Legal Opinion regarding Whether or Not the Alleged Wife of the Accused

may be Allowed to Testify against Him

Generally, Section 22 on the Rules on Evidence provides that a witness may be

disqualified by reason of marriage.

Section 22. Disqualification by reason of marriage. During their marriage, neither the
husband nor the wife may testify for or against the other without the consent of the affected
spouse, except in a civil case by one against the other, or in a criminal case for a crime
committed by one against the other or the latters direct descendants or ascendants.

In the case at bar, it was declared that Vole wife, Christine was still married to a
German man when she married Leonard. In the case at bar, Article 26 of the Family Code, such
foreign marriage is considered valid in the Philippines.
Article 26. All marriages solemnized outside the Philippines, in accordance with the laws
in force in the country where they were solemnized, and valid there as such, shall be valid in the
country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38.

This case also gives rise as to the question of the validity of her marriage with Vole to
whom she contracted marriage with in a second marriage. Article 35 of the Family Code
answers the question.
.
Article 35. The following marriages shall be void from the beginning:
1.) Those contracted by any party below eighteen years of age even with the consent of
parents or guardians
2.) Those solemnized by any person not legally authorized to perform marriages unless
such marriages were contracted with either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so
3.) Those solemnized without license, except those covered in the preceding chapter
4.) Those bigamous or polygamous marriages not falling under Article 41
5.) Those contracted through mistake of one contracting party as to the identity of the
other
6.) Those subsequent marriage that are void under Article 53

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 While the Article 35 of Family Code gives a ground for a void marriage, Article 41 of the
Family Code, provides that the presumption is that the first marriage is valid.
Article 41. A marriage contracted by any person during subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent marriage, the
prior spouse had been absent for four consecutive years and the spouse present has a well-
founded belief that the absent spouse was already dead.
These principles of bigamous marriages, as embodied in our civil and criminal laws, have
been muddled by the Supreme Court in various cases, includingTenebro v. CA. In this case,
Veronico Tenebro married Leticia Ancajas in 1990. Soon after, Tenebro left Ancajas after he
told her that in 1986 he was previously married to one Hilda Villareyes. Afterwards, Tenebro
contracted a third marriage with a certain Nilda Villegas in 1993. Furious, Ancajas filed a
complaint for bigamy against Tenebro. Both the lower court and the Court of Appeals found
Tenebro guilty of the crime of bigamy.
Article 349 of the Revised Penal Code criminalizes any person who shall contract a
second or subsequent marriage before the former marriage has been legally dissolved, or before
the absent spouse has been declared presumptively dead by means of a judgment rendered in the
proper proceedings. It further held that the Revised Penal Code penalizes the mere act of
contracting a second or subsequent marriage during the subsistence of a valid marriage. The
Supreme Court also ruled that a declaration of the nullity of the second marriage on the ground
of psychological incapacity is of absolutely no moment insofar as the States penal laws are
concerned.
For the reason that her marriage with Leonard Vole is actually void, Christine may be
allowed to testify against Leonard Vole. We can conclude that Christine is actually qualified to
testify against Leonard Vole.

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 Republic of the Philippines
National Capital Judicial Region
REGIONAL TRIAL COURT
Branch 8, Manila

Republic of the Philippines,

Plaintiff,

Criminal Case No. 09178

-versus-
For: Murder
Leonard Vole,
Defendant,

MOTION FOR RE-OPENING OF TRIAL

Defendant, by his undersigned attorney, respectfully moves that the decision of this
Honorable Court dated June 10, 2013 and received on June 27, 2013 be set aside and new trial be
granted on the following grounds:

GROUNDS

The basis for a motion to reopen a case to introduce further evidence is Section 5, Rule 30 of
the Rules of Court, which reads:

Sec. 5. Order of trial. Subject to the provisions of section 2 of Rule 31, and unless the
court for special reasons otherwise directs, the trial shall be limited to the issues stated in the
pre-trial order and shall proceed as follows:

xxxx

(f) The parties may then respectively adduce rebutting evidence only, unless the court,
for good reasons and in the furtherance of justice, permits them to adduce evidence upon
their original case.

ARGUMENT

Under this rule, a party who has the burden of proof must introduce, at the first instance, all
the evidence he relies upon and such evidence cannot be given piecemeal. The obvious rationale
of the requirement is to avoid injurious surprises to the other party and the consequent delay in
the administration of justice.

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 Alvarez vs. Guevara iterated that under the circumstances of the case, it lay within the
discretion of the court below to permit the reopening of the case before the rendition of
judgment, and it does not appear from the record that in doing so, it abused its discretion.

Likewise, in Director of Lands v. Roman Archbishop of Manila,we ruled: The strict rule is
that the plaintiff must try his case out when he commences. Nevertheless, a relaxation of the rule
is permitted in the sound discretion of the court. The proper rule for the exercise of this
discretion, it has been said by an eminent author, is, that material testimony should not be
excluded because offered by the plaintiff after the defendant has rested, although not in rebuttal,
unless it has been kept back by a trick, and for the purpose of deceiving the defendant and
affecting his case injuriously.
These principles find their echo in Philippine remedial law. While the general rule is
rightly recognized, the Code of Civil Procedure authorizes the judge for special reasons, to
change the order of the trial, and "for good reason, in the furtherance of justice," to permit the
parties to offer evidence upon their original case. These exceptions are made stronger when
one considers the character of registration proceedings and the fact that where so many parties
are involved, and action is taken quickly and abruptly, conformity with precise legal rules should
not always be expected. Even at the risk of violating legal formul, an opportunity should be
given to parties to submit additional corroborative evidence in support of their claims of title, if
the ends of justice so require.

A partys declaration of the completion of the presentation of his evidence prevents him
from introducing further evidence; but where the evidence is rebuttal in character, whose
necessity, for instance, arose from the shifting of the burden of evidence from one party to the
other; or where the evidence sought to be presented is in the nature of newly discovered
evidence, the partys right to introduce further evidence must be recognized. Otherwise, the
aggrieved party may avail of the remedy of certiorari.

Largely, the exercise of the courts discretion, under the exception of Section 5(f), Rule 30
of the Rules of Court depends on the attendant facts i.e., on whether the evidence would
qualify as a good reason and be in furtherance of the interest of justice. For a reviewing
court to properly interfere with the lower courts exercise of discretion, the petitioner must show
that the lower courts action was attended by grave abuse of discretion. Settled jurisprudence has
defined this term as the capricious and whimsical exercise of judgment, equivalent to lack of
jurisdiction; or, the exercise of power in an arbitrary manner by reason of passion, prejudice, or
personal hostility, so patent or so gross as to amount to an evasion of a positive duty, to a virtual
refusal to perform the mandated duty, or to act at all in contemplation of the law.Grave abuse of
discretion goes beyond the bare and unsupported imputation of caprice, whimsicality or
arbitrariness, and beyond allegations that merely constitute errors of judgment or mere abuse of
discretion.

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 Lopez v. Liboro, after the parties have produced their respective direct proofs, they are
allowed to offer rebutting evidence only, but, it has been held, the court, for good reasons, in the
furtherance of justice, may permit them to offer evidence upon their original case, and its ruling
will not be disturbed in the appellate court where no abuse of discretion appears. So, generally,
additional evidence is allowed when it is newly discovered, or where it has been omitted through
inadvertence or mistake, or where the purpose of the evidence is to correct evidence previously
offered.

WHEREFORE, it is respectfully prayed that this Honorable Court reopen the case and allow
the defense to present its newly discovered evidence.

Other just and equitable reliefs are also prayed for.

Manila, November 8, 1999

Atty. Clarisse Ann K. Miranda

Counsel for Defendant

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 Legal Opinion regarding the Ethical Steps to Undertake after Confession of
Guilt of the Wife

The first reason why it is perfectly ethical to defend a client who we know or believe is
guilty is that We are not the person whose role it is to decide whether or not my client is guilty. It
is the burden of the state to prove that you are guilty of crimes beyond a reasonable doubt. If
the state does not meet its burden, then you should be found not guilty, even if you in fact
committed the crimes in question. The courts, on the other hand, are entitled to expect only
complete honesty from lawyers appearing and pleading before them. The lawyers oath, to wit:

I___________ of ___________ do solemnly swear that I will maintain allegiance to the Republic
of the Philippines; I will support its Constitution and obey laws as well as the legal orders of the
duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any court;
I will not wittingly nor willingly promote or sue any groundless, false or unlawful suit, or give
aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as
a lawyer according to the best of my knowledge and discretion with all good fidelity as well to
the courts as to my clients; and I impose upon myself this voluntary obligations without any
mental reservation or purpose of evasion. So help me God.

In other words, every time an oath of office is taken, the person making the statement in
effect states that in taking on the oath he/she promises to conscientiously fulfill the duties
entrusted to his office. Section 20 of Rule 138 enumerates what these duties are. It is the duty of
an attorney -

(a) To maintain allegiance to the Republic of the Philippines and to support the Constitution and
obey the laws of the Philippines;

(b) To observe and maintain the respect due to the courts of justice and judicial officers;

(c) To counsel or maintain such actions or proceedings only as appearing to him to be just, and
such defenses only as he believes to be honestly debatable under the law;

(d) To employ, for the purpose of maintaining the causes confided to him, such means only as
are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by
an artifice or false statement of fact or law;

(e) To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of
his client, and to accept no compensation in connection with his clients' business except from
him or with his knowledge and approval;

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(f) To abstain from all offensive personality and to advance no fact prejudicial to the honor or
reputation of a party or witness, unless required by the justice of the cause with which he is
charged;

(g) Not to encourage either the commencement or the continuance of an action or proceeding, or
delay any man's cause, from any corrupt motive or interest;

(h) Never to reject, for any consideration personal to himself, the cause of the defenseless or
oppressed;

(i) In the defense of a person accused of crime, by all fair and honorable means, regardless of his
personal opinion as to the guilt of the accused, to present every defense that the law permits, to
the end that no person may be deprived of life or liberty, but by due process of law.

While a lawyer has the solemn duty to defend his client's rights and is expected to display
the utmost zeal in defense of his client's cause, his conduct must never be at the expense of truth.
Canon 10.
A Lawyer owes candor, fairness and good faith to the Court.
Rule 10.01.
A lawyer shall not do any falsehood, nor consent to the doing of any in Court, nor shall he
mislead or allow the Court to be misled by an artifice

A lawyer must be a disciple of truth. He swore upon his admission to the bar that he will
'do no falsehood nor consent to the doing of any in court' and he shall conduct himself as a
lawyer according to the best of his knowledge and discretion with all good fidelity as well to the
courts as to his clients. He should bear in mind that as an officer of the court his high vocation is
to correctly inform the court upon the law and the facts of the case and to aid it in doing justice
and arriving at a correct conclusion.

The courts, on the other hand, are entitled to expect only complete honesty from lawyers
appearing and pleading before them. While a lawyer has the solemn duty to defend his client's
rights and is expected to display the utmost zeal in defense of his client's cause, his conduct must
never be at the expense of truth.

That a lawyer's oath are not mere facile words, drift and hollow, was applied by the
Supreme Court in Vda. De Rosales vs. Ramos, where a notary public commission was revoked
and respondent disqualified from being a notary public, in this manner: where the notary public
is a lawyer, a graver responsibility is placed upon him by reason of his solemn oath to obey the
laws and to do no falsehood or consent to the doing of any.

There are men in any society who are so self-serving that they try to make law serve their
selfish ends. In this group of men, the most dangerous is the man of the law who has no

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conscience. He has, in the arsenal of his knowledge, the very tools by which he can poison and
disrupt society and bring it to an ignoble end.

On the other hand, Art. 183 of the Revised Penal Code of the Philippines can be filed
against Christine since perjury is committed by a person who, knowingly making untruthful
statements and not being included in the provisions of the next preceding articles, shall testify
under oath, or make an affidavit, upon any material matter before a competent person authorized
to administer an oath in cases in which the law so requires.
Art. 183. False testimony in other cases and perjury in solemn affirmation. The penalty
of arresto mayor in its maximum period to prision correccional in its minimum period
shall be imposed upon any person who, knowingly making untruthful statements and not
being included in the provisions of the next preceding articles, shall testify under oath, or
make an affidavit, upon any material matter before a competent person authorized to
administer an oath in cases in which the law so requires.

Elements of Perjury:
1. The accused made a statement under oath or executed an affidavit upon a material
matter;
2. The statement or affidavit was made before a competent officer authorized to receive
and administer oath;
3. In that statement or affidavit, the accused made a willful and deliberate assertion of a
falsehood; and
4. The sworn statement or affidavit containing the falsity is required by law or made for a
legal purpose

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 Republic of the Philippines
SUPREME COURT
Mania
People of the Philippines
Vs.
Leonard Vole
RESOLUTION
MIRANDA, A.:
By resolution of this court of July 8, 2016, we grant the motion.. The grounds for new trial are
enumerated under (b) of Section 1, Rule 37 of the Rules of Court, to wit:
Section 1.Grounds of and period for filing motion for new trial or reconsideration.
Within the period for taking an appeal, the aggrieved party may move the trial court to
set aside the judgment or final order and grant a new trial for one or more of the
following causes materially affecting the substantial rights of said party:
(a) Fraud, accident, mistake or excusable negligence which ordinary prudence
could not have guarded against and by reason of which such aggrieved party has
probably been impaired in his rights; or
(b) Newly discovered evidence, which he could not, with reasonable diligence,
have discovered and produced at the trial, and which if presented would
probably alter the result.
Within the same period, the aggrieved party may also move for reconsideration upon the
grounds that the damages awarded are excessive, that the evidence is insufficient to
justify the decision or final order, or that the decision or final order is contrary to law.

On the other hand, the rebuttal of evidence is meritorious. The ground for rebuttal of evidence, to
wit:
Section 5, Rule 30 of the Rules of Court, which reads:
Sec. 5. Order of trial. Subject to the provisions of section 2 of Rule 31, and unless the court for
special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial
order and shall proceed as follows:
xxxx

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 (f) The parties may then respectively adduce rebutting evidence only, unless the court, for good
reasons and in the furtherance of justice, permits them to adduce evidence upon their original
case.
Under this rule, a party who has the burden of proof must introduce, at the first instance, all the
evidence he relies upon and such evidence cannot be given piecemeal. The obvious rationale of
the requirement is to avoid injurious surprises to the other party and the consequent delay in the
administration of justice.

In view of the foregoing, the present petition is granted. So ordered.

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 Legal Opinion regarding the Possible Defenses for the Charge of Murder
against the Wife

Christine Vole will be guilty of homicide if the following requisites are present:
Art. 249. Homicide. Any person who, not falling within the provisions of Article 246,
shall kill another without the attendance of any of the circumstances enumerated in the next
preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal.
ELEMENTS:
(1) That a person was killed;
(2) That the accused killed him without any justifying circumstance;
(3) That the accused had the intention to kill, which is presumed;
(4) That the killing was not attended by any of the qualifying circumstances of murder, or
by that of parricide or infanticide
For it to be qualified to murder, the following at least one qualifying circumstance shall be
present:
1.) With treachery, taking advantage of superior strength, with the aid of armed men, or
employs means to weaken the defense, or of means or persons to insure or afford
impunity;
2.) In consideration of a price, reward or promise;
3.) By means of inundation, fire, poison, shipwreck, stranding of a vessel, derailment or
assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of
any other means involving great waste and ruin;
4.) On occasion of any calamities enumerated in the preceding paragraph, or of an
earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public
calamity;
5.) With evident premeditation
6.) With cruelty, by deliberately and Inhumanly augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse.

The possible defense in this case is the mitigating circumstance of passion and obfuscation
under the Revised penal Code. In passion and obfuscation as a mitigating circumstance, to be
availed of, the infliction of injury must be immediate from the act that caused passion or
obfuscation.

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Art. 13. Mitigating circumstances. The following are mitigating circumstances;

1. Those mentioned in the preceding chapter, when all the requisites necessary to justify or to
exempt from criminal liability in the respective cases are not attendant.
2. That the offender is under eighteen year of age or over seventy years. In the case of the minor,
he shall be proceeded against in accordance with the provisions of Art. 80.
3. That the offender had no intention to commit so grave a wrong as that committed
4. That sufficient provocation or threat on the part of the offended party immediately preceded
the act.
5. That the act was committed in the immediate vindication of a grave offense to the one
committing the felony (delito), his spouse, ascendants, or relatives by affinity within the same
degrees.
6. That of having acted upon an impulse so powerful as naturally to have produced passion or
obfuscation.
7. That the offender had voluntarily surrendered himself to a person in authority or his agents, or
that he had voluntarily confessed his guilt before the court prior to the presentation of the
evidence for the prosecution;
8. That the offender is deaf and dumb, blind or otherwise suffering some physical defect which
thus restricts his means of action, defense, or communications with his fellow beings
9. Such illness of the offender as would diminish the exercise of the will-power of the offender
without however depriving him of the consciousness of his acts.
10. And, finally, any other circumstances of a similar nature and analogous to those above
mentioned.

ELEMENTS:

(1) The accused acted upon an impulse.

(2) The impulse must be so powerful that it naturally produced passion or obfuscation.

REQUISITES:

(1) That here be an act, both unlawful and sufficient to produce such a condition of mind
(2) That said act which produced the obfuscation was not far removed from the commission of
the crime by a considerable length of time, during which the perpetrator might recover his
normal equanimity.

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(3) The act causing such obfuscation was committed by the victim himself.
> The passion or obfuscation should arise from lawful sentiments in order to be mitigating.
> May lawfully arise from causes existing only in the honest belief of the offender.

BASIS: Loss of reasoning and self-control, thereby diminishing the exercise of his willpower.

Passion or Obfuscation is NOT mitigating when committed:

(1) In the spirit of lawlessness
(2) In the spirit of revenge

Passion or obfuscation cannot CO-EXIST with:

(1) Vindication of grave offense
(2) Treachery

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