Regalado Evidence Optimized PDF

TABLE OF CONTENTS
Page
Sec. 14. Motion to quash a search warrant or to
suppress evidence, where to fi l e ............. 689
Rule 127. Provisional Remedies in Criminal Cases
Sec. 1. Availability of provisional rem ed ies ..... 695
Sec. 2. A ttachm ent................................................ 695
IV. EVIDENCE
A. Preliminary Considerations
Kule 128. General Provisions
Sec. 1. Evidence d efin ed ........................................ 698
Sec. 2. S cop e............................................................. 698
Sec. 3. Admissibility of evidence.......................... 703
Sec. 4. Relevancy; collateral m a tters ................. 704
B. Adm issibility of Evidence
Rule 130. Rules of Admissibility
A. Object (Real) Evidence
Sec. 1. Object as e v id e n ce ..................................... 715
B. Documentary Evidence
S ec. 2. Documentary E viden ce............................. 718
1. Best Evidence Rule
Sec. 3. O riginal docum ent m ust be produced;
excep tion s.................................................... 718
Sec. 4. Original of docum ent................................. 719
2. Secondary Evidence
Sec. 5. When original document is unavailable 723
Sec. 6 . When original document is in adverse
party’s custody or con tro l......................... 726
Sec. 8 . Party who calls for document not bound
to offer i t ...................................................... 726
3. Parol Evidence Rule
Sec. 7. Evidence admissible when original docu-
ment is a public re co rd .............................. 728
xlvii
REMEDIAL LAW COMPENDIUM
Page
Sec. 9. Evidence of written agreem ents............ 729
4. Interpretation of Documents
Sec. 10. Interpretation of a writing according to
its legal m eaning......................................... 735
Sec. 11. Instrument construed so as to give effect
to all provisions..................... ..................... 735
Sec. 12. Interpretation according to intention;
general and particular p rovision s.......... 735
Sec. 13. Interpretation according to circu m -
s ta n c e s ......................................................... 736
Sec. 14. Peculiar signification of term s............... 736
Sec. 15. Written words control p rin ted ............... 736
Sec. 16. Experts and interpreters to be used in
explaining certain w ritin gs..................... 736
Sec. 17. Of two constructions, which preferred .. 736
Sec. 18. Construction in favor of natural rig h t... 737
Sec. 19. Interpretation according to u sa g e ......... 737
C. Testimonial Evidence
1 . Qualification of Witnesses
Sec. 20. Witnesses; their qu alification s.............. 737
Sec. 2 1 . D isqualification by reason of mental
incapacity or im m aturity.......................... 738
Sec. 22. D isqualification by reason of marriage 740
Sec. 23. D isqualification by reason of death or
insanity of adverse p a rty .......................... 743
Sec. 24. Disqualification by reason of privileged
com m unication............................................ 746
2. Testimonial Privilege
Sec. 25. Parental and filial privilege................... 753
3. Admissions and Confessions
Sec. 26. Admissions of a p a rty ............................... 754
Sec. 27. Offer of compromise not adm issible...... 756
Sec. 28. Admission by third p a rty ......................... 758
Sec. 29. Admission by co-partner or a g e n t ......... 759
xlviii
TABLE OF CONTENTS
Page
Sec. 30. Admission by con spirator........................ 760
Sec. 31. Admission by p riv ie s ................................ 762
Sec. 32. Admission by sile n ce ................................ 762
Sec. 33. Confession.................................................... 764
4. Previous Conduct as Evidence
Hq c . 34. Similar acts as ev id en ce .......................... 774
Sec. 35. Unaccepted o ffe r ........................................ 775
5. Testimonial Knowledge
Hoc. 36. T estim on y gen era lly con fin ed to p e r -
sonal knowledge; hearsay e x clu d e d ...... 775
6 . Exceptions to the Hearsay Rule
Sec. 37. Dying decla ra tion ...................................... 778
Sec. 38. Declaration against in te re st................... 782
Sec. 39. Act or declaration about p ed ig ree ......... 784
Sec. 40. Family reputation or tradition regarding
p edigree........................................................ 784
Sec. 41. Common reputation................................... 786
Sec. 42. Part of the res g es ta e................................. 787
Sec. 43. Entries in the course of b u sin ess........... 791
Sec. 44. Entries in official record s........................ 792
Sec. 45. Commercial lists and the lik e ................. 795
Sec. 46. Learned treatises....................................... 796
Sec. 47. T estim on y or d e p osition at a form er
proceeding.................................................... 796
7. Opinion Rule
Sec. 48. General ru le................................................. 800
Sec. 49. Opinion of expert w itnesses.................... 800
Sec. 50. Opinion of ordinary w itn esses................ 800
C. B u rd en o f P r o o f an d W hat N eed N ot be P ro v e d
R u le 131. B u r d e n o f P r o o f a n d P re s u m p tio n s
Sec. 1. Burden o f p r o o f........................................... 815
xlix
Page
S ec. 2 . Conclusive presum ptions......................... 820
Sec. 3. Disputable presum ptions......................... 820
S ec. 4. No p resu m p tion o f le g itim a cy or i l -
legitim acy..................................................... 831
Rule 129. What Need Not Be Proved
Sec. 1 . Judicial notice, when m an datory . 832
S e c. 2 . Judicial notice, when discretion ary.. 832
Sec. 3. Judicial notice, when hearing necessary 832
S ec. 4. Judicial adm issions......................... 836
D. Presentation of Evidence
Rule 132. Presentation of Evidence
A. Examination of Witnesses
Sec. 1 . Examination to be done in open co u rt... 839
S ec. 2. Proceedings to be recorded...................... 839
Sec. 3. Rights and obligations of a w itn e s s ...... 841
Sec. 4. O rder in the exam in ation o f an in d i-
vidual w itn e s s ............................................ 844
Sec. 5. Direct exam ination.................................... 845
Sec. 6 . C ro ss-e x a m in a tion ; its p u rp ose and
extent............................................................ 845
Sec. 7. Re-direct examination; its purpose and
exten t............................................................ 845
Sec. 8 . Re-cross-exam ination................................ 845
Sec. 9. Recalling w itn ess....................................... 847
Sec. 10 . Leading and misleading questions......... 848
Sec. 11 . Impeachment of adverse party’s witness 848
Sec. 12 . Party may not impeach his own witness 849
Sec. 13. How witness impeached by evidence of
inconsistent statem ents............................ 849
Sec. 14. Evidence of good character of w itn ess... 852
Sec. 15. Exclusion and separation of w itnesses.. 853
1
TABLE OF CONTENTS
Page
Sec. 16. When witness may refer to memoran-
dum ................................................................ 854
Sec. 17. When part of transaction, writing or
record given in evidence, the remainder
adm issible.................................................... 855
Bee I K. Right to inspect w riting shown to w it-
ness ................................................................ 855
It Authentication and Proof of Documents
Bor. 19. Classes of docu m en ts................................ 856
Hoc. 20. Proof of private d ocu m en t....................... 858
Sec. 2 1 . When evidence of authenticity o f pri-
vate document not n ecessary.................. 858
Sec. 22. How genuineness of handwriting proved 858
Sec. 23. Public documents as evidence................. 860
Sec. 24. Proof of official record ............................... 860
Sec. 25. What attestation of copy must s ta te ..... 861
Sec. 26. Irremovability o f public record ............... 861
Sec. 27. Public record of a private docu m en t..... 862
Sec. 28. Proof of lack of r e c o r d ............................... 862
Sec. 29. How judicial record im peached............... 862
Sec. 30. Proof of notarial docum ents.................... 863
Sec. 31. Alterations in document, how to explain 866
Sec. 32. S e a l................................................................ 866
Sec. 33. Documentary evidence in an unofficial
language ...................................................... 867
C. Offer and Objection
Sec. 34. Offer of eviden ce........................................ 867
Sec. 35. When to make o ffe r ................................... 868
Sec. 36. O bjection...................................................... 869
Sec. 37. When repetition of objection unnecessary 869
Sec. 38. R u lin g ........................................................... 869
Sec. 39. Striking out answer................................... 870
Sec. 40. Tender of excluded eviden ce................... 870
li
Page
E. W eight and Sufficiency of Evidence
Rule 133. W eight and Sufficiency of Evidence
Sec. 1 . Preponderance of evidence, how deter-
mined .......................................................... 876
S ec. 2 . Proof beyond reasonable d ou bt............. 876
Sec. 3. Extrajudicial confession, not sufficient
ground for conviction............................... 896
Sec. 4. Circumstantial evidence, when sufficient 898
Sec. 5. Substantial evid en ce............................... 900
Sec. 6 . Power o f the court to stop further evi-
dence ........................................................... 901
Sec. 7. Evidence on m otion ................................. 901
APPENDICES
A - An Act Declaring Forfeiture in Favor of the State

o f A ny P rop erty Found to H ave Been
Unlawfully Acquired by Any Public Officer
or E m p loyee and P ro v id in g for the
Procedure Therefor (R.A. 1379).................. 905
B - An Act Requiring Judges of Courts to Speedily
Try Criminal Cases Wherein the Offended
Party is a Person About to Depart from the
Philippines with No Definite Date of Return
(R.A. 4 9 0 8 )....................................................... 909
C - An Act Requiring Courts to Give Preference to
Criminal Cases Where the Party or Parties
Involved are Indigents (R.A. 6 0 3 3 )............ 910
D - An A ct P rovidin g T ran sportation and O ther
Allowances for Indigent Litigants (R.A. 6034) 912
E - An Act Requiring Stenographers to Give Free
Transcript of Notes to Indigent and Low
In com e L itig a n ts and P en alty for the
Violation Thereof (R.A. 6 0 3 5 )..................... 914
lii
IV. EVIDENCE*
A. PR ELIM IN AR Y C O N SID ER ATIO N S
RULE 128
G EN ER AL PR O VISIO N S
S ection 1 . E vidence defined. — E viden ce is the

m eans, sanctioned by these rules, o f ascertaining
in a ju d ic ia l p roceed in g s the tru th resp e ctin g a
m atter o f fact. (1)
Sec. 2. S cope. — The ru les o f ev id en ce sh all

be th e sam e in a ll c o u r ts and in all tr ia ls and
hearings, except as otherw ise provided by law or
these rules. (2a)
NO TES
1 . Sec. 1 o f Rule 128 provides the legal definition of

evidence. Evidence is the m ode and m anner o f proving
com petent facts in ju dicial proceedings (Bustos vs. Lucent,
etc., 81 Phil. 640).
2 . P roof is the result or effect o f evidence. W hen tho
requisite quantum o f evidence of a particular fact has been
duly adm itted and given weight, the result is called Hi"
p roof o f such fact.
3. “Factum p rob a n d u m ” is the ultim ate fact or t h<<
fact sought to be established; “factu m p ro b a n s" i,M I In
e v id e n t ia r y fa c t or th e fa c t by w h ich th e "fa ctu m
p rob a n d u m ” is to be established. The form er refVi.-i In
the proposition, while the latter refers to the imili'ruilM
"T h e am end m ents lo thoao Rulew w ere approved by tho Siiprem n ( ‘o m l in Ms

R esolution d ated M arch 14, 1989, offart.ive on Ju ly I, 108!)
608
RULE 128 GENERAL PROVISIONS SECS. 1-2
w hich establish that proposition (1 W igm ore on Evidence,

pp. 5-6).
4. The law o f evidence is fundam entally a procedural
law (Bustos vs. Lucero, etc., supra). The Suprem e Court
shall prom ulgate rules concerning pleadings, practice and
procedure which shall be uniform for all courts o f the same
g r a d e a n d s h a ll n ot d im in is h , in c r e a s e o r m o d ify
substantive rights (Sec. 5[5], Art. VIII, 1987 Constitution),
and this provision includes rules o f evidence. Such new
rules m ay validly be made applicable to cases pending
at the tim e o f such change, as the parties to an action
have no vested right in the rules o f evidence (A ldeguer
vs. H oskyn, 2 Phil. 500). H ow ever, in crim inal cases, if
the alteration o f the rules o f evidence w ould, for instance,
perm it the recep tion o f a lesser quantum o f eviden ce
than w hat the law required at the tim e o f the com m ission
o f th e o ffe n s e in o r d e r to c o n v ic t, th e n th e r e t r o -
a ctive a p p lica tio n o f such a m e n d a to ry law w ou ld be
ex p ost facto.
5. The law o f evidence in the Philippines is principally
found ir; the Rules o f Court (Rules 128 to 133). H ow ever,
som e evidentiary rules are found in special laws. Thus,
R.A. 4200 proh ib its the adm ission in eviden ce in any
ju d ic ia l, q u a s i-ju d icia l, le g is la tiv e or a d m in is tra tiv e
investigation o f any com m unication or spoken w ord or any
inform ation procured by w ire-tapping and related means
specified in said law, except in the cases therein specially
perm itted. The Code o f Com m erce provides certain rules
on th e e v id e n tia r y w e ig h t o f c o n flic t in g e n tr ie s in
m erch an ts’ books (Art. 448). C ertain presum ptions o f
law and fact are found in the Civil Code and the R evised
P enal Code, as w ell as in other special laws.
The Bill o f Rights (Art. I ll) o f the 1987 C onstitution
provides, inter alia, as follows:
609
RULE 128 REMEDIAL LAW COMPENDIUM SECS. 1-2
“SEC. 2. The right, o f tho people to be iiuiiii"

in their persons, houses, papers and ofl'octH again.'tl
u n re a son a b le sea rch es and seizu res o f w h n levi'i
nature and for any purpose shall be inviolable, mid
no search w arrant or w arrant o f arrest shall mime
e x c e p t u p o n p r o b a b le ca u s e to be d e te r m in e d
personally by the judge after exam ination under on Hi
or affirm ation o f the com plainant and the w itnesses
he may produce, and particularly describing the place
to be searched and the persons or things to be seized .
Sec. 3. (1) The privacy o f com m unication and
correspondence shall be inviolable except upon lawful
order of the court, or w hen public safety and order
require otherw ise as prescribed by law.
(2) Any evidence obtained in violation o f this or
the preceding section shall be inadm issible for any
purpose in any proceeding.”
For its provisions on the inadm issibility o f illegally
obtained confessions or evidence secured in violation o f
the rights against self-incrim ination, see N ote 13 under
Sec. 33, R ule 130. As h eretofore explain ed, how ever,
the right against self-incrim ination cannot be invoked in
situations covered by im m unity statutes. Exam ples o f
such im m u n ity statu tes are R.A. 1379, w h ich grants
im m unity to w itnesses in proceedings for the forfeiture
o f u n la w fu lly acq u ired property; and P.D. 749, w hich
grants im m unity in bribery and graft cases.
6. The rules o f evidence are specifically applicable
only in ju dicia l proceedings. In quasi-judicial proceedings,
the same apply by analogy, or in a suppletory character
a n d w h e n e v e r p r a c t ic a b le a n d c o n v e n ie n t (S ec . 4,
R ule 1), except w here the governing law on that particular
proceeding specifically adopts the rules o f evidence in the
Rules o f Court.
700
RULE 128 REMEDIAL LAW COMPENDIUM SECS 1-2
In cmhoh before the then Court o f A grarian Relations,

tho Rules o f Court were not applicable even in a suppletory
cha ra cter, excep t in crim in a l and e x p ro p ria tion cases
(Sec. 16, P.D. 946), which procedure has been superseded
by the provisions o f R.A. 6657.
7. T he R ules classify evidence, according to form ,
in to (a ) o b je c t (r e a l) e v id e n c e (S e c . 1, R u le 1 3 0 );
(b) d ocu m en ta ry eviden ce (S ecs. 2-19, R u le 130); and
(c) testim on ial evidence (Secs. 20-51, R ule 130).
a. O bject (rea l) evid en ce is th at w hich is directly
addressed to the senses o f the court and consists o f tangible
things exh ib ited or dem onstrated in open court, in an
ocular inspection, or at a place designated by the court
for its view or observation of an exhibition, experim ent
or dem onstration. U nlike testim onial and docum entary
evidence, the ascertainm ent o f the controverted fact is
made through the direct use o f the differen t senses o f
the presiding m agistrate or his authorized delegate. This
class o f evidence is referred to by W igm ore as evidence by
“autoptic proferen ce,” i.e., by “preferrin g” or presen tin g
in open court the evidentiary articles for the observation
or inspection o f the tribunal (Kabase vs. State, 81 Ala.
App. 77, 12 So. 2nd 758, 764).
b. D ocu m en ta ry ev id en ce is evid en ce su p p lied by
written instrum ents or derived from conventional symbols,
such as letters, by which ideas are represented on m aterial
su b sta n ces (2 2 C .J.S . 791). Sec. 2 o f R ule 130 now
provides a specific definition thereof.
c. Testim onial evidence is that w hich is subm itted to
the court through the testim ony or deposition of a w itness.
8 . O ther classifications o f evidence furnished by the
Rules and by text w riters are as follow s:
a. R elevan t, m aterial, and com peten t evid en ce. —
R elevant evidence is evidence having any value in reason
701
as tending to prove any m atter provable h i an m h i m

M aterial evidence is evidence directed to prove a fuel m
issue as determ ined by the rules o f substantive law mid
pleadin gs (5 M oran, C om m ents on the R ules o f Court.
[1980 Ed.], p. 2). Com petent evidence is one that im not.
excluded by the Rules, a statute or the Constitution.
The test o f relevan cy is the logical relation o f the
evidentiary fact to the fact in issue, i.e., whether the former
tends to establish the probability or im probability o f the
latter. On the other hand, the m ateriality o f evidence is
determ ined by w hether the fact it intends to prove is in
issue or not. As to w hether a fact is in issue or not is in
turn determ ined by the substantive law, the pleadings,
the pre-trial order and by the adm issions or confessions
on file. Consequently, evidence may be relevant but may
be im m aterial in the case. For a graphic discussion of
th ese concepts, see the m onographs of P rofessor John
W . R eed o f th e U n iv e r s ity o f M ic h ig a n L aw S ch o o l
(A ppendices D D and EE).
b. D irect and circu m sta n tia l ev id en ce. — D ire ct
evidence is that w hich proves the fact in dispute w ithout
the aid o f any inference or presum ption, w hile circu m -
stantial evidence is the p ro o f o f a fact or facts from w hich,
taken eith er singly or collectively, the existence o f the
particu lar fact in dispute may be inferred as a necessary
or probable con seq u en ce (5 M oran, op. cit., p. 2, w ith
citations therein).
c. C u m u la tiv e a n d c o r r o b o r a t i v e e v id e n c e . —
Cum ulative evidence is evidence o f the sam e kind and to
the sam e state o f facts, w hile corroborative evidence is
additional evidence o f a different character to the same
point (4 M artin, R ules o f Court in the P hilippines [1963
Ed.], p. 5).
702
RULE 128 REMEDIAL LAW COMPENDIUM SEC 3
(I. P rim a facia and con clu sive eviden ce. — P rim a
facie evidence is that w hich, standing alone, unexplained
in uneontradicted, is sufficient to m aintain the proposition
affirm ed. C onclusive evidence is that class o f evidence
which the law does not allow to be contradicted (4 M artin,
op. cit., p. 6).
e. P rim ary and secondary evidence. — P rim ary or
best evidence is that w hich the law regards as affording
the g re a te s t ce rta in ty o f th e fa ct in q u estion , w h ile
secondary evidence is that w hich is inferior to the prim ary
eviden ce and is perm itted b y law only w h en the best
evidence is not available (5 M oran, op. cit., p. 3). Prim ary
evidence is referred to in these Rules as the best evidence,
w hile secondary evidence is also called su bstitu tionary
evidence.
f. P o sitiv e and n ega tive evid en ce. — E viden ce is
positive w hen the w itness affirm s that a fact did or did
not occur, and negative w hen the w itness states he did
not see or know o f the occurrence o f a fact (see 5 M oran,
op. cit., p. 2; 4 M artin, op. cit., p. 5; People vs. Ram os,
L-30420, Sept. 22, 1971). Positive testim ony is entitled
to greater w eight (Bayasen vs. CA, L-25785, Feb. 26, 1981)
since the w itness represents o f his personal know ledge
the presence or absence o f a fact; w hereas in negative
testim ony, there is a total disclaim er o f person al k n ow -
ledge, hence w ithout any representation or disavow al that
the fact in question could or could not have existed or
happened. W hen a witness declares o f his own knowledge
that a fact did not take place that is actually positive
testim on y sin ce it is an a ffirm a tion o f the tru th o f a
negative fact.
Sec. 3. A d m issibility o f evidence. — E viden ce is

adm issible when it is relevant to the issue and is
not excluded by the law or these rules. (3a)
703
Sec. 4. R elevancy; collateral matters. Evidence

m ust have such a relation to the fact in issue h h to
in d u ce b e lie f in its e x isten ce or n o n -e x iste n c e .
Evidence on collateral m atters shall not be allow ed,
except w hen it tends in any reasonable degree to
establish the probability o f the fact in issue. (4a)
N O TES
1. Sec. 3 states the two requisites for the adm issibility

o f evidence, i.e., that it must be relevant to the issue sought
to be proved and that it m ust be com petent. E vidence is
relevant, according to Sec. 4, when it has “such a relation
to the fact in issue as to induce b e lie f in its existence
or n on-existen ce.” R elevancy is, therefore, determ inable
by the rules o f logic and hum an experience. Evidence
is com petent, according to Sec. 3, when it “is not excluded
by the law or these ru les.” C om petency is, th erefore,
determined by the prevailing exclusionary rules o f evidence.
2. P rofessor W igm ore restates these requ isites in
his two axiom s o f adm issibility, thus: (a) That none but
fa cts h a vin g ra tion a l p rob a tive valu e are adm issible;
and (b) T hat all fa cts havin g ration a l proba tive value
are a d m issible u n less som e sp ecific rule forbids their
a d m ission (lW ig m o re on E viden ce, p. 289). R elevan t
evidence, under this concept, is any class o f evidence
w h ich h as “ra tion a l p roba tive v a lu e” to esta blish the
issue in controversy.
3. The adm issibility o f evidence is determ ined at the
tim e it is offered to the court (Sec. 35, R ule 132). O bject
or real evidence is offered to the court w hen the same
is p re s e n te d fo r its vie w or e v a lu a tio n , as in ocu la r
inspections or dem onstrations, or w hen the party rests
his case and the real evidence consists o f objects exhibited
in court. T estim onial evidence is offered by the calling
o f the w itness to the stand. D ocum entary evidence is
704
form ally offered by the proponent im m ediately before he

rests his case.
Every objection to the adm issibility o f evidence shall
be made at the tim e such evidence is offered, or as soon
thereafter as the objection to its adm issibility shall have
b e co m e a p p a re n t, o th e rw is e th e o b je c t io n s h a ll be
considered w aived (Abrenica vs. Gonda, et ah, 94 Phil.
739). Thus, in the case o f testim onial evidence, objection
to the qu alifications o f the w itness should be m ade at
the tim e he is called to the stand, and if the w itn ess is
otherw ise qualified, the objection should be raised w hen
the objection able question is asked or after the answ er is
given if the objectionable features becam e apparent by
rea son o f su ch an sw er. O b je ctio n s to o b je ct or rea l
evidence m ust be made either at the tim e it is presented
in an ocular in spection or dem onstration or w hen it is
form ally offered; objections to docum entary evidence, at
the tim e it is form ally offered. See, in this connection,
Secs. 35 to 37 o f Rule 132.
4. There are certain doctrines or rules o f adm issibility
p oin ted out b y text w riters (1 W igm ore on E vid en ce,
pp. 303-307; 5 M oran, op cit., pp. 7-12; 4 M artin, op. cit.,
pp. 14-16) w hich have been sanctioned by our Suprem e
Court, viz.:
a. C onditional adm issibility. — W here the evidence
at the tim e o f its o ffe r a p p ea rs to be im m a te r ia l or
irrelevant unless it is connected w ith the other facts to be
subsequently proved, such evidence may be received on
condition that the other facts w ill be proved thereafter,
otherw ise the evidence already given w ill be stricken out.
T his doctrin e w as applied by ou r Suprem e C ourt in a
crim inal case (People vs. Yatco, etc., et al., 97 Phil. 940)
and in a civil case (Prats & Co. vs. P hoenix Insurance Co.,
etc., 52 Phil. 807) subject to the qu alification th at there
should be no bad faith on the part o f the proponent, thus:
705
“In a case o f any intricacy it is im possible for a judge of

first instance, at the early stages o f the developm ent of
th e p ro o f, to k n ow w ith any ce r ta in ty w h e th e r the
te stim o n y is relev a n t or not; and w h ere th ere is no
indication o f bad faith on the part o f the attorney offering
the evidence, the court m ay as a rule safely accept the
testimony upon the statement o f the attorney that the proof
offered w ill be conn ected la ter.” Such a qu alification
appears necessary to avoid unfair surprises to the other
party.
b. M ultiple adm issibility. — W here the evidence is
relevant and com petent for two or more purposes, such
evidence should be adm itted for any or all the purposes
fo r w h ich it is o ffe r e d p ro v id e d it s a tis fie s a ll the
requirem ents o f law for its adm issibility therefor. Thus, if
im m ediately after the fight, in a state of excitem ent and
conscious o f his impending death, the declarant stated that
it was he who provoked and com m enced the assault and
seriously w ounded his opponent, in a prosecution for the
death o f said declarant, such declaration may be adm itted
as part o f the res gestae, as a dying declaration or as a
declaration against interest (see People vs. Toledo et al.,
51 Phil. 825; cf. People vs. Yatco, etc., et al., supra).
c. Curative admissibility. — This doctrine treats upon
the right o f a party to introduce incom petent evidence
in his b eh alf w here the court has adm itted the sam e kind
o f e v id e n ce a d d u ced by the a d verse p a rty . W igm ore
(op. cit., p. 165) cites three theories or rules obtaining
in som e ju risd iction s on curative adm issibility, to wit:
(1) The A m erican rule, under which the adm ission o f such
incom petent evidence, w ithout objection by the opponent,
does not ju stify such opponent in rebutting it by sim ilar
incom petent evidence; (2) The English rule, w herein if a
party has presented inadm issible evidence, the adverse
party m ay resort to sim ilar inadm issible evidence; and
706
(,')) The M assachusetts rule, w herein the adverse party

m ay be p e rm itte d to in tro d u c e s im ila r in co m p e te n t
evidence in order to avoid a plain and unfair prejudice
caused by the adm ission o f the other party’s evidence.
W hat should determ ine the application o f the rule o f
curative adm issibility are ( 1) w hether the incom petent
evidence was seasonably objected to, and ( 2 ) w hether,
rega rdless o f the objection s uel non, the adm ission o f
such evidence w ill cause a plain and unfair prejudice to
the party against whom it was admitted. Lack o f objection
to incom petent evidence constitutes w aiver by the party
against w hom it is introduced but does not deprive the
opposing party o f his right to object to sim ilar rebutting
evidence. This technical rule, how ever, should be relaxed
if one party w ould suffer a plain and unfair prejudice (see
22 C.J.S. 195). Thus, w here the court has im properly
adm itted evidence o f a party regarding a conversation or
writing, the adverse party should be permitted to introduce
the w hole th ereof (31 C.J.S. 913; see Sec. 17, R ule 132)
and, a con verso, w h ere a d m issible eviden ce has been
im p ro p e r ly e x clu d e d , th e oth er p a rty sh o u ld n ot be
perm itted to introduce sim ilar evidence (4 M artin, op.
cit., p. 18). O f cou rse, w here the im p rop er ev id en ce
was adm itted over the objection o f the opposing party, he
should be perm itted to contradict it with sim ilar evidence,
otherw ise it w ould result in disparity o f rulings to his
prejudice.
5. In the P hilippines, the form er rule w as that even
if the evidence had been illegally obtained, the sam e was
adm issible (M oncado vs. P eop le’s Court, 80 Phil. 1), unless
a specific rule forbade its reception (see, for exam ple,
Sec. 44, R.A. 4200). This rule had been made to apply
even to involuntary confessions illegally obtained.
H ow ever, this doctrine was expressly abandoned in
S tonehill, et al. vs. Diokno, etc., et al. (L-19550, June 19,
707
1967) w hich held that docum entary evidence, illegally

obtained, is inadm issible on a tim ely m otion or action
to suppress. The same rule now also applies to illegally
obtained confessions.
6 . Collateral m atters are matters other than the facts
in issue and w hich are offered as a basis for inference as
to the existence or non-existence o f the facts in issue (see
5 M oran, op. cit., pp. 16-17). Not all collateral m atters,
however, are prohibited by the Rules. W here the collateral
m atters are relevant to the fact in issue because “they tend
in any reasonable degree to establish the probability or
im p ro b a b ility o f the fa ct in is s u e ,” e v id e n ce o f such
collateral m atters is adm issible. W hat the Rules prohibit
is evidence o f irrelevant collateral facts.
7. C ir c u m s t a n t ia l e v id e n c e is th e e v id e n c e o f
collateral facts or circum stances from w hich an inference
m ay be draw n as to the probability or im probability o f the
facts in dispute (Moran, loc. cit.). Circum stantial evidence
is legal evidence and, if sufficient, can sustain a judgm ent
(see Sec. 4, Rule 133). Circum stantial evidence is evidence
o f relevant collateral facts.
8 . A s a d m issib ility o f evid en ce is d eterm in ed by
its relevance and com petence, adm issibility is, therefore,
an affair o f logic and law. On the other hand, the w eight
to be given to such evidence, once adm itted, depends on
ju d ic ia l ev a lu a tion w ith in the gu id elin es p ro v id ed in
Rule 133 and the decisional rules o f the Suprem e Court.
Thus, while evidence may be adm issible, it may be entitled
to little or no w eight at all. Conversely, evidence w hich
may have evidentiary w eight may be inadm issible because
a special rule forbids its reception.
9. P art IV o f the R ules o f Court now provides for
the ru les o f eviden ce u n der R ules 128 to 133. A side
from the general provisions in Rule 128, these rules may
708
bo subsumed into four main divisions, and are so presented

in this w ork in the follow ing partly rearranged order:
(a) A dm issibility o f Evidence (Rule 130); (b) B urden o f
P roof and W hat N eed N ot be Proved (Rules 131 and 129)\
(c) P resentation o f Evidence (Rule 132)\ and (d) W eight
and S ufficiency o f Evidence (Rule 133). Rule 134 on the
perpetu ation o f testim ony (depositions in perpetuam rei
m em oriam ) has been transposed to Part I as R ule 24.
10. S pecial rules o f evidence regarding electron ic
d o cu m e n ts h a v e b e e n in tr o d u c e d b y th e E le c tr o n ic
Com m erce A ct, R.A. 8792 (A ppendix CC).
a. In N u ez vs. C ru z-A pao (A .M . N o. C A -0 5 -1 8 -P ,
A pril 1 2 , 2005), com plainant proved by his testim ony in
conjunction w ith the text m essages from the respondent
that she asked for P I ,000,000 in exchange for a favorable
decision o f the form er’s pending case in court. The text
m essages w ere properly adm itted in evidence pursuant
to Sec. l(k ), Rule 2 o f the Rules on Electronic Evidence
which provides that “ephem eral electronic com m unication”
refers to telephone conversations, text m essages... and
oth er electron ic form s o f com m u n ication the eviden ce
o f w h ich is not recorded or re ta in e d .” Sec. 2 o f said
Rules declares that such com m unications shall be proven
by the testim ony o f a person w ho w as a party to the sam e
or who has personal know ledge thereof. C om plainant, as
recipient o f said messages, had personal knowledge thereof
and testified on th eir con ten ts. F u rth er, resp on d en t
a d m it t e d t h a t th e c e llp h o n e n u m b e r r e f le c t e d in
com plainan t’s cellphone as the origin o f the m essages was
hers.
b. In M C C Industrial Sales Corp. vs S sangyong Corp.
(G.R. No. 170633, Oct. 17, 2007), involved as a m ajor issue
t h e r e in w e r e p h o t o c o p ie s o f t r a n s m is s io n s th e
ca tegoriza tion o f w hich felicitou sly gave the Suprem e
Court the opportunity to interpret the pertinent provisions
709
o f R.A. 8792, thus:

The second issue poses a question that the Court
w elcom es. It provides the occasion for this Court to
pronounce a definitive interpretation o f the equally
innovative provisions o f the Electronic Com m erce Act
o f 2 000 (R .A . N o. 8 7 9 2 ) v is -a -v is th e R u le s on
E lectronic Evidence.
A lthough the parties did not raise the question
w h eth er the o rig in a l fa csim ile tra n sm issio n s are
“electronic data m essages” or “electron ic docum ents”
w ithin the context of the Electronic Commerce Act (the
petitioner m erely assails as inadm issible evidence the
photocopies o f the said facsim ile transm issions), we
deem it appropriate to determine first whether the said
fax transm issions are indeed w ithin the coverage o f
R.A. No. 8792 before ruling on whether the photocopies
th ereof are covered by the law. In any case, this Court
has ample authority to go beyond the pleadings when,
in the interest o f justice or for the prom otion o f public
policy, there is need to m ake its own findings in order
to support its conclusions.
P etitioner contends that the photocopies o f the
p ro form a invoices presented by respondent Ssangyong
to prove the perfection o f their supposed contract of
sale are inadmissible in evidence and do not fall within
the am bit o f R.A. No. 8792, because the law m erely
a d m its as th e b e s t e v id e n c e th e o r i g in a l fa x
transm ittal. On the other hand, respondent posits
that, from a readin g o f the law and the R ules on
Electronic Evidence, the original facsim ile transm ittal
o f the pro form a invoice is admissible in evidence since
it is an electronic docum ent and, therefore, the best
evidence under the law and the Rules. Respondent
fu r th e r cla im s th a t the p h o to co p ie s o f th ese fax
transm ittals (specifically ST2-POSTS0401-1 and ST2-
710
P O ST S0401-2) are adm issible under the R ules on

E v id e n c e b e c a u s e th e r e s p o n d e n t s u f f ic ie n t ly
e x p la in e d the n o n -p ro d u ctio n o f the o rig in a l fax
transmittals.
x x x
The ruling o f the Appellate Court is incorrect. R.A.
No. 8782, otherwise known as the Electronic Commerce
A ct o f 2000, considers an electronic data m essage or
an electronic docum ent as the functional equivalent
o f a w ritten docum ent for evidentiary purposes. The
R ules on Electronic Evidence regards an electron ic
docum ent as adm issible in evidence if it com plies w ith
the rules on adm issibility prescribed by the R ules o f
Court and related laws and is authenticated in the
m a n n er p rescrib ed by said R u les. An e le ctro n ic
d o c u m e n t is a lso th e e q u iv a le n t o f an o r ig in a l
docum ent under the B est E vidence Rule, i f it is a
printout or output readable by sight or other means,
show n to reflect the data accurately.
Thus, to be admissible in evidence as an electronic
data m essage or to be considered as the function al
equivalent o f an original docum ent under the Best
E v id en ce R u le, the w ritin g m ust fo r e m o s t be an
“electron ic data m essage” or an “electronic d ocu m en t.”
The Rules on Electronic Evidence prom ulgated by
this Court defines said term s in the follow ing manner:
SECTION 1. Definition o f Terms. — For purposes

o f these Rules the follow in g term s are d efin ed as
follows:
x x x x
(g) “ E le c t r o n ic d a ta m e s s a g e ” r e f e r s to
in form ation generated, sent, received or stored by
electronic, optical or sim ilar means.
711
(h ) “ Electronic docum ent” refers to inform ation

or the representation o f inform ation, data, figures,
s y m b o ls o r o th e r m od e s o f w r itte n e x p r e s s io n ,
described or how ever represented, by w hich a right is
established or an obligation extinguished, or by which
a fact may be proved and affirm ed, w hich is received,
recorded, transm itted, stored, processed, retrieved or
produced electronically. It includes digitally signed
docum ents and printout, or output, readable by sight
o r o th e r m e a n s , w h ich a c c u r a t e ly r e f le c t s th e
electronic data m essage or electron ic docum ent. For
purposes o f these Rules, the term “electronic document”
may be used interchangeably w ith “electron ic data
m essage.”
G iven these definitions, we go back to the original
q u estion : Is an o rig in a l p rin t-o u t o f a fa c sim ile
transm ission an electronic data m essage or electronic
docum ent?
The definitions under the Electronic Commerce Act
o f 2000, its IRR and the Rules on Electronic Evidence,
at first glance, convey the im pression that facsim ile
tr a n s m is s io n s a re e le c t r o n ic d a ta m e s s a g e s or
e le c t r o n ic d o c u m e n ts b e c a u s e th e y a re se n t by
electro n ic m eans. T he exp a n d ed d e fin itio n o f an
“electron ic data m essage” under the IRR, con sisten t
with the U N CITRAL M odel Law, further supports this
th eory con sid erin g that the en u m eration “ xxx [is]
not lim ited to ele ctro n ic data in terch a n g e (E D I),
electronic mail, telegram or telecopy.” And to telecopy
is to send a docum ent from one p la ce to another via a
fa x machine.
x x x
T h e r e is n o q u e s t io n th a t w h e n C o n g r e s s
form u la ted the term “electron ic data m essa ge,” it
712
intended the same m eaning as the term “electron ic

record” in the Canada law. This constru ction o f the
term “electronic data m essage,” which excludes telexes
or fa x e s , e x c e p t c o m p u te r g e n e r a te d fa x e s , is in
harm ony w ith the E lectronic C om m erce L aw ’s focus
on “paperless” com m unications and the “fu n ction al
equivalent approach” that it espouses. In fact, the
d e lib e ra tio n s o f the L e g isla tu re are re p le te w ith
discussions on paperless and digital transactions.
x x x
F acsim ile transm ission s are not, in this sense,
“paperless,” but verily are paperbased.
x x x
A c c o r d in g ly , in an o r d in a r y fa c s im ile t r a n s -
m is s io n , t h e r e e x is t s a n o r ig in a l p a p e r - b a s e d
inform ation or data that is scanned, sent through a
phone line and re-printed at the receiving end. Be it
noted that in enacting the Electronic C om m erce Act
o f 2 000 , C o n g re ss in te n d e d v irtu a l or p a p e r le s s
w ritings to be the fu n ction al equivalent and to have
the sam e legal function as paper-based docum ents.
F u rth e r, in a v ir tu a l or p a p e rle s s e n v iro n m e n t,
technically, there is no original copy to speak of, as all
direct printouts o f the virtu al reality are the sam e, in
a ll r e s p e c t s , a n d a re c o n s id e r e d as o r i g i n a l s .
Ineluctably, the law ’ s defin ition o f “electron ic data
m essage,” which, as aforesaid, is interchangeable with
e le c t r o n ic d o c u m e n t ,” c o u ld n o t h a v e in c lu d e d
fa c s im ile tra n sm issio n s, w h ich h a v e an o r ig in a l
paper-based copy as sent and a paper-based facsim ile
copy as received. These tw o copies are distinct from
each other, and have different legal effects. W hile
C o n g r e s s a n t ic ip a t e d fu t u r e d e v e lo p m e n t s in
com m u n ication s and com pu ter tech n ology w hen it
713
d ra fte d th e la w , it e x clu d e d th e e a r ly fo r m s o f
technology, like telegraph, telex, and telecopy (except
c o m p u t e r g e n e r a t e d fa x e s , w h ic h is a n e w e r
developm ent as com pared to the ordinary fax m achine
to fax machine transm ission), when it defined the term
“electronic data m essage.”
x x x
We, therefore, conclude that the term s “electron ic
data m essage” and “electronic d ocu m en t,” as defined
in the E lectronic Com m erce A ct o f 2000, do not include
a fa csim ile transm ission. A ccordin gly, a fa csim ile
tra n s m iss io n ca n n o t be co n s id e r e d as e le c tr o n ic
ev id e n ce. It is not th e fu n c tio n a l e q u iv a le n t o f
an o rig in a l u n d er the B est E viden ce R ule and is
not adm issible as electron ic evidence.
Since a facsim ile transm ission is not an “electronic
data m essage” or an “electronic docum ent,” and cannot
be considered as electron ic evidence by the C ourt,
w ith grea ter rea son is a p h otocop y o f su ch a fax
transm ission not electronic evidence. In the present
case, th erefore, the Pro F orm a In voice N os. ST2-
PO STS0401-1 and ST2-PO STS0401-2 (E xhibits “ E”
and “F”), w hich are mere photocopies o f the original
fax transm ittals, are not electronic evidence, contrary
to the position o f both the trial and the appellate
courts.
714
B. A D M ISSIB ILITY OF EVID EN C E
RULE 130
RULES OF A D M ISSIB IL IT Y
A. O bject (Real) Evidence
S e c t io n 1. O b je c t as e v id e n c e . — O b je c t s as
evidence are those addressed to the senses o f the
court. W h en an object is relevant to the fact in
issue, it m ay be exhibited to, exam ined or view ed
by the court, (la )
NO TES
1 . W here an object is relevant to a fact in issue, the

court m ay acquire know ledge th ereof by actually view ing
the object, in w hich case such object becom es object (real)
evidence, or by receiving testim onial evidence thereon.
Even if testim onial evidence has been adduced, the court
may still view such object to resolve any doubt it m ay have
thereon. Conversely, the fact that an ocular inspection
has been held does not preclude a party from introdu cin g
other evidence on the same issue (see Phil. M ovie Pictures
W ork ers’ A s s ’n vs. Prem iere P roductions, Inc., 92 Phil.
843). W hether an ocular inspection is to be m ade or not
lies in the discretion o f the trial court (People vs. M oreno,
83 Phil. 286).
2. A n o cu la r in s p e ctio n con d u cted by th e ju d g e
w ith o u t n o tic e to or th e p re s e n c e o f the p a r tie s is
in va lid , as an ocu la r in sp ection is a part o f th e trial
(In re Hon. Rafael C. Climaco, etc., Adm. Case No. 134-J,
J a n . 21, 19 7 4 ; A d a n vs. A b u c e jo -L u z a n o , etc ., A .M .
No. M TJ-00-1298, Aug. 3, 2000).
715
3. The court m ay refuse the introduction o f object

(real) evidence and rely on testim onial evidence alone, if
(a) the exhibition o f such object is contrary to public policy,
m orals or decency (5 M oran, op. cit:, p. 72); (b) to require
its being view ed in court or in an ocular inspection w ould
result in delays, inconvenience, unnecessary expenses out
o f proportion to the evidentiary value o f such object (People
vs. Tavera, et al., 47 Phil. 645; People vs. M oreno, 8 3 Phil.
286); (c) such object (real) evidence would be confusing or
m isleading, as w hen the purpose is to prove the form er
condition o f the object and there is no prelim inary show ing
that there has been no substantial change in said condition
(P eop le vs. S aavedra, [C A ], 50 O.G. 5407); or (d) the
testim onial or docum entary evidence already presentea
clearly portrays the object in question as to render a view
th ereof unnecessary (see Sec. 6, R ule 133).
4. Even if the object is repulsive or indecent, if a view
o f the same is necessary in the interest o f ju stice, such
object (real) evidence may still be exhibited, but the court
may exclude the public from such view (see 5 M oran, op.
cit., p. 73). Such view m ay not be refused i f the indecent
or immoral objects constitute the very basis for the criminal
or civil action, as in the case o f obscene pictures or exhibits.
5. Object (real) evidence includes any article or object
w hich m ay be know n or perceived by the use o f any o f the
senses. It includes the exam ination o f the anatom y o f a
person or o f any substance taken therefrom (U.S. vs. Tan
Teng, 23 Phil. 145; U.S. vs. Ong Siu Hong, 36 Phil. 735),
or the conduct o f tests, dem onstrations, or experim ents
(U.S. vs. Caralipio, et al., 18 Phil. 421; U.S. vs. Tegrado,
3 6 P h il. 789), or the e x a m in a tio n o f r e p r e s e n ta tiv e
p o r tr a y a ls o f th e o b je ct in q u e s tio n , su ch as m aps,
diagram s or sketches, pictures or audio-visual recordings,
provided the sam e are properly authenticated (see City o f
M anila vs. Cabangis, 10 Phil. 151).
716
RULE 130 RULES OF ADMISSIBILITY SEC 1
t>. W hile the form er rule spoke o f real eviden ce as

tho “view o f an object,” thus lim iting the con cept th ereof
to the visual sense, real evidence actually includes any
ob ject w h ich m ay be know n by the senses o f h ea rin g
(a u d itory ), tou ch (ta ctile), ta ste (g u sta tory ), or sm ell
(olfactory). T hus, the sense o f hearin g is in volved in
determ ining the nature o f sounds or sim ilarity o f tunes;
touch, in determ ining textures or tem perature; taste and
smell, in determ ining types and conditions o f substances
or objects. T he present am endm ent has corrected the
form er erroneously lim ited form ulation.
7. H ow ever, ju st like ocular inspections w h ich are
only auxiliary rem edies afforded to the court (Phil. M ovie
P ictu res W orkers A s s ’n vs. P rem iere P rod uctions, Inc.,
supra), such observations o f the court m ay be am plified
b y in te rp r e ta tio n s a fford e d b y te s tim o n ia l e v id en ce,
especially by experts. N evertheless, the fact th at the
object or an accurate representation th ereof w as perceived
through the senses o f the court constitutes the sam e into
object (real) evidence. Thus, photographs, X -ray plates,
recordings and m otion pictures show n to the cou rt are
object (real) evidence, although interpretations th ereof
are a fforded by ord in a ry or expert w itn esses th rou gh
testim onial or docum entary evidence.
8 . D ocum ents are object (real) evidence if the purpose
is to prove their existence or condition, or the nature of
the handw ritings thereon (see 5 M oran, op. cit., p . 68), or
to determ ine the age o f the paper used, or the blem ishes
or alterations thereon, as w here fa lsification is alleged.
Otherwise, they are considered docum entary evidence, i.e.,
i f the purpose is to establish the contents or tenor thereof.
9. The p h ysica l exa m in ation o f a person m ay be
condu cted by the court, or under its direction to show the
nature, extent or location o f injuries (see 4 M artin, op.
cit., p. 70), his physique (People vs. Ogbac, 90 P hil. 235),
717
his fa cia l fea tu res to determ in e his resem b lan ce and

possible relationship to another (Chua Yeng vs. Collector
o f Customs, 28 Phil. 591), or his racial origin (Leong vs.
Collector o f Customs, 31 Phil. 417), his probable age (U.S.
vs. A ga d a s et al., 3 6 Phil. 246; B raca vs. C ollector o f
Customs, 36 Phil 929; Lim Cheng vs. Collector o f Customs,
42 Phil. 876)\ or, in the case of a wom an, to establish the
fact o f pregnancy (V illaflor vs. Sum m ers, 41 Phil. 62).
B. D ocum entary Evidence
Sec. 2. D ocum entary evidence. — D ocum ents as

e v id e n c e c o n s is t o f w r it in g s or a n y m a t e r ia l
containing letters, words, num bers, figures, sym bols
or other m odes o f w ritten expressions offered as
p ro of of their contents, (n)
1. Best Evidence Rule
Sec. 3. O r ig in a l d o c u m e n t m u st be p r o d u c e d ;
excep tion s. — W h en the su b ject o f in q u iry is the
c o n te n ts o f a d o c u m e n t, no e v id e n c e s h a ll be
adm issible other than the original docum ent itself,
except in the follow in g cases:
(a) W h e n th e o r ig in a l h a s b e e n lo s t or
destroyed, or cannot be produced in court, w ithout
bad faith on the part o f the offeror;
(b) W hen the original is in the custody or under
the control o f the party against w hom the evidence
is offered, and the latter fails to produce it after
reason able notice;
(c) W h en the o rig in a l c o n sists o f n u m ero u s
a c c o u n ts or o th e r d o cu m e n ts w h ich c a n n o t be
exam ined in court w ithout great loss o f tim e and
the fact sought to be established from them is only
718
the g e n e ra l result o f the w h o le ; a n d

(d) W hen the original is a public record in the
custody o f a public officer or is recorded in a public
office. (2a)
Sec. 4. O riginal o f docum ent. — (a) The origin al

o f a docum ent is one the contents o f w hich are the
subject o f inquiry.
(b) W h en a docum ent is in two or m ore copies
executed at or about the same tim e, with id entical
contents, all such copies are equally regarded as
origin als.
(c) W h en an entry is repeated in the regular
course, o f business, one being copied from another
at or near the tim e o f the transaction, all the entries
are likew ise equally regarded as originals. (3a)
N O TES
1 . A docum ent is a deed, instrum ent or other duly

authorized paper by which som ething is proved, evidenced
or set forth (U.S. vs. Orera, 11 Phil. 596; cf. P eople vs.
Cam acho, 44 Phil. 484). D ocum entary evidence is that
w hich is furnished by w ritten instrum ents, inscriptions
and docum ents o f all kinds (3 2 C.J.S. 465).
2. The best evidence rule, applied to docum entary
evidence, operates as a rule o f exclusion, that is, secondary
(or substitutionary) evidence cannot inceptively be in tro-
duced as the original w riting itself must be produ ced in
court, except in the four instances m entioned in Sec. 3.
T he n o n -p ro d u ctio n o f the o rig in a l d ocu m en t u n less
ju s tifie d u n der the ex cep tion s in Sec. 3 o f th is Rule,
gives rise to the presum ption o f suppression o f evidence
(S ec. 3[e], R u le 131). In th e ca se o f re a l e v id e n ce ,
secondary evidence of the fact in issue m ay readily be
719
in tr o d u c e d w ith o u t h a v in g to a cco u n t fo r th e non

production o f such prim ary evidence.
3. But even w ith respect to docum entary evidence,
the best evidence rule applies only when the contents of
such docum ent is the subject o f inquiry. W here the issue
is on ly as to w h eth er su ch a docu m en t w as a ctu a lly
executed, or exists, or on the circum stances relevant to or
surrounding its execution, the best evidence rule does not
apply and testim onial evidence is adm issible (5 M oran,
op. cit., pp. 76-77; 4 M artin, op. cit., p. 78). A ny other
su bstitutionary evidence is likew ise adm issible w ithout
need o f accounting for the original.
T hus, w hen a docum ent is p resen ted to prove its
existence or condition, it is offered not as docum entary,
b u t as rea l, e v id e n ce . P a rol e v id e n ce o f th e fa ct o f
execu tion o f the docum ent is allow ed (H ernaez, et al. us.
M cGrath, etc., et al., 91 Phil. 565). W here the purpose is
to prove a collateral or concom itant fact that took place
w h ile a d o c u m e n t w a s b e in g p r e p a r e d , s u c h as a
conversation in relation thereto, the best evidence rule
does not apply and such fact m ay be proved testim onially
since the issue is the conversation and not the contents o f
th^ docum ent (Air F rance vs. Carrascoso, et al., L-21438,
Sept. 28, 1966).
H ow ever, in crim inal cases w here the issue is not
only w ith respect to the contents o f the docum ent but also
as to w hether such docum ent actually existed w ith the
p a rticip a tio n th e re in as im pu ted to the a ccu sed , th e
origin al its e lf m ust be presented. Thus, in a prosecution
fo r lib e l p u b lis h e d in a n e w s p a p e r , a co p y o f s a id
n e w s p a p e r m u st be p r o d u c e d (P r o v in c ia l F is c a l o f
P am pan ga vs. R eyes, etc., et al., 55 Phil. 905), and in
falsification o f a document, the original docum ent involved
m ust be presented (U.S. vs. Gregorio, et al., 17 Phil. 522;
B orje vs. Sandiganbayan, et al., G.R. No. 55436, Nov. 25,
720
1983). It is subm itted, how ever, that this requirem ent

for the presentation o f the originals should affect only the
w eight o f the evidence intended to establish the execution
o f said docum ents, since, taken in con ju n ction w ith other
e v id en ce in and the record s o f th e case or co lla te ra l
c ir c u m s ta n c e s , the sam e m a y s u ffic e to p ro v e su ch
execution.
4. W here the tran saction s have been record ed in
w ritin g but th e con ten ts o f such w ritin g are not “the
subject o f inquiry,” the best evidence rule does not apply.
A ffidavits and depositions are considered as not being the
b est eviden ce, hence not adm issible i f the a ffia n ts or
deponents are available as w itnesses (4 M artin, op. cit.,
p. 82). T his w ould give the im pression that although the
originals o f said docum ents are available, still the Rules
give preference to testim onial evidence. Strictly speaking,
how ever, under these circum stances the best evidence rule
is not involved since the contents o f said affidavits or
depositions are not the issues in the case but are only
intended as evidence to establish the issues in controversy.
Consequently, the use o f said affidavits is regulated by
the hearsay evidence rule (Sec. 26, R ule 130) to safeguard
the right o f cross-exam ination, w hile the use o f depositions
is regulated by Sec. 4, Rule 23, in consideration o f the
necessity therefor even if the deponent had been cross-
exam ined.
H ow ever, if the issue is the existence and/or contents
o f said d ocu m en ts, th en th ey are con sid ered p rim a ry
evidence, but any recitation th erein o f the con tents o f
another docum ent w ould m erely be secondary evidence o f
the latter.
5. Sec. 4 declares w hen other copies o f a docum ent
are considered originals. These include regular entries
in jou rnals and ledgers. A signed carbon copy or duplicate
721
o f a docum ent executed at the same time as the original

is know n as a duplicate original and may be introduced
in evidence w ithout accounting for the non-product, i o n
of the original (M ahilum, et al. vs. CA, et al., L -17970,
June 30, 1966).
6 . W ith respect to docum ents prepared in several
copies th rough the use o f carbon sheets, the Suprem e
Court has held that each carbon copy is considered an
original provided that the w riting o f a contract upon the
outside sheet, including the signature of the party sought
to be charged thereby, produces a facsimile upon the sheets
beneath, such signature being thus reproduced by the same
strok e o f the p en w h ich m ade the su rface or exposed
im pression (People vs. Tan, etc., et al., 105 Phil. 1242; cf.
P eople vs. Q uinones, 44 O.G. 1520). H ow ever, even if
said signature on each copy was w ritten through separate
acts, or even on separate occasions, it w ould be m ore
accurate to say that all o f said carbon copies are regarded
as originals (see People vs. Quinones, supra; People vs.
M a n g u la b n a n , et al., 99 P h il. 992) if each cop y w as
intended as a repository o f the same legal act o f the party
thereto. But im perfect carbon copies, e.g., those w herein
the signatures o f the parties are incom plete or which leave
som ething else to be done in order that a docum ent could
e v id e n ce a b in d in g o b lig a tio n are m erely se co n d a ry
evidence (see 5 M oran, op. cit., pp. 78-79), even if the text
w ritten thereon w as made by the typew riter at the same
tim e as the signed original copy. The m ore expanded
text o f Sec. 4(b) o f this am ended Rule has clarified and
set at rest the form er controversy on this matter.
7. W ith resp ect to telegra m s and ca b les, on the
question as to w hether the dispatch sent or the dispatch
received is the best evidence o f the m essage, the better
rule is that it depends on the issue to be proved, i.e., if
the issue is the contents o f the telegram as received by
722
the nddressee, then the original dispatch received is the

beet evidence; and, on the issue as to the telegram sent
by the sender, the original is the m essage delivered for
transm ission . I f the issue is the inaccu racy o f tra n s -
mission, both telegram s as sent and received are originals
(see 5 M oran, op. cit., pp. 84-85).
In the aforecited libel case o f P rovin cia l F isca l o f
P am panga vs. Reyes, etc., et al., supra, it was held that on
the issue as to the contents o f the articles sent by the
accu sed for pu blication , the m an u script w as the best
e v id e n ce ; b u t on th e is s u e as to w hat w as a ctu a lly
published, a copy o f the new spaper pu blication w as the
best evidence.
8. The first exception to the best evidence rule is
w hen th e origin a l w ritin g has been lost, d estroyed or
cannot be produced. The com plem entary rule is provided
by the succeeding section.
2. Secondary Evidence
Sec. 5. When original docum ent is unavailable. —

W h e n th e o r ig in a l d o c u m e n t h as b e e n lo s t or
d e stro y e d , or can n o t be p ro d u ced in c o u r t, the
offeror, upon p roof o f its execution or existence and
the cause o f its u n availability w ithout bad faith on
his part, m ay prove its contents by a copy, or by a
recital o f its contents in som e authentic docum ent,
or by the testim ony of w itnesses in the order stated.
(4a)
NOTES
1 In order that such secon dary eviden ce m ay be

adm issible, there must be p roof by satisfactory evidence
o f ( 1 ) due execution o f the original, ( 2 ) loss, destruction
723
or unavailability o f all such originals, and (3) reasonable

diligence and good faith in the search for or attempt, to
produce the origin al (Zaldivar vs. M un. o f Talisay, IS
Phil. 262; cf. Tan vs. CA, et al., G.R. No. 56866, June 27,
1985). The am endm ent to this section requires that tho
loss, destruction or unavailability o f the docum ent was
not due to the offeror’s bad faith. The due execution of
the docum ent should be proved through the testim ony o f
eith er ( 1) the person/s who executed it; ( 2 ) the person
before whom its execution was acknow ledged; or (3) any
person who was present and saw it executed and delivered
or w ho thereafter saw it and recognized the signatures,
or one to whom the parties thereto had previously confessed
the execution th ereof (D irector o f Lands, et al. vs. CA, et
al., L-29575, A pril 30, 1971). Intentional destruction of
the originals by a party who, how ever, had acted in good
fa ith does not preclu de his in trod u ction o f secon d a ry
evidence o f the contents thereof.
2 . The loss or destruction o f the docum ents may be
proved by any person who knew o f such fact or by anyone
w ho, in the ju dgm en t o f the court, had made a sufficient
exam in ation in the places w here the docum ent or papers
o f sim ilar character are u sually kept by the person in
w hose custody the docum ent w as and has been unable to
find it, or who has made any other investigation w hich is
sufficient to satisfy the court that the docum ent is indeed
lost. A ll duplicates or coun terparts o f such docum ent
m ust be accounted for before using copies thereof. Since
all the duplicates or m ultiplicates are parts o f the w riting
to be proved, no excuse for the n on -p rod u ction o f the
docum ent can be regarded as established until it appears
that all o f its parts are unavailable (D e Vera, et al. vs.
Aguilar, et al., G.R. No. 83377, Feb. 9, 1993).
3. W hen the original is outside the ju risdiction o f the
cou rt, as w h en it is in a fo r e ig n co u n try , se co n d a ry
724
evidence is a d m issible (P N B vs. O lila, 98 P h il. 1002;

Chartered Bank o f India, A ustralia & China vs. Tuljaram,
etc., 51 O.G. 5211).
4. The secondary evidence m ay consist o f (1) a copy
o f sa id d ocu m en t, ( 2 ) a r e c ita l o f its co n te n ts in an
authentic docum ent, or (3) the recollection o f w itnesses.
The form er rule w as that any or all o f these three kinds o f
secondary evidence may be availed o f (E. M ichael & Co.,
Inc. vs. Enriquez, 33 Phil. 87) and the su fficiency o f such
p roo f w as addressed to the sound discretion o f th e judge.
H ow ever, as am ended, the present rule authorizes the
availm ent o f such secondary evidence in the aforesaid
order as stated therein.
5. N evertheless, w here the law specifically provides
for the cla s s and q u an tu m o f se co n d a ry e v id e n ce to
establish the contents o f a docum ent, or bars secondary
evidence o f a lost document, such requirement is controlling.
Thus, secondary evidence o f a lost notarial w ill should
consist o f the testim ony o f at least two credible w itnesses
w h o ca n cle a rly and d is tin ctly e sta b lish its con ten ts
(Sec. 6, R ule 76); w hile the p roof required for the probate
of a holographic w ill (Sec. 5, R ule 76) appears to rule out
any testim on ial evidence o f its contents in case o f loss of
the original, although there w as a dictum to the effect
that it m ay possibly be proved by authentic photographic
or photostatic copies th ereof (see Gan vs. Yap, 104 Phil.
509). S u ch d ictu m w as la te r a d op ted as a d e fin ite
eviden tiary rule (R odelas vs. A ranza, G.R. No. 58509,
Dec. 7, 1982).
6 . R econstitution of docum ents by the court through
secondary evidence is governed by A ct No. 3110 (People
vs. Lava, L-4974, and com panion cases, M ay 16, 1969).
7. T he secon d excep tion to the prim a ry eviden ce
rule is w hen the origin al is in the custody or under the
co n tr o l o f th e a d v erse p a rty w ho fa ils to p ro d u ce it
725
RULE 130 REMEDIAL LAW COMPENDIUM SEC 6, 8
desp ite rea son a b le n otice. T he com p lem en ta ry ru les

are provided by Secs. 6 and 8 w hich follow .
Sec. 6. W h en o r ig in a l d o c u m e n t is in a d v e r s e
p a r ty ’s custod y or con trol. — I f the d ocu m en t is in
the cu stod y or u n d er the con trol o f the ad verse
party, he m ust have reasonable notice to produce
it. I f a fte r su ch n o tic e and a fte r s a t is fa c t o r y
p r o o f o f its e x is te n c e , he fa ils to p r o d u c e th e
docu m ent, second ary evidence m ay be presented
as in the case o f its loss. (5a)
Sec. 8. P arty who calls for docum ent not bound to

offer it. — A party who calls for the production o f a
docum ent and inspects the sam e is not obliged to
offer it as evidence. (6a)
NOTES
1 . No particular form o f notice is required, as long

as it fairly apprises the other party as to w hat papers are
d e sired (4 M artin, op. cit., pp. 94-95). E ven an oral
demand in open court for such production at a reasonable
tim e thereafter w ill suffice. Such notice m ust, how ever,
be given to the adverse party, or his attorney, even if the
docum ent is in the actual possession o f a third person.
2. It has been held that w here receipt o f the original
of a letter is acknow ledged on a carbon copy thereof, there
is no need for a notice to the other party to produce the
original o f the letter (Phil. R eady-M ix Concrete Co. vs.
Villacorta, et al., 98 Phil. 993). It should be observed,
how ever, that the duplicate copy, if com plete, is itself an
original copy and the only point in issue is the receipt o f
the basic original copy thereof.
3. The justified refusal or failure of the adverse party
726
RULE 130 RULES OF ADMISSIBILITY SEC 6, 8
to p ro d u ce th e d o cu m e n t d oes n ot g ive rise to the

presu m ption o f su p p ression o f evid en ce, or create an
unfavorable inference, against him . It only authorizes
the introduction o f secondary evidence.
4. W here such docum ent is produced, that docum ent

is not n ecessa rily a d m issib le in evid en ce, u n less the
requisites for adm issibility are present; nor is the party
who sought its production obliged to offer it as evidence.
5. The prod u ction o f d ocu m en ts u n der th is R ule
should be distinguished from produ ction o f docum ents
under Rule 27. U nder this Rule, the production o f the
o rig in a l d ocu m en t is procu red b y m ere n otice to the
adverse party, and the requirem ents for such notice m ust
b e c o m p lie d w ith as a c o n d itio n p r e c e d e n t fo r th e
su bsequ en t in trodu ction o f secon dary evidence by th e
proponent. G enerally, therefore, it presupposes that the
docum ent to be produced is intended as evidence for the
prop on en t w ho is presu m ed to have k n ow led ge o f its
contents, secondary evidence th ereof being available in
case o f its non-production. Rule 27, on the other hand,
contem plates the situation w herein the docum ent is either
assum ed to be favorable to the party in possession th ereof
or that the party seeking its production is not su fficiently
inform ed o f the contents o f the sam e. The produ ction of
such a docum ent is in the nature o f a mode of discovery
and can be sought only by proper m otion in the trial court,
but is perm itted only upon good cause shown.
6 . W here the nature o f the action is in itself a notice,
as w here it is for the recovery or annulm ent o f docum ents
w rongfully obtained or w ithheld by the other party, no
notice to produce said docum ents is required (W arner,
B arnes & Co., Ltd. vs. Buenaflor, et al., 36 O.G. 3290).
7. The third exception to the best evidence rule is
ju s t ifie d n o t o n ly by th e fa c t th a t th e r e c o r d s are
727
volum inous but by the fact that the factum proband um in

only the general result o f the w hole and not the detailed
con ten ts o f the records. H ow ever, w here the detailed
contents o f the records of accounts are challenged for being
hearsay (see U.S. vs. Razon, et al., 3 7 Phil. 856), or issues
are raised as to the au then ticity or correctn ess o f the
detailed entries, the originals have to be produced. Thus,
for this exception to apply, (a) the volum inous character
o f the records m ust be established and (b) such records
m ust be made accessible to the adverse party so that their
correctn ess m ay be tested on cross-exa m in a tion (Cia.
M aritim a vs. A llied Free W orkers Union, et al., L-28999,
M ay 24, 1977).
Sec. 7. E v id en ce ad m issib le when orig in a l d o cu -

m ent is a p u b lic record. — W h en the o rig in a l o f a
d ocum ent is in the custody o f a public officer or is
reco rd ed in a p u b lic o ffice, its co n ten ts m ay be
p roved by a c ertified copy issued by the p u b lic
officer in custody thereof. (2)
NOTES
1. T his section com plem ents the fourth exception to

the best evidence rule w hich provides that the original
docum ent is not required w hen said original is a public
record in the custody o f a public officer or is recorded in a
public office. This is so because by specific provision o f
Rule 132, such docum ent may be evidenced by an official
pu blication th ereof or by a copy attested by the officer
having the legal custody o f the record (Sec. 24), and in
the case o f an authorized public record o f a private writing,
the same m ay also be proved b y a copy th ereof attested by
the legal keeper o f the record (Sec. 27).
2. Sec. 8 , as earlier noted, w as presented together
w ith Sec. 6 for correlative reading.
728
3. Parol Evidence Rule
Sec. 9. E vid en ce o f w ritten agreem ents. — W h en

the term s o f an agreem ent have been redu ced to
w riting, it is to be considered as con tain in g all the
term s agreed upon and there can be, betw een the
parties and their successors in interest, no evidence
o f su c h te r m s o th e r t h a n th e c o n t e n t s o f th e
w ritten agreem ent.
H o w e v e r , a p a rty m a y p r e s e n t e v id e n c e to
m od ify, explain or add to the term s o f the w ritten
agreem ent if he puts in issue in his p lead in gs:
(a) A n intrinsic am biguity, m istake or im per-
fection in the w ritten agreem ent;
(b) The fa ilu re o f th e w ritten a g re e m e n t to
express the true intent and agreem ent o f the parties
th ereto;
(c) The validity o f the w ritten agreem ent; or
(d) The existence o f other term s agreed to by
the parties or their successors in interest after the
execution o f the w ritten agreem ent.
The term “ agreem ent” includes w ills. (7a)
NO TES
1. T h e p a r o l e v id e n c e r u le is b a s e d u p o n th e
con sideration that w hen the parties have reduced their
agreem ent on a particular m atter into w riting, all their
previous and contem poraneous agreem ents on the m atter
are m erged th erein (De Guzman vs. Calma, et al., 100
Phil. 1088), hence evidence o f a prior or contem poraneous
v erb al agreem en t is g en era lly not adm issible to vary,
contradict, or defeat the operation o f a valid instrum ent
(D e la R anza vs. Ledesm a, L-28498, July 14, 1986).
729
1
2 . Parol evidence is any evidence aliunde, w hether

oral or w ritten, w hich is intended or tends to vary or
c o n t r a d ic t a c o m p le te a n d e n fo r c e a b le a g r e e m e n t
em bodied in a docum ent.
3. Form erly, even if there w as a w ritten agreem ent
on a particular subject matter, the parol evidence rule did
not apply to or bar evidence o f a collateral agreem ent
betw een the same parties on the same or related subject
m atter, in the follow ing instances:
(a) W h e r e th e c o lla t e r a l a g r e e m e n t is n o t in -
consistent with the term s o f the w ritten contract (Robles
us. Lizarraga H erm anos, 50 Phil. 387);
(b) W here the colla tera l agreem ent has not been
integrated in and is independent o f the w ritten contract
(id.), as w here it is suppletory to the original contract;
(c) W here the collateral agreem ent is subsequent to
(F il ip in a s M a n u fa c t u r e r s B a n k us. E a s te r n R iz a l
Fabricators, G.R. No. 62741, M ay 29, 1987) or novatory
o f the w ritten contract (Canuto vs. M ariano, 37 Phil. 840);
and
(d) W here the collateral agreem ent con stitu tes a
condition precedent which determ ines w hether the written
con tract m ay becom e operative or effective (H enry W.
P eabody & Co. us. Brom field, et al., 38 Phil. 841), but this
exception does not apply to a condition subsequent not
stated in the agreem ent.
These exceptions still hold true under the am end-
m ents to Sec. 9 o f this Rule, but w ith respect to evidence
thereon, the same may be allowed provided they have been
put in issue in view o f the provisions o f par. (d) o f Sec. 9
w hich w as added to the original exceptions thereto.
4. The parol evidence rule does not apply, and may
not properly be invoked by either party to the litigation
against the other, w here at least one party to the suit is
730
not a party or privy o f a party to the w ritten instrum ent

in question and does not base a claim or assert a right
originating in the instrum ent o f the relation established
thereby. Thus, if one of the parties to the case is a com plete
stranger to the contract involved therein, he is n ot bound
by this rule and can introduce extrinsic evidence against
the e ffic a c y o f the w ritin g (L ech u g a s us. CA, et al.,
L -39972 & L -40300, Aug. 6, 1986).
5. The parol evidence rule may be distinguished from
the best evidence rule by the follow ing considerations:
a. T he pa rol evid en ce ru le p resu p p oses th a t the
origin al docum ent is available in court, w hile the best
eviden ce rule con tem plates the situ ation w h erein the
original w riting is not available and/or there is a dispute
as to w hether said w riting is the original.
b. The parol evidence rule prohibits the varyin g o f
the term s o f a w ritten agreem ent, w hile the best evidence
rule prohibits the introduction o f substitutionary evidence
in lieu o f the original docum ent (4 M artin, op. cit., p. 98),
regardless o f w hether or not it varies the contents o f the
original.
c. W ith the exception o f wills, the parol evidence rule
applies only to docum ents which are contractual in nature
(“written agreements”), while the best evidence rule applies
to all kinds o f w ritings.
d. The parol evidence rule can be invoked only w hen
the con troversy is betw een the parties to the w ritten
agreem ent, their privies, or any party directly affected
thereby, e.g., a cestui que trust, w hereas the best evidence
rule can be invoked by any party to an action regardless
o f w h eth er or not such party has p a rticip a ted in the
w riting involved.
6 . In order that parol evidence may be adm issible,
the m istake or im perfection o f the docum ent, or its failure
731
to express the true intent and agreem ent o f the parties, or

the validity o f the agreem ent m ust be p u t in issue by the
pleadings. W here the p la in tiff failed to allege any such
fact in his com plaint, he can not introduce parol evidence
thereon. This notw ithstanding, if the defendant invoked
such fact in his answer, parol evidence m ay be introduced
as such fact is now put in issue (PN R us. CFI o f A lbay,
Branch I, etc., et al., L-46943, June 8, 1978). H ow ever,
even if such defenses were not raised in the pleadings,
but the parol evidence is not objected to, such objection
is d e e m e d w a iv e d . In an y e v e n t, su ch m is ta k e or
im p erfection m ust be proved by clea r and con v in cin g
evidence (Tolentino, et al. us. G onzales Sy Chiam, 50 Phil.
558).
U n der th e a m en dm en t to th is R ule, an in trin sic
am biguity in the w ritten agreem ent is now required to be
put in issue in the pleading in order that parol evidence
therein m ay be adm itted. A s earlier stated, the sam e
requirem ent now applies to other term s agreed upon by
the parties or their privies subsequent to the execution of
such agreem ent.
7. The “ m istake” under the first exception refers to a
m istake o f fact w hich is m utual to the parties (Bank o f the
Phil. Islands us. F idelity & Surety Co., 51 Phil. 57), or
w here the inn ocen t party was im posed upon by unfair
dealing o f the oth er (O ng Chua us. Carr, 53 Phil. 975).
“Im perfection ” includes an inaccurate statem ent in the
a g reem en t, or in co m p le te n e ss in th e w ritin g , or th e
presence o f inconsistent provisions therein. As a m atter
o f substantive law, w hen one party was m istaken and
the oth er knew that the instrum ent did not state their
real agreem ent but concealed that fact from the form er,
the instrum ent may be reform ed (Art. 1363, Civil Code).
Consequently, parol evidence o f such fact w ould be
adm issible if the same is put in issue.
732
8 . The purpose o f the second exception is to enable

the court to ascertain the true intention o f the parties
(Tolentino, et al. vs. Gonzales Sy Chiam, supra) or the
true nature o f the transaction betw een the parties. Under
the third exception which in effect authorizes an inquiry
into the validity o f the agreem ent, parol evidence m ay
be adm itted to show the true con sideration o f a contract
(Art. 1354, Civil Code), or the w ant or illegality thereof,
or the incapacity of the parties, or the fact that the contract
w as fictitiou s or absolutely sim ulated, or that there was
fraud in the inducem ent.
9. C om in g back to the firs t excep tion , as ea rlier

stated, it now includes a latent or intrinsic am biguity in
the w riting. There is latent am biguity w hen the w riting
on its face appears clear and unam biguous but there are
c o lla te r a l m a tters or circu m sta n ce s w h ich m ake the
m ean in g u n certain (see 4 M artin, op. cit., p . 122), or
w here a w riting adm its o f two constructions both o f w hich
are in h a rm on y w ith th e la n g u a g e u sed (Ig n a cio vs.
R em enteria, 99 Phil. 1054 [JJnrep.]).
a. The m ost com m on exam ple o f latent am biguity is
w here the docum ent refers to a particular person or thing
but there are two or m ore persons having the sam e nam e
or tw o or m ore things to w hich the description in the
w ritin g m ay apply.
In a P hilippine case (Palanca vs. F red W ilson & Co.,
87 Phil. 506), the phrase “capacity o f 6,000 liters” used in
con n ection w ith a distilling apparatus was held to be a
la te n t a m b ig u ity w h ich h a d to be c la r ifie d by p a ro l
evidence to determ ine w heth er it m eant the receivin g,
treating, or the producing capacity o f the m achine.
b. P aten t or extrinsic am biguity, on the other hand,
is such am biguity which is apparent on the face o f the
w ritin g itself and requires som ething to be added in order
733
to ascertain the m eaning of the w ords used. In such a

case, parol evidence is not adm issible, otherw ise the court
w ould not thereby be construing the contract but would
be creating a contract betw een the parties (see 32 C.J.S.
918-919). An exam ple would be w here the contract refers
to an unidentified grantee or does not particularly identify
the subject m atter th ereof such that, in either case, the
text does not disclose who are or w hat is referred to.
c. A m erican jurisprudence also refers to a situation
w here an am biguity partakes o f the nature o f both patent
and latent am biguity, that is, an interm ediate am biguity
because the w ords o f the writing, though seem ingly clear
and w ith a settled m eaning, is actually eq u ivocal and
adm its o f two interpretations. Parol evidence, in such a
case, is adm issible to clarify the am biguity (see 20 Am .
Jur. 1011) provided, as the rule now stands, that m atter
is put in issue by the pleader.
Possible exam ples o f interm ediate am biguity, in the

context o f our lim ited local experience and the present
heterogeneous com m ercial usages, w ould be the use o f
such term s as “ dollars,” “tons” and “ounces!’
“D ollars” may refer to the currency of, for instance,

the U nited States, H ongkong or A ustralia.
U nless the sam e is apparent from the context o f the

a g re e m e n t, th e term “ to n ” is s u s ce p tib le o f v a rio u s
m eanings. A “long ton” is 2,240 pounds; a “short ton ,”
2,000 pounds; a “displacem en t ton ” is 35 cubic feet; a
“freigh t ton” is 40 cubic feet; w hile a “tim ber ton” is 480
board feet.
L ikew ise, in the use o f the w ord “ounces,” the same

should be construed in light o f w hether the sam e refers to
troy w eight under w hich there are 12 ounces to the pound
or under the avoirdupois scale w herein there are 16 ounces
to the pound.
734
RULE 130 RULES OF ADMISSIBILITY SEC 10-12
1 0 . Apropos to these considerations o f am biguities is

the legal m axim adopted by foreign w riters and courts o f
falsa dem onstratio non nocet cum de corpore constat, which
m eans that false description does not vitiate a docum ent
if the su b ject is su fficien tly iden tified. The in correct
description shall be rejected as surplusage w hile the correct
and com plete description standing alone shall sustain the
validity o f the writing.
11. No express trust con cern in g an im m ovable or
any in terest th erein m ay be proved by parol evidence
(Art. 1443, Civil Code). Reform ation o f a contract, as a
relief, is regu la ted by A rts. 1359 to 1368 o f the Civil
Code.
4. Interpretation o f D ocum ents
Sec. 10. In terp reta tion o f a w ritin g a cco rd in g to

its legal meaning. — The language of a w riting is to
be interp reted accord in g to the legal m ean in g it
bears in the place o f its execution unless the parties
intended otherw ise. (8)
Sec. 11. In strum en t con stru ed so as to give effect

to a ll p r o v i s i o n s . — In th e c o n s t r u c t io n o f an
instrum ent w here there are several p rovisions or
p articu lars, such a constru ction is, if p ossible, to
be adopted as w ill give effect to all. (9)
Sec. 12. I n te r p r e ta tio n a c c o r d in g to in t e n t io n ;

g e n e r a l a n d p a r tic u la r p r o v is io n s . — In th e c o n -
stru ctio n o f an in stru m en t, the in te n tio n o f the
parties is to be pursued; and when a general and
a p articu lar provision are inconsistent, the latter
is p aram ount to the form er. So a p articu lar intent
w ill c o n tr o l a g e n e r a l one th a t is in c o n s is te n t
w ith it. (10)
735
RULE 130 REMEDIAL LAW COMPENDIUM SEC 13-17
Sec. 13. Interpretation accord in g to circum stances.

— For the proper constru ction o f an instrum ent,
th e c ir c u m s t a n c e s u n d e r w h ic h it w as m a d e ,
includ ing the situation o f the subject th e re o f and
o f the parties to it, m ay be show n, so that the jud ge
m a y be p la c e d in the p o s itio n o f th o s e w h o se
language he is to interpret. (11)
Sec. 14. P ecu lia r sig n ifica tio n o f term s. — The

term s o f a w riting are presum ed to have been used
in th e ir p r im a r y and g e n e r a l a c c e p t a t io n , b u t
evidence is ad m issible to show th at th ey have a
local, technical, or otherw ise peculiar sign ification,
and were so used and understood in the p articu lar
in sta n c e , in w h ich case the a g reem en t m u st be
construed accordingly. (12)
Sec. 15. W ritten words control p r in te d .— W h en an

in stru m en t con sists p artly o f w ritten w ords and
p artly o f a p rinted form , and the tw o are in con -
sistent, the form er controls the latter. (13)
Sec. 16. E x p e r ts a n d in te r p r e te r s to be u sed in

explain in g certain writings. — W h en the characters
in w hich an instrum ent is w ritten are d ifficu lt to be
deciphered, or the language is not understood by
th e c o u r t , th e e v id e n c e o f p e r s o n s s k ille d in
deciphering the characters, or who understand the
language, is adm issible to declare the ch aracters
or the m eaning o f the language. (14)
Sec. 17. O f two constructions, which preferred . —

W hen the term s o f an agreem ent have been intended
in a different sense by the different p arties to it,
that sense is to prevail against either party in which
736
RULE 130 RULES OF ADMISSIBILITY SEC 18-19, 20
he su p p osed the oth er u n d ersto o d it, and w hen

different constructions o f a provision are otherw ise
equally p roper, that is to be taken which is the m ost
favorable to the party in w hose favor the p rovision
was m ade. (15)
Sec. 18. C onstruction in favor o f natural right. —

W h e n an in s tr u m e n t is e q u a lly s u s c e p t ib le o f
tw o in terp retation s, one in favor o f n atural right
a n d th e o th e r a g a in s t it , th e fo r m e r is to be
adopted. (16)
Sec. 19. Interpretation accord in g to usage. — A n

instrum ent m ay be construed according to usage,
in order to determ ine its true character. (17)
N O TE
1 . R u les fo r th e in te rp r e ta tio n o f co n tr a c ts are

provided by A rts. 1370 to 1379 o f the Civil Code. For
the rules on in terpretation or construction o f w ills, see
Arts. 788 to 794 o f the same Code.
C. T estim onial Evidence
1. Q ualification o f W itnesses
Sec. 20. W itnesses; their qualifications. — E xcept

as p ro v id e d in the n ext su c c e e d in g se c tio n , all
persons who can perceive, and perceiving, can m ake
know n their perception to others, m ay be w itnesses.
R e lig io u s or p o litic a l b e lie f, in te r e s t in the
outcom e o f the case, or conviction o f a crim e unless
otherw ise provided by law , shall not be a ground
for disqu alification . (18a)
737
RULE 130 REMEDIAL LAW COMPENDIUM SEC. 21
Sec. 21. D is q u a li fic a t io n by r e a s o n o f m en ta l

incapacity or im m aturity. — The fo llow in g p ersons
cannot be w itnesses:
(a) Those whose m ental conditions, at the tim e
o f their production for exam ination, is such that
they are incapable of intelligently m aking known
their perception to others;
(b) Children whose m ental m aturity is such as
to render them incapable o f p erceivin g the facts
respectin g w hich they are exam ined and relating
them truthfully. (19a)
N O TES
1. The qualifications and disqualifications of witnes-

ses are determined as of the time said witnesses are
produced for examination in court or at the taking of their
depositions. It is submitted, however, that with respect
to children of tender years, their competence at the time
of the occurrence to be testified to should also be taken
into account, especially if such event took place long before
their production as witnesses.
2. The interest which a witness has in the subject
matter of the action or in its outcome does not disqualify
him from testifying, except those covered by the rule on
surviving parties, also known as the Dead Man Statute,
or the Survivorship Disqualification Rule (S ec. 23).
Otherwise, the interest of the witness affects only his
credibility but not his competency. Also, a defendant who
has been declared in default is not disqualified from
testifying for his non-defaulting co-defendant although
he has an interest in the outcome of the case. Further-
more, he is not thereby taking part in the trial as this is
understood in the rule on default (see Note 22 under
Sec. 3, R ule 9).
738
3. Unless otherw ise provided by law, a person con -

victed o f a crim e is not disqualified but he m ust answ er to
the fact o f a previous final conviction (Sec. 3[5], R ule 132)
or such fact may be show n by his exam in ation or the
record o f the judgm ent (Sec. 11, id.), since the sam e may
be taken into consideration as affecting his credibility
(Enrile, et al. vs. R oberto, et al., 61 Phil. 599).
An instance w herein conviction o f a crime disqualifies
the convict is provided in the Civil Code w herein those
convicted o f falsification o f a docum ent, perju ry or false
testim o n y are d isq u a lified from b ein g w itn esses to a
w ill (Art. 821) and, consequently, cannot testify in the
probate thereof.
4. The phrase “un soun d m ind” w hich a ffects the
com petency o f the witness includes any m ental aberration,
w heth er organic or fun ctional, or induced by drugs or
hypnosis. M ental unsoundness of the w itness at the tim e
the fact to be testified to occurred affects only his credibility.
N evertheless, as long as the w itness can convey ideas by
w ords or signs and give sufficiently intelligent answ ers to
q u e s tio n s p ro p o u n d e d , sh e is a c o m p e te n t w itn e s s
even if she is feeble-m inded (People vs. D e Jesus, L-39087,
A pril 27, 1984) or is a m ental retardate (People vs. Palma,
G.R. No. 69152, Sept. 23, 1986; People vs. G erones, G.R.
No. 91116, Jan. 24, 1991) or is a schizophrenic (People vs.
Baid, G.R. No. 129667, July 31, 2000).
5. D eaf-m utes are com petent w itnesses w hen they
can understand and appreciate the sanctity o f an oath,
can com prehend facts they are going to testify to and can
com m unicate their ideas through a qualified interpreter
(P eop le vs. H ayag, L -38635, N ov. 17, 1980, and cases
th erein cited).
6 . In the case o f a child w itness, the court in deter-
m ining his com petency m ust consider his capacity (a) at
739
the tim e the fact to be testified to occurred such that he

could receive correct impressions thereof, (b) to comprehend
the obligation o f an oath, and (c) to relate those facts truly
at the tim e he is offered as a w itness. O therw ise stated,
the co u r t sh o u ld ta k e in to a cco u n t h is ca p a city for
observation, recollection and com m unication (Republic vs.
CA, et al., G.R. No. 116372, Jan. 18, 2001). See, in this
co n n e ctio n , th e R u le on the E xa m in a tion o f a C hild
W itness, A.M . No. 00-4-07-SC (Appendix FF).
7. U n less a ch ild ’s te stim o n y is p u n ctu red w ith
serious inconsistencies as to lead one to believe that he
w as coach ed, if he can perceive and m ake k n ow n his
perception, he is considered a com petent w itness (People
vs. Cidro, 105 Phil. 238; People vs. Gacho, G.R. No. 60990,
Sept. 23, 1983). A n intelligent boy is undoubtedly the
best observer to be found. He is little influenced by the
suggestions o f others and describes objects and occurrences
as he has really seen them (People vs. Bustos, 45 Phil. 9;
P eople vs. Talingdan, e ta l., L-32126, July 6, 1978; People
vs. Pedrosa, G.R. No. 56457, Jan. 27, 1989). The ch ild’s
naivete and apparent accuracy make his testim ony most
im pressive (People vs. Guzman, 1 0 7 Phil. 1122). Children
o f sound m ind are likely to be more observant o f incidents
w hich take place w ithin their view than older persons,
and their testim onies are likely more correct in detail than
that o f older persons. Once it is established that they
understand the nature and character o f an oath, full faith
and credit should be given to their testim ony (P eople vs.
Alam bra, et al., 55 Phil. 578). A child who w itnessed the
crim e w hen he was seven years old, and w ho testified
thereto w hen he was already fifteen years o f age, is a
com petent w itness (People vs. Sabater, et al., L-38169,
Feb. 23, 1978).
Sec. 22. D isqualification by reason o f m arriage. —

D urin g their m arriage, neither the husband nor the
740
wife m ay testify for or against the other w ithout

the consent o f the affected spouse, except in a civil
case by one against the other, or in a crim inal case
for a crim e com m itted by one against the other or
the latter’s direct descendants or ascendants. (20a)
N O TES
1. This section is the rule on marital disqualification,

s o m e tim e s r e fe rre d to in A m e ric a n la w as “ sp o u s a l
im m unity,” which is different from m arital privilege under
Sec. 24(a).
2. In order that the m arital disqualification rule w ill
apply, it is n ecessa ry that th e m a rria ge is v a lid and
existing as o f the tim e o f the offer o f testim ony (A rroyo vs.
A zur, 76 Phil. 493), and that the other spouse is a party
to the action. O bjections to the com petency o f the spouse
presented to testify against the other m ay be w aived as in
the case o f other w itnesses generally. H ence, w here the
accused husband in his testim ony im puted the com m ission
o f the crim e to his w ife, he is deem ed to have w aived his
objection to the latter’s testim ony in rebuttal (P eople vs.
F rancisco, 78 Phil. 694).
3. In a prosecution o f the husband for the rape of
their daughter, the w ife is not disqualified to testify for
the prosecu tion since the crim e m ay be con sid ered as
having been com m itted against the w ife and the conjugal
harmony sought to be protected by this rule no longer exists
(O rdoho vs. D aquigan, etc., et al., L-39012, Jan. 31, 1975,
citing Cargill vs. State, 35 A L R 133, 220 Pac. 64, 25 Okl.
314). As amended, this rule now includes su ch a situation
by providing for crim es com m itted by one spouse against
the direct descendants or ascendants o f the other.
The exception to the m arital disqualification rule was
applied w here the w ife w as the com plainan t in a case
741
against her husband for falsification o f her signature in a

deed o f sale involving their conjugal property (People vs.
Castaneda, Jr., etc., et al., L-46306, Feb. 27, 1979).
4. W h e re th e w ife is a c o -d e fe n d a n t in a s u it
charging her and her husband w ith collusive fraud, she
ca n n ot be ca lled as an a d verse p a rty w itn e ss u n d er
Sec. 6 (now incorporated in Sec. 10), Rule 132, as this
w ill violate the m arital d isqu alification rule (Lezam a,
et al. vs. R odriguez, etc., et al., L-25648, June 27, 1968).
5. The m arital disqualification rule was am plified
in A lvarez vs. R am irez (G.R. No. 143439, Oct. 14, 2005)
w herein, w ithout the consent o f the accused husband, his
w ife was allow ed to testify against him in a prosecution
for arson com m itted by him on the p rop erty o f his sister-
in-law, the sister o f his wife. The Court noted that under
Sec. 22, Rule 130, the m arital disqualification in crim inal
cases is lim ited to crim es com m itted against the other or
the la tter’s direct descendant or ascendant.
The rationale given for this rule is the identity o f
in terests betw een the spouses, the consequen t danger
o f perjury w here one spouse testifies against the other,
the leg a l p o licy on gu a rdin g m arital con fid en ces and
p r e v e n t in g d o m e s t ic d is u n io n , a n d th e d a n g e r o f
punishing one spouse through the hostile testim ony o f
the other. H ow ever, it observed that w here the m arital
and d om estic relation s are so strain ed, th e foreg oin g
considerations no longer apply.
C iting Ordonio vs. D aquigan (L-39012, Jan. 31, 1975)
w hich relied on Cargill vs. State (35 ALR 133, 220 Pac.
64, 25 Okl. 314), the Suprem e Court declared the better
rule to be that “when an offense directly attacks, or directly
and vitally im pairs, the conjugal relation, it com es w ithin
the exception to the statute that one shall not be a w itness
against the other except in a crim inal prosecution for a
crim e com m itted (by) one against the other.”
742
It also stressed that based on the records o f the case,

tho relationship between the spouses w as already strained
and they had long been separated de facto, hence the
preservation o f the m arriage betw een the spouses w as no
longer an interest w hich the State aims to protect.
Sec. 23. D is q u a lific a tio n by rea so n o f d ea th or

insanity o f adverse party. — Parties or assign ors o f
parties to a case, or persons in w hose b e h a lf a case
is prosecuted, against an executor or ad m inistrator
or other rep resen tative o f a deceased p erso n , or
against a person o f unsound m ind, upon a claim or
dem and against the estate o f such deceased person
or again st such person o f unsound m in d , cannot
testify as to any m atter o f fact occu rring before the
death o f such deceased person or before such person
becam e o f unsound m ind. (20a)
NO TES
1 . This section enunciates the so-called Survivorship

D isqualification Rule or Dead M an Statute. It constitutes
on ly a p a rtia l d is q u a lifica tio n as th e w itn e s s is not
c o m p le te ly d is q u a lifie d b u t is o n ly p r o h ib ite d from
testifyin g on the m atters therein specified, unlike the
m a rital d isq u a lifica tion rule w hich is a com p lete and
a b s o lu t e d is q u a lific a t io n . A ls o , th e s u r v iv o r s h ip
disqu alification rule applies only to a civil case or special
proceeding over the estate o f a deceased or insane person.
T he m a rital d isq u a lifica tion ru le applies to a civ il or
crim in a l case, su bject to the tw o exception s provided
therein.
2. For the Dead M an Statute to apply, it is necessary
that: (a) The w itness offered for exam ination is a party
plaintiff, or the assignor o f said party, or a person in whose
b eh a lf a case is prosecuted; (b) The case is against the
743
executor or adm in istrator or other represen tative o f a

person deceased or o f unsound m ind; (c) The case is upon
a claim or dem and against the estate o f such person who
is deceased or o f unsound m ind; and (d) The testim ony to
be given is on a m atter o f fact occurring before the death
o f such deceased person or before such person becam e o f
unsound mind.
a. The first requisite is that the witness being offered
is either a party plaintiff, or his assignor or a person in
w hose b eh alf a case is prosecuted. Such p lain tiff m ust be
the real party in interest. Consequently, the rule has no
application to m ere w itnesses (iReyes vs. Wells, 54 Phil.
102) who are neither parties to the case, their assignors,
n or p e rso n s in w h ose b e h a lf the ca se is p ro s e c u te d
(G uerrero, et al. vs. St. C lare’s R ealty Co., Ltd., et al., G.R.
No. 58164, Sept. 2, 1983), nor to a nom inal party, nor to
o ffic e r s and s to c k h o ld e r s o f a p la in t if f c o r p o r a tio n
(Lichauco vs. A tlan tic G u lf & P acific Co. o f M anila, 84
Phil. 330). Also, this disqualification does not apply where
a counterclaim has been interposed by the defendant as
the p la in tiff would thereby be testifying in his defense.
The sam e is true w here the deceased contracted w ith the
p la in tiff through an agent and said agent is alive and
can testify, but the testim ony o f the p la in tiff should be
lim ited to acts perform ed by the agent (Gofii, et al. vs.
CA, et al., L-27434, Sept. 23, 1986).
b. The second requisite is that the action is being
prosecuted against an executor, adm inistrator or other
representative o f a deceased person or one o f unsound
mind. It is necessary that said defendant is b ein g sued
and defends in such representative capacity, and not in
his individual capacity. However, even if the property
involved has already been ju dicia lly adjudicated to the
heirs, they are still protected under this rule against such
p r o h ib ite d te s tim o n y as th e y are c o n s id e r e d as th e
744
representatives o f the deceased (Gohi, et al. us. CA, et al.,

supra).
Furtherm ore, the rule applies regardless o f w hether
the deceased died before or after the suit against him is
filed, provided he is already dead at the time the testim ony
is sought to be given (Babao us. Perez, 102 Phil. 756).
The protection o f the rule w ould, therefore, include
the heirs o f the deceased defendant who are substituted
for the latter under Sec. 16, Rule 3, and the guardians
o f p e r s o n s o f u n s o u n d m in d w h o are su ed in su ch
representative capacity under Sec. 3, Rule 96.
c. The third requisite is that the subject m atter o f
the action is a claim or dem and against the estate o f the
deceased or person o f unsound m ind, hence the rule does
not apply where it is the administrator who brings an action
to re co v e r p rop erty a lleg ed ly b e lo n g in g to th e esta te
(Tongco us. Vianzon, 50 Phil. 698), or the action is by
the heirs o f a deceased p la in tiff w ho w ere su bstitu ted
for the latter (Ardina, et al. vs. A lejandro, etc., [CA], 65
O.G. 13857).
d. T he fou rth req u isite p rov id es fo r the m a tters
p roh ibited from b ein g testified to un der this rule and
includes any m atter o f fact which bears upon a transaction
or com m unication betw een the w itness and the decedent,
even though w ithout the presence or participation o f the
latter (Stuart vs. Lord, 138 Cal. 672). Negative testim ony,
that is, testim on y that a fact did not occur during the
lifetim e o f the deceased, are not covered by the prohibition
(M endezona vs. Vda, de Goitia, 54 Phil. 557). T estim ony
on the presen t p ossession b y the w itness o f a w ritten
instrum ent signed by the deceased is also not covered by
the proh ibition (4 M artin, op. cit., p. 164), as such fact
exists even after the decedent’s dem ise.
3. In land registration cases instituted by the dece-
745
dent’s representatives, this prohibition does not apply as

th e o p p o s ito rs are co n s id e r e d d e fe n d a n ts and m ay,
th erefore, te stify against th e p etition er (N an agas vs.
Mun. o f San Narciso, et al., 53 Phil. 719). This prohibition
does not also apply in cadastral cases since there is no
p lain tiff or defendant therein (Tongco vs. Vianzon, supra).
4. Since the purpose o f this rule is to discourage
perjury and protect the estate from fictitious claim s, the
prohibition does not apply, even if all the four requisites
above are present, where the testim ony is offered to prove
a claim less than w hat is established under a w ritten
docum ent (Icard vs. M asigan, etc., et al., 71 Phil. 419), or
is in ten d ed to p rove a fra u d u le n t tra n s a ctio n o f the
deceased (O ng Chua vs. Carr, 53 Phil. 975), provided
su ch fra u d is fir s t e s ta b lis h e d b y e v id e n ce a liu n d e
(Babao vs. Perez, supra).
5. The disqualification under this rule is w aived if
the defendant does not tim ely object to the adm ission of
su ch ev id en ce or te s tifie s on th e p ro h ib ite d m a tters
(Asturias vs. CA, et al., L-17895, Sept. 30, 1963) or cross-
exam ines thereon (Tongco vs. Vianzon, supra).
Sec. 24. D isq u a lifica tio n by reason o f p riv ileg e d

co m m u n ica tion . — The fo llo w in g p erso n s can n o t
testify as to m atters learned in confidence in the
follow in g cases:
(a) The husband or the w ife, d u rin g or after
th e m a r ria g e , ca n n o t be ex a m in ed w ith o u t the
c o n s e n t o f the o th er as to an y c o m m u n ic a tio n
r e c e iv e d in c o n fid e n c e b y one fr o m th e o th e r
d u rin g the m arriage except in a civil case by one
against the other, or in a crim inal case for a crime
com m itted by one against the other or the latter’s
direct descendants or ascendants;
746
(b) An attorn ey can n ot, w ith ou t the co n sen t

o f his c lie n t, be ex a m in e d as to an y c o m m u n i-
ca tio n m ade by the clien t to h im , or his ad vice
given thereon in the course of, or with a view to,
p ro fe ssio n a l em p lo ym en t, nor can an a tto r n e y ’ s
se c r e ta r y , ste n o g r a p h e r , or clerk be e x a m in e d ,
w ithou t the consent o f the client and his em ployer,
con cern in g any fact the know ledge o f w hich has
been acquired in such capacity;
(c) A person authorized to practice m ed icine,
surgery, or obstetrics cannot in a civil case, w ith-
out the consent o f the patient, be exam ined as to
any advice or treatm ent given by him or any infor-
m ation w hich he m ay have acquired in atten d in g
su ch p a tie n t in a p r o fe s s io n a l c a p a c ity , w h ich
in fo rm a tio n was n ecessa ry to enable him to act
in th a t c a p a c ity , and w h ich w ould b la c k e n the
repu tation o f the patient;
(d) A m in ister or p riest can n ot, w ith ou t the
con sen t o f the person m ak in g the con fessio n , be
exam ined as to any confession made to or any advice
given by him in his p rofessional character in the
course o f discipline enjoined by the church to which
the m inister or priest belongs;
(e) A p u b lic o f f ic e r c a n n o t be e x a m in e d
during his term o f office or afterw ards, as to co m -
m u n ica tio n s m ade to him in o fficia l c o n fid en ce,
when the court finds that the public interest w ould
suffer by the disclosure. (21a)
N O TES
1. O bjections under the disqu alification rules can

be invoked only by the persons protected th ereu nder and
may be w aived by said persons in the same m anner, either
747
expressly or im pliedly.
2. For the disqualification by reason o f the m arital
privilege to apply, it is necessary that: (a) There w as a
valid m arital relation; (b) The privilege is invoked with
resp ect to a con fid en tia l com m u n ica tion b etw een the
spouses during said m arriage; and (c) The spouse against
whom such evidence is being offered has not given his or
her consent to such testim ony.
a. A ccordingly, the privilege cannot be claim ed with

respect to com m unications made prior to the m arriage of
the spouses.
b. Since the confidential nature o f the com m unication
is the basis o f the privilege, the same cannot be invoked
w here it w as not intended to be kept in con fidence by
the spouse w ho received the sam e, as in the case o f a
dying declaration o f the husband to his w ife as to who
w as his assailant (U.S. vs. A ntipolo, 37 Phil. 726), w hich
com m unication was obviously intended to be reported to
the authorities. The privilege is lost if the com m unication
is overheard or com es into the hands o f a th ird party,
w hether legally or not (People vs. Carlos, 47 Phil. 626),
by reason o f the fact that w hile the spouse is covered by
the prohibition, such third party is not and, consequently,
can testify thereon. It is necessary, how ever, that there
w as no collusion w ith or voluntary disclosure by either
spouse to the third person, otherw ise the latter becom es
an agent o f the spouse and w ould thereby be covered by
the prohibition.
c. The rules on disqualification by reason o f marriage

and the disqualification by reason o f the m arital privilege
m ay be distinguished as follow s: (a) The form er can be
invoked only if one o f the spouses is a party to the action,
w hile the latter can be claim ed w hether or not the spouse
is a party to the action; (b) The form er applies only if the
748
m arriage is existin g at the tim e the testim ony is offered,

whereas the latter can be claim ed even after the m arriage
has been dissolved; and (c) The first constitutes a total
prohibition against any testim ony for or against the spouse
o f the witness, while the second applies only to confidential
com m unications betw een the spouses.
d. Consequently, even if the com m unication betw een

the spouses is not confidential, hence not privileged, the
spouse w ho is a party to the action can s till preven t
the other spouse from testifying against him under the
m arital disqualification rule; and, conversely, even if the
spouse w ho is a party to the action does not object to the
other testifyin g therein, thus w aiving the m arital d is-
qualification, he can still prevent the disclosure by said
spou se-w itn ess o f con fiden tial com m u n ication s covered
by the privilege.
3. For the d isqu alification based on the attorney-
client privilege to apply, it is required that: (a) T here is
an a tto rn e y and clie n t re la tio n ; (b) T he p riv ile g e is
in vok ed w ith respect to a con fid en tia l com m u n ication
betw een them in the course o f profession al em ploym ent;
and (c) T h e clie n t has not g iv en his c o n s e n t to the
attorney’s testim ony thereon; or if the attorney’s secretary,
s ten og ra p h er or clerk is sou gh t to be exam in ed, that
both the clien t and the attorn ey have not given their
con sent thereto.
a. For the privilege to apply, the attorney m ust have
been con su lted in his p rofession al capacity, even if no
fee has been paid therefor. P relim inary com m unications
m ade fo r th e p u rp ose o f cre a tin g the a tto rn e y -c lie n t
relationship are w ithin the privilege (8 W igm ore 587) and
are now included in the am endm ent to this rule. However,
if the com m unications were not m ade for the purpose of
creatin g that relationship, they w ill not be covered by
the privilege even if thereafter the law yer becom es the
749
counsel o f the party in a case involving said statem ents

(People us. Enriquez, 256 III. 221).
b. T he com m u n ica tion s covered by th e p riv ileg e
in clu d e v e rb a l s ta te m e n ts and d ocu m en ts or p a p ers
entrusted to the attorney, and o f facts learned b y the
attorney through the act or agency o f his client.
c. The privilege does not apply to com m unications
w hich are ( 1) intended to be made public; ( 2 ) intended to
be com m unicated to others; (3) intended for an unlawful
pu rpose; (4) received from third persons not acting in
b e h a lf or as agen ts o f th e clien t; or (5) m ade in the
presence o f third parties who are strangers to the attorney-
client relationship.
d. For the application o f the attorney-client privilege,
the period to be considered is that date when the privileged
com m unication w as made by the client to the attorney in
relation to either a crim e com m itted in the past or w ith
respect to a crim e intended to be com m itted in the future.
C om m unications regarding a crim e already com m itted,
made by the offender to an attorney, consulted as such
are privileged com m unication. Contrarily, com m un ica-
tions betw een attorney and client having to do w ith the
client’s contem plated crim inal act, or in aid or furtherance
thereof, are not covered by the privilege.
F u rth erm ore, w here th a t attorn ey w as h im s e lf a
con spirator in the com m ission o f the crim e, the privilege
does not attach. It is w ell settled that in order that a
com m unication betw een a law yer and his client m ay be
p r iv ile g e d , it m u st be fo r a la w fu l p u rp o se . E very
com m unication betw een an attorney and a client for a
crim in a l p u rp ose is a con sp ira cy or an a ttem p t at a
c o n s p ir a c y w h ich is n o t o n ly la w fu l to d iv u lg e b u t
m ust prom ptly be disclosed (People us. Sandiganbayan,
et al., G.R. Nos. 115439-41, July 16, 1997).
750
4. For the disqualification arising from the physician-

patient privilege to apply, it is n ecessary th at (a) The
physician is authorized to practice m edicine, surgery or
obstetrics; (b) The inform ation was acquired or the advice
or treatm ent was given by him in his professional capacity
for the purpose o f treating and curing the patient; (c) The
in fo rm a tio n , a d vice or trea tm en t, i f re v e a le d , w ou ld
blacken the reputation o f the patient; and (d) The privilege
is invoked in a civil case, w hether the patient is a party
thereto or not.
a. It is not n ecessa ry th a t th e p h y sicia n -p a tie n t
relationship was created through the volu ntary act o f the
patient. Thus, the treatm ent may have been given at the
beh est o f another, the patient being in extrem is.
b . The privilege extends to all forms o f communication,
advice or treatm ent and includes inform ation acquired by
the p h y sicia n from his p ro fe ssio n a l o b serv a tion s and
exam in ation o f the patient.
c. The privilege does not apply w here (1) the com -
m unication w as not given in confidence; ( 2 ) the com m u -
n ica tion is irrelevant to the p rofession al em ploym ent;
(3) the com m unication was made for an unlaw ful purpose,
as When it is intended for the com m ission or concealm ent
o f a crim e; (4) the inform ation was intended to be made
public; or (5) there was a w aiver o f the privilege either by
provisions o f contract or law.
d. U nder Rule 28 o f the Rules o f Court, the results of
the physical and m ental exam ination o f a person, w hen
ordered by the court, are intended to be made public, hence
they can be divulged in that proceeding and cannot be
objected to on the ground o f privilege. Also, results of
a u to p sie s or p o stm o rtem e x a m in a tion s are g en era lly
intended to be divulged in court, aside from the fact that
the d octor’s services w ere not for pu rposes o f m edical
treatm ent.
751
e. An exam ple o f a w aiver o f the privilege by pro-

vision o f law is found in Sec. 4 o f said Rule 28 under which
if the party exam ined obtains a report on said exam ination
or takes the deposition o f the exam iner, he thereby waives
any p rivilege regarding any oth er exam in ation o f said
physical or m ental condition conducted or to be conducted
on him by any other physician. W aiver o f the privilege
by contract m ay be found in stipulations in life insurance
policies.
5. The disqualification due to privileged com m unica-

tions betw een m inisters or priests and penitents require
that the sam e were made pursuant to a religious duty
enjoined in the course o f discipline o f the sect or den o-
m ination to w hich they belong and m ust be confidential
and penitential in character, e.g., under the seal o f the
confessional.
6 . The disqu alification because o f p rivileged com -

munications to public officers requires (a) that it was made
to the public officer in official confidence; and (b) that
pu blic in terest w ou ld su ffer by the disclosu re o f such
com m unication, as in the case o f State secrets. W here
no public interest would be prejudiced, this rule does not
apply (Banco Filipino vs. M onetary Board, G.R. No. 70054,
J uly 8, 1986).
7. U n der R.A. 53, as am en ded by R.A. 1477, the

p u b lish e r, e d ito r or du ly a ccre d ite d r e p o r te r o f any
new spaper, m agazine or periodical o f general circulation
cannot be com pelled to reveal the source o f any news report
or inform ation appearing in said publication w hich was
related in confidence to him, unless the cou rt or a House
or com m ittee o f Congress finds that such revelation is
dem anded by the security o f the State.
8 . Art. 233 o f the Labor Code (P.D. 442), as amended,

p rovides that all in form ation and statem ents m ade at
752
con cilia tion proceedings shall be treated as p rivileged

com m unications and shall not be used as evidence in the
National Labor Relations Commission, and conciliators and
sim ilar officials shall not testify in any cou rt or body
re g a r d in g a n y m a tte r ta k e n up at th e c o n c ilia t io n
proceedings conducted by them.
2. T estim onial Privilege
Sec. 25. Paren tal and filial privilege. — No person

m ay be com p elled to te stify a gain st h is p aren ts,
other d irect ascend ants, children or oth er d irect
d escendants. (20a)
NO TES
1. T his section is an expanded am endm ent o f the

form er provision found in Sec. 20(e), a disqu alification by
reason o f relationship which, in turn, was reproduced from
A rt. 315 o f the Civil Code. It was not correctly a rule o f
disqualification, as the descendant was not incom petent
or disqualified to testify against his ascendants, but was
actually a privilege not to testify, hence, it was referred to
as a “filial privilege” (see People vs. Cortez, et al., [CA],
59 O.G. 5548). H ow ever, under the F am ily Code, the
descendant may be com pelled to testify against his parents
and grandparents, if such testim ony is indispen sable in
p rosecu tin g a crim e against the descen dan t or b y one
parent against the other (Art. 215).
2. U nder the present form ulation, both parental and
filial privileges are granted to any person, w hich privileges
against com pulsory testim ony he can invoke in any case
against any o f his parents, direct ascendants, ch ildren or
direct descendants.
753
3. A dm issions and Confessions
S e c . 26. A dm issions o f a party. — T h e a c t , d e c -

l a r a t i o n o r o m i s s i o n o f a p a r t y as t o a r e l e v a n t
fa c t m a y b e g iv e n in e v id e n c e a g a in s t h im . ( 2 2 )
NOTES
1 . A n adm ission is any statem ent of fact made by a

party against his interest or unfavorable to the conclusion
for w hich he contends or is inconsistent w ith the facts
alleged by him (31 C.J.S. 1022).
2. A n adm ission is to be distinguished from a con -
fession in that (a) an adm ission is a statem ent o f fact
w hich does not involve an acknow ledgm ent o f guilt or
liability as is the case o f a confession; (b) an adm ission
may be express or tacit while a confession must be express;
and (c) adm ission may be made by third persons and, in
ce rta in ca ses, are a d m issib le a ga in st a p a rty , w h ile
confessions can be made only by the party h im self and, in
som e instances, are adm issible against his co-accused.
3. To be adm issible, an adm ission m ust (a) involve
m atters o f fact, and not o f law; (b) be ca tegorica l and
d efin ite; (c) be k n ow in gly and volu n ta rily m ade; and
(d) be adverse to the admitter’s interests, otherwise it would
be self-serving and inadm issible.
4. A dm issions may be verbal or w ritten, express or
tacit, or ju d icial or extrajudicial. A ju dicial adm ission is
one made in connection w ith a judicial proceeding in which
it is offered (see Sec. 4, R ule 129), w hile an extrajudicial
adm ission is any other adm ission. Secs. 26 and 32 o f
this Rule refer to extrajudicial adm issions.
5. The testim ony o f the accused in a parricide case to
the effect that he was m arried to the victim is an admission
754
against his penal interest and can sustain his conviction

even in the absence o f independent evidence to prove such
m arriage (People vs. A ling, L-38833, Mar. 12, 1980).
6 . A dm issions are distinguished from declarations
against interest as follow s:
a. The declaration against interest m ust have been
made against the proprietary or pecuniary interest o f the
party while an adm ission need not be, although, o f course,
it w ill greatly enhance its probative w eight if it be so made
(4 M artin, op. cit., p. 20).
b. A decla ra tion against in terest m ust have been
m ade by a person who is either deceased or u nable to
testify. An adm ission is made by the party him self, and,
is a prim ary evidence and com petent though he be present
in court and ready to testify.
c. The declaration against interest m ust have been
m ade ante litem motam ; an adm ission can be m ade any
time.
7. A self-serving declaration is one w hich has been
m ade extrajudicially by the party to favor his interests.
It is not adm issible in evidence (Lichauco vs. A tlantic G u lf
and P acific Co. o f M anila, 84 Phil. 330; P eople vs. Demiar,
108 Phil. 651).
8 . S elf-serving testim ony refers to the extrajudicial
statem ent o f a party w hich is being urged for adm ission
in court. It does not include his testim ony as a w itness in
court (N ational D evelopm ent Co. vs. WCC, et al., L -2 1 724,
A pril 27, 1967; Co vs. CA, et al., G.R. No. 52200, Aug. 21,
1980). It has no application to a court declaration (Sonaco
vs. A ngelo, [CA], 64 O.G. 13149). W here the statem ent
was not made in anticipation o f a future litigation, the
sam e cannot be considered self-serving (Korisu vs. Rizal
Cem ent Co., Inc., et al., 36 O.G. 1472; O.O. Lagm an &
Co. vs. M ercado, et al., fCA], 61 O.G. 2362).
755
9. Flight from justice is an adm ission by conduct and

circum stantial evidence o f consciousness o f guilt (U.S. vs.
Sarikala, 37 Phil. 486; P eople vs. Sam onte, Jr., L-31225,
J u n e 11, 1 9 7 5 ; P e o p le vs. R e a lo n , et a l., L -3 0 8 3 2 ,
Aug. 29, 1980; People vs. Berm oy, L-48502-03, June 17,
1981; People vs. Jabeguero, G.R. No. 61978, Oct. 24, 1983;
P eople vs. Bocasas, G.R. No. 61134, July 15, 1985). Also,
eviden ce o f attem pts to suppress evidence, as b y d es-
tr u c tio n o f d o cu m e n ta ry e v id e n c e or e lo ig n m e n t o f
w itnesses, are adm issible under the same rationale.
10. The act o f repairing a m achine, bridge or other
fa cility a fter an in ju ry has been su sta in ed th erein is
not an im plied adm ission o f negligence by conduct. It
is m erely a m easu re o f extrem e ca u tion by a d op tin g
a d d it io n a l s a fe g u a r d s s in c e , d e s p ite d u e ca re an d
diligence, an unexpected accident can still occu r (see 5
M oran, loc. cit., p. 223).
Sec. 27. Offer o f com prom ise not adm issible. — In

c iv il c a s e s , an o ffe r o f c o m p r o m is e is n o t an
ad m ission o f any liability, and is not adm issible in
evidence against the offeror.
In crim inal cases, except those in volv in g qu asi-
offenses (crim inal negligence) or those allow ed by
law to be com prom ised, an offer o f com prom ise by
th e accu sed m ay be receiv ed in e v id en c e as an
im plied adm ission o f guilt.
A p lea o f g u ilty la te r w ith d ra w n , or an u n -
accepted offer o f a plea o f guilty to a lesser offense,
is not adm issible in evidence against the accused
who m ade the plea or offer.
A n o ffe r to pay or th e p a y m en t o f m e d ic a l,
hospital or other expenses occasioned by an injury
is not ad m issible in evidence as p ro o f o f civil or
crim inal liability for the injury. (24a)
756
N O TES
1. As a rule, an offer o f com prom ise in a civil case is

not a tacit adm ission o f liability and cannot be proved over
the objection o f the offeror, unless such offer is clearly not
on ly to “b u y p e a ce ” b u t am ou n ts to an a d m ission of
liability, the offered com prom ise being directed only to the
am ount to be paid (see El Varadero de M anila vs. Insular
Lum ber Co., 46 Phil. 176).
2. In crim inal cases, an offer o f com prom ise is an
im plied adm ission o f guilt (People vs. Sope, et al., 75 Phil.
810), although the accused may be perm itted to prove that
such offer w as not made under consciousness o f guilt but
m erely to avoid the risks o f crim inal action against him
(U.S. vs. M aqui, 2 7 Phil. 97).
3. In p r o s e c u tio n s fo r v io la t io n o f th e in te r n a l
revenue laws, such offers o f com prom ise are not admissible
in evidence as the law provides that the paym ent o f any
internal revenue tax may be com prom ised, and all crim inal
v iola tion s m ay likew ise be com prom ised, except those
already filed in court and those involving fraud (Sec. 204,
R.A. 8424 [T a x Reform A ct o f 1997]).
4. W hile rape cases can in effect be com prom ised by
actual m arriage o f the parties since crim inal liab ility is
th ereby extinguished (Art. 344, last par., R evised P enal
Code), an offer to compromise for a monetary consideration,
and not to m arry the victim , is an im plied adm ission of
guilt (People vs. Am iscua, L-31238, Feb. 27, 1971). In
P eople vs. M anzano (L-38449, Nov. 25, 1982), th e attem pt
o f the parents o f the accused to settle the case w ith the
com plainant w as considered an im plied adm ission o f guilt.
A t any rate, the Suprem e Court has held that an offer of
m arriage by the accused, during the in vestigation o f the
rape case, is also an adm ission o f guilt (People vs. Valdez,
G.R. No. 51034, M ay 29, 1987).
757
5. The am endm ent regarding the inadm issibility o f

a plea o f guilty later w ithdraw n or an unaccepted offer to
plead guilty to a lesser offense is a consequence o f the
present provisions in criminal procedure on plea bargaining
(Sec. l[f], R ule 116; Secs. 1 and 2, Rule 118).
6 . Crim inal cases involving crim inal negligence, or
the quasi-offenses contem plated in Art. 365 o f the Revised
Penal Code, are allow ed to be com prom ised under the
am endm ent to this section, hence an offer o f settlem ent is
not an im plied adm ission o f guilt.
L ikew ise, an offer to pay or the actual paym ent of
the m edical, hospital or other expenses by reason o f the
victim ’s injuries is not adm issible to prove civil or crim inal
liability therefor. Such hum anitarian acts or charitable
responses should be encouraged and rew arded, instead of
bein g discouraged or penalized by bein g considered as
adm issions o f liability.
Sec. 28. A dm ission by third party. — The rights

o f a p a r t y c a n n o t be p r e ju d i c e d b y an a c t,
d e c la r a tio n , or o m issio n o f a n o th e r , e x c e p t as
hereinafter provided. (25a)
NOTES
1. This section refers to the first branch o f the rule

o f ‘‘res in ter a lios a cta a lteri n o cere non d e b e t.” Its
corolla ry , k n ow n as the secon d b ra n ch o f the ru le, is
found in Sec. 34 o f Rule 130.
2. The exceptions to the rule are in those instances
w here the third person is a partner, agent, join t owner,
jo in t d e b to r or h as a jo in t in te r e s t w ith th e p a rty
(Sec. 29), or is a co-conspirator (Sec. 30), or a privy o f
the party (Sec. 31).
758
Sec. 29. A dm ission by co-partner or agent. The

act or d eclaration o f a partner or agent o f the party
w ithin the scope o f his authority and du rin g the
ex isten ce o f the p a rtn e rsh ip or a g e n c y , m ay be
g iv e n in e v id en c e a g a in st su ch p a rty a fte r the
partnership or agency is show n by evidence other
than such act or declaration. The same rule applies
to the act or d ecla ra tio n o f a jo in t o w n er, jo in t
debtor or other person jo in tly interested w ith the
party. (26a)
NOTES
1. The requisites for the application o f this exception

are:
(a) T hat the partnership, agency or join t interest is
established by evidence other than the act or declaration;
(b) T hat the act or declaration is w ithin the scope o f
the partnership, agency or join t interest; and
(c) Such act or declaration m ust have been made
during the existence o f the partnership, agency or join t
interest.
2. W ith respect to the relevant substantive p rovi-
sions on these m atters, refer to the Civil Code provisions
on partners (Art. 1803), agents (Art. 1910), co-ow n ers
(Art. 487) and solidary debtors (Art. 1222).
3. As a rule, statem ents made after a partnership
has been dissolved do not fall w ithin this exception, but
w here the adm issions are made in connection w ith the
w inding up o f the partnership affairs, said adm issions are
still adm issible as the partner is acting as an agent o f his
co-partners in said w inding up.
4. A dm ission s b y cou n sel are a d m issible a gain st
the client as the form er acts in represen tation and as an
759
agent o f the client, subject to the lim itation that the same
should not am ount to a com prom ise [Sec. 23, R ule 138]
or confession o f judgm ent (Acenas, et al. vs. Sison, et al.,
L -17011, Aug. 30, 1963).
5. The phrase “join t debtor” does not refer to mere
com m unity o f interest but should be understood according
to its m eaning in the com m on law system from w hich the
p r o v is io n w a s ta k e n , th a t is, in so lid u m , a n d n ot
m ancom unada (Jaucian vs. Querol, etc., 88 Phil. 707; cf.
A goncillo, et al. vs. Javier, etc., 38 Phil. 424).
Sec. 30. A d m issio n by co n s p ira to r . — T he act

or d e c la r a tio n o f a c o n s p ir a to r r e la tin g to the
conspiracy and during its existence, m ay be given
in evid en ce again st the c o -c o n sp ira to r after the
conspiracy is show n by evidence other than such
act or d eclaration. (27)
N O TES
1. T his ru le applies on ly to extra ju d icia l acts or

statements and not to testim ony given on the witness stand
at the trial w here the party adversely affected thereby
has the opportunity to cross-exam ine the declarant (People
vs. Serrano, et al., 1 0 5 Phil. 531). Hence, the requirem ent
that the co n sp ira cy m ust p relim in a rily be p rov ed by
evidence other than the conspirator’s adm ission applies
on ly to ex tra ju d icia l, b u t not to ju d ic ia l, a d m ission s
(People vs. N ierra, et al., L-32624, Feb. 12, 1980).
2. A n a d m iss io n by a co n s p ir a to r is a d m iss ib le
against his co-conspirator if (a) such conspiracy is show n
by evidence aliunde, (b) the adm ission was made during
the existence o f the conspiracy, and (c) the adm ission
relates to the conspiracy itself. These are not required
in a d m ission s du rin g the tria l as the co -a ccu sed can
760
croHH exam ine the declarant (People vs. Serrano, et al.,

105 Phil. 531) and, besides, these are adm issions after
the conspiracy has ended (see People vs. Vizcarra, et al.,
L-38859, July 30, 1982).
3. The existence o f the conspiracy m ay he inferred
from the acts o f th e accused (P eople vs. B elen, et al.,
L -13895, Sept. 30, 1963), or from the con fessions o f the
accused (People vs. Castelo, et al., L-10774, M ay 30, 1964),
or by prim a fa cie p roof th ereof (People vs. G utierrez, [CA],
47 O.G. 4274). W here there is no independent evidence
o f the alleged conspiracy, the extraju dicial con fession o f
an accused cannot be used against his co-accused as the
res inter alios rule applies to both extrajudicial confessions
and adm issions (People vs. A legre, et al., L -30423, Nov. 7,
1976; P eople vs. Valerio, Jr., L-4116, Feb. 25, 1982).
4. E xtrajudicial adm issions made by a con spirator
after the conspiracy had term inated and even before trial
are also not adm issible against the co-conspirator (People
vs. Badilla, et al., 48 Phil. 718; P eople vs. Yatco, etc., et
al., 97 Phil. 940), except (a) i f m ade in the presence o f the
latter w ho expressly or im pliedly agreed therein as, in the
latter case, it w ould be a tacit adm ission under Sec. 32;
(b) w here the facts in said adm ission are con firm ed in
the individual extrajudicial confessions m ade by the co-
conspirators after their apprehension (People vs. Badilla,
et al., su p ra ); (c) as a circu m stan ce to d eterm in e the
cre d ib ility o f a w itn ess (P eop le vs. N a rciso, L -24484,
M ay 28, 1968); or (d) as circum stantial evidence to show
the probability o f the latter’s participation in the offense
(P eople vs. Carpio, et al., [CA], 66 O.G. 8837; P eople vs.
M cKinney, [CA], 66 O.G. 9425).
5. In order that the extrajudicial statem ents o f a co-
accused m ay be taken into con sideration in ju d gin g the
testim ony o f a w itness, it is necessary that the statem ents
are made by several accused, the same are in all m aterial
761
respects identical, and there could have been no collusion

am ong said co-accused in m aking such statem ents (People
vs. Badilla, et al., supra; People vs. Ola, L-47147, July 3,
1987).
Sec. 31. A d m is s io n by p r i v i e s . — W h e r e one

d eriv e s title to p ro p erty from a n o th e r, the act,
declaration , or om ission o f the latter, w hile holding
the title, in relation to the p rop erty, is evidence
against the form er. (28)
NO TES
1. To be adm issible, the follow ing requisites m ust

concur: (a) There m ust be a relation o f privity betw een
the party and the declarant; (b) The adm ission was made
by the declarant, as predecessor-in-interest, w hile holding
the title to the property; and (c) The admission is in relation
to said property (see People vs. Du, [CA], 68 O.G. 2229).
2. The privity in estate may have arisen by succession,
by acts m ortis causa or by acts inter vivos (A lpuerto vs.
P erez P astor, et al., 38 Phil. 785).
Sec. 32. A d m is s io n by s i le n c e . — A n a c t or
declaration m ade in the presence and w ithin the
h earing or observation o f a party who does or says
n o th in g w hen the act or d e c la r a tio n is su ch as
naturally to call for action or com m ent if not true,
and when proper or possible for him to do so, m ay
be given in evidence against him . (23a)
N OTES
1 . To be adm issible against a party as an adm ission

by silence, the follow ing requisites m ust concur:
762
(a) lie m ust have h ea rd or o b s e rv e d th e a ct or

declaration o f the other person;
(b) He m ust have had the opportu n ity to deny it
(People vs. R anario, et al., 49 Phil. 220);
(c) He m ust have understood the statem ent;
(d) He m ust have an interest to object, such that he
w ould naturally have done so if the statem ent w as not
true;
(e) The facts were w ithin his know ledge; and
(f) The fact adm itted or the inference to be drawn
from his silence is material to the issue (People vs. Paragsa,
L -44060, July 20, 1978).
2. The rule on adm ission by silence applies w here a
person w as surprised in the act (U.S. vs. Bay, 27 Phil.
495) or even if he is already in the custody o f the police
(People vs. Ancheta, et al., 106 Phil. 99). Hence, voluntary
participation in a reenactm ent o f the crim e conducted by
the police is considered a tacit adm ission o f com plicity
(P eo p le vs. Tia F on g, 98 P h il. 609). H ow ev er, fo r a
ree n a ctm en t to be given any ev id en tia ry w eigh t, the
validity and efficacy of the confession m ust first be show n
(P eople vs. N avoa, et al., G.R. No. 59551, Aug. 19, 1986).
3. The rule does not apply if the statem ents adverse
to th e p a rty w ere m ade in the cou rse o f an o ffic ia l
in v e s tig a tio n (U .S . vs. D e la C ruz, 12 P h il. 87), as
w here he w as pointed out in the course o f a cu stodial
investigation and was neither asked to reply nor com m ent
on such im putations (People vs. Alegre, et al., L-30423,
Nov. 7, 1979), or w here the party had a ju stifiable reason
to rem ain silent, as w here he w as acting on advice o f
counsel, otherw ise his right to silence w ould be illusory.
It should fu rther be kept in m ind that a person under
investigation for the com m ission o f an offense has the right
763
to rem ain silent and to be inform ed o f that right (Sec. 12,

Art. I ll, 1987 Constitution).
4. The rule applies to adverse statem ents in w riting
if the party was carrying on a m utual correspondence w ith
the declarant. H ow ever, if there w as no such m utual
correspondence, the rule is relaxed on the th eory that
w hile th e party w ould have im m ediately reacted by a
denial if the statem ents w ere orally made in his presence,
such prom pt response can generally not be expected if
the party still has to resort to a w ritten reply (20 Am.
Jur. 481-488).
Sec. 33. C on fession . — The d e c la r a tio n o f an

a ccu sed a c k n o w le d g in g h is g u ilt o f the o ffe n se
ch a rg e d , or o f an y o ffen se n e c e ssa rily in clu d ed
therein, m ay be given in evidence against him . (29a)
NO TES
1. A confession is a categorical acknow ledgm ent of

guilt m ade by an accused in a crim inal case, w ithout any
excu lpatory statem ent or explan ation. I f th e accu sed
adm its having com m itted the act in question but alleges
a ju stifica tion therefor, the sam e is m erely an adm ission
(U .S . vs. T olosa, 5 P h il. 616). T h ere ca n a lso be a
con fession o f judgm ent in a civil case w here the party
expressly adm its his liability.
2. Such confession may either be oral or in w riting
(People vs. M acaso, 86 Phil. 272), and if in w riting, it need
not be under oath (People vs. Canoy, et al., 90 Phil. 633;
People vs. F eliciano, et al., L-30307, Aug. 15, 1974). The
fact that the extrajudicial confession was m ade w hile the
accused was under arrest does not render it inadm issible
(People vs. Uti M arim poong, 62 Phil. 70) w here the sam e
was made and adm itted prior to the 1973 Constitution
(People vs. F eliciano, et al., supra).
764
3. A confession may either be judicial or extrajudicial.

A ju d icia l confession is one m ade before a court in w hich
the case is pending and in the course o f legal proceedings
therein and, by itself, can sustain a conviction even in
capital offenses. A n extrajudicial confession is one made
in any oth e r pla ce or occa sion an d ca n n ot su sta in a
con viction unless corroborated by evidence o f the corpus
d elicti (Sec. 3, R ule 133). T his section refers to extra -
ju d icia l confessions.
4. To be adm issible, it is necessary that:
a. T h e co n fe s s io n m u st in v olv e an e x p re s s and
categorical acknow ledgm ent o f guilt (U.S. us. Corrales, 28
Phil. 362)-,
b. T he fa cts a d m itted m ust be co n s titu tiv e o f a
crim inal offense (U.S. vs. Flores, 26 Phil. 262)]
c. The confession m ust have been given volun tarily
(P eople vs. N ishishim a, 57 Phil. 26);
d. The confession must have been intelligently made
(B ilaan us. Cusi, L-18179, June 29, 1962), the accused
realizin g the im portance or legal significance o f his act
(U.S. vs. A gatea, 40 Phil. 596)] and
e. T h ere m ust have been no v iola tion o f Sec. 1 2 ,
Art. I l l o f the 1987 Constitution.
5. Confessions are presum ed to be voluntary and the
onus is on the defense to prove that it w as involuntary for
having been obtained by violence, intim idation, threat or
prom ise o f rew ard or leniency (People us. Garcia, 101 Phil.
615).
6 . The follow ing circum stances have been held to be
indicia o f the voluntariness o f a confession:
a. The confession contains details w hich the police
cou ld not have supplied or invented (P eople vs. Bersam in,
765
88 P h il. 2 92 ; P eop le vs. B alu a rte, et al., L -3 1 180-81,

Oct. 30, 1974).
b. The confession contains details w hich could have

been known only to the accused (People vs. Sy Pio, 94 Phil.
885; People vs. Pingol, et al., L-26931, May 28, 1970; People
vs. Tintero, L-30435, Feb. 15, 1982).
c. T he con fession con tain s sta tem en ts w h ich are
exculpatory in nature (People vs. Nate, et al., 88 Phil. 663;
P eople vs. Baluarte, et al., supra).
d. The confession contains corrections made by the
accused in his handw riting or with his initials (P eople vs.
A ndallo, 101 Phil. 1228) and which corrected facts are
best known to the accused (People vs. Caramonte, L -31866,
N ov. 7, 1979).
e. The accused is sufficiently educated and aware o f
the consequences o f his act (People vs. M erenio, 90 Phil.
735; People vs. Caramonte, supra).
f. It was made in the presence o f im partial w itnesses
w ith the accused acting norm ally on that occasion (People
vs. Buluran, 52 O.G. 2010).
g. T h e r e is la c k o f m o tiv e on th e p a r t o f th e
investigators to extract a confession, with im probabilities
a n d in co n sisten cies in the attem p t o f the a ccu sed to
repudiate his confession (People vs. Gomez, et al., L-25815,
M ay 31, 1969).
h. The accused questioned the voluntariness o f the
con fession only for the first tim e at the trial o f the case
(People vs. F rancisco, et al., 93 Phil. 28).
i. T h e con ten ts o f the co n fession w ere a ffirm ed
by the accused in his voluntary participation in the re-
enactm ent o f the crime, as shown by his silent acquiescence
thereto (People vs. Tia Fong, 98 Phil. 609).
766
j. The facts contained in the confession were co n -

firmed by other subsequent facts (People vs. P ingol, et al.,
supra).
k. A fter his confession, the accused w as su bjected to
p h y s ic a l e x a m in a t io n a n d th e r e w e re n o s ig n s o f
m altreatm ent (People vs. Dizon, et al., 101 Phil. 1256), or
th e a c c u s e d n e v e r c o m p la in e d t h e r e o f (P e o p le vs.
C asunura, 99 P hil. 1057), bu t not w h ere he fa iled to
com plain to the ju dge on a reasonable apprehension of
further m altreatm ent as he w as still in the custody o f his
torturers (People vs. Gande, et al., L-28163, Jan. 30, 1970).
7. The inadm issibility o f involuntary confessions has
been ju stified on the ground that they are unreliable, or
on grounds o f hum anitarian considerations (U.S. vs. De
los Santos, 24 Phil. 329), or on legal considerations o f their
b ein g violative o f the con stitu tion al right against self-
incrim ination (People vs. Castro, L -l 7465, Aug. 31, 1964).
But see the contrary rule in P eople vs. Carillo (77 Phil.
572).
8 . In People vs. Villanueva (52 O.G. 3338), P eople
vs. D e los Santos, et al. (93 Phil. 83), P eople vs. G arcia
(99 Phil. 381), and People vs. Frias (L -13767, July 30, 1960),
th ere w ere h oldin gs to the effect that an in volu n tary
con fession is nevertheless adm issible if it contains the
tru th . In the D e los S antos case, the Suprem e Court
p re m ise d such d octrin e u pon “ the p rin cip le th a t the
a dm issibility o f evidence is not affected by the illegality
o f the m eans with which it w as secured,” obviously as a
con sequ en ce o f the rule in M oncado vs. P eo p le’s Court
(80 Phil. 1). In view o f the ruling in S tonehill, et al. vs.
D io k n o , et al. (L -1 9 5 5 0 , J u n e 19, 1 9 6 7 ), e x p r e s s ly
aba n don in g the M oncado d octrin e, the ru lin gs in the
above cases should no longer apply.
767
H o w e v e r, in P eo p le vs. C haw Yaw S h u n , el al.

(L-19590, A pril 25, 1968), the Suprem e Court reiterated
said doctrines, citing People vs. Tipay (70 Phil. 615), stating
th a t “ an in v o lu n ta ry co n fe s s io n is not a d m iss ib le in
evidence unless found to be true.” T hereafter, in People
vs. A lto, et al. (L-18660-61, Nov. 29, 1968), it w as again
held that a confession made under the in fluence o f threat
or promise o f reward is inadmissible; and in People vs. Urro,
et al. (L-28405, A pril 27, 1972), it w as reiterated that
involuntary or coerced confessions obtained by force or
intim idation are null and void.
9. Thereafter, the 1973 Constitution o f the Philippines
provided in Art. IV thereof:
“Sec. 20. No person shall be com pelled to be a
w itness against him self. A n y person under in ves-
tigation for the com m ission o f an offense shall have
the right to rem ain silent and to counsel, and to be
inform ed o f such right. No force, violence, threat,
intim idation, or any other m eans w hich vitiates the
free w ill shall be used against him. A n y confession
ob ta in e d in v io la tio n o f th is section sh a ll be in -
adm issible in eviden ce.”
H ow ever, if the extrajudicial confession w as obtained
b e fo r e th e e ff e c t iv it y o f th e 1973 C o n s t it u t io n on
J an u a ry 17, 1973, the sam e is adm issible in evidence
even if the confessant w as not inform ed o f his right to
silen ce and to cou n sel as this co n stitu tion a l m andate
should be given a prospective, and not a retrospective,
effect (M agtoto vs. M an guera, etc., et al., L -37201-02,
M ar. 3, 1975, join tly deciding therein P eople vs. Isnani,
etc., et al., L -38929 and Simeon, et al. vs. Villaluz, etc.,
et al., L-37424, Mar. 3, 1975; People vs. Pena, L-36435,
Dec. 20, 1977; People vs. Bernalde, L-32832, June 29, 1979;
P eople vs. Corachea, L-30101, July 16, 1979; P eople vs.
U rm inita, L -33314, D ec. 14, 1979), and th is doctrin e
768
appliefl even if the confession was made w hile the accused

wan under arrest (People vs. F eliciano, supra).
1 0 . W h e re , b e fo re th e s ta te m e n t c o n t a in in g the
extrajudicial confession o f guilt was taken, the accused
was asked w hether he was fam iliar w ith the provision s o f
then Sec. 20, Art. IV o f the 1973 C on stitu tion and he
answ ered in the affirm ative, and the statem en t w hich
h e s ig n e d s ta te s th a t he h a d b e e n a p p r is e d o f h is
co n stitu tio n a l righ ts w ith th e w arn in g th at a n yth in g
he w ould say m ight be used for or against him in court,
such extraju dicial confession is adm issible in evidence
(D raculan, etc., et al. vs. D onato, etc., et al., L -46027,
Sept. 15, 1978), especially w here he thereafter failed to
im pugn the sam e by not taking the witness stand although
a ssisted by cou n sel (P eople vs. C om endador, L -38000,
Sept. 19, 1980).
11. W here the verb a l e x tra ju d icia l con fession w as
made w ithout counsel, but it w as spontaneously m ade by
the accused im m ediately after the assault, the sam e is
adm issible not under the confession rule, but as part of
the res gestae (People vs. Tampus, L-44690, Mar. 28, 1980),
aside from the consideration that no custodial investigation
was involved (People vs. Taylaran, L-49149, Oct. 23, 1981;
cf. P eople vs. Tawat, G.R. No. 62871, M ay 25, 1984).
12. W h e n th e a c c u s e d w a s m e r e ly t o ld o f h is
con stitution al rights and asked if he understood w hat he
was told, but he w as never asked w hether he w anted to
exercise or avail h im self o f such rights, his extraju dicial
c o n fe s s io n is in a d m is s ib le (P e o p le vs. F e lip e , G .R .
No. 54335, Dec. 14, 1981). Furtherm ore, w here the extra -
ju d icia l con fession o f the accused w hile under custodial
investigation was m erely prefaced by the investigator with
a sta tem en t o f h is co n stitu tio n a l righ ts, to w h ich he
answ ered that he w as going to tell the truth, the sam e is
inadm issible as his answer does not constitute a w aiver of
769
his right to counsel and he was not assisted by one when

he signed the confession. His short answer does not show
that he knew the legal significance o f w hat w ere asked of
him (People vs. Broqueza, G.R. No. 62467, Oct. 31, 1988;
P eople vs. Galit, G.R. No. 51770, Mar. 20, 1985; People
vs. Quizon, G.R. No. 68603, June 25, 1986), especially
w here the accused is illiterate and it was not show n how
his constitutional rights were explained by the investigator
(P eop le vs. N icand ro, G.R. No. 59378, Feb. 11, 1986;
P eople vs. Duhan, et al., G.R. No. 65189, M ay 28, 1986).
13. The w aiver of the right to counsel during custodial
investigation must be made w ith the assistance o f counsel
(M orales, Jr. vs. E nrile, et al., G.R. No. 61016, join tly
decided with Moncupa, Jr. vs. Enrile, et al., G.R. No. 61107,
A p ril 26, 1983). The d octrin a l force o f the d ecision s
therein were clarified and affirm ed in People vs. Galit,
supra, con cu rred in by 13 ju stice s, and re ite ra ted in
People vs. Sison, etc., et al. (G.R. No. 70906, M ay 30,1986).
The requirem ent is now embodied in the 1987 Constitution,
the B ill o f R ights (Art. I ll) w h ereof provides, inter alia,
as follow s:
“Sec. 12. ( 1 ) A n y p erson u n der in v estig a tion
for the com m ission o f an offense shall have the right
to be inform ed o f his right to rem ain silent and to
have com petent and independent counsel preferably
o f his ow n choice. If the person cannot afford the
services o f counsel, he m ust be provided w ith one.
These rights cannot be w aived except in w ritin g and
in the presence o f counsel.
(2 ) No torture, force, violence, threat, intim ida-
tion , or any oth er m eans w h ich v itia te free w ill
shall be used against him. Secret detention places,
solitary, incom m unicado, or other sim ilar form s o f
detention are prohibited.
770
(3) A ny con fession or adm ission ob tain ed in

violation o f this or S ection 17 h e re o f sh all be in -
adm issible in evidence against him.
(4) The law shall provide for penal and civil
san ction s for violation s o f this section as w ell as
co m p en sa tion to and re h a b ilita tio n o f v ictim s o f
torture or sim ilar practices, and their fam ilies.”
x x x
“ Sec. 17. No person shall be com pelled to be a
w itness against him self.”
These constitution al requirem ents and safeguards w ere
reiterated in Olaes, et al. vs. People, et al. (G.R. Nos. 78347-
49, Nov. 9, 1987) and People vs. Fernando (G.R. No. 68409,
Dec. 1, 1987). W here a confession was illegally obtained
from tw o o f the a ccu se d and, co n s e q u e n tly , are not
adm issible against them, w ith much more reason should
the same be inadm issible against a third accused who had
no p a rticip a tion th erein (P eople vs. Jara, et al., G.R.
Nos. 61356-57, Sept. 30, 1986).
14. A ny form o f coercion, w hether physical, m ental,
o r e m o tio n a l, r e n d e r s th e e x t r a ju d ic ia l c o n fe s s io n
in a d m is s ib le (P eo p le vs. B a g a s a la , et a l., L -2 6 1 8 2 ,
M ay 31, 1971). A prom ise o f im m unity or leniency vitiates
a confession if given by the offended party or by the fiscal
(People vs. Dasy, 93 Phil. 618), but not if given by a person
w hom the accused could not have reasonably expected to
be able to com ply with such prom ise (People vs. Pardo, 79
Phil. 568), such as an investigator who is not a prosecuting
officer (People vs. H ipolito, et al., L-31402, Aug. 17, 1981),
o r c o u ld n o t b in d th e o ffe n d e d p a r ty w h ic h w a s a
corporation (U.S. vs. A sensi, 34 Phil. 671).
15. W here the accu sed volu n ta rily m ade a secon d
extrajudicial confession after he had been m altreated in
order to extort the first confession, such second confession
771
is adm issible only if it can be proved that he w as already

r e lie v e d o f th e fe a r g e n e r a t e d b y th e p r e v io u s
m altreatm ent (U.S. vs. M ercado, 6 Phil. 332).
16. T h e e n tire co n fe s s io n sh o u ld be a d m itte d in
evidence (People vs. Solalia, et al., L-13967, Sept. 29, 1962)
but the court may, in appreciating the same, reject such
portions as are incredible (People vs. Cabrito, 101 Phil.
1253).
17. W here the extrajudicial confession w as obtained
by maltreatment, the judgm ent based solely thereon is null
and void, and the accused may obtain his release on a
w rit o f habeas corpus (Cam asura vs. Provost M arshal, etc.,
78 Phil. 131).
18. T he e x tra ju d ic ia l co n fe s s io n o f an a ccu se d is
binding only upon h im self and is not adm issible against
his co-accu sed (P eople vs. A m aju l, et al., L -14626-27,
Feb. 28, 1961; People vs. Alegre, et al., L-30423, Nov. 7,
1979), except:
(a) If the latter im pliedly acquiesced in or adopted
said confession by not questioning its truthfulness (People
vs. Orenciada, et al., 4 7 Phil. 970), as w here it w as made
in his presence and he did not rem onstrate against his
being im plicated therein (People vs. Am ajul, supra);
(b) I f th e a ccu sed p erson s v o lu n ta rily and in d e -
p e n d e n t ly e x e c u t e d id e n t ic a l c o n f e s s io n s w ith o u t
conclusion, com m only known as interlocking confessions
(People vs. Encipido, et al., G.R. No. 70091, Dec. 29, 1986),
w h ich con fession s are corrob ora ted by oth er evidence
(People vs. A rgana, et al., L -19448, Feb. 28, 1964; People
vs. Provo, et al., L-28347, Jan. 20, 1 9 7 1 ;P eople vs. M ateo,
et a l., G .R. N o. 65165, J u n e 29, 1984), and w ith ou t
contradiction by the co-accused who was presen t (People
vs. M olleda, et al., L-34248, Nov. 21, 1978);
772
(c) W here the accused adm itted the facts stated by

the con fessan t after b ein g apprised o f such con fession
(People us. N arciso, L-24484, M ay 28, 1968);
(d) If they are charged as co-conspirators o f the crime
w h ich w as con fessed by on e o f th e a ccu sed and said
confession is used only as a corroborating evidence (People
us. Linde, et al., L -10358, Jan. 28, 1961; P eople us. Sta.
M aria, L -19929, Oct. 30, 1965; P eople vs. Cortez, et al.,
L-31106, M ay 31, 1974);
(e) W here the confession is used as circum stantial
e v id e n ce to show th e p ro b a b ility o f p a r tic ip a tio n by
the co-con spirator (People us. Condem ena, et al., L-22426,
M ay 29, 1968; P eople us. Pareja, L -21937, Nov. 29, 1969;
People us. Vasquez, G.R. No. 54117, A pril 27, 1982);
(f) W here the confessant testified for his co-defendant
(P eople us. Villanueva, et al., L-12687, July 31, 1962);
or
(g) W here the co-conspirator’s extrajudicial confession
is corroborated by other evidence o f record (People vs. Paz,
et al., L -15052-53, Aug. 31, 1964; P eople vs. A gdeppa,
L -17489, D ec. 24, 1969).
19. T h is s e c tio n , as now a m e n d e d , d e c la r e s as
adm issible the confession o f the accused not only w ith
r e s p e c t to th e o ffe n s e ch a rg e d b u t a lso an y o ffe n s e
necessarily included therein. On the other hand, the 1987
C onstitution specifically provides that illegal confessions
and adm issions are inadm issible against the confessant
or the adm itter, hence they are adm issible against the
persons who violated the constitutional prohibition against
obtain in g illegal confessions or adm issions.
20. C orrelatively, the Suprem e Court has noted the
C onstitutional provisions in Art. I l l that “the right o f the
people to be secure in their persons, houses, papers and
773
effects again st u n reason ab le search es and seizu res o f

w hatever nature and for any purpose shall be inviolable”
(Sec. 2) and “any evidence obtained in violation o f this
and the preceding section shall be inadm issible for any
purpose in any proceeding” (Sec. 3).
It c o n s e q u e n tly c la r ifie d th a t th e in a d m is s ib le
evid en ce term ed as the “fru it o f a poison ou s tre e ” in
ju risp ru den ce is that contem plated in the aforequoted
C o n s t it u t io n a l p r o v is io n s . It r e fe r s to o b je c t, n ot
testim onial, evidence; and it refers to an object seized in
the course o f an illegal search and seizure. It does not
refer to testim ony or a confession obtained through an
illegal arrest (People, et al. vs. Uy, et al., G.R. No. 158157,
Sept. 30, 2005).
4. Previous Conduct as Evidence
Sec. 34. Sim ilar acts as evidence. — Evidence that

one did or did not do a certain thing at one tim e is
not adm issible to prove that he did or did not do the
sam e or a sim ilar thing at another tim e; but it m ay
be received to prove a specific intent or know ledge,
id e n tity , p lan , sy stem , sch em e, h a b it, cu stom or
usage, and the like. (48a)
N O TES
1 . Sec. 34 is the second bran ch o f the rule o f res

inter alios acta and applies to both civil and crim inal
cases. This section, ju st like the first branch o f the res
inter alios acta rule provided for in Sec. 28, Rule 130, is
strictly enforced in all cases w here it is applicable (see
P eople vs. Asinas, et al., 58 Phil. 59).
2. The exceptions to the rule are w here the evidence
o f sim ilar acts may prove (a) a specific intent or knowledge,
774
RULE 130 RULES OF ADMISSIBILITY SEC 35, 36
(b) identity, (c) a plan, system or schem e, (d) a specific

habit, or (e) established custom s, usages, and the like.
3. Thus, evidence o f another crim e is adm issible in a
p rosecu tion for rob b ery w here it has the ten d en cy to
identify the accused or show his presence at the scene of
the crim e (People us. Irang, 64 Phil. 285; P eople vs. Liera,
et al., L -32147-49, M ar. 17, 1978), but not w h ere the
evidence is to prove that the accused com m itted another
crim e w holly independent o f that for w hich he is on trial
(P eople us. A sinas, supra).
4. Previous acts of negligence, that is, selling barium
ch lora te in stead o f p otassiu m ch lora te, is a d m issib le
to show know ledge or intent (U.S. us. P ineda, 3 7 Phil.
456).
Sec. 35. U naccepted offer. — An offer in w riting

to pay a p articular sum o f m oney or to d eliver a
w ritten instrum ent or sp ecific personal property
is, if rejected w ith ou t v alid cau se, e q u iv a len t to
the a ctu a l p rod u ction and ten d er o f th e m on ey,
instrum ent, or property. (49a)
NO TE
1 . Sec. 35 is m erely an evidentiary com plem ent to

the rule on tender o f paym ent (Art. 1256, Ciuil Code) by
providin g that said offer o f paym ent m ust be m ade in
w ritin g . S u ch ten d er o f pa ym en t m ust, h ow ev er, be
follow ed by consignation of the am ount in court in order
to produce the effects o f valid paym ent (M cL aughlin vs.
CA, et al., G.R. No. 57552, Oct. 10, 1986),
5. T estim onial K now ledge
Sec. 36. Testim ony gen erally confined to p erson a l

kn ow led ge; hearsay excluded. — A w itness can testify
775
only to those facts w hich he know s o f his personal

k now ledge; that is, which are derived from his own
p erception, except as otherw ise provided in these
rules. (30a)
NOTES
1. This section is known as the hearsay evidence rule.

A n y evidence, w hether oral or docum entary, is hearsay if
its probative value is not based on the personal know ledge
o f the w itness but on the know ledge o f som e other person
not on the w itness stand.
2 . H earsay evidence is excluded because the party
against w hom it is presented is deprived o f his right and
opportu nity to cross-exam ine the persons to w hom the
statem ents or w ritings are attributed. C onsequently, if a
party does not object to the hearsay evidence, the sam e is
adm issible, as a party can waive his right to cross-exam ine
(P eople vs. Ola, L-47147, July 3, 1987). The repeated
failure o f a party to cross-examine the witness is an implied
w aiver o f such right and the testim ony o f said w itness
who died thereafter should not be excluded from the record
(S a v o ry L u n c h e o n e tte vs. L a k a s n g M a n g g a g a w a n g
P ilipino, et al., L-38964, Jan. 31, 1975).
3. H ea rsa y eviden ce alone m ay be in su fficien t to
establish a fact in issue but when no objection is interposed
thereto, it is, like any other evidence, to be considered and
given the im portan ce it deserves (M anliclic, et al. vs.
Calaunan, G.R. No. 150157, Jan. 25, 2007). H ow ever, it
has also been held that hearsay evidence not objected to
m ay be adm issible but, w hether objected to or not, has no
probative value and, as opposed to direct prim ary evidence,
the latter always prevails (People vs. Valero, L-45283-84,
Mar. 19, 1982; People vs. Williams, et al., G.R. No. 125985,
A pril 20, 2001; 3 Jones on E vidence, 2nd ed., p. 745).
776
4. See Sec. 28 o f the Rule on Exam ination o f a Child

W itness, A.M . No. 00-4-07-SC (A ppendix FF) regarding
the special exception to the hearsay rule in child abuse
cases. H earsay testim ony o f a child describing any act
or attem pted act o f sexual abuse may now be adm itted in
any crim inal proceeding, subject to certain prerequisites
and the right o f cross-exam ination by the adverse party.
The adm issibility o f such hearsay statem ents shall be
determ ined by the court in light of specified subjective and
objective considerations w hich provide sufficien t indicia
o f reliability o f the child w itness.
5. The eleven exceptions to the hearsay evidence rule
are found in Secs. 37 to 47 o f this Rule. Logically assayed,
Sec. 47, regarding testim ony or deposition at a form er
p ro ce e d in g , is not an e x cep tion to th e h ea rsa y ru le;
actually, it requires for its adm issibility that the party had
eith er cross-exam in ed or had the opportu nity to cross-
exam ine the w itness at said form er trial.
These exceptions are w arranted by the n ecessity for
su ch ev id en ce a n d/or on the a ssu m p tion th a t, in the
ordin ary course o f events, the sam e are trustw orthy.
6 . W here the statem ents or w ritings attributed to a
person w ho is not on the w itness stand are bein g offered
not to prove the truth o f the facts stated th erein but only
to prove that those statements were actually made or those
w ritings w ere executed, such evidence is not covered by
th e h ea rsa y evidence rule. The w itn ess w ho testifies
thereto is com petent because he heard the sam e or saw
the execution o f the docum ent, as these are m atters of
fact derived from his ow n perception and the purpose is
on ly to prove either that the statem ent w as made or the
ten or th e reo f (People vs. Cusi, Jr., etc., et al., L-20986,
A u g. 14, 1965; Cornejo, Sr. vs. Sandiganbayan, G.R. No.
58831, July 31, 1987; Sebastian, Sr. vs. G achitorena. et
al., G.R. No. 114026, Oct. 18, 2000).
Ill
Thus, a w itness may testify to the statem ents made

by a person if, for instance, the fact that such statem ents
w ere made by the latter would indicate the latter’s m ental
state or physical condition. This is known as the doctrine
o f independently relevant statem ents (31 C.J.S. 990-1005),
that is, independent o f w hether the facts stated are true
or not, they are relevant since they are the facts in issue
or are circum stantial evidence o f the facts in issue.
Some exam ples o f the second class o f statem ents are
those m ade by a person (a) show ing his state o f mind,
that is, his m ental condition, know ledge, belief, intention,
ill w ill, and other em otion; (b) w hich show his physical
co n d ition , as illn ess and th e lik e; (c) from w h ich an
inference may be made as to the state o f m ind o f another,
that is, the knowledge, belief, m otive, good or bad faith,
etc., o f the latter; (d) w hich may identify the date, place
an d p erson in q u estion ; and (e) sh ow in g the la ck of
c r e d ib ilit y o f a w itn e s s ( R e s o lu tio n on M o tio n fo r
R econ sid eration , E strada vs. D esierto, etc., et al., G.R.
Nos. 146710-15, A pril 3, 2001).
7. N ew sp ap er clip p in gs or facts p u b lish ed in the
new spapers are hearsay and have no evidentiary value
unless substantiated by persons with personal knowledge of
said facts (People vs. Aguel, et al., L-36554, May 19, 1980).
6 . Exceptions to the H earsay Evidence Rule
( 1) D ying D eclaration
Sec. 37. D ying declaration. — The d eclaration o f

a dying person, m ade under the consciousness o f
an im pending death, m ay be received in any case
w h e re in h is d ea th is the su b je c t o f in q u ir y , as
ev id en ce o f the cause and su rro u n d in g c ircu m -
stances o f such death. (31a)
778
NOTES
1. A dying declaration, also known as an ante mortem

statem ent or a statem ent in articulo mortis, is adm issible
under the follow ing requisites: (1) That death is im m inent
and the declarant is conscious o f the fact; (2) That the
declaration refers to the cause and surrounding circu m -
stances o f such death; (3) T hat the declaration relates
to facts w hich the victim is com petent to testify to; and
(4) That the declaration is offered in a case w herein the
declarant’s death is the subject o f the inquiry.
2. A d e cla ra tio n w ill be d eem ed as h a v in g been
m ade u n der the con sciou sn ess o f im m in en t death , in
consideration o f —
(a) The w ords or statem ents o f the declarant on the
same occasion;
(b) His conduct at the time the declaration was made
(U.S. vs. Virrey, 37 Phil. 618); or
(c) T h e se rio u s n a tu re o f h is w ou n d s as w ou ld
n ecessarily engender a b elief on his part that he would
not survive th erefrom (P eople vs. A vila, 92 Phil. 805;
P e o p le vs. S a ra b ia , et a l., L -2 7 4 2 2 , J an. 30, 1984),
especially w here he died an hour thereafter (P eople vs.
Brioso, et al., L-28482, Jan. 30, 1971; People vs. Garcia,
L-44364, A pril 27, 1979; People vs. Araja, et al., L-24780,
June 21, 1981).
3. The in terv en in g tim e from the m a k in g o f the
d ecla ra tion up to the actu al death o f the d ecla ra n t is
im m aterial, as long as the declaration w as m ade under,
the consciousness o f im pending death (U.S. vs. M allari,
29 Phil. 14) w hich is a question o f fact for the trial court
to determ ine (People vs. Extra, L-29205, July 30, 1976),
and as long as no retraction w as m ade by the declarant
u ntil his dem ise. W here the gravity o f the w ound did not
779
dim inish, the adm issibility o f the dying declaration is not

affected by the fact that the declarant died hours or days
later (P eople vs. D evaras, et al., L-25165, Feb. 27, 1971)
or even 14 days later (People vs. Jacinto, G.R. No. 51908,
Nov. 29, 1984). It is the b elief in im pending death at the
time the statem ent was made, and not the rapid succession
o f death, that renders the dying declaration adm issible
(People vs. Sabio, L-26193, Jan. 27, 1981).
4. H o w e v e r, th e in t e r v a l o f tim e b e tw e e n th e
declaration and the death o f the declarant m ay be taken
into account w here the declaration is am biguous as to
w h e th e r th e d e cla ra n t b e lie v e d th a t h is d ea th w as
im m inent w hen he made such declaration. Thus, w here
the declarant stated that he w ould not die if treated, such
statem ent indicates an awareness o f death and the nature
o f his w ound and his death an hour later qualifies such
statem ent into a dying declaration, or, at least, as part
o f the res g esta e (P eople vs. A n ton io, et al., L -25845,
Aug. 25, 1970). W here, shortly after he was w ounded,
the victim w as asked as to w hether he believed he w ould
die and to w hich he replied “I cannot ascertain” and he
died the follow ing day, his statem ent is adm issible both as
part o f the res gestae and as a dying declaration (People
vs. Gueron, et al., L-29356, Mar. 25, 1983). But where
the victim , w hen asked as to w hether he thought he would
die, replied “I don’t know ,” his declaration w as not made
under the consciousness o f his im m inent death and does
not qualify as an ante m ortem statem ent, although the
sam e w as adm itted as part o f the res gestae since it was
made im m ediately after the incident (People vs. Laquinon,
L-45470, Feb. 28, 1985). On the other hand, w here the
victim , w hen asked as to w hether he believed he w ould
die from his injuries, replied “It all depen ds,” and his
con d ition had p rog ressiv ely im proved, his statem en ts
thereafter cannot be considered as a dying declaration
(P eople vs. Lanza, L-31782, D ec. 14, 1979).
780
5. A fter a dying declaration is proved and adm itted

as Much, its credibility and w eight should be determ ined
by the courts under the same rules used in testing the
w eight and credibility o f any oth er testim on ial evidence
(People vs. A niel, et al., L-34416, Feb. 21, 1980; People
vs. Ola, L-47147, July 3, 1987). Thus, it has been held
that such fa ctors as w here the fa cts n a rra ted by the
declarant have occurred under circum stances o f surprise,
rapidity and confusion, should not be lost by oversight,
because the accuracy o f his observation o f the occurrences
before him could be blurred by such disorder and rapidity
o f even ts and, th erefore, he cou ld be m istak en in his
identification o f his assailant. Taking into consideration,
too, that the source, accuracy and com pleteness o f the
declarant’s knowledge as to the facts by him asserted could
not be tested by m eans o f cross-exa m in a tion , a dying
declaration has to be accepted with utm ost care and should
be considered in light o f all the facts proved in the case
(People vs. M allare, [CA], 61 O.G. 1370).
6 . A dying declaration is adm issible only in sofar as
it refers to facts regarding the cause and surrounding
circum stances o f the declarant’s death, hence statem ents
referrin g to the antecedents o f the fatal encounter (People
vs. B u s to s , 45 P h il. 9) or o p in io n s , im p r e s s io n s or
conclusions o f the declarant (State vs. Horn, 204 Mo. 528,
103 S. VP. 69) are not adm issible; but all facts relatin g to
the cause o f such death are adm issible w hether the same
are in favor o f or against the accused (U.S. vs. Clem ente,
22 Phil. 277; U.S. vs. A ntipolo, 37 Phil. 726; P eople vs.
M artinez, et al., 42 Phil. 85).
7. The form er rule was that dying declarations w ere
adm issible only in crim inal prosecu tion s for hom icide,
m urder or parricide w herein the declarant is the victim
(People vs. Lara, 54 Phil. 96). A s am ended, the Rule now
provides for such adm issibility in any case as lon g as the
781
requisites concur.
8 . A dying declaration may be oral or w ritten or made
by signs w hich could be interpreted and testified to by a
w itness thereto. The wife o f the declarant may testify to
the same, either for the prosecution or as a w itness for the
defense, and this does not violate the m arital privilege as
a d y in g d e cla ra tio n is not co n s id e re d a co n fid e n tia l
com m unication betw een the spouses (U.S. vs. Antipolo,
supra). I f the ante mortem statem ent w as m ade orally,
the w itness who heard it m ay testify thereto, w ithout
necessarily reproducing the exact words as long as he can
give the substance thereof, and if the deceased had an
unsigned dying declaration, the same may be used as a
m em orandum by the w itness who took it dow n (People vs.
Odencio, et al., L -31961, Jan. 9, 1979).
9. A d y in g d e cla ra tio n m ay be a tta ck e d on th e
ground that any o f the requisites for its adm issibility are
n ot p resen t, and the sam e m ay be im p ea ch ed in the
sam e m anner as the testim ony o f any other w itness on
the stand (see U.S. vs. Castellon, 12 Phil. 160; P eople vs.
M alacon , [C A ], 67 O.G. 9024; P eop le vs. A n iel, et al.,
L-34416, Feb. 21, 1980). A m erican jurispru den ce is to
the effect that dying declarations are on the sam e footing
as testim ony o f a witness on the stand and w hatever would
disqualify such w itness would also make such declarations
in com peten t evidence (P eople vs. Sanchez, 24 Cal. 17;
D onnelly vs. State, 26 N .J.L. 601).
(2) D eclaration Against Interest
Sec. 38. D e c la r a t io n a g a in s t in t e r e s t. — T h e
declaration m ade by a person deceased, or unable
to testify, against the interest o f the declarant, if
the fact asserted in the declaration was at the time
it w as m ade so far co n tra ry to d e c la r a n t’s ow n
782
in te r e st, th a t a r e a so n a b le m an in h is p o sitio n
w ould not have m ade the d ecla ra tio n u n less he
believed it to be true, m ay be received in evidence
against h im se lf or his successors in in terest and
against third persons. (32a)
NOTES
1. T here is a vital distinction betw een adm issions

a g a in s t in te r e s t a n d d e c la r a tio n s a g a in s t in te r e s t.
A dm issions against interest are those made by a party to
a litigation or by one in privity w ith or identified in legal
interest w ith such party, and are adm issible w heth er or
not the declarant is available as a w itness. D eclarations
a g a in st in te re s t are th ose m ade by a p erson w h o is
neither a party nor in privity with a party to the suit, are
secon dary eviden ce but con stitute an exception to the
hearsay rule, and are adm issible only w hen the declarant
is u n a va ila b le as a w itn ess (N eely us. K a n sa s P u b lic
Seruice Co., 252 S.VK. 2d 88; see also Note 6 under Sec. 26
o f this Rule).
2. In order that a statem ent may be adm issible as a
declaration against interest, it is required that (a) the
declarant is dead or unable to testify; (b) it relates to a
fact against the interest o f the declarant; (c) at the tim e
he m ade said declaration the declarant was aw are that
the sam e w as con trary to h is a foresa id in tere st; and
(d) the declarant had no m otive to falsify and believed
such declaration to be true (see Ong us. CA, et al., L-47674,
Oct. 30, 1980).
3. A declaration against interest is the opposite o f a
se lf serving declaration w hich is a statem ent favorable
to or intended to advance the interests o f the declarant.
C onsequently, a self-serving declaration is inadm issible
as b ein g h ea rsa y i f the d ecla ra n t is u n a v a ila b le as a
witness.
783
RULE 130 REMEDIAL LAW COMPENDIUM SEC 39-40
4. In People vs. Toledo and H olgado (51 Phil. 825),

it was opined by three justices that a declaration admitting
that he w as the one w ho killed the victim , m ade by a
declarant who died shortly thereafter, is adm issible w here
another person was subsequently charged as the killer of
the sam e victim , under the theory that said declaration
w as one against the penal interest o f the declarant. This
w ould be a ju stifiable theory since under our penal laws a
p e rs o n cr im in a lly lia b le is also civ illy lia b le, a n d is
sustained under the present am ended rule w hich does not
delim it or distinguish as to the interest against w hich the
declaration is made.
(3) Act or D eclaration A bout Pedigree
Sec. 39. A ct or declaration about pedigree. — The

act or declaration o f a person deceased, or unable
to te stify in resp e ct to the p ed ig ree o f an o th er
person related to him by birth or m arriage, m ay be
received in evidence where it occurred before the
controversy, and the relationship betw een the two
persons is show n by evidence other than such act
or d e c la r a tio n . T he w ord “ p e d ig r e e ” in c lu d e s
r e la tio n sh ip , fa m ily g e n e a lo g y , b irth , m a rria g e ,
death, the dates when and the places where these
facts occu rred , and the nam es o f the relatives. It
em braces also facts o f fam ily h isto ry in tim a tely
connected w ith pedigree. (33a)
(4) Fam ily Reputation or T radition

Regarding Pedigree
Sec. 40. Fam ily reputation or tradition regardin g

p ed ig ree. — The re p u ta tio n or tr a d itio n e x istin g
in a fam ily previous to the controversy, in respect
784
to the p ed igree o f any one o f its m em b ers, m ay

be received in evid ence if the w itn ess te stify in g
th ereo n be also a m em b er o f the fa m ily , e ith e r
by c o n sa n g u in ity or a ffin ity . E n trie s in fa m ily
bibles or other fam ily books or charts, engravings
on r in g s, fa m ily p o rtr a its and the lik e , m a y be
received as evidence o f pedigree. (34a)
NOTES
1. Under these sections, the pedigree of a person may

be proved by the act or declaration of a relative (Sec. 39),
by the reputation or tradition existing in his family
(Sec. 40), or by entries in family bibles, etc. (Sec. 40) and
with respect to marriage, also by common reputation in
the community (Sec. 41). Of course, pedigree may be
proved by other species of direct primary evidence,
instead of the foregoing exceptions to the hearsay evidence
rule.
2. In order that pedigree may be proved by acts or
declarations of relatives under Sec. 39, it is necessary
that (a) the actor or declarant is dead or unable to testify;
(b) the act or declaration is made by a person related to
the subject by birth or marriage; (c) the relationship
between the declarant or the actor and the subject is
shown by evidence other than such act or declaration;
and (d) the act or declaration was made a n te litem
m otam, or prior to the controversy.
3. The relationship must preliminarily be proved
by direct or circumstantial evidence. The rules do not
require any specific degree of relationship, but the
weight to which such act or declaration is entitled may be
affected by the degree of relationship.
4. With respect to reputation or tradition under
Sec. 40, it is necessary that (a) the witness testifying
785
thereto m ust be a m em ber, by consanguinity or affinity,

o f the same fam ily as the subject; and (b) such reputation
or tradition must have existed in that fam ily ante litem
motam.
5. A person’s statem ent as to his date o f birth and
age, as he learned o f these from his parents or relatives,
is an ante litem motam declaration o f a fam ily tradition
(G ravador vs. M am igo, et al., L-24989, July 21, 1967).
Such statem ent prevails over the m ere opin ion o f the
tria l ju d ge (U.S. vs. A gadas, et al., 36 P hil. 246) but
cannot generally prevail over the secondary statem ent
o f th e fa th e r (U .S . vs. E v a n g elista , et a l., 32 P h il.
321).
(5) Com m on Reputation
Sec. 41. Common reputation. — Com m on reputa-

tion existing previous to the controversy, respect-
ing facts o f public or general interest m ore than
th irty years old, or respectin g m arriage or m oral
character, m ay be given in evidence. M onum ents
and inscrip tions in public places m ay be received
as evidence o f com m on reputation. (35)
NOTES
1. C o m m o n r e p u t a t io n , w h ich m e a n s g e n e r a l
reputation, is adm issible to prove (a) facts o f public or
general interest m ore than thirty years old, (b) m arriage,
and (c) m ora l ch a ra cte r. M a tters o f p u b lic in te re s t
are those o f national interest, w hile m atters o f general
in terest are those affecting inhabitants o f a particular
region or com m unity. In any o f the three cases, it is
necessary that the com m on reputation existed ante litem
motam.
786
2 . Com m on reputation may be establish ed either

by the testim onial evidence o f com petent w itnesses, by
m on u m en ts and in s cr ip tio n s in p u b lic p la ce s, or by
docum ents containing statem ents o f reputation.
3. W ith resp e ct to m a tters o f p u b lic or gen era l
interest, such m atters m ust be more than 30 years old.
C onsequently, the com m on reputation o f such m atters,
w hich is required to have existed ante litem motam , must
likew ise be m ore than 30 years old and, therefore, can be
established only by persons who have had know ledge of
that fact for such length o f tim e, or by m onum ents and
in scriptions existing for that length o f tim e. Com m on
rep u ta tion reg a rd in g m a rria ge or m ora l ch a ra cte r is
not required to be more than 30 years old.
4. Com m on reputation is the definite opinion o f the
com m unity in w hich the fact to be proved is know n or
exists. It m eans the general or substantially undivided
reputation, as distinguished from a partial or qualified
one, although it need not be unanim ous. Character refers
to the inherent qualities o f a person, w hile reputation is
the opinion o f him by others; but, under this section, the
character o f a person is perm itted to be established by his
com m on reputation.
5. W hile, as a rule, the reputation o f a person should
be that existing in the place o f his residence, it m ay also
be that existing in the place w here he is best known. Also,
the character of a place as an opium join t m ay be proved
by its com m on reputation in the com m unity (U.S. vs. Choa
Chiok, 36 Phil. 831).
( 6 ) Res Gestae
Sec. 42. Part o f the res gestae. — Statem ents made

by a person while a startling occurrence is tak ing
place or im m ediately prior or subsequent thereto
787
with respect to the circum stances thereof, m ay be

given in evidence as part o f the r e s g e s t a e . So, also,
statem ents accom panying an equivocal act m aterial
to the issue, and giving it a legal sign ificance, m ay
be received as part o f the r e s g e s t a e . (36a)
NOTES
1 . The rule of res gestae, which literally means “things

done,” refers to (a) spontaneous statem ents in connection
w ith a startling occurrence relating to that fact and in
effect form ing part thereof, and (b) statem ents accom -
panying an equivocal act, otherw ise know n as verbal acts,
on the theory that they are the verbal parts o f the act
to be explained.
2. For the adm ission o f evidence o f the first type
o f res gestae, it is required that (a) the principal act, the
res gestae, be a startling occurrence, (b) the statem ents
form ing part th ereof w ere made before the declarant had
the opportu nity to contrive, and (c) the statem ents refer
to the occu rren ce in question and its attending circu m -
stances (P eople vs. Siscar, G. R. No. 55649, Dec. 3, 1985).
3. R es gestae in connection with a hom icidal act may
be distinguished from dying declarations in that:
(a) A dyin g d ecla ra tion can be m ade on ly by the
victim , w hile a statem ent as part o f the res gesta e m ay be
that o f the killer h im self after or during the killing (People
vs. R eyes, et al., 82 Phil. 563) or that o f a th ird person.
(b) D ying declarations are made only after the h om i-
cidal attack has been com m itted; but in res gestae, the
statem ent may precede, accom pany or be made after the
hom icidal act was com m itted.
(c) T he tru stw o rth in e ss o f a d yin g d e cla ra tion is
b a s e d u p o n its b e in g g iv e n u n d e r an a w a re n e s s o f
788
im pen din g death, w hile the rule o f res g esta e has its
ju stifica tion in the spontaneity o f the statem ent.
Consequently, while the statem ents o f the victim may
not qualify as a dying declaration because it was not made
under the consciousness o f im pending death (P eople vs.
P alam os, et al., 49 Phil. 601), it may still be adm issible as
part o f the res gestae if it w as m ade im m ediately after the
in ciden t (People vs. R eyes, 52 Phil. 538; P eople vs. Abboc,
et al., L-28327, Sept. 14, 1973, and cases therein cited;
P eople vs. Pascual, et al., L -29893, Feb. 23, 1978; People
vs. Araja, et al., L-24780, June 29, 1981) or a few hours
thereafter (People vs. Tum alip, et al., L -28451, Oct. 28,
1 974; P eo p le vs. L an za, su p ra ; cf. P eo p le vs. B a ib a s
L-47686, June 24, 1983). H ow ever, w here the elem ents
o f both are present, the statem ent m ay be adm itted both
as a d yin g d e cla ra tio n and as p a rt o f th e res g es ta e
(P eop le vs. B aibas, su p ra ; P eop le vs. C ortezan o, G.R.
No. 140732, Jan. 29, 2002).
Form erly, a dying declaration was adm issible only in
a crim inal case w herein the declaran t’s death w as the
subject o f the inquiry, w hereas a statem ent as part o f the
res gestae w as adm issible in both crim inal and civil cases.
T h is d is tin ction h as been e lim in a te d by th e p resen t
am endm ent o f the Rule (see Note 7 under Sec. 37).
4. To be adm issible as part o f the res gestae, the
statem ent m ust (a) be spontaneous, (b) be m ade w hile a
startlin g occurrence is taking place or im m ediately prior
or subsequent thereto, and (c) relate to the circum stances
o f th e s ta rtlin g occu rre n ce. F u rth erm ore, on ly such
sta tem en ts as appear to have been in v o lu n ta rily and
sim u ltan eou sly w rung from the w itn ess by the im pact
o f the occu rrence are adm issible (P eople vs. Tulagan,
et al., G.R. No. 68620, July 22, 1986).
789
5. T h e in te r v a l o f tim e b e tw e e n th e s t a r t lin g
occurrence and the statem ent depends upon the circum -
stances; but such statem ent m ust have been made w hile
the declarant was under the im m ediate influence o f the
startling occurrence, hence it is generally required to have
been made im m ediately prior or subsequent to the event.
How ever, if the declarant w as rendered unconscious after
the startling occurrence, his statem ents relative thereto
upon regaining consciousness are still part of the res gestae
regardless o f the tim e that intervened in between.
If the statem ent w as made under the in fluence of
a sta rtlin g event and the d ecla ra n t did n ot have the
opportu nity to concoct or contrive a story, even if made
9 hours after the k illing, the statem ent is adm issible
as part o f the res gestae (P eople vs. B eram e, L -27606,
July 30, 1976).
6 . Statem ents or outcries as part o f the res gestae
h ave b e e n a d m itted to e s ta b lis h th e id e n tity o f the
a ssa ila n t (P eop le vs. A lb a n , L -15203, M ar. 29, 1961;
P eople vs. Diva, et al., L-22946, A pril 29, 1968), to prove
the com plicity o f another person in the crim e (U.S. vs.
D avid, 3 P hil. 128), and to establish an adm ission o f
liability on the part o f the accused (People vs. Reyes, et al.,
82 P h il. 5 6 3 ; P eo p le vs. G on d a ya o, et a l., L -2 6 2 4 0 ,
Oct. 31, 1969).
7. For verbal acts to be admissible, it is required that
(a) the res gestae or principal act to be characterized must
be equivocal, (b) such act m ust be m aterial to the issue,
(c) the statem ents must accom pany the equivocal act, and
(d) the statem ents give a legal significance to the equivocal
act. Such verbal acts m ust have been made at the time,
and not after, the equ ivocal act w as b ein g perform ed,
unlike spontaneous exclam ations which may have been
m ade before, during or im m ediately subsequent to the
startling occurrence. The term “verbal act” is, therefore,
790
lifted to denote that such statem ents are the verbal pm Ih

o f th e e q u iv o c a l a ct o f w h ich su ch s ta te m e n ts a re
explanatory, hence they constitute part o f this form o f res
gestae.
8 . N otes taken regarding a transaction by a person
who is not a party thereto and who has not been requested
to take dow n such notes are not part o f the res gestae
(Dorrom eo vs. CA, et al., L-31342, A pril 7, 1976).
(7) Entries in the Course o f B usiness
Sec. 43. E n tr ie s in th e c o u r s e o f b u s in e s s . —
Entries m ade at, or near the tim e o f the transactions
to which they refer, by a person deceased, or unable
to testify, who was in a position to know the facts
th e r e in s ta te d , m ay be re ceiv ed as p r i m a f a c i e
evid en ce, if such person m ade the en tries in his
p rofession al capacity or in the perform an ce of a
d u ty and in th e o r d in a r y or r e g u la r c o u r se o f
business or duty. (37a)
NOTES
1. In order to be adm issible as entries in the course

o f business, it is necessary that:
(a) The person who made the entry m ust be dead or
unable to testify;
(b) The entries were made at or near the tim e o f the
transactions to w hich they refer (Figueras vs. Serrano, 52
Phil. 28);
(c) The entrant w as in a position to know the facts
stated in the entries (Adriano vs. De Jesus, 23 Phil. 350);
(d) T h e e n tr ie s w e re m a d e in h is p r o fe s s io n a l
capacity or in the perform ance o f a duty, w hether legal,
791
contractual, m oral, or religious (U.S. vs. D e Vera, 28 Phil.

105)', and
(e) The entries w ere made in the ordinary or regular
course o f business or duty (F.M. Yap Tico & Co., Ltd. vs.
L opez Vito, etc., et al, 49 Phil. 61; Chapm an vs. Garcia,
64 Phil. 618).
2. I f the entrant is available as a w itness, the said
entries w ill not be adm itted as an exception to the hearsay
rule, but th ey m ay n everth eless be availed o f by said
entrant as a m em orandum to refresh his m em ory w hile
testifyin g on the transactions reflected th erein (Sec. 16,
R ule 132; Cang Yui vs. Gardner, et al., 34 Phil. 376).
3. In the presentation and adm ission as evidence of
entries m ade in the regular course o f business, there is no
overridin g necessity to bring into cou rt all the clerks or
em ployees w ho individually made the entries in a long
account. It is sufficient that the person who supervises
the w ork o f the clerks or other em ployees m aking the
entries testify that the account was prepared under his
supervision and that the entries were regularly entered
in the ord in a ry cou rse o f b u sin ess (Y ek T on g F ire &
M arine Insurance Co., Inc. vs. G utierrez, et al., [CA], 59
O.G. 8122).
( 8 ) Entries in O fficial Records
Sec. 44. E ntries in official records. — E n tries in

o ffic ia l reco rd s m ade in the p erfo rm a n ce o f his
duty by a public officer o f the P hilip pines, or by a
p e rso n in th e p e r fo r m a n c e o f a d u ty s p e c ia lly
enjoined by law , are p r i m a f a c i e evidence o f the
facts therein stated. (38)
792
NOTES
1 . Entries in official records, ju st like entries in the

course o f business, are m erely prim a facie evidence o f the
facts therein stated.
2. To be adm issible, it is necessary that:
(a) The entries were made by a public officer in the
performance o f his duties or by a person in the perform ance
o f a duty specially enjoined by law (Africa, et al. vs. Caltex
[P hil.], Inc., et al., L-12986, Mar. 31, 1966);
(b) The entrant had personal know ledge o f the facts
stated by him or such facts were acquired by him from
reports m ade by persons under a legal duty to subm it the
sam e (Salm on, D exter & Co. vs. W ijangco, 46 Phil. 386);
an d
(c) S u ch en tries w ere du ly en tered in a re g u la r
m anner in the official records.
3. An official record may be a register (U.S. vs. Que
P ing, 40 Phil. 17), a cash book (U.S. vs. A sen si, 34 Phil.
750), or an official return or certificate (M analo, et al.
vs. R obles Trans. Co., Inc., 99 Phil. 729).
4. The motor vehicle accident report o f a police officer,
m ade in the perform ance o f his duties and at about the
tim e o f the accident, if based upon inform ation given to
him by the drivers o f the vehicles who figured in and had
personal know ledge o f said accident, is adm issible under
Sec. 35, Rule 123 o f the Rules o f Court [now, Sec. 44, R ule
130, o f the am ended Rules o f Court] (People vs. N uque,
58 O.G. 8442), and is prim a facie evidence o f the facts
therein stated, being entries in official records.
5. The report subm itted by a police officer in the
perform ance o f his duties and on the basis o f his own
personal observation o f the facts reported m ay properly
793
be considered as an exception to the hearsay evidence rule

(A frica, et al. vs. Caltex [P hil.] Inc., et al., supra).
6 . A sh e riff’s return is an official statem ent by a
p u b lic o fficia l in the perform a n ce o f a du ty sp ecia lly
e n jo in e d by law and is p rim a fa c ie e v id e n ce o f the
facts therein stated. Being an exception to the hearsay
evidence rule, the sh eriff need not testify in court as to
the facts stated in said return (M analo, et al. vs. Robles
Trans. Co., Inc., supra.)
7. In the case o f entries in the course o f business, it
is sufficient that the entrant made the entries pursuant
to a duty, either legal, contractual, moral, or religious;
but in entries in official records, the entrant, if a private
individual, must have acted pursuant to a specific legal
duty (“specially enjoined by law”). Also, for entries in
the course o f business to be adm issible, the person who
m ade such entries m ust be dead or u n able to testify,
w hile there is no such requirem ent for the adm issibility
o f entries in official records.
8 . T he e n tra n t m ust h ave b een co m p e te n t w ith
respect to the facts stated in his entries. Consequently,
w hile the priest who officiates at a baptism acts pursuant
to a legal duty in recording the facts of such baptism in a
register, such entries in the register are not adm issible to
prove the date o f b irth o f the ch ild or its rela tion to
particular persons (Remigio us. Ortiga, et al., 33 Phil. 614),
as the entrant priest w as not com petent to testify with
resp e ct to the tru th o f th ese latter fa cts. B a ptism al
c e r tific a te s or p a ro ch ia l re co rd s o f b a p tis m are n ot
public or official records and are not p roof o f rela tion -
ship or filiation o f the child baptized (Fortus vs. N overo,
et al., L-22378, June 29, 1968; A rd e vs. A nicoche, A.M .
No. P -272, Feb. 28, 1978). See Note 5, et seq. under
Sec. 30, Rule 132.
794
9. Although after the prom ulgation o f G.O. No, 5K

and the p a s s a g e o f Act No. 190, church r e g i s t r i e s are no
lunger public w ritings, they are adm issible as evidence o f
th e fa c ts s ta te d th e r e in w ith r e s p e c t to m a rria g e s
solem nized by the priest w ithout the necessity of calling
him. Art. 6 8 o f the Civil Code requires the solem nizing
officer to keep a record o f such m arriages. It is necessary,
h ow ever, th a t su ch record s or c e r tifica te s sh ou ld be
authenticated as private w ritings (see U.S. vs. De Vera,
28 Phil. 105). A t any rate, the copy o f the certificate
transm itted to the public officer as required by law becomes
a public docum ent and a certified copy thereof is admissible
in e v id e n c e w ith o u t p r io r a u th e n tic a tio n (U .S . vs.
Evangelista, 24 Phil. 453).
10. Entries in official records m ay be proved and
evidenced in the m anner provided by Secs. 24 and 25,
Rule 132.
(9) C om m ercial List
S e c . 45. Commercial lists and the like. — E v id e n c e

o f s ta te m e n ts o f m a tte r s o f in te r e s t to p e r s o n s
e n g a g e d in a n o c c u p a t i o n c o n t a i n e d in a l i s t ,
r e g is t e r , p e r i o d i c a l , o r o t h e r p u b lis h e d c o m p i l a t io n
is a d m is s ib le a s t e n d in g t o p r o v e th e tr u t h o f a n y
r e l e v a n t m a t t e r so s t a t e d i f t h a t c o m p i l a t i o n is
p u b l i s h e d f o r u s e b y p e r s o n s e n g a g e d in t h a t
o c c u p a t i o n a n d is g e n e r a lly u s e d a n d r e lie d u p o n
b y th e m t h e r e in . (39)
NOTE
1. E xam ples o f these com p ila tion s, given by text

writers, are the mortality tables, like the Carlisle or Wiggles-
w orth Tables, and accepted actuarial and annuity tables.
795
(10) L earned T reatises
S e c . 46. L e a r n e d t r e a t is e s . — A p u b l i s h e d
tr e a t is e , p e r io d ic a l o r p a m p h le t o n a s u b je c t o f
h is t o r y , la w , s c ie n c e o r a r t is a d m is s ib le a s t e n d in g
t o p r o v e th e tr u t h o f a m a t te r s ta te d t h e r e in i f th e
c o u r t t a k e s ju d i c i a l n o t i c e , o r a w it n e s s e x p e r t in
th e s u b je c t te s tifie s , th a t th e w r it e r o f th e s ta te m e n t
in th e tr e a tis e , p e r i o d i c a l o r p a m p h le t is r e c o g n i z e d
in h is p r o f e s s io n o r c a l l in g as e x p e r t in t h e s u b je c t .
(40a)
NOTES
1. Learned treatises are adm issible in evidence if

(a) the court takes ju dicial notice thereof, or (b) the same
are testified to by a w itness expert in the subject. The
Court o f Appeals took ju dicial notice o f the Ballantyne
Scale o f V alues (Estrada vs. N oble, [CA], 49 O.G. 139).
2. L egal treatises are now, as they should heretofore

h ave been, p rop erly in clu d ed in this excep tion to the
hearsay rule.
(11) Testim ony or D eposition

at a Form er P roceeding
S e c . 47. T e s tim o n y o r d e p o s it io n a t a fo r m e r
p r o c e e d in g . — T h e t e s t i m o n y o r d e p o s i t i o n o f a
w it n e s s d e c e a s e d o r u n a b le t o t e s t ify , g i v e n in a
f o r m e r c a s e o r p r o c e e d i n g , ju d i c i a l o r a d m in is t r a -
t iv e , i n v o l v i n g th e sa m e p a r t ie s a n d s u b je c t m a t te r ,
m a y b e g iv e n in e v id e n c e a g a in s t th e a d v e r s e p a r t y
w h o h a d t h e o p p o r t u n i t y t o c r o s s - e x a m i n e h im .
(41a)
796
NOTES
1. In order to be adm issible as an exception to the

hearsay evidence rule, this section requires that:
(a) The w itness is dead or unable to testify (G uevara

vs. Alm ario, et al., 56 Phil. 476);
(b) H is te s tim o n y or d e p o s itio n w as g iv e n in a

form er case or p roceedin g, ju d icia l or ad m in istrative,
betw een the sam e parties or those representin g the same
interests;
(c) The form er case involved the sam e subject as that

in the present case, although on different causes o f action;
(d) The issue testified to by the w itness in the form er

trial is the sam e issue involved in the present case (31A
C.J.S. 957-958); and
(e) The adverse party had an opportu nity to cross-

exam ine the w itness in the form er case.
2. This section originally required that the testim ony

o f the unavailable w itness w as given at a “form er tria l,”
h ence such testim on y m ust have been given in a ju dicial
proceeding. It excluded testim ony given in adm inistrative
or q u a s i-ju d ic ia l p ro c e e d in g s , ex ce p t th o s e g iv e n in
a prelim in ary investigation b y specific provision o f then
S ec. 1(f), R u le 115, p ro v id e d the a d v erse p a rty had
the opportu nity to cross-exam ine. T his rule w as later
liberalized, insofar as crim inal cases are concerned, by the
1985 Rules on Crim inal Procedure as explained in N ote 4,
infra. U nder the present am endm ent, such testim ony is
also adm issible even if given in a former case or proceeding,
ju dicial or adm inistrative.
3. S u bsequ en t failu re or refu sal to appear at the

second trial, or h ostility since testifying at the first trial,
797
does not am ount to inability to testify. Such inability

should proceed from a grave cause, alm ost am ounting to
death, as w hen the w itness is old and has lost the pow er
o f speech. W here the w itnesses in question are available,
but they refused to testify, they do not com e w ithin the
legal purview o f those “unable to testify” contem plated in
Sec. 47, Rule 130 (Tan, et al. vs. CA, L-22793, M ay 16,
1967; Toledo, Jr. vs. P eople, et al., L -36603, Sept. 30,
1978).
4. In A ldecoa vs. Jugo, etc., et al. (61 Phil. 374), and

reiterated in People, et al. vs. Villaluz, etc., et al. (L-33459,
Oct. 20, 1983), the Suprem e Court held that testim ony
given by a w itness in a civil case is not adm issible in a
subsequent crim inal case, even if said w itness had died in
the interim , because the form er testim ony referred to in
S ec. 15 o f G .O . N o. 58 (la ter, S ec. l [ f ] , R u le 115 o f
the 1964 Rules o f Court) as being adm issible in the trial
o f the crim in a l case refers to testim on y given in the
prelim inary investigation or prior trial o f said crim inal
case and not to testim ony taken in a prior civil case, the
a ctio n s b e in g e s s e n tia lly d iffe r e n t. F rom p a r ity o f
reasoning, testim ony given in a form er crim inal case by a
w itn e s s w h o d ied th e r e a fte r w o u ld lik e w is e n ot be
adm issible in the trial o f a civil case, since the actions are
essentially different and do not involve the sam e subject
m atter, issues and parties; although in one case, it w as in
effect h eld that the testim on y o f a w itn ess in a prior
crim inal action for libel as to the reputation o f the offended
party w ould be adm issible in the civil case arising from
the same crim inal offense if said w itness w as no longer
available (G uevara vs. Alm ario, et al., 56 Phil. 476).
How ever, under the form er Sec. 1(f) o f Rule 115 (as
am ended in the 1985 Rules on Crim inal P rocedure) either
party could utilize the testim ony o f a w itness who is no
longer available, w hether the same was given in another
798
case , ju d icial or adm inistrative, but involving the same

parties and subject m atter, with the adverse party having
had the opportu nity to cross-exam ine said w itness. The
same rule has now been adopted and m ade o f general
application in the present revision o f this Rule.
5. The adm issibility o f a prior jud gm ent, and not the

previous testim ony, in a crim inal action is governed by
differen t rules. A ju dgm en t in a crim in al proceedin g,
and this rule applies w ith equal, if not greater, force to
adm inistrative proceedings, cannot be read in evidence in
a civ il action against a person not a party th ereto to
esta blish any fact th erein determ ined. T he m atter is
res in ter a lios and can n ot be in vok ed as res ju d ic a ta
(Alm eida Chantangco, et al. vs. A baroa, 40 Phil. 1056).
Such ju dgm en t m ay only be adm itted in eviden ce in a
civil case by w ay o f inducem ent, or to show a collateral
fact relevant to the issue in the civil action (Ed. A. K eller
& Co. [L td .] vs. E llerm an & B u ckn all S team sh ip Co.,
[L td .], et al., 38 Phil. 514; City o f M an ila vs. M an ila
E lectric Co., 52 Phil. 586).
Said ju dgm en t cannot, in a civil action arising from

the com m ission o f a crim e, or in w hich the com m ission
o f said crim e is collateral, be adm itted to prove p la in tiff’s
cause o f action, or defen d an t’s defense, and w h atever
findings o f fact are made by the trial court in the decision
are not binding upon the parties to the civil action. The
ju dgm en t can only prove that a certain defendant has
been con victed o f a crim e and sentenced to the penalty
therein im posed (Aram bulo vs. M anila E lectric Co., 55
Phil. 75). W hatever inform al expressions o f view s w ere
m ade by the court therein have no probative value. They
am ount to n oth in g m ore th a n an ord er for ju d gm en t,
w hich is not part o f the judgm ent [C ontreras, et al. vs.
Felix, et al., 78 Phil. 570] (R ebullida vs. E strella, 55 O.G.
10553).
799
RULE 130 REMEDIAL LAW COMPENDIUM SEC. 48-50
Thus, the judgm ent in the crim inal proceeding cannot

be read in evidence in the civil action to establish any fact
th erein determ ined even though both actions involve the
sam e act or om ission. The reason for this rule is that the
parties are not the same and different rules o f evidence
are applicable to each case (M anantan vs. CA, et al., G.R.
No. 107125, Jan. 29, 2001, citing A lm eida Chantangco,
et al. vs. Abaroa, supra, 218 U.S. 476, 54 L. ed. 1116
[1 9 10 ]).
6. H ow ever, it was subsequently held that a ju d g -

m ent o f conviction, in the absence o f collu sion betw een
th e a ccu se d and the o ffe n d e d p a rty , is b in d in g and
c o n c lu s iv e u p o n th e p e r s o n s u b s id ia r ily lia b le not
only w ith regard to his subsidiary liability but also w ith
re g a r d to th e a m o u n t t h e r e o f (M ira n d a vs. M a la te
G arage & Taxicab, Inc., 99 Phil. 670). Said judgm en t
is accordingly adm issible in evidence in the civil action
brou gh t to enforce said subsidiary liability (cf. P ajarito
vs. Seneris, etc., et al., L-44627, Dec. 14, 1978).
7. O pinion Rule
Sec. 48. General rule. — The opinion o f a witness

is n o t a d m is s ib le , e x c e p t as in d ic a t e d in th e
follo w in g sections. (42)
Sec. 49. O p in io n o f e x p e r t w it n e s s e s . — T h e
opinion o f a w itness on a m atter requ irin g special
know led ge, skill, experience or train in g w hich he
is show n to possess, m ay be received. (43a)
Sec. 50. O p in ion o f o rd in a ry w itn esses. — The

opinion o f a w itness for w hich proper basis is given,
m ay be received in evidence regard ing —
(a) the identity o f a person about w hom he has
800
adequate know ledge;
(b) a hand w ritin g with which he has sufficient

fam ilia rity; and
(c) the m ental sanity o f a person with w hom he

is su fficien tly acquainted.
The w itness m ay also testify on his im p ressions

o f the em otion, behavior, condition or appearance
o f a person. (44a)
NOTES
1. Sec. 48 is the general rule on opinion evidence,

w hile Secs. 49 and 50 are the exceptions thereto.
2. The opinion o f a w itness is adm issible in evidence

in the follow ing instances:
(a) On a m atter requiring special know ledge, skill,

experience or training w hich he possesses, that is, w hen
he is an expert thereon;
(b) R ega rd in g the id e n tity or the h a n d w ritin g o f

a p e rs o n , w h e n h e h as k n o w le d g e o f th e p e r s o n or
h andw riting, w hether he is an ordinary or expert w itness
(see Sec. 22, Rule 132);
(c) On the m ental sanity o f a person, if the w itness

is su fficiently acquainted w ith the form er or if the latter
is an expert w itness;
(d) O n th e e m o tio n , b e h a v io r , c o n d i t i o n or
appearance o f a person w hich he has observed; and
(e) On ordinary m atters known to all men o f com m on

perception, such as the value o f ordinary household articles
(G alian vs. State A ssu rance Co., Ltd., 29 Phil. 413).
801
3. A n expert w itn ess is one w ho b elon g s to the

profession or calling to w hich the subject m atter o f the
in q u iry rela tes and who possesses sp ecia l k n ow ledge
on q u e s t io n s on w h ich h e p r o p o s e s to e x p r e s s an
opinion. There is no definite standard o f determ ining
the degree o f skill or k n ow ledge that a w itn ess m ust
possess in order to testify as an expert. It is sufficient
that the follow ing factors be present: (a) tra in in g and
education; (b) particular, first-hand fam iliarity w ith the
fa cts o f the case; and (c) p resen ta tion o f a u th orities
or stan dards upon w hich his opin ion is b ased (P eople
vs. A briol, G.R. No. 123137, Oct. 17, 2001).
Expert evidence is adm issible only if (a) the m atter to
be testified to is one that requires expertise, and (b) the
w itness has been qualified as an expert. H ypothetical
questions may be asked o f an expert to elicit his opinion.
C ou rts, h o w e v e r, are n ot n e c e s s a r ily b o u n d by the
e x p e rt’s fin d in gs (P eop le vs. F loren d o, 68 P h il. 619).
G enerally, expert evidence is regarded, not as conclusive,
but p u re ly a d visory in ch a ra cter (P eople vs. D eauna,
G.R. Nos. 143200-01, Aug. 1, 2002).
4. Some decisional rules on expert evidence have
been laid down by our appellate courts, viz.:
a. T he rule in A m erican ju risp ru d en ce is that in
w eighing the testim ony o f an expert w itness, courts m ust
n ecessarily con sider all the circum stances o f the case,
am ong them his qualifications, experience and degree of
learning, the basis and logic o f his conclusion, and the
other evidence of record. It has been held that the value
o f expert testim ony depends largely on the extent o f the
experience or studies o f the w itness, because the greater
his experience or knowledge, the greater is the value o f
his opinion resting upon the same (W ells vs. Leek, 151 Pa.
431, 439, 25 Atl. 101; H anley vs. West Virginia, etc., 59
W. Va. 419, 430, 53 S.E. 625).
802
I). 11 has also been held in our ju risd iction that, w ith
respect to a handw riting expert, the value o f his opinion
deponds not upon his mere statem ent w hether a w riting
is genuine or false, but upon the assistance he m ay afford
in pointing out distinguishing marks, characteristics and
discrepancies in and betw een genuine and false specim ens
o f w r itin g w h ich w o u ld o r d in a r ily e s ca p e n o tic e or
detection by an untrained observer (U.S. vs. Kosel, 24 Phil.
594; People vs. Florendo, 40 O.G. [2nd Supp.] 224).
c. W hether or not courts are bound by the testim ony
o f an expert depends greatly upon the nature of the subject
o f inquiry. I f the same is one that falls w ithin the general
k n o w le d g e o f ju d g e s , c o u r ts a re n ot b o u n d by th e
conclusions o f even a real expert along such line (Paras
vs. N arciso, 35 Phil. 244; D olar vs. D iansin, et al., 55 Phil.
479). It is only w here the subject o f inquiry is o f such a
te ch n ica l nature th a t a laym an can p ossib ly have no
know ledge th ereof that courts must depend and rely upon
expert evidence (Raym undo vs. Legaspi, 47 O.G. 807, cited
in N A R IC vs. F irst N ational Security & A ssu rance Co.,
Inc., et al., [CA], 64 O.G. 10607).
d. C o n flictin g ex p ert e v id en ce have n e u tra lizin g

effect on contradictory conclusions. They generate doubt
(People vs. Sy Yen, et al., [CA], 67 O.G. 9645). W here
the su pposed ex p ert’s testim on y w ould con stitu te the
sole ground for con viction and there is equally expert
testim ony to the contrary, the constitutional presum ption
o f in n ocen ce m ust preva il (C esa r vs. S an d igan bayan ,
et al., G.R. Nos. 54719-50, Jan. 17, 1985; Siasat, et al.
vs. IAC, et al., G.R. No. 67889, Oct. 10, 1985).
e. Expert evidence on handw riting is, at best, weak

an d u n s a tis fa c to r y . L ess w e ig h t sh ou ld be g iv e n to
inferences from com parison, than to direct and credible
testim onies o f w itnesses as to the m atters w ithin their
803
personal observation (Cirujano vs. PNB, [CA], 59 O.G.

8404). The d ecision s o f b oth P h ilip p in e an d U n ited
States courts are to the effect that p roof o f handw riting
by com parison is in most cases unsafe, even w hen several
docum ents are used as bases for com parison (D A n g elo vs.
N ocilasi, 2 So. 2nd, 216); that positive testim on y o f a
credible w itness to the effect that the testator signed the
w ill in his presence is not overcom e by the opin ion of
handw riting experts (In re M iller’s Will, 229 N.W. 656);
th a t e v id e n ce by co m p a riso n o f h a n d w ritin g is very
unreliable (H ardy vs. Harbin, 154 U.S. 598). The expert
evidence given by the p la in tiff’s handw riting expert can
not overcom e the positive testim ony of the notary public
h im self before whom the deed o f donation w as ratified,
and that o f the other two w itnesses to the execution and
signing o f the docum ent (Beraha, etc. vs. Rillom a, et al.,
[CA], 55 O.G. 2488, citing M arvel B uilding Corp., et al.
vs. David, etc., 94 Phil. 376). For a contrary ruling, see
Lopez vs. CA, et al. (L-31494, Jan. 23, 1978).
f. As a rule, the opinions o f handw riting experts are

not necessarily binding upon the courts, m ore so w here
the expert was not presented as a witness to give the party
a d v e rs e ly a ffected by h is o p in ion the o p p o rtu n ity to
cross-exam ine him (Encabo vs. Cebu P ortland Company,
L -17571, D ec. 17, 1966). T he opin ion o f h a n d w ritin g
experts are not conclusive upon the court (M oore on Facts,
S ec. 642; C a la n gi vs. A m u ra o, C A -G .R . N o. 2278-R ,
D ec. 10, 1948; Incion vs. Lum bera, CA-G.R. No. 58578,
N ov. 2, 1982). W h ere th e q u e s tio n o f s im ila r ity or
d is s im ila r it y ca n be c le a r ly d e te r m in e d b y a m ere
com parison o f the existing signatures, the opinion o f a
handw riting expert is not necessary for a correct resolution
by the court (People vs. A gam ata, [CA], 64 O.G. 2735).
The law makes no preference among or any distinction

b e tw e e n the m ean s sta ted in th is R u le to p rove the
804
handw riting o f a person. A s already stated, the courts

are also not bound to give probative value to the opinions
o f handw riting experts and resort to their services is not
m andatory (D om ingo vs. Dom ingo, et al., G.R. No. 150897,
A pril 11, 2005).
g. The authenticity o f a questioned signature cannot

be determ in ed solely upon its general ch aracteristics,
sim ilarities, or dissim ilarities w ith the genuine signature.
D issim ilarities as regards spontaneity, rhythm , pressure
o f the pen, loops in the strokes, signs o f stops, safes, etc.,
that may be found betw een the questioned signature and
the genuine one are not decisive on the question o f the
fo r m e r’s a u th en ticity. The resu lt o f e x a m in a tio n s o f
qu estion ed h a n d w ritin g, even w ith the b en efit o f aid
o f experts and scientific instrum ents, is, at best in con -
clusive. There are other factors that m ust be taken into
consideration. The position o f the w riter, the condition
o f the surface on w hich the paper w here the questioned
signature is w ritten is placed, his state o f mind, feelings
and nerves, and the kind o f pen and paper used, play an
im portant role on the general appearance o f the signature.
Unless, therefore, there is, in a given case, absolute absence
or m anifest dearth o f direct or circum stantial com petent
evidence on the character o f the questioned handw riting,
m uch w eight should be given to characteristic sim ilarities
or dissim ilarities between the questioned handw riting and
the authentic ones (Lorenzo, et al. vs. Diaz, [CA], 53 O.G.
4107).
h. It is o f com m on know ledge that the w ritin g o f a

person changes as tim e elapses. A person ’ s signature
m ay ch an ge as h e advances in years. The trem orou s
characteristics o f the w riting depend upon the conditions
and circum stances o f the tim e. The pen stops or join ts in
the line o f w riting, indicating retouching, m ay also occur
even w hen the w riting is made by sexagenarians. The
805
difference in the construction and direction o f signatures

may happen even if the writing is made by a normal person.
Also, from the ink alone, either ordinary irongall ink or
logw ood ink, it is im possible to determ ine: (1) w hether an
ink w riting is one year old or three years old or four years
old, or six, or five or eight or tw elve years old; (2) that a
w riting is a few m onths old but not a year old; (3) w hether
a w riting is ten days old or thirty days old; (4) that one
w riting m ay be ten or tw elve years old but that it is not
tw enty years old; (5) that a w riting that m ay be tw enty
years old is not th irty or forty years old; (6) w heth er
nigrosine, India or carbon ink is ten days, ten w eeks, ten
m onths, or ten years old; (7) w hether a colored ink — red,
blue, or purple — is ten days, ten w eeks, or ten years old;
(8) that an ordinary pencil w riting or a colored copying
pencil w riting is not ten days or ten weeks or ten m onths
or ten years old [Osborn, Q uestioned D ocum ents, 2d Ed.,
p. 465] (Bayanid vs. Reyes, [CA], 53 O.G. 4877).
i. The fact that, in a particular litigation, an NBI

expert exam in es certa in con tested docu m en ts, at the
request, not o f a public officer or agency o f the G overn-
ment, but o f a private litigant, does not necessarily nullify
the exam in ation made. Its purpose is, presum ably, to
assist the court having ju risdiction over said litigation in
the perform ance o f its duty to settle correctly the issue
relative to said docum ents. Even a non-expert private
in d iv id u a l, m ay exam in e the sam e, if th ere are facts
w ithin his know ledge w hich m ay help the court in the
determ ination o f said issue. Such exam ination, which
m ay p rop erly be u n dertak en by a n on -exp ert private
in d iv id u a l, does n ot c e r ta in ly b ecom e n u ll and void
w hen the exam iner is an expert and/or an officer o f the
NBI (Sali vs. Abubakar, et al., L-24439, Aug. 29, 1966).
j. In People vs. M endoza (G.R. No. 67658, June 29,

1989), th e S u p rem e C ou rt q u oted w ith a p p rov a l the
806
follow ing com m entary: “The (D iphenylam ine or P araffin)

test is not conclusive as to the presence o f gunpow der
because fertilizers, cosm etics, cigarettes, urine and other
nitrogenous com pounds with nitrites and nitrates w ill give
a positive reaction (Solis, Legal M edicine, 380 [1987]).
T h is (D ip h e n a lin e or P a r a ffin ) te s t h a s p ro v e d
extrem ely unreliable in use. The only thing that it can
d e fin it e ly e s t a b lis h is th e p r e s e n c e o r a b s e n c e o f
nitrates or nitrites on the hand. It cannot be definitely
established from this test alone that the source o f the
n itra tes or n itrites w as d isch a rge o f a firea rm . T he
person m ay have handled one or more o f a num ber o f
su b stan ces w h ich give th e sam e p ositiv e rea ction for
n itr a te s or n itr ite s , su ch as e x p lo s iv e s , fir e w o r k s ,
fertilizers, pharm aceuticals and legum inous plants such
as peas, beans, and alfalfa. A person who uses tobacco
m ay also have nitrate or nitrite deposits on his hands
since these su bstan ces are presen t in the prod u cts o f
com bustion o f tobacco. As a result, the usefulness o f this
test as evidence is very small, although it does have some
in vestigative value (5 Am. Jur. 119-120 [I960]).” See also
P eople us. Pascua, Jr. (G.R. No. 130963, Nov. 27, 2001).
k. A finding that the paraffin test yielded negative

results is not conclusive evidence that the accused had
not fired a gun. It is possible for a person to have fired a
gun and yet be negative for the presence o f nitrates, as
w hen he w ore gloves or w ashed his hands afterw ards.
(P eople vs. Castillon III, et al., G.R. No. 132718, Oct. 5,
2001, citing cases).
1. E ven if a gun is fired at a lon g d ista n ce, the

possibility o f the presence o f pow der nitrates in the clothes
o f the victim is not rem ote. For the bullet m ay be stained
w ith carbonized pow der during the initial explosion and
part o f this m ay be left on the periphery o f the point o f
807
this entrance [Angeles, Legal M edicine, 1954 ed., p. 254],

In such a case, the finding o f the physician tending to
show the d ista n ce o f the gun from th e v ictim is not
conclusive evidence (People vs. Cagurangan, [CA], 57 O.G.
1593).
m. R ecogn ized m edico-legal auth orities are one in

saying that w hen a revolver is fired in contact w ith the
body, th ere is u su a lly a good deal o f b la ck e n in g and
burning around the wound. W hen the range is about six
inches, there is generally an absence o f burning although
there w ill p robably be som e evidence o f b ru sh in g and
o f pow der m arks. At a range o f about tw elve inches or
over, the skin around the wound, does not as a rule, show
evidence o f pow der m arks. At a range beyon d tw o or
three feet, little or no trace o f pow der can be observed
(People vs. M arahon, [CA], 51 O.G. 1959).
n. In this jurisdiction, as is the w eight o f authority

in the U nited States and E urope, the results o f blood
grou p in g tests on the filiation o f a child, com peten tly
co n d u cte d b y q u a lifie d p e rs o n s , are a d m is s ib le and
co n clu siv e on the n on -p a tern ity o f a p erson o v er the
child. I f the blood type o f the child is not the possible
blood type w hen the blood o f the m oth er and th at o f
the alleged fath er are crossm atch ed, the ch ild can n ot
p ossib ly be th at o f th e su p p osed fa th er. S u ch tests,
how ever, are in con clu sive to affirm p a tern ity b u t can
o n ly sh o w a p o s s ib ilit y o f th a t fa c t, a b s e n t o th e r
ev id e n tia ry con sid era tion s ten d in g tow ard s th a t co n -
clusion. It is also opined by som e w riters that the tests
m ay have som e probative value to establish patern ity
w here the blood type and the com bination in the child
is a rare condition, in which case the judge is given som e
degree o f d iscretion in his d eterm in ation o f the issue
(Co Tao vs. CA, et al., 101 Phil. 188; Jao, et al. vs. CA,
et al., L-49162, July 28, 1987).
808
o. It should be noted that the Suprem e Court has

categorically declared the adm issibility o f D N A evidence,
thus w riting finis to previous disputes on this point.
(1 In P eople us. Vallejo (G.R. No. 144656, M ay 9,

2002), it briefly explain ed that D N A (deoxyribon u cleic
acid) is an organic substance found in a person’s cells which
contains his or her genetic code. Except for identical twins,
each person ’s D N A profile is distinct and unique.
W hen a crime is com m itted, m aterial is collected from

the scene o f the crim e or from the victim ’s body for the
suspect’s DNA. T hat m aterial con stitu tes the evidence
sam ple w hich is then m atched w ith the reference sam ple
taken from the suspect and the victim , and th ese are
subjected to various chem ical processes to determ ine their
profiles. If the sam ples are different, this con clu sion is
absolute and requires no further analysis. I f the results
are in con clu sive, variou s parts o f the analysis m ay be
repeated w ith the sam e or differen t sam ples to obtain
a m ore co n clu siv e resu lt. I f the sam ples are sim ila r,
the analyst determ ines the statistical sign ificance o f the
similarity.
In assessing the probative value o f D N A evidence, it

is necessary to consider, inter alia, how the sam ples were
c o lle c te d , how th ey w ere h a n d led , th e p o s s ib ility o f
con tam ination o f the sam ples, the procedure follow ed in
a nalyzing the sam ples, the determ ination o f w hether or
not the proper standards and procedures w ere follow ed in
conducting the tests, and the qualifications o f the analyst
who condu cted those tests.
For a discussion and admission o f this highly technical
and unique type o f evidence in a prosecution for the special
crim e o f rape w ith hom icide, see P eople us. Yatar (G.R.
No. 150224, M ay 19, 2004).
809
(2) In H errera vs. Alba, etc., et al. (G.R. No. 148220,

June 15, 2005), D N A testing was utilized as a forensic
tool in a paternity case, seeking com pulsory recognition,
support and dam ages, the Suprem e Court observed that
the past and present tests involved a credibility contest
betw een claim s of the m other and denials o f the putative
father, the date o f birth o f a child to spouses subject to
presum ptions o f law, the physical resem blance betw een
the child and the alleged father, the rules o f evidence on
pedigrees, the incrim inating verbal and w ritten acts o f
the putative father, and blood-grouping tests.
D N A evidence is the latest and appears to be less
susceptible o f error since it is the fundam ental building
block o f a person’s entire genetic m ake-up, is found and is
the same in all cells o f the sam e person and is unique for
every person, except identical twins. Parenthetically, it
is accepted that it does not violate the right against self-
incrim ination.
Previous A m erican and P hilippine decisions on the
adm issibility o f D N A test results w ere not decisive at
first and, in fact, w avered in some, but that w as to be
expected due to the novelty and rarity o f their involvem ent
in ju dicial proceedings. The present rule recognizes the
validity o f and gives official recognition to D N A test results
arising from properly conducted standards and procedures
in the collection, handling, and analysis o f the sam ples by
a qualified analyst.
W h ile w e h a v e c o m p a r a t iv e ly lib e r a l r u le s on
adm issibility, the persuasion is that the probative value
or w eight o f the DN A analysis should be subjected to the
exactin g requisites o f evaluation. Thus, adoptin g the
h ighest standard follow ed in an A m erican ju risdiction ,
trial courts should require at least 99.9% as the m in i-
mum num erical estim ate for the likelihood or probability
of paternity. DNA analysis that excludes the putative
810
father should be conclusive p ro o f o f non -patern ity. If

the probability is less than 99.9%, the result should be
considered as corroborative evidence. I f the probability
is 99.9% or higher, then there is a refutable presum ption
o f paternity.
(3) The same results and holdings, arising from a

survey o f P hilippine and foreign laws and jurispru den ce,
w ere arrived at in A gustin vs. Court o f A ppeals, et al.
(G.R. No. 162571, June 15, 2005), likew ise a paternity
case involving the same reliefs prayed for. E xpectedly,
the Suprem e Court sum m arily disregarded the claim o f
the resp on d en t pu tative fath er that req u irin g him to
subm it to a D N A test violates his rights to privacy and
against self-incrim ination.
(4) On O ctober 2, 2007, the Suprem e Court adopted

in A .M . N o. 0 6 -1 1 -5 -S C th e R ule on D N A E vid en ce,
w hich took effect on O ctober 15, after due pu b lication
(see A ppen d ix K K ).
p. O n the m atter o f evid en ce ob ta in ed by sound

record in g, th e Suprem e Court has a ffirm ed th a t it is
not inadm issible because o f its form , w here the proper
foundation has been laid to guarantee its genuineness.
A tape recording is adm issible and given probative value
provided the follow ing requisites are first established,
with adequate show ing that (1) the recording device was
capable o f taking testim ony; (2) the operator o f the device
was com petent; (3) no changes, additions or deletions have
been made; (4) the testim ony was elicited and voluntarily
m a d e w it h o u t a n y k in d o f in d u c e m e n t ; (5 ) th e
establishm ent o f the authenticity and correctness o f the
recording; (6) the identity o f the speakers; and (7) the
m anner o f the preservation o f the recording.
C itin g U .S . ju r is p r u d e n c e , it ra m ifie d th a t th e
sa tisfactory testim on y o f the operator o f the device as
811
to its operation, m ethod o f operating, iden tities o f the

sp ea k ers and a ccu ra cy o f the re co rd in g s su ffice s for
their adm ission. A w itn ess’ declaration that the sound
r e c o r d in g r e p r e s e n ts a tru e p o r tr a y a l o f th e v o ice s
therein satisfies the requirem ent o f authentication. In
fine, the party seeking the adm ission in evidence o f a
tape recordin g bears the burden o f producing sufficient
e v id e n ce sh o w in g th a t the re c o rd in g is an a ccu ra te
reproduction o f the recorded conversation (Torralba us.
People, G.R. No. 156699, Aug. 22, 2005).
q. The testim ony o f a witness skilled in the unw ritten

law o f a foreign cou ntry is not n ecessa rily b in d in g on
our courts (Bryan us. E astern & A ustralian S.S. Co., Ltd.,
28 Phil. 310).
8. Character Evidence
Sec. 51. Character evidence not generally adm issible;

exceptions: —
(a) In C rim inal Cases:
(1) T he a c cu se d m a y p ro v e h is go o d m o r a l
c h a ra cte r w h ich is p e rtin e n t to th e m o ra l tr a it
involved in the offense charged.
(2) U nless in rebuttal, the p rosecution m ay not
prove his bad m oral character w hich is p ertinent
to the m oral trait involved in the offense charged.
(3) The good or bad m o ra l c h a r a c te r o f the
offended party m ay be proved if it tends to establish
in any reasonable degree the p rob ability or im prob-
a bility o f the offense charged.
(b) In C ivil Cases:
E vidence o f the m oral character o f a party in
c iv il cases is ad m issib le on ly w hen p ertin e n t to
812
the issue o f character involved in the case.

(c) In th e c a s e p r o v id e d fo r in R u le 1 3 2 ,
Section 14. (46a, 47a)
NOTES
1. The rules on the adm issibility o f character evidence

m ay be sum m arized as follow s:
a. In crim in a l cases, the p rosecu tion m ay not at
the outset prove the bad m oral character o f the accused
w h ich is p ertin e n t to the m oral trait in volved in the
offense charged. I f the accused, how ever, in his defense
a ttem pts to prove his good m oral ch a ra cter, th en the
p rosecu tion can in trodu ce evidence o f such bad m oral
character at the rebuttal stage.
b. A lso in crim in a l cases, the good or bad m oral
character o f the offended p a rty m ay alw ays be proved by
eith er party as long as such evidence tends to establish
the probability or im probability o f the offense charged.
c. In civil cases, the m oral character o f either party
thereto can not be proved unless it is pertinent to the issue
o f character involved in the case.
d. In both civil and crim inal cases, the bad m oral
character o f a w itness may always be proved by either
party (Sec. 11, R ule 132), but not evidence o f his good
character, unless it has been im peached (Sec. 14, id.).
2. In crim inal cases, the prosecution cannot in itially
attack the character o f the accused and can only do so if
the accused opens that issue by in troducing evidence of
his good m oral ch aracter w hen he m akes his defense.
T his is intended to avoid unfair prejudice to the accused
who m ight otherw ise be convicted not because he is guilty
o f the charge but because he is a person o f bad character.
813
3. W ith respect to the nature or substance o f the

character evidence which may be adm issible, the rules
require that:
(a) W ith re s p e ct to th e a ccu sed , su ch ch a ra cte r

evidence m ust be “pertinent to the m oral trait involved in
the offen se ch a rg ed ,” e.g., in p rosecu tion s for estafa,
perjury or false testim ony w herein the person’s m oral trait
for honesty or probity is involved;
(b) W ith respect to the offended person, it is sufficient
th a t su ch ch a ra cte r ev id e n ce “ m ay e s ta b lis h in an y
reasonable degree the probability or im probability o f the
offense charged,” as in prosecutions for rape or consented
abduction w herein the victim ’s chastity may be questioned,
and in prosecutions for hom icide w herein the pugnacious,
quarrelsom e or trouble-seeking character o f the victim is
a proper subject for inquiry; and
(c) W ith respect to witnesses, such character evidence
m ust refer to his “general reputation for truth, honesty or
integrity,” that is, as affecting his credibility.
4. H ow ever, and as an exception to the foregoing,
p ro of o f the bad character o f the victim in a m urder case
is not adm issible if the crim e was com m itted through
treachery or prem editation (People vs. Solim an, et al., 101
P h il. 767), in th e sam e m a n n er th a t th e bad m ora l
character o f a victim in a rape case is not adm issible if the
crim e w as com m itted by violence or intim idation (People
vs. Blance, 45 Phil. 113; People vs. Taduyo, L-37928-29,
Sept. 29, 1987).
5. In civil cases, for character evidence o f a party to
be adm issible, the issue involved m ust be character, as,
for exam ple, in civil actions for dam ages arising from the
offenses of libel, slander or seduction.
814
B. BUR DEN OF PROOF AND
W H AT NEED NOT BE PROVED
RULE 131
B U R D EN OF PROOF AN D P R ESU M PTIO N S
1. Burden o f P roof
Section 1. B urden o f p ro o f. — B urden o f p ro o f is

the duty o f a party to present evidence on the facts
in issue necessary to establish his claim or defense
by the am ount o f evidence required by law. (la , 2a)
NOTES
1.. The burden o f proof, or “onus p ro b a n d i,” is the

obligation im posed upon a party who alleges the existence
o f fa cts n ecessa ry for the p rosecu tion o f his action or
defense to establish the same by the requisite quantum of
evidence.
a. In civil cases, the quantum o f evidence required
to sustain the proponent o f an issue is preponderance
o f evidence (Sec. 1, R ule 183). In crim inal cases, form erly
the qu antum o f ev id en ce w as as follow s: (1) F or the
issuance o f a w arrant o f arrest after prelim inary exam -
in ation , evidence o f probable cause, i.e., th a t th ere is
r e a s o n a b le g ro u n d to b e lie v e th a t th e a ccu s e d h a s
com m itted an offense (Algas vs. Garrido, etc., A.M . No.
289-M J, Nov. 15, 1974; Sec. 1, R ule 112); (2) To w arrant
the filin g o f an inform ation, p rim a facie evidence; and
(3) To su sta in a con v iction , ev id en ce o f gu ilt b eyon d
reasonable doubt (Sec. 2, R ule 133). For the changes
with respect to prelim inary investigation, see Note 4 under
Sec. 1, Rule 112.
815
C h a r g e s o f m is c o n d u c t a g a in s t ju d g e s r e q u ir e
clear and convincing evidence (Pesole vs. R odriguez, A.M .
No. 755-MJ, Jan. 31, 1978), w hile the ground for their
rem oval should be established beyond reasonable doubt
(R aqu iza vs. C astaneda, Jr., etc., A .M . No. 1312-CF1,
Jan. 31, 1978). In agrarian cases, all that is required is
“substantial evidence” (Sec. 18, P.D. 946). S ubstantial
evidence does not n ecessarily im port preponderance o f
evidence, as in civil cases, but only such relevant evidence
as a re a s o n a b le m in d m ig h t a cce p t as s u ffic ie n t to
support a conclusion (Tolentino, et al. vs. CA, et al., G.R.
No. 56265, M ay 20, 1987). This definition and quantum
o f evidence has now been adopted for cases filed before
adm inistrative or quasi-judicial bodies (Sec. 5, Rule 133).
2. In civil cases, the burden of p roof is on the party
who w ould be defeated if no evidence were given on either
side; in crim inal cases, the burden o f p roof is alw ays on
the prosecution. Thus, in civil cases, the burden o f p roof
is generally on the plaintiff, w ith respect to his com plaint;
on the defendant, w ith respect to his counterclaim ; and
on the cross-claim ant, w ith respect to his cross-claim .
3. The burden o f p ro of and the burden o f evidence
im posed upon the parties m ay be distinguished as follow s:
a. The burden o f p roof does not shift as it rem ains
th rou gh ou t th e tria l w ith the p a rty upon w hom it is
im posed; the burden o f evidence shifts from party to party
depending upon the exigencies o f the case in the course
o f the trial (see B autista, et al. vs. Sarm iento, etc., et al.,
L-45137, Sept. 29, 1985).
b. The burden o f p ro o f is generally determ ined by
the pleadings filed by the party; the burden o f evidence is
generally determ ined by the developm ents at the trial, or
by the provisions of the substantive law or procedural rules
w hich m ay relieve the party from presenting evidence on
816
RULE 131 BURDEN OF PROOF SEC. 1
AND PRESUMPTIONS
the fact alleged, i.e., presum ptions, ju d icia l notice and

admissions.
4. In both civil and crim inal cases, the burden o f
evidence lies w ith the party w ho asserts an affirm ative
allegation. Thus, the plain tiff has to prove his affirm ative
allegations in the com plaint and the defendant has to prove
the affirm ative allegations in his counterclaim and his
affirm ative defenses. In crim inal cases, the prosecution
has to prove its affirm ative allegations in the indictm ent
re g a rd in g th e elem en ts o f th e crim e, as w e ll as the
attendant circum stances; w hile the defense has to prove
its a ffirm a tiv e a lleg a tion s rega rd in g th e ex iste n ce o f
ju stifyin g or exem pting circum stances, absolutory causes
or m itigating circum stances.
5. In b o th c i v i l a n d c r im in a l c a s e s , n e g a t iv e
allegations do not have to be proved except w here such
negative allegations are essential parts o f the cause o f
action or defense in a civil case, or are essential ingredients
o f the offense in a crim inal case or the defenses thereto
(Industrial Finance Corp. vs. Tobias, L-41555, July 27,
1977). Thus, in a civil case for breach of contract, the
p la in tiff h as to prove the fact that the d efen d an t did
not com ply w ith his obligation thereunder (H ospicio de
San Jose vs. F indlay M illar Tim ber Co., et al., 50 Phil.
227) as, although this is a negative allegation, it is an
elem ent o f the p la in tiff’s cause o f action. In a crim inal
case for illegal possession o f firearm s, the prosecution has
to prove the absen ce o f a licen se th erefor (P eop le vs.
P a jen a d o , L -2 7 6 8 0 -8 1 , F eb. 27, 1970; see P eo p le vs.
M acagaling, G.R. Nos. 109131-33, Oct. 3, 1994, w hich
re ite ra te s and ex p la in s th e p re s e n t d octrin e on th is
m atter) even by p rim a facie evidence, as the prosecution
has con trol o f the better means o f proof. Also, in crim inal
cases, in crim es o f om ission, the prosecution has to prove
the non-perform ance by the accused o f the required act
817
r
as, although that fact is a negative allegation, still such

non-perform ance is either an essential ingredient o f the
crim e or is itself the indictable offense.
H ow ever, in civil cases, even if the negative allega-
tion is an essential part o f the cause o f action or defense,
such negative allegation does not have to be proved if it
is on ly for th e pu rpose o f den yin g the ex isten ce o f a
docum ent w hich should properly be in the custody o f the
adverse party. Thus, where the p lain tiff contends that
the defendant has no w ritten authority to dispossess the
p la in tiff o f the property, or to collect the sum dem anded
in the com plaint, it is for the defen dant to prove the
existence o f such docum ent.
6. The general rule is that if the crim inal charge is
predicated on a negative allegation or that a negative
averm ent is an essen tial elem ent o f a crim e, the p ro-
secution has the burden o f proving the charge. W here
the negative o f an issue does not perm it o f direct proof,
or w h ere the fa cts are m ore im m ed ia tely w ith in the
knowledge o f the accused, the onus probandi rests on him.
It is not incum bent upon the prosecution to adduce positive
evidence to support a negative averment the truth o f which
is fairly indicated by established circum stances and which,
if untrue, could readily be disproved by docum ents or other
evidence w ithin the know ledge or control o f the accused.
Thus, w here a charge is made that the accused carried on
a business w ithout a license, the fact that he has a license
is a m atter w hich is peculiarly w ithin his know ledge and
he m ust establish that fact or suffer conviction (People
vs. M acalaba, G.R. Nos. 146284-86, Jan. 20, 2003).
2. W hat Need Not Be Proved
The following facts need not be proved: (a) Facts which

are presum ed (Rule 131); (b) Facts w hich are o f ju dicial
818
AND PRESUMPTIONS
n otice (R u le 129); and (c) F acts w hich are ju d ic ia lly

adm itted (Rule 129).
a. Facts W hich Are Presum ed
1. A presum ption is an inference o f the existence or

non-existence o f a fact which courts are perm itted to draw
from the p roof o f other facts (13 C.J.S. 722).
2. In the law o f evidence, a distin ction sh ou ld be
draw n betw een the role o f presum ptions, ju dicial notice
and ju dicial adm issions. In the case o f presum ptions, the
prop on en t still has to in trod u ce ev id en ce o f the basis
o f the presum ption, that is, he has to introduce evidence
o f the existence or non-existence o f the facts from which
the cou rt can draw the in feren ce o f the fact in issue.
In the case o f ju dicial notice and ju dicial adm issions, as
a rule, the prop on en t does not have to in trod u ce any
evidence.
3. P resum ptions are classified into presum ptions o f

law (p ra esu m p tion es ju r is ) and p re su m p tio n s o f fact
(praesum ptiones hom inis). P resum ptions o f law are in
turn classified into conclusive (or absolute, or ju ris et de
ju re ) and disputable (or rebuttable, or ju ris tantum , or
prim a facie) presum ptions.
4. In re g a rd to p re s u m p tio n s o f la w , a c e r ta in
in fe r e n c e m u st be m ade w h e n e v e r th e fa cts a p p e a r
w hich furnish the basis o f the inference; in the case o f
presum ptions o f fact, a discretion is vested in the tribunal
as to draw ing the inference. P resum ptions o f law are
reduced to fixed rules and form a part o f the system o f
ju rispruden ce; presum ptions o f fact are derived w holly
and directly from the circu m stan ces o f the pa rticu la r
case by m eans o f the com m on experien ce o f m ankind
(B la ck ’s Law D ictionary, 4th ed., p . 1349).
819
RULE 131 REMEDIAL LAW COMPENDIUM SEC. 2 - 3
(1) C onclusive P resum ptions
Sec. 2. Conclusive presum ptions. — The follow ing

are instances o f conclusive p resum ptions:
(a) W h enever a party has, by his own d eclara-
tion, act, or om ission, intentionally and deliberately
led another to believe a p articular th in g true, and
to act upon such belief, he cannot, in any litigation
arisin g out o f such declaration , act, or om ission, be
perm itted to falsify it;
(b) The tenant is not perm itted to deny the title
o f his landlord at the tim e o f the com m encem ent o f
the relation o f landlord and tenant betw een them .
(3a)
NOTE
1. Pars, (a) and (b) are based upon the doctrine of

estoppel in p a is (see Arts. 1431 to 1439, Civil Code). In
the law o f evidence, they are considered as con clu sive
presum ptions, that is, w ith respect to par. (a), the fact
w hich the party in estoppel has represented to be true is
con clu sively presum ed as against him to be true and he is
not perm itted to introduce evidence to the contrary (see
Lazo, et al. vs. R epublic Surety & Insu rance Co., Inc.,
L-27365, Jan. 30, 1970); and with respect to par. (b) the
ow n ersh ip o f the lan dlord at the start o f th e ten an cy
relation is conclusively presum ed as against the tenant
and the latter is not perm itted to dispute such fact.
(2) D isputable Presum ptions
Sec. 3. D isputable presum ptions. — The follow ing

p resu m p tion s are sa tisfactory if u n co n tra d icted ,
b u t m ay be con trad icted and overcom e by other
820
AND PRESUMPTIONS
evidence:
(u) That a person is innocent o f crim e or w rong;
(b) T h a t an u n la w fu l act w as done w ith an
unlaw ful intent;
(c) T h a t a p e r s o n in t e n d s th e o r d in a r y
consequen ces o f his voluntary act;
(d) T h at a p erson tak es o rd in ary care o f his
co n cern s;
(e) That evidence w illfully suppressed would be
adverse if produced;
NOTES
1. T h ere is no co n s titu tio n a l o b je c tio n to a law

p ro v id in g th a t th e p resu m p tion o f in n ocen ce m ay be
overcom e by a contrary presum ption founded upon the
e x p e r ie n c e o f h u m a n c o n d u c t, a n d d e c la r in g w h a t
e v id e n c e s h a ll be s u ffic ie n t to o v e r c o m e su ch p r e -
su m p tion o f in n ocen ce. T he le g isla tu re m ay p rovid e
fo r p rim a fa c ie evid en ce o f gu ilt p rovid ed th ere be a
ra tion a l con n ection betw een the facts proved and the
u ltim a te fa ct p resu m ed (P eop le vs. M in goa , 92 P hil.
856; V alla rta vs. CA, et al., L -40195, M ay 29, 1987).
Thus, the prim a facie presum ption o f guilt in Art. 217,
R evised P enal Code, is valid (B a casn ot vs. SancLigan-
bayan, et al., G.R. No. 60884, Nov. 5, 1987).
2. In ord er that the presu m ption in Par. (e) may

arise, it is necessary:
(a) T h a t th e e v id e n ce is m a te ria l (C u y u g a n vs.

Dizon, 79 Phil. 800);
(b) T hat the party had the opportu nity to produce

the same (People vs. Balansag, 60 Phil. 266); and
821
(c) That the said evidence is available only to said

party (People vs. Tulale, 97 Phil. 953).
3. The presum ption does not apply if the evidence in

question is equally available to both parties (Staples-H owe
P rintin g Co. vs. M anila B uilding and Loan Ass., et al.,
36 Phil. 417), or the evidence is m erely corrobora tive
(M odesto, et al. vs. Leyva, et al., 6 Phil. 186), or m erely
cu m u la tiv e (P eo p le vs. V ela yo, 96 P h il. 9 7 3 ), or is
unnecessary (N icolas vs. N icolas, 52 Phil. 265).
Hence, this presumption does not arise from the failure

o f the p rosecu tion to presen t the N BI agents and the
results o f the fingerprint and paraffin tests in view o f
the overw helm ing evidence on the positive identification
o f the accused. F urth erm ore, the defense cou ld have
availed o f said evidence which was equally available to
it (P eop le vs. R ealon, et al., L -30832, A ug. 29, 1980;
People vs. Araja, et al., L-24780, June 29, 1981).
4. T h u s, by w ay o f resum e, it w as h eld that the

adverse presum ption of suppression o f evidence does not
arise w hen (1) the su p p ression is not w illfu l, (2) the
evidence w ithheld is m erely corroborative or cum ulative,
(3) the evidence is at the disposal o f both parties, and
(4) the suppression is an exercise o f a privilege (People
vs. N avaja, G.R. No. 104044, Mar. 30, 1993).
(f) That m oney paid by one to another was due

to the latter;
(g) That a th in g d elivered by one to another

belonged to the latter;
(h) That an obligation delivered up to the debtor

has been paid;
(i) That prior rents or installm ents had been

paid when a receipt for the later ones is produced;
822
AND PRESUMPTIONS
NOTE
1. See, in connection with par. (i), the provisions o f

A rt. 1176, C ivil Code, w h ich also lays dow n the p r e -
sum ption that interest has been paid if the prin cipal is
ʄreceived by the creditor w ithout reservation.
( j ) That a person found in possession o f a th in g

taken in the doing of a recent w rongful act is the
tak er and the doer o f the whole act; otherw ise, that
things w hich a person p ossesses, or exercises acts
o f ow nership over, are owned by him ;
(k) That a person in possession o f an order on
h im se lf for the paym ent o f m oney, or the d elivery
o f anything, has paid the m oney or delivered the
th in g accordingly;
(1) That a person acting in a public office was
regularly appointed or elected to it;
(m )T h a t o f f i c i a l d u ty h a s b e e n r e g u la r ly
performed;
(n) T h a t a c o u r t, or ju d g e a c t in g as s u c h ,
w hether in the Philippines or elsew here, was acting
in the law ful exercise of ju risd ictio n ;
(o) That all the m atters w ithin an issue raised
in a case were laid before the court and passed upon
by it; and in like m anner that all m atters w ithin an
issue raised in a dispute subm itted for arbitration
were laid before the arbitrators and passed upon
by them ;
(p) T h a t p rivate tra n sa ctio n s have been fair
and regular;
(q) That the ordin ary course o f b u sin ess has
been follow ed;
823
(r) That there was a sufficient consideration for

a contract;
(s) That a negotiable instrum ent was given or
indorsed for sufficient consideration;
(t) T h a t an e n d o r s e m e n t o f a n e g o t i a b le
in stru m en t was m ade before the instrum ent was
overdue and at the place where the instrum ent is
dated;
(u) That a w riting is truly dated;
(v) That a letter duly directed and m ailed was

received in the regular course o f the m ail;
NOTES
1. The doctrinal rule is that before an inference o f

guilt arising from possession o f recently stolen goods can
be made, the follow in g basic facts need to be proved by
the prosecution, viz.: (1) the crime was actually com m itted;
(2) the crim e w as com m itted recen tly ; (3) th e stolen
property was found in the possession o f the accused; and
(4) the accu sed is unable to sa tisfa ctorily exp la in his
possession thereof. For purposes o f conclusively proving
possession, it is necessary that (1) the possession m ust be
u nexplain ed by any innocent origin; (2) the possession
m ust be fa irly recent; and (3) the p ossession m ust be
exclusive (M abunga vs. People, G.R. No. 143039, M ay 27,
2004). On this score, the Suprem e Court has theretofore
taken the stand that convictions in cases involving the
foregoin g assum ptions are not actually sustained upon a
presum ption o f law but rest w holly upon an in ference o f
fact as to the guilt o f the accused (U.S. vs. Catim bang, 35
Phil. 367).
2. On a rationale sim ilar to that o f the presum ption
in par. (j), it has been h eld th at i f a p e rso n h a d in
824
AND PRESUMPTIONS
his possession a falsified docum ent and he m ade use o f

it, ta k e n a d v a n ta g e o f it a n d p r o fite d th e re b y , th e
p resu m p tion is that he is the m a terial au th or o f the
falsification (People vs. Sendaydiego, et al., L-33252-54,
Jan. 20, 1978, and cases cited therein).
3. For the presum ption in par. (v) to arise, it must
be proved that the letter w as properly addressed w ith
p o s ta g e p r e -p a id and th a t it w a s a c t u a lly m a ile d
(N ava vs. C om m issioner o f In tern al R evenue, L-19470,
Jan. 20, 1965), and if said letter w as not retu rn ed to
the sender, it is presum ed that it w as received by the
addressee (S ebastian vs. WCC, et al., L-42587, Feb. 28,
1978).
4. U nder Sec. 10, Rule 13, service o f pleadings by
m ail is com plete upon the expira tion o f 10 days after
mailing, unless the court otherwise provides, w hile service
by registered m ail is com plete upon actual receipt by the
addressee, but if he fails to claim his m ail from the post
office w ith in 5 days from the date o f first n otice, the
service is com plete at the expiration o f such tim e. There
m ust, how ever, be conclusive p roof that a first notice was
sent to the addressee as the presum ption that official
duty has been reg u la rly p erform ed does not a pply to
this situation (Barram eda vs. Castillo, L-27211, July 6,
1977). If, h ow ever, the postm aster certifies that such
notice w as sent, such presum ption arises and overrides
the contrary claim o f the addressee (Ferraren vs. Santos,
L-41323, A pril 27, 1982).
(w) T h a t a fte r an ab sen ce o f sev en y e a r s , it

bein g unknow n w hether or not the absentee still
lives, he shall be considered dead for all purposes,
except for those o f succession.
825
The absentee shall not be considered dead for

the purpose o f opening his succession till after an
absence o f ten years. If he disappeared after the
age o f seventy-five years, an absence o f five years
shall be sufficient in order that his succession m ay
be opened.
T h e fo llo w in g sh a ll be p r e s u m e d d ea d fo r
all purposes, includ ing the d ivision o f the estate
am ong the heirs:
(1) A person on board a vessel lost during a sea
voyage, or an aircraft w hich is m issing, who has
not been heard o f for four years since the loss o f
the vessel or aircraft;
(2) A m e m b e r o f the arm ed fo r c e s w ho has
ta k e n p a r t in a rm e d h o s t ili t ie s and h a s b e e n
m issin g for four years;
(3) A person who has been in danger o f death
under other circum stances and whose existence has
not been know n for four years;
(4) I f a m arried p erso n has been a b sen t for
fo u r con secu tiv e yea rs, the sp ouse p resen t m ay
con tra ct a su bsequ en t m arriage if he or she has
a w e ll-fo u n d e d b e lie f th a t the ab sen t sp ou se is
a lre a d y d ead . In case o f d isa p p e a ra n ce , w here
there is danger o f death under the circum stances
hereinabove provided, an absence of only two years
shall be sufficien t for the purpose o f contractin g
a su b se q u e n t m a r ria g e . H o w ev e r, in an y ca se,
before m a rryin g aga in, the spouse p resen t m ust
in stitu te a su m m a ry p ro c e e d in g as p ro v id e d in
the Fam ily Code and in the rules for d eclaration
o f p re su m p tiv e d ea th o f the a b se n te e , w ith o u t
p r e ju d ic e to th e e ffe c t o f r e a p p e a r a n c e o f the
absent spouse.
826
AND PRESUMPTIONS
NOTE
1. Except for subpar. (4), this paragraph is taken from

Arts. 390 and 391 o f the Civil Code. A view is held that
with respect to the ordinary but continued absence o f 7,
10, or 5 years contem plated in the first two subparagraphs,
the absentee is presum ed to have died at the end o f said
period, but that in the case o f qualified absence w here
the absen tee w as in danger o f death under th e th ree
instances contem plated therein, the absentee is presum ed
to have died at the tim e he w as exposed to such danger
or peril, that is, at the start o f the 4-year period stated
therein. This distinction assumes significance in questions
o f successional rights to the estate o f the absentee arising
from his presum ptive death.
(x) T h a t acq u iescen ce resu lted from a b e lie f

that the th in g acquiesced in was conform able to
the law or fact;
(y) T h at th in g s have h ap p en ed a c co rd in g to
the o rd in a ry course o f nature and the ord in a ry
habits o f life;
(z) T h a t p erson s a c tin g as c o -p a rtn e rs have

entered into a contract o f co-partnership;
(aa) That a m an and w om an dep ortin g th em -

selv es as h u sban d and w ife have en tered into a
law ful contract o f m arriage;
(bb) T hat p rop erty acqu ired by a m an and a

w om an who are capacitated to m arry each other
a n d w h o liv e e x c lu s iv e ly w ith e a c h o t h e r as
husband and wife w ithout the benefit o f m arriage
or under a void m arriage, has been obtain ed by
their jo in t efforts, work or industry;
827
(cc) T h at in ca ses o f c o h a b ita tio n by a man

and a w om an who are not ca p a citated to m arry
each other and who have acquired property through
th e ir a c tu a l jo in t c o n tr ib u tio n o f m o n e y , p r o -
p erty or in d u stry , such c o n trib u tio n s and th eir
co rresp on d in g shares in clu d in g jo in t d ep osits of
m oney and evidences o f credit are equal;
(dd) That if the m arriage is term inated and the

m other contracted another m arriage w ithin three
hundred days after such term ination o f the form er
m arriage, these rules shall govern in the absence
o f p ro o f to the contrary:
(1) A child born before one hundred eighty days

after the solem nization o f the subsequent m arriage
is consid ered to have been conceived d u rin g the
form er m arriage, provided it be born w ithin three
hundred days after the term ination o f the form er
m arriage.
(2) A c h ild b o rn a ft e r on e h u n d r e d e ig h ty
days fo llo w in g the celeb ra tion o f the su b sequ en t
m a rria g e is co n sid ered to h ave been c o n c eiv e d
d u r in g su ch m a r r ia g e , ev en th o u g h it be b o rn
w ithin the three hundred days after the term ination
o f the form er m arriage.
NO TE
1. Par. (dd) was taken from Art. 259 o f the Civil Code,
w hich provided for presum ptions o f paternity, except that
the form er now includes term ination of the prior marriage
for causes other than the death o f the husband, in line
w ith Art. 168 o f the Fam ily Code.
(ee) T h a t a th in g once p ro ved to e x is t c o n -

tinues as long as is usual with things o f that nature;
828
AND PRESUMPTIONS
(ff) That the law has been obeyed;
(gg) T h a t a p rin ted or p u b lish e d b o o k , p u r-

p o r t in g to be p r in te d or p u b lis h e d b y p u b lic
authority, was so printed or p ublished;
(hh) T h a t a p rin ted or p u b lish e d b o o k , p u r-

p o rtin g to c o n ta in rep o rts o f cases a d ju d g ed in
t r i b u n a l s o f th e c o u n t r y w h e r e th e b o o k is
p u blished, contains correct reports o f such cases;
(ii) T h a t a tr u s te e or o th e r p e r s o n w h o se
d uty it w as to convey real property to a p articu lar
person has actually conveyed it to him w hen such
p re su m p tio n is n ec essa ry to p e rfe ct the title o f
such person or his successor in interest;
(jj) T h at excep t for p u rp oses o f su c ce ssio n ,

w h en tw o p erso n s p erish in the sam e c a la m ity ,
such as w reck, battle, or conflagration, and it is not
show n who died first, and there are no p articu lar
circum stan ces from w hich it can be inferred, the
survivorship is determ ined from the prob abilities
resu ltin g from the strength and age o f the sexes,
accord in g to the follow ing rules:
1. I f both were under the age o f fifteen years,

the older is deem ed to have survived;
2. I f b o th w ere a b o v e th e age o f s ix ty , th e
younger is deem ed to have survived;
3. I f one is under fifteen and the other above

sixty, the form er is deem ed to have survived;
4. I f both be over fifteen and under sixty, and

the sex be d ifferen t, the m ale is deem ed to have
survived; if the sex be the sam e, the older;
829
5. I f one be under fifteen or over sixty, and the

other betw een those ages, the latter is deem ed to
have survived.
NO TE
1. In order that the presum ption o f survivorship in

par. (jj) m ay arise, it is necessary that (a) the deaths
occurred in a calam ity, and (b) there are no particular
circum stances from which it can be inferred that one died
ahead o f the other. Thus, regarding the third rule, if one
is a one-day old child and the other is 61 years old, it
cannot be presum ed that the one-day old child survived,
in view o f the second requirem ent.
(kk) That if there is a doubt, as betw een tw o or

m ore persons who are called to succeed each other,
as to w hich o f them died first, w hoever alleges the
death o f one prior to the other, shall prove the sam e;
in the absence o f proof, they shall be considered to
have died at the same tim e. (5a)
NOTES
1. T h is p re su m p tio n is the sam e as th e ru le in

A rt. 43 o f the Civil Code except that it om its the last
cla u s e th e r e in w h ich s ta te s “ an d th e re s h a ll b e no
transm ission o f rights from one to the oth er,” since said
clause is a rule o f substantive law as to the effect on
the rights o f the parties.
2. Par. (kk) m ay be distinguished from the rule in
par. (jj) as, in the form er, it is not required that the parties
perished in a calam ity and, furtherm ore, it only applies
in questions o f successional rights. The rule in par. (jj)
applies only w here the deaths occurred during a calam ity
and applies to cases not involving successional rights, e.g.,
830
AND PRESUMPTIONS
in insurance cases. Furtherm ore, par. (kk) provides a

presum ption o f sim ultaneity in the deaths o f the persons
called to succeed each other, while par. (jj) provides for
presum ptions o f survivorship.
Sec. 4. No presum ption o f legitim acy or illegitim acy.

— T h e r e is no p r e s u m p t io n o f l e g i t i m a c y or
illegitim acy o f a child born after three hundred days
fo llo w in g the d isso lu tion o f the m a rriag e or the
sep a ra tio n o f the sp ou ses. W h o ev er a lle g e s the
le g it im a c y or ille g it im a c y o f su c h c h ild m u s t
prove his allegation . (6)
NO TE
1 . This is an exact copy o f Art. 261 o f the Civil Code

and should prop erly apply w hen the dissolution o f the
m arriage is by reason o f causes other than the death of
the husband. The separation may be a legal separation
or a separation de facto (G arcia vs. Revilla, [CA], 53 O.G.
1474). Said provision has been substantially reproduced
in Art. 169 o f the Fam ily Code.
831
RULE 129
W H A T NEED NOT BE PROVED
b. Facts o f Judicial N otice
Section 1. J u d ic ia l n otice, w hen m a n d a tory. —

A c o u r t sh a ll ta k e ju d ic ia l n o tic e , w ith o u t the
in tr o d u c tio n o f e v id e n c e , o f th e e x is te n c e and
territoria l extent o f states, their p olitical history,
form s o f governm ent and sym bols o f n atio n ality,
th e law o f n a tio n s, the a d m ira lty and m a ritim e
c o u r ts o f th e w o r ld and t h e ir s e a ls , th e p o l i-
tical con stitu tion and history o f the P h ilip pin es,
the official acts o f the leg isla tive, execu tive, and
ju d icia l d epartm ents o f the P hilippines, the law s o f
nature, the m easure o f tim e, and the geographical
divisions, (la )
Sec. 2. J u d icia l notice, when d iscretion a ry. — A

cou rt m ay take ju d ic ia l notice o f m a tters w hich
a re o f p u b lic k n o w le d g e , o r are c a p a b le o f
u n q u e s tio n a b le d e m o n s tr a tio n , or o u g h t to be
know n to ju d ges because o f their ju d icial functions,
da)
Sec. 3. Judicial notice, when h earing necessary. —

D urin g the trial, the court, on its own initiative, or
on request o f a party, m ay announce its intention
to take ju d icia l notice o f any m atter and allow the
parties to be heard thereon.
A ft e r th e t r ia l, an d b e fo r e ju d g m e n t or on
ap peal, the proper court, on its own initiative or
on request o f a party, m ay take ju d icia l notice o f
any m atter and allow the parties to be heard thereon
832
RULE 129 WHAT NEED NOT BE PROVED SEC. 3
if such m utter is decisive o f a m aterial issue in the

case, (n )
NOTES
1. Ju dicial notice is the cognizance o f certain facts

w hich judges m ay properly take and act on w ithout p roof
because they already know them (31 C.J.S. 509). U nder
the am ended Rule, there are facts o f w hich courts m ust
now take ju d icia l n otice and o f w h ich th ey m ay take
ju dicial notice.
2. J u d ic ia l n otice is b a sed on c o n s id e r a tio n s o f
e x p e d ie n c y and c o n v e n ie n c e . It d is p la c e s e v id e n ce
since, being equivalent to proof; it fulfills the object which
the evidence is intended achieve and, therefore, m akes
such eviden ce u n n ecessa ry (A lzua, et al. vs. Johnson,
21 Phil. 308).
3. Ju dicial notice o f a fact m ay be taken by a court
on its own m otion or w hen it is requested or invited by the
parties or either o f them to do so. In either case, the
court may allow the parties to be heard on the m atter in
question. It has been held, how ever, that the pow er to
take ju d icia l notice m ust be exercised w ith caution and
every reasonable doubt on the subject m ust be resolved
in the negative (R epublic vs. CA, et al., G.R. No. 54886,
Sept. 10, 1981).
4. W hile the courts o f ju stice are required to take
ju d icial notice o f the laws, the rule w ith respect to ord i-
nances is different. M unicipal trial courts are required to
take ju d icia l notice o f the ordinances o f the m unicipality
or city w herein they sit. However, in the case o f R egional
T ria l Courts, they m ust take such ju d icia l notice only
(a) w hen required to do so by statute, e.g., in M anila as
required by the city charter (City o f M anila vs. Garcia,
et al., L-26053, Feb. 21, 1967); and (b) in a case on appeal
833
before them and w herein the inferior court took judicial

notice o f an ordinance in volved in said case (U .S. vs.
Blanco, 37 Phil. 126; U.S. vs. Hernandez, 31 Phil. 342).
T he a p p ellate courts m ay also take ju d ic ia l n otice o f
m unicipal or city ordinances not only w here the low er
courts took ju dicial notice th ereof but because these are
facts capable of unquestionable dem onstration (G allego
vs. People, et al., L-18247, Aug. 31, 1963). For the same
reason, courts may»take judicial notice o f adm inistrative
regulations (Chattam al, eta l. vs. Collector o f Customs, 42
Phil. 916)..
5. Courts are required to take ju dicial notice o f the
decisions o f the appellate courts but not o f the decisions of
coordinate trial courts, nor even o f a decision or the facts
involved in another case tried by the same court itself,
unless the parties introduce the same in evidence or where
the court, as a m atter o f convenience, may decide to do so
(F igueras vs. Serrano, 52 Phil. 28; Baguio vs. Vda. De
J a la gat, et al., L -28100, N ov. 29, 1971; T ’boli A gro-
Industrial Dev., Inc. vs. Solilapsi, Adm . Case No. 4766,
Dec. 27, 2002).
6. The ju dicial notice w hich the court is required to
take should not be confused with the personal knowledge
o f the judge. A fact may be o f judicial notice and not be
o f the ju d g e ’s personal knowledge, and vice-versa, as this
rule refers to facts w hich “ought to be know n to judges
because o f their ju d icia l fu nctions.”
7. The question as to w hat are the laws o f a foreign
state is one o f fact, not o f law. Foreign laws m ay not be
taken ju d icia l notice o f and have to be proved like any
other fact (In re Estate o f Johnson, 39 Phil. 156; F luem er
vs. Hix, 54 Phil. 610), except where said laws are w ithin
the actual know ledge o f the court such as w hen they are
w ell and generally known or they have been actually ruled
upon in other cases before it and none of the parties claim
834
otherw ise (Phil. Com m ercial & Indu strial Bank, etc. vs.
Escolin, etc., et al., L-67896, Mar. 29, 1974).
To prove a w ritten foreign law, the requirem ents of
Secs. 24 and 25, Rule 132 m ust be com plied with, that is,
by an o ffic ia l p u b lica tio n or by a du ly a tte ste d and
authenticated copy thereof. The provisions o f the foreign
law may also be the subject o f ju d icia l adm ission under
Sec. 4 o f this Rule. Absent any o f the foregoing evidence
or adm ission, the foreign law is presum ed to be the same
as that in the Philippines, under the so-called doctrine o f
processu al presu m ption (In Re Testate E state o f Suntay,
50 O.G. 5321; Collector o f Internal R evenue vs. Fisher,
et al., L-11622, Jan. 28, 1961). To prove an unw ritten
foreign law, the provisions o f Sec. 46, Rule 130 supply the
evidential sources or rem edies (see W ildvalley S hipping
Co., Ltd. vs. CA, et al., G.R. No. 119602, Oct. 6, 2000).
8. In M a n u fa ctu rers H a n ov er T rust Co., etc. vs.
G uerrero (G.R. No. 136804, Feb. 19, 2003), the Suprem e
C o u r t n o te d th a t w h ile c e r t a in e x c e p t io n s to th e
requirem ents laid down in Secs. 24 and 25 of this Rule for
p roo f o f foreign law have been recognized, the evidence
presented for that purpose in this case is unacceptable.
H ere, the petitioner subm itted an affidavit o f a New Y ork
attorney w hich does not even state the specific N ew Y ork
law on the issue o f damages involved, but m erely contained
the affiant’s interpretation and opinion o f the facts o f the
case vis-a-vis the alleged law and ju risp ru d en ce cited
therein. Further, said affidavit was taken ex parte abroad
and the affiant never testified in court.
In the cases w herein testim ony on the foreign law
w as accepted by the Suprem e Court, such as C ollector o f
Internal R evenue vs. Fisher, et al., supra, the w itness, who
w as an active m em ber o f the C alifornia Bar, testified that
he was fam iliar with the C alifornia revenue and tax laws
in question, and, as part o f his testim ony, a fu ll quotation
835
o f the cited section o f the law was offered in evidence.

The sam e was true w ith the other instances cited in the
case at bar w here, in light o f all circum stances, the Court
w as satisfied on the a u thenticity o f the w ritten p ro o f
offered.
c. Facts Judicially Adm itted
Sec. 4. J u d ic ia l a d m issio n s. — A n a d m is s io n ,
verbal or w ritten, m ade by a party in the course of
the proceedings in the same case, does not require
proof. The adm ission m ay be contradicted only by
show ing that it was m ade through palpable m istake
or that no such adm ission was m ade. (2a)
NO TES
1. J u d ic ia l a d m is s io n s m ay be m ade in (a) the

pleadings filed by the parties, (b) in the course o f the trial
either by verbal or w ritten m anifestations or stipulations,
or (c) in oth er stages o f the ju d icia l proceeding, as in
the pre-trial o f the case. Adm issions obtained through
d e p o s itio n s , w ritte n in te r r o g a to r ie s or r e q u e s ts for
adm ission are also considered judicial adm issions.
2. To be co n sid ered as a ju d ic ia l a d m ission , the
same must be made in the same case in which it is offered.
If made in another case or in another court, the fact o f
such adm ission m ust be proved as in the case o f any
other fact, although if it was made in a judicial proceeding,
it is entitled to greater w eight (see Bagsa vs. N agram ada,
11 Phil. 174; In Re E state o f M ijares de Farinas, 13 Phil.
63).
3. Thus, ju dicial adm issions made in one case are
adm issible at the trial o f another case provided they are
proved and are pertinent to the issue involved in the latter,
unless (a) the said admissions were made only for purposes
836
o f tho first case, as in the rule on im plied adm issions and

their effects under Rule 26; (b) the same w ere w ithdraw n
with the perm ission o f the court therein; or (c) the court
deem s it proper to relieve the party therefrom (20 Am.
Jur. 470).
4. A d m is s io n s in a p le a d in g w h ic h h a d b e e n
w ith d ra w n o r s u p e rs e d e d b y an a m en d ed p le a d in g ,
a lth o u g h file d in th e sa m e ca se , are c o n s id e r e d as
extrajudicial adm issions and m ust be proved by the party
who relies th ereon (Bastida vs. M enzi & Co., Inc., et al.,
58 Phil. 188) by form al offer in evidence o f the origin al
pleading as such extra-ju dicial adm ission (Jauellana us.
D .O . P la za E n terprises, Inc., L -28297, M ar. 30, 1970;
B u en aven tu ra vs. Villar et al., [CA], 53 O.G. 3 10 0 ; cf.
Torres vs. CA, et al., L-37420-21, July 31, 1984). However,
as am ended, it w ould appear that Sec. 4 now includes
superseded pleadings as ju d icia l adm issions.
5. Ju dicial adm issions cannot be contradicted by the
a d m itte r w ho is the p a rty h im self, u n less th ey w ere
m ade through palpable m istake (Granada, et al. vs. PNB,
L-20745, Sept. 2, 1966) or no such adm ission w as made
or, in the case o f a pre-trial adm ission in civil cases, to
prevent m anifest injustice (Sec. 7, Rule 18). The same
rule applies to crim inal cases if the pre-trial adm ission was
redu ced to w ritin g and signed by the accused and his
cou nsel (Secs. 2 and 4, R ule 118).
6. Adm issions made by the parties in their pleadings,
or in the course o f the trial or other proceedings, do not
require p ro of and cannot be contradicted by them unless
proved to have been made through palpable m istake (Sta.
A n a vs. M aliw at, L-23023, Aug. 31, 1968).
7. Facts subject o f a stipulation or agreem ent entered
into by the parties at the pre-trial o f a case constitute
ju d icia l adm issions by them w hich, under this section, do
837
not req u ire p r o o f and ca n n ot be co n tra d icte d u n less

previously shown to have been made through palpable
m istake (Lira vs. Jabalde, L-36786, A pril 17, 1989).
8. W hen the parties in a case agree on w h at the
foreign law provides, these are adm issions o f fact w hich
the other parties and the court are made to rely and act
upon, hence they are in estoppel to subsequently take a
contrary position (Phil. Com m ercial & Indu strial Bank,
etc. vs. Escolin, etc., et al., supra).
838
I). PRESEN TATIO N OF EVID EN C E
RULE 132
PR ESENTATIO N OF EVID EN CE
A. Exam ination o f W itnesses
Section 1. E xam ination to be done in open court.

— The e x a m in a tio n o f w itn esse s p rese n ted in a
trial or hearing shall be done in open court, and
under oath or affirm ation. Unless the w itness is
incapacitated to speak, or the question calls for a
different mode o f answer, the answers o f the witness
shall be given orally, (la )
Sec. 2. P roceed ings to be recorded. — The entire

p ro ceed in g s o f a tria l or h ea rin g , in c lu d in g the
questions propounded to a w itness and h is answ er
thereto, the statem ents made by the jud ge or any
o f the parties, counsel, or w itnesses w ith reference
to the case, shall be recorded by m eans o f sh ort-
hand or stenotype or by other m eans o f recording
found suitable by the court.
A transcript of the record o f the proceedings

m ade by the official stenographer, sten otyp ist or
recorder and certified as correct by him shall be
deem ed p r i m a f a c i e a co rrect sta tem en t o f such
proceedings. (2a)
N O TES
1. To be adm issible, the testim ony o f the w itness

m ust be given in open court, except that such requirem ent
m ay be su p p la n ted (a) in civ il ca ses, by d e p o sitio n s
839
pursuant to and under the lim itations o f Rules 23 and

24; and (b) in crim inal cases, by depositions or conditional
exam inations, pursuant to Secs. 12 to 15, Rule 119, and
Sec. 1, Rule 123, or by the records o f the prelim in ary
investigation, under the circum stances o f Sec. 1(f), Rule
115. M ere presentation o f the affidavits o f prosecution
w itnesses subject to cross-exam ination is not allow ed by
the Rules (People, et al. vs. Estenzo, etc., et al., L-41166,
Aug. 25, 1976). See the extended discussion h ereof in
People vs. Go, et al. (G.R. Nos. 130714 and 139634) and
People vs. D e los R eyes (G.R. Nos. 139331 and 140845-
46), join tly decided on D ecem ber 27, 2002.
H ow ever, under B.P. Big. 129, sum m ary procedures
m ay be a u th orized by th e S u prem e C ou rt in sp ecia l
ca ses, i.e., ejectm en t, v io la tio n o f tra ffic la w s, ru les
and regu lation s, violation o f the rental law and oth er
cases determ ined by the Suprem e Court; and sim plified
p r o c e d u r e s m ay be a d o p te d by th e S u p re m e C ou rt
w hich may provide that affidavits and counter-affidavits
m ay be adm itted in lieu o f oral testim ony (Sec. 36). See
R evised Rule on Sum m ary P rocedu re under N ote 2 o f
Sec. 1, Rule 123 and A ppend ix R.
2. The testim ony o f the w itness should be elicited
by questions o f counsel. N evertheless, the cou rt itself
m ay propound questions either on the direct or cross-
exam ination o f the w itness (People vs. M oreno, 88 Phil.
2 8 6 ; P eop le vs. L a rgo, et al., 99 P h il. 1061), or m ay
suggest questions that should be propounded by counsel
(E. M ichael & Co., Inc. vs. Enriquez, 33 Phil. 87). The
court should be given reasonable leew ay to ascertain the
truth, and the exten t to w hich such exam in ation may
be co n d u cte d rests in its d is cr e tio n a n d w ill n ot be
con trolled in the absence o f abuse o f d iscretion to the
p r e ju d ic e o f e ith e r p a r ty (P e o p le vs. M a n a lo , G .R .
No. 55177, Feb. 27, 1987).
840
RULE 132 PRESENTATION OF EVIDENCE SEC. 2
3. T he testim on y o f a w itn ess in court ca n n ot be

considered self-servin g since he can be subjected to cross-
exam ination. Self-serving evidence is one m ade ou t o f
cou rt and is exclu ded on the sam e ground as hearsay
evidence, i.e., deprivation o f the right o f cross-exam ination
(Co vs. CA, et al., G.R. No. 52200, Aug. 21, 1980).
Sec. 3. R igh ts and o b lig a tio n s o f a w itness. — A

w it n e s s m u s t a n s w e r q u e s t io n s a lt h o u g h h is
answ er m ay tend to establish a claim against him .
H ow ever, it is the right o f a w itness:
(1) To be protected from irrelevant, im proper,

or insu lting questions, and from harsh or in su ltin g
dem eanor;
(2) Not to be detained longer than the interests

o f ju stice require;
(3) Not to be exam ined except only as to m atters

p ertinent to the issue;
(4) N ot to give an answ er w hich w ill tend to

s u b je c t h im to a p e n a lty fo r an o ffe n se u n le ss
otherw ise provided by law ;
(5) N ot to give an answ er w hich w ill tend to

degrade his repu tation, unless it be to the very fact
at issue or to a fact from w hich the fact in issue
w ould be presum ed. But a w itness m ust answ er to
th e fa ct o f his p re v io u s fin a l c o n v ic tio n fo r an
offense. (3a, 19a)
N O TES
1. A w itn ess ca n n ot refu se to a n sw er q u estion s

m aterial to the inquiry even if it m ay tend to establish a
claim against him, but he m ay validly refuse to answ er —
841
(a) U nder the right against self-incrim ination, if his

answ er w ill tend to subject him to punishm ent for an
offense; or
(b) U nder the right against self-degradation, if his
a n sw e r w ill h a ve a d ire c t te n d e n cy to d e g ra d e h is
character, unless (1) such question is directed to the very
fact at issue or to a fact from which the fact at issue would
be presum ed, or (2) it refers to his previous final conviction
for an offense.
W ith respect to the accused in criminal cases, his right
against self-incrim ination is provided for in Sec. 1(e), Rule
115 w herein he may refuse to take the stand altogether,
but in other cases or proceedings, a party may be com pelled
to take the stand although he may object to incrim inating
q u e s tio n s (S u a re z vs. T en gco, etc., et a l., L - 17113,
M ay 2 3,1 9 6 1 ; Bagadiong vs. Gonzales, etc., et al., L-25966,
Dec. 28, 1979). O f course, the accused also has the right
against self-degradation, subject to the exceptions above
stated. The right against self-incrim ination is available
in crim inal, civil or adm inistrative cases (Berm udez vs.
Castillo, infra).
2. The right against self-incrim ination, w hich m ay
be invoked by the accused, may be w ith reference to the
offense involved in the same case w herein he is charged
or to an offense for which he may be charged and tried in
a n oth er case; w ith resp ect to a w itn ess, the offen se
involved is one for w hich he may be tried in another case.
In either instance, the right should be seasonably invoked
and may be w aived.
3. In B eltran vs. Samson, etc., et al. (53 Phil. 570),
it w as held that w here, in a prosecution for falsification,
the a ccu sed took the stand and tes tifie d den yin g his
authorship o f the alleged falsified signature, on cross-
exa m in ation he can be com pelled to give a sam ple o f
842
bin h a n d w ritin g and it w as n ot a d en ia l o f h is righ t

a gain st a elf-in crim in a tion . In B erm u d ez vs. C a stillo
(A.M. No. 714-A, 64 Phil. 483), it was held that w here, in
a disbarm ent case, the com plainant on cross-exam ination
denied au th orsh ip o f certain h an dw ritten letters, she
could not be com pelled to give sam ples o f her handw riting
as it w ould am ount to a denial o f her right against self-
in crim in a tio n in a p ossib le ch a rge for p erju ry . T h e
seem ing con flict in these decision s m ay be recon ciled.
In th e B eltra n case, it w as th e accu sed h im s e lf w h o
opened the issue on his direct examination. As an accused,
he could even have refused to testify at all w ithout any
unfavorable presum ption being drawn against him. Since
he chose to be a witness and went to the extent o f testifying
on the m atter o f th e h an dw ritin g, he th ereb y w aived
the right against self-incrim ination on the issue, hence,
he could then be cross-exam ined thereon ju st like any
oth er w itn ess. In the B erm u d ez case, th e testim on y
w as given by the com plainant who, unlike an accused
person, could not refuse to testify w ithout an unfavorable
inference being drawn against her. Furtherm ore, w hen
she testified, she did not open the issue w ith respect to
the letters in her direct exam ination as the issue thereon
was raised during the cross-exam ination, hence, she did
not w aive the privilege against self-incrim ination o f her
ow n volition or by acts im putable to her.
4. This section grants the w itness the right against
self-in crim in ation “unless otherw ise provided by la w .”
This exception refers to im m unity statu tes w herein the
w itness is granted im m unity from crim inal prosecution
fo r o ffe n s e s a d m itte d in h is te s tim o n y , e .g ., u n d e r
Sec. 8, R.A. 1379, the law providin g for the forfeitu re
o f u n la w fu lly acqu ired prop erty; and under P .D . 749,
in prosecutions for bribery and graft.
843
In G a lm a n , et a l. vs. P a m a r a n , et a l. (G .R .
N os. 7 1 2 0 8 -0 9 , A u g . 30, 1985), th e S u p re m e C o u rt
noted the classes and application o f im m unity statutes.
It explain ed that im m unity statu tes m ay be gen erally
classified into those which grant “use immunity” and others
w hich grant “transactional im m unity.” “Use im m unity”
prohibits the use o f the w itness’ com pelled testim ony and
its fruits in any m anner in connection with the crim inal
p r o s e c u t io n o f th e w it n e s s . O n th e o t h e r h a n d ,
“transactional im m unity” grants im m unity to the w itness
from prosecution for an offense to w hich his com pelled
testim ony relates. Thus, w here the statute grants only
“ use im m u n ity ,” m e re ly te s tify in g a n d /o r p ro d u cin g
e v id e n ce does n ot re n d e r th e w itn ess im m u n e from
prosecution despite his invocation o f the right against
se lf-in crim in a tion . He is m erely saved from the use
again st him o f such statem ents or eviden ce w h ich he
h a d b e en co m p e lle d to p rod u ce n o tw ith s ta n d in g his
h a v in g s e a s o n a b ly in v o k e d sa id rig h t a g a in s t s e l f -
incrim ination.
5. The right against self-in crim in ation is granted
only in favor o f individuals, hence, a corporation cannot
invoke that privilege as the question ed testim on y can
com e only from a corporate officer or em ployee who has
a personality distinct from that o f the corporation (Hale
vs. Henkel, 201 U.S. 43).
6. The right against self-in crim in ation exten ds to
administrative proceedings with a criminal or penal aspect,
e.g., proceedings before the Board o f M edical Exam iners
(P ascu al, Jr. vs. B oard o f M ed ica l E xa m in ers, et al.,
L -25018, M ay 26, 1969).
Sec. 4. O rder in the exam in ation o f an individual

witness. — The order in w hich an individual w itness
m ay be exam ined is as follow s:
844
RULE 132 PRESENTATION OF EVIDENCE SEC.5 - 8
(a) D irect exam ination by the proponent;

(b) C ross-exam ination by the op ponent;
(c) R e-direct exam ination by the proponen t;
(d) R e-cross-exam ination by the opponent. (4)
Sec. 5. D irect ex a m in a tio n .— D irect exam ination

is the exam in ation -in -ch ief o f a w itness by the party
presenting him on the facts relevant to the issue.
(5a)
Sec. 6. C ross-exam ination; its pu rp ose and extent. —

U pon the term ination o f the direct exam ination, the
w itness m ay be cross-exam ined by the adverse party
as to any m atters stated in the direct exam in ation,
or connected therew ith, w ith sufficient fullness and
freedom to test his accuracy and tru th fu ln ess and
freedom from interest or bias, or the reverse, and to
elicit all im portant facts bearing upon the issue. (8a)
Sec. 7. R e-direct exam ination; its purpose and extent.

— A fter the cross-exam ination o f the w itness has
been conducted, he m ay be re-exam ined by the party
calling him , to explain or supplem ent his answ ers
given du rin g the cross-exam ination. On re-d irect
exam in ation, questions on m atters not dealt w ith
du rin g the cross-exam ination, m ay be allow ed by
the court in its d iscretion. (12)
Sec. 8. R e-cro ss-ex a m in a tio n . — U p on the co n -

clusion o f the re-d irect exam in ation, the adverse
party m ay re-cross-exam ine the w itness on m atters
stated in his re-direct exam ination, and also on such
other m atters as m ay be allow ed by the court in its
d iscretion. (13)
845
RULE 132 REMEDIAL LAW COMPENDIUM SECS. 5 - 8
NOTES
1. U nder Sec. 87, Rule 123 o f the 1940 Rules o f Court

(now, Sec. 6, R ule 132 o f the present Rules o f Court), it
w as held that a w itness may be cross-exam ined by the
adverse party not only as to m atters stated in the direct
e x a m in a t io n b u t a ls o as to a n y m a tte r c o n n e c t e d
th erew ith , and th is he sh ould be a llow ed to do w ith
s u ffic ie n t fu lln e s s an d fre ed o m to te s t th e w itn e s s ’
accuracy, truthfulness and freedom from interest or bias,
and also to elicit from him any im portant fact bearing upon
the issue. It is true that according to the A m erican Rule,
c r o s s -e x a m in a tio n m u st be co n fin e d to th e m a tte rs
inquired about in the direct exam ination (Cragg us. Los
A n geles Trust Co., 154 Col. 663, 98 Pac. 1963), but it is
likew ise true that according to the English Rule, a witness
m ay be cross-exam ined not only upon m atters testified to
b y him on his direct exam ination, but also on all m atters
relevan t to the issue (M oisaac us. N orth Thom pson Elec.
etc., 172 M ass. 89, 51 N.E. 524; Cupps us. State, 120 VFis.
504, 97 N.W. 210). The rule obtaining in this ju risd iction
on the subject is more in accord w ith the English Rule
ju st stated (Gonzales, et al. vs. Bautista, [CA], 52 O.G.
4692).
However, w here the w itness is an unw illing or hostile
w itness so declared by the court or is an adverse party,
the cross-exam ination shall only be on the subject m atter
o f his exam in ation-in -chief (Sec. 12). This is the same
as the lim itation o f the cross-exam ination o f an accused
who testifies as a w itness in his ow n b eh a lf (Sec. l[d ],
R ule 115).
2. W hen the question w hich assum es facts not on
record is asked on cross-exam ination, it is objectionable
fo r b ein g m islea d in g ; if on d irect ex a m in a tion , it is
objectionable for lack o f basis.
846
RULE 132 PRESENTATION OF EVIDENCE SEC.9
When cross-exam ination is not and cannot be done

or com pleted due to causes attributable to the party who
offered the w itness, the uncom pleted testim ony is thereby
rendered incom petent and should be stricken from the
record (Bachrach M otor Co., Inc., et al. vs. CIR, et al.,
1.-26136, Oct. 30, 1978; Ortigas, Jr. us. Lufthansa German
Airlines, L-28773, June 30, 1975). W here, how ever, in a
crim in al case the prosecu tion w itness w as exten sively
cross-exam ined on the essential elem ents o f the crim e and
w hat rem ain ed for fu rth er cross-exa m in a tion w as the
m atter o f price or rew ard w hich was treated therein as
m erely an aggravating circum stance, his failure to appear
for further cross-exam ination thereon will not w arrant the
striking out o f his direct exam ination, especially since
further cross-exam ination could not be condu cted due to
the subsequent death of said w itness, a circum stance not
attributable to the prosecution (People us. Sefieris, etc.,
et al., L-48883, Aug. 4, 1980). The sam e rule w as follow ed
w h ere th e p rosecu tion w itn ess w as exten sively cross-
exam ined on the m aterial points and thereafter failed to
appear and could not be produced despite a w arrant for
h is arrest (P eople vs. G orospe, et al., G.R. No. 51513,
M ay 15, 1984; cf. P eople us. M onje, et al., G.R. N o. 146689,
Sept. 27, 2002).
4. See the Rule on E xam ination o f a Child W itness
approved by the Suprem e Court in A.M . No. 00-4-07-SC
on N ovem ber 21, 2000 (Appendix FF).
Sec. 9. R e c a llin g w itn e s s . — A ft e r th e e x a m -

i n a t i o n o f a w it n e s s b y b o th s id e s h a s b e e n
conclu ded , the w itness cannot be recalled w ithout
leave o f court. The court w ill grant or w ithhold
leave in its d iscretion as the in terests o f ju stic e
m ay require. (14)
847
NO TE
1. W h e re a ll s id e s in th e ca s e h a v e c o n c lu d e d
th eir exam ination o f the w itness, his recall for further
exam ination is discretionary w ith the court as the interest
o f ju stice requires. H ow ever, w here such exam in ation
has not been concluded, or if the recall o f the w itness was
expressly reserved by a party w ith the approval o f the
court, then his recall is a m atter o f right.
Sec. 10. L ead in g and m isleadin g question s. — A

question w hich suggests to the w itness the answ er
w h ich the ex a m in in g p arty d e sire s is a le a d in g
question. It is not allow ed, except:
(a) On cross-exam in ation ;
(b) On p relim inary m atters;
(c) W hen there is difficulty in getting direct and
intelligible answ ers from a w itness who is ignorant,
or a child o f tender years, or is o f feeble m ind, or a
deaf-m ute;
(d) O f an u nw illing or hostile w itness: or
(e) O f a w itness who is an adverse party or an
officer, d irector, or m anaging agent o f a public or
p r i v a t e c o r p o r a t io n or o f a p a r t n e r s h i p or
association w hich is an adverse party.
A m islead in g question is one w hich assum es as
true a fact not yet testified to by the w itn ess, or
contrary to that w hich he has previously stated. It
is not allow ed. (5a, 6a, and 8a)
Sec. 11. Im peachm ent o f adverse p a r ty ’s w itn ess. —

A w itness m ay be im peached by the party against
w hom he was called, by contradictory evidence, by
848
RULE 132 PRESENTATION OF EVIDENCE SECS. 12-13
e v id e n c e th a t his g en era l r e p u ta tio n fo r tr u th ,

honesty, or integrity is bad, or by evidence th at he
bus m ade at other tim es statem en ts in con sisten t
with his present testim ony, but not by evidence o f
p a rtic u la r w ro n g fu l a cts, ex c ep t th a t it m ay be
show n by the exam in ation o f the w itn ess, or the
record o f the ju d gm en t, that he has been convicted
o f an offense. (15)
Sec. 12. P arty may not im peach his own w itness. —

E x cep t w ith resp e ct to w itn e sse s re fe rr e d to in
p a ra g ra p h s (d) and (e) o f S e c tio n 10, th e p a rty
prod ucing a w itness is not allow ed to im peach his
credibility.
A w itness m ay be considered as u n w illin g or
h o s t ile o n ly i f so d e c la r e d by th e c o u r t u p o n
adequate showing o f his adverse interest, unjustified
reluctance to testify, or his having m isled the party
into callin g him to the w itness stand.
The un w illin g or h ostile w itness so declared ,
or the w itn ess w ho is an ad verse p a rty , m ay be
im p e a c h e d by th e p a rty p r e s e n t in g h im in a ll
respects as if he had been called by the adverse
party, except by evidence o f his bad character. He
m ay also be im peached and cross-exam ined by the
ad verse p arty , b u t such cro ss-e x a m in a tio n m u st
only be on the subject m atter o f his exam in ation -
in-chief. (6a, 7a)
Sec. 13. H ow w itn ess im p ea ch ed by ev id e n c e o f

in con sisten t statem ents. — B efore a w itn ess can be
im peached by evidence that he has m ade at other
tim e s sta te m e n ts in c o n siste n t w ith h is p re se n t
testim on y, the statem ents m ust be related to him ,
w ith the circum stan ces o f the tim es and p laces and
849
the persons present, and he m ust be asked w hether

he m ade such sta tem en ts, and if so, allo w ed to
explain them . If the statem ents be in w riting they
m ust be show n to the w itness before any question
is put to him concerning them . (16)
NOTES
1. A leading question is one which suggests to the

w itn ess the a n sw er d esired (S ec. 10). A m islea d in g
question is one w hich assum es facts not in evidence or
w ithout sufficient basis or w hich assum es testim ony or
p roof w hich has not been given (see 98 C.J.S. 215).
2. A leading question propounded to a w itness may,

by reacting to an inference in his mind, cause him to testify
in accordance with the suggestion by the question; his
answ er may be “rather an echo o f the question” than a
genuine recollection o f events (Escoto vs. Pineda, et al.,
[CA], 53 O.G. 7742). T estim ony on direct exam ination
elicite d th rou g h lea d in g q u estion s o f cou n sel for th e
proponent has little probative value (People vs. Caparas,
et al., L-47411, Jan. 18, 1982).
3. As more graphically illustrated by the Suprem e

C o u rt, le a d in g q u e s tio n s m ay be p e r m itte d in th e
exa m in ation o f a w itn ess w ho is im m ature; aged and
infirm ; in bad physical condition; uneducated; ignorant
of, or unaccustom ed to, court proceedings; inexperienced;
unsophisticated; feeble-m inded; confused and agitated;
terrified; tim id or em barrassed w hile on the stand; lacking
in com prehension o f questions or slow to understand; deaf
and dumb; or unable to speak or understand the English
language or only im perfectly fam iliar therew ith (People
vs. D ela Cruz, G.R. No. 135022, July 11, 2002).
4. A party who voluntarily offers the testim ony o f a

w itness in the case is, as a rule, bound by the testim ony o f
850
tho tmid w itness. The exceptions to the rule are;
(a) In the case o f a hostile w itness;
(b) W here the w itness is the adverse party or the

representative o f a ju rid ical person w hich is the adverse
party; and
(c) W hen the w itness is not voluntarily offered but
is required by law to be presented by the proponent, as in
the case o f subscribing w itnesses to a w ill (F ernandez vs.
Tantoco, 49 Phil. 380; see also Sec. 11, R ule 76).
5. A party can im peach the adverse party’s w itness
by (a) c o n tr a d ic to r y e v id e n ce , (b) e v id e n ce o f p r io r
inconsistent statem ents, (c) evidence o f bad character, and
(d) evidence o f bias, interest, prejudice or incom petence.
A party can im peach his ow n w itness only by (a) evidence
contradictory to his testim ony, or (b) evidence o f prior
inconsistent statem ents. H ow ever, in the case o f hostile
w itn e s s e s , a d v e rs e p a r ty w itn e s s e s or in v o lu n ta r y
w itnesses, they can also be im peached by other m odes o f
im peachm ent, aside from contradictory statem ents and
prior inconsistent statem ents made by them.
6. C ontradictory evidence refers to other testim ony

o f the same w itness, or other evidence presented by him
in th e sam e ca se, b u t n ot th e te s tim o n y o f a n o th e r
witness. Prior inconsistent statements refer to statements,
oral or docum entary, made by the w itness sought to be
im peached on occasions other than the trial in w hich he
is testifying.
7. A w itn ess is im p ea ch ed by p rior in co n s is te n t

sta te m e n ts b y “ la y in g th e p r e d ic a te ,” th a t is (a) by
c o n f r o n t in g h im w ith s u c h s t a te m e n t s , w it h th e
c ir c u m s ta n c e s u n d e r w h ich th ey w ere m ade, (b) by
asking him w hether he made such statem ents, and (c) by
giving him a chance to explain the inconsistency. U nless
851
th e w itn e ss is g iv en th e o p p o r tu n ity to e x p la in the

discrepancies, the im peachm ent is incom plete (U.S. us.
Baluyot, 40 Phil. 385; People us. Resabal, 50 Phil. 780;
People vs. Escosura, 82 Phil. 41; People vs. R elucio, et al.,
L -38790, N ov. 9, 1978). H ow ever, such d efect in the
im p ea ch m en t o f the w itn ess is d eem ed w a iv ed i f no
objection on that ground is raised w hen the docum ent
involved is offered for adm ission (People vs. Molo, L-44680,
Jan. 14, 1979).
It is, how ever believed that if the prior inconsistent

statem ent appears in a deposition o f the adverse party,
and not a m ere w itness, that adverse party w ho testifies
m ay be im p e a ch e d w ith o u t la y in g th e p r e d ic a te , as
such prior statem ents are in the nature o f adm issions
o f said adverse party. Thus, under Sec. 4(b), Rule 23,
the deposition o f an adverse party may be used by any
party for any purpose, i.e., as evidence for the latter or to
im p ea ch or c o n tr a d ic t sa id p a rty d e p o n e n t th ro u g h
inconsistent statem ents therein.
A lso , as h eld by th e S u p rem e C ou rt, w h e re the

previous statem ents o f a w itness are offered as evidence
o f an adm ission, and not m erely to im peach him, the rule
on laying a predicate does not apply (Juan Ysmael & Co.,
Inc. us. H ashim , et al., 50 Phil. 132) and the sam e w ould
apply to like statem ents o f a party to the case.
Sec. 14. Euidence o f good character o f w itness. —

E v id e n ce o f the good c h a r a c te r o f a w itn e s s is
n o t a d m is s ib le u n til su c h c h a r a c t e r h a s b e e n
im peached. (17)
N O TE
1. See notes under Sec. 51, Rule 130.
852
Sec. 15. E xclusion and separation o f w itnesses. —

On any trial or hearing, the judge m ay exclude from
th e c o u r t a n y w it n e s s n o t a t th e tim e u n d e r
exam in ation, so that he m ay not hear the testim ony
o f o th e r w itn e s s e s . The ju d g e m a y a lso c a u se
w itnesses to be kept separate and to be prevented
from co n v ersin g w ith one an other until all shall
have been exam ined. (18)
N O TES
1. T h e p o w e r o f e x c lu s io n a p p lie s o n ly to th e
w itnesses and not to the parties in a civil case. P arties
have a right to be present at the trial either by them selves
or by th eir attorneys, as w ell as to reasonable notice o f
the tim e fixed th erefor (M uerteguy, et al. vs. D elgado,
22 Phil. 109). Since they have such right, by necessary
im plication they cannot be divested thereof by an exclusion
order. T his is a reiteration o f an earlier ru ling o f the
Suprem e Court that “(a) party to an action has a right to
be present in court w hile his case is being tried, and the
rule authorizing the exclusion o f witnesses during the trial
cannot be understood to extend to him” (Paez vs. Berenguer,
8 Phil. 457, citing S treeter vs. Evans, 44 Vt. 27).
The sam e right against exclusion also applies to the

accu sed in a crim in a l case since, as has ea rlie r been
explained, he has the right to be present and defend in
person and by counsel at every stage o f the proceedings,
from the arraignm ent to the prom ulgation o f the judgm ent,
u n less he exp ressly or im p lied ly w aives h is p resen ce
(Sec. l[c], R ule 115).
2. I f the w itness violates the order o f exclusion, the

court m ay bar him from testifying (People vs. Sandal, et
al., 54 Phil. 883) or give little w eight to his testim ony,
aside from his liability for contem pt. Contrarily, it has
853
also been held that it is w ithin the pow er o f the trial judge
to refuse to order the exclusion of the principal w itness of
the governm ent during the hearing o f a crim inal case and
it may not, on that count alone, be considered as an abuse
o f his discretion (People vs. Lua Chu, et al., 56 Phil. 44).
Sec. 16. When witness may refer to m em orandum .

— A w itness m ay be allow ed to refresh his m em ory
respectin g a fact, by anything w ritten or recorded
by h im self or under his direction at the tim e when
the fact occurred, or im m ediately th ereafter, or at
an y o th er tim e , w h en the fact w as fre sh in his
m em ory and he knew that the same was correctly
w ritten or recorded; but in such case the w riting
or record m ust be produced and m ay be inspected
by the a d v e rse p a r ty , w ho m a y , i f he c h o o s e s ,
cross-exam ine the w itness upon it, and m ay read
it in e v id e n c e . So, a lso , a w itn e s s m ay te s tify
from such a w ritin g or record , though he retain
no r e c o lle c tio n o f the p a r tic u la r fa c ts , i f he is
able to sw ear that the w riting or record correctly
s t a t e d th e t r a n s a c t i o n w h e n m a d e ; b u t su c h
evidence m ust be received with caution. (10a)
N O TES
1. In A m e rica n ju risp ru d e n ce , the first sen ten ce

o f Sec. 16 is know n as the rule on “revival o f present
m em ory,” and the second sentence is known as “revival of
past recollection .” The first rule applies if the w itness
rem em bers the facts regarding his entries and is entitled
to grea ter w eigh t; the second ru le applies w h ere the
w itness does not recall the facts involved, and is entitled
to lesser weight.
2. T h e p ro v is io n a p p lies on ly w h en it is sh ow n
beforehand that there is a need to refresh the m em ory o f
854
RULE 132 PRESENTATION OF EVIDENCE SECS. 17, 18
tho w itn ess. F urtherm ore, the m em orandum u sed to

refresh the m em ory o f the w itness does not con stitute
evidence, and may not be adm itted as such, for the sim ple
reason that the w itness has ju st the same to testify on
the basis o f refreshed m em ory. In other w ords, w here
the w itness has testified independently o f or after his
m em ory has been refreshed by a m em orandum o f the
events in dispute, such m em orandum is not adm issible
as corroborative evidence, sin ce a w itness m ay not be
corroborated by any w ritten statem ent prepared w holly
by him . He can n ot be m ore credible ju st beca u se he
supports his open-court declaration with written statements
o f the sam e facts even if he did prepare them during the
occasion in dispute, unless the proper predicate o f his
fa ilin g m em ory is priorly laid dow n (B orrom eo vs. CA,
et al., L-31342, A pril 7, 1976).
Sec. 17. When p a rt o f transaction or record given

in evidence, the rem ainder adm issible. — W h en part o f
an act, d eclaration, conversation, w riting or record
is given in evidence by one party, the whole o f the
sam e subject m ay be inquired into by the oth er,
and when a detached act, declaration, conversation,
w riting or record is given in evidence, any other
act, d ecla ration , con versation , w ritin g or record
necessary to its understanding m ay also be given
in evidence. (11a)
NO TE
1. A s im ila r ru le is p r o v id e d fo r in th e u se o f
depositions (see Sec. 4[d], R ule 23).
Sec. 18. Right to inspect w riting show n to witness.

— W h en ever a w riting is show n to a w itness, it m ay
be inspected by the adverse party. (9a)
855
B. A uthentication and P roof o f D ocum ents
Sec. 19. Classes o f docum ents. — For the purpose

o f their presentation in evidence, d ocum ents are
either public or private.
Public docum ents are:
(a) The w ritten official acts or records o f the

o ffic ia l acts o f the so v ereig n a u th o r ity , o ffic ia l
bodies and tribunals and public officers, w hether
o f the P hilip pines, or o f a foreign country;
(b) D ocum ents acknow ledged before a notary

public except last w ills and testam ents; and
(c) Public records, kept in the P hilip pin es, o f

private docum ents required by law to be entered
therein.
All other w ritings are private. (20a)
N O TES
1. T h e c la s s ific a tio n o f d o cu m e n ts in to o ffic ia l,

public, com m ercial and private under the R evised Penal
Code is different. Under the rules o f evidence, official
d ocu m en ts are “p u b lic d o cu m e n ts” (S ec. 19). T h ose
acknow ledged before persons authorized to adm inister
oaths are p u b lic docum ents b u t are fu rth er govern ed
by Sec. 30, w h ile com m ercia l and p riva te d ocu m en ts
w ould fall under “private docum ents.” H ow ever, private
docum ents required by law to be entered in public records
are considered as public docum ents and are su bject to
the provisions o f Sec. 27.
2. P u b lic d o cu m e n ts g e n e r a lly in clu d e n o ta r ia l
docum ents and are adm issible in evidence w ithout the
necessity o f prelim inary proof as to its authenticity and
856
due execu tion (Antillon vs. Barcelon, 3 7 Phil. 148), except

w here a special rule o f law requires p roo f th ereof despite
its being a docum ent acknow ledged in accordance w ith
said Sec. 30, as in the case o f the probate o f notarial w ills
w here the testim on y o f the attestin g w itnesses are still
required for its probate (see R ule 76 and Sec. 30 o f this
Rule).
3. The requisites for the adm issibility o f a copy o f a
foreign official docum ent are (a) it m ust be attested by the
officer having legal custody o f the records or by his deputy,
and (b) it m ust be accom panied b y a certifica te o f the
P hilippine diplom atic or consular representative to the
foreign country certifying that such attestin g officer has
the custody o f the docum ent. The latter requirem ent is
not a mere technicality but is intended to ju stify the giving
o f full faith and credit to the genuineness o f a docum ent
in a foreign country (Valencia vs. Lopez, [CA], 65 O.G.
9959; see also Sec. 24 o f this Rule).
4. A docu m en t, to be p u b lic, m ust be an o ffic ia l
w ritten act o f a public officer [Sec. 19(a), Rule 132, Revised
Rules o f Court], W hile public records, kept in the P hilip-
pines o f private writings are also public docum ents, under
Sec. 19(c) o f the sam e Rule, the public w ritin g is not
the w riting itse lf but the “public record” thereof. Stated
otherw ise, if a private w riting itself is in serted officially
into a pu blic record, its record, its record a tion , or its
in co rp ora tion into the public record b ecom es a public
docum ent, but that does not make the private w riting itself
a public docum ent so as to make it adm issible w ithout
a u th e n tica tio n (R ep u b lic vs. W orld w id e In su ra n ce
Surety Co., et al., [CA], 62 O.G. 8857).
5. A claim for the enforcem ent of a foreign judgm ent
can be brought only before the regular courts and not in
an adm inistrative agency. A foreign decision purporting
to be the w ritten record o f an act o f an official body or
857
tribunal o f a foreign country is, therefore, a public w riting

under Sec. 20(a) (now, Sec. 19[a], Rule 132) and m ust be
proved in accordance w ith Secs. 25 and 26 (now, Secs. 24
and 25) o f the sam e Rule. The tra n slation th e re o f to
English from Arabic must be made by an official court
interpreter o f the Philippine or foreign governm ents or by
a com petent and accurate translator (Pacific Asia Overseas
Shipping Corp. vs. NLRC, et al., G.R. No. 76595, M ay 6,
1988).
Sec. 20. P ro o f o f p rivate docum ent. — Before any

private docum ent offered as authentic is received
in e v id e n c e , its due ex e c u tio n and a u th e n tic ity
m ust be proved either:
(a) By anyone who saw the docum ent executed

or w ritten; or
(b) By e v id e n c e o f th e g e n u in e n e s s o f th e
signature or handw riting o f the m aker.
A n y o th e r p r iv a te d o c u m e n t n eed o n ly be
identified as that w hich it is claim ed to be. (21a)
Sec. 21. When evid en ce o f au th en ticity o f p riv a te

docum ent not necessary. — W here a private docum ent
is m ore than thirty years old, is produced from a
cu sto d y in w hich it w ould n a tu rally be found if
genuine, and is unblem ished by any alterations or
circu m stan ces o f susp icion, no other evidence o f
its authenticity need be given. (22a)
Sec. 22. How gen u in en ess o f h and w riting proved.

— The h and w riting o f a person m ay be proved by
any w itness who believes it to be the handw riting
o f such p erso n b eca u se he has seen the p erso n
w rite, or has seen w riting purporting to be his upon
858
which the w itness has acted or been charged, and

has thus acquired know ledge o f the han d w ritin g o f
such person. Evidence respecting the h and w riting
m ay also be given by a com parison , m ade by the
w itn ess or the cou rt, w ith w ritin g s a d m itted or
treated as genuine by the p arty against w hom the
evidence is offered, or proved to be genuine to the
satisfaction o f the judge. (23a)
NOTES
1. Secs. 20, 21 and 22 are the rules on the authen-

tication o f private docum ents. In addition to the m odes
o f a u th en tica tin g a p riva te docu m en t u n d er Sec. 20,
A m erican ju rispru den ce also gives the doctrin e o f self-
au th en tication , that is, w here the facts in the w ritin g
cou ld on ly have been k n ow n by the w riter; and also
the rule o f authen tication o f the adverse party, that is,
w h ere th e re p ly o f th e a d v erse p a rty re fe rs to and
affirm s the transm ittal to him and his receipt o f the letter
in question, a copy o f w hich the proponen t is offerin g
as evidence.
2. A u th e n tica tio n o f a d ocu m en t is not req u ired

w hen (a) the w riting is an ancient docum ent, under the
requisites o f Sec. 21; (b) the w riting is a public docum ent
or record un der Sec. 19; (c) it is a n otarial docum en t
a ck n ow led ged , proved or ce rtifie d in a ccord an ce w ith
Sec. 30; or (d) the a u th en ticity and due e x e cu tio n o f
the docum ent has been expressly or im pliedly adm itted
by a failure to deny the same under oath, as in the case of
actionable docum ents under Sec. 8, Rule 8.
3. The authenticity and due execution o f a private

d o cu m e n t are proved , in ter alia , by e v id e n ce o f the
gen u in en ess o f the h a n d w ritin g o f the m aker. Such
handw riting, in turn, is proved by:
859
(a) A w itness who actually saw the person w riting

the instrum ent ( S e c . 2 0 [ a ] ) ;
(b) A w itn e s s fa m ilia r w ith s u ch h a n d w r it in g
(Sec. 2 2) and who can give his op in ion th ereon , such
opinion being an exception to the opinion rule (Sec. 50[b],
R ule 130);
(c) A com p a rison by the cou rt o f the q u estion ed
h a n d w ritin g and adm itted genu in e specim en s th e re o f
(Sec. 22); and
(d) Expert evidence (Sec. 49, R ule 130).
4. Sec. 22 o f th is R u le m erely e n u m e ra te s th e
m e th o d s o f p r o v in g h a n d w r itin g b u t d oes n ot g ive
preference or priority to a particular m ethod (L opez vs.
CA, et al., L-31494, Jan. 23, 1978).
Sec. 23. P u blic docum en ts as evid en ce. — D o c u -

m ents consistin g o f entries in public records m ade
in the p erform ance o f a duty by a p ublic officer
a re p r i m a f a c i e e v id e n c e o f the fa c t s t h e r e in
stated. A ll other public docum ents are evidence,
ev en a g a in st a th ird p e rso n , o f th e fa c t w h ich
g ave rise to th e ir ex e c u tio n and o f the d ate o f
the latter. (24a)
Sec. 24. P ro o f o f official record. — The record of

p ublic docum ents referred to in paragraph (a) of
S e c t io n 19, w h en a d m is s ib le fo r an y p u r p o s e ,
m ay be evidenced by an official publication th ereof
or by a cop y a ttested by the o ffic e r h a v in g the
legal custody o f the record, or by his deputy, and
a c c o m p a n ie d , i f th e r e co r d is n o t k e p t in the
P h ilip p in e s, w ith a c e rtific a te th a t such o ffic er
has the custody. If the office in w hich the record
is kept is in a foreign country, the certificate m ay
860
be m ade by a secretary o f the em bassy or legation ,

c on su l g e n e ra l, co n su l, vice c o n su l, or co n su la r
agent or by any officer in the foreign service o f the
P h ilip p in e s sta tio n e d in the fo re ig n c o u n try in
w hich the record is kept, and authen ticated by the
seal o f his office. (25a)
Sec. 25. W hat a ttes ta tio n o f cop y m ust sta te. —

W h enever a copy o f a docum ent or record is attested
for the purpose o f evidence, the attestation m ust
state, in substance, that the copy is a correct copy
o f the o rig in a l, or a sp ecific part th ereof, as the
case m ay be. The attestation m ust be under the
official seal o f the attesting officer, if there be any,
or if he be the clerk o f a court having a seal, under
the seal o f such court. (26a)
Sec. 26. Irrem o v a b ility o f p u b lic record . — A n y

public record, an official copy o f which is adm issible
in evidence, m ust not be rem oved from the office in
w hich it is k ept, except upon order o f a court w here
the inspection o f the record is essential to the ju st
d eterm ination o f a pending case. (27a)
N O TES
1. A public record cannot be rem oved from the office

in w h ich it is k ept w ith ou t a cou rt ord er, such as a
subpoena duces tecum, and even the court cannot order
its rem oval therefrom , except w hen essential to the ju st
d eterm in ation o f a pendin g case. T his rule, how ever,
refers only to a public record an official copy o f which could
be made available to the interested party and is adm issible
in evidence.
2. S ec. 24 la y s d ow n th e r e q u ir e m e n ts fo r th e
adm issibility in evidence o f a foreign public docum ent.
861
A b sen t the a ttesta tion o f the officer h a vin g the legal

custody o f the records and the certificate to that effect
by a P h ilippin e foreign service officer, a m ere copy o f
the foreign docum ent is not adm issible as eviden ce to
prove the foreig n law (W ild va lley S h ip p in g Co., Ltd.
vs. CA, et al., G .R. No. 119602, O ct. 6, 2 00 0 ). See
the discussion h ereof in N otes 7 and 8 under Sec. 1 o f
Rule 129.
Sec. 27. Public record o f a p rivate docum ent. — An

a u th o rized p u blic record o f a p rivate d ocu m en t
m ay be proved by the original record, or by a copy
th e r e o f, a tte ste d by th e le g a l c u s to d ia n o f th e
record, w ith an appropriate certificate that such
officer has the custody. (28a)
Sec. 28. P r o o f o f la ck o f re co rd . — A w r it t e n
statem ent signed by an officer having the custody
o f an officia l record or by h is d ep u ty th at after
d iligen t search no record or entry o f a sp ecified
tenor is found to exist in the records o f his office,
accom p an ied by a certificate as above p rovid ed ,
is adm issible as evidence that the records o f his
office contain no such record or entry. (29)
Sec. 29. H ow ju d ic ia l record im peach ed . — A n y

ju d ic ia l reco rd m ay be im p ea ch ed by e v id en ce
of: (a) w ant o f ju risd iction in the court or ju d icial
officer, (b) collusion between the parties, or (c) fraud
in the party offering the record, in respect to the
proceedings. (30a)
NO TE
1. See Note 8 under Sec. 1 o f Rule 39.
862
Sec. 30. P r o o f o f n o ta ria l d ocu m en ts. — E v e ry

in s tr u m e n t d u ly a c k n o w le d g e d or p r o v e d and
certified as provided by law m ay be presented in
evidence w ithout further proof, the certificate o f
a c k n o w le d g m e n t b ein g p r i m a f a c i e e v id e n c e o f
th e e x e c u t io n o f th e in s t r u m e n t or d o c u m e n t
involved. (31a)
NOTES
1. Public docum ents may be proved by (a) the original

copy, (b) an official publication thereof, or (c) a certified
true copy thereof.
2. W hen a certified true copy is presented, Secs. 24

and 25 provide w hat should appear in the certification
or a ttesta tion o f said true copy and w h ich m ust have
the docu m en tary stam p affixed th ereto in order to be
adm issible (see Sec. 201, R.A. 8424), unless specifically
e x e m p te d th e re fro m , as in th e ca se o f b a p tis m a l or
birth certifica tes o f con tractin g parties to a m arriage
(Art. 12, Fam ily Code). It is presum ed that the requisite
sta m p s h a v e b een a ffix e d to th e o r ig in a l co p y o f a
d o cu m e n t w h ere o n ly the ca rb o n co p ie s t h e r e o f are
a v a ila b le (M a h ilu m , et al. vs. CA, et a l., L -1 7 9 7 0 ,
June 30, 1966).
3. W here the special pow er o f attorney is executed

a n d a c k n o w le d g e d b e fo r e a n o ta r y p u b lic or o th e r
co m p e te n t o ffic e r in a fo r e ig n co u n try , it ca n n o t be
adm itted in evidence in P h ilipp in e courts u nless it is
certified as such in accordan ce w ith the p rovision s o f
Sec. 24 o f this Rule by a secretary o f the em bassy or
lega tion , con su l-gen era l, consu l, vice con su l, con su la r
a gen t or by any o ffice r in th e fo re ig n se rv ice o f the
P hilippines stationed in the foreign country in w hich the
record is kept o f said public docum ent and authenticated
863
b y th e se a l o f h is o ffic e (L o p ez vs. CA, et al., G .R.

No. 77008, Dec. 29, 1987).
4. E ven pu b lic in stru m en ts do n ot have u n iform

probative value (Sec. 23, R ule 132). The law does not
specifically provide that the contents o f public instrum ents
w ithou t distin ction are equally evidence against third
p a rtie s . T h e p ro b a tiv e v a lu e o f p u b lic in s tru m e n ts
d e p e n d s on th e k in d o f d ocu m en t th a t is p re s e n te d
in e v id e n ce [D u p ila s vs. C a b a cu n ga n , 30 P h il. 354 ]
(R epublic vs. Baquiran, et al., [CA], 65 O.G. 10242).
5. Before the establishm ent o f civil registry in the

P hilippines in 1917, baptism al certificates w ere held as
analogous to the record o f births m entioned in A rt. 265 o f
the Civil Code and were considered presum ptive evidence
o f the facts related therein (Lotivio vs. M uyut, [CA], 66
O.G. 7009). See N otes 8 and 9 under Sec. 44, Rule 130.
6. Only baptism al certificates issued by the priests

d u r in g th e S p a n is h r e g im e are c o n s id e r e d p u b lic
docum ents (Adriano vs. de Jesus, 23 Phil. 350; U.S. vs.
E v a n g e lis ta , 29 P h il. 2 15 ). H o w e v e r, a b a p tis m a l
certificate issued after the Spanish regim e is a private
docum ent and cannot even be considered as p rim a facie
evidence o f the fact that gave rise to its execution, that
is, the fa ct o f b ap tism and th e date th e re o f, and is,
therefore, hearsay and inadm issible evidence even as to
the date o f the baptism unless the priest who perform ed
the baptism al rites and made the certificate is produced
(People vs. B arcebal, [CA], 64 O.G. 11249). B aptism al
certificates are not sufficient to prove paternity (A rde vs.
A nicoche, A.M . No. P-272, Feb. 28, 1978) or volun tary
recogn ition o f a ch ild (B erciles, et al. vs. GSIS, et al.,
G .R. N o. 5 7257, M ar. 6, 1984). In M a c a d a n g d a n g
vs. CA, et al. (L -4 9 54 2 , S ept. 12, 1980), it w as h eld
that a baptism al certificate is p roof only o f the baptism
864
adm inistered by the priest who baptized the ch ild but

not the v e ra city o f the d e cla ra tio n s an d sta te m e n ts
in the c e r tific a te co n c e rn in g the r e la tio n s h ip o f the
person baptized. See also H eirs o f Cabais vs. CA, et al.
(G.R. Nos. 106314-15, Oct. 8, 1999).
7. T he foregoin g doctrines have been m odified by

the S u prem e C ourt in d eterm in in g the m in ority o f a
victim in statu tory rape or w here that fact is an elem ent
o f qu alified rape. W hile recogn izin g the prim acy o f a
birth certificate as p roof o f the victim ’s age, it held that,
in the absence o f such evidence, the victim ’s m inority
m ay be proved by other docum entary evidence such as
h er b a p tis m a l ce r tifica te or oth er a u th e n tic record s
(People vs. Llandelar, G.R. Nos. 123138-39, Nov. 8, 2001;
People vs. Jalosjos, G.R. Nos. 132875-76 Nov. 16, 2001;
People vs. Fruna, G.R. No. 138471, Oct. 10, 2002).
8. Further, changes and expansion o f said doctrines

have been introduced by Art. 172 of the Family Code which
provides that filiation of legitim ate children is established
by the record o f birth in the civil registry or appearing in
a fin al ju d gm en t, an adm ission th e re o f in a public or
p riv a te h a n d w ritte n d o cu m en t sig n ed by th e p a ren t
concerned, open and continuous possession o f such status
by the child, or any other means allowed by the R ules of
Court and special laws.
As explained in Cruz, et al. vs. Cristobal, et al. (G.R.

No. 140472, Aug. 7, 2006), “any other means allow ed by
the R ules o f Court and special law s” may consist o f the
ch ild’s baptism al certificate, a ju d icia l adm ission or any
o f the non-official kinds o f p roof under Rule 130. Hence,
in said case, the status o f som e o f the p la in tiffs w as
p ro v ed by th e ir b a p tism a l ce r tifica te s as a cce p ta b le
docum entary evidence o f their legitim ate filiation, and
th ose o f the oth ers w ere esta b lish e d by p r o o f o f the
865
d e stru ctio n o f the p ertin e n t b irth ce rtifica te s in the

office o f the local civil registrar and/or w ere buttressed by
te stim o n ia l evid en ce th at th ey en joy ed th a t com m on
reputation in their com m unity or continuously possessed
the status o f legitim ate children.
9. A death certificate is not p ro o f o f the cause o f

death, its p rob a tive valu e b ein g con fin ed on ly to the
fa c t o f d ea th , and th e sta te m e n t th e r e in c o n ta in e d
r e g a r d in g th e d u ra tio n o f illn e s s an d th e ca u s e o f
death are m ere hearsay (Sison vs. Sun Life A ssu ran ce
Co. o f Canada, [CA], 47 O.G. 1954). It has, h ow ever,
been held that a death certificate is adm issible to prove
the residence of the deceased at the tim e o f his death
(G a r c ia F u le vs. M a lv a r , e tc ., et a l., L -4 0 5 0 2 and
L-42670, Nov. 29, 1976).
Sec. 31. A lteration s in docum ent, how to explain . —

T h e p a r ty p r o d u c in g a d o c u m e n t as g e n u in e
w hich has been altered and appears to have been
altered after its execu tion , in a part m aterial to
th e q u e s tio n in d is p u te , m u st a c c o u n t fo r th e
alteration. He m ay show that the alteration was
m ad e by a n o th e r , w ith o u t h is c o n c u r r e n c e , or
was m ade w ith the consent o f the parties affected
by it, or w as o th e rw ise p ro p e r ly or in n o c e n tly
m ad e, or th at the a ltera tio n did not ch an ge the
m e a n in g or la n g u a g e o f the in str u m e n t. I f he
fails to do that, the docum ent shall not be adm issible
in evidence. (32a)
Sec. 32. Seal. — There sh all be no d ifference

b etw een sealed and unsealed private d ocum ents
in s o fa r a s t h e ir a d m is s ib i lit y as e v id e n c e is
concerned. (33a)
866
Sec. 33. D o cu m en ta ry e v id e n c e in an u n o ffic ia l

langu age. — D o cu m en ts w ritten in an u n o ffic ia l
language shall not be adm itted as evidence, unless
a cco m p an ied w ith a tra n sla tio n into E n g lish or
F ilip in o . To avoid in terru p tio n o f p ro ceed in g s,
p a rtie s or th e ir a tto rn e y s are d ir e c te d to have
such tran slation prepared before trial. (34a)
NO TE
1. The 1935 Constitution (Sec. 3, Art. X IV ) provided

th a t “ u n til oth e rw is e p ro v id e d b y law , E n g lish and
Spanish shall continue as official languages.” The 1973
C on stitu tion (Sec. 3[3], A rt. X V ) provided th a t “ until
otherw ise provided by law, English and P ilipino shall
be the official langu ages.” Since, how ever, “ a sizeable
part o f docum ents in governm ent files are w ritten in the
Spanish language and have not been officially translated
in to e ith e r E n glish or P ilip in o la n g u a g e s ,” P .D . 155
(M arch 15, 1973) provides that “(t)he Spanish language
shall continue to be recognized as an official language in
the Philippines while im portant docum ents in governm ent
file s are in the S pan ish lan gu age and not tra n slated
into eith er E nglish or P ilipin o la n gu age.” U n der the
1987 C on stitu tion , the o fficia l lan gu ages are F ilipino
and, u n til oth erw ise p rov id ed by law , E n glish , w ith
the region al languages as auxiliary official languages
in the region (Sec. 7, Art. XIV).
C. Offer and O bjection
Sec. 34. O ffer o f ev id en ce. — The c o u r t sh a ll

consider no evidence w hich has not been form ally
o ffered . The p urpose for w hich the ev id en ce is
offered m ust be specified. (35)
867
Sec. 35. When to m ake offer. — A s reg a rd s the

testim ony o f a w itness, the offer m ust be m ade at
the tim e the w itness is called to testify.
D o c u m e n ta r y and o b je c t e v id e n c e sh a ll be
o ffe r e d a ft e r th e p r e s e n t a t io n o f a p a r t y ’ s
te stim o n ia l ev id en ce. Such offer sh a ll be done
o rally unless allow ed by the court to be done in
w riting (n).
NOTE
1. In R am os vs. D izon , et al. (G .R . N o. 137247,

Aug. 7, 2006), the Court clarified by way o f a liberalized
doctrine the stringent provision o f Sec. 34. P refatorily,
it a d v e r te d to its p r e v io u s d e c is io n s in P e o p le vs.
N a p a t-a (G .R. N o. 84651, N ov. 14, 1989) and P eop le
vs. M ate (G.R. No. L-34754, M ar. 27, 1981) relative to
th e a d m is s io n a n d c o n s id e r a tio n o f e x h ib its w h ich
w e re n ot fo r m a lly o ffe r e d a lth o u g h id e n t ifie d and
m arked as exhibits. It then noted that the literal im port
o f Sec. 34 had th erein been relaxed in the sense that
eviden ce not form ally offered can be a dm itted by the
tria l co u rt p ro v id e d the fo llo w in g re q u ire m e n ts are
p re s e n t, viz.: fir s t, th e sa m e m u st h a v e b e e n du ly
identified by testim ony duly recorded and, second, the
sam e m ust have been incorporated in the records o f the
case.
In the R am os case, th e exh ib its in q u e stio n had
been presented and m arked in the pre-trial o f the case,
thu s they have been in corp ora ted into the record s o f
the case. Further, respondent’s attorney-in-fact testified
and was amply cross-exam ined on the details and contents
o f said exhibits in accordance w ith the requirem ent for
its identification. Both requisites for the adm ission o f
said exhibits had thereby been com plied with.
868
Sec. 36. O b je c tio n . — O b je c t io n to e v id e n c e

o ffe re d o r a lly m u st be m ade im m e d ia te ly a fte r
the offer is m ade.
O b je c tio n to a q u e s tio n p ro p o u n d e d in the
course o f the oral exam ination o f a w itness shall
be m ad e as soon as th e g ro u n d s th e r e fo r sh a ll
becom e reasonably apparent.
A n o ffe r o f e v id e n c e in w r it in g s h a ll be
o b jected to w ith in three (3) d ays after n o tice o f
the offer u n less a d ifferen t period is allow ed by
the court.
In an y c a se, the gro u n d s for the o b je c tio n s
m ust be specified. (36a)
Sec. 37. When repetition o f objection unnecessary. —

W h en it becom es reasonably apparent in the course
o f the exam in ation o f a w itness that the questions
being propounded are o f the same class as those to
w hich the objection has been m ade, w hether such
o b je c t io n w as s u s ta in e d or o v e r r u le d , it s h a ll
not be necessary to repeat the objection, it being
s u ffic ie n t fo r th e a d v e r s e p a r ty to r e c o r d h is
c o n tin u in g o b jectio n to such class o f q u estio n s.
(37a)
Sec. 38. R u lin g . — T h e r u lin g o f th e c o u r t

m ust be given im m ed iately after the ob jection is
m ade, unless the court desires to take reasonable
tim e to in form its e lf on the q u estio n p re se n te d ;
b u t the ru lin g sh all alw ays be m ade d u rin g the
trial and at such tim e as w ill give the party against
w h o m it is m a d e an o p p o r t u n it y to m e e t th e
situation presented by the ruling.
869
RULE 132 REMEDIAL LAW COMPENDIUM SECS. 39, 40
The rea so n for s u s ta in in g or o v e r r u lin g an

o b je c tio n need n ot be sta te d . H o w e v e r, i f the
objection is based on two or m ore grounds, a ruling
su stain in g the objection on one or som e o f them
m ust specify the ground or grounds relied upon.
(38a)
Sec. 39. S triking out answer. — Should a w itness

answ er the question before the adverse party had
the opportunity to voice fully its objection to the
sam e, and such objection is found to be m eritorious,
the court shall sustain the objection and order the
answ er given to be stricken o ff the record.
On proper m otion, the court m ay also order the

str ik in g out o f an sw ers w hich are in co m p eten t,
irrelevant, or otherw ise im proper, (n)
Sec. 40. T en d er o f exclu d ed evid en ce. — I f d oc-

um ents or things offered in evidence are excluded
b y th e c o u r t, th e o ffe r o r m a y h a v e th e sa m e
a tta ch ed to or m ade p art o f the record . I f the
evid en ce exclu d ed is oral, the offeror m ay state
f o r th e r e c o r d th e n a m e a n d o th e r p e r s o n a l
circu m sta n ces o f the w itn ess and the su bstan ce
o f the proposed testim ony, (n)
NOTES
1. The form al offer o f testim onial evidence at the time

the w itness is called to testify is necessary to enable the
court to intelligently rule on any objection to the questions
asked. As a rule, the proponent m ust show its relevance,
m ateriality and com petence, and the adverse party m ust
prom ptly raise any objection thereto (People vs. Ancheta,
et a l , G.R. No. 143935, June 4, 2004).
870
'Z. P a r tie s w h o o ffe r o b je c tio n s to q u e s tio n s on

w hatever ground are entitled to a ruling at th e tim e the
objection is made, unless they present a question with
regard to w hich the court desires to inform its e lf before
m aking its ruling. In th at event, it is perfectly proper for
the court to take a reasonable tim e to study the questions
raised by the objection, but a ruling should always be made
during the trial. If no ruling is made during the course of
the trial, counsel would have no means of knowing w hether
or not he w ould be com pelled to m eet any evidence at all,
hence it would prejudice the substantial rights o f his client
(Lopez, etc. vs. Valdez, 32 Phil. 644). The failure o f the
co u rt to m ake su ch ru lin g sh ou ld be b ro u g h t to its
attention, failin g which the case cannot be reopened for a
new trial on that ground (People vs. Singh, et al., 45 Phil.
676). The reservation o f a ruling made by the court on
an ob jection to the adm issib ility o f evid en ce, w ith ou t
subsequently excluding the same, am ounts to a denial of
said objection (People vs. Tavera, et al., 47 Phil. 645).
A t any rate, the cou rts sh ould con sid er the evid en ce
only for the purpose for w hich it w as offered (P eople vs.
Abalos, etc., et al., [CA], 58 O.G. 5446).
3. The trial court should prom ptly rule upon the
o b je ctio n s to en a ble the p a rty ob je ctin g to m eet the
situation created by a denial o f his objection, but if the
objecting party does not insist on such ruling during the
trial, he can not be heard to com plain th ereof for the first
tim e on appeal (People vs. Singh, et al., supra), except
where such act o f the trial court has resulted in serious
prejudice to the substantial rights o f the objecting party
in w h ich ca se th e a p p ella te cou rt m ay co n sid e r that
om ission as reversible error (Lopez, etc. vs. Valdez, supra).
4. The trial courts should permit all exhibits presented
by the parties, although not adm itted, to be attached to
the records so that, in case o f appeal, the appellate court
871
m ay be able to exam ine the sam e and determ in e the

propriety o f their rejection (O liveros, et al. vs. Oliveros,
et al., 106 Phil. 369; Lam agan vs. D e la Cruz, etc., et al.,
L -27950, July 29, 1971). This procedu re is now spe-
cifically provided in Sec. 40 o f the Rule and includes, for
the same reason and purpose, oral evidence which the trial
court m ay have excluded or refused to admit.
H ow ever, it has been held that w here docum entary
evidence w as rejected by the trial court and the offeror
did not move that the same be attached to the record, the
sam e cannot be considered by the appellate court (Banez,
et al. us. CA, et al., L-30351, Sept. 11, 1974), as docum ents
form ing no part o f proofs before the appellate court cannot
be considered in disposing o f the case (De Castro vs. CA,
et al., 75 Phil. 824); otherw ise, that w ould infringe upon
the constitutional right o f the adverse party to due process
o f law (Tinsay vs. Yusay, et al., 47 Phil. 639).
5. The practice o f exclu ding eviden ce on doubtful
objections to its m ateriality or technical objections to the
form o f the questions should be avoided. In a case o f any
intricacy it is im possible for a judge o f first instance, in
the early stages o f the developm ent o f the proof, to know
w ith any certainty w hether testim ony is relevant or not;
and w here there is no indication o f bad faith on the part
o f the attorney offering the evidence, the court may, as a
rule, safely accept the testim ony upon the statem ent of
the a ttorn ey th at the p ro o f offe red w ill be con n ected
later (Prats & Co. vs. Phoenix Insurance Co., 52 Phil. 807).
At any rate, in the final determ ination and consideration
o f the case, the trial court should be able to distinguish
the adm issible from the inadm issible, and reject what,
under the rules o f evidence, should be excluded. There is
greater reason to adhere to such policy in crim inal cases
w here questions arise as to adm issibility o f evidence for
the prosecution, for the unjustified exclusion o f evidence
872
may lead to the erroneous acquittal o f the accused or the

dism issal o f the charges, from w hich the P eople can no
longer appeal (People vs. Yatco, etc., et al., 97 Phil. 940).
6. A s to w h en rea l, te s tim o n ia l or d o cu m e n ta ry
evidence are deem ed form ally offered for adm ission and
o b je ctio n s th e re to sh ou ld be in terp o se d , see a lso the
notes under Sec. 4, Rule 128.
7. T he pu rp ose for w h ich th e eviden ce is offered
must be specified because such evidence may be admissible
fo r s e v e ra l p u rp o s e s u n d e r th e d o ctr in e o f m u ltip le
adm issibility, or m ay be adm issible for one purpose and
n ot for a n oth er, oth erw ise the a d verse p a rty ca n n ot
interpose the proper objection. Evidence subm itted for
one purpose m ay not be considered for any other purpose
(People vs. Diano, [CA], 66 O.G. 6405).
8. A docum ent or w riting w hich is adm itted not as
an in d e p e n d e n t e v id e n ce b u t m e rely as p a rt o f the
testim ony o f a w itness does not constitute p ro o f o f the
fa c t s r e la t e d t h e r e in (S h e r a t o n -P a la c e H o te l vs.
Quijano, [CA], 64 O.G. 9118).
9. T he id e n tifica tio n o f d ocu m en ta ry e v id e n ce is
d iffe re n t from its form a l o ffer. Id e n tific a tio n o f the
evidence is m ade in the course o f the trial and m arked as
exhibits, and it is only w hen the proponent rests his case
and form ally offers the evidence that an objection thereto
m ay be m ade. Any objection prior thereto is prem ature
(P eople vs. T eodoro, etc., 98 Phil. 569). The eviden ce
id en tified at the trial and m ark ed as exh ibits m ay be
w ithdraw n before the form al offer th ereof or m ay not at
all be offered as evidence.
D ocum ents w hich may have been m arked as exhibits
during the h earing but w hich w ere not form ally offered
in evidence cannot be considered as evidence nor can they
be given any evidentiary value (Vda. de F lores, etc., et al.
873
vs. WCC, et al., L-43316, July 21, 1977; Republic, et al.

vs. CA, et al., L-41115, and People vs. CA, et al., L-41116,
join tly decided on Sept. 11, 1982; cf. People vs. Pecardal,
G .R . N o. 7 1381, an d S o lim a n vs. S a n d ig a n b a y a n ,
et al., G.R. No. 71305, both decided on Nov. 24, 1986).
However, it has been held in a crim inal case for kidnapping
w ith m urder that even if there w as no form al offer of
the exhibits but the same have been duly identified by
testim on y duly re cord ed and the e x h ib its h ave been
incorporated in the records o f the case, said exhibits are
adm issible against the accused (People vs. M ate, L-34754,
M ar. 27, 1981).
In P eople vs. Jose, et al. (L-28397, June 17, 1976),

a p rosecu tion for m urder, and Co vs. CA, et al. (G.R.
No. 52200, Aug. 21, 1980), a prosecution for hom icide,
considering the gravity o f the offenses and in the interest
o f justice, the Suprem e Court allow ed the presentation
o f and adm itted the birth certificates o f the accused to
prove the m itigating circum stance of m inority although
said birth certificates were not presented or offered in the
trial courts.
See also the resolu tion in P eople vs. A lvero (G .R.

No. 132364, Sept. 27, 2002) w here the Suprem e Court
adopted the same procedure on an appealed case involving
virtu a lly the same factual situation, and discussed its
authority to m odify final judgm ents in the higher interest
o f justice.
10. Sec. 37 provides that the repetition o f objections

to the sam e class o f evidence is not required. The party
m ay ju st en ter a gen era l and co n tin u in g ob jection to
the sam e class o f evidence and the ru lin g o f the court
shall be applicable to all such evidence o f the same class.
It has been held that the court itself may m otu proprio
treat the objection as a continuing one (Ed. A. K eller &
874
Co., I Ltd. I us. Ellerm an & Bucknall Steam ship Co., [Ltd.],
et a I., 38 Phil. 514).
11. An erroneous adm ission or rejection o f evidence
by the trial court is not a ground for a new trial or reversal
o f the decision if there are other independent evidence to
sustain the decision, or if the rejected evidence, if it had
b een a d m itted , w ou ld not h ave ch a n ged the d e cisio n
(People vs. Bande, et al., 50 Phil. 37); otherw ise, a new
trial is warranted by reason o f such erroneous ruling which
goes into the m erits of the case and w ould have affected
th e d e cis io n (U .S . vs. V illa n u ev a , 18 P h il. 593). If
the trial court erroneously ruled out the evidence and
discovered such error before the judgm en t had becom e
final or before an appeal therefrom had been perfected,
it may re-open the case (Tinsay vs. Yusay, et al., 47 Phil.
639).
12. T he ru lin g s o f the tria l cou rt on p ro ce d u ra l
qu estion s and on adm issibility o f evidence du rin g the
course o f a trial are interlocutory in nature and m ay not
be the subject o f separate appeals or review on certiorari.
T hese are to be assigned as errors and review ed in the
appeal taken from the trial court on the m erits o f the case
(G atd u la vs. P eople, G.R. No. 140688, Jan. 26, 2001,
citin g cases).
875
E. W E IG H T AND SU FFIC IEN C Y OF EVID EN CE
RULE 133
W E IG H T A N D SU FFIC IEN C Y OF EVID E N C E
Section 1. P repon d eran ce o f evidence, how d e te r -

mined. — In civil cases, the party having the burden
o f p ro of m ust establish his case by a preponderance
o f evidence. In determ ining where the p rep on d er-
a n c e o r s u p e r io r w e ig h t o f e v id e n c e on th e
issues involved lies, the court m ay consider all the
facts and circum stances o f the case, the w itn esses5
m a n n e r o f t e s t ify in g , th e ir in t e llig e n c e , th e ir
m ea n s and o p p o rtu n ity o f k n o w in g the fa cts to
w h ic h th e y are t e s t i f y i n g , th e n a t u r e o f th e
facts to which they testify, the probability or im pro-
bability o f their testim ony, their interest or want
o f interest, and also their personal cred ib ility so
far as the same m ay legitim ately appear upon the
trial. The court m ay also consider the num ber o f
w it n e s s e s , th o u g h th e p r e p o n d e r a n c e is n o t
n ecessarily with the greater num ber, (la )
Sec. 2. P r o o f b eyon d re a so n a b le d o u b t. — In a
crim inal case, the accused is entitled to an acquittal,
u n le s s h is g u ilt is sh o w n b ey o n d a r e a s o n a b le
d o u b t. P r o o f b ey o n d a r e a so n a b le d o u b t d oes
n ot m ean such a d egree o f p r o o f as, e x c lu d in g
p ossib ility o f error, produces absolute certainty.
M oral certainty only is required, or that degree of
p roof which produces conviction in an unprejudiced
m ind. (2a)
RULE 133 WEIGHT AND SUFFICIENCY SECS. 1-2
OF EVIDENCE
NOTES
1. S ecs. 1 and 2 give th e ru les on th e re q u is ite

quantum o f evidence in civil and crim inal cases. The last
two sentences of Sec. 1 suggest the factors w hich the court
may take into consideration in determ ining the w eight to
be given to testim onial evidence, and these factors apply
to both civil and crim inal cases (U.S. vs. Claro, 32 Phil.
413). See Note 1 under Sec. 1, Rule 131.
2. Evidence, to be w orthy o f credit, m ust not only
proceed from a credible source but must, in addition, be
credible in itself. And by this is m eant that it shall be
natural, reasonable and probable as to m ake it easy to
believe (P eople vs. B aquiran, L -20153, June 29, 1967;
Vda. de B onifacio, et al. vs. B.L.T. Bus Co., Inc., et al.,
L -26810, A u g. 31, 1970; P eop le vs. M acaso, L -30489,
J u n e 30, 1 9 7 5 ; P eo p le vs. P er u e lo , G .R. N o. 5 0 631,
June 29, 1981).
3. Evidence to be believed should be in accord with
the com m on know ledge and experience o f m ankind (see
P eople vs. Acusar, et al., 82 Phil. 490; P eople vs. Cada, 82
P h il. 6 7 1 ; P e o p le vs. T a lled o , et a l., 85 P h il. 5 3 3 ;
C astanares vs. CA, et al., L-41269-70, Aug. 6, 1 9 7 9 ;People
vs. M arong, et al., G.R. No. 56858, Dec. 27, 1982).
4. The general rule is that the findings o f the judge
w ho tried the case and heard the w itnesses are not to be
disturbed on appeal, unless there are substantial facts and
circum stances w hich have been overlooked and w hich, if
properly considered, m ight affect the result o f the case
(P eople vs. Brioso, et al., L-28482, Jan. 30, 1971; People
vs. D ila o , et a l., L -4 3 2 5 9 , O ct. 23, 1 9 8 0 ; P e o p le vs.
S ibayan, L -41700, A ug. 30, 1982; P eop le vs. Cabrera,
L-31178, Oct. 28, 1990). Such findings, except for good
cause, are generally not disturbed on appeal (People vs.
Villaroya, et al., 101 Phil. 1061; People vs. Yap, et al.,
877
L -28664, D ec. 22, 1971; P eople vs. C ielo, et al., G.R.

No. 64923, Oct. 31, 1984). W here the issue is on the
credibility o f w itnesses, generally the findings o f the trial
court w ill not be disturbed on appeal since it w as in a
better position to decide the question, having heard and
observed the dem eanor o f each w itness (People vs. Baao,
G .R. N o. 68574, J u ly 7, 1986), u n less it has p la in ly
overlooked certain facts o f substance and value w hich, if
considered, m ight affect the result o f the case (People vs.
R e a lo n , et a l., L -3 0 8 3 2 , A u g . 29, 1 9 8 0 ; P e o p le vs.
Laganzon, et al., L-47118, M ay 21, 1984 and cases therein
cited). However, if the issue revolved on the identification
o f the accused or the credibility of w itness and one judge
heard the testim ony o f the prosecution w itnesses but a
different judge penned the decision, this rule does not
apply (People vs. Salas, et al., L-35946, Aug. 7, 1975; cf.
P eople vs. Arciaga, et al., L -3 8 1 79, June 16, 1980; People
vs. Caparas, et al., L-47411, Jan. 18, 1982; P eople vs.
E scalante, et al., L-37147, Aug. 22, 1984) becau se the
latter, not having heard the testim on ial presentation,
w ould not be in a better position than the appellate courts
to m ake such determ ination (People vs. CA, et al., G.R.
No. 120706, Jan. 31, 2000).
5. The m atter o f assigning values to declarations at
the witness stand is best and m ost com petently perform ed
or ca rried out by a tria l ju d g e w ho, u n like appellate
m agistrates, can w eigh such testim on y in light o f the
defendant’s behavior, dem eanor, conduct and attitude at
the trial, and the conclusions o f trial courts com m and great
w eight and respect (People vs. M agallanes, et al., L-21559-
60, June 29, 1968). The trial court, how ever, should not
discredit a w itness by the supposed expression o f lack of
sincerity in his face. Facial expressions are not necessarily
indicative o f one’s feelings. The trial court should have
m ade it appear in the record and allow ed the w itness the
op p o rtu n ity to e x p la in w hy he w as sh ow in g such an
878
OF EVIDENCE
expression on his face (People vs. Enriquez, [CA], 44 O.G.

3853).
6. As a general rule, the num ber o f w itnesses should
not in and by itself determ ine the w eight o f evidence, but
in ca se o f c o n flic tin g te s tim o n ie s o f w itn e s s e s , the
num erical factor may be given certain w eight (C aluna vs.
Vicente, CA-G.R. No. 3911-R, Feb. 17, 1951; Lirios, et al.
vs. Lirios, et al., [CA], 58 O.G. 5654).
7. T h e fa ilu r e o f a p a r ty to p r e s e n t m e r e ly
corroborative or cum ulative evidence does not give rise to
any a d verse or u n fa v o ra b le p re su m p tio n (P eo p le vs.
Quilino, [CA], 50 O.G. 237).
8. By credibility o f a w itness is m eant his integrity,
disposition and intention to tell the truth in the testim ony
he has given as distinguished from the credibility o f his
testim on y (People vs. Rivera, [CA], 58 O.G. 68).
9. To hold that a particular person is com petent to
te s tify u p on a g iv en m a tte r does not m ean th a t his
testim on y thereon must be believed by the court or must
be deem ed by it to be o f su fficien t p robative valu e to
e s ta b lis h th e p oin t w h ich it w as in te n d e d to p rov e.
Com petency o f a w itness is one thing, and it is another to
be a credible w itness. Courts allow a person to testify as a
w itness upon a given matter because he is com petent but
m ay thereafter decide w hether to believe or not to believe
his testim ony (Arroyo, et al. vs. El Beaterio del Santissim o
R osario de M olo, et al., L-22005, M ay 3, 1968).
10. It is a w ell-settled doctrine that the dem eanor,
the em phasis, gestures and inflection o f the voice o f a
w itness, w hile testifying, are potent aids in the proper
evalu ation o f his credibility (U.S. vs. M acuti, et al., 26
Phil. 170).
11. W hen a witness makes two sworn statem ents and
these tw o statem ents incur in the gravest contradictions,
879
the court cannot accept either statem ent as proof. The

w itness by his own act o f giving false testim ony im peaches
his own testim ony and the court should exclude it from all
c o n s id e r a t io n (U .S . vs. P a la , et a l., 19 P h il. 1 9 0 ;
M on d ragon vs. CA, et al., L -3 5 9 7 8 & 36069, D ec. 26,
1974). This is different from the situation w herein the
testim o n y o f tw o w itn esses con tra d ict each oth er, in
w hich case the court shall adopt such testim ony w hich it
believes to be true (U.S. vs. Lasada, 18 Phil. 90).
12. It has been said that “perhaps the m ost subtle
and p rolific o f all fa lla cies o f testim on y arises out of
u n co n sciou s pa rtisa n sh ip . U pon the h a p p en in g o f an
accident, the occasion al passengers on board a s treet-
car are very apt to side with the em ployees in charge of
the ca r” (P eop le vs. R eyes, [C A ], 50 O.G. 665, citin g
Wellman, The A rt o f Cross-E xam ination, 161, 164, 165).
13. The fact that a person has reached the “tw ilight
o f his life” is not always a guaranty that he w ould tell the
truth. It is also quite com m on that advanced age m akes
a person m entally dull and com pletely hazy about things
w hich have happened to him and, at tim es, it w eakens
his resista n ce to outside in flu en ce (P eople vs. Juarez,
[CA], 57 O.G. 2518).
14. T h e r e c o r d o f a p r e lim in a r y in v e s t ig a t io n
constitutes no part o f the final proceedings in a cause,
unless it is presented in evidence, and the facts adduced
therein are evidence only for the purpose o f testing the
credibility o f w itnesses (U.S. vs. Grant, eta l., 18 Phil. 122;
U.S. vs. Laban, 21 Phil. 297).
15. A w itn ess may be said to be biased w hen his
relation to the cause or to the parties is such that he has
an in ce n tiv e to ex a g g era te or give fa lse co lo r to his
statem ents, or to suppress or pervert the truth, or to state
what is false. Bias is that w hich excites the disposition to
880
OF EVIDENCE
see and report m atters as th ey are w ish ed for ra th er

than as they are [II M oore on Facts, Sec. 1091, p. 1225].
When the w itnesses on both sides are equally interested
or otherw ise biased, especially if there is no num erical
p r e p o n d e r a n c e on e ith e r s id e , b ia s c e a s e s to be a
c o n s id e r a t io n in d e te r m in in g w h e re th e w e ig h t o f
evidence rests. Credit should be given to the one w hose
dem eanor and m anner o f testifyin g convinces the court
o f his credibility (People vs. Watin, [CA], 67 O.G. 5899).
16. The testim ony o f in terested w itnesses are not
n ecessarily biased, incredible or self-servin g, although
their interest may to som e extent affect their credibility
(P eo p le vs. L a rd iza b a l, 99 P h il. 1027; N a tio n a l D e -
velopm ent Co. vs. WCC, et al., L-21724, A pril 27, 1967;
P eople vs. Kipte, L-26662, Oct. 30, 1971).
17. W hile the testim ony o f a co-con spira tor or an
accom plice is adm issible, such testim ony com es from a
polluted source and must be scrutinized with great caution
as it is su bject to grave su spicion (P eople vs. A qu ino,
L -27184, M ay 21, 1974).
18. T h e te s tim o n y o f a s in g le w itn e s s m a y be
s u ffic ie n t to p ro d u ce c o n v ic tio n i f it a p p e a rs to be
trustw orthy and reliable (People vs. Zabala, et al., 86 Phil.
251; People vs. Tem plonuevo, 106 Phil. 1003; P eople vs.
A rgana, e ta l., 119 Phil. 573; People vs. Salazar, L-32858,
A u g . 18, 1 9 7 4 ; P eo p le vs. Tan, J r., G .R. N o. 53834,
Nov. 24, 1986).
19. The conviction o f an accused m ay be based on
the testim ony of one witness alone provided such testim ony
is clear and convincing (People vs. Olais, 45 O.G. 279;
P eople vs. Padrones, 45 O.G. 1359; P eople vs. M ayo, 45
O.G. 1366). The testim ony o f the offended party is not
essential to convict an accused if there are already other
eviden ce to prove the guilt o f the latter, and the n on -
881
presentation o f the offended party as a w itness, under

these circum stances, does not detract from the efficacy of
the proceedings (People vs. Juliada, 54 Phil. 485). The
prosecution is not obliged to present each and every person
who w itnessed the occurrence but only a sufficient number
to p ro v e th e co m m is s io n o f th e o ffe n s e (P e o p le vs.
M arasigan, 51 Phil. 701).
20. W hen the evidence o f the prosecution consists of
the uncorroborated testim ony o f a lone w itness, who had
incurred in an unexplained contradiction on an im portant
detail and had show n an attitude apparently inconsistent
w ith the truth o f his testim ony, it should not be enough
basis to convict the accused. The fact that the prosecution,
w ith ou t expla n ation , fa iled to ca ll severa l w itn esses,
three m entioned in the inform ation and two others m en-
tioned by the lone w itness, gives rise to the presum ption
th a t th eir te stim o n ie s w ould not be fa v o ra b le to the
prosecution’s cause (People vs. Ricarte, et al., 44 O.G. 2223).
21. Inconsistencies or contradictions on mere details
in the testim ony o f a w itness do not m aterially im pair the
credibility o f such w itness (People vs. M odelo, L-29144,
Oct. 30, 1970; People vs. Bongo, et al., L-26909, Feb. 22,
1974). Inconsistencies in their testim ony on insignificant
details do not affect their credibility as to the m aterial
points. On the contrary, such con trad iction s indicate
v e ra city ra th er than p rev a rica tio n (P eople vs. Vinas,
L -21756, Oct. 28, 1968), and only ten d to b olster the
probative value o f such testim ony (People vs. Selfaison,
et al., L-14732, Jan. 28, 1961). On the other hand, the
p e rfe ct d o v e ta ilin g o f sev era l w itn e s s e s ’ testim on ies
can not bu t generate the su sp icion that the m aterial
circum stances testified to by them were integral parts o f
a w ell th ou gh t o f and p refa b ricated story (P eop le vs.
A lviar, L-322276, Sept. 12, 1974; P eople vs. Agudo, et al.,
L-43796, July 15, 1985).
882
OF EVIDENCE
2 2. The maxim falsus in uno, falsus in om nibus deals

only with the w eight o f evidence and is not a positive rule
o f law, and the rule is not an inflexible one o f universal
application (People vs. P a d s, et al., L-32957-58, July 25,
1984). The m odern trend o f jurisprudence is to the effect
that the testim ony o f a w itness may be believed in part
and disbelieved in part, depending upon the corroborative
evidence and the probabilities or im probabilities o f the
case (P eop le vs. D asig, et al., 93 Phil. 619; P eop le vs.
Pacabes, eta l., su pra;P eople vs. Dom inguez, [CA], 51 O.G.
2983). The rule does not apply w here the ch allen ged
testim ony is sufficiently corroborated on m any grounds,
or w here the falsity consists o f mistakes on points that are
not m aterial, or w here such m istakes do not arise from an
apparent desire to pervert the truth but from innocent
lapses and the desire o f the w itness to exculpate h im self
although not com pletely (People vs. Dasig, et al., supra).
The w itn esses’ false or exaggerated statem ents on other
m atters shall not preclude the acceptance o f such o f their
evidence as is relieved from any sign o f falsehood. The
p re s e n t ru le in the P h ilip p in e s is th a t th e d octrin e
o f falsus in uno, falsus in om nibus is not an absolute
one nor m andatory and bin ding upon the cou rt w hich
m ay accept or reject portions o f the w itn ess’ testim ony
d ep en d in g on the in h eren t cr e d ib ility th e r e o f or the
corroborative evidence in the case (People vs. Dasig, supra;
P eople vs. Li Bun Juan, L -11077, Aug. 23, 1966; People
vs. M alillos, L-26568, July 29, 1968; People vs. Surban,
et al., L-37518-19, June 29, 1983; P eople vs. E spinosa,
G.R. No. 62613, June 17, 1986; People vs. P acada, Jr.,
et al., L -44444-45, July 7, 1986; People vs. Baao, G.R.
No. 68574, July 7, 1986).
23. The non-production o f a corroborative w itness
w ith o u t an y e x p la n a tio n g iv e n w hy he w a s n o t so
p rod u ced , w eak en s the testim on y o f the w itn ess who
nam ed that corroborating w itness in his testim ony (People
883
vs. Abonales, et al., 106 Phil. 190). C orroboration is not

required or expected in the crim e o f rape w hich, as a rule,
is com m itted w ithout anybody else being present except
the rapist and the victim (People vs. M odelo, L-29144,
Oct. 30, 1970), but considering the ease w ith w hich such
testim ony may be made and the difficulty on the part o f
the accused in disproving it, w here the point at issue is
w hether the act was com m itted w ith or w ithout the use o f
force or threat, such testim ony should be scrutin ized with
the greatest caution (U.S. vs. Flores, 26 Phil. 262; D acu g
vs. G onzales, [CA], 58 O.G. 7068).
24. The testim ony o f persons accidentally present at
the tim e o f the execution of the w ill, but who have nothing
to do with the transaction, is not as w eighty as that o f
the subscribing w itnesses (G arcia, et al. vs. G arcia de
Bartolom e, 63 Phil. 419).
25. A ffirm ative testim ony is stronger than negative
testim ony. The testim ony o f a credible w itness that he
saw or heard a particular thing at a particular tim e and
place is m ore reliable than that o f an equally credible
w itness who, w ith the same opportunity, testified that he
did not hear or see the same thing at the same tim e and
place. N egative testim ony o f a witness cannot prevail over
the positive statem ents o f persons who were eyew itnesses
o f the fact w hich is the subject o f investigation (see Vda.
de Ram os, et al. vs. CA, et al., L-40804, Jan. 31, 1978).
26. In w e ig h in g c o n tr a d ic to r y d e c la r a tio n s and
statem ents, greater w eight must generally be given to the
positive testim ony o f the prosecution w itnesses than to the
denial o f the defendant (People vs. Espanol, [CA], 51 O.G.
2423).
27. The w itnesses adm ittedly present w hile a fact is
taking place may not coincide in describing all the details
o f the occurrence. One m ay m ention details w hich the
884
OF EVIDENCE
other may not have observed or may not rem em ber. The
apparent conflict may be due to differences in observation
or m em ory w hich does not necessarily im ply falsehood on
their part (People vs. Tuason, 47 O.G. 6177).
28. D elay o f a w itness in revealing to the authorities
what he knows about a crime does not render his testim ony
fa lse, for th e delay m ay be exp la in ed b y th e n atural
re ticen ce o f m ost people and th eir a b h orren ce to get
in volved in a crim inal case (P eople vs. U ntalasco, Jr.,
et al., G.R. No. 61105, Oct. 25, 1983; People vs. Pacabes,
et al., G.R. No. 55417, June 24, 1985; People vs. Punzalan,
et al., G.R. No. 54562, Aug. 6, 1987). But m ore than this,
there is always the inherent fear o f reprisal, w hich is quite
understandable especially if the accused is a m an o f power
and influence in the com m unity (People vs. Catao, et al.,
1 0 7 Phil. 8 6 1 ;People vs. Estocada, L-31024, Feb. 28, 1977).
The delay o f a w itness in divulging w hat she knows
about the crim e, if satisfactorily explained at the trial as
where it w as due to her intense grief, does not underm ine
her credibility (People vs. Castillo, L - l l 793, M ay 19, 1961;
People vs. Provo, et al., L-28347, Jan. 20, 1971; P eople
vs. G u eva rra , L -3 2 1 4 7 -4 9 , M ar. 17, 1978; P eo p le vs.
Cuadra L-27973, Oct. 23, 1978; People vs. Tamayao, G.R.
No. 56699, Jan. 28, 1983). A lso, w here the failu re o f a
w itn ess to revea l all that she k now s abou t the crim e
com plained o f was satisfactorily explained by her during
the trial, and was attributed to her fear o f reprisal and
actual threats made upon her, such failure can not w eaken
the credibility o f her testim ony (People vs. Bulan, 108 Phil.
932). The refusal o f a person to subm it to in vestigation to
explain the innocent role he professes is in con sistent with
the norm al reaction o f an innocent man (People vs. Bunsol,
et a l , L-33344, Mar. 25, 1975).
29. The mere relationship o f the witness to the victim
does not im pair his positive and clear testim ony nor render
885
the same less w orthy o f credit (People vs. Berganio, et al.,

110 Phil. 322; People vs. R icaplaza, L-25856, A pril 29,
1968; People vs. M alillos, supra; P eople vs. Yap, et al.,
L-28664, Dec. 22, 1971; People vs. M oises et al., L-32495,
A ug. 13, 1975; P eop le vs. E stocad a, su p ra ; P eop le vs.
Lopez, L-33642, Sept. 28, 1984), unless there is a show ing
of im proper m otive on the part o f said w itnesses (People
vs. Jabeguero, G.R. No. 61078, Oct. 24, 1983; People vs.
N epom uceno, L-41412, M ay 27, 1985).
30. W here a party resorts to falsehood to advance
his suit, it is presum ed that he knows perfectly w ell that
his cause is groundless, and this presum ption affects the
w hole m ass o f evidence presented by such party (Tanala
vs. D iola , et al., [C A ], 62 O.G. 4946, and ca ses cited
therein).
A party s falsehood or other fraud in the preparation
and p resen ta tion o f his cause, his fa b rica tion or su p -
pression o f evidence by bribery or spoliation, and all similar
conduct, are receivable against him as indications o f his
consciousness that his cause is w eak or unfounded and
from that consciousness may be inferred the fact itself o f
the case’s lack o f truth and merit (De Leon vs. Juyco, 73
Phil. 588; Santiago Virginia Tobacco Planters Association,
Inc. vs. P .V.T.A., et al., L-26292, Feb. 18, 1970).
31. A ff i d a v i t s a re g e n e r a lly s u b o r d in a t e d in
im portance to open court declarations because they are
oftentim es executed w hen the affiant is at a high pitch of
excitem ent and w hen his m ental faculties are not in such
a state as to afford him a fair opportunity o f narrating in
full the incident which has ju st transpired. Also, affidavits
are not com plete reproductions o f what the declarant has
in m ind b eca u se th ey are g en era lly p rep a red by the
adm inistering officer and the affiant sim ply signs after
the same have been read to him. It is to be expected that
on ly th ose p oin ts w h ich th e o ffic e r th in k s m igh t be
886
OF EVIDENCE
im portant would be contained therein (People vs. Cogulio,

et al., ICA], 54 O.G. 5516). Ex parte affidavits are gen-
e ra lly in co m p le te , often fo r w an t o f s u g g e s tio n and
inquiries, hence discrepancies betw een the statem ents o f
the affiant in his affidavit and those made by him on the
w itness stand do not necessarily discredit him (P eople
vs. N atividad, [CA], 50 O.G. 5824; People vs. G onzales,
et al., L -40727, Sept. 11, 1980). An a ffid a v it is only
prim a facie evidence o f w eak probative force and should
be r e c e iv e d w ith c a u tio n (R o d r ig u e z vs. R ed L in e
Transportation Co., Inc., 51 O.G. 3006). W here the incul-
pating affidavit o f a w itness was substantially disow ned
by him and was in conflict w ith his sw orn testim ony at
the trial, the latter has been invariably believed (People
vs. M ones, et al., 58 Phil. 46; People vs. Tan, et al., 89
Phil. 337; People vs. Castaneda, 90 Phil. 867; P eople vs.
Fader, 94 Phil. 522; Varela vs. Villanueva, 95 Phil. 248).
These rules, how ever, do not apply w here the om ission
in the affidavit refers to a very im portant detail such
th a t th e a ffia n t w ou ld not have fa ile d to m e n tio n it
(P eople vs. A nggot, L-38101-12, June 29, 1981), or the
self-contradictions and inconsistencies are on very material
and substantial m atters (People vs. Am on, et al., L-48929,
Nov. 28, 1984).
G enerally, an affidavit is not prepared by the affiant
h im se lf but by another who uses his ow n langu age in
writing the affiant’s statements. Omissions and m isunder-
standings by the w riter are not infrequent particularly
under circum stan ces o f hurry or im patience. For this
reason, the infirm ity o f affidavits as a species o f evidence
is m u ch a m a tte r o f ju d ic ia l e x p e rie n c e (P eo p le vs.
M ariquina, et al., 84 Phil. 39; People vs. M endoza, et al.,
L -3 3 1 2 7 , J u ly 15, 1981; cf. P eo p le vs. A n d a ya , G.R.
No. 63862, July 31, 1987).
887
32. The fact that the prosecution used as w itnesses

persons who were accom plices w ithout including them in
the inform ation and afterw ard asking for their exclusion
does not render their testim ony inadm issible, although
it is w eak and u su a lly needs co rro b o ra tio n (U .S . vs.
Enriquez, 40 Phil. 603; People vs. Castaneda, 63 Phil. 480).
33. To prove conspiracy, the prosecution need not
establish that all the parties thereto agreed on every detail
in the execution o f the crim e or that they were actually
together at all the stages o f the conspiracy. It is enough
that, from the individual acts o f each accused, it may
reasonably be deduced that they had a com m on plan to
com m it the felony (People vs. Catao, et al., supra; People
vs. Caitor, et al., G.R. No. 66615, July 26, 1985). However,
the same degree o f p roof required for establish in g the
crime is required to support a finding o f conspiracy (People
vs. Tum alip, et al., L-28451, Oct. 28, 1974), i.e., p roof
beyond reasonable doubt (People vs. D rilon, Jr., L-33431,
June 28, 1983; People vs. Saavedra, L-48738, May 18, 1987).
C onspiracy need not be established by direct evidence
o f the acts ch a rged , bu t m ay and g e n e ra lly m u st be
proved by a num ber o f indefinite acts, con dition s and
circum stances w hich vary according to the purpose to be
accom plished. If it be proved that two or m ore persons
aim ed by their acts tow ards the accom plishm ent o f the
same unlaw ful object, each doing a part so that their acts,
though apparently independent, were in fact connected
and c o o p e r a tiv e , in d ic a tin g a clo s e n e s s o f p e rs o n a l
association and a concurren ce o f sentim ent, a conspiracy
m ay be inferred though no actual m eeting am ong them
for concerted m eans is proved (People vs. Colman, et al.,
103 Phil. 6). Conspiracy can be proved by circum stantial
evidence (People vs. Mejia, L -26195, Jan. 31, 1974; People
vs. Candado, et al., L-34089, Aug. 1, 1978), but it must
be proved w ith as m uch certa in ty as the crim e its e lf
888
OF EVIDENCE
(People us. Geronimo, et al., L-35700, Oct. 15, 1973; People

vs. Dagangon, et al., G.R. Nos. 62654-58, Nov. 13, 1986).
C onspiracy m ay be deduced from the m ode and m anner
in which the offense was com m itted (People vs. R oncal,
et a l , L-26857-58, Oct. 21, 1977).
34. The circum stances qualifying or aggravating the
a ct m u st be p ro v e d in an e v id e n t and in c o n te s ta b le
m anner. They m ust be proved as conclusively as the acts
constitu ting the offense (People vs. Tiongson, L-35123-
24, Ju ly 25, 1984, and cases th erein cited; P eop le us.
M analo, G.R. No. 55177, Feb. 27, 1987; People us. Atienza,
G.R. No. 68481, Feb. 27, 1987).
35. O ne w h o sets up s e lf-d e fe n s e or d e fe n s e o f
his relative m ust rely on the strength o f his ow n evidence
and n ot on th e w ea k n ess o f th a t o f th e p ro s e c u tio n
which, even if weak, could not be disbelieved after the
a ccu sed h im s e lf had a d m itted the k illin g (P eop le vs.
A nsoyon, 75 Phil. 772; People vs. Caparas, et al., L-47411,
Feb. 20, 1981; People vs. R odil, L-35156, Nov. 20, 1981;
P eop le vs. G arach ico, et al., L -30849, M ar. 29, 1982;
P e o p le vs. G a d ia n o, L -3 1 8 1 8 , J u ly 30, 1 98 2 ). T he
quantum o f evidence necessary to prove self-defense or
defense o f a relative is “clear and convincing” evidence.
If the evidence for the defense is o f dou btful veracity,
con viction o f the accused is im perative (P eople vs. Berio,
59 Phil. 533; P eople vs. Bakit, 44 O.G. 102; P eople vs.
Bauden, 7 7 Phil. 105; People vs. Nacuspag, et al., L-31682,
July 20, 1982; People vs. D ofilez, L-35103, July 25, 1984).
36. A lib i is one o f th e w ea k est d efen ses. E a sily
su sceptible o f concoction, it is invariably to be view ed
w ith s u s p ic io n a n d m a y be c o n s id e r e d o n ly w h e n
established by positive, clear and satisfactory evidence.
To be given credence, it m ust not only appear that the
accused interposing the same was at som e oth er place
but also that it was physically im possible for him to be at
889
the scene o f the crim e at the tim e o f its com m ission

(P eo p le vs. G eron es, et al., 96 P h il. 965; P eo p le vs.
B a n iaga, L -14905, Jan. 28, 1961; P eop le vs. A qu in o,
L -36468, Nov. 20, 1984; People vs. Pacada, Jr., et al.,
supra). Such defense becom es w eaker if uncorroborated;
w orse still if it could have been corroborated by other
persons m entioned by the accused but such corroborative
testim on y has not been presen ted (P eop le vs. B rioso,
et al., L-28482, Jan. 30, 1971).
Yet, although the defense o f alibi may stand searching
scrutiny, nevertheless it acquires com m ensurate strength
w h ere no p ositive and proper id en tifica tio n has been
made by the w itnesses o f the offender, as the prosecution
still has the onus proband i in establishing the guilt of
the accused and the w eakness o f the defense does not
relieve it o f this responsibility (People vs. Cruz, L-24424,
Mar. 30, 1970; People vs. Salas, et al., L-35946, Aug. 7,
1975; P eople vs. Teano, G.R. No. 56356, Mar. 12, 1984;
People vs. Som ontao, L-45366-68, Mar. 27, 1984; People
vs. Ola, L-47147, July 3, 1987), otherw ise there w ould be
the absurd situation where the accused is in a more difficult
situation where the prosecu tion ’s evidence is vague and
weak than where it is strong (People vs. Fraga, et al., 109
Phil. 241; People vs. Dilao, et al., L-43259, Oct. 28, 1980).
The identity o f the offender, like the crim e itself, m ust be
p roved b eyon d rea son a b le dou bt (P eop le vs. B eltra n ,
L-31860, Nov. 29, 1974; P eople vs. G alvez L-26944-45,
D ec. 5, 1980; P eople vs. Clores et al., G.R. No. 61408,
Oct. 12, 1983). W here the evidence o f the prosecution
is w eak and unsatisfactory (People vs. Lim, et al., L-46890,
N ov. 29, 1 9 7 7 ; P e o p le vs. P eru e lo , G .R. N o. 5 0631,
June 29, 1981; People vs. Torio, et al., L-48731 & P eople
vs. M asabe, et al., L -48732, Dec. 21, 1983; P eop le vs.
O lalia, Jr., G.R. No. 50669, M ar. 12, 1984), and the
id en tifica tion o f the accu sed is not reliable w h ile the
defense o f alibi is adequately proved, the accused should
890
OF EVIDENCE
be acquitted (O londriz, Jr., et al. vs. People, et al., G.R.

No. 63438, July 15, 1987, and cases therein cited).
37. W hen the accused puts up the defense o f alibi,
the cou rt should not at once have a m ental preju dice
against him. For, taken in light o f all the evidence o f
record, it may be sufficient to acquit him, especially since
every circum stance m ust be considered in favor o f the
p re su m p tio n o f in n ocen ce (P eop le vs. C astelo, et al.,
L-48070, Dec. 26, 1984, citin g P eop le vs. T abayoyong,
et al., L -3 1 084, M ay 29, 1981 and People vs. Villacorte,
et al., L -21860, Feb. 28, 1974; cf. P eople vs. M artinez,
L-39402, Sept. 24, 1986). W hile, as a rule, the defense
o f a lib i deserves scan t con sid era tion , it m ay be duly
en te rta in ed if p red ica ted on su b sta n tia l and relia b le
evidence sufficient to engender reasonable doubt as to
the guilt o f the accused (People vs. G erones, et al., supra).
The fact that the evidence for the accused is presented
to establish an alibi is not a circum stance to be regarded
as unfavorable to him, nor is the failure to establish it a
ground for suspicion, but the sam e m ust be considered in
light o f the other evidence in the case (People vs. Gonzales,
et al., 50 Phil. 9; People vs. Fraga, supra). T here are
situations w here an accused can have no possible defense
but alibi, since that could really be the truth as to his
w hereabouts at the tim e in question. H ence, as already
stated, w hen the defense o f alibi is o f such a nature as
not easily to be m anufactured, it may throw the scales
o f ju stice in favor o f the accused, especially w hen the
evidence for the prosecution is contradictory and incredible
(P eople vs. Gerones, supra).
38. W here one accused w ithdraw s his appeal after
realizing the futility of his defense, and the other escapes
from con fin em en t thereby causing the dism issal o f his
appeal, said acts are unm istakable signs o f guilt (People
vs. Aqu iedo, et al., 108 Phil. 186).
891
39. N on-paym ent o f the real estate taxes is indicative

o f the fact that the claim ant does not believe h im self to be
the ow ner o f the property (C ruzado vs. B ustos, et al.,
34 Phil. 17), w hile continuous paym ent o f such taxes is
evidence o f great w eight in favor o f ow nership (D irector
o f Lands vs. D epositario, CA-G.R. No. 10308-R, M ay 20,
1955; U rita, et al., vs. Tam ayo, [C A ], 57 O.G. 5252).
N everth eless, tax declaration s or the paym ent o f real
estate taxes on the land are not conclusive evidence o f
ow nership o f the declarant or payor (De Guzman, et al.
vs. CA, et al., L-47378, Feb. 27, 1987, and cases cited
therein,).
T ax receip ts are not in con trov ertib le ev id en ce o f
ow n e rsh ip b u t if a cco m p a n ied by open , a d v erse and
co n tin u e d p o s s e s s io n in the co n ce p t o f ow n er o f the
prop erty, th ey con stitu te eviden ce o f great w eigh t in
support o f a claim o f ow nership over said property by the
possessor th ereof or his privies (Tabuena vs. CA, et al.,
G.R. No. 85423, M ay 6, 1990; A m arante vs. CA, et al.,
G.R. No. 76386, M ay 21, 1990; A lonzo vs. Cebu Country
Club, Inc., G.R. No. 130876, Jan. 31, 2002).
40. It has been truly said that “the w icked flee even
w hen no m an pursueth , w hereas the righ teous are as
brave as a lion,” (U.S. vs. Sarikala, 37 Phil. 486) and it
has been held that flight is evidence o f guilt and o f a guilty
conscience (U.S. vs. Alegado, 25 Phil. 510). The conduct
o f the accused in running away from the scene, upon being
seen by the w itnesses, is positive and convincing evidence
o f consciousness o f guilt (People vs. G uialil Kam ad, 100
Phil. 419).
T he con verse, h ow ever, is not true. T h ere is no
doctrine that, in every instance, non-flight by the accused
is an indicator o f innocence (People vs. Garalde, et al.,
G.R. No. 128622, Dec. 14, 2000).
892
OF EVIDENCE
41. As a rule, the m otive o f the accused in a crim inal

case is im m aterial and, not being an elem ent o f a crim e, it
does not have to be proved (People vs. Tiengo, et al., G.R.
No. 55832, Nov. 20, 1984). H ow ever, evidence o f m otive
is relevant or essential in the follow in g instances:
(a) W here the identity o f the assailant is in question
(U .S. vs. M cM ann, 4 Phil. 561; P eop le vs. C aggaw an,
et al., 92 P hil. 118; People vs. M urray, 105 P hil. 591;
People vs. Peruelo, G.R. No. 50631, June 29, 1981);
(b) To determ ine the voluntariness o f the crim inal
act (People vs. Taneo, 58 Phil. 255) or the san ity o f the
accused (People vs. Bascos, 44 Phil. 204);
(c) To d e te rm in e from w h ich sid e th e u n la w fu l
aggression com m enced, as w h ere the accu sed invoked
self-defense w herein unlaw ful aggression on the part of
his opponent is an essential elem ent (U.S. vs. Laurel, 22
Phil. 252; People vs. Berio, 59 Phil. 533; People vs. Dofilez,
supra; B orguilla vs. CA, et al., L-47286, Jan. 7, 1987);
(d) To determ ine the specific nature o f the crim e
com m itted, e.g., w hether a m urder was com m itted in the
furtherance o f rebellion, in w hich case the latter absorbs
the form er; or w hether the accused had his ow n personal
m otives for com m itting the m urder in dependent o f his
m em bership in the rebellious m ovem ent, in w hich case
rebellion and m urder would constitute separate offenses
(P eop le vs. G eronim o, 100 P h il. 90); and, also, w h ere
injuries were in flicted on a person in authority who is not
in the actual perform ance of his duties in w hich case the
motive o f the offender has to be considered since the attack,
if by reason o f the past perform ance o f his official duties
b y th e p erson in a u th ority, w ou ld be d irect a ssa u lt;
otherw ise, the crime would be physical injuries (see People
vs. Cadag, et al., L -13830, M ay 31, 1961);
893
(e) To determ ine w hether a shooting was intentional

or acciden ta l, the fact that the a ccu sed had p erson al
m otives to shoot the victim being a w eighty consideration
(People vs. M artinez Godinez, 106 Phil. 597);
(f) W here the accu sed con tends that he acted in
defense o f a stranger, since it is essential, for such defense
to prosper, that the accused was not induced by revenge,
resentm ent or other evil m otive (Art. 11 [3], R evised Penal
Code); and
(g) W h e r e th e e v id e n c e is c ir c u m s t a n t ia l or
inconclusive and there is a doubt w hether a crim e has
been com m itted or w hether the accused has com m itted it
(People vs. N icolas, G.R. No. 137782, A pril 1, 2003).
42. Thus, since the m otive is not im portant w here
th e g u ilt o f th e a ccu s e d is in d u b ita b le (P e o p le vs.
F eliciano, et al., L-30307, A ug. 15, 1974) on the basis
o f oth er evid en ce addu ced th e re fo r w ith ou t evid en ce
o f m o tiv e b e in g sh ow n (P eo p le vs. R eyn o, L -1 9 0 7 1 ,
A p ril 30, 1965), m ere p ro o f o f m otive, no m atter how
strong, cannot sustain a conviction if there is no other
evidence esta blish in g the guilt o f the accu sed (P eople
vs. M acatangay, et al., 107 Phil. 189). W here, however,
the evidence is weak, w ithout any m otive being disclosed
by the evidence, the guilt o f the accused would be open to
a reasonable doubt w hich cou ld resu lt in an acqu ittal
(People vs. Cunanan, L-17599, A pril 24, 1967).
On the other hand, it has also been held that, in some
cases, m otive is n ecessary not only for the procedu ral
requirem ent on the quantum o f p roof but as virtu ally an
elem ent o f the offense, such as to prove m alice o f the
accused in libel or slander (U.S. vs. Bustos, 8 7 Phil. 731)
or the fact that in m alicious m ischief, the accused caused
dam age to the property just for the sake o f dam aging it
(U.S. vs. Gerale, 4 Phil. 218). In other w ords, the true
894
OF EVIDENCE
m o tiv e o f th e co n d u ct o f th e a ccu s e d e x p la in s a n d
su pplies the elem en t o f m alice and, corre sp o n d in g ly ,
proves his crim inal intent.
43. D raw ing from N eil us. Biggers (409 U.S. 188),
the Suprem e Court has held that on the adm issibility
and reliability o f out-of-court identification o f suspects,
courts have adopted the “totality o f circum stances” test
w hich u tilizes the follow ing factors, uiz.: (1) the w itn ess’
opportu nity to view the crim inal at the time o f the crim e;
(2) the w itn ess’ degree o f attention at that tim e; (3) the
accuracy o f any prior description given by the w itness;
(4) the level o f certainty dem onstrated by the w itness at
the id e n tifica tion ; (5) the len gth o f tim e b etw een the
crim e and the identification; and (6) the suggestiveness
of the iden tification procedure (People us. Teehankee, Jr.,
G.R. Nos. 111206-08, Oct. 6, 1995; P eople us. Verzosa,
et al., G.R. No. 118944, Aug. 20, 1998).
44. The foregoing ruling w as reiterated in P eople vs.
P ineda, et al. (G.R. No. 141644, M ay 27, 2004) w hich
furth er provided a list, adm ittedly not exhaustive, o f 12
danger signals that the identification may be erroneous
even though the m ethod used is proper, to wit: (1) the
witness originally stated that he could not identify anyone;
(2) the w itness knew the accused before the crim e but
m ade no a ccu sa tion against him w hen q u estion ed by
the police; (3) a serious discrepancy exists betw een the
w itn ess’ original description and his actual description
o f the a ccu sed ; (4) b efore id e n tify in g the a ccu sed at
the trial, the w itness erroneously identified som e other
person; (5) other w itnesses o f the crim e fail to identify the
accused; (6) before trial, the w itness sees the accused but
fails to identify him; (7) before the com m ission o f the crime,
the w itness had lim ited opportunity to see the accused;
(8) the w itness and the person identified are o f different
racial groups; (9) during his original observation o f the
895
offen d er, th e w itn ess w as u n aw are th a t a crim e was

in v o lv e d ; (10) a c o n s id e r a b le tim e e la p s e d b e tw e e n
the w itness’ view and his iden tification of the accused;
(11) several persons com m itted the crim e; and (12) the
w itn ess fa iled to m ake a p ositiv e tria l id e n tifica tio n
(citin g P a trick M. W all, E y ew itn ess Id e n tifica tio n in
Crim inal Cases 74 [1965]).
45. Res ipsa loquitur (“the thing speaks for itself” )
is a m axim for the rule that the fact o f the occurrence
o f an injury, taken w ith the surrounding circum stances,
m ay p e rm it an in fe r e n ce or ra ise a p re s u m p tio n o f
negligence, or make out a p la in tiff’ s prim a facie case,
and present a question o f fact for the defendant to meet
with an explanation. The doctrine is sim ply a recognition
o f the postulate that as a m atter o f com m on know ledge
and experience, the very nature o f certain types o f occu r-
rences may ju stify an inference of negligence on the part
o f the person who controls the instrum entality causing
the injury, in the absence o f som e explanation by him.
T he d o ctr in e is, h o w e v e r, co n s id e r e d as m e re ly
evidentiary or in the nature o f a procedural rule. The
application th ereof does not dispense w ith the req u ire-
m ent o f p roof of negligence. It is sim ply in the process
o f such proof, perm itting the p lain tiff to present enough
o f the attending circum stances to invoke the doctrine,
creatin g an inference or presum ption o f negligence and
th e re b y p la ce on the d e fe n d a n t th e b u rd e n o f g oin g
forw ard with the p roof to the contrary (Ram os, et al. vs.
CA, et al., G.R. No. 124354, Dec. 29, 1999).
Sec. 3. E x tr a ju d ic ia l c o n fe s s io n , n ot s u f fic ie n t
grou n d for conviction. — An extrajudicial confession
m ade by an accused, shall not be sufficien t ground
for conviction, unless corroborated by evidence of
c o r p u s d e l ic t i. (3)
896
RULE 133 WEIGHT AND SUFFICIENCY SEC. 3
OF EVIDENCE
NOTES
1. See notes under Sec. 33, Rule 130.

2. The term corpus delicti m eans the actu al co m -
m ission by som eone o f the particular crime charged. It is
a com m on fact made up o f tw o things: the existence of
a certain act or result form ing the basis o f the crim inal
charge and the existence o f a crim inal agency as the cause
o f the act or result. The identity o f the accused is not a
necessary elem ent o f the corpus delicti (16 C.J.S. 771).
Corpus delicti literally m eans “the body or substance of
the crim e,” but, applied to a particular offense, it m eans
the actual com m ission by som eone o f the particular crim e
charged (People vs. M ones, et al., 58 Phil. 46; People vs.
M am aril, et al., 46 O.G. 3431). Consequently, the corpus
delicti is proved w hen the evidence on record shows that
the crim e p rosecu ted had been com m itted (P eop le vs.
Santos, et al., CA-G.R. No. 3767, M ay 8, 1950).
3. In th eft, the corpus d elicti is com p osed o f tw o
elem ents: that the property w as lost by the ow ner and
that it w as lost by a felonious taking (People vs. Tradia,
CA-G.R. No. 2524-R, Aug. 27, 1959). Hence, the failure
to recover the property does not detract from the fact
that a crim e may be established w ithout recovery o f the
stolen object (People vs. Mano, [CA], 60 O.G. 5167).
The elem ents constituting corpus delicti in the crim e
o f illegal possession o f a firearm are (a) the existence
o f the firea rm , and (b) th at it has been a ctu ally held
w ith a n im u s p o ss id en d i by the a ccu sed w ith o u t the
correspon din g license therefor (People vs. Camoyar, CA-
G.R. No. 6142-R, A pril 19, 1951).
As corpus delicti means the fact o f specific injury or
loss sustained, in m urder, the fact o f death is the corpus
delicti (P eople vs. Garcia, et al., 99 Phil. 381). W here
th ere is dou bt as to the id en tity o f a cada ver, in the
897
absence o f any other evidence, there is no corpus delicti

(People vs. M utuc, et al., L-37578, A pril 24, 1984).
4. A m ere v olu n ta ry extra ju d icia l co n fe ssio n u n -
corroborated by independent p roof o f the corpus delicti
is not sufficient to sustain a judgm ent o f conviction. There
m ust be indepen dent p ro o f o f the corpus delicti. The
evidence may be circum stantial but, ju st the sam e, there
should be som e evidence substantiating the confession
(U.S. vs. De la Cruz, 2 Phil. 148). The expression corpus
d elicti, h ow ever, is not sy n on y m ou s w ith th e w h ole
ch a rge so as to req u ire th at all the elem en ts o f the
crim e be established independently o f the extrajudicial
con fession (P eople vs. M ones, et al., su pra; P eop le vs.
C o m e n d a d o r , L -3 8 0 0 0 , S ep t. 19, 1 9 8 0 ). It m e a n s
th a t th e re sh o u ld be som e e v id e n ce a p a rt from th e
confession tending to show the com m ission o f the crime.
W ere it requ ired that, in depen den t o f the con fession ,
evidence be adduced sufficien t in itse lf to convict, the
u tility o f a con fession as a species o f p ro o f w ou ld be
illusory (People vs. Bantagan, et al., 54 Phil. 834; People
vs. B ernales, L-30966, Dec. 14, 1979; P eople vs. M ad-
langbayan, L-33607, Dec. 14, 1979). Thus, it has been
h eld th a t w h en the sp ecia l com plex crim e o f rob b ery
w ith hom icide is charged and the extrajudicial confession
o f the accused o f the entire charge is corrob ora ted by
corpus delicti o f hom icide alone, the entire confession is
adm issible although there is no independent evidence o f
the robbery (People vs. Sasota, et al., 91 Phil. 111).
Sec. 4. Circum stantial evidence, when sufficient. —

C ircum stantial evidence is sufficient for conviction
if:
(a) There is more than one circum stance;
(b) The facts from w h ich the in fe re n ce s are
derived are proven; and
898
RULE 133 WEIGHT AND SUFFICIENCY SEC. 4
OF EVIDENCE
(c) The com bination o f all the circu m stan ces

is such as to produce a conviction beyond reasonable
doubt. (5)
NO TES
1. In order to convict a person accused o f a crime

on th e stre n g th o f cir cu m s ta n tia l e v id en ce a lon e, it
is in cu m b e n t u p on the p ro s e c u tio n to p re s e n t such
circum stantial evidence w hich will and m ust necessarily
lead to the conclusion that the accused is guilty o f the
crim e charged beyond reason able doubt, exclu d in g all
and each and every rea son a ble h yp oth esis con sisten t
w ith h is in n o ce n c e (P eo p le vs. T a n -C h oco, 76 P h il.
463; People vs. Jara, et al., G.R. Nos. 61356-57, Sept. 30,
1986).
2. C ircu m sta n tia l ev id en ce is s u ffic ie n t for co n -
viction even in capita l offen ses, except w hen the law
s p ecifie s the sp ecies and qu an tu m o f e v id e n ce as, in
treason (Art. 114, Revised Penal Code) and, form erly, for
certain subversive activities punishable by prision m ayor
to death (Sec. 7, R.A. 1700). It is also subm itted that
circu m stan tial evidence w ould not suffice to sustain a
co n v iction for fa lsifica tion , b igam y and lib el th rou gh
w ritten publications, and the docum ents involved m ust
be presen ted. In bigam y, direct eviden ce o f the first
m arriage is necessary (People vs. Villalobos, [CA], 57 O.G.
8 8 8 2 ). E v id e n c e o f r e p u t a t io n o r c o h a b it a t io n is
in s u f f i c ie n t b u t is m e r e ly c o r r o b o r a t iv e (U .S . vs.
E vangelista, 29 Phil. 215). The same doctrine has been
applied in actions for adultery, parricide, and other cases
w here the issue o f m arriage is prim arily involved (People
vs. Lanas, et al., 93 Phil. 147).
3. N ot on ly th e p rior and coeta n eo u s a ctu a tio n s
o f the accused in relation to the crime but also his acts
o r con d u ct s u b seq u en t th e re to can be co n s id e re d as
899
circu m sta n tia l evid en ce o f guilt. T hus, the flig h t or

co n ce a lm e n t o f th e a ccu sed , h is a b n orm a l b e h a v io r,
his drinking unusually to excess, his spending o f m oney
in fan tastic am ounts (U.S. vs. D e los S antos, 24 Phil.
329; U.S. vs. A qu in o, 27 P hil. 462; U.S. vs. Sarikala,
3 7 Phil. 486), his spoliation or fa brication o f evidence
(G onzalez vs. M auricio, 53 Phil. 728) and his possession
o f stolen property (People vs. Caragao, L-28258, Dec. 27,
1969) h ave b een co n s id e re d c ir cu m s ta n tia l e v id e n ce
against him.
4. On another aspect, it has also been held that while
the motive o f the accused is generally im m aterial not being
an elem ent o f the crim e, such m otive becom es im portant
w hen the evidence o f the crim e is purely circum stantial.
Thus, in a robbery case, the fact the accused w as in dire
need o f m oney and the victim scolded him for soliciting a
loan from her, robbery as the m otive explains the killing
(People vs. Turtoga, et al., G.R. No. 135536, June 6, 2002).
S e c. 5. S u b sta n tia l ev id en ce. — I n c a s e s f i l e d

b e f o r e a d m i n is t r a t i v e o r q u a s i - j u d i c i a l b o d i e s , a
fa c t m a y b e d e e m e d e s t a b lis h e d i f it is s u p p o r t e d
b y s u b s t a n t ia l e v i d e n c e , o r t h a t a m o u n t o f r e l e -
v a n t e v i d e n c e w h i c h a r e a s o n a b l e m in d m i g h t
a c c e p t as a d e q u a t e to ju s t i f y a c o n c l u s io n , (n )
NOTES
1. Substantial evidence does not necessarily mean

preponderant p roof as required in ordinary civil cases, but
such kind o f relevant evidence as a reasonable m ind might
accept as adequate to support a conclusion (B iak-na-bato
M ining Co. vs. Tanco, etc., et al., L-34267-68, Jan. 25,
1991) or e v id e n ce com m on ly a ccep te d by re a so n a b ly
prudent m en in the conduct o f their affairs (Sec. 12[1],
Chapter 3, B ook VII, E.O. No. 292).
900
RULE 133 WEIGHT AND SUFFICIENCY SECS. 6, 7
OF EVIDENCE
2. In civil actions, the proponent m ust establish his

case by a preponderance o f evidence in order to recover
thereon. W here an equiponderance of evidence results
such that the scales stand upon an equipoise, and nothing
in evidence inclines it to either side, the court w ill find
for the defendant (Yuchengco, et al. vs. Sandiganbayan,
et al., G.R. No. 149802, Jan. 20, 2006). This equipoise
rule also applies to crim inal cases and holds that w hen
the evidence on a question o f fact is in issue or there is
dou bt on w h ich side the evid en ce p rep on d era tes, the
p rosecu tion , as the party havin g the b u rd en o f proof,
consequently loses (Abarquez vs. People, G.R. No. 150762,
Jan. 20, 2006).
Sec. 6. P ow er o f the court to stop fu rth er evidence.

— The cou rt may stop the in trod u ction o f further
t e s t im o n y u p o n a n y p a r t ic u la r p o in t w h e n the
e v i d e n c e u p o n it is a lr e a d y so f u ll t h a t m o r e
witnesses to the same point cannot be reasonably
ex pected to be additionally persuasive. But this
p o w e r should be exercised with caution. (6)
NOTE
1. The court has the pow er to stop the introduction

o f testim ony w hich w ill m erely be cum ulative (Guinea,
et al. vs. Vda. de R am on a l, et al., L -3 86 5 9 , F eb. 20,
1975).
Sec. 7. E v id en ce on m otion. — W hen a m o tio n

is based on facts not appearing o f reco rd the cou rt
may hear the matter on affidavits o r deposition s
presented by the respective parties, but the cou rt
m a y d ir e c t that the m a tter be h e a rd w h o lly or
partly on oral testim ony or depositions. (7)
901
NO TE
1. W hile the court may hear and rule upon m otions

solely on the basis o f affidavits or counter-affidavits, if
the affidavits contradict each other on m atters o f fact, the
court can have no basis to make its findings of fact and
the pruden t course is to subject the affian ts to cross-
exam ination so that the court can decide whom to believe
(Sapida, et al. vs. De Villanueva, et al., L-27673, Nov. 24,
1972).

Regalado Evidence Optimized PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Regalado Evidence Optimized PDF

Uploaded by

Copyright:

Available Formats

TABLE OF CONTENTS

A - An Act Declaring Forfeiture in Favor of the State

A. PR ELIM IN AR Y C O N SID ER ATIO N S

S ection 1 . E vidence defined. — E viden ce is the

Sec. 2. S cope. — The ru les o f ev id en ce sh all

1 . Sec. 1 o f Rule 128 provides the legal definition of

"T h e am end m ents lo thoao Rulew w ere approved by tho Siiprem n ( ‘o m l in Ms

w hich establish that proposition (1 W igm ore on Evidence,

“SEC. 2. The right, o f tho people to be iiuiiii"

In cmhoh before the then Court o f A grarian Relations,

as tending to prove any m atter provable h i an m h i m

Sec. 3. A d m issibility o f evidence. — E viden ce is

Sec. 4. R elevancy; collateral matters. Evidence

1. Sec. 3 states the two requisites for the adm issibility

form ally offered by the proponent im m ediately before he

“In a case o f any intricacy it is im possible for a judge of

(,')) The M assachusetts rule, w herein the adverse party

1967) w hich held that docum entary evidence, illegally

bo subsumed into four main divisions, and are so presented

o f R.A. 8792, thus:

P O ST S0401-2) are adm issible under the R ules on

SECTION 1. Definition o f Terms. — For purposes

(h ) “ Electronic docum ent” refers to inform ation

intended the same m eaning as the term “electron ic

A. O bject (Real) Evidence

1 . W here an object is relevant to a fact in issue, the

3. The court m ay refuse the introduction o f object

t>. W hile the form er rule spoke o f real eviden ce as

his fa cia l fea tu res to determ in e his resem b lan ce and

B. D ocum entary Evidence

Sec. 2. D ocum entary evidence. — D ocum ents as

1. Best Evidence Rule

the g e n e ra l result o f the w h o le ; a n d

Sec. 4. O riginal o f docum ent. — (a) The origin al

1 . A docum ent is a deed, instrum ent or other duly

in tr o d u c e d w ith o u t h a v in g to a cco u n t fo r th e non

1983). It is subm itted, how ever, that this requirem ent

o f a docum ent executed at the same time as the original

the nddressee, then the original dispatch received is the

Sec. 5. When original docum ent is unavailable. —

1 In order that such secon dary eviden ce m ay be

or unavailability o f all such originals, and (3) reasonable

evidence is a d m issible (P N B vs. O lila, 98 P h il. 1002;

desp ite rea son a b le n otice. T he com p lem en ta ry ru les

Sec. 8. P arty who calls for docum ent not bound to

1 . No particular form o f notice is required, as long

3. The justified refusal or failure of the adverse party

to p ro d u ce th e d o cu m e n t d oes n ot g ive rise to the

4. W here such docum ent is produced, that docum ent

volum inous but by the fact that the factum proband um in

Sec. 7. E v id en ce ad m issib le when orig in a l d o cu -

1. T his section com plem ents the fourth exception to

3. Parol Evidence Rule

Sec. 9. E vid en ce o f w ritten agreem ents. — W h en

RULE 130 REMEDIAL LAW COMPENDIUM SEC 9

2 . Parol evidence is any evidence aliunde, w hether

not a party or privy o f a party to the w ritten instrum ent

to express the true intent and agreem ent o f the parties, or

8 . The purpose o f the second exception is to enable

9. C om in g back to the firs t excep tion , as ea rlier

to ascertain the m eaning of the w ords used. In such a

Possible exam ples o f interm ediate am biguity, in the

“D ollars” may refer to the currency of, for instance,