injury to his palm consistent
with recent use of a shank. While held by security, he tried to flush gambling paraphernalia down
the toilet. When guards tried to place another inmate in the special housing unit with him, he
allegedly told officials that he would kill the inmate if the inmate were not removed, saying "if
you don't believe me, look at the [security] tapes, I'll kill again."
A grand jury indicted Jackson and Gulley for murder and possession of a dangerous weapon in
prison. The district court granted a motion to sever their trials, and Jackson was separately
reindicted, convicted on both counts, and sentenced to death.
At sentencing, the government presented evidence of Jackson's other convictions, including
multiple counts of armed robbery and various firearms charges, and testimony about his poor
disciplinary record in prison. An expert witness for the government who had conducted
psychiatric evaluations of Jackson testified that there was a high probability that he would
commit violent crimes in the future.
Jackson presented evidence of a poor home life growing up, low intelligence, post-traumatic
stress disorder, and institutionalization. He also noted that the government had not sought the
death penalty against Gulley, and he submitted an apology he had written for his most recent
armed robbery. Jackson also apologized to Brown's family, though he blamed Brown for starting
the fight. Jackson explained, "I just wanted to stab [Brown]. I didn't want to kill him."
II.
The district court's factual findings are reviewed for clear error; its legal conclusions, de novo.
United States v. Avants, 367 F.3d 433, 441 (5th Cir. 2004). We review for abuse of discretion the
decision to exclude jurors, United States v. Fields, 483 F.3d 313, 357 (5th Cir. 2007), cert.
denied, ___ U.S. ___, 128 S.Ct. 1065, 169 L.Ed.2d 814 (2008); evidentiary decisions, United
States v. Marrero, 904 F.2d 251, 260 (5th Cir. 1990); rulings regarding trial orderliness, United
States v. Redd, 355 F.3d 866, 876-77 (5th Cir. 2003); refusals to give requested jury instructions,
United States v. Arnold, 416 F.3d 349, 356 (5th Cir. 2005); and denials of new trials, United
States v. Rivera, 295 F.3d 461, 470 (5th Cir. 2002).

A.
Jackson raises Fifth and Sixth Amendment challenges to the lengthy delays in his prosecution.
The murder occurred in December 1999, but the government did not charge Jackson until
November 2003, and then only for possession of a prohibited object, the shank used to stab
Brown. That charge was dismissed without prejudice in February 2004. In April 2005, the
government charged Jackson again, this time for capital murder and possession of a dangerous
weapon. He finally received a trial in October 2006 and was convicted a month later.
Jackson argues that the delays violated his Fifth Amendment right to due process. In the
alternative, he claims that the case should be remanded for a hearing with discovery on the
government's motives for the delays.
A panel of this circuit recently addressed both arguments in Gulley's appeal, United States v.
Gulley, 526 F.3d 809, 819-20 (5th Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 159, 172
L.Ed.2d 116 (2008). 1The Gulley panel noted that under Fifth Circuit law, the defendant bears
the burden of proving that the pre-indictment delay caused "substantial, actual prejudice" and
was "intentionally undertaken by the government for the purpose of gaining some tactical
advantage over the accused. . . ." Id. at 820 (quoting United States v. Crouch, 84 F.3d 1497, 1514
(5th Cir. 1996) (en banc)). To demonstrate prejudice, "the defendant must offer more than mere
speculation of lost witnesses, faded memories or misplaced documents; he must show an actual
loss of evidence that would have aided the defense and that cannot be obtained from other
sources." Id. (citation omitted).
The panel noted that district courts should usually "carry a motion to dismiss for pre-indictment
delay with the case, and make the determination of whether actual, substantial prejudice resulted
from the improper delay in light of what actually transpired at trial." Id. (quoting Crouch, 84 F.3d
at 1516). Because the defendant must prove both bad faith and prejudice, a court need not hold a
hearing on the government's motives for the delay where the court has determined that no
prejudice resulted from it. Id.
The primary question, then, is whether the district court clearly erred in ruling that Jackson "is
unable to show that the delay has caused an actual, substantial prejudice to his defense at this
point in time." To demonstrate prejudice, Jackson argues that (1) there is a "potential witness
who remains unfound" that could have impeached a government witness; (2) there are missing
video tapes that might have exculpatory information; (3) there was a "summit" among groups in
prison that could have produced more witnesses for the defense; and (4) his mother died, thereby
depriving him of her testimony at sentencing.
The first three proffered examples of prejudice are nothing "more than mere speculation of lost
witnesses, faded memories or misplaced documents" and do not demonstrate "an actual loss of
evidence that would have aided the defense and that cannot be obtained from other sources." Id.
On appeal, Jackson provides no information about the "potential witness," whom that witness
could have impeached, or how. Jackson also has yet to produce evidence that the video tapes
ever existed or that the "summit" actually occurred, nor has he adequately explained why these
pieces of evidence were important beyond non-specific explanations that they "could easily have
yielded more witnesses, more connections, [and] more depth to the understanding of this
incident." "[B]ecause actual, substantial prejudice to the defense at trial is required, a showing of
mere potential or possible trial prejudice does not suffice." Crouch, 84 F.3d at 1523 (emphasis
omitted).
Jackson gives no citations to this information in the trial record. See FED. R.APP. P. 28(a)(9)(A)
(noting need to include "contentions and the reason for them, with citations to the authorities and
parts of the record on which the appellant relies").
The final proffered prejudice is more plausible. The fact that Jackson's mother died and thus
could not testify is not as speculative as his other examples we at least know who she is and
that she existed. He has not explained, however, what testimony she could have offered. Instead,
in the motion to the district court and his brief on appeal, he indicates only that his mother was
"the one witness whose testimony may have caused the jury to spare [his] life." He does not give
any hint as to what her testimony would have been, let alone demonstrate that other, available
witnesses could not have provided the same information.
Jackson's mother presumably would have testified regarding Jackson's background and
upbringing, but Jackson presented other witnesses on that same topic, including a childhood
friend who had personally witnessed much of the abuse Jackson suffered. 1And although
Jackson suggests that his mother could have effectively pleaded for her son's life, the district
court properly ruled that general pleas for mercy would not be permitted. See Kelly v. Lynaugh,
862 F.2d 1126, 1133 n. 12 (5th Cir. 1988) (noting that stepfather's request that jury spare
defendant's life is not mitigating evidence required to be admitted under Eighth Amendment); see
also Jackson v. Dretke, 450 F.3d 614, 617-18 (5th Cir. 2006) (holding that state court's decision
to exclude execution impact testimony by defendant's family and friends did not contradict
Supreme Court governing law and was not unreasonable application of Supreme Court
precedent).
The district court therefore did not clearly err when it concluded that Jackson was not prejudiced
by the prosecution's delay. There was no need for an evidentiary hearing.
Jackson also argues that the delays violated his Sixth Amendment right to a speedy trial, because
he did not receive a trial until nearly three years after his 2003 indictment. He concedes,
however, that any delay caused by his own requests for continuances should be discounted.
According to Jackson, then, the relevant delay for Sixth Amendment purposes runs from
November 2003, the date of his initial charge, to July 2005, the date of his first request for a
continuance.
The Sixth Amendment protects the right of "the accused . . . to a speedy and public trial." U.S.
CONST. amend. VI. This protection attaches when "the defendant has been formally indicted or
actually restrained accompanying arrest." Dickerson v. Guste, 932 F.2d 1142, 1144 (5th Cir.
1991). 1Additionally, the period between a withdrawn indictment and a reindictment does not
count for Sixth Amendment purposes. Instead, "when no indictment is outstanding, only the
actual restraints imposed by arrest and holding to answer a criminal charge . . . engage the
particular protections of the speedy trial provision of the Sixth Amendment." United States v.
Loud Hawk, 474 U.S. 302, 310-11, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (citations and internal
quotations omitted).
We evaluate speedy trial claims by considering four factors the length of delay, the reason for
the delay, the defendant's assertion of the right, and the prejudice to him in a two-step process.
At the first step, we examine the length of the delay, which is "to some extent a triggering
mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity
for inquiry into the other factors that go into the balance." Barker v. Wingo, 407 U.S. 514, 530,
92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). "A delay of less than one year will rarely qualify as
`presumptively prejudicial' for purposes of triggering the Barker inquiry." Cowart v. Hargett, 16
F.3d 642, 646 (5th Cir. 1994) (concluding that where prejudice could not be presumed, "we need
not even consider the other factors in order to deny [defendant]'s speedy trial claim"). If the delay
raises a presumption of prejudice, we move to the second step, at which "the length of the delay,
the reason for the delay, and defendant's diligence in asserting his or her rights is weighed against
the prejudice to the defendant." United States v. Bergfeld, 280 F.3d 486, 488 (5th Cir. 2002)
(citation omitted).
Because Jackson did not suffer a prejudicial delay, his Sixth Amendment claim fails to pass the
threshold inquiry. We note that the government vigorously disputes that Jackson's first indictment
triggered his speedy trial right. We need not resolve that disagreement, however, because even
assuming the first indictment is the correct triggering date, Jackson cannot demonstrate
presumptively prejudicial delay.

The first indictment was withdrawn in February 2004, and from then until the second indictment,
Jackson was not subject to any "actual restraints imposed by arrest and holding to answer a
criminal charge," Loud Hawk, 474 U.S. at 310, 106 S.Ct. 648, in connection with Brown's
murder. Jackson has therefore suffered, at most, six months of delay: three months from
November 2003 through February 2004 and three months from April 2005 through July 2005. A
six-month delay is too short to raise a presumption of prejudice.

He was held on unrelated matters, including an arrest for bank robbery.


See, e.g., United States v. Maizumi, 526 F.2d 848, 851 (5th Cir. 1976) (finding that a delay of
10 months was not presumptively prejudicial).
Further, as already discussed, the district court did not clearly err when it concluded that Jackson
suffered no prejudice during the entirety of the prosecutorial delay. The court therefore had no
obligation to conduct an inquiry into other Barker factors including the reason for the delay
and properly rejected Jackson's Sixth Amendment claim without holding an evidentiary
hearing.

B.
Jackson makes at least two separate arguments that the FDPA is unconstitutional. First, he
submits that the death penalty is cruel and unusual in violation of the Eighth Amendment.
Second, he contends that the Fifth and Sixth Amendments require that any non-statutory
aggravating factors used to support the death sentence be alleged in the indictment. Neither claim
is supported by law.
Jackson appears to raise a third argument that the due process clause is violated where
aggravating factors are treated differently from elements of a crime. He neither explains that
contention nor cites any law but instead attempts to incorporate arguments made to the district
court "by reference as if fully set out for this Court's consideration."
2Argument by reference is not permitted; an appellant who requests "the adoption of previously
filed legal and factual arguments . . . abandon[s those] arguments by failing to argue them in the
body of his brief." Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (citing FED. R.APP. P.
28(a)(4), now FED. R.APP. P. 28(a)(9), which requires a brief to contain "appellant's contentions
and the reasons for them"). This argument if it even is a separate argument is waived.
Jackson concedes that "this Court must reject [the Eighth Amendment] claim based on binding
Fifth Circuit precedent. . . ." He is correct.

See, e.g., United States v. Jones, 132 F.3d 232, 242 (5th Cir. 1998) ("We are bound by Supreme
Court precedent which forecloses any argument that the death penalty violates the Constitution
under all circumstances.").
The claim based on the Fifth and Sixth Amendments is similarly precluded. "[I]t [is] neither
constitutional nor statutory error for the non-statutory aggravating factors to be omitted from the
indictment." United States v. Bourgeois, 423 F.3d 501, 507-08 (5th Cir. 2005).
The government disputes whether this issue was raised in the district court. If it was raised and
preserved, we would review the legal question de novo; otherwise, we would review only for
plain error. United States v. Vontsteen, 950 F.2d 1086, 1089-90 (5th Cir. 1992) (en banc). We
need not decide whether the issue was adequately raised, however, because we affirm even under
de novo review.
In response, Jackson argues that Bourgeois is undermined by Cunningham v. California, 549
U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), which addressed a California sentencing
system whereby most criminal offense statutes prescribed three tiers of punishment; the
sentencing judge was required to impose the middle term unless he found aggravating or
mitigating circumstances by a preponderance of the evidence. The Court invalidated the
arrangement because, under the Sixth Amendment, "[f]actfinding to elevate a sentence . . . falls
within the province of the jury employing a beyond-a-reasonable-doubt standard, not the
bailiwick of a judge determining where the preponderance of the evidence lies." 127 S.Ct. at 870.
Jackson claims that "the statutory scheme invalidated in Cunningham is indistinguishable from
the FDPA factfinding and weighing procedures" and that "the FDPA is even more structured, and
thus more suspect."
Jackson's reliance on Cunningham is misplaced. The Sixth Amendment deficiencies identified in
the California plan are not present in the FDPA. First, the factfinding in the present case was
performed by a jury, not a judge. Second, the FDPA requires aggravating factors to be proved
beyond a reasonable doubt. 18 U.S.C. 3593(c). Because Cunningham is not on point and does
not undermine Bourgeois, which remains the controlling authority in this circuit, we reaffirm the
constitutionality of the FDPA.
C.
Jackson argues that the court improperly excluded for cause two veniremen, Janice Epps and
Barbara Lee. According to Jackson, they were erroneously excluded based on objections to the
death penalty that did not affect their ability to serve as jurors.
Under Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), "a
sentence of death cannot be carried out if the jury that imposed or recommended it was chosen
by excluding veniremen for cause simply because they voiced general objections to the death
penalty or expressed conscientious or religious scruples against its infliction." Nonetheless,
potential jurors may be excused where they have indicated either "(1) that they would
automatically vote against the imposition of capital punishment without regard to any evidence
that might be developed at the trial of the case before them, or (2) that their attitude toward the
death penalty would prevent them from making an impartial decision as to the defendant's guilt."
Id. at 522 n. 21, 88 S.Ct. 1770.
In Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Court
clarified that the "standard is whether the juror's views would prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his oath. . . . [T]his
standard . . . does not require that a juror's bias be proved with unmistakable clarity" (internal
quotations omitted). The Court specified, in Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 2224,
167 L.Ed.2d 1014 (2007), that a trial court removing a potential juror "makes a judgment based
in part on the demeanor of the juror, a judgment owed deference by reviewing courts." Further,
"when there is ambiguity in the prospective juror's statements, `the trial court, aided as it
undoubtedly [is] by its assessment of [the venireman's] demeanor, [is] entitled to resolve [the
question] in favor of the State.'" Id. at 2223 (quoting Witt, 469 U.S. at 434, 105 S.Ct. 844).
Jackson argues that Epps should not have been excused. Though he acknowledges that "[a]fter
stating her position over and over [she] finally just shut down and said she wouldn't vote for
death," he contends that her voir dire as a whole demonstrated otherwise and that the prosecutor's
badgering led to the statements used to justify her exclusion for cause.
We disagree. In Epps's questionnaire, she answered that "I don't believe I have the right to say if
someone should live or die." Under questioning, she admitted that she could accept the death
penalty for those that kill children or "for just no reason at all." The court asked for additional
questioning as to her ability to follow juror instructions in cases where death might result, which
led to her statement that "I would have to vote against the death penalty," and then she was
excused.
The court observed Epps's demeanor and heard her answers. Those answers were inconsistent for
a time, which alone might have been ground to excuse her. Ultimately, however, she stated that
she would not vote for death. In light of the deference owed, the court did not abuse its
discretion.
See United States v. Bernard, 299 F.3d 467, 474-75 (5th Cir. 2002) (affirming dismissal of
potential juror who indicated on her questionnaire that she did "not feel [she] ha[d] the right to
judge whether a person lives or dies" and then wavered during questioning).
It is just as evident that the district court did not err as to Lee. During government questioning,
she agreed that even if the evidence pointed in the direction of a death sentence, she might not be
able to vote that way, "because I'm not sure if I can live with myself if I do." Later, as with Epps,
Lee vacillated somewhat during questioning by the defense. Finally, under instruction to give a
yes or no answer, she was asked whether her feelings about the death penalty would substantially
impair her ability honestly to answer the questions presented, and she said yes. The district court
properly relied on that statement and excused her.

D.
Before the fight with Jackson began, Brown took off his shirt. Jackson argues that the court
improperly allowed a government witness to speculate about what Brown was thinking when he
did that.
Jackson sought to demonstrate that he acted in self-defense and that Brown initiated the
confrontation by pulling a shank on him. The government contends instead that Brown was
unarmed and initiated only a fistfight, from which he attempted to withdraw when Jackson drew
his own shank.
The government presented Derric Wilson, a special investigator at the prison, who testified that
inmates typically remove their shirts before a fistfight, because otherwise opponents may be able
to "grab onto" their clothes. But in a knife fight, Wilson said, "it has been my experience that
inmates have typically padded their clothing," with some even going "so far as to improvise
protective vests out of newspapers and magazines and make improvised body armor." Jackson
objected, saying that was "pure speculation as to what [was] in the mind of an inmate when he
takes his shirt off."
Jackson urges that the court abused its discretion in permitting the testimony, which he claims
was inadmissible because it was an "unfounded opinion based upon mere conjecture."
Alternatively, he contends that if witnesses cannot testify as to what was in a defendant's mind,
they should not be able to say what was in a potential victim's mind.
Wilson's testimony was rationally related to what he observed as a prison official and was helpful
for understanding prison fights. He indicated both that he had not observed the yard fight
between Brown and Jackson and that his testimony was founded on unrelated investigations he
had conducted. Accordingly, his testimony was not "mere conjecture" regarding what Brown was
thinking, but rather background information about prison fights that the jury could consider or
disregard.
As Jackson's brief acknowledges, "[t]he government made no effort to connect these other
unrelated incidents to either Jackson nor [ sic] the deceased."
Moreover, a district court may admit testimony about a potential victim's state of mind. "[I]n the
ordinary circumstance[,]" we do not permit witnesses to speculate about a "defendant's state of
mind or intent," United States v. Chavis, 772 F.2d 100, 107 (5th Cir. 1985), because intent is one
of the ultimate issues for the jury. By contrast, the prejudice to a defendant is both less direct and
less substantial where a witness is testifying about what someone other than the defendant
thought. Therefore, even assuming arguendo that Wilson testified as to Brown's state of mind, the
court did not abuse its discretion.
Jackson argues that even if the testimony was admissible, the court erred when it allowed Wilson
to testify as a lay witness under Federal Rule of Evidence 701. He claims that some of Wilson's
testimony improperly crossed the line into expert testimony governed by Federal Rule of
Evidence 702.
Rule 701 provides,
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or
inferences is limited to those opinions or inferences which are (a) rationally based on the
perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or
the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Rule 702 provides,
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles and methods
reliably to the facts of the case.
Jackson did not raise this issue in the district court, so we review only for plain error. To prove
plain error, he must "show (1) there was error, (2) the error was plain, (3) the error affected his
`substantial rights,' and (4) the error seriously affected `the fairness, integrity or public reputation
of judicial proceedings.'" United States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007) (quoting
United States v. Olano, 507 U.S. 725, 732, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).
The "distinction between lay and expert witness testimony is that lay testimony results from a
process of reasoning familiar in everyday life, while expert testimony results from a process of
reasoning which can be mastered only by specialists in the field." United States v. Sosa, 513 F.3d
194, 200 (5th Cir. 2008) (citations and internal quotations omitted). To be considered expert,
testimony must involve more than "common sense or the officer's past experience formed from
firsthand observation." Id.

Wilson indicated that his testimony was based on his "investigat[ion of] various assaults and
fights with knives and fights with fists[.]" He represented that he was "familiar with the clothing
that inmates typically wear when they're fighting with knives" and "aware of how inmates go
about fist-fighting[.]" Based on those predicates, it appears that Wilson testified only as a lay
witness drawing from his "past experiences formed from firsthand observation" as an
investigative agent. Accordingly, any error in admitting his statements as lay rather than expert
testimony was not plain.
E.
To demonstrate that he acted in self-defense, Jackson tried to introduce Brown's prison
disciplinary records into evidence. The district court barred the evidence, ruling that it should be
admitted only if Jackson could prove that he had knowledge of the specific acts described by the
records. Jackson contends that that ruling was improper and deprived him of the ability to
present a complete defense.
Under Federal Rule of Evidence 404(a), character evidence is generally not admissible "for the
purpose of proving action in conformity therewith on a particular occasion. . . ." The rules make
an exception, however, and permit the introduction of "[e]vidence of a pertinent trait of character
of the alleged victim of the crime offered by an accused. . . ." FED. R. EVID. 404(a)(2). Federal
Rule of Evidence 405 provides that such a "trait of character" may always be demonstrated to the
jury by presenting evidence of the victim's reputation. On the other hand, testimony about
"specific instances of conduct" may be used only if the "character or a trait of character of a
person is an essential element of a charge, claim, or defense. . . ." FED. R. Evid. 405 (emphasis
added).
The district court was correct to limit Jackson's ability to present Brown's disciplinary records.
Brown's propensity for violence is a pertinent trait of character, because it supports Jackson's
argument that Brown was the first aggressor. Accordingly, the court allowed extensive testimony
on Brown's reputation in the prison community.
The disciplinary records that Jackson attempted to introduce, however, involved specific
instances of conduct. Under rule 405, such evidence is admissible only if Brown's violent
character was "an essential element of [Jackson's] defense." In Gulley, addressing the same issue,
we held,
. . . Brown's prior specific acts were not admissible to prove his alleged propensity for violence.
First, as recognized by the Seventh, Eighth, and Ninth Circuits, the plain language of Rule
405(b) limits the use of specific instances of conduct to prove essential elements of a charge or
defense. Second, Brown's character was not an essential element of the self defense claim in the
"strict sense" because a self defense claim may be proven regardless of whether the victim has a
violent or passive character.
Gulley, 526 F.3d at 819 (internal citations and quotations omitted).
Jackson attempts to avoid Gulley by citing Holmes v. South Carolina, 547 U.S. 319, 321, 126
S.Ct. 1727, 164 L.Ed.2d 503 (2006), which addressed the constitutionality of an "evidence rule
under which the defendant may not introduce proof of third-party guilt if the prosecution has
introduced forensic evidence that, if believed, strongly supports a guilty verdict." The Court
noted that evidentiary rules are given wide latitude unless they "infringe upon a weighty interest
of the accused and are arbitrary or disproportionate to the purposes they are designed to serve."
Id. at 324, 126 S.Ct. 1727 (citation and internal quotations omitted). The Court concluded that
the evidentiary rule was unconstitutional, because it was "arbitrary in the sense that it does not
rationally serve the end that the . . . rule[was] designed to further." Id. at 330-31, 126 S.Ct. 1727
(internal quotations omitted).
Jackson does not argue with any specificity why rules 404(a) and 405 are "disproportionate" or
"arbitrary," " i.e., [that they are] rules that exclude[] important defense evidence but that [do] not
serve any legitimate interests." Id. at 325, 126 S.Ct. 1727. By limiting the admissibility of
specific acts, rules 404 and 405 serve the legitimate interest of ensuring that juries do not acquit
or convict on impermissibly prejudicial grounds, but those rules allow limited exceptions where
more context is necessary in the interest of justice. This careful balance is hardly
disproportionate or arbitrary, and Jackson provides no argument to the contrary beyond assertion.
As the advisory committee notes to rule 405 explain,
Of the three methods of proving character provided by [rule 405], evidence of specific instances
of conduct is the most convincing. At the same time it possesses the greatest capacity to arouse
prejudice, to confuse, to surprise, and to consume time. Consequently the rule confines the use of
evidence of this kind to cases in which character is, in the strict sense, in issue and hence
deserving of a searching inquiry. When character is used circumstantially and hence occupies a
lesser status in the case, proof may be only by reputation and opinion. These latter methods are
also available when character is in issue.
FED.R.EVID. 405 advisory committee's note.
Jackson also claims that the government "opened the door" to the records. Defense witness
Darrell Evans, one of Jackson's fellow inmates, testified that Brown "always have big knives and
it be hanging out of his pocket. . . ." On cross-examination, the government expressed some
skepticism and asked, "Are you saying that if you're walking around with a shank hanging out of
your pocket, that a guard is not going to notice that?" Based on that question, Jackson again
sought to admit the disciplinary records, this time to rebut the impression that "Brown did not
possess shanks because the guards did not notice it."
This argument is equally unavailing. First, the witness immediately clarified his testimony by
explaining that the knives would hang out of Brown's pockets only when he was sitting down in
his cell, not walking around in plain view of the guards. Second, the court correctly noted that
the disciplinary records would not be even arguably relevant unless they demonstrated that the
guards had in fact caught Brown with a shank.
Of the records even remotely related to violence, only two came from the prison; one documents
an incident in which Brown threw hot coffee on a guard, and the other reports that he threatened
to stab a guard. The remaining records came from other prisons, and even there, only two
involved shanks. Any relationship between the subject of cross-examination and the proffered
evidence was tenuous at best, and the court did not abuse its discretion in excluding it.
The majority of the records describe simple acts of mischief (e.g., falsely triggering fire
sprinklers) or insubordination (e.g., refusing to follow instructions from prison officials).

F.
Jackson avers that the district court violated his Sixth Amendment right to counsel when it
allowed only the lawyer that had conducted the direct examination of a witness to object during
that witness's cross-examination. Because Jackson did not object to that ruling and so did not
preserve the issue for appeal, we review only for plain error.
The issue arose when one of Jackson's lawyers, Mr. Barlow, objected during the cross-
examination of a witness that Jackson's other lawyer, Mr. Morrow, had directly examined. After
questioning was complete and the jury had been excused, the judge ordered, "I don't want one of
you objecting and then the other one. That was Mr. Morrow's witness. Mr. Barlow, don't object if
he's the person responsible for the witness." Jackson's counsel responded by saying only "Yes,
your honor."
"`Plain' is synonymous with `clear' or `obvious,' and at a minimum, contemplates an error which
was clear under current law at the time of trial. . . . 1Under plain error, if a defendant's theory
requires the extension of precedent, any potential error could not have been plain." United States
v. Garcia-Rodriguez, 415 F.3d 452, 455 (5th Cir. 2005) (citing United States v. Hull, 160 F.3d
265, 271-72 (5th Cir. 1998)) (internal quotations omitted).
1Any error here is not plain. Although Jackson correctly notes that federal law allows him to
have two attorneys, he can point to no caselaw that requires both of them to be permitted to
object at the same time; instead, Jackson argues for an extension of our existing Sixth
Amendment jurisprudence. The government, meanwhile, admits that it can find no authority on
the issue; it cites general precedent acknowledging the discretion a district court is afforded to
control the trial. Because this is a question of first impression and the law was not obvious at the
time of trial, any error was not plain.

The government cites, for example, United States v. Pace, 10 F.3d 1106, 1114 (5th Cir. 1993)
(stating that the court of appeals" must determine whether the trial court imposed unreasonable
limits on cross-examination such that a reasonable jury might have received a significantly
different impression of a witness' credibility had defense counsel pursued his proposed line of
cross-examination") (citation and internal quotations omitted).
G.
Jackson argues that the district court erred when it forbade him from impeaching government
witness Victor Richards with evidence that Richards is a registered sex offender. Richards, an
inmate, testified that Jackson and Gulley chased Brown into a cell and stabbed him. In the
1980's, Richards was convicted of sexual assault, sentenced to two years of probation, and
required to register as a sex offender.
Federal Rule of Evidence 609 establishes two relevant restrictions relevant regarding
impeachment by prior criminal convictions. 1First, under rule 609(a)(1), the impeachment
evidence is subject to Federal Rule of Evidence 403, which says that even relevant evidence
"may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury. . . ." FED.R.EVID. 403. Second, under
rule 609(b), evidence of a conviction may not be used "if a period of more than ten years has
elapsed since the date of the conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is the later date. . . ." FED.R.EVID. 609(b).
The district court excluded the evidence on both grounds, finding that the conviction was too old
and unfairly prejudicial. On appeal, Jackson raises three arguments: First, the conviction's
probative value is significant; second, because Richards is still required to register as a sex
offender, he has not yet been "release[d] . . . from the confinement imposed"; and third,
excluding the impeachment evidence violated Jackson's Sixth Amendment right to cross-
examine.
Jackson argues the evidence was probative because Richards was "a registered sex offender, a
result of his felony conviction[, and so] he likely may also be untruthful." Further, because he
was subject to an ongoing legal obligation to register as a sex offender, he might have "potential
bias . . . to testify for the government, thereby staving in the `good graces' of those who could
prosecute him should he ever fail to comply with his registration requirements."
As Jackson admits, however, registration as a sex offender is a "scarlet letter." So although the
jury might have considered Richards more likely to be untruthful if it had known of his
conviction, there is a significant danger that it would have instead improperly discounted his
testimony because of personal revulsion for sex offenses. Moreover, there was ample reason for
the jury to find Richards untrustworthy without introducing the prejudicial evidence the jury
already knew that (1) Richards had been convicted of several other crimes (including burglary
and theft); (2) he was currently in prison for a 1999 bank robbery; (3) the government would
attempt to get his bank robbery sentence reduced in exchange for his testimony; and (4) he had a
history of mental issues and drug abuse. Given the potentially severe prejudice that could have
resulted from admitting the conviction and its mostly cumulative probative value, the district
court did not abuse its discretion.
Because we affirm the decision to exclude the evidence as unfairly prejudicial under rule 403, we
need not address its ruling that the conviction was too old to be admissible under rule 609(b).
The court also did not commit constitutional error. Evidentiary rules generally are upheld unless
they "infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the
purposes they are designed to serve" (citation and internal quotations omitted). Holmes, 547 U.S.
at 324, 126 S.Ct. 1727. "[W]ell-established rules of evidence permit trial judges to exclude
evidence if its probative value is outweighed by certain other factors such as unfair prejudice,
confusion of the issues, or potential to mislead the jury. See, e.g., FED. R. EVID. 403." Id. at
326, 126 S.Ct. 1727 (emphasis added). The decision to exclude the evidence because of its
prejudicial value was therefore constitutionally permissible.
H.
Defense witness Shannon Agofsky testified that Brown had a knife and said he was going to
assault Jackson. The government impeached Agofsky under Federal Rule of Evidence 609 with
evidence that Agofsky had been convicted of two counts of capital murder. Agofsky's case has an
unusual procedural history, however, that leads Jackson to question whether Agofsky was
improperly impeached with non-final convictions.
Agofsky's convictions for capital murder were the result of a single killing. In July 2006, in
United States v. Agofsky, 458 F.3d 369 (5th Cir. 2006), we held that the Double Jeopardy Clause
forbade convicting Agofsky of both counts, because the charges amounted to the same offense.
Id. at 371-72. We nonetheless concluded that one of the two death sentences could stand. Id. at
372-73. Accordingly, we vacated the convictions "to prevent double jeopardy" and remanded
with instruction to impose, "at the Government's election, a guilty verdict and death sentence for
either Federal Murder or Murder by a Federal Prisoner." Id. at 375.
He was convicted of both premeditated, first degree murder and premeditated, first degree
murder by a federal prisoner serving a term of life imprisonment.
Agofsky petitioned for writ of certiorari; because of the pending petition, the Fifth Circuit stayed
the mandate in August 2006. After the Court denied certiorari in January 2007, Agofsky v.
United States, 549 U.S. 1182, 127 S.Ct. 1149, 166 L.Ed.2d 998 (2007), the Fifth Circuit lifted the
stay of the mandate, which finally issued in February 2007. Agofsky testified at Jackson's trial in
October 2006 after the Agofsky panel had rendered its opinion but before the Court denied
certiorari and the mandate issued.
On appeal, Jackson argues that Agofsky should not have been impeached with either conviction.
The question now is whether, at the time of the impeachment, Agofsky had two convictions (per
the original district court verdict), zero convictions (per the panel order vacating the
convictions), or one conviction (per the instruction that the district court reimpose one of the two
original convictions on remand). We conclude that he was correctly impeached with both
convictions.
1This court's decisions are "not final until we issue a mandate." Charpentier v. Ortco Contractors,
480 F.3d 710, 713 (5th Cir. 2007). In Charpentier, we rejected the argument that an award ceased
to exist "on the date we issued our opinion [vacating the award]." Id. Similarly, Agofsky's
convictions did not cease to exist when the panel opinion vacating them was entered. Because
the mandate had not yet issued, the original district court judgment remained in effect; Agofsky
was still convicted of both crimes at the time of his testimony.
The existence of the convictions did not automatically make them admissible. Rule 609(a)(1)
states that convictions for crimes that do not involve acts of dishonesty are admissible subject to
rule 403, which allows the district court to exclude evidence where the "probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury. . . ." FED.R.EVID. 609(a)(1). Because Jackson did not raise a rule 403 challenge at trial
or on appeal, we do not review the district court's decision on the matter.
Further, under rule 609(e), "[t]he pendency of an appeal therefrom does not render evidence of a
conviction inadmissible." Accordingly, neither the stayed mandate in this court nor the pending
certiorari petition affected the admissibility of Agofsky's convictions. We note, however, that the
rules permitted Jackson to present information about Agofsky's appeal to ameliorate the
impeachment. FED. R. EVID. 609(e) ("Evidence of the pendency of an appeal is admissible.").
Jackson declined to do so despite being reminded of the option by the district court.
In Agofsky's case, the Supreme Court was acting as an "appellate" court. See U.S. CONST. art.
III, 2. Agofsky's certiorari petition is therefore included in rule 609(e)'s reference to "pendency
of an appeal."
Jackson argues that the "obvious purpose" of rule 609(e) is to respect the "presumption of
correctness which ought to attend judicial proceedings" and that that purpose is not served by
respecting a conviction that a court of appeals has reversed while certiorari is pending. That
argument is unavailing under the peculiar circumstances of this case.
Agofsky's conviction was not reversed on the merits indeed, the district court was ordered to
re-enter the conviction on one count. Further, rule 609(e) is pellucid, and we must follow it. "It is
well established that when the statute's language is plain, the sole function of the courts at
least where the disposition required by the text is not absurd is to enforce it according to its
terms." Latnie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004)
(internal quotations and citations omitted); see also, e.g., Garcia v. Gloor, 618 F.2d 264, 268 (5th
Cir. 1980) ("[W]e start with [the statute's] plain words without pausing to consider whether a
statute differently framed would yield results more consonant with fairness and reason.").

I.
Jackson argues that, as a matter of constitutional right, he should have been allowed to submit a
statement of allocution to the jury. The district court denied Jackson's request to allocute, citing
United States v. Hall, 152 F.3d 381, 396 (5th Cir. 1998) ("We conclude that a criminal defendant
in a capital case does not possess a constitutional right to make an unsworn statement of remorse
before the jury that is not subject to cross-examination."), abrogated on other grounds by United
States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000).
1A statement of allocution is "[a]n unsworn statement from a convicted defendant to the
sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct,
apologize for the crime, or say anything else in an effort to lessen the impending sentence."
BLACK'S LAW DICTIONARY 83 (8th ed. 2004).
Jackson's brief does not even mention Hall, let alone attempt to distinguish it. This panel may not
overrule the decision of a prior panel. Teague v. City of Flower Mound, 179 F.3d 377, 383 (5th
Cir. 1999). Accordingly, we follow Hall and uphold the district court's order.

J.
Jackson contends that the district court violated his Eighth Amendment rights when it failed to
instruct the jury at sentencing that if it had "residual doubts" about his guilt, it should not
sentence him to death. Binding Supreme Court precedent, however, forecloses this argument.
In Franklin v. Lynaugh, 487 U.S. 164, 174, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), Justice
White, writing for four Justices, first noted that "[t]his Court's prior decisions, as we understand
them, fail to recognize a constitutional right to have [residual] doubts considered as a mitigating
factor." Even if the Eighth Amendment guaranteed such a right, mere denial of a jury instruction
did not impair the right, because the "trial court placed no limitation whatsoever on [defendant]'s
opportunity to press the `residual doubts' question with the sentencing jury." Id. The Court also
rejected the argument that jurors needed to be told they could consider residual doubt.
Accordingly, "even if petitioner had some constitutional right to seek jury consideration of
`residual doubts' about his guilt during his sentencing hearing a questionable proposition
the rejection of petitioner's proffered jury instructions did not impair this `right.'" Id. at 175, 108
S.Ct. 2320 (emphasis added). Justice O'Connor, for herself and Justice Blackmun, went further
and wrote that "the Eighth Amendment does not require [consideration of residual doubt by the
sentencing body]." Id. at 187, 108 S.Ct. 2320.
The Court recently reiterated this aspect of Franklin in Oregon v. Guzek, 546 U.S. 517, 525, 126
S.Ct. 1226, 163 L.Ed.2d 1112 (2006). The Guzek Court, noting that " Franklin did not resolve
whether the Eighth Amendment affords capital defendants such a right [to consideration of
residual doubt]," concluded that "we once again face a situation where we need not resolve
whether such a right exists. . . ." Id.
The Fifth Circuit has also addressed the issue. Although there is a "difference between rules
relating to what mitigating evidence the jury may consider and rules relating to instructing the
jury how to consider such evidence," a criminal defendant is "not constitutionally entitled to
instruct the jury to consider . . . residual doubt. . . ." Smith v. Black, 904 F.2d 950, 968-69 (5th
Cir. 1990), vacated on other grounds, 503 U.S. 930, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992).
We find no error in the denial of Jackson's request for a jury instruction on residual doubt. First,
neither the Supreme Court nor the Fifth Circuit has held that a defendant is entitled to such an
instruction. Second, even if we assume some right to consideration of residual doubt, the "trial
court placed no limitation whatsoever on [Jackson]'s opportunity to press the `residual doubts'
question with the sentencing jury." Jackson was able to argue self-defense at sentencing, and the
court explicitly instructed the jury that it could consider "[a]ny other[factors] you may find from
the evidence" and "anything else about the commission of the crime . . . that would mitigate
against imposition of the death penalty." Following Franklin and Smith, we therefore conclude
that any right to consideration of residual doubt was not impaired.
The lengthy list of cases that Jackson cites suggest, at most, that a defendant is permitted to argue
residual doubt. None stands for the proposition that the Eighth Amendment compels a jury
instruction on residual doubt.
K.
As part of rendering its sentencing verdict, the jury completed a special verdict form that
included an extensive sixty-item list of potential mitigating factors. Only one of those factors
was found by all twelve jurors, and fifty of them received zero support.
Factor # 15: "[Jackson] had no positive role model in his life as a child and this factor is
mitigating."

Jackson argues that the verdict is inconsistent with the evidence presented at trial. He claims that
in one case, the verdict contradicted an explicit government stipulation. Elsewhere, he claims
that the jury failed to find factors that had been demonstrated at trial "beyond all doubt." He
concludes that "[n]o rational juror could have viewed the evidence and then answered the
questions regarding the mitigating factors in such a manner without violating his oath as a juror."
As an initial matter, we have expressed doubt that a special verdict on mitigating factors is
reviewable. "Assuming, arguendo, that we possess the authority to review the jurors' special
findings regarding mitigating factors, we must accept the jurors' factual determinations unless no
reasonable juror could have arrived at the conclusion reached by the juror in question." Hall, 152
F.3d at 413. Further, verdict inconsistencies are generally tolerated. See Agofsky, 458 F.3d at
375.
See United States v. Hall, 152 F.3d 381, 413 (5th Cir. 1998) ("[W]e question whether the jurors'
failure to find a particular mitigating factor constitutes a proper subject of review for this
court."), abrogated on other grounds by United States v. Martinez-Salazar, 528 U.S. 304, 120
S.Ct. 774, 145 L.Ed.2d 792 (2000); see also United States v. Bernard, 299 F.3d 467, 485 (5th Cir.
2002) ("This court has previously expressed doubt regarding its authority to review jury findings
relating to mitigating factors. [United States v.] Hall questions whether a jury's failure to find the
existence of a mitigating factor is subject to appellate review, since the FDPA does not require
the jury to make special findings of the existence of, or degree of jury unanimity upon,
mitigating factors.") (internal citation omitted).

As explained in United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984),
[W]ith few exceptions [involving crooked members of the venire panel or improper outside
influences on the jury during trial], once the jury has heard the evidence and the case has been
submitted, the litigants must accept the jury's collective judgment. Courts have always resisted
inquiring into a jury's thought processes; through this deference the jury brings to the criminal
process, in addition to the collective judgment of the community, an element of needed finality.
(Internal citations omitted.) The case Jackson cites repeatedly as contrary persuasive authority,
Getsy v. Mitchell, 456 F.3d 575 (6th Cir. 2006), was vacated by the en banc court, Getsy v.
Mitchell, 495 F.3d 295, 300, 309 (6th Cir. 2007) (en banc) (noting that "[p]erhaps some day the
Supreme Court will hold that . . . inconsistent verdicts . . . are unconstitutional[, b]ut this is not
the law of the land today . . ."), cert. denied, ___ U.S. ___, 128 S.Ct. 1475, 170 L.Ed.2d 299
(2008).
Jackson's strongest claim that the verdict is inconsistent involves Gulley. The government
stipulated that Gulley did not receive the death penalty, but on the special verdict form, only one
juror found that to be a proven mitigating factor. Jackson argues that in making that finding,
"[e]even of the twelve jurors found an uncontroverted, stipulated, written in stone fact, not to be
a fact."

Jackson's argument overstates his case. The special verdict form asked whether the jury found
that "[a]n equally culpable defendant, Arzell Gulley, did not receive a sentence of death as a
result of the offense" (emphasis added). The government stipulated only that Gulley did not
receive a sentence of death; the jury, meanwhile, could have rationally concluded that he was not
equally culpable. Jackson testified that Gulley "didn't help me kill the man" and in fact yelled
"[l]et's get out of here" after the first stab. Thus, the jury's finding is neither inconsistent with the
government's stipulation nor irrational.
The other findings that Jackson cites as inconsistent all relate to factors that the government did
not stipulate to be true, e.g., Jackson's head injury as a baby, low I.Q. score, possible retardation,
bad home life, good behavior in prison, and diligence in teaching himself to read. Jackson argues
that "the evidence overwhelmingly established those factors without controversion by the
government."
Jackson alludes to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)
(barring executions of the mentally retarded), but he does not make an Atkins claim.
This mitigation evidence, however, could rationally be called into question. Much of it was
provided by Jackson's childhood and current girlfriend, whom the jury was free to disbelieve,
and the government used cross-examination to cast doubt on the reliability of Jackson's expert
witnesses. Likewise, despite Jackson's claims to good behavior and educational achievement, the
jury, upon learning that he ran a gambling operation in prison, reasonably could have concluded
that his rehabilitation was not going well.
See, e.g., Hall, 152 F.3d at 413 ("In support of his claim that he experienced an upbringing that
militated against the imposition of the death penalty, Hall offered only the testimony of two of
his family members, which the jury was free to believe or disbelieve.") (emphasis added).
Further, and more fundamentally, the jury was not required to find that a factor was mitigating,
even if it believed the factor's factual predicate to be true. All the law requires is that jurors be
aware that they can consider a factor to be mitigating. See Bernard, 299 F.3d at 48-86. 1For
example, no juror found that Jackson "experienced persistent falling when trying to walk until he
was 5 years old and this factor is mitigating." In reaching that conclusion, the jurors could have
believed Jackson experienced problems walking but that the factor did not weigh against a
sentence of death.
The jury did not merely rubber-stamp the prosecution's request for a death sentence. Four jurors
found that Jackson's father was abusive and that the abuse was mitigating. Every juror found it
mitigating that Jackson had no positive role model. Six found it mitigating that he was in prison
for a non-violent offense. Ten found it mitigating that he was not actively looking to kill
someone. Nine found it mitigating that he was the first aggressor. Eight found it mitigating that
there are prisoners with worse records who are not sentenced to death.
In short, the jurors appear to have properly and conscientiously carried out their duties. We
cannot conclude that their findings are beyond the bounds of reason or are inconsistent with the
government's stipulations.
L.
Jackson argues that the court erred in denying him a new trial or at least a hearing regarding his
new trial motion. He contends the jury erroneously believed that even if he were sentenced to life
without parole, it was still possible he could be released before the end of his life despite the
district court's explicit instruction to the contrary. To support this contention, Jackson offered an
affidavit of an investigator who contacted jurors after the trial. The affidavit stated that a number
of them believed that Jackson could be released early, as had happened with a cooperating
witness who testified at trial.
A juror's affidavit "may not be received on a matter about which the juror would be precluded
from testifying." 1A juror may testify regarding only three aspects of the events surrounding
deliberations: " (1) whether extraneous prejudicial information was improperly brought to the
jury's attention, (2) whether any outside influence was improperly brought to bear upon any
juror, or (3) whether there was a mistake in entering the verdict onto the verdict form." FED. R.
EVID. 606(b) (emphasis added).
In United States v. Jones, 132 F.3d 232, 245-46 (5th Cir. 1998), a death penalty case like
Jackson's, we unambiguously stated that "[r]ule 606(b) has consistently been used to bar
testimony when the jury misunderstood instructions" and that "`outside influence' refers to a
factor originating outside of normal courtroom proceedings which influences jury deliberations,
such as a statement made by a bailiff to the jury or a threat against a juror" (emphasis added).
Jones is on point, and the proffered affidavit should not be received. The affidavit does not
provide evidence that " extraneous prejudicial information was improperly brought to the jury's
attention" or that "any outside influence was improperly brought to bear upon any juror." At
most, it indicates that some jurors apparently misunderstood what Jackson concedes was the
court's explicit instruction. Any misunderstanding was seemingly caused by the testimony of a
government witness, which came as a valid part of his direct examination during "normal
courtroom proceedings."
To avoid the impact of Jones, Jackson mischaracterizes the order denying a new trial as a
misstatement of the law. He seizes on the court's statement that "because the jury charge did not
directly address or even allude to the possibility of future sentence reductions, the jury cannot be
accused of explicitly disregarding the court's instructions. . . ." He argues that the court
incorrectly focused on the correctness of its instructions rather than the jury's violation of them.
Jackson overlooks the final sentences in the paragraph, in which the court properly explained it
was concerned only with influences external to the trial: "Moreover, so long as any
misunderstanding regarding the jury charge was not the result of an improper outside source or
extraneous influence, the district court need not grant a new trial" (citing Jones, 132 F.3d at 245-
46). The court then explained that Jackson had failed to offer any evidence that showed that the
jury's erroneous understanding of what life without parole meant had originated outside of the
trial.
Because the investigator's affidavit was inadmissible, and Jackson presented no other evidence of
jury confusion, the district court was well within its discretion to deny a new trial. Moreover,
given that Jackson had not proffered any admissible evidence, the court properly denied the
motion to hold an evidentiary hearing.
See, e.g., Tanner v. United States, 483 U.S. 107, 127, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987)
("[T]he District Court did not err in deciding, based on the inadmissibility of juror testimony and
the clear insufficiency of the nonjuror evidence offered by petitioners, that an additional post-
verdict evidentiary hearing was unnecessary.").
For the reasons stated, we AFFIRM the conviction and sentence.