Cases for tomorrow:

Pedigree:
Gravador v. Mamigo 20 SCRA 742 (1967)
[G.R. No. L-24989. July 21, 1967.]

PEDRO GRAVADOR, petitioner-appellee, vs. EUTIQUIO MAMIGO

SYLLABUS

1. ADMINISTRATIVE LAW; FINDINGS OF FACT OF ADMINISTRATIVE OFFICIALS; EFFECT. —

That the findings of fact of administrative officials are binding on the courts if supported by substantial
evidence, is a settled rule of administrative law.
2. ID.; EVIDENCE; DATE OF BIRTH; CIRCUMSTANCES EVIDENCING THE SAME. — Although a
person can have no personal knowledge of the date of his birth, he may testify as to his age as he had
learned it from his parents and relatives, and his testimony in such case is an assertion of family tradition.
Indeed, even in his application for backpay, filed through the Office of the Superintendent of Schools, on
October 7, 1948, the petitioner stated that the date of his birth is December 11, 1901. He repeated the
same assertion in 1956 and again in 1960 when he asked the Government Service Insurance System and
the Civil Service Commission to correct the date of his birth to December 11, 1901. Again the import of the
declaration of the petitioner's brother, contained in a verified pleading in a cadastral case way back in 1924,
to the effect that the petitioner was then 23 years old, cannot be ignored. Made ante litem motam by a
deceased relative, this statement is at once a declaration regarding pedigree within the intendment and
meaning of section 33 of Rule 130 of the Rules of Court. Thus, December 11, 1901 is established as the
date of birth of the petitioner not only by evidence of family tradition but also by the declaration ante litem
motam of a deceased relative.
3. ID.; QUO WARRANTO; PERIOD WITHIN WHICH ACTION MAY BE BROUGHT. — Suits for quo
warranto to recover a public office must be brought within one year.
4. ID.; RULE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES; APPLICATION OF RULE
WHERE RIGHT ASSERTED MAY BE NULLIFIED IF OBSERVANCE THEREOF IS INSISTED UPON. —
The rule on exhaustion of administrative remedies does not apply where insistence on its observance
would result in the nullification of the claim being asserted.

DECISION

CASTRO, J p:

The petitioner Pedro Gravador was the principal of the Sta. Catalina Elementary School in Sta.
Catalina, Negros Oriental on August 15, 1964 when he was advised by the then Superintendent of Schools
Angel Salazar, Jr., through the respondent Supervisor Teodulfo E. Dayao, of his separation from the
service on the ground that he had reached the compulsory retirement age of 65. The advice reads:
"According to your pre-war records as a teacher in the public schools, including your
Employee's Record Card, which has just been found in connection with the verification of the
services of all school officials including elementary school principals in this division, you were
born on November 26, 1897. As of this date, therefore, you are now 66 years, 8 months, and
22 days old.
"In view of the above, you are hereby advised of your separation from the service
effective immediately unless you can show valid proof in the form of a baptismal or birth
certificate that you are below sixty-five of age today."
A few days later, the respondent Eutiquio Mamigo was designated teacher-in-charge of the said
elementary school.
On August 31, 1964 the petitioner wrote the Director of Public Schools, protesting his forced
retirement on the ground that the date of his birth is not November 26, 1897 but December 11, 1901.
Attached to his letter was the affidavit, executed on July 26, 1962, of Lazaro Bandoquillo and Pedro A.
Sienes, both of Amlan, Negros Oriental, in which these two affiants declared that they knew that the
petitioner "was born on December 11, 1901, in the Municipality of Amlan, formerly known as New
Ayuquitan, Province of Negros Oriental, Philippines" because "we were the neighbors of the late spouses,
NEPOMUCENO GRAVADOR and AGUEDA REGOROSA [petitioner's parents] and that we were present
when said PEDRO GRAVADOR was born; furthermore, we were also invited during the baptismal party a
few weeks after the birth of said PEDRO GRAVADOR."
On October 19, 1964 the petitioner wrote to the Division Superintendent of Schools, reiterating his
claim that he had not reached the age of 65 and enclosing some papers in support thereof.
On April 13, 1965 he filed this suit for quo warranto, mandamus and damages in the Court of First
Instance of Negros Oriental. He asked the court to adjudge him entitled to the office of principal of the Sta.
Catalina Elementary School and to order payment to him of not only his back salaries but also damages in
the total amount of P52,400. Named as respondents were Eutiquio Mamigo, the District Supervisor, the
Superintendent of Schools, the Director of Public Schools and the Secretary of Education.
The respondents filed their answer, entered into a stipulation of facts with the petitioner, and
thereafter the case was submitted for decision. The trial court concluded that the petitioner was born on
December 11, 1901 and accordingly granted his petition. Immediate execution was ordered, as a result of
which the petitioner was reinstated.
The respondents appealed directly to this Court.
On July 6, 1967 the petitioner asked for the dismissal of the appeal on the ground that the issues
posed thereby had become moot with his retirement from the service on December 11, 1966 and the
payment to him of the corresponding retirement benefits. We deem it necessary, however, to review the
trial court's decision on the merits, considering that the computation of retirement annuities is based,
among other things, on the number of years of service of a retiree, 1 and that payment of benefits already
made to the petitioner on the basis of December 11, 1901 as the date of his birth would not exempt him
from the obligation to make a refund should this Court ultimately rule that he was actually born on
November 26, 1897, as the respondents claim.
The controversy on the petitioner's date of birth arose as a result of the conflicting records of the
Division of Schools of Negros Oriental. On the one hand the pre-war records show his date of birth to be
November 26, 1897. These records consist of two Insular Teacher's Cards 2 and one Employee's Record
Card. 3 It is on the basis of these records that the Superintendent of Schools determined the petitioner's
age to be 66 years, 8 mzonths and 22 days on August 15, 1964.
On the other hand, the post-war records, consisting of an Elementary Teacher's Report Card, 4 an
Employee's Record Card 5 and an Employee's Record of Qualifications 6 state that the petitioner was born
on December 11, 1901. These are the records on which the petitioner bases his claim.
The problem is aggravated by two uncontroverted facts, namely, that the records of the church
where the petitioner was baptized were destroyed by fire, and that the municipal civil register contains no
record of the petitioner's birth.
According to the trial court, the post-war records were intended to replace the pre-war records and
therefore the correct date of birth of the petitioner is December 11, 1901. The court also took into account
the verified answer in a cadastral proceeding in the Court of First Instance of Negros Oriental, dated March
15, 1924, filed by the petitioner's brother, Romulo Gravador, now deceased. It is therein stated that the
petitioner, said to be one of the co-owners of a piece of land, was at the time 23 years old.
The respondents now contend that the trial court erred in placing full reliance on the post-war
records to establish the date of birth (December 11, 1901) of the petitioner. They argue that these records
were made only because it was thought that the pre-war records had been lost or destroyed, but as some
pre-war records had since been located, the date contained in the pre-war records should be regarded as
controlling; and that the finding of the Superintendent of Schools that the petitioner was born on November
26, 1897 is an administrative finding that should not be disturbed by the court.
That the findings of fact of administrative officials are binding on the courts if supported by
substantial evidence, is a settled rule of administrative law. But whether there is substantial evidence
supporting the finding of the Superintendent of Schools is precisely the issue in this case. The school
official based his determination of the petitioner's age on the pre-war records in the preparation of which
the petitioner does not appear to have taken a part. 7 On the other hand, the petitioner relies on post-war
records which he personally accomplished to prove the date of his birth. 8
It is our considered view that the lower court correctly relied upon the post-war records, for three
cogent reasons.
In the first place, as Moran states, although a person can have no personal knowledge of the date
of his birth, he may testify as to his age as he had learned it from his parents and relatives and his
testimony in such case is an assertion of a family tradition. 9 Indeed, even in his application for back pay
which he filed with the Department of Finance, through the Office of the Superintendent of Schools, on
October 7, 1948, the petitioner stated that the date of his birth is December 11, 1901. He repeated the
same assertion in 1956 and again in 1960 when he asked the Government Service Insurance System and
the Civil Service Commission to correct the date of his birth to December 11, 1901.
In the second place, the import of the declaration of the petitioner's brother, contained in a verified
pleading in a cadastral case way back in 1924, to the effect that the petitioner was then 23 years old, can
 not be ignored. Made ante litem motam by a deceased relative, this statement is at once a declaration
regarding pedigree within the intendment and meaning of section 33 of Rule 130 of the Rules of Court. 
Thus, December 11, 1901 is established as the date of birth of the petitioner only by evidence of
family tradition but also by the declaration ante litem motam of a deceased relative.
Finally, the parties are agreed that the petitioner has a brother, Constantino, who was born on June
10, 1898 and who retired on June 10, 1963 with full retirement pay. The petitioner then could not have
been born earlier than Constantino, say in 1897 as the pre-war records indicate, because Constantino is
admittedly older than he. 10
Still it is argued that the petitioner's action was prematurely brought because he had not availed of
all administrative remedies. This argument is without merit. Suits for quo warranto to recover a public office
must be brought within one year. 11 Before filing this case the petitioner waited for eight months for the
school officials to act on his protest. To require him to tarry a little more would obviously be unfair to him
since on April 13, 1965, when this case was filed, he had only four months left within which to bring the
case to court. There was neither manner nor form of assurance that the decision of the Director of Public
Schools would be forthcoming. The rule on exhaustion of administrative remedies does not apply where
insistence on its observance would result in the nullification of the claim being asserted. 12
Accordingly, the judgment a quo is affirmed. No pronouncement as to costs.
||| (Gravador v. Mamigo, G.R. No. L-24989, [July 21, 1967], 127 PHIL 136-144)
People v. Alegado 201 SCRA 37 (1991)
[G.R. Nos. 93030-31. August 21, 1991.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFREDO ALEGADO Y

DELIMA, accused-appellant.

DECISION

GUTIERREZ, JR., J p:

The accused-appellant stands charged and convicted of two counts of rape by the Regional Trial Court of San
Carlos City, Branch 58 in its decision promulgated on October 26, 1989 with the following dispositive portion:
"WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of rape
punished under Article 335 paragraphs 1 & 3 of the Revised Penal Code, said accused is
hereby sentenced to RECLUSION PERPETUA on both counts, the sentences to be served
successively, to pay the offended party the sum of Twenty Thousand Pesos (P20,000.00),
and to pay costs of suit." (RTC Decision, p. 8; Rollo, p. 32) LLjur
This appeal prays for a reversal of the trial court's judgment of conviction and submits before us the following
assignment of errors, to wit.:
I
THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF STATUTORY
RAPE AS DEFINED AND PENALIZED UNDER ART. 335, PARAGRAPH 3 OF THE
REVISED PENAL CODE DESPITE THE PROSECUTION'S FAILURE TO PROVE WITH
CERTAINTY THE ACTUAL AGE OF THE OFFENDED PARTY.
II
THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANT OF THE
CRIMES CHARGED DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND
REASONABLE DOUBT (Appellant's Brief, p. 1, Rollo, p. 55)
The accused-appellant, in two criminal complaints filed by the offended party herself and docketed as Criminal
Cases Nos. RTC-437 and RTC 438, was charged with rape on two counts committed as follows:
"That on or about 7:00 p.m., April 20, 1988 at the Public Market, San Carlos City, Negros
Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, did, then and there willfully, unlawfully and feloniously have carnal knowledge of the
herein offended party, CRISTINA DEANG y VILLAROSA, a girl below twelve (12) years of
age, against her will and without her consent. (Criminal Case No. RTC-437; Rollo, p. 14)
"That on or about 6:00 p.m., April 14, 1988 at the Public Market, San Carlos City, Negros
Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named
 accused, did, then and there willfully, unlawfully and feloniously have carnal knowledge of the
herein offended party, CRISTINA DEANG y VILLAROSA, a girl below twelve (12) years of
age, against her will and without her consent." (Criminal Case No. RTC-438; Rollo, p. 16)
At the pre-trial, both the prosecution and the defense agreed on a joint trial and stipulated on only one fact, i.e.,
that the accused, as watchman of the San Carlos City public market was inside the said premises during the
two occasions when the alleged rapes transpired. Both parties presented two common issues for the trial
court's consideration, namely: (1) whether the offended party was actually below 12 years old at the time of the
incidents; and (2) whether the accused had carnal knowledge of the offended party by means of force and
intimidation (Pre-trial Order dated June 2, 1988; Records, p. 16)
The antecedent facts as stated by the Solicitor General in the People's brief are as follows:
"On April 14, 1988, at about 6:00 o'clock in the afternoon, complainant was playing at the
Freedom Square inside the public market of San Carlos City when appellant, a 170-pound, 53
year old market watchman at the time, held her by the hand and took her upstairs to the
second floor of the public market building which houses some government offices and which
at the time was expectedly deserted (tsn, May 17, 1989, pp. 13, 21-22). When they reached
the upper floor of the building, appellant ordered complainant to hold his penis and masturbate
it (ibid, p. 22). Thereafter, appellant ordered complainant to lie down, and when she refused,
he pushed her down on the floor (ibid). When complainant was lying prostrate on her back,
appellant placed himself on top of her while she was still wearing her 'pedal pusher' shorts
and panty (ibid, p. 23). So, appellant forced her to take off her pedal pushers and panty (ibid,
pp. 26-27) and thereupon he lay on top of her (ibid). Appellant then tried to insert his penis
into her vagina but it did not penetrate fully before he ejaculated (ibid, pp. 23, 27-28).
Complainant bled a little (ibid, p. 52) Thereafter, appellant gave complainant P2.00 and left
(ibid, p. 28). Complainant stood up and went down the building but never told anybody about it
because she was afraid appellant would kill her (ibid, p. 28)
On April 20, 1988, at about 7:00 o'clock in the evening, complainant was sitting at the
Freedom Square when appellant approached her and told her to go with him upstairs to the
second floor of the public market (tsn, May 17, 1989, pp. 11-12). Complainant refused but
appellant shoved her towards the stairs, held her by the left arm, and brought her to the upper
floor near the civic center (ibid, pp. 12-13). There, appellant ordered complainant to take off
her shorts and panty, but she refused (ibid, p. 14). Appellant then tried to take off her shorts
and panty by himself but she resisted and told the former she would not submit to his evil
desires (ibid). Thereupon, appellant threatened to kill complainant if she would not take off her
shorts and panty (ibid). Then appellant again tried to remove complainant's shorts and panty
and the latter out of fear allowed him to do it (ibid). When appellant succeeded in removing
complainant's shorts and panty, he forced her to lie down and then placed himself on top of
her (ibid, p. 15). Appellant was then already without his pants on (ibid). Appellant inserted his
penis into complainant's vagina but it took sometime before his organ could penetrate the girl
(ibid). When it did, complainant felt excruciating pain and begged appellant to stop (ibid, p.
16). Appellant just ignored her and continued on without saying anything (ibid). Complainant
felt some liquid oozing out from appellant's organ and into her being (ibid, p. 17). And after
appellant had withdrawn his sex organ, complainant discovered that her vagina was bleeding
(ibid). Appellant then stood up and told her not to tell anybody about it (ibid, pp. 17-18). Then
appellant gave her P2.00 and left (ibid, p. 18). cdll
As appellant was going downstairs, he was seen by Patrolwoman Evangeline Alfaro, a
member of the San Carlos City INP assigned at Precinct No. 1, a police outpost near the main
entrance of the public market (tsn, September 28, 1988, pp. 4-5). Pat. Alfaro knew appellant
well because he was the public market watchman at the time (ibid, p. 5). A minute later, Pat.
Alfaro saw complainant coming down the same stairs (tsn, September 28, 1988, p. 6; May 17,
1989, pp. 18-19). Pat. Alfaro noticed that complainant was pale, with blood flowing to her
thighs and legs, and was reeling as if feeling dizzy (tsn, September 28, 1988, p. 6)
Pat. Alfaro approached complainant and asked what happened to her (tsn, September 28,
1988, p. 6; May 17, 1989, pp. 19-20). Complainant answered that she was taken upstairs and
raped by appellant (ibid). Immediately, Pat. Alfaro brought complainant to the city hospital
where she was examined by Dr. Oscar Jagdon in the presence of two medical technologists
(tsn, September 28, 1988, pp. 7-8; May 17, 1989, p. 20). Dr. Jagdon confirmed the report that
indeed complainant was raped (ibid). Thereafter, Pat. Alfaro reported the incident to the
Station Guard by phone then took complainant to the police station after the medical
examination (tsn, September 28, 1988, p. 8; May 7, 1989, p. 20). When they reached the
station, appellant who had already been taken into custody was readily identified by
complainant as the rapist (tsn, September 28, 1988, pp. 8-10; May 17, 1989, pp. 20-21).
Complainant was then investigated and she rendered her statement to the police.
Dr. Oscar Jagdon, who examined complainant at about 8:40 o'clock in the evening of April 20,
1988, found some secretion inside complaint's vagina along the cervical wall which, upon
 laboratory examination, turned out to be sperm cells and that complainant's vagina was
lacerated, one (1) centimeter long, at 9:00 o'clock position although there was only partial
penetration of the male organ into complainant's vagina (tsn, August 10, 1988, pp. 4-9; Exhibit
'E')." (Rollo, pp. 84-89).
On the other hand, the accused-appellant's version as summarized in his brief reads:
"Evidence for the Defense:
Alfredo Alegado testified that on April 14, 1988 at about 6:00 p.m., he was
on duty, he being a watchman of the public market. His tour of duty is from 6:00
p.m. to 6:00 a.m. the following day. Before 7:00 p.m. of that day, he and his co-
watchman roamed around the area checking the padlocks of the stores if they
are in order. At about 8:30 p.m., they closed all the doors of the vegetables
section, meat section and the dried fish section. He knows Cristina Deang who
used to sell calamansi in the area. On April 14, 1988, he did not meet Cristina
Deang as he and his companions were then busy roving around the area. On
April 20, 1988, at about 5:00 p.m., he was having snacks at Valdevia Street, with
Cpl. Allarce and Lito Alvarez. They stayed there until about 7:30 p.m. when to his
surprise, he was arrested and brought to the station by Pat. Apuhin and
companions including Pfc. Evangeline Alfaro. From 5:00 p.m., to 7:30 p.m. on
April 20, 1988, he never met and/or saw Cristina Deang. Pfc. Evangeline Alfaro
has been harboring ill-feelings on him when on a certain occasion, he turned
down her request to ask the four (4) armed men whom they saw in the market
(what they wanted) (t.s.n., pp. 2-3, September 14, 1989).
Sgt. Rolando Allarce testified that he knew accused because he is
assigned at the police precinct in the public market. At about 5:00 p.m. on April
20, 1988, he was invited by Alfredo Alegado to have a snack at Namie's Lunch.
They finished having snack at about 6:00 p.m. Thereafter, Alfredo Alegado and
Lito Alvarez invited him to go to Valdevia Street for a drinking spree. He
accepted their invitation and went with them. He went out at about 7:00 p.m.,
leaving behind Alfredo Alegado in the store. (t.s.n. pp. 25-27, ibid)" (Rollo, pp.
59-60)
 
Whether or not any cogent reason exists to constrain us to reverse the trial court's verdict of conviction under
paragraphs 1 and 3 of Article 335 of the Revised Penal Code is the issue in this appeal.
Firstly, the accused-appellant contends that the offended party's actual age at the time of the alleged incidents
of rape was not established with certainty, hence, it was error on the part of the trial court to convict the
accused-appellant of statutory rape as defined and penalized under paragraph 3, Article 335 of the Revised
Penal Code.
We are not persuaded. The testimonies of the prosecution witnesses, the offended party herself and her
maternal grandfather, Cornelio Villarosa, as to the fact that the victim was born on September 5, 1976 do not
constitute hearsay evidence as claimed by the accused-appellant but rather fall under the exceptions to the
hearsay rule as provided under sections 39 and 40 of Rule 130 of the Revised Rules on Evidence. Under
Section 40 of the said Rule, it is provided, in part, that:
"SEC. 40. — Family reputation or tradition regarding pedigree — The reputation or tradition
existing in a family previous to the controversy, in respect to the pedigree of any of its
members, may be received in evidence if the witness testifying thereon be also a member of
the family, either by consanguinity or affinity."
The word "pedigree" under Section 39 of the same Rule includes relationship, family genealogy, birth,
marriage, death, the dates when and the places where these facts occurred and the names of the
relatives. LexLib
In the case of Lazatin v. Campos, 92 SCRA 250, 261 [1979], we stated that:
". . . [D]eclarations in regard to pedigree, although hearsay, are admitted on the principle that
they are natural expressions of persons who must know the truth (See Sec. 33, Rule 130
Revised Rules of Court now Sec. 39, Rule 130 under the new Rules). Pedigree testimony is
admitted because it is the best that the nature of the case admits and because greater evil
might arise from the rejection of such proof than from its admission. (Wigmore on Evidence,
Sec. 1420)"
In the present case, the applicability of Rule 130, Section 39 of the Revised Rules on Evidence to prove the
victim's age is beyond question. The said provision contains three requisites for its admissibility, namely: (1)
that there is controversy in respect to the pedigree of any of the members of a family; (2) that the reputation or
tradition of the pedigree of the person concerned existed previous to the controversy; and (3) that the witness
testifying to the reputation or tradition regarding the pedigree of the person must be a member of the family of
said person. All these preconditions are obtaining in the case at bar considering that the date of birth of the
rape victim is being put in issue; that the declaration of the victim's grandfather relating to tradition (sending a
child to school upon reaching the age of seven) existed long before the rape case was filed; and that the
witness testifying to the said tradition is the maternal grandfather of the rape victim.
Thus, we quote the pertinent portions of Cornelio Villarosa's testimony:
"PROSECUTOR FABROZ: (to witness)
Q Mr. Villarosa, how many children do you have?
A I have 5 children.
Q How old is the eldest?
A Thirty Nine (39) years old.
Q How about the youngest?
A May be 24 years old because I forgot the birth date.
Q The complainant in this case is a certain Cristina Deang. Do you know her?
A Yes, sir.
Q Why do you know her?
A She is my granddaughter.
Q If she is in court, would you able to point her?
A Yes, sir.(At this juncture the witness is pointing to a person sitting inside the courtroom
who when asked answered by the name of Cristina Deang.).
Q Who is the mother of Cristina Deang?
A Angelita.
Q Angelita Villarosa?
A Yes, sir.
Q Is she your daughter?
A Yes, sir.
Q Is she here?
A No, she is not here.
Q Where is she now?
A I don't know where she work now, because she did not send a letter to me.
Q The last time, where is her whereabouts?
A She was in Manila, my last knowledge about her whereabouts.
Q You said, Cristina Deang was the daughter of your daughter, Angelita. Do you know
how many children does Angelita have?
A She has five (5) children.
Q With whom is this Cristina Deang living now?
A In our residence.
Q How did it happen that Cristina Deang has been living with you?
A The mother left her to me.
Q When was it that the mother left her to you?
A In 1983.
Q How old was Cristina Deang at the time her mother left her to you?
A The mother of Cristina Deang told me that she was born in 1976 and please let her go
to school.
ATTY. BRIONES:
 I would like to make it of record that the information gathered by the mother, Angelita,
is a hearsay your Honor.
PROSECUTOR FABROZ:
I would like to prove the fact about the birth of the child..
COURT:
Let it stay in record.
PROSECUTOR FABROZ:
Q By the way, do you have a talk or conversation with your daughter, Angelita, the
mother of the complainant Cristina Deang, when was Cristina Deang born?
A We did not talk about the birth of Cristina, but she told me to let her daughter Cristina
go to school because she is already 7 years old.
Q Did you ask her about the birth of Cristina Deang?
ATTY. BRIONES:
I think that is misleading your Honor.
COURT:
Witness may answer.
WITNESS:
A That is what she told me, she was born on September 5, 1976.
PROSECUTOR FABROZ:
Q So based from the information you get from your mother Angelita, did you in fact send
your granddaughter Cristina Deang to school?
A Yes, sir.
Q Where?
A  SMAC Elementary School.
Q What grade did you send her?
A Grade I.
Q Was she able to finish Grade I?
A No, sir.(TSN, January 31, 1989, pp. 4-7).
Moreover, the offended party herself categorically stated in open court that she was born on September 5,
1976 (TSN, May 17, 1989, p. 8). As correctly submitted by the Solicitor General:
"It is long-settled, as early as in the cases of U.S. v. Bergantino (3 Phil. 118 [1903] and U.S. v.
Angeles (sic) and Sabacahan (36 Phil. 246, 250 [1917] citing U S. v. Estavillo and Perez (10
O.G. 1984), that the testimony of a person as to his age is admissible although hearsay and
though a person can have no personal knowledge of the date of his birth as all the knowledge
a person has of his age is acquired from what he is told by his parents (U.S. vs. Evangelista,
32 Phil. 321, 326 [1915] — he may testify as to his age as he had learned it from his parents
and relatives and his testimony in such case is an assertion of family tradition (Gravador v.
Mamigo, 20 SCRA 742) . . ." (Rollo, p. 93-94)
Inasmuch as the accused-appellant failed to present contrary evidence to dispute the prosecution's claim that
the victim in this case was below twelve (12) years old at the time of the rape incidents under consideration, we
affirm the trial court's finding that the victim in these rape cases was under twelve years of age. LexLib
Time and again we have held that the gravamen of the offense of statutory rape as provided under Article 335,
paragraph 3 of the Revised Penal Code is the carnal knowledge of a woman below twelve years old. (People
v. Edgardo Puedan y Lalongisip, G.R. No. 92586, April 26, 1991 citing People v. Villegas, Jr., 127 SCRA 195,
200 [1984]; People v. Mangalino, 182 SCRA 329 [1990] citing People v. San Buenaventura, 164 SCRA 150
[1988] and People v. Villegas, Jr., supra). Hence, the only elements of statutory rape are: (1) that the offender
had carnal knowledge of a woman; and (2) that such woman is under twelve (12) years of age. (People v.
Santos, 183 SCRA 25 [1990] It is not necessary to prove that the victim was intimidated or that force was used
against her because in statutory rape the law presumes that the victim on account of her tender age, does not
and cannot have a will of her own. (People v. Bacani, 181 SCRA 393 [1990]; People v. Lualhati, 171 SCRA
277 [1989]; People v. Derpo, 168 SCRA 447 [1988])
Considering that in the instant case there is clear and competent evidence that the victim was under twelve
(12) years old at the time of the rape incidents complained of, the second argument purported by the accused-
appellant that the alleged rapes were not attended by any force or intimidation must also fail. Proof of carnal
knowledge of the victim in this case who was only eleven (11) years old on the two separate occasions
reported (April 14 and 20, 1988) is overwhelming while unnecessary force and intimidation also appear in the
records. The offended party s testimony regarding the abominable and wicked acts of the accused-appellant
against her chastity on the two occasions indicated in the separate informations filed by the victim herself was
given in a straightforward manner without any indication that the same was motivated by any ill-feeling toward
the pinpointed perpetrator. The fact of rape on the said occasions related by the offended party was
corroborated by the examining physician whose medical finding revealed the presence of sperm cells inside
the victim's sexual organ due to partial penetration of the male organ into it.
It is axiomatic in rape cases that the slightest penetration of the female's private organ is sufficient to
consummate the crime. (People v. Jun Aquino [John Aquino], G.R. No. 83214, May 28, 1991 citing People v.
Cruz, 180 SCRA 765 [1989]; People v. Paton-og, 155 SCRA 675 [1987]; People v. Alvarez, 163 SCRA 745
[1988]; People v. Bacani, supra). A careful review of the evidence on record readily shows that the trial court
did not commit any reversible error in disregarding the defenses of denial and alibi given by the accused-
appellant and in finding that the accused-appellant was guilty beyond reasonable doubt of two counts of
statutory rape. We affirm the trial court's verdict of conviction in consonance with our oft-repeated
pronouncement that we accord great respect to the trial court's findings of fact in the absence of a showing that
certain facts of substance and value were erroneously overlooked that, if considered, might affect the result of
the case (see People v. Eleuterio Raptus y Jeray, G.R. Nos. 92169-70, June 19, 1991 citing People v. Aboga,
et. al., 147 SCRA 404 [1987]; People v. Estenzo, et al., 72 SCRA 428 [1976]; see also People v. Frankie
Arenas, et al., G.R. No. 92068, June 5, 1991, citing People v. Somera, 173 SCRA 684 [1989]; People v.
Baysa, 172 SCRA 706 [1989]; Aguirre v. People, 155 SCRA 337 [1987])
 
Lastly, we commend the trial court's additional finding that the commission of the rapes in question was
attended by force and intimidation although for connection under Article 335 paragraph 3 of the Revised Penal
Code such finding is no longer necessary. It bears emphasis, therefore, that the accused-appellant not only
took advantage of the offended party's tender age in giving vent to his aberrant sexual behavior but also
perpetrated the carnal acts complained of through force and intimidation. There is no merit in the accused-
appellant's contention that the trial court abused its discretion in concluding that there was force and
intimidation since the information did not contain any allegation to that effect simply because the phrase
"against her will and without her consent" contained in both informations charging the accused-appellant of
rape connotes the attendance of force and intimidation.
The absence of external signs of physical injuries and the failure of the victim to shout for help at the first
opportunity do not negate the commission of rape contrary to the accused-appellant's propositions. The force
used in rape cases need not be absolutely overpowering or irresistible. What is essential is simply that the
force employed was sufficient to allow the offender to consummate his lewd purpose (see People v. Cpl. Mario
Ramos, G.R. Nos. 92626-29, May 27, 1991 citing People v. Mendoza, 163 SCRA 568 [1988]; People v.
Tablizo, 182 SCRA 739 [1990] citing People v. Pasco, et al., 181 SCRA 233 [1990]; People v. Villaflores, 174
SCRA 70 [1989] citing People v. Abonada, 169 SCRA 530 [1989]). Cdpr
We further note with approval the trial court's observation that the accused-appellant's act of giving the
offended party the sum of P2.00 after each of the aforestated "forcible copulation" apparently as "full
atonement for his dastardly act" smacks of "insult a hundred times compounded." The accused-appellant,
despite the trial court's strong words, even had the gall to reiterate before us his claim that the acceptance of
the said measly amount of P2.00 was tantamount to a tacit consent on the part of his victim. We deplore such
a highly offensive and depraved argument for we cannot allow the innocent and helpless victims of unsolicited
and forcible defloration to be brutally insulted while yet nursing their irreparably wounded sexual purity.
Considering the age of the victim, the depravity of the crimes, and the psychological trauma involved, we
increase the indemnity to P50,000.00 In accordance with the recent rulings in the cases of People v. Cpl. Mario
Ramos, supra; People v. Edgardo Puedan y Lalongisip, supra; and People v. Rodante Felipe, G.R. No. 90390,
October 31, 1990.
WHEREFORE, in view of the foregoing, the appealed decision is AFFIRMED with MODIFICATION that the
amount of civil indemnity which the accused shall pay to the offended party in each of the two rape cases is
hereby increased to P50,000.00.
SO ORDERED.
||| (People v. Alegado y Delima, G.R. Nos. 93030-31, [August 21, 1991], 278 PHIL 44-58)
Tison v. CA 276 SCRA 582 (1997)
[G.R. No. 121027. July 31, 1997.]
 CORAZON DEZOLLER TISON and RENE R. DEZOLLER, petitioners, vs. COURT OF
APPEALS and TEODORA DOMINGO, respondents.

Benjamin P. Quitoriano for petitioners.

Ramoso Law Office for private respondent.

SYLLABUS

1. CIVIL LAW; FAMILY CODE; FILIATION; LEGITIMACY; GENERAL PRESUMPTION THAT

CHILDREN BORN IN WEDLOCK ARE LEGITIMATE; ISSUE THEREOF CANNOT BE ATTACKED
COLLATERALLY. — There is no presumption of the law more firmly established and founded on sounder
morality and more convincing reason than the presumption that children born in wedlock are legitimate. And
well settled is the rule that the issue of legitimacy cannot be attacked collaterally. The issue whether petitioners
are the legitimate children of Hermogenes Dezoller cannot be properly controverted in the present action for
re-conveyance. This is aside from the further consideration that private respondent is not the proper party to
impugn the legitimacy of herein petitioners. The presumption consequently continues to operate in favor of
petitioners unless and until it is rebutted.
2. ID.; ID.; ID.; ID.; ID.; BURDEN OF PROOF. — The burden of proof rests not on herein petitioners
who have the benefit of the presumption in their favor, but on private respondent who is disputing the same.
The presumption of legitimacy is so strong that it is clear that its effect is to shift the burden of persuasion to
the party claiming illegitimacy. And in order to destroy the presumption, the party against whom it operates
must adduce substantial and credible evidence to the contrary. Where there is an entire lack of competent
evidence to the contrary, and unless or until it is rebutted, it has been held that a presumption may stand in lieu
of evidence and support a finding or decision. Perforce, a presumption must be followed if it is uncontroverted.
This is based on the theory that a presumption is prima facie proof of the fact presumed, and unless the fact
thus established prima facie by the legal presumption of its truth is disproved, it must stand as proved.
Indubitably, when private respondent opted not to present countervailing evidence to overcome the
presumption, by merely filing a demurrer to evidence instead, she in effect impliedly admitted the truth of such
fact.
3. REMEDIAL LAW; EVIDENCE; TESTIMONIES; EXCEPTION TO THE HEARSAY RULE;
DECLARATION ABOUT PEDIGREE; CONDITIONS. — The primary proof to be considered in ascertaining the
relationship between the parties concerned is the testimony of Corazon Dezoller Tison to the effect that
Teodora Dezoller Guerrero in her lifetime categorically declared that the former is Teodora's niece. Such a
statement is considered a declaration about pedigree which is admissible, as an exception to the hearsay rule,
under Section 39, Rule 130 of the Rules of Court, subject to the following conditions: (1) that the declarant is
dead or unable to testify; (2) that the declarant be related to the person whose pedigree is the subject of
inquiry; (3) that such relationship be shown by evidence other than the declaration; and (4) that the declaration
was made ante litem motam, that is, not before the commencement of the suit involving the subject matter of
the declaration, but before any controversy has arisen thereon.
4. ID.; ID.; ID.; ID.; ID.; SUFFICIENCY DISCUSSED. — American jurisprudence has it that a distinction
must be made as to when the relationship of the declarant may be proved by the very declaration itself, or by
other declarations of said declarant, and when men It must be supported by evidence aliunde. The general rule
is that where the party claiming seeks recovery against a relative common to both claimant and declarant, but
not from the declarant himself or the declarant's estate, the relationship of the declarant's estate, the
relationship of the proved by the declaration itself. There must be some independent proof of this fact. As an
exception, the requirement that there be other proof than the declarations of the declarant as to the
relationship, does not apply where it is sought to reach the estate of the declarant himself and not merely to
establish a right through his declarations to the property of some other member of the family.
5. ID.; ID.; ID.; ID.; ID.; REQUIRES NO FURTHER EVIDENCE IN CASE AT BAR. — The present case
is one instance where the general requirement on evidence aliunde may be relaxed. Petitioners are claiming a
right to part of the estate of the declarant herself. Conformably, the declaration made by Teodora Dezoller
Guerrero that petitioner Corazon is her niece, is admissible and constitutes sufficient proof of such relationship,
notwithstanding the fact that there was no other preliminary evidence thereof, the reason being that such
declarant is rendered competent by virtue of the necessity of receiving such evidence to avoid a failure of
justice. More importantly, there is in the present case an absolute failure by all and sundry to refute that
declaration made by the decedent. Where the subject of the declaration is the declarant's own relationship to
another person. it seems absurd to require, as a foundation for the admission of the declaration, proof of the
very fact which the declaration is offered to establish. The preliminary proof would render the main evidence
unnecessary.
6. ID.; ID.; RULES OF ADMISSIBILITY; DOCUMENTARY EVIDENCE; INSUFFICIENCY ADMITTED
WHEN NOT TIMELY OBJECTED. — While the documentary evidence submitted by petitioners do not strictly
conform to the rules on their admissibility, we are however of the considered opinion that the same may be
admitted by reason of private respondent's failure to interpose any timely objection thereto at the time they
were being offered in evidence. It is elementary that an objection shall be made at the time when an alleged
inadmissible document is offered in evidence, otherwise, the objection shall be treated as waived, since the
right to object is merely a privilege which the party may waived. The proper time is when from the question
addressed to the witness, or from the answer thereto, or from the presentation of the proof, the inadmissibility
of the evidence is, or may be inferred. Thus, a failure to except to the evidence because it does not conform
with the statute is a waiver of the provisions of the law. That objection to a question put to a witness must be
made at the time the question is asked. An objection to the admission of evidence on the ground of
incompetency, taken after the testimony has been given, is too late. Thus, for instance, failure to object to parol
evidence given on the stand, where the party is in a position to object, is a waiver of any objections thereto.
7. ID.; CIVIL PROCEDURE; JUDGMENT ON DEMURRER TO EVIDENCE. — Private respondent may
no longer be allowed to present evidence by reason of the mandate under Section I of revised Rule 38 of the
Rules of Court which provides that "if the motion is granted but on appeal the order of dismissal is reversed he
shall be deemed to have waived the right to present evidence."

DECISION

REGALADO, J p:

The present appeal by certiorari seeks the reversal of the judgment rendered by respondent Court of
Appeals on June 30, 1995 1 which affirmed the Order of December 3, 1992 issued by the Regional Trial Court
of Quezon City, Branch 98, granting herein private respondent's Demurrer to Plaintiff's Evidence filed in Civil
Case No. Q-88-1054 pending therein.
The present appellate review involves an action for reconveyance filed by herein petitioners against
herein private respondent before the Regional Trial Court of Quezon City, Branch 98, docketed as the
aforesaid Civil Case No. Q-88-1054, over a parcel of land with a house and apartment thereon located at San
Francisco del Monte, Quezon City and which was originally owned by the spouses Martin Guerrero and
Teodora Dezoller Guerrero. It appears that petitioners Corazon Tison and Rene Dezoller are the niece and
nephew, respectively, of the deceased Teodora Dezoller Guerrero who is the sister of petitioners' father,
Hermogenes Dezoller. Teodora Dezoller Guerrero died on March 5, 1983 without any ascendant or
descendant, and was survived only by her husband, Martin Guerrero, and herein petitioners. Petitioners'
father, Hermogenes, died on October 3, 1973, hence they seek to inherit from Teodora Dezoller Guerrero by
right of representation.
The records reveal that upon the death of Teodora Dezoller Guerrero, her surviving spouse, Martin,
executed on September 15, 1986 an Affidavit of Extrajudicial Settlement 2 adjudicating unto himself, allegedly
as sole heir, the land in dispute which is covered by Transfer Certificate of Title No. 66886, as a consequence
of which Transfer Certificate of Title No. 358074 was issued in the name of Martin Guerrero. On January 2,
1988, Martin Guerrero sold the lot to herein private respondent Teodora Domingo and thereafter, Transfer
Certificate of Title No. 374012 was issued in the latter's name.
Martin Guerrero died on October 25, 1988. Subsequently, herein petitioners filed an action for
reconveyance on November 2, 1988, claiming that they are entitled to inherit one-half of the property in
question by right of representation. cdtai
At the pre-trial conference, the following issues were presented by both parties for resolution:
(1) whether or not the plaintiffs (herein petitioners) are the nephew and niece of the
late Teodora Dezoller;
(2) whether or not the plaintiffs are entitled to inherit by right of representation from the
estate of the late Teodora Dezoller;
(3) whether or not defendant (herein private respondent) must reconvey the reserved
participation of the plaintiffs to the estate of the late Teodora Dezoller under Section 4, Rule
74 of the Rules of Court which was duly annotated on the title of the defendant;
(4) whether or not the plaintiffs are entitled to damages, moral and exemplary, plus
attorney' s fees for the willful and malicious refusal of defendant to reconvey the participation
of plaintiffs in the estate of Teodora Dezoller, despite demands and knowing fully well that
plaintiffs are the niece and nephew of said deceased; and
(5) whether or not the subject property now in litigation can be considered as conjugal
property of the spouses Martin Guerrero and Teodora Dezoller Guerrero. 3
During the hearing, petitioner Corazon Dezoller Tison was presented as the lone witness, with the
following documentary evidence offered to prove petitioners' filiation to their father and their aunt, to wit: a
family picture; baptismal certificates of Teodora and Hermogenes Dezoller; certificates of destroyed records of
birth of Teodora Dezoller and Hermogenes Dezoller; death certificates of Hermogenes Dezoller and Teodora
Dezoller Guerrero; certification of destroyed records of live birth of Corazon and Rene Dezoller; joint affidavits
of Pablo Verzosa and Meliton Sitjar attesting to the parents, date and place of birth of Corazon and Rene
Dezoller; joint affidavit of Juliana Cariaga and Manuela Cariaga attesting to the fact of marriage between
Martin Guerrero and Teodora Dezoller; and the marriage certificate of Martin and Teodora
Guerrero. 4 Petitioners thereafter rested their case and submitted a written offer of these exhibits to which a
Comment 5 was filed by herein private respondent.
Subsequently, private respondent filed a Demurrer to Plaintiff's Evidence on the ground that petitioners
failed to prove their legitimate filiation with the deceased Teodora Guerrero in accordance with Article 172 of
the Family Code. It is further averred that the testimony of petitioner Corazon Dezoller Tison regarding her
relationship with her alleged father and aunt is self-serving, uncorroborated and incompetent, and that it falls
short of the quantum of proof required under Article 172 of the Family Code to establish filiation. Also, the
certification issued by the Office of the Local Civil Registrar of Himamaylan, Negros Occidental is merely proof
of the alleged destruction of the records referred to therein, and the joint affidavit executed by Pablo Verzosa
and Meliton Sitjar certifying to the date, place of birth and parentage of herein petitioners is inadmissible for
being hearsay since the affiants were never presented for cross-examination. 6
On December 3, 1992, the trial court issued an order granting the demurrer to evidence and dismissing
the complaint for reconveyance. 7
In upholding the dismissal, respondent Court of Appeals declared that the documentary evidence
presented by herein petitioners, such as the baptismal certificates, family picture, and joint affidavits are all
inadmissible and insufficient to prove and establish filiation. Hence, this appeal.
We find for petitioners.
The bone of contention in private respondent's demurrer to evidence is whether or not herein
petitioners failed to meet the quantum of proof required by Article 172 of the Family Code to establish
legitimacy and filiation. There are two points for consideration before us: first is the issue on petitioner's
legitimacy, and second is the question regarding their filiation with Teodora Dezoller Guerrero.
I. It is not debatable that the documentary evidence adduced by petitioners, taken separately and
independently of each other, are not per se sufficient proof of legitimacy nor even of pedigree. It is important to
note, however, that the rulings of both lower courts in the case are basically premised on the erroneous
assumption that, in the first place, the issue of legitimacy may be validly controverted in an action for
reconveyance, and, in the second place, that herein petitioners have the onus probandi to prove their
legitimacy and, corollarily, their filiation. We disagree on both counts.
It seems that both the court a quo and respondent appellate court have regrettably overlooked the
universally recognized presumption on legitimacy. There is no presumption of the law more firmly established
and founded on sounder morality and more convincing reason than the presumption that children born in
wedlock are legitimate. 8 And well settled is the rule that the issue of legitimacy cannot be attacked collaterally.
The rationale for these rules has been explained in this wise:
"The presumption of legitimacy in the Family Code . . . actually fixes a civil status for
the child born in wedlock, and that civil status cannot be attacked collaterally. The legitimacy
of the child can be impugned only in a direct action brought for that purpose, by the proper
parties, and within the period limited by law.
The legitimacy of the child cannot be contested by way of defense or as a collateral
issue in another action for a different purpose. The necessity of an independent action directly
impugning the legitimacy is more clearly expressed in the Mexican Code (Article 335) which
provides: 'The contest of the legitimacy of a child by the husband or his heirs must be made
by proper complaint before the competent court; any contest made in any other way is void.'
This principle applies under our Family Code. Articles 170 and 171 of the code confirm this
view, because they refer to "the action to impugn the legitimacy." This action can be brought
only by the husband or his heirs and within the periods fixed in the present articles.
Upon the expiration of the periods provided in Article 170, the action to impugn the
legitimacy of a child can no longer be brought. The status conferred by the presumption,
therefore, becomes fixed, and can no longer be questioned. The obvious intention of the law
is to prevent the status of a child born in wedlock from being in a state of uncertainty for a long
time. It also aims to force early action to settle any doubt as to the paternity of such child, so
that the evidence material to the matter, which must necessarily be facts occurring during the
period of the conception of the child, may still be easily available.
xxx xxx xxx
Only the husband can contest the legitimacy of a child born to his wife. He is the one
directly confronted with the scandal and ridicule which the infidelity of his wife produces; and
 he should decide whether to conceal that infidelity or expose it, in view of the moral and
economic interest involved. It is only in exceptional cases that his heirs are allowed to contest
such legitimacy. Outside of these cases, none — even his heirs — can impugn legitimacy;
that would amount to an insult to his memory." 9
The issue, therefore, as to whether petitioners are the legitimate children of Hermogenes Dezoller
cannot be properly controverted in the present action for reconveyance. This is aside, of course, from the
further consideration that private respondent is not the proper party to impugn the legitimacy of herein
petitioners. The presumption consequently continues to operate in favor of petitioners unless and until it is
rebutted.
Even assuming that the issue is allowed to be resolved in this case, the burden of proof rests not on
herein petitioners who have the benefit of the presumption in their favor, but on private respondent who is
disputing the same. This fact alone should have been sufficient cause for the trial court to exercise appropriate
caution before acting, as it did, on the demurrer to evidence. It would have delimited the issues for resolution,
as well as the time and effort necessitated thereby. cdtai
Ordinarily, when a fact is presumed, it implies that the party in whose favor the presumption exists does
not have to introduce evidence to establish that fact, and in any litigation where that fact is put in issue, the
party denying it must bear the burden of proof to overthrow the presumption. 10 The presumption of legitimacy
is so strong that it is clear that its effect is to shift the burden of persuasion to the party claiming
illegitimacy. 11 And in order to destroy the presumption, the party against whom it operates must adduce
substantial and credible evidence to the contrary. 12
Where there is an entire lack of competent evidence to the contrary, 13 and unless or until it is rebutted,
it has been held that a presumption may stand in lieu of evidence and support a finding or
decision. 14 Perforce, a presumption must be followed if it is uncontroverted. This is based on the theory that a
presumption is prima facie proof of the fact presumed, and unless the fact thus established prima facie by the
legal presumption of its truth is disproved, it must stand as proved. 15
Indubitably, when private respondent opted not to present countervailing evidence to overcome the
presumption, by merely filing a demurrer to evidence instead, she in effect impliedly admitted the truth of such
fact. Indeed, she overlooked or disregarded the evidential rule that presumptions like judicial notice and
admissions, relieve the proponent from presenting evidence on the facts he alleged and such facts are thereby
considered as duly proved.
II. The weight and sufficiency of the evidence regarding petitioner's relationship with Teodora Dezoller
Guerrero, whose estate is the subject of the present controversy, requires a more intensive and extensive
examination.
Petitioners' evidence, as earlier explained, consists mainly of the testimony of Corazon Dezoller Tison,
the baptismal, death and marriage certificates, the various certifications from the civil registrar, a family picture,
and several joint affidavits executed by third persons all of which she identified and explained in the course and
as part of her testimony.
The primary proof to be considered in ascertaining the relationship between the parties concerned is
the testimony of Corazon Dezoller Tison to the effect that Teodora Dezoller Guerrero in her lifetime, or
sometime in 1946, categorically declared that the former is Teodora's niece. 16 Such a statement is
considered a declaration about pedigree which is admissible, as an exception to the hearsay rule,
under Section 39, Rule 130 of the Rules of Court, subject to the following conditions: (1) that the declarant is
dead or unable to testify; (2) that the declarant be related to the person whose pedigree is the subject of
inquiry; (3) that such relationship be shown by evidence other than the declaration; and (4) that the declaration
was made ante litem motam, that is, not only before the commencement of the suit involving the subject matter
of the declaration, but before any controversy has arisen thereon.
There is no dispute with respect to the first, second and fourth elements. What remains for analysis is
the third element, that is, whether or not the other documents offered in evidence sufficiently corroborate the
declaration made by Teodora Dezoller Guerrero in her lifetime regarding the pedigree of petitioner Corazon
Dezoller Tison or, if at all, it is necessary to present evidence other than such declaration.
American jurisprudence has it that a distinction must be made as to when the relationship of the
declarant may be proved by the very declaration itself, or by other declarations of said declarant, and when it
must be supported by evidence aliunde. The rule is stated thus:
"One situation to be noted is that where one seeks to set up a claim through, but not
from, the declarant and to establish the admissibility of a declaration regarding claimant's
pedigree, he may not do so by declarant's own statements as to declarant' s relationship to
the particular family. The reason is that declarant's declaration of his own relationship is of a
self-serving nature. Accordingly there must be precedent proof from other sources that
declarant is what he claimed to be, namely, a member of the particular family; otherwise the
requirement to admissibility that declarant's relationship to the common family must appear is
not met. But when the party claiming seeks to establish relationship in order to claim directly
 from the declarant or the declarant's estate, the situation and the policy of the law applicable
are quite different. In such case the declaration of the decedent, whose estate is in
controversy, that he was related to the one who claims his estate, is admissible without other
proof of the fact of relationship. While the nature of the declaration is then disserving, that is
not the real ground for its admission. Such declarations do not derive their evidential value
from that consideration, although it is a useful, if not an artificial, aid in determining the class to
which the declarations belong. The distinction we have noted is sufficiently apparent; in the
one case the declarations are self-serving, in the other they are competent from reasons of
necessity." 17 (Emphasis ours.)
The general rule, therefore, is that where the party claiming seeks recovery against a relative common
to both claimant and declarant, but not from the declarant himself or the declarant's estate, the relationship of
the declarant to the common relative may not be proved by the declaration itself. There must be some
independent proof of this fact. 18 As an exception, the requirement that there be other proof than the
declarations of the declarant as to the relationship, does not apply where it is sought to reach the estate of the
declarant himself and not merely to establish a right through his declarations to the property of some other
member of the family. 19
We are sufficiently convinced, and so hold, that the present case is one instance where the general
requirement on evidence aliunde may be relaxed. Petitioners are claiming a right to part of the estate of the
declarant herself. Conformably, the declaration made by Teodora Dezoller Guerrero that petitioner Corazon is
her niece, is admissible and constitutes sufficient proof of such relationship, notwithstanding the fact that there
was no other preliminary evidence thereof, the reason being that such declaration is rendered competent by
virtue of the necessity of receiving such evidence to avoid a failure of justice. 20 More importantly, there is in
the present case an absolute failure by all and sundry to refute that declaration made by the decedent. cdtai
From the foregoing disquisitions, it may thus be safely concluded, on the sole basis of the decedent's
declaration and without need for further proof thereof, that petitioners are the niece and nephew of Teodora
Dezoller Guerrero. As held in one case, 21 where the subject of the declaration is the declarant's own
relationship to another person, it seems absurd to require, as a foundation for the admission of the declaration,
proof of the very fact which the declaration is offered to establish. The preliminary proof would render the main
evidence unnecessary.
Applying the general rule in the present case would nonetheless produce the same result. For while the
documentary evidence submitted by petitioners do not strictly conform to the rules on their admissibility, we are
however of the considered opinion that the same may be admitted by reason of private respondent's failure to
interpose any timely objection thereto at the time they were being offered in evidence. 22 It is elementary that
an objection shall be made at the time when an alleged inadmissible document is offered in
evidence, 23 otherwise, the objection shall be treated as waived, 24 since the right to object is merely a
privilege which the party may waive. 25
As explained in Abrenica vs. Gonda, et al., 26 it has been repeatedly laid down as a rule of evidence
that a protest or objection against the admission of any evidence must be made at the proper time, otherwise it
will be deemed to have been waived. The proper time is when from the question addressed to the witness, or
from the answer thereto, or from the presentation of the proof, the inadmissibility of the evidence is, or may be
inferred.
Thus, a failure to except to the evidence because it does not conform with the statute is a waiver of the
provisions of the law. That objection to a question put to a witness must be made at the time the question is
asked. An objection to the admission of evidence on the ground of incompetency, taken after the testimony has
been given, is too late. 27 Thus, for instance, failure to object to parol evidence given on the stand, where the
party is in a position to object, is a waiver of any objections thereto. 28
The situation is aggravated by the fact that counsel for private respondent unreservedly cross-
examined petitioners, as the lone witness, on the documentary evidence that were offered. At no time was the
issue of the supposed inadmissibility thereof, or the possible basis for objection thereto, ever raised. Instead,
private respondent's counsel elicited answers from the witness on the circumstances and regularity of her
obtention of said documents: The observations later made by private respondent in her comment to petitioners'
offer of exhibits, although the grounds therefor were already apparent at the time these documents were being
adduced in evidence during the testimony of Corazon Dezoller Tison but which objections were not timely
raised therein, may no longer serve to rectify the legal consequences which resulted therefrom. Hence, even
assuming ex gratia argumenti that these documents are inadmissible for being hearsay, but on account of
herein private respondent's failure to object thereto, the same may be admitted and considered as sufficient to
prove the facts therein asserted. 29
Accordingly, the Certificate of Marriage (Exhibit S) wherein it is indicated that the parents of Teodora
Dezoller are Isabelo Dezoller and Cecilia Calpo, as well as the Certificates of Baptism of Teodora
Dezoller 30 (Exhibit H) and Hermogenes Dezoller (Exhibit J) which both reflect the names of their parents as
Isabelo Dezoller and Cecilia Calpo, to show that Hermogenes Dezoller is the brother of Teodora Dezoller
Guerrero; and the Death Certificate of Hermogenes Dezoller (Exhibit K) the entries wherein were made by
petitioner Corazon Dezoller Tison as his daughter, together with the Joint Affidavits of Pablo Verzosa and
Meliton Sitjar (Exhibits N and P), to prove that herein petitioners are the children of Hermogenes Dezoller —
these can be deemed to have sufficiently established the relationship between the declarant and herein
petitioners. This is in consonance with the rule that a prima facie showing is sufficient and that only slight proof
of the relationship is required. 31 Finally, it may not be amiss to consider as in the nature of circumstantial
evidence the fact that both the declarant and the claimants, who are the subject of the declaration, bear the
surname Dezoller. 32
III. The following provisions of the Civil Code provide for the manner by which the estate of the
decedent shall be divided in this case, to wit:
"Art. 975. When children of one or more brothers or sisters of the deceased survive,
they shall inherit from the latter by representation, if they survive with their uncles or aunts.
But if they alone survive, they shall inherit in equal portions."
"Art. 995. In the absence of legitimate descendants and ascendants, and illegitimate
children and their descendants, whether legitimate or illegitimate, the surviving spouse shall
inherit the entire estate, without prejudice to the rights of brothers and sisters, nephews and
nieces, should there be any, under Article 1001."
"Art. 1001. Should brothers and sisters or their children survive with the widow or
widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters
or their children to the other half."
Upon the death of Teodora Dezoller Guerrero, one-half of the subject property was automatically
reserved to the surviving spouse, Martin Guerrero, as his share in the conjugal partnership. Applying the
aforequoted statutory provisions, the remaining half shall be equally divided between the widower and herein
petitioners who are entitled to jointly inherit in their own right. Hence, Martin Guerrero could only validly
alienate his total undivided three-fourths (3/4) share in the entire property to herein private respondent.
Resultantly, petitioners and private respondent are deemed co-owners of the property covered by Transfer
Certificate of Title No. 374012 in the proportion of an undivided one-fourth (1/4) and three-fourths (3/4) share
thereof, respectively. cdrep
 
All told, on the basis of the foregoing considerations, the demurrer to plaintiffs' evidence should have
been, as it is hereby, denied. Nonetheless, private respondent may no longer be allowed to present evidence
by reason of the mandate under Section 1 of revised Rule 3 of the Rules of Court which provides that "if the
motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right
to present evidence." 33
WHEREFORE, the questioned judgment of respondent Court of Appeals is hereby REVERSED and
SET ASIDE, and herein petitioners and private respondent are declared co-owners of the subject property with
an undivided one-fourth (1/4) and three-fourth (3/4) share therein, respectively.
SO ORDERED.
||| (Tison v. Court of Appeals, G.R. No. 121027, [July 31, 1997], 342 PHIL 550-567)
Family Tradition:
Ferrer v. de Inchausti 38 Phil. 905 (1918)
[G.R. No. 12993. October 28, 1918.]

RAFAEL J. FERRER, ET AL., plaintiffs-appellants, vs. JOAQUIN J. DE INCHAUSTI, ET

AL., defendants-appellees.

Vicente Sotto, for appellants.

Araneta & Zaragoza and Cohn & Fisher, for appellees.

SYLLABUS

1. NATURAL CHILDREN; LEGITIMATE FILIATION; PRESUMPTION. — The legitimate filiation of a

person presupposes the existence of a marriage contracted by the presumed parents in accordance with
law and, consequently, a child can not be declared a legitimate daughter of her mother without at the same
time presuming that said child was born during the marriage of her supposed parents.
2. ID.; ID.; BIRTH OF A CHILD FIFTEEN YEARS AFTER DEATH OF ALLEGED FATHER. — A
child born 15 years after the death of the alleged father can not physically and legally be a legitimate
daughter of such alleged father.
 3. ID.; RIGHTS TO INHERIT FROM THEIR NATURAL MOTHER PRIOR TO PROMULGATION OF
CIVIL CODE. — Rights arising under the legislation prior to the Civil Code shall only be recognized and
given effect in accordance with the new legislation, provided they do not prejudice other acquired rights
having the same origin, and according to this principle, natural children have no right to inherit from their
natural mother who has subsequently married and who, on her death, left some legitimate children whose
rights can not be prejudiced.
4. PARTITION; ACTION; PRESUMPTION. — He who brings an action for the partition of an
hereditary estate or property in common is presumed to be a coheir and to have an undisputed right to the
property claimed or to be a coowner of the same property possessed in common.
5. ID.; ID.; OBJECT. — He who claims a right to a part of the inheritance of a deceased person and
who alleges that he is a relative of the latter and that he has a right of testate or intestate succession
thereto, has for his principal object the recognition of his right to the inheritance claimed by him and the
delivery to him of his share as fixed by law.
6. ID.; ID.; PRESCRIPTION. — Both actions are different from each other and have already
prescribed in accordance with the old legislation as well as with the provisions of the Code of Civil
Procedure.

DECISION

TORRES, J p:

This appeal was taken through bill of exceptions by counsel for the plaintiffs from the judgment of
February 12, 1917, whereby the judge of the Court of First Instance held that Rosa Viademonte, mother of
the plaintiffs, could not have been a legitimate daughter of the deceased Isabel Gonzalez, who, on her
death, left some legitimate children. The court did not deem it necessary to discuss whether the said Rosa
Viademonte could be a daughter of the said Isabel Gonzalez, for the reason given in his decision, and held
that the plaintiffs should not be entitled to what they have demanded, and that they should pay the costs.
Under date of May 12, 1916, the attorney of Rafael J. Ferrer y Viademonte and Maria Angelina
Ferrer y Viademonte with her husband Ricardo Hernandez y Aracil filed a complaint in the Court of First
Instance of the city of Manila, praying for the rendition of a final judgment declaring that Rosa Matilde
Viademonte y Gonzalez had the right to succeed to the inheritance left by Isabel Gonzalez in the same
proportion and capacity as the other four children of the latter, namely, Ramon Viademonte, Rafael C. de
Inchausti, Joaquin C. de Inchausti, and Clotilde de Inchausti de Vidal; that the plaintiffs Rafael and Maria
Angelina Ferrer are the only and legitimate heirs of the deceased Rosa Viademonte and the only ones
entitled to receive her share of the inheritance left by Isabel Gonzalez, that is, the one-fifth part of the
latter's estate; that the defendants render to the plaintiffs an account of the fruits and administration of all
the property from the moment the said community of property was constituted among them, and to deliver
to the plaintiffs that part which corresponds to them in their capacity as sole heirs of Rosa Viademonte y
Gonzalez, that is, the one-fifth part of the inheritance, with all its accessions, fruits, and interests; and,
finally, that the defendants pay the costs. In fact, it is alleged that the plaintiffs are the legitimate children of
Rosa Matilde Viademonte and Benigno Ferrer, who died and was survived by his wife, Rosa Viademonte,
who in turn died on November 20, 1898, leaving the two plaintiffs as surviving legitimate children; that the
said Isabel Gonzalez was married, first, to Ramon Martinez Viademonte, and from this marriage two
children, named Ramon and Rosa Matilde, and surnamed Viademonte y Gonzalez, survived; that after the
death of her husband Ramon Martinez Viademonte, Sr., the widow, Isabel Gonzalez, contracted a second
marriage with Don Jose Joaquin de Inchausti with whom she had three children named Clotilde, Rafael,
and Joaquin, all surnamed Inchausti y Gonzalez; that Ramon Viademonte y Gonzalez, Jr., died on January
1, 1905, without leaving any forced heir, and, by a will dated May 16, 1900, he left his property to the son
or sons which Rafael C. de Inchausti might have, and, in default of such child or children, to the same
Rafael C. de Inchausti; that on his death, on October 5, 1913, Rafael C. de Inchausti, by a will, left as his
heirs and successors in interest his legitimate son Jose R. de Inchausti, his recognized natural daughter
Maria Consolacion de Inchausti de Ortigas, and his widow Maria Consolacion Rico y Medina; that on her
death, Isabel Gonzalez left a certain property valued at P191,284.81, which is one-half of the conjugal
property in her marriage with Jose Joaquin de Inchausti, which would amount approximately to
P1,000,000, with its accessions, according to present valuation, as shown by the inventory of said property
which makes up Exhibit A; that on January 14, 1888, Jose Joaquin de Inchausti made an extrajudicial
partition of the property left by his deceased wife, Isabel Gonzalez, among Ramon Viademonte y
Gonzalez, Rafael C. de Inchausti y Gonzalez, Joaquin C. de Inchausti y Gonzalez, and Clotilde de
Inchausti y Gonzalez de Vidal, each of whom received one-fourth of the estate left by the deceased Isabel
Gonzalez, excluding therefrom Rosa Viademonte, the mother of the plaintiffs, notwithstanding the fact that
she had an equal right to inherit from Isabel Gonzalez; that since January 1888 till his death, Ramon
Viademonte, Jr., had been the possessor and administrator of the fourth part of the inheritance which he
received from his deceased mother Isabel Gonzalez, which portion of the property later came to the
possession and control of Rafael C. de Inchausti, and on the death of the latter, this fourth part of the
inheritance came to the possession of Maria Consolacion Rico de Inchausti, widow of said Rafael C. de
Inchausti, in her capacity as guardian of her son Jose Rafael de Inchausti, and part of it, to the possession
of Maria Consolacion Inchausti de Ortigas; and that a great part of the property which the defendants
actually possess, came from the young children, who received it from Isabel Gonzalez with the earnings
and accessions thereof; these children have been possessing it pro indiviso or in coownership, in their
lifetime, with Rosa Viademonte while living, and upon the death of the latter, with her heirs, but that, in spite
of the demands made by the plaintiffs for the delivery to them by the defendants of their corresponding
share in the inheritance, the latter have always refused to do so.
In his answer, counsel for Clotilde Inchausti de Vidal admitted that the plaintiffs are the children of
Rosa Viademonte and Benigno Ferrer; that Isabel Gonzalez was married first to Ramon Martinez de
Viademonte, and afterwards to Jose Joaquin de Inchausti; that on the death of her mother Isabel
Gonzalez, on December 13, 1886, her share in the conjugal partnership amounted to P191,284.81, and on
January 14, 1888, Jose Joaquin de Inchausti, as executor of his wife, after paying the legacies mentioned
in the testament, paid to this defendant in cash the sum of P46,295.70 as her hereditary portion in the
liquidated property of her mother, and likewise delivered to the other three sons of said Isabel Gonzalez
similar amounts; that, after receiving her share of the inheritance from her mother, she (Clotilde Inchausti
de Vidal) spent it all, and she no longer has any part of it, nor has she left any portion of it during the last
thirty years, and that neither the plaintiffs nor their deceased mother had ever possessed or enjoyed the
said sum; and denies generally all the allegations of the complaint which are not admitted, and denies
specially the allegation that the mother of the plaintiffs had ever married with their father Benigno Ferrer,
that they (the plaintiffs) and their mother ever had the surname of "Viademonte" or "Viademonte y
Gonzalez," and that the mother of the plaintiffs was a daughter of Isabel Gonzalez.
As a special defense, she alleged that her possession of the money derived from the inheritance of
her mother had been public, adverse, pacific, continuous, and under a claim of ownership, in good faith
and with just title, since January 14, 1888; that never during the lifetime of the plaintiffs' mother did she
(plaintiff's mother) make any claim or assert any right in the amount received by this defendant from the
inheritance of her deceased mother; that more than thirty years had elapsed since she received said
amount to the date of the presentation of the complaint; and that the action of the plaintiffs has already
prescribed in accordance with the provisions of article 1955 of the Civil Code and section 38 of the Code of
Civil Procedure.
Counsel for Maria de la Consolacion de Inchausti, in turn, set up a special defense similar to that of
Clotilde, and alleged that Ramon Martinez Viademonte, son of Isabel Gonzalez, died in the city of Manila
on January 1, 1905, without leaving any heirs, and bequeathed by will to his brother Rafael C. de Inchausti,
father of this defendant, all of his property, with the exception of some property of little importance which he
had bequeathed to others; but denied that any part of his (Ramon Martinez Viademonte's) property has
ever been bequeathed to the children of said Rafael C. de Inchausti; that, on the death of said Ramon
Martinez de Viademonte, his will was duly allowed to probate in the Court of First Instance of Manila, and
all his remaining property delivered to Rafael C. de Inchausti with the court's approval; that the only part of
Ramon Martinez Viademonte's property received by her father Rafael C. de Inchausti was a small piece of
land situated in Santa Ana and known by the name of Hacienda de Lamayan; that the title of Rafael C. de
Inchausti to said land was registered by virtue of a decree of the Court of Land Registration, in accordance
with the provisions of the Land Registration Act; that said land was in turn inherited by this defendant from
her father upon the death of the latter, and that she appears in the registry of property as owner of the
same; that, upon the allowance of said will in the Court of First Instance of this city, the plaintiffs did not
present any claim to the commissioners appointed to appraise the property, and that the period allowed for
the presentation of such claims expired on October 20, 1914, and that, therefore, the action now filed by
the plaintiffs has prescribed, in accordance with the provisions of section 695 of the Code of Civil
Procedure. In similar terms, counsel for Joaquin C. de Inchausti worded his defense in a written answer as
amended under date of September 19, 1916.
Counsel for Maria de la Consolacion Rico y Medina in her personal capacity and as a widow of
Rafael Inchausti and also as guardian of her son Jose Rafael de Inchausti y Rico, in his answer to the
foregoing complaint, admits that Ramon Martinez and Isabel Gonzalez Ferrer, both now deceased, were in
their lifetime husband and wife, and were survived by a child named Ramon Martinez Viademonte y
Gonzalez, but denied that the said Rosa Matilde was a daughter of that marriage or of any of the said
spouses; he also admits that the deceased Ramon Martinez Viademonte, Jr., died in this city on January 1,
1905, without leaving any forced heir, and by a will dated May 16, 1900, he left to his maternal brother
Rafael C. de Inchausti, husband of this defendant, all his property with the exception of some small
legacies, denying at the same time that any portion of the inheritance of said Ramon Viademonte, Jr., had
been left to the children of the defendant's husband; that Isabel Gonzalez Ferrer, the mother of her
husband, who died on December 13, 1886, executed a will on April 29 of the said year, wherein she
declared that she had a son with her first husband Ramon Martinez Viademonte, and the name of said son
was also Ramon, and that with her second husband Jose Joaquin de Inchausti, she had three children,
and she instituted the said four children as the sole and universal heirs to the remainder of her property in
equal parts, her property being the one half of the conjugal property had during her marriage with her
second husband Inchausti who had survived her; that no portion of the inheritance from the deceased
Isabel Gonzalez y Ferrer was adjudicated to the mother of the plaintiffs; that the deceased Rafael C. de
Inchausti inherited from the said Ramon Martinez Viademonte, Jr., a parcel of land known by the name of
Hacienda de Lamayan, registered in the name of the deceased Rafael de Inchausti, which property was, in
turn, inherited by the defendant Maria Consolacion de Inchausti de Ortigas. As a special defense, she
alleged that in the said will wherein the testatrix Isabel Gonzalez named her sole and universal heirs, Rosa
Matilde, the mother of the plaintiffs, was not designated as heiress or legatee, but, on the contrary, was
omitted therefrom; that from the death of the testatrix Isabel, on December 12, 1886, up to the time of the
filing of this complaint, neither Rosa Matilde nor the plaintiffs presented any claim whatsoever against the
omission of Rosa Matilde from the will of said Isabel Gonzalez, for the plaintiffs could have availed
themselves of any right which Rosa Matilde could have had in the property inherited by the defendant and
her son Jose Rafael de Inchausti, derived from the estate of Isabel Gonzalez; that the period fixed by law
for contesting the will of Isabel Gonzalez on the ground of the prejudicial omission therefrom of Rosa
Matilde expired long before the date on which this complaint was filed, and consequently, said action has
prescribed; that, after the death of Ramon Viademonte, Jr., in February, 1905, probate proceedings were
had in the Court of First Instance of Manila, whereby the will of the deceased was proved and allowed, an
administrator of the decedent's estate was appointed, and on July 21 of said year the commissioners to
appraise the estate of the deceased were appointed, and after the lapse of the period fixed for allowing
claims against the estate, the property of the deceased was adjudicated to his heir Rafael C. de Inchausti
and to the legatees, the plaintiffs not having presented to the commissioners any claim against the estate
of Ramon Viademonte, Jr.; that the action against the estate of said deceased has thus prescribed by the
lapse of the period for its presentation; that, after the death of Rafael C. de Inchausti, on October 5, 1913,
probate proceedings were had regarding his will in the Court of First Instance of this city, an executor was
appointed as well as the commissioners to appraise the estate, and the period within which claims against
the estate might be received has expired, and the plaintiffs have not presented any claim whatsoever
against the estate of said Rafael C. de Inchausti; and finally, she alleged that the period fixed by law for
presenting claims against the estate of said Rafael C. de Inchausti expired long before the date of the filing
of this complaint, and consequently, the action to assert such a claim has already prescribed, and that
therefore the defendant should be absolved from the complaint with the costs against the plaintiffs.
Counsel for the plaintiffs, in his written reply amending his replies of September 20 and 21, 1916,
denied generally and specifically each and all of the new facts alleged in the answers of the defendants,
and added that the will of Isabel Gonzalez, dated October 12, 1886, is null and void, inasmuch as Rosa
Viademonte Gonzalez was omitted therein, without any legal cause for disinheriting her, she being a
daughter of said Isabel Gonzalez and having equal rights as her other children; that the defendants are
estopped from denying that the surname of Rosa Matilde is really Viademonte y Gonzalez and that said
Rosa Matilde was a daughter of Isabel Gonzalez with Ramon Martinez Viademonte; that the plaintiffs are
legitimate children of said Rosa Matilde with Benigno Ferrer inasmuch as both their predecessors in
interest as well as the present defendants have previously made declarations and formal affirmations,
written and oral, recognizing that the surname of Rosa Matilde was Viademonte y Gonzalez, that the same
was a legitimate daughter of Isabel Gonzalez and Ramon Martinez Viademonte, and that the plaintiffs are
legitimate children of Rosa Viademonte y Gonzalez with Benigno Ferrer.
The trial having been held and the evidence of both parties adduced, the trial judge, on February
12, 1917, rendered a judgment declaring that the plaintiffs receive nothing in this action and pay the costs.
To this decision the plaintiffs excepted and moved for a new trial, which motion was denied by order of the
court on the 27th day of the same month and year. An exception was taken to the order denying the motion
for a new trial, and the corresponding bill of exceptions was presented, approved, certified, and forwarded
to the office of the clerk of this court.
The parties are agreed as regards the allegations that the plaintiffs Rafael J. Ferrer and Maria
Angelina Ferrer are children of the deceased Rosa Matilde Viademonte, although the defendants deny that
they (plaintiffs) were legitimate children of their mother contrary to the affirmation of the plaintiffs to this
effect. The evidence of record concerning this point is of such a character that it is difficult to deduce
therefrom a certain and definite conclusion, because, while it appears that Rosa Matilde Viademonte has,
on various occasions, stated that she was unmarried and never contracted a marriage, she has made
entirely different statements on other occasions. In the proceedings (Exhibit 8) instituted by the said Rosa
Matilde against Rafael C. de Inchausti, it was disclosed that she had never been married and that if her
children with Benigno Ferrer were baptized as legitimate children, it was so done in order to conceal her
dishonor, such statement being found in a document drawn in 1892 and signed by her (Exhibit 8, pp. 3-4).
On page 169 of the records of the said proceedings (Exhibit 8) it appears that said Rosa Matilde stated
under oath before a judge, on January 21, 1893, that she had never married, and the same declaration
was made by her on April 15th of the same year in another case. (Exhibit 7, pp. 17-26.)
In a document found on page 166 of said Exhibit .8, executed in 1890, Rosa Matilde stated that she
was a widow; but, in a document executed in 1893, found on page 257 of Exhibit 8, and in a document
(Exhibit 1, page 136 of the first document executed in 1894) she made the statement that she was
unmarried. Rosa Matilde might have made these contradictions due perhaps to her extreme poverty, which
had prompted her to tell a lie before the courts of justice, with the sole purpose of recovering the amount
claimed by her as her legacy, while, on the other hand, it is undeniable that she could not duly justify the
marriage contracted by her with Benigno Ferrer.
 Even if the plaintiffs be considered as legitimate children of Rosa Matilde Viademonte in her
marriage with Benigno Ferrer, still this action filed by them will not prosper, inasmuch as the evidence
adduced at the trial to prove the origin of the cause of action referred to shows, in a manner which leaves
no room for doubt, that Rosa Matilde was not a legitimate daughter of Isabel Gonzalez, and it follows that
her children as well as her privies have no right to a part of the hereditary property of said Isabel Gonzalez.
Counsel for plaintiffs pretend to establish that Rosa Matilde Viademonte had been treated and
considered as a daughter by Isabel Gonzalez, and as a sister by the children of the latter; that, on one
occasion, said Gonzalez remarked that the father of Rosa Matilde was Ramon Martinez de Viademonte;
that Joaquin C. de Inchausti dedicated a picture to Rosa Matilde in the following manner: "To my dear and
unforgettable sister Rosa." (Exhibit G); that when Rosa Matilde entered the College de la Compañia de
Jesus, her name as recorded in the registry of that college was Rosa Matilde Viademonte, and her
expenses were defrayed by Rafael de Inchausti, and in the same registry said Rafael de Inchausti appeals
as brother of Rosa; that when Rosa entered the Colegio de Santa Isabel, she used the same name and
surname; that Ramon Martinez de Viademonte, Jr., presented Rosa Matilde as his sister, saying that the
father of the same v as also his father named Ramon Martinez de Viademonte, while Rosa Matilde has
always been known by the same name and surname during the time she was studying in the Colegio de
Luisa Odan de Virgi; that Clotilde de Inchausti called Rosa Matilde her sister in her letters to Rafael Ripol,
and that Joaquin Jose de Inchausti himself in the codicil of his testament (Exhibit F, p. 120), designates
Rosa Matilde with the surname of Viademonte.
From all the evidence adduced, the slightest indication cannot be inferred that Rosa Matilde was
born during the marriage of Ramon Martinez de Viademonte, Sr., with Isabel Gonzalez or within the 300
days after the dissolution of their marriage by the death of the husband (art. 111, Civil Code), nor has the
said Ramon Martinez de Viademonte, Sr., in his lifetime recognized said Rosa Matilde as his daughter. If
Rosa Matilde is a legitimate daughter of Isabel Gonzalez, it follows that she was also a daughter of Isabel's
husband, Ramon Martinez de Viademonte, under the assumption that she was born in the marriage of both
or at a time prior or subsequent to that of the celebration of the marriage, as fixed by law. (Arts. 119, 120,
121, and 122 of the Civil Code.)
Legitimate filiation presupposes the existence of marriage contracted by the presumed parents in
accordance with law, and therefore a person can not be declared to be a legitimate daughter of her mother.
without presuming at the same time that she was born in the marriage of this mother with the presumed
father, who, in his lifetime, and without his consent, could not have been considered as father of a child that
was not conceived by his own wife, because the mere fact of having used his surname after his death,
without his assent or consent, does not constitute a proof of filiation of paternity.
In this decision it is to be determined whether Rosa Matilde was born in the lifetime of Ramon
Martinez de Viademonte to decide on the truth of the assertion made by the plaintiffs that their predecessor
in interest was a legitimate daughter of the said spouses Viademonte and Gonzalez.
At the trial the death certificate of Ramon Martinez de Viademonte, first husband of Isabel
Gonzalez, was not presented in evidence; but it is uncontroverted that he died on September 30, 1836, as
corroborated by the accountant of the naval division of Puerto Galera in charge of the Lieutenant of the
Spanish Navy, Jose Atienza, saying that the Lieutenant, who had the rank of captain in the navy, Ramon
Viademonte, died on September 30, 1836, as appears in the list of officers found in the payroll under his
custody, having paid till the date of the death of said Viademonte all his salaries corresponding to him as
such officer, and further saying that, by request of the widow of the deceased, he issued the proper
certificate on December 31, 1836.
So certain is the death of said Ramon Martinez de Viademonte that his widow Isabel Gonzalez, on
January 3, 1837, applied to the Government for a pension sufficient to cover her widowhood expenses,
alleging that she was a widow with children of the deceased. The application was made in a paper
stamped as of the years 1836 and 1837, a fact which proves the authenticity of the document written in a
stamped paper, and the presentation of said application by the widow demonstrates the fact that her
husband really died, wherefore she asked for a pension, because she would have been held responsible if,
in truth and in fact, her husband had been living and not dead as she claimed.
The said documents, as constituting a supplementary proof of the death of the deceased Ramon
Martinez de Viademonte, appear to be corroborated by an entry in a notebook belonging to Ramon
Viademonte, Jr. (Exhibit 4, p. 10), wherein it is stated that his mother was married in 1833 to Ramon
Martinez de Viademonte, who died on September 30, 1836, at the age of 33 years, being then a major in
the naval division assigned at Puerto Galera, Mindoro.
Notwithstanding the fact that the death certificate of said Ramon Martinez de Viademonte, first
husband of Isabel Gonzalez, was not presented in evidence, still the documentary and circumstantial
evidence of record, especially the fact of the marriage of his widow Isabel Gonzalez with Jose Joaquin de
Inchausti, some years after the death of Viademonte, demonstrate clearly that the said Ramon Martinez de
Viademonte died before that marriage or on September 30, 1836. If this be true, let us see on what day
Rosa Matilde was born, and in this way it will be shown that she did not have the status of a legitimate child
of those spouses, even after the dissolution of their marriage by the death of the husband.
 It appears in the certificate, Exhibit 6, p. 139, that on September 1, 1862, a child three days old,
born of unknown parents, was baptized in the Cathedral Church of this city, and given the name of Rosa
Matilde Robles. In view of the fact that the plaintiffs have not shown that such baptismal certificate was not
that of their mother Rosa Matilde, it remains proven therefore that said certificate refers to Rosa Matilde
Viademonte, as the same certificate was presented as exhibit by Rafael C. de Inchausti in a case
concerning the delivery of a legacy instituted against said Rosa Matilde, who, instead of denying that such
a baptismal certificate referred to her, admitted that such certificate might have been hers.
On page 9 of the day-book which Ramon Martinez de Viademonte, Jr., kept during his lifetime,
appears a memorandum which says: "On September 1, 1852, at seven o'clock in the evening, a child three
days old, named Rosa Matilde Robles, according to the baptismal certificate issued by the acting rector
Don Ramon Fernandez of the Cathedral Church of Manila, was delivered to my mother; this child was
baptized by the priest Don Remigio Rodriguez with the authority of said rector, and according to the
baptismal certificate, it was a child of unknown parents." This memorandum agrees with the above-
mentioned baptismal certificate of Rosa Matilde Robles.
Notwithstanding the argument of counsel for the appellants, Joaquin Jose de Inchausti stated that
one day he was assured by his half-brother Ramon Martinez Viademonte that Rosa Matilde was not his
sister, but that she was only a mere protegee and that her true name was Rosa Matilde Robles, and that
on that occasion the said brother showed him the certificate of birth of which Exhibit 6 is a copy, which he
took from the parochial church.
In view of the fact that Ramon Martinez Viademonte is now dead, the testimony of Joaquin Jose de
Inchausti referring to the said deceased is admissible, for they are members of the same family, in
accordance with the provisions of section 281 of Act No. 190, and consequently, the conclusion is that
Rosa Matilde is the same Rosa Matilde Robles which is mentioned in Exhibit 6; and because she was born
in 1852, in no manner could she be a legitimate daughter of Ramon Viademonte and Isabel Gonzalez,
whose marriage was dissolved in 1836 by the death of the husband. Moreover, the witness Pilar Abarca
presented by the plaintiffs testified that she had known Rosa Matilde in the Colegio de Santa Isabel, in
1863, she being then 20 years old and Rosa, 9 years. If the witness Abarca was 73 years old on the date
of giving this testimony in 1916, it follows that Rosa Matilde was born in 1854, and that therefore she could
not be a daughter of Ramon Martinez de Viademonte who died in 1836.
Notwithstanding the attempt of the plaintiffs to impugn the testimony of said witness, said testimony
is admissible according to section 263 [283] of the Code of Civil Procedure, which provides that when part
of an act, declaration, conversation, or writing is given in evidence by one party, the whole of the same
subject may be inquired into by the other. It is true that the said witness was not presented to prove the
date of Rosa Matilde's birth, but the fact is that the age of a child 9 years old as well as that of a youth 19 or
22 years of age can be known from the appearance of the child, and even if, in fixing the age of Rosa
Matilde, a mistake has been made, said mistake could not be such as to reduce her true age by 10 years;
but even then and even supposing still that Rosa Matilde was 20 years old in 1863, the fact remains that
she must have been born in 1814, and so she could not have been a daughter of Ramon Martinez de
Viademonte, Sr.
Juan Ferrer, another witness for the plaintiffs, testified that Benigno Ferrer and Rosa Matilde
married in 1872, that Rosa Matilde must have been then between 22 and 30 years of age. It is inferred
from this testimony that, if Rosa Matilde could not be over 30 years old in 1872, she could not have been
born before 1842, and much less in 1836 or 1837.
The document No. 663, page 257 of Exhibit 8, appears to have been executed by Rosa Matilde in
1893, wherein she declared to the notary public before whom the document was executed that she was
then 39 years of age. If she was 39 years old in 1893, she could not have been born in 1854 and much
less in 1836 and 1837.
In Exhibit 1, page 135, which is a certified copy of a discharge in full executed by Rosa Matilde in
1894 in favor of Joaquin Jose de Inchausti, it is said that the maker of the deed was 40 years old, thus
corroborating in a convincing manner what has been stated regarding this point in the preceding document.
In view of the objections and arguments made by counsel for the plaintiffs against the admission of
the aforementioned documents, it becomes necessary to say in this connection that it is undeniable that
Rosa Matilde, in executing said two documents, gave as her age those appearing therein, and that there
was no reason for the belief that she told a lie and tried to conceal her true age; but, even admitting that
she had made a mistake by telling that she was older or younger than she really was, such a mistake could
not have given a difference of 10 years from her true age, inasmuch as she was an educated person, and it
is not possible to believe that, through ignorance, she gave an age different from her true age; and, even if
10 years be added to the age given by Rosa Matilde in the documents referred to, still the fact remains that
in 1894 she must have been only 50 years old and that she must have been born in 1844. It is undisputed
that Rosa Matilde was born 16 years after the death of Ramon Viademonte, and therefore could not be a
daughter of the latter.
Counsel for plaintiffs objected to the admission in evidence of the day-book kept by Ramon
Martinez Viademonte, Jr., during his lifetime, alleging that it has not been proven that the entries in said
book were made at the same time that those events occurred; that the witness who identified it did not see
Ramon Martinez de Viademonte, Jr., in the act of making the said entries, and that, even if it were so, still
the writing contained in the book, being a mere memorandum of an interested party, can not be admitted at
the trial.
The above objection can be met and disposed of by the provisions of section 298, No. 13 of
the Code of Civil Procedure, which provides that evidence may be given upon trial of monuments and
inscriptions in public places as evidence of common reputation; and entries in family Bibles or other family
books or charts; engravings on rings, family portraits and the like, as evidence of pedigree.
The law does not require that the entries in the said booklet be made at the same time as the
occurrence of those events; hence, the written memorandum in the same is not subject to the defect
attributed to it. The witness Joaquin Jose de Inchausti declared affirmatively that the memorandum under
consideration has been written in the handwriting of his brother Ramon Martinez de Viademonte, whose
handwriting he was familiar with, and the testimony of this witness contains some reference to a member of
the family, now dead, and concerning the family genealogy of the same.
It remains now to be decided whether Rosa Matilde Viademonte was a natural daughter of the
deceased Isabel Gonzalez or was a mere protegee cared for and maintained in the house of said Isabel
Gonzalez, and, if, in the first case, the plaintiffs have the right to succeed ab intestato to a part of the
inheritance of Isabel Gonzalez in representation of their mother Rosa Matilde Viademante or Robles.
The record does not furnish satisfactory proof that Rosa Matilde was a daughter or at least a natural
daughter of Isabel Gonzalez; on the other hand, it is shown in the records of the case that she was a
protegee in the house of said Isabel, for, in a conciliation proceeding had on April 15, 1893, between Rosa
Matilde and Joaquin F. de Inchausti, it appears in the record thereof that, although in some of the
documents presented to justify the accounts, Rosa Matilde called Rafael de Inchausti her brother, this
manner of calling him was due to the intimacy in which both have been brought up from childhood in the
same house, she being a mere protegee of the latter's parents, and not because they were really brother
and sister.
This statement made by Inchausti in the presence of Rosa Matilde Viademonte did not bring about
a protest or objection on the part of Rosa Matilde herself or her attorney. In addition to this fact, Rafael C.
de Inchausti stated under oath that it is not true that Rosa Matilde Viademonte was his maternal sister.
Rosa Viademonte herself, in a document dated June 15, 1894 (Exhibit 1, page 135), made the
statement that Jose Joaquin de Inchausti, who, together with his wife, cared for her since her early
childhood, bequeathed to her, by virtue of a codicil executed before a notary public on January 12, 1889, a
legacy amounting to P4,000. The contents of this document constitute a most convincing proof that Rosa
Matilde was not a daughter of Isabel Gonzalez, but only a protegee of hers and of her husband Jose
Joaquin de Inchausti.
Ramon Viademonte, Jr., while yet living, told his brother Joaquin J. de Inchausti (record, p. 85), that
Rosa Matilde was not their sister but only a protegee of their parents, whose name was Rosa Matilde
Robles. It is thus fully proven in the records of the case that Rosa Matilde, the mother of the plaintiffs, was
not a daughter of Isabel Gonzalez.
Even supposing that Rosa Matilde was in fact a natural child of the deceased Isabel Gonzalez,
because the records show that it was impossible that she was a legitimate daughter of the latter, still it
cannot be disputed that the said Rosa Matilde could not inherit from her supposed natural mother, Isabel
Gonzalez.
It is a positive fact admitted by the plaintiffs that Isabel Gonzalez died in 1886 (record, p. 325) or
some years before the Civil Code became operative in these Islands, and therefore, the hereditary rights of
the successors of the said deceased should be determined in accordance with the prior laws or the Law of
Toro, which provides, among other things, that natural children have no light to succeed to their natural
mother when, on her death, the latter leaves legitimate children, as in the present case, and for this reason
it is useless to inquire as to whether Rosa Viademonte or Robles was a natural or even an acknowledged
natural child of Isabel Gonzalez.
Rule 1 of the transitory provisions of the Civil Code invoked by the appellants provides as follows:
"Rights arising under the legislation prior to this code, out of matters carried out under its rules, shall be
governed by said prior legislation, even if the code should regulate them in another manner, or does not
recognize the same. But if said right is declared for the first time in this code, it shall be effective at once,
even when the act which gave rise thereto may have taken place under the prior legislation, provided it
does not prejudice other acquired rights having the same origin.
When Isabel Gonzalez died on December 12, 1886, or some time before the Civil Code became
effective in these Islands, she was survived by four children, the eldest being Ramon Viademonte had with
her first husband, and the other three, had with her second husband Jose Joaquin de Inchausti, are
Clotilde, Rafael, and Joaquin. On her death, the right to succeed her was transmitted by operation of law to
her legitimate and legitimated children, and for this reason, even supposing that Rosa Matilde was a
natural child of Isabel Gonzalez, she could not claim any right to the inheritance of her supposed natural
mother, inasmuch as against her right there exist the rights acquired by the four legitimate and legitimated
 children of said Isabel Gonzalez, which rights can not be injured or prejudiced in accordance with the
conclusive provision of the aforementioned Rule 1 of the transitory provisions of the Civil Code.
Besides, the records show that the action brought by the plaintiffs has already prescribed, because
section 38 of the Code of Civil Procedure provides that the rights of action which have already accrued,
with the exception of the two cases mentioned in the same section, among which the present case is not
included, must be vindicated by the commencement of an action or proceeding to enforce the same within
ten years after Act No. 190 came into effect, and, as this Act became operative in 1901, it is evident that
the action instituted against the estate of Isabel Gonzalez has already prescribed.
The plaintiffs, by their complaint, do not only seek the partition of the estate of the deceased Isabel
Gonzalez, but also and principally to recover the part of the inheritance corresponding to their mother Rosa
Matilde in her succession to the said deceased, so that the discussion during the proceedings referred
mainly to the question as to whether the plaintiffs were descendants of an heiress to the said deceased,
and if so, whether they had a right derived from their mother to a part of the estate of Isabel Gonzalez. This
action must be brought within ten years. He who brings an action for the partition or division of hereditary
estates or property in common is supposed to be a coheir and to have an undisputed right to the property
claimed or to be a coowner of the same property possessed in common. He who claims a right to a part of
an inheritance of a deceased person, and who alleges that he is a relative of the latter and has a right of
testate or intestate succession thereto, has for his principal object the recognition of his right to the
inheritance claimed by him and the delivery to him of his share as fixed by law.
Before concluding this decision, it must be stated that, on page 21 of the brief signed by Vicente
Sotto as the plaintiffs' attorney, and after the first five lines thereof, the following statement appears: "It is
also established that Rosa Viademonte was born of Isabel Gonzalez in the year 1852, that is, during the
widowhood of the latter."
Counsel for the defendants, with reason, qualify as false, this affirmation made by the counsel for
the plaintiffs to the effect that the judge has established the fact that Rosa Viademonte was born of Isabel
Gonzalez, when such affirmation does not appear in any part of the decision rendered by the said judge.
This court can not look with indifference on any attempt to alter or falsify, for certain purposes, the
facts or their important details in the extracts or references that have to be made in proceedings or records
brought before it. All the records in a proceeding should contain and reflect the truth in such a way that all
who intervene in it may have absolute confidence that the course and procedure of a trial are under the
vigilance and inspection of the court.
It is unprofessional and worthy of the highest form of rebuke for a lawyer to attribute to a judge a
statement which he has not made in his decision and in view of the fact that Vicente Sotto has already
been disbarred from the exercise of his profession by resolution of this court, it is deemed unnecessary to
determine what punishment shall be adopted for said act, which in his case, should be imposed upon him
as a lawyer.
For the foregoing reasons, whereby the errors assigned to the judgment appealed from are deemed
to have been refuted, the said judgment should be, as it hereby is, affirmed and the defendants absolved
from the complaint, with the costs against the appellants. So ordered.
Arellano, C.J., Johnson, Street, Malcolm and Avanceña, JJ., concur.
 
||| (Ferrer v. De Inchausti, G.R. No. 12993, [October 28, 1918], 38 PHIL 905-926)
Common Reputation:
Ferrer v. de Inchausti 38 Phil. 905 (1918)
[G.R. No. 12993. October 28, 1918.]

RAFAEL J. FERRER, ET AL., plaintiffs-appellants, vs. JOAQUIN J. DE INCHAUSTI, ET

AL., defendants-appellees.

Vicente Sotto, for appellants.

Araneta & Zaragoza and Cohn & Fisher, for appellees.

SYLLABUS

1. NATURAL CHILDREN; LEGITIMATE FILIATION; PRESUMPTION. — The legitimate filiation of a

person presupposes the existence of a marriage contracted by the presumed parents in accordance with
law and, consequently, a child can not be declared a legitimate daughter of her mother without at the same
time presuming that said child was born during the marriage of her supposed parents.
 2. ID.; ID.; BIRTH OF A CHILD FIFTEEN YEARS AFTER DEATH OF ALLEGED FATHER. — A
child born 15 years after the death of the alleged father can not physically and legally be a legitimate
daughter of such alleged father.
3. ID.; RIGHTS TO INHERIT FROM THEIR NATURAL MOTHER PRIOR TO PROMULGATION OF
CIVIL CODE. — Rights arising under the legislation prior to the Civil Code shall only be recognized and
given effect in accordance with the new legislation, provided they do not prejudice other acquired rights
having the same origin, and according to this principle, natural children have no right to inherit from their
natural mother who has subsequently married and who, on her death, left some legitimate children whose
rights can not be prejudiced.
4. PARTITION; ACTION; PRESUMPTION. — He who brings an action for the partition of an
hereditary estate or property in common is presumed to be a coheir and to have an undisputed right to the
property claimed or to be a coowner of the same property possessed in common.
5. ID.; ID.; OBJECT. — He who claims a right to a part of the inheritance of a deceased person and
who alleges that he is a relative of the latter and that he has a right of testate or intestate succession
thereto, has for his principal object the recognition of his right to the inheritance claimed by him and the
delivery to him of his share as fixed by law.
6. ID.; ID.; PRESCRIPTION. — Both actions are different from each other and have already
prescribed in accordance with the old legislation as well as with the provisions of the Code of Civil
Procedure.

DECISION

TORRES, J p:

This appeal was taken through bill of exceptions by counsel for the plaintiffs from the judgment of
February 12, 1917, whereby the judge of the Court of First Instance held that Rosa Viademonte, mother of
the plaintiffs, could not have been a legitimate daughter of the deceased Isabel Gonzalez, who, on her
death, left some legitimate children. The court did not deem it necessary to discuss whether the said Rosa
Viademonte could be a daughter of the said Isabel Gonzalez, for the reason given in his decision, and held
that the plaintiffs should not be entitled to what they have demanded, and that they should pay the costs.
Under date of May 12, 1916, the attorney of Rafael J. Ferrer y Viademonte and Maria Angelina
Ferrer y Viademonte with her husband Ricardo Hernandez y Aracil filed a complaint in the Court of First
Instance of the city of Manila, praying for the rendition of a final judgment declaring that Rosa Matilde
Viademonte y Gonzalez had the right to succeed to the inheritance left by Isabel Gonzalez in the same
proportion and capacity as the other four children of the latter, namely, Ramon Viademonte, Rafael C. de
Inchausti, Joaquin C. de Inchausti, and Clotilde de Inchausti de Vidal; that the plaintiffs Rafael and Maria
Angelina Ferrer are the only and legitimate heirs of the deceased Rosa Viademonte and the only ones
entitled to receive her share of the inheritance left by Isabel Gonzalez, that is, the one-fifth part of the
latter's estate; that the defendants render to the plaintiffs an account of the fruits and administration of all
the property from the moment the said community of property was constituted among them, and to deliver
to the plaintiffs that part which corresponds to them in their capacity as sole heirs of Rosa Viademonte y
Gonzalez, that is, the one-fifth part of the inheritance, with all its accessions, fruits, and interests; and,
finally, that the defendants pay the costs. In fact, it is alleged that the plaintiffs are the legitimate children of
Rosa Matilde Viademonte and Benigno Ferrer, who died and was survived by his wife, Rosa Viademonte,
who in turn died on November 20, 1898, leaving the two plaintiffs as surviving legitimate children; that the
said Isabel Gonzalez was married, first, to Ramon Martinez Viademonte, and from this marriage two
children, named Ramon and Rosa Matilde, and surnamed Viademonte y Gonzalez, survived; that after the
death of her husband Ramon Martinez Viademonte, Sr., the widow, Isabel Gonzalez, contracted a second
marriage with Don Jose Joaquin de Inchausti with whom she had three children named Clotilde, Rafael,
and Joaquin, all surnamed Inchausti y Gonzalez; that Ramon Viademonte y Gonzalez, Jr., died on January
1, 1905, without leaving any forced heir, and, by a will dated May 16, 1900, he left his property to the son
or sons which Rafael C. de Inchausti might have, and, in default of such child or children, to the same
Rafael C. de Inchausti; that on his death, on October 5, 1913, Rafael C. de Inchausti, by a will, left as his
heirs and successors in interest his legitimate son Jose R. de Inchausti, his recognized natural daughter
Maria Consolacion de Inchausti de Ortigas, and his widow Maria Consolacion Rico y Medina; that on her
death, Isabel Gonzalez left a certain property valued at P191,284.81, which is one-half of the conjugal
property in her marriage with Jose Joaquin de Inchausti, which would amount approximately to
P1,000,000, with its accessions, according to present valuation, as shown by the inventory of said property
which makes up Exhibit A; that on January 14, 1888, Jose Joaquin de Inchausti made an extrajudicial
partition of the property left by his deceased wife, Isabel Gonzalez, among Ramon Viademonte y
Gonzalez, Rafael C. de Inchausti y Gonzalez, Joaquin C. de Inchausti y Gonzalez, and Clotilde de
Inchausti y Gonzalez de Vidal, each of whom received one-fourth of the estate left by the deceased Isabel
Gonzalez, excluding therefrom Rosa Viademonte, the mother of the plaintiffs, notwithstanding the fact that
she had an equal right to inherit from Isabel Gonzalez; that since January 1888 till his death, Ramon
Viademonte, Jr., had been the possessor and administrator of the fourth part of the inheritance which he
received from his deceased mother Isabel Gonzalez, which portion of the property later came to the
possession and control of Rafael C. de Inchausti, and on the death of the latter, this fourth part of the
inheritance came to the possession of Maria Consolacion Rico de Inchausti, widow of said Rafael C. de
Inchausti, in her capacity as guardian of her son Jose Rafael de Inchausti, and part of it, to the possession
of Maria Consolacion Inchausti de Ortigas; and that a great part of the property which the defendants
actually possess, came from the young children, who received it from Isabel Gonzalez with the earnings
and accessions thereof; these children have been possessing it pro indiviso or in coownership, in their
lifetime, with Rosa Viademonte while living, and upon the death of the latter, with her heirs, but that, in spite
of the demands made by the plaintiffs for the delivery to them by the defendants of their corresponding
share in the inheritance, the latter have always refused to do so.
In his answer, counsel for Clotilde Inchausti de Vidal admitted that the plaintiffs are the children of
Rosa Viademonte and Benigno Ferrer; that Isabel Gonzalez was married first to Ramon Martinez de
Viademonte, and afterwards to Jose Joaquin de Inchausti; that on the death of her mother Isabel
Gonzalez, on December 13, 1886, her share in the conjugal partnership amounted to P191,284.81, and on
January 14, 1888, Jose Joaquin de Inchausti, as executor of his wife, after paying the legacies mentioned
in the testament, paid to this defendant in cash the sum of P46,295.70 as her hereditary portion in the
liquidated property of her mother, and likewise delivered to the other three sons of said Isabel Gonzalez
similar amounts; that, after receiving her share of the inheritance from her mother, she (Clotilde Inchausti
de Vidal) spent it all, and she no longer has any part of it, nor has she left any portion of it during the last
thirty years, and that neither the plaintiffs nor their deceased mother had ever possessed or enjoyed the
said sum; and denies generally all the allegations of the complaint which are not admitted, and denies
specially the allegation that the mother of the plaintiffs had ever married with their father Benigno Ferrer,
that they (the plaintiffs) and their mother ever had the surname of "Viademonte" or "Viademonte y
Gonzalez," and that the mother of the plaintiffs was a daughter of Isabel Gonzalez.
As a special defense, she alleged that her possession of the money derived from the inheritance of
her mother had been public, adverse, pacific, continuous, and under a claim of ownership, in good faith
and with just title, since January 14, 1888; that never during the lifetime of the plaintiffs' mother did she
(plaintiff's mother) make any claim or assert any right in the amount received by this defendant from the
inheritance of her deceased mother; that more than thirty years had elapsed since she received said
amount to the date of the presentation of the complaint; and that the action of the plaintiffs has already
prescribed in accordance with the provisions of article 1955 of the Civil Code and section 38 of the Code of
Civil Procedure.
Counsel for Maria de la Consolacion de Inchausti, in turn, set up a special defense similar to that of
Clotilde, and alleged that Ramon Martinez Viademonte, son of Isabel Gonzalez, died in the city of Manila
on January 1, 1905, without leaving any heirs, and bequeathed by will to his brother Rafael C. de Inchausti,
father of this defendant, all of his property, with the exception of some property of little importance which he
had bequeathed to others; but denied that any part of his (Ramon Martinez Viademonte's) property has
ever been bequeathed to the children of said Rafael C. de Inchausti; that, on the death of said Ramon
Martinez de Viademonte, his will was duly allowed to probate in the Court of First Instance of Manila, and
all his remaining property delivered to Rafael C. de Inchausti with the court's approval; that the only part of
Ramon Martinez Viademonte's property received by her father Rafael C. de Inchausti was a small piece of
land situated in Santa Ana and known by the name of Hacienda de Lamayan; that the title of Rafael C. de
Inchausti to said land was registered by virtue of a decree of the Court of Land Registration, in accordance
with the provisions of the Land Registration Act; that said land was in turn inherited by this defendant from
her father upon the death of the latter, and that she appears in the registry of property as owner of the
same; that, upon the allowance of said will in the Court of First Instance of this city, the plaintiffs did not
present any claim to the commissioners appointed to appraise the property, and that the period allowed for
the presentation of such claims expired on October 20, 1914, and that, therefore, the action now filed by
the plaintiffs has prescribed, in accordance with the provisions of section 695 of the Code of Civil
Procedure. In similar terms, counsel for Joaquin C. de Inchausti worded his defense in a written answer as
amended under date of September 19, 1916.
Counsel for Maria de la Consolacion Rico y Medina in her personal capacity and as a widow of
Rafael Inchausti and also as guardian of her son Jose Rafael de Inchausti y Rico, in his answer to the
foregoing complaint, admits that Ramon Martinez and Isabel Gonzalez Ferrer, both now deceased, were in
their lifetime husband and wife, and were survived by a child named Ramon Martinez Viademonte y
Gonzalez, but denied that the said Rosa Matilde was a daughter of that marriage or of any of the said
spouses; he also admits that the deceased Ramon Martinez Viademonte, Jr., died in this city on January 1,
1905, without leaving any forced heir, and by a will dated May 16, 1900, he left to his maternal brother
Rafael C. de Inchausti, husband of this defendant, all his property with the exception of some small
legacies, denying at the same time that any portion of the inheritance of said Ramon Viademonte, Jr., had
been left to the children of the defendant's husband; that Isabel Gonzalez Ferrer, the mother of her
husband, who died on December 13, 1886, executed a will on April 29 of the said year, wherein she
declared that she had a son with her first husband Ramon Martinez Viademonte, and the name of said son
was also Ramon, and that with her second husband Jose Joaquin de Inchausti, she had three children,
and she instituted the said four children as the sole and universal heirs to the remainder of her property in
equal parts, her property being the one half of the conjugal property had during her marriage with her
second husband Inchausti who had survived her; that no portion of the inheritance from the deceased
Isabel Gonzalez y Ferrer was adjudicated to the mother of the plaintiffs; that the deceased Rafael C. de
Inchausti inherited from the said Ramon Martinez Viademonte, Jr., a parcel of land known by the name of
Hacienda de Lamayan, registered in the name of the deceased Rafael de Inchausti, which property was, in
turn, inherited by the defendant Maria Consolacion de Inchausti de Ortigas. As a special defense, she
alleged that in the said will wherein the testatrix Isabel Gonzalez named her sole and universal heirs, Rosa
Matilde, the mother of the plaintiffs, was not designated as heiress or legatee, but, on the contrary, was
omitted therefrom; that from the death of the testatrix Isabel, on December 12, 1886, up to the time of the
filing of this complaint, neither Rosa Matilde nor the plaintiffs presented any claim whatsoever against the
omission of Rosa Matilde from the will of said Isabel Gonzalez, for the plaintiffs could have availed
themselves of any right which Rosa Matilde could have had in the property inherited by the defendant and
her son Jose Rafael de Inchausti, derived from the estate of Isabel Gonzalez; that the period fixed by law
for contesting the will of Isabel Gonzalez on the ground of the prejudicial omission therefrom of Rosa
Matilde expired long before the date on which this complaint was filed, and consequently, said action has
prescribed; that, after the death of Ramon Viademonte, Jr., in February, 1905, probate proceedings were
had in the Court of First Instance of Manila, whereby the will of the deceased was proved and allowed, an
administrator of the decedent's estate was appointed, and on July 21 of said year the commissioners to
appraise the estate of the deceased were appointed, and after the lapse of the period fixed for allowing
claims against the estate, the property of the deceased was adjudicated to his heir Rafael C. de Inchausti
and to the legatees, the plaintiffs not having presented to the commissioners any claim against the estate
of Ramon Viademonte, Jr.; that the action against the estate of said deceased has thus prescribed by the
lapse of the period for its presentation; that, after the death of Rafael C. de Inchausti, on October 5, 1913,
probate proceedings were had regarding his will in the Court of First Instance of this city, an executor was
appointed as well as the commissioners to appraise the estate, and the period within which claims against
the estate might be received has expired, and the plaintiffs have not presented any claim whatsoever
against the estate of said Rafael C. de Inchausti; and finally, she alleged that the period fixed by law for
presenting claims against the estate of said Rafael C. de Inchausti expired long before the date of the filing
of this complaint, and consequently, the action to assert such a claim has already prescribed, and that
therefore the defendant should be absolved from the complaint with the costs against the plaintiffs.
Counsel for the plaintiffs, in his written reply amending his replies of September 20 and 21, 1916,
denied generally and specifically each and all of the new facts alleged in the answers of the defendants,
and added that the will of Isabel Gonzalez, dated October 12, 1886, is null and void, inasmuch as Rosa
Viademonte Gonzalez was omitted therein, without any legal cause for disinheriting her, she being a
daughter of said Isabel Gonzalez and having equal rights as her other children; that the defendants are
estopped from denying that the surname of Rosa Matilde is really Viademonte y Gonzalez and that said
Rosa Matilde was a daughter of Isabel Gonzalez with Ramon Martinez Viademonte; that the plaintiffs are
legitimate children of said Rosa Matilde with Benigno Ferrer inasmuch as both their predecessors in
interest as well as the present defendants have previously made declarations and formal affirmations,
written and oral, recognizing that the surname of Rosa Matilde was Viademonte y Gonzalez, that the same
was a legitimate daughter of Isabel Gonzalez and Ramon Martinez Viademonte, and that the plaintiffs are
legitimate children of Rosa Viademonte y Gonzalez with Benigno Ferrer.
The trial having been held and the evidence of both parties adduced, the trial judge, on February
12, 1917, rendered a judgment declaring that the plaintiffs receive nothing in this action and pay the costs.
To this decision the plaintiffs excepted and moved for a new trial, which motion was denied by order of the
court on the 27th day of the same month and year. An exception was taken to the order denying the motion
for a new trial, and the corresponding bill of exceptions was presented, approved, certified, and forwarded
to the office of the clerk of this court.
The parties are agreed as regards the allegations that the plaintiffs Rafael J. Ferrer and Maria
Angelina Ferrer are children of the deceased Rosa Matilde Viademonte, although the defendants deny that
they (plaintiffs) were legitimate children of their mother contrary to the affirmation of the plaintiffs to this
effect. The evidence of record concerning this point is of such a character that it is difficult to deduce
therefrom a certain and definite conclusion, because, while it appears that Rosa Matilde Viademonte has,
on various occasions, stated that she was unmarried and never contracted a marriage, she has made
entirely different statements on other occasions. In the proceedings (Exhibit 8) instituted by the said Rosa
Matilde against Rafael C. de Inchausti, it was disclosed that she had never been married and that if her
children with Benigno Ferrer were baptized as legitimate children, it was so done in order to conceal her
dishonor, such statement being found in a document drawn in 1892 and signed by her (Exhibit 8, pp. 3-4).
On page 169 of the records of the said proceedings (Exhibit 8) it appears that said Rosa Matilde stated
under oath before a judge, on January 21, 1893, that she had never married, and the same declaration
was made by her on April 15th of the same year in another case. (Exhibit 7, pp. 17-26.)
In a document found on page 166 of said Exhibit .8, executed in 1890, Rosa Matilde stated that she
was a widow; but, in a document executed in 1893, found on page 257 of Exhibit 8, and in a document
(Exhibit 1, page 136 of the first document executed in 1894) she made the statement that she was
unmarried. Rosa Matilde might have made these contradictions due perhaps to her extreme poverty, which
had prompted her to tell a lie before the courts of justice, with the sole purpose of recovering the amount
claimed by her as her legacy, while, on the other hand, it is undeniable that she could not duly justify the
marriage contracted by her with Benigno Ferrer.
Even if the plaintiffs be considered as legitimate children of Rosa Matilde Viademonte in her
marriage with Benigno Ferrer, still this action filed by them will not prosper, inasmuch as the evidence
adduced at the trial to prove the origin of the cause of action referred to shows, in a manner which leaves
no room for doubt, that Rosa Matilde was not a legitimate daughter of Isabel Gonzalez, and it follows that
her children as well as her privies have no right to a part of the hereditary property of said Isabel Gonzalez.
Counsel for plaintiffs pretend to establish that Rosa Matilde Viademonte had been treated and
considered as a daughter by Isabel Gonzalez, and as a sister by the children of the latter; that, on one
occasion, said Gonzalez remarked that the father of Rosa Matilde was Ramon Martinez de Viademonte;
that Joaquin C. de Inchausti dedicated a picture to Rosa Matilde in the following manner: "To my dear and
unforgettable sister Rosa." (Exhibit G); that when Rosa Matilde entered the College de la Compañia de
Jesus, her name as recorded in the registry of that college was Rosa Matilde Viademonte, and her
expenses were defrayed by Rafael de Inchausti, and in the same registry said Rafael de Inchausti appeals
as brother of Rosa; that when Rosa entered the Colegio de Santa Isabel, she used the same name and
surname; that Ramon Martinez de Viademonte, Jr., presented Rosa Matilde as his sister, saying that the
father of the same v as also his father named Ramon Martinez de Viademonte, while Rosa Matilde has
always been known by the same name and surname during the time she was studying in the Colegio de
Luisa Odan de Virgi; that Clotilde de Inchausti called Rosa Matilde her sister in her letters to Rafael Ripol,
and that Joaquin Jose de Inchausti himself in the codicil of his testament (Exhibit F, p. 120), designates
Rosa Matilde with the surname of Viademonte.
From all the evidence adduced, the slightest indication cannot be inferred that Rosa Matilde was
born during the marriage of Ramon Martinez de Viademonte, Sr., with Isabel Gonzalez or within the 300
days after the dissolution of their marriage by the death of the husband (art. 111, Civil Code), nor has the
said Ramon Martinez de Viademonte, Sr., in his lifetime recognized said Rosa Matilde as his daughter. If
Rosa Matilde is a legitimate daughter of Isabel Gonzalez, it follows that she was also a daughter of Isabel's
husband, Ramon Martinez de Viademonte, under the assumption that she was born in the marriage of both
or at a time prior or subsequent to that of the celebration of the marriage, as fixed by law. (Arts. 119, 120,
121, and 122 of the Civil Code.)
Legitimate filiation presupposes the existence of marriage contracted by the presumed parents in
accordance with law, and therefore a person can not be declared to be a legitimate daughter of her mother.
without presuming at the same time that she was born in the marriage of this mother with the presumed
father, who, in his lifetime, and without his consent, could not have been considered as father of a child that
was not conceived by his own wife, because the mere fact of having used his surname after his death,
without his assent or consent, does not constitute a proof of filiation of paternity.
In this decision it is to be determined whether Rosa Matilde was born in the lifetime of Ramon
Martinez de Viademonte to decide on the truth of the assertion made by the plaintiffs that their predecessor
in interest was a legitimate daughter of the said spouses Viademonte and Gonzalez.
At the trial the death certificate of Ramon Martinez de Viademonte, first husband of Isabel
Gonzalez, was not presented in evidence; but it is uncontroverted that he died on September 30, 1836, as
corroborated by the accountant of the naval division of Puerto Galera in charge of the Lieutenant of the
Spanish Navy, Jose Atienza, saying that the Lieutenant, who had the rank of captain in the navy, Ramon
Viademonte, died on September 30, 1836, as appears in the list of officers found in the payroll under his
custody, having paid till the date of the death of said Viademonte all his salaries corresponding to him as
such officer, and further saying that, by request of the widow of the deceased, he issued the proper
certificate on December 31, 1836.
So certain is the death of said Ramon Martinez de Viademonte that his widow Isabel Gonzalez, on
January 3, 1837, applied to the Government for a pension sufficient to cover her widowhood expenses,
alleging that she was a widow with children of the deceased. The application was made in a paper
stamped as of the years 1836 and 1837, a fact which proves the authenticity of the document written in a
stamped paper, and the presentation of said application by the widow demonstrates the fact that her
husband really died, wherefore she asked for a pension, because she would have been held responsible if,
in truth and in fact, her husband had been living and not dead as she claimed.
The said documents, as constituting a supplementary proof of the death of the deceased Ramon
Martinez de Viademonte, appear to be corroborated by an entry in a notebook belonging to Ramon
Viademonte, Jr. (Exhibit 4, p. 10), wherein it is stated that his mother was married in 1833 to Ramon
Martinez de Viademonte, who died on September 30, 1836, at the age of 33 years, being then a major in
the naval division assigned at Puerto Galera, Mindoro.
Notwithstanding the fact that the death certificate of said Ramon Martinez de Viademonte, first
husband of Isabel Gonzalez, was not presented in evidence, still the documentary and circumstantial
evidence of record, especially the fact of the marriage of his widow Isabel Gonzalez with Jose Joaquin de
Inchausti, some years after the death of Viademonte, demonstrate clearly that the said Ramon Martinez de
Viademonte died before that marriage or on September 30, 1836. If this be true, let us see on what day
Rosa Matilde was born, and in this way it will be shown that she did not have the status of a legitimate child
of those spouses, even after the dissolution of their marriage by the death of the husband.
It appears in the certificate, Exhibit 6, p. 139, that on September 1, 1862, a child three days old,
born of unknown parents, was baptized in the Cathedral Church of this city, and given the name of Rosa
Matilde Robles. In view of the fact that the plaintiffs have not shown that such baptismal certificate was not
that of their mother Rosa Matilde, it remains proven therefore that said certificate refers to Rosa Matilde
Viademonte, as the same certificate was presented as exhibit by Rafael C. de Inchausti in a case
concerning the delivery of a legacy instituted against said Rosa Matilde, who, instead of denying that such
a baptismal certificate referred to her, admitted that such certificate might have been hers.
On page 9 of the day-book which Ramon Martinez de Viademonte, Jr., kept during his lifetime,
appears a memorandum which says: "On September 1, 1852, at seven o'clock in the evening, a child three
days old, named Rosa Matilde Robles, according to the baptismal certificate issued by the acting rector
Don Ramon Fernandez of the Cathedral Church of Manila, was delivered to my mother; this child was
baptized by the priest Don Remigio Rodriguez with the authority of said rector, and according to the
baptismal certificate, it was a child of unknown parents." This memorandum agrees with the above-
mentioned baptismal certificate of Rosa Matilde Robles.
Notwithstanding the argument of counsel for the appellants, Joaquin Jose de Inchausti stated that
one day he was assured by his half-brother Ramon Martinez Viademonte that Rosa Matilde was not his
sister, but that she was only a mere protegee and that her true name was Rosa Matilde Robles, and that
on that occasion the said brother showed him the certificate of birth of which Exhibit 6 is a copy, which he
took from the parochial church.
In view of the fact that Ramon Martinez Viademonte is now dead, the testimony of Joaquin Jose de
Inchausti referring to the said deceased is admissible, for they are members of the same family, in
accordance with the provisions of section 281 of Act No. 190, and consequently, the conclusion is that
Rosa Matilde is the same Rosa Matilde Robles which is mentioned in Exhibit 6; and because she was born
in 1852, in no manner could she be a legitimate daughter of Ramon Viademonte and Isabel Gonzalez,
whose marriage was dissolved in 1836 by the death of the husband. Moreover, the witness Pilar Abarca
presented by the plaintiffs testified that she had known Rosa Matilde in the Colegio de Santa Isabel, in
1863, she being then 20 years old and Rosa, 9 years. If the witness Abarca was 73 years old on the date
of giving this testimony in 1916, it follows that Rosa Matilde was born in 1854, and that therefore she could
not be a daughter of Ramon Martinez de Viademonte who died in 1836.
Notwithstanding the attempt of the plaintiffs to impugn the testimony of said witness, said testimony
is admissible according to section 263 [283] of the Code of Civil Procedure, which provides that when part
of an act, declaration, conversation, or writing is given in evidence by one party, the whole of the same
subject may be inquired into by the other. It is true that the said witness was not presented to prove the
date of Rosa Matilde's birth, but the fact is that the age of a child 9 years old as well as that of a youth 19 or
22 years of age can be known from the appearance of the child, and even if, in fixing the age of Rosa
Matilde, a mistake has been made, said mistake could not be such as to reduce her true age by 10 years;
but even then and even supposing still that Rosa Matilde was 20 years old in 1863, the fact remains that
she must have been born in 1814, and so she could not have been a daughter of Ramon Martinez de
Viademonte, Sr.
Juan Ferrer, another witness for the plaintiffs, testified that Benigno Ferrer and Rosa Matilde
married in 1872, that Rosa Matilde must have been then between 22 and 30 years of age. It is inferred
from this testimony that, if Rosa Matilde could not be over 30 years old in 1872, she could not have been
born before 1842, and much less in 1836 or 1837.
The document No. 663, page 257 of Exhibit 8, appears to have been executed by Rosa Matilde in
1893, wherein she declared to the notary public before whom the document was executed that she was
then 39 years of age. If she was 39 years old in 1893, she could not have been born in 1854 and much
less in 1836 and 1837.
In Exhibit 1, page 135, which is a certified copy of a discharge in full executed by Rosa Matilde in
1894 in favor of Joaquin Jose de Inchausti, it is said that the maker of the deed was 40 years old, thus
corroborating in a convincing manner what has been stated regarding this point in the preceding document.
In view of the objections and arguments made by counsel for the plaintiffs against the admission of
the aforementioned documents, it becomes necessary to say in this connection that it is undeniable that
Rosa Matilde, in executing said two documents, gave as her age those appearing therein, and that there
was no reason for the belief that she told a lie and tried to conceal her true age; but, even admitting that
she had made a mistake by telling that she was older or younger than she really was, such a mistake could
not have given a difference of 10 years from her true age, inasmuch as she was an educated person, and it
is not possible to believe that, through ignorance, she gave an age different from her true age; and, even if
10 years be added to the age given by Rosa Matilde in the documents referred to, still the fact remains that
in 1894 she must have been only 50 years old and that she must have been born in 1844. It is undisputed
that Rosa Matilde was born 16 years after the death of Ramon Viademonte, and therefore could not be a
daughter of the latter.
 Counsel for plaintiffs objected to the admission in evidence of the day-book kept by Ramon
Martinez Viademonte, Jr., during his lifetime, alleging that it has not been proven that the entries in said
book were made at the same time that those events occurred; that the witness who identified it did not see
Ramon Martinez de Viademonte, Jr., in the act of making the said entries, and that, even if it were so, still
the writing contained in the book, being a mere memorandum of an interested party, can not be admitted at
the trial.
The above objection can be met and disposed of by the provisions of section 298, No. 13 of
the Code of Civil Procedure, which provides that evidence may be given upon trial of monuments and
inscriptions in public places as evidence of common reputation; and entries in family Bibles or other family
books or charts; engravings on rings, family portraits and the like, as evidence of pedigree.
The law does not require that the entries in the said booklet be made at the same time as the
occurrence of those events; hence, the written memorandum in the same is not subject to the defect
attributed to it. The witness Joaquin Jose de Inchausti declared affirmatively that the memorandum under
consideration has been written in the handwriting of his brother Ramon Martinez de Viademonte, whose
handwriting he was familiar with, and the testimony of this witness contains some reference to a member of
the family, now dead, and concerning the family genealogy of the same.
It remains now to be decided whether Rosa Matilde Viademonte was a natural daughter of the
deceased Isabel Gonzalez or was a mere protegee cared for and maintained in the house of said Isabel
Gonzalez, and, if, in the first case, the plaintiffs have the right to succeed ab intestato to a part of the
inheritance of Isabel Gonzalez in representation of their mother Rosa Matilde Viademante or Robles.
The record does not furnish satisfactory proof that Rosa Matilde was a daughter or at least a natural
daughter of Isabel Gonzalez; on the other hand, it is shown in the records of the case that she was a
protegee in the house of said Isabel, for, in a conciliation proceeding had on April 15, 1893, between Rosa
Matilde and Joaquin F. de Inchausti, it appears in the record thereof that, although in some of the
documents presented to justify the accounts, Rosa Matilde called Rafael de Inchausti her brother, this
manner of calling him was due to the intimacy in which both have been brought up from childhood in the
same house, she being a mere protegee of the latter's parents, and not because they were really brother
and sister.
This statement made by Inchausti in the presence of Rosa Matilde Viademonte did not bring about
a protest or objection on the part of Rosa Matilde herself or her attorney. In addition to this fact, Rafael C.
de Inchausti stated under oath that it is not true that Rosa Matilde Viademonte was his maternal sister.
Rosa Viademonte herself, in a document dated June 15, 1894 (Exhibit 1, page 135), made the
statement that Jose Joaquin de Inchausti, who, together with his wife, cared for her since her early
childhood, bequeathed to her, by virtue of a codicil executed before a notary public on January 12, 1889, a
legacy amounting to P4,000. The contents of this document constitute a most convincing proof that Rosa
Matilde was not a daughter of Isabel Gonzalez, but only a protegee of hers and of her husband Jose
Joaquin de Inchausti.
Ramon Viademonte, Jr., while yet living, told his brother Joaquin J. de Inchausti (record, p. 85), that
Rosa Matilde was not their sister but only a protegee of their parents, whose name was Rosa Matilde
Robles. It is thus fully proven in the records of the case that Rosa Matilde, the mother of the plaintiffs, was
not a daughter of Isabel Gonzalez.
Even supposing that Rosa Matilde was in fact a natural child of the deceased Isabel Gonzalez,
because the records show that it was impossible that she was a legitimate daughter of the latter, still it
cannot be disputed that the said Rosa Matilde could not inherit from her supposed natural mother, Isabel
Gonzalez.
It is a positive fact admitted by the plaintiffs that Isabel Gonzalez died in 1886 (record, p. 325) or
some years before the Civil Code became operative in these Islands, and therefore, the hereditary rights of
the successors of the said deceased should be determined in accordance with the prior laws or the Law of
Toro, which provides, among other things, that natural children have no light to succeed to their natural
mother when, on her death, the latter leaves legitimate children, as in the present case, and for this reason
it is useless to inquire as to whether Rosa Viademonte or Robles was a natural or even an acknowledged
natural child of Isabel Gonzalez.
Rule 1 of the transitory provisions of the Civil Code invoked by the appellants provides as follows:
"Rights arising under the legislation prior to this code, out of matters carried out under its rules, shall be
governed by said prior legislation, even if the code should regulate them in another manner, or does not
recognize the same. But if said right is declared for the first time in this code, it shall be effective at once,
even when the act which gave rise thereto may have taken place under the prior legislation, provided it
does not prejudice other acquired rights having the same origin.
When Isabel Gonzalez died on December 12, 1886, or some time before the Civil Code became
effective in these Islands, she was survived by four children, the eldest being Ramon Viademonte had with
her first husband, and the other three, had with her second husband Jose Joaquin de Inchausti, are
Clotilde, Rafael, and Joaquin. On her death, the right to succeed her was transmitted by operation of law to
her legitimate and legitimated children, and for this reason, even supposing that Rosa Matilde was a
 natural child of Isabel Gonzalez, she could not claim any right to the inheritance of her supposed natural
mother, inasmuch as against her right there exist the rights acquired by the four legitimate and legitimated
children of said Isabel Gonzalez, which rights can not be injured or prejudiced in accordance with the
conclusive provision of the aforementioned Rule 1 of the transitory provisions of the Civil Code.
Besides, the records show that the action brought by the plaintiffs has already prescribed, because
section 38 of the Code of Civil Procedure provides that the rights of action which have already accrued,
with the exception of the two cases mentioned in the same section, among which the present case is not
included, must be vindicated by the commencement of an action or proceeding to enforce the same within
ten years after Act No. 190 came into effect, and, as this Act became operative in 1901, it is evident that
the action instituted against the estate of Isabel Gonzalez has already prescribed.
The plaintiffs, by their complaint, do not only seek the partition of the estate of the deceased Isabel
Gonzalez, but also and principally to recover the part of the inheritance corresponding to their mother Rosa
Matilde in her succession to the said deceased, so that the discussion during the proceedings referred
mainly to the question as to whether the plaintiffs were descendants of an heiress to the said deceased,
and if so, whether they had a right derived from their mother to a part of the estate of Isabel Gonzalez. This
action must be brought within ten years. He who brings an action for the partition or division of hereditary
estates or property in common is supposed to be a coheir and to have an undisputed right to the property
claimed or to be a coowner of the same property possessed in common. He who claims a right to a part of
an inheritance of a deceased person, and who alleges that he is a relative of the latter and has a right of
testate or intestate succession thereto, has for his principal object the recognition of his right to the
inheritance claimed by him and the delivery to him of his share as fixed by law.
Before concluding this decision, it must be stated that, on page 21 of the brief signed by Vicente
Sotto as the plaintiffs' attorney, and after the first five lines thereof, the following statement appears: "It is
also established that Rosa Viademonte was born of Isabel Gonzalez in the year 1852, that is, during the
widowhood of the latter."
Counsel for the defendants, with reason, qualify as false, this affirmation made by the counsel for
the plaintiffs to the effect that the judge has established the fact that Rosa Viademonte was born of Isabel
Gonzalez, when such affirmation does not appear in any part of the decision rendered by the said judge.
This court can not look with indifference on any attempt to alter or falsify, for certain purposes, the
facts or their important details in the extracts or references that have to be made in proceedings or records
brought before it. All the records in a proceeding should contain and reflect the truth in such a way that all
who intervene in it may have absolute confidence that the course and procedure of a trial are under the
vigilance and inspection of the court.
It is unprofessional and worthy of the highest form of rebuke for a lawyer to attribute to a judge a
statement which he has not made in his decision and in view of the fact that Vicente Sotto has already
been disbarred from the exercise of his profession by resolution of this court, it is deemed unnecessary to
determine what punishment shall be adopted for said act, which in his case, should be imposed upon him
as a lawyer.
For the foregoing reasons, whereby the errors assigned to the judgment appealed from are deemed
to have been refuted, the said judgment should be, as it hereby is, affirmed and the defendants absolved
from the complaint, with the costs against the appellants. So ordered.
Arellano, C.J., Johnson, Street, Malcolm and Avanceña, JJ., concur.
||| (Ferrer v. De Inchausti, G.R. No. 12993, [October 28, 1918], 38 PHIL 905-926)
City of Manila v. Del Rosario 5 Phil 227(1905)
[G.R. No. 1284. November 10, 1905.]

THE CITY OF MANILA, plaintiff-appellee, vs. JACINTO DEL ROSARIO, defendant-

appellant.

Francisco Rodriguez, for appellant.

Modesto Reyes, for appellee.

SYLLABUS

1. ACTION; DISMISSAL; ERROR. — The defendant is entitled to have the case dismissed where
the plaintiff fails to establish the allegations in the complaint; and an order overruling such motion is
erroneous.
 2. REALTY; POSSESSION; EVIDENCE. — Where one derives title to real estate from another, the
declaration act, or omission of the latter to the property is evidence against the former only when made
while the latter holds the title. (Sec. 278, Code of Civil Procedure.)
3. ID.; ID.; ID.; REGISTRATION; PRESUMPTION OF OWNERSHIP. — A possessory information
recorded in the property register is prima facie evidence of the fact that the person who instituted the
proceedings holds the property as owner; and the presumption, under article 448 of the Civil Code, is that
his title is good unless the contrary is shown.

DECISION

MAPA, J p:

This is an action to recover the possession of the two lots describe in the complaint, located in
Calles Clavel and Barcelona, district of Tondo, at present occupied by the defendant.
The court below entered judgment in favor of the plaintiff and against the defendant for possession
and damages in the sum of $2,500, United States currency, and costs.
At the trial, after the plaintiff rested, the defendant moved for the dismissal of the case upon the
ground that the plaintiff had failed to establish the allegations in the complaint. This motion was overruled
by the court, to which ruling the defendant duly excepted. The question thus raised puts in issue the trial
court's finding that the plaintiff was entitled to the ownership and possession of the land in question. We
accordingly hold that this point is impliedly involved in the third and fourth assignments of error.
Plaintiff introduced both documentary and oral evidence. The latter consisted of the testimony of
John R. Lorenzo del Rosario, and Modesto Reyes, the city attorney. The first witness testified that he did
not know of his own knowledge if the land in question belonged to the city (p. 11 of the bill of exceptions).
The next witness testified that the land included in Calles Clavel and Barcelona was formerly part of Plaza
Divisoria, which belonged to the Central Government (not the city), and that he did not know to whom it
now belongs (pp. 12 and 13 of the bill of exceptions)). It must be borne in mind that this witness referred to
the land included in Calles Clavel and Barcelona, and not to the lots described in the complaint. These lots
abut upon the streets referred to, but do not form a part of either. According to the complaint, they are
building lots.
The third witness, Juan Villegas, testified that the land in question was formerly included in the Gran
Divisoria, and that all the land included in it belonged to the city. In this particular his testimony is at
variance with that of the precediing witness, who testified that the land belonged to the Central
Government. Villega's testimony was merely hearsay. It consisted of what he had learned from some of the
oldest residents in that section of the city. His testimony was introduced by the plaintiff apparently for the
purpose of proving that the city was generally considered the owner of the land, drawing from this fact the
presumption of actual ownership under paragraph 11, section 334, of the Code of Civil Procedure. Such
testimony, however, does not constitute the "common reputation" referred to in the section mentioned.
"common reputation," as used in that section, is equivalent to universal reputation. The testimony of this
witness is not sufficient to establish the presumption referred to.
Furthermore, this witness stated that the land in Calle Azcarraga had been partitioned between the
municipality and the Central Government, share and share alike, and that the Central Government (not the
city) retained Calles Gabriel de Rivera and Barcelona, which are precisely the streets on which the property
abuts (bill of exceptions, pp. 15 and 16).
The fourth witness (Sotera Roco) testified merely that Lorenzo del Rosario had paid 100 pesos to
her brother Cipriano Roco for the purpose of instituting a possessory information as to the property abutting
on Calle Clavel. It appears that Lorenzo del Rosario acquired the land from Cipriano Roco and sold it to his
brother Jacinto del Rosario, the defendant in this case. Notwithstanding this, and assuming that the
hearsay testimony of Sotera Roco is admissible, we do not see how it can be inferred from her testimony
that the plaintiff is the real owner of the property.
The witness Modesto Reyes and Lorenzo del Rosario said nothing as to the ownership of the land.
They simply testified as to the authenticity of some of the documentary evidence introduced by the plaintiff.
Of these documents the most important of all is the petition presented by Lorenzo del Rosario to the
"mayor of the city of manila" on the 26th of September, 1891, and the letter written by him on the 9th of
October, 1901, to the Municipal Board of Manila. Lorenzo del Rosario in his testimony, admitted the
authenticity of both documents which contain an offer to the municipality of Manila to purchase the land on
Calle Clavel. Lorenzo del Rosario admitted also that he signed the first document under the
misapprehension that the land belonged to the city, but that he had been subsequently informed by some
of the city officials that the land did not belong to the municipality, but to Cipriano Roco y Vera. He stated
that he signed the second document because the President of the Municipal Board, Señor Herrera,
advised him to do so in order to avoid litigation with the city. His testimony in this respect was not
 contradicted. We accordingly hold that the provisions of section 346 of the Code of Civil Procedure are
applicable to the case at bar in so far as they declare that an offer of compromise is not admissible in
evidence.
Again, Lorenzo del Rosario signed the first document before he acquired from Cipriano Roco y
Vera the ownership of the land referred to therein, the second document being signed after he had
transferred the land to the defendant Jacinto del Rosario, who took possession of the same and had it
registered, as the plaintiff admits (par. 2 of the complaint), on the 23d of February, 1893. If this is so,
whatever statements Lorenzo del Rosario might have made in the documents mentioned, they are not
binding upon the defendant, because, under section 278 of the Code of Civil Procedure, "where one
derives title to real property from another, the declaration, act, or omission of the latter, in relation to the
property, is evidence against the former only when made while the latter holds the title."
The plaintiff also introduced in evidence a map of the city of Manila. This map is not before us. It is
sufficient to say, in order to show that it has no value as evidence, that the reliability of the map was not
proven at the trial. The only witness examined with regard to it was the city attorney. He was unable to say
who made it or who caused it to be made, or when it was made. He said only that he believed the map had
been drawn in the month of July, 1880, or prior to May, 1893. Neither this nor his statement that the map
was found among the archives of the city of Manila is of itself sufficient to show that the map is authentic.
No one appears to certify as to its correctness.
The map identified by the witness John R. Wilson was introduced by the plaintiff for the sole
purpose of showing the location of the land in question. It has, therefore, no value in establishing the right
of possession claimed by the plaintiff.
On the other hand, the two public instruments executed on March 7, 1900, between the defendant
and Telesfora Apostol y Perea, also introduced in evidence by the plaintiff, show that the defendant was in
possession of the land under a good title and with the status of owner of the land. In the first instrument if is
stated so many words that the defendant is the owner in fee simple of the land, he having repurchased it
from Liberio de Aurteneche y Menchacatorre, whose title had been recorded in the property register.
From the foregoing it appears that the evidence introduced by the plaintiff does not prove its claim
of title to the land in question. Neither the testimony of the witnesses presented by the plaintiff nor the
documentary evidence introduced show that the city of Manila is the owner of the land, or that it has a right
to its possession as claimed in the complaint. Some of the documents introduced, as well as the two public
instruments referred to as having been executed in 1900, tended to support the contentions of the
defendant rather than those of the plaintiff. Furthermore, the plaintiff itself admits in the complaint that the
defendant's possession of the land in Calle Barcelona was recorded since March, 1901, and his
possession of that in Calle Clavel since February, 1893. This shows that the defendant had been in the
adverse possession of the land. According to article 448 of the Civil Code he must be presumed to hold
under a just title, unless the contrary is shown.
In view of the foregoing, we hold that the defendant had a perfect right to ask for the dismissal of
the case on the ground that the plaintiff had failed to establish the allegations in the complaint, and the
court erred in overruling his motion to dismiss.
The order of the trial court overruling the motion of the defendant to dismiss and the judgment
appealed from are hereby reversed. Let the case be remanded to the court of its origin for action in
accordance herewith. The plaintiff shall pay the costs of the Court of First Instance. No special order is
made as to the costs on appeal. After the expiration of twenty days from the date hereof let judgment be
entered in conformity herewith. So ordered.
||| (City of Manila v. Del Rosario, G.R. No. 1284, [November 10, 1905], 5 PHIL 227-231)
Res Gestae:
People v. Lungayan 162 SCRA 100 (1988)
[G.R. No. 64556. June 10, 1988.]

THE PEOPLE OF THE PHILIPPINES, plaintiff, vs. CEFERINO LUNGAYAN, accused.

DECISION

GANCAYCO, J p:

Rape is a serious offense against chastity. Its essential element is involuntariness. More often than
not, the credibility of the offended party is vital. Failing in this, the prosecution cannot make out a case.
This is demonstrated in a review of the conviction of the accused Ceferino Lungayan by the
Regional Trial Court (RTC) of Echague, Isabela for the crime of rape, who was thereby imposed the
penalty of reclusion perpetua with all the accessory penalties provided for by law, and ordered to indemnify
the victim Agripina Juan Vda. de Garzota in the amount of P12,000.00 for moral damages without
subsidiary imprisonment in case of insolvency, and to pay the costs, in a decision dated April 8, 1982.
The evidence for the prosecution show that the complainant Agripina Juan Vda. de Garzota, then
52 years old and a widow, was asleep inside the room at their market stall located in the public market of
barangay Oscariz, municipality of Ramon, Isabela, on the evening of January 20, 1980. With her were her
two married daughters Silveria and Leticia, the latter's husband Berting Garcia and the children of said
daughters. At about 10:00 o'clock of that evening, Silveria heard someone knock at their door and when
she opened it she saw the accused who was then the barangay captain of Barangay Oscariz. He asked
Silveria if her mother was in. She answered in the affirmative and added that her mother was asleep.
Nevertheless, the accused entered the room where complainant was sleeping and woke up the
complainant. He invited her to join him to observe the persons drinking wine in the market stall identified as
Linda's canteen in violation of the barangay ordinance prohibiting the same after 10:00 o'clock in the
evening.
Complainant went with the accused to the said canteen which was only one market stall away.
They stood about two meters away from the open door of the canteen, the electric lights of which were
open inside. They stayed at the place for ten minutes standing side by side without talking to each other.
They were observing the people drinking in the canteen. Suddenly the accused grabbed both hands of
complainant so complainant reacted by shouting very loud only once. Her cries could not be heard by the
people drinking inside the canteen because of the loud stereo player. The accused slapped her and
brought out his gun which he pointed at her breast threatening to kill her if she creates any noise. The
accused then pulled her and she fell on the ground hitting her head on the pavement so she lost
consciousness, sustaining injuries on the palms of her hands.
When she regained consciousness after a short while, she was dragged by the accused towards
the banana grove near the market. She managed to stand and walk while being dragged. The accused
then carried her body across the canal and dropped her on the ground causing her to fall flat on her belly
and her fingers were again injured by the broken glasses on the ground. She could not free herself nor
shout for help because of the threat to her life.
After she fell flat on the ground, the accused held her and pressed her down and he proceeded to
remove her skirt and shorts and thereafter her blouse leaving her exposed naked with her back to the
ground. She was not wearing any panty or brassiere then. Besides pressing her down the accused stepped
on her thigh with his left foot as he went on top of her naked body. Then he stood up warning her not to
make any noise and he removed his pants and tee-shirt after which he again went on top of her naked
body holding her hands. Pointing the gun at her breast anew, the accused repeated his threat to kill her if
she resisted. Then the accused started mashing her breast and succeeded in having sexual congress with
the complainant. She felt his penis penetrating her vagina followed by a push and pull movement for less
than an hour, until she felt semen emitting from his penis and entering her body. After a while, he stood up,
put on his pants and warned her not to tell her children about what he had just done to her or ask for help
for he will kill her. He left her in tears. After the accused had gone, complainant put on her shorts and shirt
which were muddy as it previously rained that day and went home still crying. prLL
When she reached home about 12:00 midnight, Silveria asked her what happened and she
revealed that the accused abused her. When Silveria pressed for details, the complainant replied that she
will tell her the following morning.
As she promised, the next morning complainant told Silveria everything that happened to her and
thereafter she proceeded to Santiago town and reported the incident to Mr. Segundo Maylem, post
commander and Executive Vice Chapter Commander, VFP Southern Isabela, from whom she sought
assistance. She was advised to submit herself to an investigation and medical examination. On the same
day, the complainant was examined by Dr. Normita Villarico, chief of the Cagayan Valley Sanitarium
Hospital. After due investigation by the PC, a complaint for rape was filed signed and sworn to by
complainant in the Municipal Circuit Court of Ramon, Isabela against the accused.
In appealing his conviction, the accused, through counsel assailed the credibility of complainant and
interposed the defense of denial and alibi. However, by way of rebuttal of the People's brief filed by another
collaborating counsel for appellant, the failure of the prosecution to establish involuntariness on the part of
the victim was emphasized.
The appeal is impressed with merit.
There is no question that there was sexual congress between the complainant and the appellant on
that fateful evening. The medical findings and the analysis of the court a quo to this effect is well-founded.
However, the environmental circumstances of the case militates against the claim of the complainant that
the appellant employed force or intimidation in the perpetration of the said sexual act.
Complainant was a widow, 52 years of age. She had been married three times. She was not that
innocent about the world. When appellant invited her at 10:00 P.M. to step out of her house, she should
have declined. Going out alone with a man late in the evening is not in good taste nor safe even if the one
 who invited her was the barrio captain. Instead, she should have suggested that the appellant invite some
other person for the purpose.
But obviously, the appellant was quite intimate with the complainant. When he knocked at her door
and was allowed entry, he proceeded into the bedroom of complainant and woke her up himself. LibLex
Complainant went with the appellant in her shorts. She took no precaution as any discreet woman
would do by at least putting on her panty and a brassiere instead of stepping out with the appellant in her
shorts.
For about ten minutes, they were together side by side watching from a distance the people who
were drinking at Linda's canteen. Then suddenly, the appellant allegedly held her two hands. She allegedly
shouted for help but only once. If she could not be heard as her voice was drowned by the blaring stereo
player, she should have shouted louder again and again. Better still, she should have ran towards the
canteen which was just two meters away or to her residence which was one market stall away. After
allegedly shouting once she kept her peace.
She was allegedly dragged although she admits she willingly walked along. She was allegedly
carried across the canal by the appellant although she was taller and definitely bigger than appellant.
When she fell on the ground, the appellant removed her shorts and skirt without difficulty. She
offered no resistance. Even as he stood up to remove his pants she did not attempt to stand up to escape
nor to shout for help. There was no sign of struggle or resistance. Then the appellant put his penis into her
vagina penetrating her. They had sexual intercourse for almost one hour. She even felt the semen of
appellant as it entered her body. Not a whimper, not a sound from the complainant was heard. She claims
she was afraid due to the gun of appellant and his threats. She did not even describe the type of gun the
appellant threatened her with several times. Nor had the prosecution shown appellant ever had a gun. All
indications show that she submitted to his advances.
The incident happened at about 10:00 o'clock in the evening. She went home only at about 12:00
o'clock that evening. Apparently, she still moved around or spent sometime alone for about one hour. She
must have contemplated what to do with her clothes all muddy. When she reached home she was
confronted by her daughter as to what happened. She had no choice but to tell her that she was abused by
appellant but she was not prepared to reveal everything. She promised to tell all the details to her daughter
the following day. She thought about her predicament the whole night. She had no choice. She must have
to tell everything the following day.
As the Court sees it, what actually happened in this case, is that when the complainant went out
with the appellant that evening, she was aware of the risk of going out alone with a man for a reason that is
far from unavoidable. They were close and side by side for sometime, allegedly watching the drinking
session at Linda's canteen. They must have succumbed to the temptation of the flesh. One thing led to the
other until they had sexual intercourse. Perhaps the complainant did not initiate or motivate the sexual
interlude. In the least, she must have abetted it if not willingly submitted to the advances of the appellant.
Indeed, they were in ecstacy for almost one hour. Such mutual and passionate lovemaking can certainly
not be characterized as involuntary. It was free and without any compulsion.
The appellant was 48 years old when the incident happened. To think that a younger man would
rape an elderly woman of 52 years, widow, three times married, would be quite unusual. It is more
probable that it was consensual. LibLex
The trial court considered the revelation of the complainant to her daughter Silveria of what
happened to her when she returned home as part of the res gestae. It is important to stress that her
statement must not only be spontaneous. It must also be made at a time when there was no opportunity for
her to concoct or develop her own story. 1 As the Court observed the complainant did not immediately go
home after the sexual encounter. She took a walk. She spent sometime thinking of what to do. Her clothes
were muddy. She had some bruises on her body and back because she was lying down on the ground
during the sexual intercourse and their passionate interlude. She had enough time to make a decision on
what will be the nature of her story. Her revelation cannot thus be categorized as part of the res gestae.
Considering all the facts and circumstances of the case, the Court finds that if there was any sexual
congress between appellant and complainant, it was upon their mutual consent. There was no compulsion
or force. The version of the complainant is far from credible. A verdict of acquittal is in order.
WHEREFORE, the judgment appealed from is REVERSED AND SET ASIDE and another judgment
is hereby rendered ACQUITTING the appellant of the offense charged, with costs de oficio.
SO ORDERED.
||| (People v. Lungayan, G.R. No. 64556, [June 10, 1988], 245 PHIL 76-82)
People v. Putian 74 SCRA 133 (1976)
[G.R. No. L-33049. November 29, 1976.]
 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GUILLERMO PUTIAN alias
GUIRMO, accused-appellant.

Alaric P. Acosta for appellant.

Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista, and Solicitor
Leonardo I. Cruz for appellee.

DECISION

AQUINO, J p:

Guillermo Putian appealed from the decision of the Court of First Instance of Misamis Occidental,
finding him guilty of murder, sentencing him to reclusion perpetua and ordering him to indemnify the heirs
of Teodulo Panimdim in the sum of twelve thousand pesos (Criminal Case No. 6762).
The peculiarity of this case is that no eyewitness was presented to testify on the assault which
resulted in the victim's death (See People vs. Dahino, 88 Phil. 789 as to murder proven by circumstantial
evidence).
The prosecution presented only two witnesses: (1) The doctor who treated the victim at the hospital
and who testified on the nature of his wound and the cause of his death (Exh. A) and (2) the policeman
who arrested the accused and seized from him the dagger allegedly used in the stabbing (Exh. B) and who
took down the victim's ante-mortem statement identifying "Guirmo" Putian as his assailant (Exh. C).
On the other hand, the accused did not testify in his own behalf. The defense presented only one
witness. He testified that appellant Putian was in the dance hall when the victim was stabbed outside that
hall.
Hence, in this appeal our task is to determine whether the prosecution's evidence establishes
appellant's guilt beyond reasonable doubt and, if so, whether the offense is murder or homicide. Those are
the two issues raised by the appellant in his eight-page brief. cdrep
Appellant Putian admits that on November 22, 1969 while Teodulo Panimdim was attending a
dance at Barrio Tabo-o, Jimenez, Misamis Occidental, he (Panimdim) was stabbed in the left groin. As a
result of that assault, Panimdim died five days later at the provincial hospital (p. 3, brief). The question is:
Did Putian stab Panimdim?
According to the prosecution, in the evening of that day, November 22, while Patrolman Arturo Yap
was passing Barrio Tabo-o, he noticed a commotion at the back of the dance hall in that barrio. He was
informed that someone had been stabbed. He looked for the culprit. He found Guillermo Putian behind the
municipal building with a dagger and scabbard in his possession (Exh. B and B-1). Yap investigated
Putian. The latter denied that he stabbed Panimdim. Yap arrested Putian and surrendered him to Jesus
Gomonit, the guard at the municipal hall.
Patrolman Yap then repaired to the clinic of Doctor Saceda where the victim, Teodulo Panimdim,
alias Doling, was brought for treatment. At the clinic, Yap wrote on a piece of paper the victim's declaration
which is reproduced below (Exh. C):
"ANTIMORTEM Nov. 22, 1969
"Name of Victim — Teodolo Padimdim
(should be Panimdim)
Age — 21 single
Place — Palilan, Jimenez
Who stabbed you? — Guirmo Puti-an
Where? — Outside the dancing hall of Tabo-o
Why? None
What time? — 11:30 P.M.
Do you think you can suffer your wound? — Yes
Who is your companion? — Miguel Quilo, Victorino Padimdim
Who is the companion of Guirmo? — I don't know their names because they are plenty.
Can you sign your name in this antimortem? — Yes
Statement taken by Pat. Yap.
Sgd. Teodulo Panimdim
TEODULO PANIMDIM
"Sign in the presence of
1. Victorino Panimdim
 2. Ben Ybalane
3. Miguel Quilo
 Witnesses"
When that statement was taken, Panimdim was in a sitting position. Patrolman Yap advised him to
go to a hospital for treatment. Panimdim stood up, flexed his muscles and said that there was nothing to
worry about because the wound was small. Without anybody's help, he put on his undershirt, pants and
shirt. He went to his house without anyone's assistance.
Yap explained that Panimdim mentioned only a person named Guirmo and that he, Yap, was the
one who added the surname Putian in the statement, Exhibit C. He clarified that he wrote that surname
because he knew of no other person called Guirmo in that locality except Guirmo Putian, an alleged
gambler (22 tsn).
On November 23, one day after the stabbing, the victim was brought to the hospital. An operation
was performed on him. He died in the hospital on November 27, or five days after he was assaulted (Exh.
D). The attending physician certified that the victim had a stab wound in the left groin which penetrated the
abdomen and punctured the large intestine. Death was due to "toxemia secondary to general peritonitis"
(Exh. A). The doctor testified that the stab wound could have been caused by the two-bladed dagger
( punyal), Exhibit B.
The slender evidence for the defense consists merely of the meager testimony of Anacleto
Taporco, 54, the assistant provincial board secretary and former candidate for mayor, who claimed to be a
friend of Panimdim and a close friend of Putian. Taporco declared that in the evening of November 22,
1969 he was in the barrio dance hall together with appellant Putian, Olimpio Sitoy and Ramon Gimeno.
Panimdim was also there. LibLex
Taporco said that Panimdim, 21, asked his permission to box Rogelio Opos. Taporco allegedly
advised Panimdim not to do so because boxing Opos would cause trouble in the dance hall. Panimdim
obeyed him but sometime later Panimdim again asked Taporco that he be allowed to box Opos. Taporco
dissuaded Panimdim and took him outside the dance hall.
Afterwards, Taporco was allegedly informed that there was trouble. When he tried to find out what
the trouble was, he was informed that it was already patched up. During that interval, Putian never left the
dance hall.
The trial court, in convicting Putian, regarded Panimdim's ante-mortem statement as part of the res
gestae. Obviously, it did not give to that statement the probative value of a dying declaration because the
declarant at the time he made the statement was not under a consciousness of an impending death (See
sec. 31, Rule 130, Rules of Court; People vs. Saliling, L-27974, February 27, 1976, 69 SCRA 427).
The trial court did not give any credence to Putian's alibi. It noted that he did not take the witness
stand to refute Panimdim's declaration naming Putian as his assailant. The trial court surmised that through
Putian's machinations some witnesses listed in the information did not testify for the prosecution.
Appellant Putian challenges the trial court's ruling that Panimdim's ante-mortem statement was part
of the res gestae as envisaged in Rule 130 of the Rules of Court which provides:
"SEC. 36. Part of the res gestae. — Statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as a part of the res gestae. So, also,
statements accompanying an equivocal act material to the issue, and giving it a legal
significance, may be received as a part of the res gestae."
The res gestae rule embraces (a) spontaneous exclamations and (b) verbal acts (5 Moran's
Comments on the Rules of Court, 1970 Ed., p. 362). The trial court admitted Panimdim's statement as a
spontaneous statement made after the commission of a felony (People vs. Talledo and Timbreza, 85 Phil.
533).
Appellant Putian contends that Panimdim's statement was not spontaneous because it was "made
several hours after the incident". He claims that the requisite that the declarant gave the statement before
he had time to devise or contrive was not present in this case. Appellant further contends that because the
statement is in narrative form, it is not the statement contemplated in the rule.
On the other hand, the Solicitor General points out that the statement was in question-and-answer
form and that Panimdim's answers were spontaneous, candid, straightforward, direct, brief, concise,
natural and devoid of any design or deliberation. He argues that the fact that Patrolman Yap added the
surname Putian to the name "Guirmo", which was mentioned by the victim, did not destroy the probative
value of the statement because the appellant could have shown that there were other persons in the
locality named Guirmo but he failed to do so.
The Solicitor General cites the ruling that a declaration made by a person immediately after being
wounded, pointing out or naming his assailant, may be considered as part of the res gestae and is
admissible in evidence (People vs. Alfaro, 83 Phil. 85; People vs. Ananias, 96 Phil. 979). LibLex
 We hold that the trial court did not err in characterizing Panimdim's statement as a part of the res
gestae and as proving beyond reasonable doubt that Putian inflicted upon him the stab wound that caused
his death five days later in the hospital.
The res gestae rule embraces (a) spontaneous exclamations and (b) verbal acts (5 Moran's
Comments on the Rules of Court, 1970 Ed., p. 362). The trial court admitted Panimdim's statement as a
spontaneous statement made after the commission of a felony (People vs. Talledo and Timbreza, 85 Phil.
533).
Appellant Putian contends that Panimdim's statement was not spontaneous because it was "made
several hours after the incident". He claims that the requisite that the declarant gave the statement before
he had time to devise or contrive was not present in this case. Appellant further contends that because the
statement is in narrative form, it is not the statement contemplated in the rule.
On the other hand, the Solicitor General points out that the statement was in question-and-answer
form and that Panimdim's answers were spontaneous, candid, straightforward, direct, brief, concise,
natural and devoid of any design or deliberation. He argues that the fact that Patrolman Yap added the
surname Putian to the name "Guirmo", which was mentioned by the victim, did not destroy the probative
value of the statement because the appellant could have shown that there were other persons in the
locality named Guirmo but he failed to do so.
The Solicitor General cites the ruling that a declaration made by a person immediately after being
wounded, pointing out or naming his assailant, may be considered as part of the res gestae and is
admissible in evidence (People vs. Alfaro, 83 Phil. 85; People vs. Ananias, 96 Phil. 979).
We hold that the trial court did not err in characterizing Panimdim's statement as a part of the res
gestae and as proving beyond reasonable doubt that Putian inflicted upon him the stab wound that caused
his death five days later in the hospital.
"Although a declaration does not appear to have been made by the declarant under the expectation
of a sure and impending death, and, for the reason, is not admissible as a dying declaration, yet if such
declaration was made at the time of, or immediately after, the commission of the crime, or at a time when
the exciting influence of the startling occurrence still continued in the declarant's mind, it is admissible as a
part of the res gestae (5 Moran's Comments on the Rules of Court, 1970 Ed. pp. 373-4, citing People vs.
Palamos, 49 Phil. 601; People vs. Portento, 48 Phil. 971; People vs. Reyes, 52 Phil. 538).
Panimdim's statement was given sometime after the stabbing while he was undergoing treatment at
a medical clinic. He had no time to concoct a falsehood or to fabricate a malicious charge against Putian
(See People vs. Ner. L-25504, July 31, 1969, 28 SCRA 1151, 1161-2). No motive has been shown as to
why he would frame up Putian.
Appellant's alternative contention that treachery was not proven and, therefore, he can be convicted
only of homicide is meritorious. The evidence for the prosecution does not show the manner in which the
wound was inflicted. Hence, the crime imputable to appellant Putian is homicide (People vs. Ramolete, L-
28108, March 27, 1974, 56 SCRA 66, 80).
As correctly observed by the Solicitor General, the trial court erred in appreciating the aggravating
circumstance of nighttime. Nocturnity is not aggravating in this case because it was not purposely sought
by the offender to facilitate the commission of the crime. prLL
The trial court's decision is modified. Appellant Putian is convicted of homicide. As the commission
of the crime was not attended by any modifying circumstances, he is sentenced to an indeterminate
penalty of ten (10) years of prision mayor as minimum to fifteen (15) years of reclusion temporal medium
as maximum. The indemnity of P12,000 fixed by the trial court is affirmed. Costs against the appellant.
SO ORDERED.
||| (People v. Putian, G.R. No. L-33049, [November 29, 1976], 165 PHIL 759-765)
People v. Tolentino 218 SCRA 337 (1993)
[G.R. No. 87085. February 2, 1993.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANOLITO TOLENTINO @

"BONG", CARLITO TALA @ "BOY", RODOLFO MATAWARAN and @ JOHN
DOE, accused-appellants.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellants.

SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; STANDS IN THE ABSENCE OF
IMPROPER MOTIVE TO FALSELY TESTIFY AGAINST THE ACCUSED; CASE AT BAR. — Resolving the
arguments of accused-appellant Tala that no probative value should be given to the extrajudicial statement of
Grace Paule taken by Fiscal Abiog while she was still staying at the Makabali Hospital, since his name and that
of accused Matawaran were not mentioned by her as the unnamed companion of accused Tolentino, thereby
indicating that the witness really had no inkling as to his participation in said crime until Mang Medrano
supplied her their names, does not convince Us of the want of probative value of said statement of Grace
Paule. True that Grace failed to mention the names of accused-appellant Tala and accused Matawaran in her
extrajudicial statement, but considering the fact that at the time her statement was taken she was then groggy
and delirious from the stab wound she sustained but was nevertheless, able to positively identify accused-
appellant on the witness stand as one of the persons who stabbed her and the children. We find Grace's
testimony credible. There is no evidence on record to show why said witness would falsely implicate accused-
appellant Tala who is a relative of her mother unless it is the truth. There being no improper motive on her part
to point to accused-appellant as one of the perpetrators of the crime charged, Grace's testimony is entitled to
full faith and credit. Moreover, her testimony was corroborated by prosecution witness Adelaida Lingad when
the latter testified that her deceased daughter Geraldine mentioned the names of the accused-appellant Tala
and accused Matawaran as the persons who stabbed her before she died.
2. ID.; ID.; HEARSAY RULE; PART OF RES GESTAE AS AN EXCEPTION; REQUISITES; PRESENT IN
CASE AT BAR. — As to accused-appellant's contention that the statement of Geraldine, naming her assailant
soon after she was stabbed is inadmissible as part of the res gestae, We find said contention fallacious. The
trial court had correctly applied the principle of res gestae, namely: (1) that the principal act, the res gestae, be
a startling occurrence; (2) that the statements were made before the declarant had time to contrive or devise;
and (3) that the statements made must concern the occurrence in question and its immediately attending
circumstances which are all present in the case at bar as Geraldine had named accused-appellant as one of
the perpetrators in the commission of the crime immediately after the occurrence of the stabbing incident.
3. ID.; ID.; EXTRAJUDICIAL CONFESSION; CANNOT BE USED AGAINST A THIRD PARTY; EXCEPTION.
— Accused-appellant Carlito Tala also contends that the trial court erred in considering the extrajudicial
confession of accused Manolito Tolentino implicating him in the crime charged in the face of the subsequent
admission by Manolito Tolentino in open court that he was alone when he committed said crime. We agree
with appellant on this point. The extrajudicial confession of Tolentino cannot be used against appellant under
the principle of res inter alios acta unless accused is discharged from the information and made a state
witness. At any rate, the evidence on record by itself is sufficient in proving accused-appellant's guilty beyond
reasonable doubt.

DECISION

NOCON, J p:

This is an appeal by accused Carlito Tala alias "Boy" from the decision 1 dated September 7, 1988 of the
Regional Trial Court of Guagua, Pampanga, Third Judicial Region, Branch 51 in Criminal Case No. G-1627,
the pertinent portion of which reads:
"Finding that the evidence has reached a degree of moral certainty that all the elements of
robbery with homicide were adequately proven the three accused Tolentino, Matawaran and
Tala should be found guilty of the crime charged. The Court also finds that the prosecution
has proven actual damages consisting in the amount of P60,000.00 as hospital and medical
expenses and P30,000.00 as funeral expenses or a total of P90,000.00. Also proven is the
claim of moral damages which the Court assess at P40,000.00 for the death of the three
children.
"WHEREFORE, premises considered, the Court finds the accused Manolito Tolentino alias
"Bond", Carlito Tala alias "Boy" and Rodolfo Matawaran guilty beyond reasonable doubt as
co-principals by direct participation of the crime of Robbery with Multiple Homicide and
Serious Physical Injuries as charged in the Amended Information, with the attendance of the
aggravating circumstances of nighttime, dwelling, abuse of superior strength and there were
more than one victim, without modifying circumstance with respect to accused Carlito Tala
alias "Boy" and Rodolfo Matawaran to offset the same, but with mitigating circumstance of
voluntary plea of guilty with respect to Manolito Tolentino, and hereby sentences each of said
accused to suffer the penalty of RECLUSION PERPETUA, with the accessory penalties of the
law, and ordering each of them to indemnify solidarily the heirs of the deceased Enrique
Lingad, Geraldine Lingad and Glenly Lingad in the sum of P30,000.00 for each victim by
reason of their death and the further sum of P90,000.00 for actual damages, plus the amount
of P4,000.00 by way of restitution of the unrecovered cash amount stolen from the spouses
Domingo Lingad Jr. and Adelaida Lingad and the additional amount of P40,000.00 for moral
 damages incurred by the offended couple for the death of their three (3) children, without
subsidiary imprisonment in case of insolvency, and to pay the proportionate share of the
costs. prcd
"The scythe (Exhibit "KK") used in the commission of the crime charged is hereby confiscated
in favor of the state. 2
On January 24, 1984, accused-appellant Carlito Tala Alias "Boy" together with Manolito Tolentino alias "Bong",
Rodolfo Matawaran and one John Doe were charged for the crime of ROBBERY WITH MULTIPLE HOMICIDE
AND SERIOUS PHYSICAL INJURIES in an Amended Information committed as follows:
"That on or about the 8th of November, 1983, in the municipality of Lubao, province of
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused MANOLITO TOLENTINO alias "Bong", CARLITO TALA alias "Boy", RODOLFO
MATAWARAN AND ALIAS JOHN DOE, conspiring and confederating together and helping
one another with grave abuse of confidence, nighttime purposely sought to facilitate the
commission of the offense, did then and there willfully, unlawfully and feloniously with intent of
gain and without the knowledge and consent of the owner and by the use of force upon things,
to wit: by forcibly breaking a wooden window grill of the comfort room to effect entrance into
the said house and once inside, did then and there take, steal and carry away with them cash
money amounting to FOUR THOUSAND (P4,000.00) PESOS, Philippines currency, belonging
to Domingo Lingad Jr., to the damage and prejudice of the said owner in the total amount of
P4,000.00; that on the occasion of the said robbery and for the purpose of enabling them to
take, steal and carry away the amount above-mentioned, herein accused in pursuance of their
conspiracy, did then and there willfully, unlawfully and feloniously and with evident
premeditation and taking advantage of their superior in number and strength and with
deliberate intent to kill, armed with a scythe, treacherously attack, assault and stab GLENLY
LINGAD, 10 years of age, ENRIQUE LINGAD, 8 years of age, IRENE LINGAD, 11 years of
age, inflicting upon them serious and fatal injuries which directly caused the death of Glenly
Lingad, Enrique Lingad and Irene Lingad and likewise causing Serious Physical Injuries upon
GRACE PAULE, 13 years of age, which injuries have required and will require medical
attendance for a period of more than thirty (30) days and will incapacitate said Grace Paule
from performing her customary labor for the same period of time. 3
Upon arraignment, accused Tala, Tolentino and Matawaran pleaded "Not Guilty" while their co-accused named
only John Doe in the Amended Information was never identified by the prosecution nor arrested. However,
during the initial hearing of this case, accused Manolito Tolentino changed his plea from "Not Guilty" to "Guilty'
in open court 4 .
The facts as found by the trial court are as follows: llcd
At around 7 p.m. of November 7, 1983, Adelaida Lingad left her niece, Grace Paule and her three (3) children
namely: Geraldine (Irene), Glenly and Enrique, all minors, at home to attend the wake of her uncle in a house
200 meters away from her place. The children were the only ones left at home. Her husband was then working
abroad. At that time, Adelaida had P4,000.00 in cash which was wrapped in newspaper and kept hidden under
her bed. Before leaving the house, Adelaida instructed the kids to go to bed.
At around 1 p.m. or 2 p.m. of November 8, 1983, accused Tala, Tolentino, Matawaran and an unknown person
whose face was covered entered the house of Adelaida Lingad by forcibly breaking the window grill of the
comfort room and demanded to know from the children where their mother hid her money. Grace Paule knew
Manolito Tolentino because he is both an uncle and a barriomate. She also knew Carlito Tala who is a relative
of her mother and Rodolfo Matawaran who is a "barkada" of Carlito. She recognized all the accused for the
lights were on. 5 When the man whose face was covered threaten to stab the kids, Geraldine got so frighten
that she revealed to the accused where her mother hid the money.
After Tolentino took the P4,000.00, he stabbed Grace Paule with a scythe while the other three (3) accused
held the three (3) other children who were then stabbed one after the other by Tolentino. During the stabbing
incident, Grace Paule lost consciousness but was able to regain it back after about five (5) minutes and
shouted for help. Her mother and grandmother, who lived nearby, heard her and immediately proceeded to
said house but the four (4) accused had already left.
 
When accused Tolentino's brother informed Adelaida about the stabbing incident that took place in her house,
Adelaida immediately rushed to her house and saw all the children with stab wounds. Glenly was lying on the
bed already dead while her bloodied niece Grace was sitting down near the door looking pale and holding her
heart. Upon reaching Geraldine, who was lying at the porch, she asked her the identities of the person
responsible for stabbing them with the latter answering "Bong-Bong" and also mentioning the names of Tala
and Matawaran 6 . However, when she asked her son Enrique the latter was not able to answer but merely
made a sign with his three (3) fingers 7 . Thereafter, Adelaida lost consciousness and was brought to the
house of her mother.
Upon reporting said incident to the authorities, Adelaida together with three (3) policemen went back to her
house and an investigation was conducted where it was discovered that the accused entered into the house by
destroying the middle portion of the wooden bars of the comfort room.
Meanwhile, the children were brought to the Central Luzon General Hospital where Glenly was pronounced
dead on arrival and Enrique eventually died after undergoing an unsuccessful surgery. Geraldine who was
operated twice at the Makabali Hospital also succumbed to her untimely death.
Grace Paule was the only surviving victim of this horrible and harrowing experience and testified that she was
awakened by the four (4) accused who entered the house of her aunt in the early morning of November 8,
1983 and subsequently stabbed her and her three (3) cousins. She positively identified the three (3) accused
because accused Manolito Tolentino is her uncle as well as her barriomate and accused-appellant Carlito Tala
is a relative of her mother while accused Rodolfo Matawaran is the "barkada" of accused-appellant Tala. Cdpr
On the other hand, accused-appellant Tala denied having been in the house of Adelaida Lingad on that fateful
morning and maintained that at around 11 p.m. of November 7, 1983, he and accused Matawaran were
delivering watermelons at Saging, Dinalupihan, Bataan. Thereafter, they went to Samal to return the trailer
where the watermelons were loaded and proceeded to his house in Lourdes, Lubao, Pampanga. On their way
home, they passed the house of Adelaida Lingad and notice nothing unusual. They arrived at his house at
around 3 a.m. of November 8, 1983 and slept there.
In rejecting the defense of alibi, the trial court correctly stated as follows:
"Inasmuch as the two accused, Tala and Matawaran, were riding in a jeep and the scene of
occurrence is only a 30 minutes drive from their place of destination, which is Dinalupihan,
Bataan, it is [still] possible for them to reach their alleged destination and come back to
Lourdes, Lubao, Pampanga in time to participate in the commission of the offense. Their
painful and laborious effort to extend the period of time especially the three hours to load the
watermelons is pitiful in its incredibility. The indubitable facts remains that despite all
allegations alleging alibi the accused Tala and Matawaran slept in Lourdes, Lubao and were
in fact apprehended there.
"It must be noted that the alibi in order to be given full faith and credit must be clearly
established and must not leave any room for doubt as to its plausibility and verity.
"In order that alibi as a defense may prosper, the evidence to support it must be clear and
convincing as to preclude the possibility of the accused's presence at the scene of the crime
while the evidence as to his identification must be weak and insufficient.
"Foremost and above all, it is essential that the defense of alibi cannot prevail over the
positive testimony of a witness who clearly identified them as two of the cohorts of Manolito
Tolentino.
"It is clear that in this case that the accused Tala and Matawaran failed to establish the
credibility of their defense of alibi, first, as the facts narrated by them were not clear and
convincing, second, there exist a wide room for doubt as to the plausity and verity of their
testimonies, and finally, their defense of alibi is belied by the positive identification made by
Grace Paule. 8
Resolving the arguments of accused-appellant Tala that no probative value should be given to the extrajudicial
statement of Grace Paule taken by Fiscal Abiog while she was still staying at the Makabali Hospital, since his
name and that of accused Matawaran were not mentioned by her as the unnamed companion of accused
Tolentino, thereby indicating that the witness really had no inkling as to his participation in said crime until
Mang Medrano supplied her their names, does not convince Us of the want of probative value of said
statement of Grace Paule.
True that Grace failed to mention the names of accused-appellant Tala and accused Matawaran in her
extrajudicial statement, but considering the fact that at the time her statement was taken she was then groggy
and delirious from the stab wound she sustained but was nevertheless, able to positively identify accused-
appellant on the witness stand as one of the persons who stabbed her and the children. We find Grace's
testimony credible. There is no evidence on record to show why said witness would falsely implicate accused-
appellant Tala who is a relative of her mother unless it is the truth. There being no improper motive on her part
to point to accused-appellant as one of the perpetrators of the crime charged, Grace's testimony is entitled to
full faith and credit. 9 Moreover, her testimony was corroborated by prosecution witness Adelaida Lingad when
the latter testified that her deceased daughter Geraldine mentioned the names of the accused-appellant Tala
and accused Matawaran as the persons who stabbed her before she died. 10
As to accused-appellant's contention that the statement of Geraldine, naming her assailant soon after she was
stabbed is inadmissible as part of the res gestae, We find said contention fallacious. The testimony of Adelaida
Lingad, as mother of the victims belied the accused-appellant's allegation:
"Fiscal Abiog:
 May I make it of record that all these three accused were properly or positively identified by
the witness.
  Now, Mrs. Witness, when we initially hear this case, you testified that you asked Geraldine
who was then at the porch, you asked her as to who stabbed or caused those stabbed
wounds and you testified that she told you she was stabbed by a certain Bong-Bong.
Now, in the courtroom, you pointed to a certain person which you recognized or you
know to be Manolito Tolentino, do you know the nickname of that Manolito Tolentino
who is residing in your barrio? LLpr
A Yes, sir.
Q What is the nickname of that Manolito Tolentino?
A Bong-Bong, sir
Q And you also mentioned that before you asked Geraldine as to who accused those stabbed
wounds, Geraldine made a sign with her three fingers, did you not ask her what she
meant with that sign with her three fingers?
Atty. Sampang:
 The question was already answered during the previous trial as appearing on page 26 of the
transcript of stenographic notes dated February 22, 1984.
Fiscal Abiog:
 Alright, I will withdraw that question.
Court:
 Next question.
Fiscal Abiog:
Q Now, according to you when you rushed home because you were called by the brother of
Manolito Tolentino informing you that your children whom you left at home were
stabbed and then when you arrived home, you reached Glenly already dead, and then
Geraldine on the porch wounded, and Enrique on the sala, also wounded, and Grace
Paule near the door, will you please tell us what happened to you when you saw or
witnessed this incident when you observed your children and your niece on this
condition?
A I asked my youngest child, sir.
Fiscal Abiog:
Q And the youngest child you are referring to or what is the name of your youngest child?
A Enrique, sir.
Q What did you ask Enrique?
A I shouted and asked him and he responded by showing or by raising his hand with three
fingers, sir.
Q Alright, after you asked Enrique shouting, what happened and he did not answer and
instead he made a sign with his three fingers, will you please tell us what else
happened after that?
A I lost consciousness, sir.
Q And when you regained consciousness or where did you regain your consciousness?
A At the house of my mother, sir.
Q Will you please tell us how far is that house of your mother from the place of your
residence?
Witness:
A From here up to that corner, sir.
Court:
Which corner?
A Up to there, sir. (Witness pointing to Joan's Refreshment).
Fiscal Abiog:
  Which is about two hundred meters, more or less.
Atty. Sampang:
 We agree, your Honor." (TSN, October 29, 1984, pp. 6-10)
The trial court had correctly applied the principle of res gestae, namely: (1) that the principal act, the res
gestae, be a startling occurrence; (2) that the statements were made before the declarant had time to
contrive or devise; and (3) that the statements made must concern the occurrence in question and its
immediately attending circumstances 11 which are all present in the case at bar as Geraldine had named
accused-appellant as one of the perpetrators in the commission of the crime immediately after the
occurrence of the stabbing incident.
Accused-appellant Carlito Tala also contends that the trial court erred in considering the extrajudicial
confession of accused Manolito Tolentino implicating him in the crime charged in the face of the subsequent
admission by Manolito Tolentino in open court that he was alone when he committed said crime.
We agree with appellant on this point. The extrajudicial confession of Tolentino cannot be used against
appellant under the principle of res inter alios acta unless accused is discharged from the information and
made a state witness. cdrep
At any rate, the evidence on record by itself is sufficient in proving accused-appellant's guilty beyond
reasonable doubt.
 
WHEREFORE, the judgment appealed from is hereby AFFIRMED with the sole modification that the indemnity
to be paid by the accused-appellant Carlito Tala to the heirs of each victim is increased to P50,000.00 in
accordance with the recent jurisprudence of this Court.
SO ORDERED.
Narvasa, C . J ., Feliciano, Regalado and Campos, Jr., JJ., concur.
||| (People v. Tolentino, G.R. No. 87085, [February 2, 1993])
Entries in the Course of Business:
Palmer v. Hoffman 318 U.S. 109 (1943)
Palmer v. Hoffman
No. 300
Argued January 7, 8, 1943
Decided February 1, 1943
318 U.S. 109
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE SECOND CIRCUIT
Syllabus
1. A signed statement of a railroad engineer, since deceased, giving his version of a grade crossing accident in
which the locomotive he was operating was involved, and made two days after the accident, when he was
interviewed by an official of the company and a representative of a state commission, held not made "in the
regular course" of business within the meaning of the Act of June 20, 1936, and not admissible as evidence
thereunder. P. 318 U. S. 111.
2. A ruling of the trial court that, if the defendant called for and inspected a signed statement which, on cross-
examination, a witness for the plaintiff stated he had given to the plaintiff's lawyer, the plaintiff would then be
entitled to put the statement in evidence, held not a ground for reversal in this case, since the document was
not marked for identification and is not a part of the record, and this Court is therefore unable to determine
whether the contents would have served to impeach the witness. P. 318 U. S. 116.
3. Rule 8(c) of the Rules of Civil Procedure does not make contributory negligence an affirmative defense, but
relates only to the manner of pleading. P. 318 U. S. 117.
4. The question of the burden of establishing contributory negligence is a question of local law which federal
courts in diversity of citizenship cases must apply. P. 318 U. S. 117.
5. The ruling of a lower federal court upon a question of local law will not here be set aside except on a plain
showing of error. P. 318 U. S. 118.
6. In a, suit in a federal court in New York, in which two of the causes of action were based on a
Massachusetts statute and two were based on the common law, the court charged the jury that the burden of
proving contributory negligence was on the defendants. The defendants' exception to the charge did not
differentiate between the causes of action based on the statute and those based on the common law. Again
without differentiating between the statutory and the common law causes of action, the defendants requested a
charge that the burden was on the plaintiff to establish freedom from contributory negligence. In this situation,
this Court, assuming that the charge, so far as the common law counts are concerned, was
Page 318 U. S. 110
erroneous, but being unable to say that the charge was incorrect so far as the statutory cause of action are
concerned, does not reverse and remand the cause. P. 318 U. S. 119.
7. Where a party might have obtained a correct charge to the jury by specifically calling the attention of the trial
court to the error, and where a part of the charge was correct, he may not through a general exception obtain a
new trial. P. 318 U. S. 119.
129 F.2d 976, affirmed.
Certiorari, 317 U.S. 611, to review the affirmance of a judgment against the petitioners in an action for
damages on account of injury and death alleged to have been due to negligence. The jurisdiction of the federal
court was invoked on the ground of diversity of citizenship.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case arose out of a grade crossing accident which occurred in Massachusetts. Diversity of citizenship
brought it to the federal District Court in New York. There were several causes of action. The first two were on
behalf of respondent individually, one being brought under a Massachusetts statute, Mass.Gen.L. (1932) c.
160 §§ 138, 232, the other at common law. The third and fourth were brought by respondent as administrator
of the estate of his wife and alleged the same common law and statutory negligence as the first two counts. On
the question of negligence, the trial court submitted three issues to the jury -- failure to ring a bell, to blow a
whistle, to have a light burning in the front of the train. The jury returned a verdict in favor of respondent
individually for some $25,000 and in favor of respondent as administrator for $9,000. The District Court entered
judgment on the
Page 318 U. S. 111
verdict. The Circuit Court of Appeals affirmed, one judge dissenting. 129 F.2d 976. The case is here on a
petition for a writ of certiorari which presents three points.
I. The accident occurred on the night of December 25, 1940. On December 27, 1940, the engineer of the train,
who died before the trial, made a statement at a freight office of petitioners where he was interviewed by an
assistant superintendent of the road and by a representative of the Massachusetts Public Utilities
Commission. See Mass.Gen.L. (1932), c. 159, § 29. This statement was offered in evidence by petitioners
under the Act of June 20, 1936, 49 Stat. 1561, 28 U.S.C. § 695. [Footnote 1] They offered to prove (in the
language of the Act) that the statement was signed in the regular course of business, it being the regular
course of such business to make such a statement. Respondent's objection to its introduction was sustained.
We agree with the majority view below that it was properly excluded.
We may assume that, if the statement was made "in the regular course" of business, it would satisfy the other
provisions of the Act. But we do not think that it was made "in the regular course" of business within the
meaning of the Act. The business of the petitioners is the railroad business. That business, like other
enterprises,
Page 318 U. S. 112
entails the keeping of numerous books and records essential to its conduct or useful in its efficient operation.
Though such books and records were considered reliable and trustworthy for major decisions in the industrial
and business world, their use in litigation was greatly circumscribed or hedged about by the hearsay rule --
restrictions which greatly increased the time and cost of making the proof where those who made the records
were numerous. [Footnote 2] 5 Wigmore, Evidence (3d ed., 1940) § 1530. It was that problem which started
the movement towards adoption of legislation embodying the principles of the present Act. See Morgan et
al., The Law of Evidence, Some Proposals for its Reform (1927) c. V. And the legislative history of the Act
indicates the same purpose. [Footnote 3]
Page 318 U. S. 113
The engineer's statement which was held inadmissible in this case falls into quite a different category.
[Footnote 4] It is not a record made for the systematic conduct of the business as a business. An accident
report may affect that business in the sense that it affords information on which the management may act. It is
not, however, typical of entries made systematically or as a matter of routine to record events or occurrences,
to reflect transactions with others, or to provide internal controls. The conduct of a business commonly entails
the payment of tort claims incurred by the negligence of its employees. But the fact that a company makes a
business out of recording its employees' versions of their accidents does not put those statements in the class
of records made "in the regular course" of the business within the meaning of the Act. If it did, then any law
office in the land could follow the same course, since business, as defined in the Act, includes the professions.
We would then have a real perversion of a rule designed to facilitate admission of records which experience
has shown to be quite trustworthy. Any business, by installing a regular system for recording and preserving its
version of accidents for which it was potentially liable, could qualify those reports under the Act. The result
would be that the Act would cover any system of recording events or occurrences provided it was "regular,"
and though it had little or nothing to do with the management or operation of the business as such. Preparation
of cases for trial, by virtue of being a "business" or incidental thereto, would obtain the benefits of this
liberalized version of the early shop book rule. The probability of
Page 318 U. S. 114
trustworthiness of records because they were routine reflections of the day to day operations of a business
would be forgotten as the basis of the rule. See Conner v. Seattle, R. & S. Ry. Co., 56 Wash. 310, 312, 313,
105 P. 634. Regularity of preparation would become the test, rather than the character of the records and their
earmarks of reliability (Chesapeake & Delaware Canal Co. v. United States, 250 U. S. 123, 250 U. S. 128-129)
acquired from their source and origin and the nature of their compilation. We cannot so completely empty the
words of the Act of their historic meaning. If the Act is to be extended to apply not only to a "regular course" of
a business, but also to any "regular course" of conduct which may have some relationship to business,
Congress, not this Court, must extend it. Such a major change which opens wide the door to avoidance of
cross-examination should not be left to implication. Nor is it any answer to say that Congress has provided in
the Act that the various circumstances of the making of the record should affect its weight, not its admissibility.
That provision comes into play only in case the other requirements of the Act are met.
In short, it is manifest that, in this case, those reports are not for the systematic conduct of the enterprise as a
railroad business. Unlike payrolls, accounts receivable, accounts payable, bills of lading, and the like, these
reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating, not
in railroading.
It is, of course, not for us to take these reports out of the Act if Congress has put them in. But there is nothing
in the background of the law on which this Act was built or in its legislative history which suggests for a
moment that the business of preparing cases for trial should be included. In this connection, it should be noted
that the Act of May 6, 1910, 36 Stat. 350, 45 U.S.C. § 38, requires officers of common carriers by rail to make
under oath
Page 318 U. S. 115
monthly reports of railroad accidents to the Interstate Commerce Commission, setting forth the nature and
causes of the accidents and the circumstances connected therewith. And the same Act, 45 U.S.C. § 40, gives
the Commission authority to investigate the to make reports upon such accidents. It is provided, however, that
"Neither the report required by section 38 of this title nor any report of the investigation provided for in section
40 of this title nor any part thereof shall be admitted as evidence or used for any purpose in any suit or action
for damages growing out of any matter mentioned in said report or investigation."
45 U.S.C. § 41. A similar provision, 36 Stat. 916, 54 Stat. 148, 45 U.S.C. § 33, bars the use in litigation of
reports concerning accidents resulting from the failure of a locomotive boiler or its appurtenances. 45 U.S.C.
§§ 32, 33. That legislation reveals an explicit Congressional policy to rule out reports of accidents which
certainly have as great a claim to objectivity as the statement sought to be admitted in the present case. We
can hardly suppose that Congress modified or qualified by implication these longstanding statutes when it
permitted records made "in the regular course" of business to be introduced. Nor can we assume that
Congress, having expressly prohibited the use of the company's reports on its accidents, impliedly altered that
policy when it came to reports by its employees to their superiors. The inference is wholly the other way.
The several hundred years of history behind the Act (Wigmore, supra, §§ 1517-1520) indicate the nature of the
reforms which it was designed to effect. It should, of course, be liberally interpreted so as to do away with the
anachronistic rules which gave rise to its need and at which it was aimed. But "regular course" of business
must find its meaning in the inherent nature of the business in question and in the methods systematically
employed for the conduct of the business as a business.
Page 318 U. S. 116
II. One of respondent's witnesses testified on cross-examination that he had given a signed statement to one
of respondent's lawyers. Counsel for petitioners asked to see it. The court ruled that, if he called for and
inspected the document, the door would be opened for respondent to offer the statement in evidence, in which
case the court would admit it. See Edison Electric Light Co. v. United States Electric Lighting Co., 45 F. 55, 59.
Counsel for petitioners declined to inspect the statement, and took an exception. Petitioners contend that that
ruling was reversible error in light of Rule 26(b) and Rule 34 of the Rules of Civil Procedure. We do not reach
that question. Since the document was not marked for identification and is not a part of the record, we do not
know what its contents are. It is therefore impossible, as stated by the court below, to determine whether the
statement contained remarks which might serve to impeach the witness. Accordingly, we cannot say that the
ruling was prejudicial even if we assume it was erroneous. Mere "technical errors" which do not "affect the
substantial rights of the parties" are not sufficient to set aside a jury verdict in an appellate court. 40 Stat. 1181,
28 U.S.C. § 391. He who seeks to have a judgment set aside because of an erroneous ruling carries the
burden of showing that prejudice resulted. That burden has not been maintained by petitioners.
III. The final question presented by this case relates to the burden of proving contributory negligence. As we
have noted, two of the causes of action were based on the common law, and two on a Massachusetts statute.
The court, without distinguishing between them, charged that petitioners had the burden of proving contributory
negligence. To this, petitioners excepted, likewise without distinguishing between the different causes of
action. And again without making any such distinction, petitioners
Page 318 U. S. 117
requested the court to charge that the burden was on respondent. This was refused, and an exception noted.
Respondent contends, in the first place, that the charge was correct because of the fact that Rule 8(c) of the
Rules of Civil Procedure makes contributory negligence an affirmative defense. We do not agree. Rule 8(c)
covers only the manner of pleading. The question of the burden of establishing contributory negligence is a
question of local law which federal courts, in diversity of citizenship cases (Erie R. Co. v. Tompkins, 304 U. S.
64), must apply. Cities Service Oil Co. v. Dunlap, 308 U. S. 208; Sampson v. Channell, 110 F.2d 754. And see
Central Vermont Ry. Co. v. White, 238 U. S. 507, 238 U. S. 512.
Secondly, respondent contends that the courts below applied the rule of conflict of laws which obtains in New
York. So far as the causes of action based on the Massachusetts statute are concerned, we will not disturb the
holding below that, as a matter of New York conflict of laws which the trial court was bound to apply (Klaxon
Co. v. Stentor Co., 313 U. S. 487), petitioners had the burden of proving contributory negligence. That ruling
was based on Fitzpatrick v. International Ry. Co., 252 N.Y. 127, 169 N.E. 112, which involved an action
brought in New York under a statute of the Province of Ontario. That statute gave a plaintiff in a negligence
action, though guilty of contributory negligence, a recovery if the defendant was more negligent, the damages
being proportioned to the degree of fault imputable to the defendant. The New York Court of Appeals held that
the New York courts were justified in applying the Ontario rule, growing out of the statute, that the burden was
on the defendant to show contributory negligence. The Massachusetts statute on which two of the present
causes of action were founded makes a railroad corporation liable for its neglect in giving certain signals. It
provides that tort damages for injuries or death from collisions at crossings may be
Page 318 U. S. 118
recovered where such neglect "contributed" to the injury,
"unless it is shown that, in addition to a mere want of ordinary care, the person injured . . . was at the time of
the collision, guilty of gross or willful negligence, or was acting in violation of the law, and that such gross or
willful negligence or unlawful act contributed to the injury."
Mass.Gen.L. (1932) c. 160, § 232. That statute, like the Ontario statute, creates rights not recognized at
common law. Brooks v. Fitchburg & L.St. Ry., 200 Mass. 8, 86 N.E. 289; Duggan v. Bay State Street Ry.
Co., 230 Mass. 370, 381, 382, 119 N.E. 757; Sullivan v. Hustis, 237 Mass. 441, 446, 130 N.E. 247; Lewis v.
Boston & Maine R., 263 Mass. 87, 91, 160 N.E. 663. And in actions under it, the burden of proving contributory
negligence is on the defendant. Manley v. Boston & Maine Railroad, 159 Mass. 493, 34 N.E. 951; Phelps v.
New England R. Co., 172 Mass. 98, 51 N.E. 522; McDonald v. New York C. & H. R. Co., 186 Mass. 474, 72
N.E. 55; Kenny v. Boston & Maine Railroad, 188 Mass. 127, 74 N.E. 309. And see Mass.Gen.L. (1932) c. 231,
§ 85. Moreover, the measure of damages for death is "the sum of not less than five hundred nor more than ten
thousand dollars, to be assessed with reference to the degree of culpability of the" railroad. Mass.Gen.L.
(1932) c. 229, § 3. We are referred to no New York decision involving the point. The propriety of applying the
rule of the Fitzpatrick case to the causes of action based on the Massachusetts statute may be arguable. But it
is not the type of ruling under Erie R. Co. v. Tompkins, supra, which we will readily disturb. Where the lower
federal courts are applying local law, we will not set aside their ruling except on a plain showing of error.
The question which is raised on the common law counts is more serious. The court below did not distinguish
between the conflict of laws rule in a case like the Fitzpatrick case and the rule which apparently obtains in
cases where
Page 318 U. S. 119
the foreign cause of action is not founded on such a statute. It was intimated in the Fitzpatrick case, 252 N.Y.
p. 135, 169 N.E. 112, and stated in other cases in New York's intermediate appellate courts (Wright v.
Palmison, 237 App.Div. 22, 260 N.Y.S. 812; Clark v. Harnischfeger Sales Corp., 238 App.Div. 493, 495, 264
N.Y.S. 873) that, in the latter situation, the burden of proving freedom from contributory negligence is on the
plaintiff. Fitzpatrick v. International Ry. Co., supra, p. 134, 169 N.E. 112. But we do not reverse and remand the
case to the court below so that it may examine and make an appropriate application of the New York law on
the common law counts, for the following reason: as we have noted, petitioners, in their exceptions to the
charge given and in the requested charge, did not differentiate between the causes of action based on the
Massachusetts statute and those on the common law. Even if we assume that the charge on the latter was
erroneous, we cannot say that the charge was incorrect so far as the statutory causes of action were
concerned. Likewise, we must assume that it would have been error to give the requested charge on the
statutory causes of action even though we accept it as the correct charge on the others. Under these facts, a
general exception is not sufficient. In fairness to the trial court and to the parties, objections to a charge must
be sufficiently specific to bring into focus the precise nature of the alleged error. Where a party might have
obtained the correct charge by specifically calling the attention of the trial court to the error, and where part of
the charge was correct, he may not, through a general exception, obtain a new trial. See Lincoln v. Claflin, 7
Wall. 132, 74 U. S. 139; Beaver v. Taylor, 93 U. S. 46, 93 U. S. 54-55; Mobile & M. Ry. Co. v. Jurey, 111 U. S.
584, 111 U. S. 596; McDermott v. Severe, 202 U. S. 600, 202 U. S. 611; Norfolk & W. Ry. Co. v. Earnest, 229
U. S. 114, 229 U. S. 122; Pennsylvania R. Co. v. Minds, 250 U. S. 368, 250 U. S. 375. That longstanding rule
of federal practice is as applicable in this
Page 318 U. S. 120
type of case as in others. That rule cannot be avoided here by reason of the requested charge. For, as we
have said, it was at most only partially correct, and was not sufficiently discriminating.
Affirmed.
[Footnote 1]
"In any court of the United States and in any court established by Act of Congress, any writing or record,
whether, in the form of an entry in a book or otherwise, made as a memorandum or record of any act,
transaction, occurrence, or event, shall be admissible as evidence of said act, transaction, occurrence, or
event, if it shall appear that it was made in the regular course of any business, and that it was the regular
course of such business to make such memorandum or record at the time of such act, transaction, occurrence,
or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record,
including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall
not affect its admissibility. The term 'business' shall include business, profession, occupation, and calling of
every kind."
[Footnote 2]
The problem was well stated by Judge Learned Hand in Massachusetts Bonding & Ins. Co. v. Norwich
Pharmacal Co., 18 F.2d 934, 937:
"The routine of modern affairs, mercantile, financial, and industrial, is conducted with so extreme a division of
labor that the transactions cannot be proved at first hand without the concurrence of persons, each of whom
can contribute no more than a slight part, and that part not dependent on his memory of the event. Records,
and records alone, are their adequate repository, and are in practice accepted as accurate upon the faith of the
routine itself, and of the self-consistency of their contents. Unless they can be used in court without the task of
calling those who at all stages had a part in the transactions recorded, nobody need ever pay a debt, if only his
creditor does a large enough business."
[Footnote 3]
Thus, the report of the Senate Committee on the Judiciary incorporates the recommendation of the Attorney
General, who stated in support of the legislation,
"The old common law rule requires that every book entry be identified by the person making it. This is
exceedingly difficult, if not impossible, in the case of an institution employing a large bookkeeping staff,
particularly when the entries are made by machine. In a recent criminal case, the Government was prevented
from making out a prima facie case by a ruling that entries in the books of a bank, made in the regular course
of business, were not admissible in evidence unless the specific bookkeeper who made the entry could identify
it. Since the bank employed 18 bookkeepers, and the entries were made by bookkeeping machines, this was
impossible."
S.Rep. No.1965, 74th Cong., 2d Sess., pp. 1-2.
[Footnote 4]
It is clear that it does not come within the exceptions as to declarations by a deceased witness. See Shepard
v. United States, 290 U. S. 96; Wigmore, supra, chs. xlix-liv.
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Philamlife v. Capital Assurance (CA) 72 O.G. 3941

[G.R. No. 83699. February 21, 1989.]

PHILAMLIFE INSURANCE COMPANY, petitioner, vs. HON. EDNA BONTO-PEREZ,

CONRADO B. MAGLAYA AND ROSARIO G. ENCARNACION AND/OR NATIONAL
LABOR RELATIONS COMMISSION, EMPLOYEES ASSOCIATION OF PHILIPPINE
AMERICAN LIFE INSURANCE COMPANY-FFW & GIL TAMAYO, respondents.

Jorge, Perez and Associates for petitioner.

The Solicitor General for public respondent.
Jaime D. Lauron for private respondents.

SYLLABUS

1. LABOR LAW; NATIONAL LABOR RELATIONS COMMISSION; APPEAL FEE; LATE PAYMENT
THEREOF, DOES NOT FORECLOSE THE APPEAL. — The doctrine pronounced in Del Rosario & Son
Logging Enterprises, Inc. vs. NLRC, (136 SCRA 669) involving an appeal in a labor case where the appeal
fee was paid late, is applicable to the present case. There it was held that while payment of the appeal fee
is 'by no means a mere technicality but is an essential requirement in the perfection of an appeal.' [citing
Acda vs. MOLE, 119 SCRA 306 (1982)] Where the fee had been paid, unlike in the Acda case, although
payment was delayed, the broader interests of justice and desired objective of resolving controversies on
the merits demanded that the appeal be given due course and that it was besides, within the inherent
power of the NLRC to have allowed late payment of the appeal.
2. ID.; ID.; TECHNICAL RULES OF EVIDENCE IN COURTS OF LAW, NOT BINDING. — As
provided for by Article 221 of the Labor Code 'in any proceeding before the Commission or any of the
Labor Arbiters, the rules of evidence prevailing in Courts of law or equity shall not be controlling and it is
the spirit and intention of this Code that the Commission and its members and the Labor Arbiters shall use
every and all reasonable means to ascertain the facts in each case speedily and objectively and without
regard to technicalities of law or procedure, all in the interest of due process.'

DECISION

NARVASA, J p:

This case presents the simple legal issue of whether or not the failure to timely pay the appeal fee
in an appeal from a decision of a Labor Arbiter in a case of illegal dismissal forecloses the appeal and
renders said decision, upon lapse of the reglementary period, final and executory.
 The facts are not disputed. On August 1, 1983, the private respondents, Employees Association of
Philippine American Life Insurance Company-FFW and Gil Tamayo, sued herein petitioner, Philamlife
Insurance Company in the National Labor Relations Commission for alleged illegal dismissal of
Tamayo. 1 The case, docketed as NLRC NCR-8-3481-83, went through the usual procedure of filing of
position papers by the parties followed by hearing on the merits before a Labor Arbiter and the submission
of memorandum. 2 Thereafter the Arbiter, Bienvenido S. Hernandez, issued a decision dated March 21,
1986, copy of which was served on counsel for Philamlife Insurance Company on April 16, 1986, finding
that Tamayo had been illegally dismissed and ordering Philamlife to pay him his back wages and other
benefits from the date of his separation, separation pay at the rate of fifteen days' pay for every year o f
service computed on the basis of his latest monthly rate of pay, and ten percent (10%) of the total
monetary award for attorney's fees. 3
On April 26, 1986, within the period of appeal (which is ten (10) calendar days after notice of
judgment), Philamlife Insurance Company filed by registered mail with the NLRC an "Appeal with Appeal
Memorandum," taking issue with the Arbiter's decision and urging its reversal. The appeal docketing fee,
however, was not paid with equal promptness. 4 It was in fact paid only on June 11, 1986. 5
On May 2, 1986 the complainant Union and Gil Tamayo filed a motion for execution of the Arbiter's
decision on the ground that, Philamlife not having timely appealed the same, said decision had already
become final and executory. The motion was opposed by Philamlife, which obtained a stay of execution
upon posting a bond of P122,991.99, and the Labor Arbiter thereafter elevated the matter to the NLRC for
resolution. 6
In due course, on May 6, 1988, the NLRC issued a Resolution holding that the decision in question
". . . had long become final and executory," and ordering the case remanded to the Regional Branch of
Administration of origin for execution of said decision. 7
Petitioner Philamlife is now before the Court urging annulment of said Resolution on the ground that
it was issued in excess of jurisdiction, with grave abuse of discretion and in violation of law and applicable
decisions of this Court.
The questioned Resolution invokes and is grounded on the familiar principle that payment of the
requisite appeal fee within the statutory or reglementary period is essential to the perfection an appeal,
failure of which renders the questioned decision final and executory and deprives the appellate tribunal of
jurisdiction to entertain the appeal. Citing Acda vs. Minister of Labor, 8 where this Court brushed aside the
Solicitor General's plea that technical rules are not binding in labor cases and ruled that ". . . the payment
of an appeal fee is by no means a mere technicality of law or procedure . . . (but) an essential requirement
without which the decision appealed from would become final and executory, as if no appeal was filed at
all," 9 the NLRC Resolution held that payment of the appeal fee fifty-six days from notice of the Arbiter's
decision ". . . did not . . . make the decision any less final because the legal requirement is to pay the
appeal fee on time." 10
Acda, however, decided a case where no appeal fee appears to have been paid at all. A more
liberal — and more applicable — doctrine was pronounced in Del Rosario & Son Logging Enterprises, Inc.
vs. NLRC, 11 also involving an appeal in a labor case where the appeal fee was paid, though late, and this
Court ruled that: prLL
"It may be that, as held in Acda vs. MOLE, 119 SCRA 306 (1982), payment of the appeal fee
is 'by no means a mere technicality but is an essential requirement in the perfection of an
appeal.' However, where as in this case, the fee had been paid, unlike in the Acda case,
although payment was delayed, the broader interests of justice and the desired objective of
resolving controversies on the merits demanded that the appeal be given due course as, in
fact, it was so given by the NLRC. Besides, it was within the inherent power of the NLRC to
have allowed late payment of the appeal fee.
"Moreover, as provided for by Article 221 of the Labor Code 'in any proceeding before the
Commission or any of the Labor Arbiters, the rules of evidence prevailing in Courts of law or
equity shall not be controlling and it is the spirit and intention of this Code that the Commission
and its members and the Labor Arbiters shall use every and all reasonable means to ascertain
the facts in each case speedily and objectively and without regard to technicalities of law or
procedure, all in the interest of due process.' " 12
Parenthetically, the petitioner gave a not entirely implausible excuse for late payment of the appeal
fee. It claimed that said fee was not paid at the time of filing the Appeal and Appeal Memorandum by
registered mail on April 26, 1986 because that day a Saturday and the money order section of the Post
Office was closed; that the Monday following, the appeal fee was tendered to the NLRC, but the employee
in charge of receiving such payment refused to accept it because the Appeal with Appeal Memorandum
was still in transit and had not yet been received at the Commission; that the fee was tendered or three
other dates thereafter, but receipt was invariably refused on the same ground, although according to the
records the appeal documents had already been collected from the Post Office by the authorized
representative of the Ministry of Labor and Employment; that on May 29, 1986, petitioner's counsel inquired
at the NLRC if the appeal documents had already been received there and was old that they had not; and
 that it was only or June 11, 1986, when counsel learned that said documents had already been turned o
the Labor Arbiter, that the appeal fee was accepted. 13
The respondents, as might be expected, question the veracity of these assertions, which are made
in the verified Petition and also in a separate affidavit executed by two of petitioner's attorneys. 14 They
point out that those statements do not even identify the NLRC employee who supposedly refused to accept
tender of the appeal fee, 15 in reply to which the petitioner states that while said employee was not
mentioned by name, the reference to him as "the employee in the Administrative Division in charge of
receiving the fee" in the NLRC, National Capital Region, Isabel Building, España Avenue, Manila," was
sufficient to identify him. 16
Though it is no longer quite so material to the issue in view of the conclusion that so obviously
follows from what has already been discussed concerning precedents on the matter, the Court is disposed
to give credence to the petitioner's explanation for late payment of the fee and consider it as ground to view
that lapse, if lapse it is, with great liberality.
WHEREFORE, the petition is granted. The questioned NLRC Resolution of May 6, 1988 in Case
NLRC-8-3481-83 is set aside and annulled. Respondent National Labor Relations Commission is directed
to give due course to, and hear and decide the petitioner's appeal in said case. No pronouncement as to
costs.
SO ORDERED.
||| (Philamlife Insurance Co. v. Bonto-Perez, G.R. No. 83699, [February 21, 1989], 252 PHIL 527-532)

Entries in the course of business

Post under Evidence , Rule 130

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

Requisites for admissibility:

a) Entrant must be deceased or unable to testify

b) Entries must have been made at or near the time of the transaction to which they refer;

c) Entrant was in a position to know the facts stated in the entries;

d) Entries must have been made by entrant in his professional capacity or in the performance of a duty,
whether legal, contractual, moral or religious;

e) Entries were made in the ordinary or regular course of business or duty.

● If the entrant is available as a witness, the said entries will not be admitted as an exception to the
hearsay rule, but they may nevertheless be availed of by said entrant as a memorandum to refresh his
memory while testifying on the transactions reflected therein. (See Rule 132, Sec. 16; Cang Yui
vs Gardner, 34 Phil 376)
Business records vs. official records

● Note that in business records, the person making the entry must be deceased or unable to testify. In
official records, the person making the entry need not be deceased or unable to testify (Rule 130, Sec.
44). Both official and business records are only prima facie evidence.

In business records, it is sufficient that entrant made the entries pursuant to a duty either legal,

contractual, moral or religious, or in the regular course of business or duty. In official records, the is a
public officer in performance of duty, or if a private individual, must have acted pursuant to a specific legal
duty specially enjoined by law.

Official Records:

Caltex v. Africa 16 SCRA 448 (1966)

[G.R. No. L-12986. March 31, 1966.]

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA and the

HEIRS OF DOMINGA ONG, petitioners-appellants, vs. CALTEX (PHIL.) INC.,
MATEO BOQUIREN and THE COURT OF APPEALS, respondents-appellees.

SYLLABUS

1. EVIDENCE; ENTRIES IN OFFICIAL RECORDS; REQUISITES FOR

ADMISSIBILITY. — There are three requisites for admissibility of evidence under Sec. 35,
Rule 123, Rules of Court: (a) that the entry was made by a public officer, or by
another person, specially enjoined by law to do so; (b) that it was made by the
public officer in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and (c) that the public officer or
other person had sufficient knowledge of the facts by him stated, which must have
been acquired by him personally or through official information (Moran, Comments
on the Rules of Court, Vol., 3, p. 393).
2. ID.; HEARSAY RULE; REPORTS NOT CONSIDERED EXCEPTION TO
HEARSAY RULE. — The reports in question do not constitute an exception to the hearsay
rule. The facts stated therein were not acquired by the reporting officers through official
information, not having been given by the informants pursuant to any duty to do so.
3. ID.; ID.; REPORT SUBMITTED BY A POLICE OFFICER IN THE
PERFORMANCE OF HIS DUTIES. — The report submitted by a police officer in the
performance of his duties on the basis of his own personal observation of the facts
reported, may properly be considered as an exception to the hearsay rule.
4. ID.; PRESUMPTION OF NEGLIGENCE UNDER THE DOCTRINE OF Res Ipsa
Loquitur. — Where the thing which caused the injury complained of is shown to be under
the management defendant or his servants and the accident is such as in the ordinary
course of things does not happen if those who have its management or control use proper
care, it affords reasonable evidence, in absence of explanation by defendant, that the
accident arose from want of care. (45 C. J. 768, p. 1193.)
 5. ID.; ID.; APPLICATION OF PRINCIPLE TO THE CASE AT BAR. — The gasoline
station, with all its appliances, equipment and employees, was under the control of
appellees. A fire occurred therein and spread to and burned the neighboring houses. The
persons who knew or could have known how the fire started were appellees and their
employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable
inference that the incident happened because of want of care.
6. TORTS; INTERVENTION OF UNFORESEEN AND UNEXPECTED CAUSE. —
The intervention of an unforeseen and unexpected cause, is not sufficient to relieve a
wrongdoer from consequences of negligence, if such negligence directly and proximately
cooperates with the independent cause in the resulting injury. (MacAfee et al., vs. Travers
Gas Corp., et al., 153 S. W. 2nd 442.)
7. DAMAGES; LIABILITY OF OWNER OF GASOLINE STATION; CASE AT BAR.
— A fire broke out at the Caltex service station. It is started while gasoline was being
hosed from a tank into the underground storage. The fire spread to and burned several
neighboring houses owned by appellants. Issue: Whether Caltex should be held liable for
the damages caused to appellants. Held: The question depends on whether the operator
of the gasoline station was an independent contractor or an agent of Caltex. Under the
license agreement the operator would pay Caltex the purely nominal sum of P1.00 for the
use of the premises and all equipment therein. The operator could sell only Caltex
products. Maintenance of the station and its equipment was subject to the approval, in
other words control, of Caltex. The operator could not assign or transfer his rights as
license without the consent of Caltex. Termination of the contract was a right granted only
to Caltex but not to the operator. These provisions of the contract show that the operator
was virtually an employee of Caltex, not an independent contractor. Hence, Caltex should
be liable for damages caused to appellants.

DECISION

MAKALINTAL, J  : p

This case is before us on a petition for review of the decision of the Court of
Appeals, which affirmed that of the Court of First Instance of Manila dismissing petitioners'
second amended complaint against respondents.

The action is for damages under Articles 1902 and 1903 of the old Civil Code. It
appears that in the afternoon of March 18, 1948 a fire broke out at the Caltex service
station at the corner of Antipolo street and Rizal Avenue, Manila. It started while gasoline
was being hosed from a tank truck into the underground storage, right at the opening of
the receiving tank where the nozzle of the hose was inserted. The fire spread to and
burned several neighboring houses, including the personal properties and effects inside
them. Their owners, among them petitioners here, sued respondents Caltex (Phil.), Inc.
and Mateo Boquiren, the first as alleged owner of the station and the second as its agent
in charge of operation. Negligence on the part of both of them was attributed as the cause
of the fire.
The trial court and the Court of Appeals found that petitioners failed to prove
negligence and that respondents had exercised due care in the premises and with respect
to the supervision of their employees.
The first question before Us refers to the admissibility of certain reports on the fire
prepared by the Manila Police and Fire Departments and by a certain Captain Tinio of the
Armed Forces of the Philippines. Portions of the first two reports are as follows:

1. Police Department Report: —

 "Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro
Flores was transferring gasoline from a tank truck, plate No. T-5292 into underground
tank of the Caltex Gasoline Station located at the corner of Rizal Avenue and Antipolo
Street, this City, an unknown Filipino lighted a cigarette and threw the burning match
stick near the main valve of the said underground tank. Due to the gasoline fumes, fire
suddenly blazed. Quick action of Leandro Flores in pulling of the gasoline hose
connecting the truck with the underground tank prevented a terrific explosion.
However, the flames scattered due to the hose from which the gasoline was spouting.
It burned the truck and the following accessories and residences."

2. The Fire Department Report: —

In connection with their allegation that the premises was (sic) subleased for the
installation of a coca-cola and cigarette stand, the complainants furnished this Office a
copy of a photograph taken during the fire and which is submitted herewith. It appears
in this picture that there are in the premises a coca-cola cooler and a rack which
according to information gathered in the neighborhood contained cigarettes and
matches, installed between the gasoline pumps and the underground tanks."
The report of Captain Tinio reproduced information given by a certain Benito
Morales regarding the history of the gasoline station and what the chief of the fire
department had told him on the same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of Appeals
and hence inadmissible. This ruling is now assigned as error. It is contended: first, that
said reports were admitted by the trial court without objection on the part of respondents;
secondly, that with respect to the police report (Exhibit V-Africa) which appears signed by
a Detective Zapanta allegedly "for Salvador Capacillo," the latter was presented as witness
but respondents waived their right to cross-examine him although they had the opportunity
to do so; and thirdly, that in any event the said reports are admissible as an exception to
the hearsay rule under section 35 of Rule 123, now Rule 130.
The first contention is not borne out by the record. The transcript of the hearing of
September 17, 1953 (pp. 167-170) shows that the reports in question, when offered as
evidence, were objected to by counsel for each of respondents on the ground that they
were hearsay and that they were "irrelevant, immaterial and impertinent." Indeed, in the
court's resolution only Exhibits J, K, K-5 and X-6 were admitted without objection; the
admission of the others, including the disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand, he
was not examined and he did not testify as to the facts mentioned in his alleged report
(signed by Detective Zapanta.) All he said was that he was one of those who investigated
"the location of the fire and, if possible, gather witnesses as to the occurrence." and that
he brought the report with him. There was nothing, therefore on which he need be cross-
examined; and the contents of the report, as to which he did not testify, did not thereby
become competent evidence. And even if he had testified, his testimony would still have
been objectionable as far as information gathered by him from third persons was
concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further
testimonial evidence on their contents, fall within the scope of section 35, Rule 123 which
provides that "entries in official records made in the performance of his duty by a public
officer of the Philippines, or by a person in the performance of a duty specially enjoined by
law, are prima facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that the
entry was made by a public officer, or by another person specially enjoined by law to do
so; (b) that it was made by the public officer in the performance of his duties, or by such
other person in the performance of a duty specially enjoined by law; and (c) that the public
officer or other person had sufficient knowledge of the facts by him stated, which must
have been acquired by him personally or through official information. (Moran, Comments
on the Rules of Court, Vol. 3 [1957] p. 383.)
 Of the three requisites just stated, only the last need be considered here. Obviously
the material facts recited in the reports as to the cause and circumstances of the fire were
not within the personal knowledge of the officers who conducted the investigation. Was
knowledge of such facts, however, acquired by them through official information? As to
some facts the sources thereof are not even identified. Others are attributed to Leopoldo
Medina, referred to as an employee at the gas station where the fire occurred; to Leandro
Flores, driver of the tank truck from which gasoline was being transferred at the time to the
underground tank of the station; and to respondent Mateo Boquiren, who could not,
according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their
statements as "official information acquired by the officers who prepared the reports, the
persons who made the statements not only must have personal knowledge of the facts
stated but must have the duty to give such statements for record.1
The reports in question do not constitute an exception to the hearsay rule: the facts
stated therein were not acquired by the reporting officers through official information, not
having been given by the informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause and origin of the
fire, the doctrine of res ipsa loquitur should apply so as to presume negligence on the part
of appellees. Both the trial court and the appellate court refused to apply the doctrine in the
instant case on the grounds that "as to (its) applicability . . . in the Philippines, there seems
to be nothing definite," and that while the rules do not prohibit its adoption in appropriate
cases, "in the case at bar, however, we find no practical use for such doctrine." The
question deserves more than such summary dismissal. The doctrine has actually been
applied in this jurisdiction in the case of Espiritu vs. Philippine Power and Development
Co. (C.A. G. R. No. L-324O-R, September 20, 1949), wherein the decision of the Court of
Appeals was penned by Mr. Justice J.B.L. Reyes now a member of the Supreme Court.
The facts of that case are stated in the decision as follows:
"In the afternoon of May 5, 1946, while the plaintiff-appellee and other
companions were loading grass between the municipalities of Bay and Calauan, in the
province of Laguna, with clear weather and without any wind blowing, an electric
transmission wire, installed and maintained by the defendant Philippine Power and
Development Co., Inc. alongside the road, suddenly parted, and one of the broken
ends hit the head of the plaintiff as he was about to board the truck. As a result,
plaintiff received the full shock of 4,400 volts carried by the wire and was knocked
unconscious to the ground. The electric charge coursed through his body and caused
extensive and serious multiple burns from skull to legs, leaving the bone exposed in
some parts and causing intense pain and wounds that were not completely healed
when the case was tried on June 18, 1947, over one year after the mishap."
The defendant therein disclaimed liability on the ground that the plaintiff had failed to
show any specific act of negligence but the appellate court overruled the defense under
the doctrine of res ipsa loquitur. The court said:
"The first point is directed against the sufficiency of plaintiff's evidence to place
appellant on its defense. While it is the rule, as contended by the appellant, that in
case of noncontractual negligence, or culpa aquiliana, the burden of proof is on the
plaintiff to establish that the proximate cause of his injury was the negligence of the
defendant, it is also a recognized principle that 'Where the thing which caused injury,
without fault of the injured person, is under the exclusive control of the defendant and
the injury is such as in the ordinary course of things does not occur if those having
such control use proper care, it affords reasonable evidence, in the absence of the
explanation that the injury arose from defendant's want of care.'
"And the burden of evidence is shifted to him to establish that he has observed
due care and diligence. (San Juan Light & Transit Co. vs. Requena, 224 U.S. 89, 56
L. ed. 68 ). This rule is known by the name of res ipsa loquitur (the transaction speaks
for itself), and is peculiarly applicable to the case at bar, where it is unquestioned that
the plaintiff had every right to be on the highway, and the electric wire was under the
sole control of defendant company. In the ordinary course of events, electric wires do
not part suddenly in fair weather and injure people, unless they are subjected to
 unusual strain and stress or there are defects in their installation, maintenance and
supervision; just as barrels do not ordinarily roll out of the warehouse windows to
injure passersby unless some one was negligent. (Byrne vs. Boadle, 2 H & Co. 22;
159 Eng. Reprint 299, the leading case that established that rule). Consequently, in
the absence of contributory negligence (which is admittedly not present) the fact that
the wire snapped suffices to raise a reasonable presumption of negligence in the
installation, care and maintenance. Thereafter, as observed by Chief Baron Pollock, if
there are any facts inconsistent with negligence, it is for the defendant to prove.'"
It is true of course that decisions of the Court of Appeals do not lay down doctrines
binding on the Supreme Court, but we do not consider this a reason for not applying the
particular doctrine of res ipsa loquitur in the case at bar. Gasoline is a high]y combustible
material, in the storage and sale of which extreme care must be taken. On the other hand,
fire is not considered a fortuitous event, as it arises almost invariably from some act of
man. A case strikingly similar to the one before Us is Jones vs. Shell Petroleum
Corporation, et al., 171 So. 447;
"Arthur O. Jones is the owner of a building in the city of Hammon which in the
year 1934 was leased to the Shell Petroleum Corporation for a gasoline filling station.
On October 8, 1934, during the term of the lease, while gasoline was being
transferred, from the tank wagon, also operated by the Shell Petroleum Corporation,
to the underground tank of the station, a fire started with resulting damages to the
building owned by Jones. Alleging that the damages to his building amounted to
$516.95, Jones sued the Shell Petroleum Corporation for the recovery of that amount.
The judge of the district court, after hearing the testimony, concluded that plaintiff was
entitled to a recovery and rendered judgment in his favor for $427.82. The Court of
Appeals for the First Circuit reversed this judgment, on the ground the testimony failed
to show with reasonable certainty any negligence on the part of the Shell Petroleum
Corporation or any of its agents or employees. Plaintiff applied to this Court for a Writ
of Review which was granted, and the case is now before us for decision."
In resolving the issue of negligence, the Supreme Court of Louisiana held:
"Plaintiff's petition contains two distinct charges of negligence — one relating to
the cause of the fire and the other relating to the spreading of the gasoline about the
filling station.
"Other than an expert to assess the damages caused plaintiff's building by the
fire, no witnesses were placed on the stand by the defendant.
"Taking up plaintiff's charge of negligence relating to the cause of the fire, we
find it established by the record that the filling station and the tank truck were under
the control of the defendant and operated by its agents or employees. We further find
from the uncontradicted testimony of plaintiff's witnesses that fire started in the
underground tank attached to the filling station while it was being filled from the tank
truck and while both the tank and the truck were in charge of and being operated by
the agents or employees of the defendant, extended to the hose and tank truck, and
was communicated from the burning hose, tank truck, and escaping gasoline to the
building owned by the plaintiff.
Predicated on these circumstances and the further circumstance of defendants
failure to explain the cause of the fire or to show its lack of knowledge of the cause,
plaintiff has evoked the doctrine of res ipsa loquitur. There are many cases in which
the doctrine may be successfully invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is shown to be under
the management of defendant or his servants and the accident is such as in the
ordinary course of things does not happen if those who have its management or
control use proper care, it affords reasonable evidence, in absence of explanation by
defendant, that the accident arose from want of care. (45 C. J. #768, p. 1193).
"This statement of the rule of res ipsa loquitur has been widely approved and
adopted by the courts of last resort. Some of the cases in this jurisdiction in which the
doctrine has been applied are the following, viz.; Maus vs. Broderick, 51 La. Ann.
1153, 25 So. 977; Hebert vs. Lake Charles Ice etc., Co., 111 La. 522, 35 So. 731, 64
 L.R.A. 101, 100 Am. St. Rep. 505; Willis vs. Vicksburg, etc., R. Co., 115 La. 53, 38 So.
892; Bents, vs. Page, 115 La. 560, 39 So. 599."
The principle enunciated in the aforequoted case applies with equal force here. The
gasoline station, with all its appliances, equipment and employees, was under the control
of appellees. A fire occurred therein and spread to and burned the neighboring houses.
The persons who knew or could have known how the fire started were appellees and their
employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable
inference that the incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police Department
(Exh. X-1 Africa) the following appears:
"Investigation of the basic complaint disclosed that the Caltex Gasoline Station
complained of occupies a lot approximately 10 m x 10 m at the southwest corner of
Rizal Avenue and Antipolo. The location is within a very busy business district near
the Obrero Market, a railroad crossing and very thickly populated neighborhood where
a great number of people mill around throughout the day until late at night. The
circumstances put the gasoline station in a situation primarily prejudicial to its
operation because the passersby, those waiting for buses or transportation, those
waiting to cross the streets and others loafing around have to occupy not only the
sidewalks but also portion of the gasoline station itself. Whatever be the activities of
these people smoking or lighting a cigarette cannot be excluded and this constitute a
secondary hazard to its operation which in turn endangers the entire neighborhood to
conflagration.
"Furthermore, aside from precautions already taken by its operator the concrete
walls south and west adjoining the neighborhood are only 2 1/2 meters high at most
and cannot avoid the flames from leaping over it in case of fire.
"Records show that there have been two cases of fire which caused not only
material damages but desperation and also panic in the neighborhood.
"Although the soft drinks stand had been eliminated, this gasoline service
station is also used by its operator as a garage and repair shop for his fleet of taxicabs
numbering ten or more, adding another risk to the possible outbreak of fire at this
already small but crowded gasoline station."
The foregoing report, having been submitted by a police officer in the performance
of his duties on the basis of his own personal observation of the facts reported, may
properly be considered as an exception to the hearsay rule. Those facts, descriptive of the
location and objective circumstances surrounding the operation of the gasoline station in
question, strengthen the presumption of negligence under the doctrine of res ipsa
loquitur, since on their face they called for more stringent measures of caution than those
which would satisfy the standard of due diligence under ordinary circumstances. There is
no more eloquent demonstration of this than the statement of Leandro Flores before the
police investigator. Flores was the driver of the gasoline tank wagon who, alone and
without assistance, was transferring the contents thereof into the underground storage
when the fire broke out. He said: "Before loading the underground tank there were no
people, but while the loading was going on, there were people who went to drink coca-cola
(at the coca-cola stand) which is about a meter from the hole leading to the underground
tank." He added that when the tank was almost filled he went to the tank truck to close the
valve, and while he had his back turned to the "manhole" he heard someone shout "fire."
Even then the fire possibly would not have spread to the neighboring houses were it
not for another negligent omission on the part of defendants, namely, their failure to
provide a concrete wall high enough to prevent the flames from leaping over it. As it was
the concrete wall was only 2 1/2 meters high, and beyond that height it consisted merely of
galvanized iron sheets, which would predictably crumple and melt when subjected to
intense heat. Defendants' negligence, therefore, was not only with respect to the cause of
the fire but also with respect to the spread thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the second
amended complaint that "the fire was caused through the acts of a stranger who, without
authority, or permission of answering defendant, passed through the gasoline station and
negligently threw a lighted match in the premises." No evidence on this point was
adduced, but assuming the allegation to be true — certainly any unfavorable inference
from the admission may be taken against Boquiren — it does not extenuate his
negligence. A decision of the Supreme Court of Texas, upon facts analogous to those of
the present case, states the rule which we find acceptable here: "It is the rule that those
who distribute a dangerous article or agent owe a degree of protection to the public
proportionate to and commensurate with a danger involved . . . we think it is the generally
accepted rule as applied to torts that 'if the effects of the actor's negligent conduct actively
and continuously operate to bring about harm to another, the fact that the active and
substantially simultaneous operation of the effects of a third person's innocent, tortious or
criminal act is also a substantial factor in bringing about the harm, does not protect the
actor from liability.' (Restatement of the Law of Torts, vol. 2, p. 1184, #439. Stated in
another way, 'The intervention of an unforeseen and unexpected cause, is not sufficient to
relieve a wrongdoer from consequences of negligence, if such negligence directly and
proximately cooperates with the independent cause in the resulting injury.' (MacAfee et
al. vs. Traver's Gas Corp., et al., 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused to
appellants. This issue depends on whether Boquiren was an independent contractor, as
held by the Court of Appeals, or an agent of Caltex. This question, in the light of the facts
not controverted, is one of law and hence may be passed upon by this Court. These facts
are: 1) Boquiren made an admission that he was an agent of Caltex; (2) at the time of the
fire Caltex owned the gasoline station and all the equipment therein; (3) Caltex exercised
control over Boquiren in the management of the station; (4) the delivery truck used in
delivering gasoline to the station had the name CALTEX painted on it; and (5) the license
to store gasoline at the station was in the name of Caltex, which paid the license fees.
(Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he denied that he
directed one of his drivers to remove gasoline from the truck into the tank and alleged that
the "alleged driver, if one there was, was not in his employ, the driver being an employee
of the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is true that Boquiren
later on amended his answer, and that among the changes was one to the effect that he
was not acting as agent of Caltex. But then again, in his motion to dismiss appellants'
second amended complaint the ground alleged was that it stated no cause of action since
under the allegations thereof he was merely acting as agent of Caltex, such that he could
not have incurred personal liability. A motion to dismiss on this ground is deemed to be an
admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment therein,
but claims that the business conducted at the service station in question was owned and
operated by Boquiren. But Caltex did not present any contract with Boquiren that would
reveal the nature of their relationship at the time of the fire. There must have been one in
existence at that time. Instead, what was presented was a license agreement manifestly
tailored for purposes of this case, since it was entered into shortly before the expiration of
the one- year period it was intended to operate. This so-called license agreement (Exhibit
5-Caltex) was executed on November 29, 1948, but made effective as of January 1, 1948
so as to cover the date of the fire, namely, March 18, 1948. This retroactivity provision is
quite significant, and gives rise to the conclusion that it was designed precisely to free
Caltex from any responsibility with respect to the fire, as shown by the clause that Caltex
"shall not be liable for any injury to person or property while in the property herein
licensed, it being understood and agreed that LICENSEE (Boquiren) is not an employee,
representative or agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be
considered an independent contractor. Under that agreement Boquiren would pay Caltex
the purely nominal sum of P1.00 for the use of the premises and all the equipment therein.
He could sell only Caltex products. Maintenance of the station and its equipment was
subject to the approval, in other words control, of Caltex. Boquiren could not assign or
transfer his rights as licensee without the consent of Caltex. The license agreement was
supposed to be from January 1, 1948 to December 31, 1948, and thereafter until
terminated by Caltex upon two days prior written notice. Caltex could at any time cancel
and terminate the agreement in case Boquiren ceased to sell Caltex products, or did not
conduct the business with due diligence, in the judgment of Caltex. Termination of the
contract was therefore a right granted only to Caltex but not to Boquiren. These provisions
of the contract show the extent of the control of Caltex over Boquiren. The control was
such that the latter was virtually an employee of the former.
"Taking into consideration the fact that the operator owed his position to the
company and the latter could remove him or terminate his services at will; that the
service station belonged to the company and bore its tradename and the operator sold
only the products of the company; that the equipment used by the operator belonged
to the company and were just loaned to the operator and the company took charge of
their repair and maintenance; that an employee of the company supervised the
operator and conducted periodic inspection of the company's gasoline and service
station; that the price of the products sold by the operator was fixed by the company
and not by the operator; and that the receipts signed by the operator indicated that he
was a mere agent, the finding of the Court of Appeals that the operator was an agent
of the company and not an independent contractor should not be disturbed.
"To determine the nature of a contract courts do not have or are not bound to
rely upon the name or title given it by the contracting parties, should there be a
controversy as to what they really had intended to enter into, but the way the
contracting parties do or perform their respective obligations stipulated or agreed upon
may be shown and inquired into, and should such performance conflict with the name
or title given the contract by the parties, the former must prevail over the latter." Shell
Company of the Philippines, Ltd. vs. Firemen's Insurance Company of Newark, New
Jersey, 100 Phil. 757).
"The written contract was apparently drawn for the purpose of creating the
apparent relationship of employer and independent contractor, and of avoiding liability
for the negligence of the employees about the station; but the company was not
satisfied to allow such relationship to exist. The evidence shows that it immediately
assumed control, and proceeded to direct the method by which the work contracted
for should be performed. By reserving the right to terminate the contract at will, it
retained the means of compelling submission to its orders. Having elected to assume
control and to direct the means and methods by which the work has to be performed,
it must be held liable for the negligence of those performing service under its direction.
We think the evidence was sufficient to sustain the verdict of the jury." (Gulf Refining
Company vs. Rogers 57 S.W. 2d 183).
Caltex further argues that the gasoline stored in the station belonged to Boquiren.
But no cash invoices were presented to show that Boquiren had bought said gasoline from
Caltex. Neither was there a sales contract to prove the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after deducting
the amount of P2,000.00 collected by them on the insurance of the house. The deduction
is now challenged as erroneous on the ground that Article 2207 of the new Civil Code,
which provides for the subrogation of the insurer to the rights of the insured, was not yet in
effect when the loss took place. However, regardless of the silence of the law on this point
at that time, the amount that should be recovered must be measured by the damages
actually suffered, otherwise the principle prohibiting unjust enrichment would be violated.
With respect to the claim of the heirs of Ong, P7,500.00 was adjudged by the lower court
on the basis of the assessed value of the property destroyed namely, P1,500.00,
disregarding the testimony of one of the Ong children that said property was worth
P4,000.00. We agree that the court erred, since it is of common knowledge that the
assessment for taxation purposes is not an accurate gauge of fair market value, and in this
case should not prevail over positive evidence of such value. The heirs of Ong are
therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and respondents- appellees are
held liable solidarily to appellants, and ordered to pay them the aforesaid sums of
 P9,005.80 and P10,000.00, respectively, with interest from the filing of the complaint, and
costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala,
Bengzon, J.P. and Zaldivar, JJ., concur.
Dizon, J., took no part.
 (Spouses Africa v. Caltex (Phil.), Inc., G.R. No. L-12986, [March 31, 1966], 123 PHIL 272-
|||

288)

People v. Leones 117 SCRA 382 (1982) (rape case) entries to public record

[G.R. No. L-48727. September 30, 1982.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSEPH LEONES y

DUCUSIN alias JESSIE, defendant-appellant.

SYNOPSIS

Irene, a salesgirl in the store owned by appellant's parents, accused appellant of

having allegedly raped her one afternoon after he and his sister had forced her to take
three tablets which rendered her semi-conscious. Charged with rape in the Court of First
Instance, appellant interposed the defense of denial and alibi. Medical examination
conducted on Irene about two or three hours after the alleged rape disclosed healing
lacerations of the hymen, absence of sperm cells and unclotted blood at the vaginal cavity.
On the other hand, complainant testified that on the date of the alleged rape she was
having her menstrual period. The trial court convicted the appellant of rape. Hence, the
present appeal.
The Supreme Court held that the moral certainty or degree of proof which produces
conviction in our unprejudiced mind has not been established by the prosecution and the
constitutional mandate that the accused is presumed innocent must prevail.
Judgement REVERSED and appellant is ACQUITTED.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; PRIMA FACIE EVIDENCE; ENTRIES IN

OFFICIAL RECORDS. — The written entries in the clinical case record, Exh. "2", showing
the date of her admission In the hospital on April 22, 1973, her complaint of vaginal
bleeding and the diagnosis of "Healing lacerated wide at 2 o'clock and 10 o'clock hymen"
are prima facie evidence of the facts therein stated, the said entries having been made in
official records by a public officer of the Philippines in the performance of his duty
especially enjoined by law, which is that of a physician in a government hospital (Rule 130,
Sec. 38 of the Rules of Court).
2. CRIMINAL LAW; RAPE; WEIGHT OF UNCORROBORATED TESTIMONY OF
INJURED WOMAN. — Rape is a most detestable crime. It should be severely and
impartially punished. But a rape charged is easy to make, hard to prove and harder to
defend by the party accused, though innocent. Experience has shown that unfounded
charges of rape have frequently been preferred by woman actuated by some sinister,
ulterior or undisclosed motive. Convictions for such crime should not be sustained without
clear and convincing proof of guilt. On more than one occasion, it has been pointed out
that in crimes against chastity, the testimony of the injured woman should not be received
with precipitate credulity. When the conviction depends on any vital point upon her
uncorroborated testimony, it should not be accepted unless her sincerity and candor are
free from suspicion. A little insight into human nature is of outmost value in judging matters
of this kind (Cornelio Flores, 26 Phil. 262; Barbo, 56 SCRA 459; Bay, 27 Phil. 495;
 Pantaleon Ramos, 35 Phil. 671; Fernando Fausto, 51 Phil. 852, cited in Aquino, The
Revised Penal Code, 1977 Ed., Vol. III, pp. 1679-1680).

DECISION

GUERRERO, J  : p

This is an appeal from the decision of the Court of First Instance of La Union,
Branch I, convicting the accused-appellant, Joseph Leones y Ducusin, of the crime of rape
charged in the following information, to wit:
"The undersigned offended party after having been duly sworn to an oath in
accordance with law hereby accuses JOSEPH LEONES y DUCUSIN alias Jessie of
the crime of RAPE, committed as follows:
"That on or about the 22nd day of April, 1973, in the Municipality of San
Fernando, Province of La Union, Philippines, and within the jurisdiction of this
Honorable Court, said accused Joseph Leones y Ducusin alias Jessie, by means of
violence and use of force compelled the offended party to swallow tablets and
consequently thereafter while she fell into semi-consciousness the said accused
wilfully, unlawfully and feloniously have carnal knowledge of the complainant Irene
Dulay against her will in the house of the accused.
"CONTRARY TO LAW, with the aggravating circumstance of abuse of
confidence.
"San Fernando, La Union, May 8, 1973.

 (SGD.) IRENE DULAY

 Offended Party

WITH MY CONFORMITY:

(SGD.) GAUDENCIO DULAY

(Father of the Offended Party)"

and sentencing him to suffer the penalty of reclusion perpetua and to pay the costs.

The facts are narrated in the People's brief as follows:

"Complainant Irene Dulay was a salesgirl employed in the store of Mr. & Mrs.
Pepito Leones at San Fernando, La Union where she resided.
"On April 22, 1973, the complainant who had headache stayed in her room.
Earlier that day, the members of the Leones family, including the accused-appellant
Joseph Leones and his sister Elizabeth, had gone to nearby beach resort for a picnic:
"At about past noon the appellant and Elizabeth returned to their house. While
there, the appellant and Elizabeth entered the room where complainant was lying
down and forced her to take three tablets dissolved in a spoon which according to
them were aspirin. The complainant refused to take the tablets but was forced to do so
when the appellant held her mouth while his sister pushed the medicine. Then the
appellant and Elizabeth left the room and after a while the complainant felt dizzy.
"Later, the appellant returned to the complainant's room and took of her panty.
Then the appellant went on top of her. The complainant tried to push him but as she
was weak and dizzy, the appellant succeeded in abusing her (pp. 2-8, 15-16, tsn,
June 27, 1975).
"At about 4:30 P.M. of the same date, Natividad Leones, the stepmother of the
appellant, found the complainant unconscious near her room without any panty on.
She was then taken to the La Union Provincial Hospital by the driver of the Leones
family (pp. 3-5, tsn, June 10, 1976).
 "When admitted to the hospital at about 6:00 P.M. of the same date (April 22,
1973), the complainant was semiconscious, incoherent and hysterical. She refused to
talk and to be examined by the doctors. She was irritated when approached by a male
figure (Exhibit 'B', Records, pp. 280-281). The complainant was first attended to by Dr.
Antonino Estioco who found out that she had vaginal bleeding (Exhibit '2', Records, p.
786). The complainant was then referred to Dr. Fe Cayao who was informed by Dr.
Estioco that she might have been a victim of rape (p. 28, tsn, May 15, 1974). In the
presence of the complainant's father, Dr. Cayao examined her on April 26, 1973 after
which she issued a medical certificate with the following findings:
'1. Presence of erythema of the vestibular portion of external genitalia;
'2. Healing lacerations of the hymen at 2 o'clock and 10 o'clock;
'3. Easily admit one finger with pain;
'4. Unclotted blood at the vaginal cavity;
'5. Smear exam for sperm cell-negative; D'plococci — negative.
Florence test — reagent not available.'(Exhibit 'A', Records, p. 3),
"Because of the lack of facilities in the hospital, Dr. Cayao was not able to
make any examination to determine whether drug was given to the complainant. (pp.
23-24, tsn, May 15, 1974." 1
The accused-appellant denied the charge imputed to him, claiming that at the time
of the alleged rape between 2:00 o'clock and 3:00 o'clock p.m. on April 22, 1973, he was
at the beach resort with the other members of the family, namely his sister Elizabeth, his
stepmother Natividad Leones, his younger brothers and sisters named Marivic, Theresa,
Carol, Pinky and Bongbong together with other companions, for a picnic and had lunch
thereat, swimming and picture-taking.
As indicated earlier, the trial court, holding that "viewed from all legal aspects of this
case, in the light of the recorded evidence, . . . is fully convinced that the crime of rape
charged in the criminal complaint was committed by the accused. The evidence presented
by the prosecution is not only clear and convincing but has established the guilt of the
accused beyond reasonable doubt."
From this sentence, the accused appeals to Us, strongly submitting that the trial
court erred in finding him guilty of the crime charged since the evidence presented against
him did not prove his guilt beyond reasonable doubt.  cdrep

At the outset, We note a number of significant facts from the recorded evidence of
the prosecution which materially and substantially debunks and derails the theory of the
Government and correspondingly impresses considerable merit to the defense.

1. The clinical case record of Irene Dulay's admission and confinement at the
Provincial Hospital of La Union, marked Exhibit "2", contain entries which totally and
completely belie the claim of the complainant that she was raped by the accused in the
afternoon of April 22, 1973. The same is reproduced hereunder:

"LA UNION PROVINCIAL HOSPITAL

San Fernando, La Union

CLINICAL CASE RECORD

Fiscal Yr.: 1973 Physician: ________

Adm. No.: 275 Admitted by: Dr. Estioco
File No. or Rec. No. ________  Approved by: ________

   Ped.: City Free:
  Surg: Transient free:
  Dept. Obs.: Classif. Govt. free;
  Med.: Prvt. free:
  EENT: Hosp. pay:
   C.U. Off. Hosp. pay:
  Dental: Off. Prvt. pay:
Name of Patient: Irene Dulay
Maiden name:___________________
Residence: San Fernando, La Union
In case of accident or death notify Natividad Leones, (employer)
Charge Hosp. Acct. to:_________________________________
Age: 16 yrs. Single: Married; Widowed: Nationality Fil.
Admitted: 6:00 P.M. 4-22-1973 Assgd PR: I Bed by Dr.
 Estioco
Transf: P.M ____19 ____ to Dept: PR Ward #: ____ Bed # ____
Complaints: Vaginal bleeding
__________________________________________________
Diagnosis in full:
 Healing lacerated wide at 2 o'clock and 10 o'clock hymen.
 Results: Rec.: Disposition: Disch:
 Imprv: Disd:
 Unimprov: Abcond: 3:45 P.M.  
 Died: Transf Hosp. 5-12-73

Operation: _________________________________________
Anesthesia: _________________________________________

History written by:  APPROVED:

 (SGD.) ESTIOCO (unintelligible)
 (Resident Physician) Dept. Head"

The entry written in the above clinical record when Irene Dulay was admitted under
the item "Complaints" reads: Vaginal Bleeding, and below this entry appears the Diagnosis
— Healing lacerated wide at 2 o'clock and 10 o'clock hymen. Assuming that the victim was
raped between 2 and 3 o'clock p.m., April 22, 1973 (the same day she was admitted in the
hospital), then the lacerations of the hymen at 2 o'clock and 10 o'clock would not have
been described and indicated to be Healing in the clinical case record. It would be
described as "laceration fresh" or by similar words like "bloody or new lacerations." There
is no instant formula, technique or process known to medical science or by human
experience to hasten the healing of a lacerated hymen within three (3) hours or so after
defloration.
Citing from the book, Legal Medicine by Pedro P. Solis, M.D., Ll B., Medico Legal
Officer, National Bureau of Investigation, Department (now Ministry) of Justice, We have
the following comment on:  LibLex

"Healing time of laceration of the hymen:

Superficial laceration of the hymen may heal in two or three days.

More extensive tear may require longer time, usually seven to ten days.
Complicated types and those with intervening infection may cause delay in the
healing depending upon the extent of the involvement of the surrounding tissue and
the degree of infection. Complicated laceration may even require surgical
intervention." (p. 302, italics supplied.)
Since there was found laceration, wide, at 2 o'clock and 10 o'clock of the hymen
which was then already healing on April 22, 1973, it follows reasonably that the defloration
occurred several days before, which may have happened when Irene Dulay took a week-
long vacation to her hometown in Pugo, La Union (tsn, p. 10, June 27, 1975) and there is
evidence that she had a suitor named Ferdinand Sarmiento who is from nearby Agoo, La
Union. And when she returned to the house of her employer in San Fernando, La Union,
she had already chest and stomach pains and a headache.
The written entries in the clinical case record, Exh. "2", showing the date of her
admission in the hospital on April 22, 1973, her complaint of vaginal bleeding and the
diagnosis of "Healing lacerated wide at 2 o'clock and 10 o'clock hymen" are prima facie
evidence of the facts therein stated, the said entries having been made in official records
by a public officer of the Philippines in the performance of his duty especially enjoined by
law, which is that of a physician in a government hospital. (Rule 130, Sec. 38, Rules of
Court). In the case at bar, Dr. Antonino Estioco was the admitting physician but
unfortunately, he was not presented as a witness for the government.
In connection with Exhibit "2", there is one piece of damaging evidence which not
only derogates the theory of the prosecution but also cannot be explained by the
government, and that is the frank testimony of Dr. Fe Cayao herself, thus:
"Q The question is: did you not discover through reading the clinical history of the
patient that the woman was not complaining of alleged rape?
A It was not indicated here that she was complaining of an alleged rape.
Q There was not a single word in the clinical record of the victim that she was the
victim of an alleged rape, is that correct?
A Yes." (tsn, pp. 27-28, May 15, 1974)
2. From the same clinical case record, Exhibit "2", it appears clearly that the alleged
victim, Irene Dulay, was having her menstrual period when she was supposedly raped for
the Complaint indicated that she had vaginal bleeding. She herself admitted in her
testimony that on April 22, 1973, she was having her menstruation. (tsn, p. 9, June 27,
1975).
It is quite abnormal and unnatural, almost unheard of in human experience and
behavior that a man would have sexual intercourse with a woman then having her
menstrual period, as was the admitted condition of the complainant when she was
allegedly abused by the accused. And because of this universal abhorrence, taboo and
distaste to have sexual contact with a menstruating female and this is so however
passionate and lustful the man way be unless he is depraved or demented. We cannot
believe that the accused-appellant, a young fourth year college student of civil engineering
studying in Baguio City, would break or violate such a taboo by drugging the complainant
girl with the help of her sister and afterwards have sex relations with her in her menstrual
condition.
3. When the complainant was investigated by the police, she declared in her
affidavit, Exhibit "5", the following answers to these questions:
"5. Q Why are you in this office?
A I came here with the purpose of giving my voluntary statement in connection with
the incident that happened to me in the house of my employer and I want to file
a formal complaint against the persons who offended me, sir.
6. Q Who are those persons who offended you, if you know?
A They are Joseph alias Jessie and Elizabeth both surnamed Leones, the son and
daughter of Mr. Pepito Leones, my employer.
7. Q When did that incident happened?
A At about between the hours of 2:00 & 3:00 in the afternoon of April 22, 1973, sir.
8. Q What did these Joseph and Elizabeth Leones do against you?
A Because I was suffering headache at that time because it was the first day of my
menstrual period, they were inviting me to go with them to Wallace and I told
them that I have a headache then later they forced me to take in aspirin tablets,
three (3) tablets then after a few seconds, I begun to feel dizzy and half
conscious.
 9. Q Do you know if what you have forcely taken and given by the two, Joseph and
Elizabeth were really aspirin tablets?
A I do not know, but they were white in color similar to aspirin tablets but after I have
taken them I felt dizzy then unconscious.
10. Q In what manner did Joseph Leones and Elizabeth Leones force you to take in
the tablets?
A At about that time and date I mentioned above, I was then lying on my bed in my
room at their residence, then Jessie and Elizabeth came in. Joseph alias Jessie
took hold of my throat with one hand and pressed it hard that I was almost
choked up, his other hand held my both cheeks his thumb and forefinger
pressed hard to forcely open my mouth while Elizabeth held a spoon containing
the three (3) tablets then I was told by them to swallow the pills. I could not
resist so I swallowed the pills then later I felt dizzy as if the world was turning
around."
Thus, it would appear from the above recorded evidence that the accused Joseph
Leones and his sister Elizabeth, helped and conspired with each other in the commission
of the crime of rape against the offended party, an assumption that is hardly believable for
it would lead to the absurd conclusions that Elizabeth was a principal by cooperation and
that both Joseph and Elizabeth had planned the rape for they conveniently provided
themselves beforehand with the necessary drug.
It further appears in the record that the Philippine Constabulary in La Union did not
believe the existence of rape when Felicidad Boado reported the incident (tsn, p. 25, June
18, 1974), which disbelief may reasonably be attributed to the unnatural and unusual
version of the complainant that another of her own sex had conspired and confabulated in
the commission of the alleged defilement.  cdrep

4. The complainant, Irene Dulay, had declared in her affidavit, Exhibit "5", in answer
to question No. 9 that after she had taken the tablets that were white in color similar to
aspirin tablets, she felt dizzy, then unconscious. In her testimony at the trial, however, she
testified that after she had taken the tablets, she felt dizzy and felt the removal of her panty
and that when he went on top of her, he inserted his private parts into her private parts
(tsn, pp. 6-7, June 27, 1975), but on cross-examination, she said that she became
unconscious when Joseph Leones was already on top of her (tsn, p. 22, June 27, 1975). If
she became unconscious when Leones was on top of her and yet she felt pain when he
placed his private parts into hers, then this is incredible for how could she have known
what was done to her and how she felt when she was already unconscious as admitted by
her.
5. The record is replete with testimonies of the very witnesses of the prosecution
itself revealing the irrational, if not immoral behavior and conduct of the complainant which
cuts deep into the morality, character and credibility of the complaining witness. To cite a
few of her immoral acts, when the police came to visit her, Irene Dulay took hold of the
penis, of the policeman (Testimony of Felicidad Boado, tsn, p. 20, June 18, 1974).
Whenever she sees a man, she goes after him and takes hold of his hand and places it in
her private part (Testimony of Leonida Dulay, p. 5, tsn, Sept. 20, 1974). Sometimes she is
seated, sometimes she is standing and there are moments that she goes around and
whenever she sees a man, she calls for him and says "darling Jessie" (Cross-examination
of Leonida Dulay, tsn, p. 14, Sept. 20, 1974). She even said "have sexual intercourse with
me," making particular mention of the person who wanted to do that to her as Joseph
Leones (Cross-examination of Leonida Dulay, tsn, pp. 27-28, Sept. 20, 1974). There are
times when she gets a pillow and imitates the sexual act (tsn, p. 29, Sept. 20, 1974). There
are moments when she takes hold of a pillow, embraces it, and makes movements
imitating the sexual act (tsn, Testimony of Leonida Dulay, p. 5, Sept. 20, 1974).
6. The circumstances of persons, time and place attendant in the commission of the
crime do not build up the case for the People. On the contrary, We find facts and
circumstances which contradict and contravene the theory of the prosecution, rendering it
highly improbable and questionable. Thus, the room of the complainant where the alleged
 rape was committed was at the ground floor of the house where her employer lives with
his family and maintains a canteen at the premises, the room being very near the washing
place and had a door with only wooden jalousies. There were several persons present in
the house at the time of the alleged rape and they were Evelyn Estigoy, the secretary of
Natividad Leones, the cook Inocencia Gangad and her daughter, Marites. With the
presence of these persons at the premises and the complainant's room was not secluded
nor completely closed, the opportunity to commit the rape is hardly present. More than that
the alleged time being between 2:00 o'clock and 3:00 o'clock in the afternoon and with the
supposed attendance of the perpetrator's elder sister, Elizabeth the element of secrecy
had been totally ignored or disregarded which is quite unbelievable and incredible in such
a crime as rape. prcd

Indeed, rape is a most detestable crime. It should be severely and impartially

punished. But a rape charge is easy to make, hard to prove and harder to defend by the
party accused, though innocent. Experience has shown that unfounded charges of rape
have frequently been preferred by women actuated of rape have frequently been preferred
by women actuated by some sinister, ulterior or undisclosed motive. Convictions for such
crime should not be sustained without clear and convincing proof of guilt. On more than
one occasion, it has been pointed out that in crimes against chastity, the testimony of the
injured woman should not be received with precipitate credulity. When the conviction
depends on any vital point upon her uncorroborated testimony, it should not be accepted
unless her sincerity and candor are free from suspicion. A little insight into human nature is
of utmost value in judging matters of this kind. (Cornelio Flores, 26 Phil. 262, 268; Ignacio
Landicho, 8 ACR 580 Rafael Lacson, CA 53 O.G. 1823; Francisco Salvador, CA 52 O.G.
7290; Lago, CA 45 O.G. 1356; Barbo, 56 SCRA 459; Bay, 27 Phil. 495; Pantaleon Ramos,
35 Phil. 671; Brocal, CA 36 O.G. 857; Topacio, CA 36 O.G. 1358; Fernando Fausto, 51
Phil. 852; cited in Aquino, The Revised Penal Code, 1977 Ed., Vol. III, pp. 1679-1680).
After carefully analyzing and weighing the evidence presented by the prosecution in
the light of the legal principles above outlined and now well-established in Our
jurisprudence and guided by a little insight into human nature, We are persuaded and
convinced that the guilt of the accused has not been proven beyond reasonable doubt.
That moral certainty or degree of proof which produces conviction in an unprejudiced mind
(Rule 133, Section 2, Rules of Court) has not been established by the prosecution. The
constitutional mandate that the accused is presumed innocent must prevail and, therefore,
the accused-appellant, Joseph Leones, is entitled to an acquittal.
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of conviction is
hereby REVERSED and the accused Joseph Leones y Ducusin is ACQUITTED of the
crime charged.
Costs de oficio.
SO ORDERED.
|||  (People v. Leones y Ducusin, G.R. No. L-48727, [September 30, 1982], 202 PHIL 703-714)

Manalo v. Robles Trans. Co., Inc. 99 Phil. 729 (1956) (collision)

[G.R. No. L-8171. August 16, 1956.]

EMILIO MANALO and CLARA SALVADOR, plaintiffs-appellees, vs. ROBLES

TRANSPORTATION COMPANY, INC., defendant-appellant.

SYLLABUS

1. CRIMINAL PROCEDURE; JUDGMENT OF CONVICTION; BINDING UPON

PARTY SUBSIDIARILY LIABLE. — The judgment convicting the driver of a vehicle of
homicide through reckless imprudence, in the absence of any collusion between the
defendant and offended party, is binding upon the party subsidiarily liable.
 2. ID.; EVIDENCE; SHERIFF'S RETURN; PROBATIVE VALUE OF. — A sheriff's
return is an official statement by a public official in the performance of a duty specially
enjoined by law and forming part of official records, and is prima facie evidence of the facts
stated therein. (Rule 39, section 11 and Rule 123, section 35, Rules of Court.) The sheriff
making the return need not testify in court as to the facts stated in his entry.
3. DAMAGES; CIVIL LIABILITY ARISING FROM NEGLIGENCE UNDER THE
REVISED PENAL CODE AND NEW CIVIL CODE. — Articles 102 and 103 of the Revised
Penal Code have not been repealed by the New Civil Code whose Article 2177 expressly
recognizes civil liabilities arising from negligence under the Penal Code (Articles 102 and
103), only that it provides that plaintiff may not recover damages twice for the same
negligence.
4. PLEADING AND PRACTICE; ACTION BASED UPON JUDGMENT;
PRESCRIPTION OF. — An action based upon a judgment prescribes in ten years.

DECISION

MONTEMAYOR, J  : p

Robles Transportation Company, Inc., later referred to as the Company, is

appealing from the decision of the Court of First Instance of Rizal, civil case No. 2013,
ordering it to pay plaintiffs Emilio Manalo and his wife, Clara Salvador, the sum of P3,000
with interest at 12 per cent per annum from November 14, 1952 plus the amount of P600
for attorney's fees and expenses of litigation, with costs.

The facts involved in this case are simple and without dispute. On August 9, 1947, a
taxicab owned and operated by defendant appellant Company and driven by Edgardo
Hernandez its driver, collided with a passenger truck at Parañaque, Rizal. In the course of
and as a result of the accident, the taxicab ran over Armando Manalo, an eleven year old,
causing him physical injuries which resulted in his death several days later. Edgardo
Hernandez was prosecuted for homicide through reckless imprudence and after trial was
found guilty of the charge and sentenced to one year prision correccional, to indemnify the
heirs of the deceased in the amount of P3,000, in case of insolvency to suffer subsidiary
imprisonment, and to pay costs. Edgardo Hernandez served out his sentence but failed to
pay the indemnity. Two writs of execution were issued against him to satisfy the amount of
the indemnity, but both writs were returned unsatisfied by the sheriff who certified that no
property, real or personal, in Hernandez' name could be found.
On February 17, 1953, plaintiffs Emilio Manalo and his wife Clara Salvador, father
and mother respectively of Armando, filed the present action against the Company to
enforce its subsidiary liability, pursuant to Articles 102 and 103 of the Revised Penal Code.
The Company filed its appearance and answer and later an amended answer with special
defenses and counterclaim. It also filed a motion to dismiss the complaint unless and until
the convicted driver Hernandez was included as a party defendant, the Company
considering him an indispensable party. The trial court denied the motion to dismiss,
holding that Hernandez was not an indispensable party defendant. Dissatisfied with this
ruling, the Company filed certiorari proceedings with the Court of Appeals, but said
appellate court held that Hernandez was not an indispensable party defendant, and
consequently, the trial court in denying the motion to dismiss acted within the proper limits
of its discretion. Eventually, the trial court rendered judgment sentencing the defendant
Company to pay to plaintiffs damages in the amount of P3,000 with interest at 12 per cent
per annum from November 14, 1952, plus P600 for attorney's fees and expenses for
litigation, with costs. As aforestated, the Company is appealing from this decision.
To prove their case against the defendant Company, the plaintiffs introduced a copy
of the decision in the criminal case convicting Hernandez of homicide through
reckless imprudence, the writs of execution to enforce the civil liability, and the
returns of the sheriff showing that the two writs of execution were not satisfied
because of the insolvency of Hernandez, the sheriff being unable to locate any
property in his name. Over the objections of the Company, the trial court admitted
this evidence and based its decision in the present case on the same.
Defendant-appellant now contends that this kind of evidence is inadmissible and
cites in support of its contention the cases of City of Manila vs. Manila Electric Company
(52 Phil., 586), and Arambulo vs. Manila Electric Company (15 Phil., 75). This point has
already been decided by this tribunal in the case of Martinez vs. Barredo (81 Phil., 1). After
considering the same two cases now cited by appellant, this court held that the judgment
of conviction, in the absence of any collusion between the defendant and offended
party, is binding upon the party subsidiarily liable.
The appellant also claims that in admitting as evidence the sheriff's return of
the writs of execution to prove the insolvency of Hernandez, without requiring said
official's appearance in court, it was deprived of the opportunity to cross-examine
said sheriff. A sheriff's return is an official statement made by a public official in the
performance of a duty specially enjoined by law and forming part of official records,
and is prima facie evidence of the facts stated therein. (Rule 39, section 11 and Rule
123, section 35, Rules of Court.) The sheriff making the return need not testify in court
as to the facts stated in his entry. In the case of Antillon vs. Barcelon, 37 Phil., 151,
citing Wigmore on Evidence, this court said:
"To the foregoing rules with reference to the method of proving private
documents an exception is made with reference to the method of proving public
documents executed before and certified to, under the hand and seal of certain public
officials. The courts and the legislature have recognized the valid reason for such an
exception. The litigation is unlimited in which testimony by officials is daily needed, the
occasions in which the officials would be summoned from his ordinary duties to
declare as a witness are numberless. The public officers are few in whose daily work
something is not done in which testimony is not needed from official sources. Were
there no exception to official statements, hosts of officials would be found devoting the
greater part of their time to attending as witnesses in court or delivering their
depositions before an officer. The work of Administration of government and the
interest of the public having business with officials would alike suffer in consequence."
And this Court added:
"The law reposes a particular confidence in public officers that it presumes they
will discharge their several trusts with accuracy and fidelity; and, therefore, whatever
acts they do in discharge of their public duty may be given in evidence and shall be
taken to be true under such a degree of caution as the nature and circumstances of
each case may appear to require."
The appellant also contends that Articles 102 and 103 of the Revised Penal Code
were repealed by the New Civil Code, promulgated in 1950, particularly, by the repealing
clause under which comes Article 2270 of the said code. We find the contention untenable.
Article 2177 of the New Civil Code expressly recognizes civil liabilities arising from
negligence under the Penal Code, only that it provides that plaintiff cannot recover
damages twice for the same act of omission of the defendant.
"ART. 2177. Responsibility for fault or negligence under the preceding article is
entirely separate and distinct from the civil liability arising from negligence under the
Penal Code. But the plaintiff cannot recover damages twice for the same act of
omission of the defendant."
Invoking prescription, appellant claims that the present action is barred by the
Statute of Limitations for the reason that it is an action either upon an injury to the rights of
the plaintiff, or upon a quasi delict, and that according to Article 1146 of the New Civil
Code, such action must be instituted within four years. We agree with the appellee that the
present action is based upon a judgment, namely, that in the criminal case, finding
Hernandez guilty of homicide through reckless imprudence and sentencing him to
indemnify the heirs of the deceased in the sum of P3,000, and, consequently may be
instituted within ten years.
 As regards the other errors assigned by appellant, we find it unnecessary to discuss
and rule upon them.
Finding the decision appealed from to be in accordance with law, the same is
hereby affirmed, with costs.
 (Manalo v. Robles Transportation Co., Inc., G.R. No. L-8171, [August 16, 1956], 99 PHIL
|||

729-733)

People v. Cabuang 217 SCRA 675 (1993) robbery with rape and homecide

[G.R. No. 103292. January 27, 1993.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MODESTO

CABUANG y FLORES, NARDO MATABANG y SALVADOR, JOHN DOE and
RICHARD DOE, defendants-appellants.

SYLLABUS

1. CRIMINAL LAW; CREDIBILITY OF WITNESS; FAILURE OF PROSECUTION WITNESS

TO IDENTIFY THE ACCUSED THE FIRST TIME SHE WAS QUESTIONED BY THE POLICE
DOES NOT ADVERSELY AFFECT HER CREDIBILITY; DELAY IN REVEALING TO THE
POLICE AUTHORITY WHAT A WITNESS KNOWS ABOUT A CRIME DOES NOT BY
ITSELF RENDER THE TESTIMONY UNWORTHY OF BELIEF. — Appellants principally urge
that the trial court had erred in finding that prosecution witness Evelyn de Vera had positively
identified Modesto Cabuang and Nardo Matabang as the assailants of Maria Victoria.
Appellants point to the entry in the Bayambang police blotter found on page 483, Entry No.
4436, Volume IV, Series of 86 (Exhibit "I") which stated that the assailants were "still
unidentified" although the entry was made after prosecution witness Evelyn de Vera was
questioned by the police. Accused accordingly argue that Evelyn de Vera had never identified
the appellants as the assailants of Maria Victoria, who in fact had later to identify them from a
police line-up. We consider this contention bereft or merit. Upon receiving the report that a
dead body was found in Barangay Buenlag I, members of the Bayambang Police Station
immediately proceeded to the reported crime scene on the morning of 15 October 1988. The
police investigator, Pfc. Elegio Lopez, who initially questioned witness De Vera that morning,
noticed that she was in a state of shock. He accordingly chose to defer further questioning
until the afternoon of the same day when Evelyn had calmed down sufficiently to be able to
give a sworn statement to the police. Thus, there was the initial report prepared and recorded
in the police blotter at around 11 o'clock in the morning, stating that the assailants were still
unidentified; there was, upon the other hand, Evelyn de Vera's sworn statement made and
completed in the afternoon of the same day, where she revealed the identities of the men she
had seen the night before and who she believed were responsible for the rape and death of
her cousin Maria Victoria. The failure of Evelyn to specify the accused-appellants as the
doers of the horrific rape, killing and robbery of Maria Victoria the first time she was
questioned by the police, does not adversely affect her credibility. It is firmly settled case
law that the delay of a witness in revealing to the police authority what he or she may know
about a crime does not, by itself, render the witness' testimony unworthy of belief.
2. RULINGS IN PEOPLE V. SAVELLANO AND PEOPLE V. DE GUZMAN APPLY
SQUARELY TO THE CASE AT BAR; REASONS. — The above rulings in
People v. Savellano and People v. de Guzman apply squarely to the case at bar. Evelyn de
Vera was clearly traumatized, in a state of shock, upon finding out that her cousin who had
been with her just the night before, was brutally raped and killed. She could not then and
there clearly and calmly recount the events she had experienced and witnessed that dreadful
night in a logical sequence. The few hours delay which lapsed from the time the entry in the
police blotter was made, up to the time Evelyn gave her sworn statement on the afternoon of
the same day, did not have the effect of eroding the intrinsic credibility and strength of that
statement. It may be noted that significantly longer delays in informing investigating officers of
what witnesses had seen, have been held understandable by this Court and as not, in
themselves, destructive of the otherwise credible character of such testimony, especially
where the witnesses' fear of possible retaliation from the accused could not be dismissed as
merely fanciful.
3. ENTRIES IN A POLICE BLOTTER ARE NOT CONCLUSIVE PROOF OF TRUTH OF
SUCH ENTRIES; THEY ARE ONLY PRIMA FACIE EVIDENCE OF THE FACTS SET OUT
THEREIN. — Entries in a police blotter though regularly done in the course of performance of
official duty, are not conclusive proof of the truth of such entries, In People v. Santito, Jr., this
Court held that entries in official records like a police blotter are only prima facie evidence of
the facts therein set out, since the entries in the police blotter could well be incomplete or
inaccurate. Testimony given in open court during the trial is commonly much more lengthy
and detailed than the brief entries made in the police blotter and the trial court cannot base its
findings on a police report merely, but must necessarily consider all other evidence gathered
in the course of the police investigation and presented in court. In the case at bar, we
conclude that Prosecution witness Evelyn de Vera did positively and clearly identify Modesto
Cabuang and Nardo Matabang as among those who had raped and killed and robbed the
hapless Maria Victoria Parana.
4. DEFENSE OF ALIBI CANNOT UNLESS THE ACCUSED IS ABLE TO PROVE THAT HE
WAS AT SOME OTHER PLACE DURING THE COMMISSION OF THE CRIME AND THAT
IT WAS IMPOSSIBLE FOR HIM TO HAVE BEEN AT THE SCENE OF THE CRIME AT THE
TIME OF ITS COMMISSION; POSITIVE IDENTIFICATION MUST PREVAIL OVER SIMPLE
DENIALS AND ALIBIS; IT IS PRESUMED THAT THE PROSECUTION WITNESS IS NOT
MOVED BY IMPROPER MOTIVES IN THE ABSENCE OF EVIDENCE TO THE CONTRARY.
— The firmly settled doctrine is that the defense of alibi cannot prosper, unless the accused is
able to prove that he was at some other place during the commission of the crime and that it
was impossible for him to have been at the scene of the crime at the time of its commission.
Clearly, neither of the appellants was able to do so in the case at bar. Modesto Cabuang was
supposedly attending the wake held in the same barangay where Maria Victoria was ravished
and killed and robbed. Nardo Matabang, upon the other hand, was allegedly at home in a
town no more than an hour or so by bus from Bayambang. It is equally settled doctrine that
positive identification must prevail over simple denials and unacceptable alibis. Appellants
have not even tried to suggest that Evelyn de Vera might have had some ill motive to testify
falsely against them. To the contrary, she had all the reasons to speak the truth with respect
to her cousin's ravishers and killers. When there is no evidence to indicate that the principal
witness for the prosecution was moved by improper motives, the presumption is that such
witness was not so moved, and that her testimony is entitled to full faith and credit.
5. CIRCUMSTANTIAL EVIDENCE CAN BE SUFFICIENT TO SUPPORT A CONVICTION OF
GUILT BEYOND REASONABLE DOUBT. — The evidence presented by the prosecution
witness was circumstantial in nature. But circumstantial evidence can be and often is entirely
sufficient to support a conviction, where he multiple circumstances are proven and are
consistent with the hypothesis that the accused is guilty and at the same time inconsistent
with the hypothesis that the accused is innocent, as well as incompatible with every rational
hypothesis except that of guilt on the part of the accused. In brief, the circumstances must
produce conviction of guilt beyond reasonable doubt. In the case at bar, the circumstances
forming an unbroken chain and leading to the conviction beyond reasonable doubt that
Cabuang and Matabang, among others, were guilty of robbery with rape and homicide, were
the following: 1. While Evelyn de Vera and Maria Victoria Parana were walking home through
an uninhabited place at about 11 o'clock at night on 14 October 1988, accused Cabuang and
Matabang suddenly appeared from the surrounding rice fields, Cabuang grabbed Maria
Victoria and covered her mouth. Evelyn ran away because she became terribly frightened and
Matabang followed in pursuit. Matabang lost sight of Evelyn along the road. 2. From her
hiding place in the front yard of a house along the road, Evelyn saw Maria Victoria pass by in
a tricycle with the accused Canuang, Matabang and two (2) other men and heard Maria
Victoria crying and pleading for help. Evelyn clearly recognized Cabuang and Matabang, but
not the other two (2). 3. Early the next morning, on 15 October 1988, the body of Maria
Victoria was found in the barangay traversed by the road on which Maria Victoria were
walking the night before. 4. The claims of alibi by Canuang and Matabang were not
successfully established. Cabuang acknowledged that he was in the same barangay where
Maria Victoria had been assaulted and killed, while Matabang asserted that he was in his
house in Dagupan City which was no more than an hour or so by bus from the scene of the
crime. Neither Cabuang nor Matabang offered and resented independent and reliable
corroboration of their presence far away from the scene of the crime at the time of occurrence
of the crime. The trial court found the circumstances, considered together, as adequate to
prove appellants' guilt beyond reasonable doubt. This Court agrees, having been unable to
find any reason for overturning this conclusion of the trial court.

DECISION

FELICIANO, J  :p

Accused Modesto Cabuang and Nardo Matabang appeal from the judgment of the Regional
Trial Court, Branch 57 of San Carlos City, Pangasinan finding them guilty of robbery with rape
and homicide, and imposing upon each of them a prison term of reclusion perpetua. They
were also ordered to pay, jointly and severally, to the mother of the victim an indemnity of
P50,000.00; the sum of P400.00 as the amount of P10,000.00 as moral damages; the sum of
P46,495.00 as funeral expenses; and the costs of the suit.
The facts as found by the trial court may be summarized as follows:
On 14 October 1988, at around 11 o'clock at night, Evelyn De Vera and her cousin Maria
Victoria Parana, both 19 years of age, having come from a house of a common friend, one
Mia Colisao, were walking home along an uninhabited place in Barangay Buenlag I of
Bayambang, Pangasinan. Suddenly, from out of the rice paddies along the road, Modesto
Cabuang emerged with a flashlight and asked them where they were going. Evelyn became
very anxious and started walking faster. Upon the other hand, Maria Victoria started talking to
Modesto. When Evelyn was about ten (10) feet ahead of the two, she looked back and saw
Modesto turn and shift his flashlight to the rear, illuminating the figure of Nardo Matabang,
who had also suddenly appeared behind them from the rice fields alongside the road.
Modesto then put off and pocketed his flashlight, grabbed Maria Victoria and covered her
mouth. Nardo Matabang in turn pursued Evelyn, who had started to run away. She ran and
ran until she entered the yard of a house along the road and hid in the shadows of the plants
and shrubs inside the yard where she could not be seen by Nardo, but from where she could
see him. After some time, having lost sight of Evelyn, Nardo went back and rejoined Modesto.
 
Sometime later, Evelyn from her hiding place saw a tricycle pass by with her cousin Maria
Victoria, and Modesto Cabuang, Nardo Matabang, the tricycle driver and another person who
was seated at the back of the tricycle. Evelyn heard her cousin crying and pleading for help.
After the tricycle had passed by, Evelyn emerged from her hiding place and proceeded to the
house of her sister. There she was scolded by her sister for coming home late. Evelyn,
confused by the scolding and frightened by what she had just seen and experienced, was not
able to tell her sister what had just occurred. She stayed in the sala and there tried to go to
sleep, without success.
The following morning, Maria Victoria was found dead along the road, naked, with stab
wounds in different parts of her body including the pubic area. In the course of their
investigation, the police interrogated Evelyn de Vera. Evelyn executed a sworn statement
where she identified two (2) of the suspects as Modesto Cabuang and Nardo Matabang. She
stated that she could readily identify them because the latter were her barangay mates and
hence knew them well. Moreover, when Modesto Cabuang suddenly emerged from the rice
paddies, he was only about two (2) meters away from her. Nardo Matabang was clearly seen
by Evelyn from behind the plants in the yard where she crouched in concealment, there being
lights illuminating the road in front of the yard. 1 Later, Evelyn was again able positively to
identify and point out Cabuang and Matabang from a police line-up. However, the two (2)
other suspects, i.e., the tricycle driver and the person who rode at the rear of the tricycle
remained unknown and at large.  cdphil

On 17 October 1988, the third day after the tragic night, the police found a book ("Laboratory
Manual in Organic Chemistry") and some articles of feminine underwear and other personal
belongings of a woman scattered some 50 to 100 meters away from where they had first
found Maria Victoria's body. Evelyn viewed these belongings and identified them as owned by
her cousin Maria Victoria who was a student at the Philippine Women's University (PWU).
Examination of the personal belongings so found also showed that cash in the amount of
P400.00, in Maria Victoria's possession the night before, was missing.
Dr. Nario Ferrer, a physician resident in Bayambang, Pangasinan, conducted an autopsy on
the body of the victim. He rendered an autopsy report which show the following findings:
"'Incised wound, 4.0 cm superficial, anterolateral aspect neck (R); 'Contusion
hematoma, 1 x 1 cm. mid clavicular area (L);
'Stab wound, 1.5 cm. 5th ICS, parasternal line (L), penetrating, perforating the heart at
the ventricular level, lacerating the lingular part of the (L) lung;
'Hematoma, mediastinum;
'Hemopericardium, 300 cc;
'Hemothorax (L) - 2 liters;
'Stab wound, 1.5 cm. 7th ICS, para-vertebral line (R), penetrating and lacerating the
posterior basal part of (R) lung;
'Hemothorax (R) 1 liter;
'Incised wound, 3.0 cm. 2 points, parallel to each other, mons pubis;
'Incised wound, 3.0 cm. posterior fourchet of the vagina, transecting the perineum
down to the anal canal;
'Vagina with blood clots with fecaloid material;
'Hymen — carunculated.'"

The report also noted the stab wounds in the pubic region including the area between the
vagina and the anal canal, as well as the presence of lacerations and spermatozoa in the
victim's vagina, indicating that Maria Victoria had been raped and mutilated. Dr. Ferrer
identified four (4) of the wounds as mortal in character, which wounds were produced by a
sharp edge and a pointed object. The cause of the death was listed as "hypovolemic
shock" resulting from severe decrease in the volume of blood supply, producing death
about six (6) hours before the autopsy. 2

On the basis of the foregoing evidence, and primarily on Evelyn de Vera's sworn statement
which she later repeated in substantially identical terms before the trial court, Modesto
Cabuang and Nardo Matabang were convicted of the crime of robbery with rape and
homicide.
In the present appeal, appellants principally urge that the trial court had erred in finding that
prosecution witness Evelyn de Vera had positively identified Modesto Cabuang and Nardo
Matabang as the assailants of Maria Victoria. Appellants point to the entry in the
Bayambang police blotter found on page 483, Entry No. 4436, Volume IV, Series of 86
(Exhibit "I") which stated that the assailants were "still unidentified" although the entry was
made after prosecution witness Evelyn de Vera was questioned by the police. Accused
accordingly argue that Evelyn de Vera had never identified the appellants as the assailants of
Maria Victoria, who in fact had later to identify them from a police line-up.
We consider this contention bereft or merit. Upon receiving the report that a dead body was
found in Barangay Buenlag I, members of the Bayambang Police Station immediately
proceeded to the reported crime scene on the morning of 15 October 1988. The police
investigator, Pfc. Elegio Lopez, who initially questioned witness De Vera that morning, noticed
that she was in a state of shock. 3 He accordingly chose to defer further questioning
until the afternoon of the same day when Evelyn had calmed down sufficiently to be
able to give a sworn statement to the police. Thus, there was the initial report prepared
and recorded in the police blotter 4 at around 11 o'clock in the morning, stating that the
assailants were still unidentified; there was, upon the other hand, Evelyn de Vera's sworn
statement 5 made and completed in the afternoon of the same day, where she revealed the
identities of the men she had seen the night before and who she believed were
responsible for the rape and death of her cousin Maria Victoria.
The failure of Evelyn to specify the accused-appellants as the doers of the horrific rape, killing
and robbery of Maria Victoria the first time she was questioned by the police, does not
adversely affect her credibility. It is firmly settled case law that the delay of a witness in
revealing to the police authority what he or she may know about a crime does not, by
itself, render the witness' testimony unworthy of belief. 6
In People v. Savellano, 7 appellant Savellano argued that since the complaining witness had
reported to the police authorities the matter of her husband's death and identified the
Savellanos'' as her husband's killers only after the lapse of two (2) days, rather than
immediately when she had the very first opportunity to do so while the police was conducting
an "on the spot" investigation, the credibility of her testimony was greatly weakened. This
Court rejected this argument stating that:  cdphil

"It is quite understandable when the witnesses do not immediately report the identity
of the offender after a startling occurrence more especially when they are related to
the victim as they just had a traumatic experience . . . [A] delay of about a few hours
before the identification of the offender by the prosecution witnesses does not thereby
affect their credibility." 8
In People v. de Guzman, 9 the accused-appellant sought to capitalize upon the fact that the
prosecution witness did not volunteer the information covered by her testimony to the
policeman who had investigated the crime immediately after the murder was committed.
Disposing of this contention, this Court ruled that:
"The initial reluctance of witnesses to volunteer information about a criminal case and
unwillingness to be involved in criminal investigations due to fear of reprisal [are]
common occurrence[s] and [have] been judicially declared as not affecting their
credibility, . . .
xxx xxx xxx
The testimony of Gloria should be given full weight and credit. Her failure to give a
sworn statement to the police should not be taken against her. There is no law which
requires that the testimony of a prospective witness should first be reduced into writing
in order that her declaration in Court at a later date may be believed by the Judge." 10
The above rulings apply squarely to the case at bar. Evelyn de Vera was clearly
traumatized, in a state of shock, upon finding out that her cousin who had been with
her just the night before, was brutally raped and killed. She could not then and there
clearly and calmly recount the events she had experienced and witnessed that dreadful night
in a logical sequence. The few hours delay which lapsed from the time the entry in the police
blotter was made, up to the time Evelyn gave her sworn statement on the afternoon of the
same day, did not have the effect of eroding the intrinsic credibility and strength of that
statement. It may be noted that significantly longer delays in informing investigating officers of
what witnesses had seen, have been held understandable by this Court and as not, in
themselves, destructive of the otherwise credible character of such testimony, especially
where the witnesses' fear of possible retaliation from the accused could not be dismissed as
merely fanciful. 11
It remains only to note that entries in a police blotter though regularly done in the
course of performance of official duty, are not conclusive proof of the truth of such
entries, In People v. Santito, Jr., 12 this Court held that entries in official records like a
police blotter are only prima facie evidence of the facts therein set out, since the
entries in the police blotter could well be incomplete or inaccurate. Testimony given in
open court during the trial is commonly much more lengthy and detailed than the brief
entries made in the police blotter and the trial court cannot base its findings on a
police report merely, but must necessarily consider all other evidence gathered in the
course of the police investigation and presented in court. 13 In the case at bar, we
conclude that Prosecution witness Evelyn de Vera did positively and clearly identify Modesto
Cabuang and Nardo Matabang as among those who had raped and killed and robbed the
hapless Maria Victoria Parana.
 
Appellants also set up the defenses of denial and alibi. Cabuang denied having and anything
to do with the rape and killing of Maria Victoria. He said that he was at the wake of the
daughter of one Ben Juinio of Barangay Buenlag I, the whole night of 14 October 1988 and
until 6:30 in the morning of the following day. Cabuang was, however, unable to offer any
details in elaboration or corroboration of his claim of alibi. Matabang, for his part, testified that
on 14 October 1988, he was in his house in Karanglaan, Dagupan City, with his wife, his
sister-in-law, and his child and had never left his house. He testified further that he left his
home for Bayambang only on the next day, 15 October 1988. His testimony was, however,
found by the trial court to be flawed by discrepancies and inconsistencies and by lack of
sufficient corroboration. LLpr

The firmly settled doctrine is that the defense of alibi cannot prosper, unless the accused is
able to prove that he was at some other place during the commission of the crime and that it
was impossible for him to have been at the scene of the crime at the time of its
commission. 14 Clearly, neither of the appellants was able to do so in the case at bar.
Modesto Cabuang was supposedly attending the wake held in the same barangay where
Maria Victoria was ravished and killed and robbed. Nardo Matabang, upon the other hand,
was allegedly at home in a town no more than an hour or so by bus from Bayambang.
It is equally settled doctrine that positive identification must prevail over simple denials
and unacceptable alibis. Appellants have not even tried to suggest that Evelyn de Vera
might have had some ill motive to testify falsely against them. To the contrary, she had all the
reasons to speak the truth with respect to her cousin's ravishers and killers. When there is no
evidence to indicate that the principal witness for the prosecution was moved by
improper motives, the presumption is that such witness was not so moved, and that
her testimony is entitled to full faith and credit. 15
It is, of course, true that Evelyn de Vera did not witness the actual sexual assault and slaying
of Maria Victoria nor the taking of the P400.00 missing from Maria Victoria's belongings. The
evidence presented by the prosecution witness was circumstantial in nature. But
circumstantial evidence can be and often is entirely sufficient to support a conviction,
where he multiple circumstances are proven and are consistent with the hypothesis
that the accused is guilty and at the same time inconsistent with the hypothesis that
the accused is innocent, as well as incompatible with every rational hypothesis except
that of guilt on the part of the accused. 16 In brief, the circumstances must produce
conviction of guilt beyond reasonable doubt. 17
In the case at bar, the circumstances forming an unbroken chain and leading to the conviction
beyond reasonable doubt that Cabuang and Matabang, among others, were guilty of robbery
with rape and homicide, were the following:
1. While Evelyn de Vera and Maria Victoria Parana were walking home through an
uninhabited place at about 11 o'clock at night on 14 October 1988, accused Cabuang
and Matabang suddenly appeared from the surrounding rice fields, Cabuang grabbed
Maria Victoria and covered her mouth. Evelyn ran away because she became terribly
frightened and Matabang followed in pursuit. Matabang lost sight of Evelyn along the
road.
2. From her hiding place in the front yard of a house along the road, Evelyn saw Maria
Victoria pass by in a tricycle with the accused Canuang, Matabang and two (2) other
 men and heard Maria Victoria crying and pleading for help. Evelyn clearly recognized
Cabuang and Matabang, but not the other two (2).
3. Early the next morning, on 15 October 1988, the body of Maria Victoria was found
in the barangay traversed by the road on which Maria Victoria were walking the night
before.
4. The claims of alibi by Canuang and Matabang were not successfully established.
Cabuang acknowledged that he was in the same barangay where Maria Victoria had
been assaulted and killed, while Matabang asserted that he was in his house in
Dagupan City which was no more than an hour or so by bus from the scene of the
crime. Neither Cabuang nor Matabang offered and resented independent and reliable
corroboration of their presence far away from the scene of the crime at the time of
occurrence of the crime. prLL

The trial court found the circumstances, considered together, as adequate to prove
appellants' guilt beyond reasonable doubt. This Court agrees, having been unable to find any
reason for overturning this conclusion of the trial court.
WHEREFORE, the decision of the trial court finding the accused-appellants Modesto
Cabuang and Nardo Matabang guilty beyond reasonable doubt of robbery with rape and
homicide and sentencing the accused to reclusion perpetua is hereby AFFIRMED in
toto except that the indemnity is hereby INCREASED from P50,000.00 to P100,000.00
considering that Maria Victoria Parana was not only raped but also brutally mutilated and
killed by the accused. Costs against appellants.
SO ORDERED.

|||  (People v. Cabuang y Flores, G.R. No. 103292, [January 27, 1993], 291 PHIL 708-720)

People v. Gabriel G. R. No. 107735 (Feb. 1, 1996) murder

[G.R. No. 107735. February 1, 1996.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO SAN

GABRIEL Y ORTIZ, defendant-appellant.

SYLLABUS

1. REMEDIAL LAW; FINDINGS OF FACT OF THE TRIAL COURT; ABSENT ANY

ABUSE OF DISCRETION, FINDINGS OF FACT OF THE TRIAL COURT ARE ACCORDED
GREATEST RESPECT BY THE APPELLATE COURT. — We sustain the conviction of the
accused for murder. It is settled that findings of fact of the trial court are accorded greatest
respect by the appellate court absent any abuse of discretion, and none is perceivable in the
case at bench; hence we affirm the factual findings of the trial court.
2. ID.; CREDIBILITY OF WITNESS; ASSERTION OF THE ACCUSED DOES NOT
DESERVE ANY EVIDENTIARY VALUE WHEN WEIGHED AGAINST THE POSITIVE
ASSERTION OF THE PROSECUTION WITNESSES; REASON. — The accused contends
that the testimonies of the prosecution witnesses are incredible and conflicting. We however
find otherwise. Gonzales and Ochobillo, as observed by the trial court, testified in a direct and
candid manner. No evil motive is attributed to them as to testify falsely against the accused.
That Gonzales harbored a grudge against the accused because he owed her some money,
and even enticed her customers into patronizing another carinderia, can hardly be believed.
We are not convinced that Brenda Gonzales would testify against accused-appellant for a
crime so grave simply because he owed her a measly sum of P300.00. That he enticed the
customers of Gonzales into patronizing another carinderia is belied by the fact that on the
night of the incident he was, as he claimed, eating at the carinderia of Gonzales. If there be
any testimony that should be considered incredible and illogical it must be that of the
accused. His assertion that "Mando" stabbed the victim should not receive any evidentiary
value when weighed against the positive assertion of the prosecution witnesses that the
accused was the assailant of Jaime Tonog. Quite interestingly, the accused did not offer any
information regarding the person and circumstances of "Mando." Up to this date "Mando"
remains a myth. Not a single witness was presented by the defense to prove who "Mando"
was, nor even a hint of his personal circumstances. During the entire proceedings in the court
below "Mando" was never mentioned by the prosecution witnesses. Nobody ever implicated
him except the accused. In fact, there should have been no difficulty procuring witnesses to
testify on the part of the accused as the incident was viewed openly by a multitude of
bystanders. His failure to present any witness pointing to "Mando" as the perpetrator of the
crime convinces us that "Mando" in fact existed only as a figment of the mind. The fact that
the witnesses did not immediately report the incident to the police does not necessarily
discredit them. After all, reports were made albeit by different persons. The accused banks on
the apparent inconsistency as to why Gonzales failed to give immediately her account of the
killing to the authorities. But the discrepancy is so minor that it cannot undermine her
credibility nor detract from the truth that she personally witnessed the incident and positively
identified the accused. LGM

3. ID.; ENTRIES IN OFFICIAL RECORDS TO BE ADMISSIBLE IN EVIDENCE;

REQUISITES. — Entries in official records made in the performance of his duty by a public
officer or by a person in the performance of a duty specially enjoined by law are prima
facie evidence of the facts therein stated. But to be admissible in evidence three (3) requisites
must concur: (a) The entry was made by a police officer or by another person specially
enjoined by law to do so; (b) It was made by the public officer in the performance of his duties
or by such other person in the performance of a duty specially enjoined by law; and, (c) The
public officer or other person had sufficient knowledge of the facts by him stated, which must
have been acquired by him personally or through official information.
4. ID.; ADVANCE INFORMATION SHEET; ENTRIES IN OFFICIAL RECORDS, SUCH
AS THE ADVANCE INFORMATION SHEET, CANNOT DEFEAT THE POSITIVE AND
CANDID TESTIMONIES OF WITNESSES SINCE THEY ARE ONLY PRIMA
FACIE EVIDENCE OF THE FACTS STATED THEREIN. — The accused leans heavily on
the Advance Information Sheet prepared by Pat. Steve Casimiro which did not mention him at
all and named only "Ramon Doe" as the principal suspect. Unfortunately this cannot defeat
the positive and candid testimonies of the prosecution witnesses. Entries in official records, as
in the case of a police blotter, are only prima facie evidence of the facts therein stated. They
are not conclusive. The entry in the police blotter is not necessarily entitled to full credit for it
could be incomplete and inaccurate, sometimes from either partial suggestions or for want of
suggestions or inquiries, without the aid of which the witness may be unable to recall the
connected collateral circumstances necessary for the correction of the first suggestion of his
memory and for his accurate recollection of all that pertain to the subject. It is understandable
that the testimony during the trial would be more lengthy and detailed than the matters stated
in the police blotter.
5. ID.; THE ADVANCE INFORMATION SHEET, NOT BEING AN EXCEPTION TO THE
HEARSAY RULE, INADMISSIBLE; REASON. — The Advance Information Sheet does not
constitute an exception to the hearsay rule, hence, inadmissible. The public officer who
prepared the document had no sufficient and personal knowledge of the stabbing incident.
Any information possessed by him was acquired from Camba which therefore could not be
categorized as official information because in order to be classified as such the person who
made the statements not only must have personal knowledge of the facts stated but must
have the duty to give such statements for the record. In the case of Camba, he was not
legally so obliged to give such statements.
6. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCE; TREACHERY; CORRECTLY
CONSIDERED IN THIS CASE; CONVERSELY, EVIDENT PREMEDITATION SHOULD
HAVE BEEN DISREGARDED. — The court a quo properly considered the aggravating
circumstance of treachery in convicting the accused of murder. Treachery is present when the
offender commits any of the crimes against person, employing means, methods or forms in
the execution thereof which tend directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party might make. Alevosia or treachery
presumes an attack that is deliberate and unexpected. It is true that in the case at bench the
attack was preceded by a fistfight. It was however established that they were already pacified
by onlookers when the accused and Ramon returned with bladed weapons. Both approached
the victim and circled him surreptitiously. The attack was sudden and simultaneous that the
victim was never given a chance to defend himself. As we have held in People v.
Balisteros, where a victim was totally unprepared for the unexpected attack from behind and
had no weapon to resist it, the stabbing could not but be considered as treacherous. The
evidence proved that the victim was caught unaware by the sudden assault. No weapon was
found, nor even intimated to be, in his possession. Conversely the court a quo should have
disregarded evident premeditation. Evident premeditation requires a showing that the
execution of the criminal act was preceded by cool thought and reflection upon the resolution
to carry out the criminal intent during a space of time sufficient to arrive at a calm judgment.
Evidence for the prosecution showed that after the fight was broken up the accused and
"Ramon Doe" proceeded towards the highway. They returned only after a lapse of
approximately five (5) minutes. From the foregoing we cannot conclude that the accused had
sufficient time within which to meditate on the consequences of his acts.

DECISION

BELLOSILLO, J  : p

RICARDO O. SAN GABRIEL was charged with murder in an Information alleging that
on 26 November 1989, armed with a bladed weapon, in conspiracy with "Ramon Doe," with
treachery, evident premeditation and intent to kill, he assaulted and stabbed to death Jaime
A. Tonog. 1
The trial court convicted the accused as charged and sentenced him "to life
imprisonment and to pay the heirs of Jaime Tonog the sum of P30,000, plus costs." 2
The accused is now before us on appeal.
The evidence shows that at around seven o'clock in the evening of 26 November 1989,
within the vicinity of Pier 14 at North Harbor along Marcos Road, Manila, a fistfight ensued
between Jaime Tonog on one hand and the accused Ricardo San Gabriel together with
"Ramon Doe" on the other. The fight was eventually broken up when onlookers pacified the
protagonists. Ricardo and Ramon then hastened towards Marcos Road but in no time were
back with bladed weapons. They approached Tonog surreptitiously, surrounded him and
simultaneously stabbed him in the stomach and at the back, after which the assailants ran
towards the highway leaving Tonog behind on the ground. He was then brought to Mary
Johnston Hospital where he was pronounced dead on arrival.  RHLY

Dr. Marcial G. Cenido, Medico-Legal Officer of the Western Police District, autopsied
the cadaver of the victim and reported that it sustained two (2) penetrating stab wounds each
caused by a single-bladed instrument. He opined that both wounds were fatal. 3
The accused has a different version. He testified that he saw Tonog drunk; Tonog even
attempted to box him but he parried his blow; Tonog continued walking but when he chanced
upon Ramon he suddenly and without provocation boxed and kicked Ramon; Ramon fought
back but was subdued by his bigger assailant so the former ran towards the highway; when
Tonog met a certain "Mando" he boxed the latter who however fought back despite his
(accused) warning not to; at this moment he saw Ramon return with a bolo on hand; he
warned Ramon not to fight but his advice went unheeded; instead, with bolo on hand Ramon
struck Tonog on the belly; when "Mando" saw what happened he ("Mando") pulled out his
knife and also stabbed Tonog at the back; Ramon and "Mando" then fled towards the
highway.
 The accused further claimed that he even stayed with the victim and called out the
latter's companions to bring him to the hospital; that prosecution witness Brenda Gonzales
only arrived at the crime scene after Tonog was already taken to the hospital; that Brenda
even inquired from him what happened and then prodded him to testify; that his refusal
coupled with the fact that he owed Gonzales some money earned him the ire of the latter and
that was why he was charged for the death of Tonog.
Accused-appellant claims in this appeal that the trial court erred: (a) in giving credence
to the testimonies of prosecution witnesses Brenda Gonzales and Pio Ochobillo, and for
discrediting his; (b) in finding that the killing was attended with evident premeditation; (c) in
ruling that he committed treachery and, (d) in convicting him of murder. 4
We sustain the conviction of the accused for murder. It is settled that findings of fact of
the trial court are accorded greatest respect by the appellate court absent any abuse of
discretion, 5 and none is perceivable in the case at bench; hence we affirm the factual findings
of the trial court.
The accused contends that the testimonies of the prosecution witnesses are incredible
and conflicting. We however find otherwise. Gonzales and Ochobillo, as observed by the trial
court, testified in a direct and candid manner. No evil motive is attributed to them as to testify
falsely against the accused. That Gonzales harbored a grudge against the accused because
he owed her some money, and even enticed her customers into patronizing
another carinderia, can hardly be believed. We are not convinced that Brenda Gonzales
would testify against accused-appellant for a crime so grave simply because he owed her a
measly sum of P300.00. That he enticed the customers of Gonzales into patronizing
another carinderia is belied by the fact that on the night of the incident he was, as he claimed,
eating at the carinderia of Gonzales. If there be any testimony that should be considered
incredible and illogical it must be that of the accused. His assertion that "Mando" stabbed the
victim should not receive any evidentiary value when weighed against the positive assertion
of the prosecution witnesses that the accused was the assailant of Jaime Tonog.
Quite interestingly, the accused did not offer any information regarding the person and
circumstances of "Mando." Up to this date "Mando" remains a myth. Not a single witness was
presented by the defense to prove who "Mando" was, nor even a hint of his personal
circumstances. During the entire proceedings in the court below "Mando" was never
mentioned by the prosecution witnesses. Nobody ever implicated him except the accused. In
fact, there should have been no difficulty procuring witnesses to testify on the part of the
accused as the incident was viewed openly by a multitude of bystanders. His failure to
present any witness pointing to "Mando" as the perpetrator of the crime convinces us that
"Mando" in fact existed only as a figment of the mind.
The accused also asserts that Gonzales arrived at the crime scene only after the victim
was brought to the hospital and that she even inquired from him about what happened.
Again we are not persuaded. The statement contradicts the earlier version of the
accused that Gonzales was prejudiced against him as he owed her some money. For,
granting that Gonzales had a grudge against him it was not likely that she would inquire from
him about the incident as there were other persons then present who could shed light on the
startling occurrence.
Equally dubious is the avowal of the accused that Gonzales arrived at the crime scene
only after the victim was rushed to the hospital considering that the incident took place just in
front of her store. Besides, this claim was easily demolished by Gonzales' detailed account of
the fight.
The fact that the witnesses did not immediately report the incident to the police does
not necessarily discredit them. After all, reports were made albeit by different persons. The
accused banks on the apparent inconsistency as to why Gonzales failed to give immediately
her account of the killing to the authorities. But the discrepancy is so minor that it cannot
undermine her credibility nor detract from the truth that she personally witnessed the incident
and positively identified the accused.
 The accused leans heavily on the Advance Information Sheet  6 prepared by Pat. Steve
Casimiro which did not mention him at all and named only "Ramon Doe" as the principal
suspect. Unfortunately this cannot defeat the positive and candid testimonies of the
prosecution witnesses. Entries in official records, as in the case of a police blotter, are
only prima facie evidence of the facts therein stated. They are not conclusive. The entry in
the police blotter is not necessarily entitled to full credit for it could be incomplete and
inaccurate, sometimes from either partial suggestions or for want of suggestions or inquiries,
without the aid of which the witness may be unable to recall the connected collateral
circumstances necessary for the correction of the first suggestion of his memory and for his
accurate recollection of all that pertain to the subject. It is understandable that the testimony
during the trial would be more lengthy and detailed than the matters stated in the police
blotter. 7 Significantly, the Advance Information Sheet was never formally offered by the
defense during the proceedings in the court below. Hence any reliance by the accused on the
document must fail since the court cannot consider any evidence which has not been formally
offered. 8
Parenthetically, the Advance Information Sheet was prepared by the police officer only
after interviewing Camba, an alleged eyewitness. The accused then could have compelled
the attendance of Camba as a witness. The failure to exert the slightest effort to present
Camba on the part of the accused should militate against his cause.
Entries in official records made in the performance of his duty by a public officer or by a
person in the performance of a duty specially enjoined by law are prima facie evidence of the
facts therein stated. 9 But to be admissible in evidence three (3) requisites must concur: (a)
The entry was made by a police officer or by another person specially enjoined by law to do
so; (b) It was made by the public officer in the performance of his duties or by such other
person in the performance of a duty specially enjoined by law; and, (c) The public officer or
other person had sufficient knowledge of the facts by him stated, which must have been
acquired by him personally or through official information. 10
The Advance Information Sheet does not constitute an exception to the hearsay rule,
hence, inadmissible. The public officer who prepared the document had no sufficient and
personal knowledge of the stabbing incident. Any information possessed by him was acquired
from Camba which therefore could not be categorized as official information because in order
to be classified as such the persons who made the statements not only must have personal
knowledge of the facts stated but must have the duty to give such statements for the
record. 11 In the case of Camba, he was not legally so obliged to give such statements.  Llibris

The accused enumerates discrepancies in the testimonies of the prosecution

witnesses. Thus, according to him, it was testified that the victim was stabbed by the accused
at the back but failed to point out its precise location. The stabbing admittedly occurred at
around seven o'clock in the evening but the Advance Information Sheet reported "6:30 p.m."
One witness testified that the fistfight was only between the victim and "Ramon Doe," while
another reported that it involved the victim, "Ramon Doe" and the accused. Further, it was not
accurately determined whether Ramon and the accused returned to the scene of the crime
within five (5) minutes or after the lapse thereof.
As previously stated, the discrepancies do not militate against the fact firmly
established by the prosecution that Tonog was stabbed at the back by the accused and by
"Ramon Doe" in the abdomen. Any discordance noted is so minor and insignificant that no
further consideration is essential. The most honest witnesses make mistakes sometimes, but
such innocent lapses do not necessarily impair their credibility. The testimony of a witness
must be considered and calibrated in its entirety and not by truncated portions thereof or
isolated passages therein. 12
The presence of the accused in the vicinity even after the commission of the crime
does not in any way extricate him from his dilemma. Certainly, it is no proof of his innocence.
The court a quo properly considered the aggravating circumstance of treachery in
convicting the accused of murder. Treachery is present when the offender commits any of the
crimes against person, employing means, methods or forms in the execution thereof which
tend directly and specially to insure its execution, without risk to himself arising from the
defense which the offended party might make. 13 Alevosia or treachery presumes an attack
that is deliberate and unexpected. There is no treachery when the victim is placed on guard,
as when a heated argument preceded the attack, especially when the victim was standing
face to face with his assailants, and the initial assault could not have been foreseen. 14
It is true that in the case at bench the attack was preceded by a fistfight. It was however
established that they were already pacified by onlookers when the accused and Ramon
returned. Lulled into complacency the victim simply stayed where he was before the fistfight
when after a brief moment the accused together with Ramon returned with bladed weapons.
Both approached the victim and circled him surreptitiously. The attack was sudden and
simultaneous that the victim was never given a chance to defend himself. As we have held
in People v. Balisteros, 15 where a victim was totally unprepared for the unexpected attack
from behind and had no weapon to resist it, the stabbing could not but be considered as
treacherous. The evidence proved that the victim was caught unaware by the sudden assault.
No weapon was found, nor even intimated to be, in his possession.
Conversely the court a quo should have disregarded evident premeditation. Evident
premeditation requires a showing that the execution of the criminal act was preceded by cool
thought and reflection upon the resolution to carry out the criminal intent during a space of
time sufficient to arrive at a calm judgment. 16 Evidence for the prosecution showed that after
the fight was broken up the accused and "Ramon Doe" proceeded towards the highway. They
returned only after a lapse of approximately five (5) minutes. From the foregoing we cannot
conclude that the accused had sufficient time within which to meditate on the consequences
of his acts. Meditation necessitates that it be evident and proven. Be that as it may, treachery
as a qualifying circumstance having attended the killing, the conviction of the accused for
murder still holds.  SDML

WHEREFORE, the decision of the court a quo in Crim. Case No. 90-81744 dated 25
July 1991 convicting accused-appellant RICARDO SAN GABRIEL Y ORTIZ of murder is
AFFIRMED. The penalty of life imprisonment however is MODIFIED to reclusion
perpetua,  17 while the award of P30,000.00 as indemnity is INCREASED to P50,000.00
conformably with existing jurisprudence. Costs against accused-appellant.
SO ORDERED.
Padilla, Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.

|||  (People v. San Gabriel y Ortiz, G.R. No. 107735, [February 1, 1996], 323 PHIL 102-115)

[G.R. No. 96202. April 13, 1999.]

ROSELLA D. CANQUE, petitioner, vs. THE COURT OF APPEALS and

SOCOR CONSTRUCTION CORPORATION, respondents.

SYNOPSIS

This is a petition for review on certiorari filed by Rosella D. Canque seeking the reversal
of the decision of the Court of Appeals affirming the judgment of the Regional Trial Court of
Cebu City ordering petitioner to pay private respondents the principal sum of P299,717.75
plus interest thereon at 12% per annum from September 22, 1986, the date of the filing of the
complaint until fully paid: to pay private respondents the sum of P10,000.00 for reasonable
attorney's fees; to pay the sum of P552.86 for filing fees and to pay the costs of suit. The
Court of Appeals upheld the trial court's reliance on private respondent's Book of Collectible
Accounts on the basis of Rule 130, Section 37 of the Rules of Court. In this petition, Canque
contended that the appellate court in admitting in evidence as entries in the course of
business the entries in private respondent's book of collectible accounts considering that the
person who made said entries actually testified in this case but unfortunately had no
knowledge of said entries. Also, the decision of the respondent court should be reversed as it
has only inadmissible evidence to support.  cdasia

The Supreme Court found the decision of the Court of Appeals proper. The Court ruled
that while the book of collectible accounts was not a competent evidence to show deliveries
and the entries therein are mere hearsay, thus inadmissible in evidence, there were other
competent evidence such as exhibits 'L', 'M', 'N', 'O' to justify and support the private
respondent's money claim against the herein petitioner. Moreover, the Court said that as
petitioner was able to collect the full amount of the project costs from the government, it would
not be proper if she is not made to put what is her just obligation under the contracts.
Accordingly, the appealed decision was affirmed.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; ADMISSION IN EVIDENCE OF ENTRIES IN

CORPORATE BOOKS; REQUIREMENTS. — We agree with the appellate court that the
stipulation in the two contracts requiring the submission of delivery receipts does not preclude
proof of delivery of materials by private respondent in some other way. The question is
whether the entries in the Book of Collectible Accounts (Exh. K) constitute competent
evidence to show such delivery. Private respondent cites Rule 130, §37 of the Rules of Court
and argues that the entries in question constitute "entries in the course of business" sufficient
to prove deliveries made for the government projects. This provision reads: Entries in the
course of business. — Entries made at, or near the time of the transactions to which they
refer, by a person deceased, outside of the Philippines or unable to testify, who was in a
position to know the facts therein stated, may be received as prima facie evidence, if such
person made the entries in his professional capacity or in the performance of duty and in the
ordinary or regular course of business or duty. The admission in evidence of entries
incorporate books requires the satisfaction of the following conditions: 1. The person who
made the entry must be dead, outside the country or unable to testify; 2. The entries were
made at or near the time of the transactions to which they refer; 3. The entrant was in a
position to know the facts stated in the entries; 4. The entries were made in his professional
capacity or in the performance of a duty, whether legal, contractual, moral or religious; and 5.
The entries were made in the ordinary or regular course of business or duty.
2. ID.; ID.; MEMORANDUM USED TO REFRESH THE MEMORY OF A WITNESS
DOES NOT CONSTITUTE EVIDENCE, AND MAY NOT BE ADMITTED AS SUCH. — Be that
as it may, considered as a memorandum, Exh. K does not itself constitute evidence. As
explained in Borromeo v. Court of Appeals: Under the above provision (Rule 132, §10), the
memorandum used to refresh the memory of the witness does not constitute evidence, and
may not be admitted as such, for the simple reason that the witness has just the same to
testify on the basis of refreshed memory. In other words, where the witness has testified
independently of or after his testimony has been refreshed by a memorandum of the events in
dispute, such memorandum is not admissible as corroborative evidence. It is self-evident that
a witness may not be corroborated by any written statement prepared wholly by him. He
cannot be more credible just because he supports his open-court declaration with written
statements of the same facts even if he did prepare them during the occasion in dispute,
unless the proper predicate of his failing memory is priorly laid down. What is more, even
where this requirement has been satisfied, the express injunction of the rule itself is that such
evidence must be received with caution, if only because it is not very difficult to conceive and
fabricate evidence of this nature. This is doubly true when the witness stands to gain
materially or otherwise from the admission of such evidence. . . . As the entries in question
(Exh. K) were not made based on personal knowledge, they could only corroborate Dolores
Aday's testimony that she made the entries as she received the bills.  aIcTCS

DECISION
MENDOZA, J  : p

This petition for review on certiorari seeks a reversal of the decision 1 of the Court of
Appeals affirming the judgment 2 of the Regional Trial Court of Cebu City ordering petitioner
—
. . . to pay [private respondent] the principal sum of Two Hundred Ninety Nine
Thousand Seven Hundred Seventeen Pesos and Seventy Five Centavos
(P299,717.75) plus interest thereon at 12% per annum from September 22, 1986, the
date of the filing of the complaint until fully paid; to pay [private respondent] the further
sum of Ten Thousand Pesos (P10,000.00) for reasonable attorney's fees; to pay the
sum of Five Hundred Fifty Two Pesos and Eighty Six Centavos (P552.86) for filing
fees and to pay the costs of suit. Since [private respondent] withdrew its prayer for an
alias writ of preliminary attachment vis-a-vis the [petitioner's] counterbond, the incident
on the alias writ of preliminary attachment has become moot and academic.  cdasia

The facts are as follows:

Petitioner Rosella D. Canque is a contractor doing business under the name and style
RDC Construction. At the time material to this case, she had contracts with the government
for (a) the restoration of Cebu-Toledo wharf road; (b) the asphalting of Lutopan access road;
and (c) the asphalting of Babag road in Lapulapu City. 3 In connection with these projects,
petitioner entered into two contracts with private respondent Socor Construction Corporation.
The first contract (Exh. A), 4 dated April 26, 1985, provided:
The Sub-Contractor (SOCOR Corporation) and the Contractor (RDC
Construction) for the consideration hereinafter named, hereby agree as follows:
1. SCOPE OF WORK:
a. The Sub-Contractor agrees to perform and execute the Supply, Lay and
Compact Item 310 and Item 302;
b. That Contractor shall provide the labor and materials needed to complete the
project;
c. That the Contractor agrees to pay the Sub-Contractor the price of One
Thousand Pesos only (P1,000.00) per Metric Ton of Item 310 and Eight
Thousand Only (P8,000.00) per Metric Ton of Item 302.
d. That the Contractor shall pay the Sub-Contractor the volume of the supplied
Item based on the actual weight in Metric Tons delivered, laid and
compacted and accepted by the MPWH;
e. The construction will commence upon the acceptance of the offer.
The second contract (Exh. B), 5 dated July 23, 1985, stated:
The Supplier (SOCOR Construction) and the Contractor (RDC Construction) for
the consideration hereinafter named. hereby agree as follows:
1. SCOPE OF WORK:
a. The Supplier agrees to perform and execute the delivery of Item 310 and
Item 302 to the jobsite for the Asphalting of DAS Access Road and the
Front Gate of ACMDC, Toledo City;
b. That the Contractor should inform or give notice to the Supplier two (2) days
before the delivery of such items;
c. That the Contractor shall pay the Supplier the volume of the supplied items
on the actual weight in metric tons delivered and accepted by the MPWH
fifteen (15) days after the submission of the bill;
d. The delivery will commence upon the acceptance of the offer.
On May 28, 1986, private respondent sent petitioner a bill (Exh. C), containing a
revised computation, 6 for P299,717.75, plus interest at the rate of 3% a month, representing
the balance of petitioner's total account of P2,098,400.25 for materials delivered and services
rendered by private respondent under the two contracts. However, petitioner refused to pay
the amount, claiming that private respondent failed to submit the delivery receipts showing the
actual weight in metric tons of the items delivered and the acceptance thereof by the
government. 7
Hence, on September 22, 1986, private respondent brought suit in the Regional Trial
Court of Cebu to recover from petitioner the sum of P299,717.75, plus interest at the rate of
3% a month.  LLphil

In her answer, petitioner admitted the existence of the contracts with private respondent
as well as receipt of the billing (Exh. C), dated May 28, 1986. However, she disputed the
correctness of the bill —
. . . considering that the deliveries of [private respondent] were not signed and
acknowledged by the checkers of [petitioner], the bituminous tack coat it delivered to
[petitioner] consisted of 60% water, and [petitioner] has already paid [private
respondent] about P1,400,000.00 but [private respondent] has not issued any receipt
to [petitioner] for said payments and there is no agreement that [private respondent]
will charge 3% per month interest. 8
Petitioner subsequently amended her answer denying she had entered into sub-
contracts with private respondent. 9
During the trial, private respondent, as plaintiff, presented its vice-president, Sofia O.
Sanchez, and Dolores Aday, its bookkeeper.
Petitioner's evidence consisted of her lone testimony. 10
On June 22, 1988, the trial court rendered its decision ordering petitioner to pay private
respondent the sum of P299,717.75 plus interest at 12,% per annum, and costs. It held
. . . . [B]y analyzing the plaintiff's Book of Collectible Accounts particularly page
17 thereof (Exh. "K") this Court is convinced that the entries (both payments and
billings) recorded thereat are credible. Undeniably, the book contains a detailed
account of SOCOR's commercial transactions with RDC which were entered therein in
the course of business. We cannot therefore disregard the entries recorded under
Exhibit "K" because the fact of their having been made in the course of business
carries with it some degree of trustworthiness. Besides, no proof was ever offered to
demonstrate the irregularity of the said entries thus, there is then no cogent reason for
us to doubt their authenticity. 11
The trial court further ruled that in spite of the fact that the contracts did not have any
stipulation on interest, interest may be awarded in the form of damages under Article 2209 of
the Civil Code. 12
On appeal, the Court of Appeals affirmed. It upheld the trial court's reliance on private
respondent's Book of Collectible Accounts (Exh. K) on the basis of Rule 130, §37 13 of the
Rules of Court.
Hence, this appeal. Petitioner contends that —
I. THE RESPONDENT COURT ERRED IN ADMITTING IN EVIDENCE AS
ENTRIES IN THE COURSE OF BUSINESS THE ENTRIES IN PRIVATE
RESPONDENT'S BOOK OF COLLECTIBLE ACCOUNTS
CONSIDERING THAT THE PERSON WHO MADE SAID ENTRIES
ACTUALLY TESTIFIED IN THIS CASE BUT UNFORTUNATELY HAD
NO PERSONAL KNOWLEDGE OF SAID ENTRIES.
II. THE DECISION OF THE RESPONDENT COURT SHOULD BE REVERSED
AS IT HAS ONLY INADMISSIBLE EVIDE

NCE TO SUPPORT IT.

 First. Petitioner contends that the presentation of the delivery receipts duly accepted by
the then Ministry of Public Works and Highways (MPWH) is required under the contracts
(Exhs. A and B) and is a condition precedent for her payment of the amount claimed by
private respondent. Petitioner argues that the entries in private respondent's Book of
Collectible Accounts (Exh. K) cannot take the place of the delivery receipts and that such
entries are mere hearsay and, thus, inadmissible in evidence. 14
We agree with the appellate court that the stipulation in the two contracts requiring the
submission of delivery receipts does not preclude proof of delivery of materials by private
respondent in some other way. The question is whether the entries in the Book of Collectible
Accounts (Exh. K) constitute competent evidence to show such delivery. Private respondent
cites Rule 130, §37 of the Rules of Court and argues that the entries in question constitute
"entries in the course of business" sufficient to prove deliveries made for the government
projects. This provision reads:
Entries in the course of business. — Entries made at, or near the time of the
transactions to which they refer, by a person deceased, outside of the Philippines or
unable to testify, who was in a position to know the facts therein stated, may be
received as prima facie evidence, if such person made the entries in his professional
capacity or in the performance of duty and in the ordinary or regular course of
business or duty. 15
The admission in evidence of entries in corporate books requires the satisfaction
of the following conditions:
1. The person who made the entry must be dead, outside the country or
unable to testify;
2. The entries were made at or near the time of the transactions to which
they refer;
3. The entrant was in a position to know the facts stated in the entries;
4. The entries were made in his professional capacity or in the
performance of a duty, whether legal, contractual, moral or
religious; and
5. The entries were made in the ordinary or regular course of business or
duty. 16
As petitioner points out, the business entries in question (Exh. K) do not meet the first
and third requisites. Dolores Aday, who made the entries, was presented by private
respondent to testify on the account of RDC Construction. It was in the course of her
testimony that the entries were presented and marked in evidence. There was, therefore,
neither justification nor necessity for the presentation of the entries as the person who made
them was available to testify in court. llcd

Necessity is given as a ground for admitting entries, in that they are the best
available evidence. Said a learned judge: "What a man has actually done and
committed to writing when under obligation to do the act, it being in the course of the
business he has undertaken, and he being dead, there seems to be no danger in
submitting to the consideration of the court." The person who may be called to court to
testify on these entries being dead, there arises the necessity of their admission
without the one who made them being called to court be sworn and subjected to
cross-examination. And this is permissible in order to prevent a failure of justice. 17
Moreover, Aday admitted that she had no personal knowledge of the facts
constituting the entry. She said she made the entries based on the bills given to her.
But she has no knowledge of the truth or falsity of the facts stated in the bills. The
deliveries of the materials stated in the bills were supervised by "an engineer for (such)
functions." 18 The person, therefore, who has personal knowledge of the facts stated in
the entries, i.e., that such deliveries were made in the amounts and on the dates stated,
was the company's project engineer. The entries made by Aday show only that the billings
had been submitted to her by the engineer and that she faithfully recorded the amounts stated
therein in the books of account. Whether or not the bills given to Aday correctly reflected the
deliveries made in the amounts and on the dates indicated was a fact that could be
established by the project engineer alone who, however, was not presented during trial.
The rule is stated by former Chief Justice Moran, thus:
[W]hen the witness had no personal knowledge of the facts entered by
him, and the person who gave him the information is individually known and
may testify as to the facts stated in the entry which is not part of a system of
entries where scores of employees have intervened, such entry is not
admissible without the testimony of the informer. 19
Second. It is nonetheless argued by private respondent that although the entries
cannot be considered an exception to the hearsay rule, they may be admitted under Rule
132, §10 20 of the Rules of Court which provides:
SEC. 10. When witness may refer to memorandum. — A witness may be
allowed to refresh his memory respecting a fact, by anything written by himself or
under his direction at the time when the fact occurred, or immediately thereafter, or at
any other time when the fact was fresh in his memory and he knew that the same was
correctly stated in the writing; but in such case the writing must be produced and may
be inspected by the adverse party, who may, if he chooses, cross-examine the
witness upon it, and may read it in evidence. So, also, a witness may testify from such
a writing, though he retain no recollection of the particular facts, if he is able to swear
that the writing correctly stated the transaction when made; but such evidence must
be received with caution.
On the other hand, petitioner contends that evidence which is inadmissible for the
purpose for which it was offered cannot be admitted for another purpose. She cites the
following from Chief Justice Moran's commentaries:
The purpose for which the evidence is offered must be specified. Where the
offer is general, and the evidence is admissible for one purpose and inadmissible for
another, the evidence should be rejected. Likewise, where the offer is made for two or
more purposes and the evidence is incompetent for one of them, the evidence should
be excluded. The reason for the rule is that "it is the duty of a party to select the
competent from the incompetent in offering testimony, and he cannot impose this duty
upon the trial court." Where the evidence is inadmissible for the purpose stated in the
offer, it must be rejected, though the same may be admissible for another purpose.
The rule is stated thus: "If a party . . . opens the particular view with which he offers
any part of his evidence, or states the object to be attained by it, he precludes himself
from insisting on its operation in any other direction, or for any other object; and the
reason is, that the opposite party is prevented from objecting to its competency in any
view different from the one proposed. 21
It should be noted, however, that Exh. K is not really being presented for another
purpose. Private respondent's counsel offered it for the purpose of showing the amount
of petitioner's indebtedness. He said:
Exhibit "K," your Honor — faithful reproduction of page (17) of the book on
Collectible Accounts of the plaintiff, reflecting the principal indebtedness of defendant
in the amount of Two hundred ninety-nine thousand seven hundred seventeen pesos
and seventy-five centavos (P299,717.75) and reflecting as well the accumulated
interest of three percent (3%) monthly compounded such that as of December 11,
1987, the amount collectible from the defendant by the plaintiff is Six hundred sixteen
thousand four hundred thirty-five pesos and seventy-two centavos (P616,435.72); 22

This is also the purpose for which its admission is sought as a memorandum to refresh
the memory of Dolores Aday as a witness. In other words, it is the nature of the
evidence that is changed, not the purpose for which it is offered.  cdlex

Be that as it may, considered as a memorandum, Exh. K does not itself constitute

evidence. As explained in Borromeo v. Court of Appeals: 23
 Under the above provision (Rule 132, §10), the memorandum used to
refresh the memory of the witness does not constitute evidence, and may not be
admitted as such, for the simple reason that the witness has just the same to testify on
the basis of refreshed memory. In other words, where the witness has testified
independently of or after his testimony has been refreshed by a memorandum of the
events in dispute, such memorandum is not admissible as corroborative evidence. It is
self-evident that a witness may not be corroborated by any written statement prepared
wholly by him. He cannot be more credible just because he supports his open-court
declaration with written statements of the same facts even if he did prepare them
during the occasion in dispute, unless the proper predicate of his failing memory is
priorly laid down. What is more, even where this requirement has been satisfied, the
express injunction of the rule itself is that such evidence must be received with
caution, if only because it is not very difficult to conceive and fabricate evidence of this
nature. This is doubly true when the witness stands to gain materially or otherwise
from the admission of such evidence . . . 24
As the entries in question (Exh. K) were not made based on personal knowledge,
they could only corroborate Dolores Aday's testimony that she made the entries as she
received the bills.
Third. Does this, therefore, mean there is no competent evidence of private
respondent's claim as petitioner argues? 25 The answer is in the negative. Aside from Exh. K,
private respondent presented the following documents:
1) Exhibit A — Contract Agreement dated 26 April 1985 which contract covers
both the Toledo wharf project and the Babag Road project in Lapulapu City.
2) Exhibit B — Contract Agreement dated 23 July 1985 which covers the DAS
Asphalting Project.
3) Exhibit C— Revised Computation of Billings submitted on May 28, 1986.
4) Exhibit D — an affidavit executed by [petitioner] to the effect that she has no
more pending or unsettled obligations as far as Toledo Wharf Road is concerned.
5) Exhibit D-1 — Statement of Work Accomplished on the Road Restoration of
Cebu-Toledo wharf project.
6) Exhibit E — another affidavit executed by [petitioner] attesting that she has
completely paid her laborers at the project located at Babag, Lapulapu City.
7) Exhibits F, G, G-1, G-2, G-3 — Premiums paid by [private respondent]
together with the receipts for filing fees.
8) Exhibits H, I, J — certifications issued by OIC , MPWH, Regional Office;
Lapulapu City, City Engineer; Toledo City Treasurer's Office respectively, proving that
RDC construction has no more collectibles with all the said government offices in
connection with its projects.
* 10) Exhibit L — Bill No. 057 under the account of RDC Construction in the
amount of P153,382.75 dated August 24, 1985.
11) Exhibit M — Bill-No. 069 (RDC's account), in the amount of P1,701,795.00
dated November 20, 1985.
12) Exhibit N. — Bill No. 071 (RDC's account) in the amount of P47,250.00
dated November 22, 1985.
13) Exhibit O — Bill No. 079 (RDC's account) in the amount of P7,290.00 dated
December 6, 1985.
As the trial court found:
The entries recorded under Exhibit "K" were supported by Exhibits "L", "M", "N",
"O" which are all Socor Billings under the account of RDC Construction. These billings
were presented and duly received by the authorized representatives of
defendant. The circumstances obtaining in the case at bar clearly show that for a long
period of time after receipt thereof, RDC never manifested its dissatisfaction or
objection to the aforestated billings submitted by plaintiff. Neither did defendant
 immediately protest to plaintiff's alleged incomplete or irregular performance. In view
of these facts we believe Art. 1235 of the New Civil Code is applicable. 
cdll

Art. 1235. When the obligee accepts the performance, knowing its

incompleteness and irregularity and without expressing any protest or
objection, the obligation is deemed complied with.
FINALLY, after a conscientious scrutiny of the records, we find Exhibit "D-1" (p.
85 record) to be a material proof of plaintiff's complete fulfillment of its obligation.
There is no question that plaintiff supplied RDC Construction with Item 302
(Bituminous Prime Coat), Item 303 (Bituminous Tack Coat) and Item 310 (Bituminous
Concrete Surface Course) in all the three projects of the latter. The Lutopan Access
Road project, the Toledo wharf project and the Babag-Lapulapu Road project.
On the other hand, no proof was ever offered by defendant to show the
presence of other contractors in those projects. We can therefore conclude that it was
Socor Construction Corp. ALONE who supplied RDC with Bituminous Prime Coat,
Bituminous Tack Coat and Bituminous Concrete Surface Course for all the
aforenamed three projects. 26
Indeed, while petitioner had previously paid private respondent about P1,400,000.00 for
deliveries made in the past, she did not show that she made such payments only after the
delivery receipts had been presented by private respondent. On the other hand, it appears
that petitioner was able to collect the full amount of project costs from the government, so that
petitioner would be unjustly enriched at the expense of private respondent if she is not made
to pay what is her just obligation under the contracts.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED.  cdasia

SO ORDERED.

|||  (Canque v. Court of Appeals, G.R. No. 96202, [April 13, 1999], 365 PHIL 124-136)